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ב"ה

Rambam - 1 Chapter a Day

Yibbum vChalitzah - Chapter Six

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Yibbum vChalitzah - Chapter Six

1

There are brothers who are fit to perform either the rite of yibbum or the rite of chalitzah. There are brothers who are not fit to perform either the rite of yibbum or the rite of chalitzah. [The deceased's wives] are under no obligation to them at all; they may marry another man. There are brothers who are fit to perform the rite of chalitzah but not the rite of yibbum, and there are brothers who are fit to perform the rite of yibbum but not the rite of chalitzah.1

א

יֵשׁ אַחִין שֶׁרְאוּיִין לְיִבּוּם אוֹ לַחֲלִיצָה. וְיֵשׁ אַחִין שֶׁאֵינָן רְאוּיִין לֹא לְיִבּוּם וְלֹא לַחֲלִיצָה וְאֵין לָהֶן זִקָּה כְּלָל אֶלָּא יְבִמְתּוֹ מֻתֶּרֶת לְזָר. וְיֵשׁ אַחִין שֶׁרְאוּיִין לַחֲלִיצָה וְאֵינָן רְאוּיִין לְיִבּוּם. וְיֵשׁ אַחִין שֶׁהֵן רְאוּיִין לְיִבּוּם וְאֵינָן רְאוּיִין לַחֲלִיצָה:

2

With regard to the following, [the deceased's wives] have no obligation at all: a saris chamah2 and an androgynous,3 for they are not fit to father children, nor had they been at any time.4

ב

וְאֵלּוּ הֵם שֶׁאֵין לָהֶן זִקָּה כְּלָל. סְרִיס חַמָּה וְאַנְדְּרוֹגִינוּס מִפְּנֵי שֶׁאֵינָן רְאוּיִין לֵילֵד וְלֹא הָיָה לָהֶן שְׁעַת הַכּשֶׁר:

3

These are [the brothers] who are fit to perform the rite of yibbum,5 but not the rite of chalitzah: a deaf-mute, a mentally incompetent man and a minor. [The rationale is that] they lack the mental competence to perform chalitzah.

When a deaf-mute performs yibbum, he may never divorce [his yevamah]. For by entering into relations with her, he establishes a marriage bond that is completely binding, and he is incapable of divorcing a woman in a completely effective manner.6

[When a yavam who is below the age of majority but more than] nine years and one day old performs yibbum, [he acquires his yevamah as a wife]. He may not, however, divorce [her] until he attains majority, as we have explained.7

ג

וְאֵלּוּ מְיַבְּמִין וְלֹא חוֹלְצִין. הַחֵרֵשׁ וְהַשּׁוֹטֶה וְהַקָּטָן מִפְּנֵי שֶׁאֵין בָּהֶן דַּעַת לַחֲלֹץ. וּכְשֶׁיִּבֵּם הַחֵרֵשׁ אֵינוֹ מוֹצִיא לְעוֹלָם שֶׁבְּעִילָתוֹ עוֹשָׂה אוֹתָהּ אֵשֶׁת אִישׁ גְּמוּרָה וְאֵין גֵּרוּשָׁיו גֵּרוּשִׁין גְּמוּרִין. וּבֶן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד שֶׁיִּבֵּם אֵינוֹ יָכוֹל לְגָרֵשׁ עַד שֶׁיַּגְדִּיל כְּמוֹ שֶׁבֵּאַרְנוּ:

4

These are [the brothers] who are fit to perform the rite of chalitzah, but not the rite of yibbum: those whose status is in doubt - e.g., there is a doubt whether a yevamah is forbidden to [the deceased's] brother,8 a man with crushed testicles, or a crushed member, or who has been castrated in any other way,9 and an elderly man whose virility has been weakened and he is incapable.

If [a yavam] who has been castrated enters into relations [with his yevamah], he acquires [her as a wife], for there was a time when he was sexually potent. He must, however, divorce her with a get, because he is forbidden to marry [a native-born Jewess].

A tumtum10 should perform chalitzah, but not yibbum, because his status is one of doubt. If an operation is performed, and it is revealed that he is a male, he may perform either chalitzah or yibbum, as he desires.11

Brothers [of the deceased who are not in any of the categories listed above] may perform either chalitzah or yibbum.

ד

וְאֵלּוּ חוֹלְצִין וְלֹא מְיַבְּמִין. הַסְּפֵקוֹת כְּגוֹן שֶׁהָיְתָה סְפֵק עֶרְוָה עַל אָחִיו. וּפְצוּעַ דַּכָּא וּכְרוּת שָׁפְכָה וְכַיּוֹצֵא בָּהֶן מִמִּינֵי הַסֵּרוּס. וְהַזָּקֵן בְּיוֹתֵר שֶׁתָּשַׁשׁ כֹּחוֹ וְכָשַׁל. וְאִם בָּעַל סְרִיס אָדָם קָנָה שֶׁהֲרֵי הָיְתָה לוֹ שְׁעַת הַכּשֶׁר וּמוֹצִיא בְּגֵט מִפְּנֵי שֶׁהוּא אָסוּר לָבוֹא בַּקָּהָל. וְהַטֻּמְטוּם חוֹלֵץ וְלֹא מְיַבֵּם מִפְּנֵי שֶׁהוּא סָפֵק. וְאִם נִקְרַע וְנִמְצָא זָכָר רָצָה חוֹלֵץ רָצָה מְיַבֵּם. וּשְׁאָר הָאַחִין אוֹ חוֹלְצִין אוֹ מְיַבְּמִין:

5

There are yevamot who are fit to perform either the rite of chalitzah or the rite of yibbum. There are yevamot who are not fit to perform either the rite of yibbum or the rite of chalitzah. They are under no obligation to [the deceased's brothers] at all, and they may marry another man. There are yevamot who are fit to perform the rite of chalitzah, but not the rite of yibbum, and there are yevamot who are fit to perform the rite of yibbum but not the rite of chalitzah.12

ה

יֵשׁ יְבָמוֹת שֶׁהֵן רְאוּיוֹת לַחֲלִיצָה אוֹ לְיִבּוּם. וְיֵשׁ יְבָמוֹת שֶׁאֵינָן רְאוּיוֹת לֹא לַחֲלִיצָה וְלֹא לְיִבּוּם וְאֵין עֲלֵיהֶן זִקָּה כְּלָל וּמֻתָּרוֹת לְהִנָּשֵׂא לְזָר. וְיֵשׁ יְבָמוֹת שֶׁהֵן רְאוּיוֹת לַחֲלִיצָה אֲבָל לֹא לְיִבּוּם. וְיֵשׁ יְבָמוֹת שֶׁהֵן רְאוּיוֹת לְיִבּוּם אֲבָל לֹא לַחֲלִיצָה:

6

These are [the yevamot] who may perform the rite of yibbum, but not the rite of chalitzah: a deaf-mute, a mentally incompetent woman and a minor.13

[The rationale why they cannot perform chalitzah is that] they lack the mental competence to read and to understand. If the yavam desires to divorce the deaf-mute with a get after he engages in relations with her, he may.14

ו

וְאֵלּוּ שֶׁמִּתְיַבְּמוֹת וְלֹא חוֹלְצוֹת. הַחֵרֶשֶׁת וְהַשּׁוֹטָה וְהַקְּטַנָּה לְפִי שֶׁאֵין בָּהֶן דַּעַת לִקְרוֹת וּלְהָבִין. וְאִם רָצָה הַיָּבָם לְגָרֵשׁ הַחֵרֶשֶׁת בְּגֵט אַחַר שֶׁיִּבְעל אוֹתָהּ הֲרֵי זֶה מְגָרֵשׁ:

7

These are [the yevamot] who may perform the rite of chalitzah, but not the rite of yibbum: [Women who are] forbidden [to the yavam] because of a negative commandment, [because of a Rabbinic ordinance - i.e.,] sh'niyot, or because of a positive commandment, as will be explained.15

Whenever there is a doubt whether or not a woman was divorced [by the deceased], she should perform chalitzah and not yibbum, lest the yavam violate a prohibition. For a brother's wife who was divorced is forbidden as an ervah.16 If, however, there was a doubt regarding whether a woman was consecrated to one's [deceased] brother, her status is like that of another yevamah, and she may perform either chalitzah or yibbum. For there is no possibility of [a prohibition being involved].17

Similarly, the wife of a deaf-mute,18 an elderly woman or a woman who has become barren are like other yevamot. The yavam may perform either chalitzah or yibbum, as he desires. [The rationale is that] the elderly woman and the woman who has become barren were once fit [to bear children].

ז

וְאֵלּוּ שֶׁחוֹלְצוֹת וְלֹא מִתְיַבְּמוֹת. אִסּוּרֵי לָאוִין וְהַשְּׁנִיּוֹת וְאִסּוּרֵי עֲשֵׂה כְּמוֹ שֶׁיִּתְבָּאֵר. וְכָל אִשָּׁה שֶׁהִיא סְפֵק מְגֹרֶשֶׁת חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת שֶׁמָּא יִפְגַּע בְּעֶרְוָה. שֶׁאֵשֶׁת אָחִיו שֶׁגֵּרְשָׁהּ אֲסוּרָה עָלָיו מִשּׁוּם עֶרְוָה. אֲבָל מִי שֶׁהִיא מְקֻדֶּשֶׁת לְאָחִיו בִּסְפֵק קִדּוּשִׁין הֲרֵי הִיא כִּשְׁאָר כָּל הַיְבָמוֹת וְחוֹלֶצֶת אוֹ מִתְיַבֶּמֶת שֶׁאֵין כָּאן דָּבָר לָחוּשׁ לוֹ. וְכֵן אֵשֶׁת הַחֵרֵשׁ וּזְקֵנָה וַעֲקָרָה הֲרֵי הֵן כִּשְׁאָר כָּל הַיְבָמוֹת. רָצָה חוֹלֵץ רָצָה מְיַבֵּם. שֶׁזְּקֵנָה וַעֲקָרָה הָיְתָה לָהֶן שְׁעַת הַכּשֶׁר:

8

The following are not obligated to perform either chalitzah or yibbum: the wife of a saris chamah or the wife of an androgynous, the wife of a mentally incompetent person or the wife of a minor, an aylonit, or a woman forbidden [to her yavam] as one of the arayot.

[The rationale for these laws is as follows. Deuteronomy 25:6 states that yibbum was instituted:] "So that the name of [the deceased] not be obliterated within Israel."19 This excludes the wife of a saris chamah or the wife of an androgynous, for their names are "obliterated" by nature. Since they are inherently unfit to father children, they are considered to be a separate category.

[The verse continues:] "And the firstborn that she bears." This excludes an aylonit, who is, by nature, incapable of bearing a child.

It is written [ibid:5]: "The wife of the deceased...." This excludes the wife of a mentally incompetent person or the wife of a minor - for with regard to them, there is no concept of marriage at all.

[The verse continues:] "And he will take her as a wife." This excludes a woman forbidden [to her yavam] as one of the arayot, for she cannot be taken as a wife.20

ח

וְאֵלּוּ הֵן שֶׁהֵן פְּטוּרוֹת מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. אֵשֶׁת סְרִיס חַמָּה וְאַנְדְּרוֹגִינוּס וְאֵשֶׁת הַשּׁוֹטֶה וְאֵשֶׁת הַקָּטָן וְאַיְלוֹנִית וּמִי שֶׁהִיא עֶרְוָה. שֶׁנֶּאֱמַר (דברים כה ו) ״וְלֹא יִמָּחֶה שְׁמוֹ מִיִּשְׂרָאֵל״‎‎ פְּרָט לִסְרִיס חַמָּה וְאַנְדְּרוֹגִינוּס שֶׁשְּׁמָם מָחוּי הוֹאִיל וְאֵינָן רְאוּיִין לֵילֵד מִתְּחִלַּת בְּרִיָּתָן הֲרֵי הֵן כְּמִין בִּפְנֵי עַצְמוֹ. (דברים כה ו) ״וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד״‎‎ פְּרָט לְאַיְלוֹנִית שֶׁאֵינָהּ רְאוּיָה לֵילֵד מִתְּחִלַּת בְּרִיָּתָהּ. (דברים כה ה) ״לֹא תִּהְיֶה אֵשֶׁת הַמֵּת״‎‎ פְּרָט לְאֵשֶׁת שׁוֹטֶה וְקָטָן מִפְּנֵי שֶׁאֵין לָהֶם אִישׁוּת כְּלָל. (דברים כה ה) ״וּלְקָחָהּ לוֹ לְאִשָּׁה״‎‎ פְּרָט לְעֶרְוָה שֶׁאֵין לוֹ בָּהּ לִקּוּחִין:

9

How is it possible for a woman to be forbidden [to her yavam] as one of the arayot?21 For example, [the yevamah] was the sister, the mother, or the daughter of [the yavam's] wife. Such a woman is not obligated to perform either chalitzah or yibbum at all and is under no obligation to [the yavam], as implied by the verse: "And he shall take her as a wife, thus performing yibbum." Only a woman who is fit to be married, and whose consecration [by the yavam] is binding is obligated to perform yibbum.

ט

כֵּיצַד. יְבָמָה שֶׁהִיא עֶרְוָה עַל יְבָמָהּ כְּגוֹן שֶׁהָיְתָה אֲחוֹת אִשְׁתּוֹ אוֹ אִמָּהּ אוֹ בִּתָּהּ הֲרֵי זוֹ פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם וְאֵין לוֹ עָלֶיהָ זִקָּה כְּלָל שֶׁנֶּאֱמַר (דברים כה ה) ״וּלְקָחָהּ לוֹ לְאִשָּׁה וְיִבְּמָהּ״‎‎. מִי שֶׁרְאוּיָה לְלִקּוּחִין וְקִדּוּשִׁין תּוֹפְסִין בָּהּ הִיא זְקוּקָה לְיָבָם:

10

If the yevamah was forbidden to her yavam because of a negative commandment or a positive commandment, or she was one of the sh'niyot, she should perform chalitzah, but not yibbum.

Why is she obligated to perform chalitzah? Because she is fit to be married, and her consecration [by the yavam] would be binding.22 Therefore, she is under obligation to the yavam. And according to law, she should perform yibbum, for yibbum is a positive commandment, and whenever the observance of a positive commandment conflicts with the observance of a negative commandment, the positive commandment takes precedence.23 Nevertheless, our Sages decreed that neither woman with whom relations are prohibited by a negative commandment, nor sh'niyot24 should perform yibbum, lest [the yavam] engage in relations with her a second time. [At that time,] relations with her are forbidden, and there is no mitzvah, for the positive commandment [of yibbum] applies only with regard to the first time [the couple] engage in relations.

Therefore, if [the yavam] transgresses and engages in relations with a yevamah who is forbidden to him because of a negative commandment or because of a positive commandment, he acquires her [as his wife] in definitive manner and must divorce her with a get. Needless to say, [this ruling applies] with regard to a sh'niyah.25 [After the divorce, the yevamah] and all the other wives [of the deceased] are permitted to marry other men, for they have been released of their obligation.

י

הָיְתָה הַיְבָמָה אֲסוּרָה עַל יְבָמָהּ אִסּוּר לָאו אוֹ אִסּוּר עֲשֵׂה אוֹ שֶׁהָיְתָה שְׁנִיָּה הֲרֵי זוֹ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. וּמִפְּנֵי מָה צְרִיכָה חֲלִיצָה מִפְּנֵי שֶׁיֵּשׁ בָּהּ לִקּוּחִין הוֹאִיל וְקִדּוּשִׁין תּוֹפְסִין בָּהֶן הֲרֵי הֵן זְקוּקוֹת לְיָבָם. וּמִן הַדִּין הָיָה שֶׁיִּתְיַבְּמוּ שֶׁהַיִּבּוּם מִצְוַת עֲשֵׂה וְכָל מָקוֹם שֶׁאַתָּה מוֹצֵא עֲשֵׂה וְלֹא תַּעֲשֶׂה יָבֹא עֲשֵׂה וְיִדְחֶה אֶת לֹא תַּעֲשֶׂה. אֲבָל חֲכָמִים גָּזְרוּ שֶׁלֹּא יִתְיַבְּמוּ חַיָּבֵי לָאוִין וְלֹא שְׁנִיּוֹת גְּזֵרָה שֶׁמָּא יָבוֹא עָלֶיהָ פַּעַם שְׁנִיָּה וַהֲרֵי בִּיאָתָהּ אֲסוּרָה וְאֵין שָׁם מִצְוָה שֶׁאֵין מִצְוַת עֲשֵׂה אֶלָּא בִּיאָה רִאשׁוֹנָה בִּלְבַד. לְפִיכָךְ אִם עָבַר וּבָעַל יְבִמְתּוֹ הָאֲסוּרָה לוֹ מִשּׁוּם לָאו אוֹ מִשּׁוּם עֲשֵׂה וְאֵין צָרִיךְ לוֹמַר שְׁנִיָּה הֲרֵי זֶה קָנָה קִנְיָן גָּמוּר וּמוֹצִיאָהּ בְּגֵט וְהִיא וְכָל צָרוֹתֶיהָ מֻתָּרוֹת לְזָר שֶׁהֲרֵי נִפְטְרוּ:

11

When a yevamah has been widowed after her marriage [to the deceased] had been consummated, and a High Priest performs yibbum with her, the other wives [of the deceased] are not released from their obligation. [The rationale is that a positive commandment does not supersede a negative commandment and a positive commandment.26 [Therefore,] he does not acquire [the yevamah as a wife] in a definitive manner, and as such, another wife [of the deceased]27 is not permitted to marry another man until she performs chalitzah [herself].

יא

וִיבָמָה שֶׁהִיא אַלְמָנָה מִן הַנִּשּׂוּאִין וּבָא עָלֶיהָ כֹּהֵן גָּדוֹל לֹא נִפְטְרָה צָרָתָהּ שֶׁאֵין עֲשֵׂה דּוֹחֶה אֶת לֹא תַּעֲשֶׂה וַעֲשֵׂה. וְהוֹאִיל וְלֹא קָנָה מִן הַתּוֹרָה קִנְיָן גָּמוּר לֹא הֻתְּרָה צָרָתָהּ לְזָר עַד שֶׁתַּחֲלֹץ:

12

[The following principle applies when] a yevamah was forbidden to her [deceased] husband as one of the arayot - e.g., he transgressed or he erred and married his paternal sister, and she is now under obligation to his brother.28 She is not considered to be [the deceased's] wife, for his consecration of her is not binding. [As such,] she is neither obligated to perform yibbum nor chalitzah.

If [the deceased] had another wife, the other wife must perform either chalitzah or yibbum. If the woman who was forbidden to her [deceased] husband as one of the arayot is permitted to the yavam,29 and the yavam desires to marry her and also to perform yibbum with another wife [of the deceased], he has that option.30

יב

הָיְתָה הַיְבָמָה עֶרְוָה עַל בַּעְלָהּ. כְּגוֹן שֶׁעָבַר אוֹ טָעָה וְלָקַח אֲחוֹתוֹ מֵאָבִיו וְנָפְלָה לִפְנֵי אָחִיו. אֵין זוֹ אִשְׁתּוֹ שֶׁאֵין קִדּוּשִׁין תּוֹפְסִין בָּהּ וְאֵינָהּ לֹא בַּת יִבּוּם וְלֹא בַּת חֲלִיצָה. וְאִם הָיְתָה לָהּ צָרָה חוֹלֶצֶת [אוֹ] מִתְיַבֶּמֶת. וְאִם הָיְתָה זוֹ שֶׁהִיא עֶרְוָה עַל הַבַּעַל מֻתֶּרֶת לַיָּבָם וְרָצָה הַיָּבָם לִשָּׂא אוֹתָהּ וּלְיַבֵּם צָרָתָהּ הָרְשׁוּת בְּיָדוֹ:

13

When a yevamah is forbidden to her husband because of a negative commandment or a positive commandment,31 or she is a sh'niyah with regard to him,32 but is not forbidden to the yavam for these reasons, she is permitted to perform yibbum. There is one exception - when the deceased remarried his divorcee after she had married another man. She should perform chalitzah and not yibbum.

Similarly, when there is a doubt whether a yevamah was forbidden to her [deceased] husband as one of the arayot, or33 there is a doubt whether she is forbidden to her yavam for that reason, she should perform chalitzah and not yibbum.

On this basis, [the following rules apply when] a man [attempted to] consecrate a woman, but there was a doubt regarding the status of the kiddushin, and afterwards, his brother, who had been married to the sister [of the woman he intended to consecrate], died. He should perform chalitzah and not yibbum with the wife [of the deceased].34 And because of the doubt, he must divorce his wife with a get.

Both women are forbidden to him: his yevamah because there is a doubt whether she is an ervah, and the woman he consecrated because there is a doubt whether her status is that of one related to a woman with whom he performed chalitzah, who is forbidden as a sh'niyah is, as explained above.35

יג

הָיְתָה הַיְבָמָה אֲסוּרָה עַל בַּעְלָהּ מִשּׁוּם לָאו אוֹ מִשּׁוּם עֲשֵׂה אוֹ שֶׁהָיְתָה שְׁנִיָּה לַבַּעַל וְלֹא הָיְתָה אֲסוּרָה עַל הַיָּבָם מִצַּד אֵלּוּ הַצְּדָדִים הֲרֵי זוֹ מֻתֶּרֶת לַיָּבָם. חוּץ מִמַּחֲזִיר גְּרוּשָׁתוֹ מִשֶּׁנִּשֵּׂאת וּמֵת שֶׁהִיא חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. וְכֵן יְבָמָה שֶׁהִיא סְפֵק עֶרְוָה עַל הַיָּבָם אוֹ סְפֵק עֶרְוָה עַל בַּעְלָהּ הֲרֵי זוֹ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. לְפִיכָךְ מִי שֶׁקִּדֵּשׁ אִשָּׁה בִּסְפֵק קִדּוּשִׁין וְאַחַר כָּךְ מֵת אָחִיו שֶׁהָיָה נוֹשֵׂא אֲחוֹתָהּ וְנָפְלָה לוֹ לְיִבּוּם שֶׁהִיא סְפֵק אֲחוֹת אִשְׁתּוֹ הֲרֵי זוֹ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. וּמוֹצִיא אֶת אִשְׁתּוֹ בְּגֵט מִסָּפֵק וּשְׁתֵּיהֶן אֲסוּרוֹת עָלָיו. יְבִמְתּוֹ מִפְּנֵי שֶׁהִיא סְפֵק עֶרְוָה וַאֲרוּסָתוֹ מִפְּנֵי שֶׁהִיא סְפֵק קְרוֹבַת חֲלוּצָתוֹ שֶׁהִיא כִּשְׁנִיָּה כְּמוֹ שֶׁבֵּאַרְנוּ:

14

[The following principle applies when a man's] brother dies [childless] leaving two wives: one forbidden to [the yavam] as an ervah,36 and one who is not forbidden in this manner. Just as the woman who is forbidden is not under the obligation to perform chalitzah or yibbum, so too, [the deceased's] other wives are not obligated.

This household is not under any obligation [to the yavam], as our Sages derived from [Deuteronomy 25:9]: "...Who did not build his brother's house": [Women from] a household from which he can take [any wife] he desires is under obligation [to the yavam]. But if he cannot "build" a portion of the household - i.e., he is forbidden to marry the woman - he should not "build" even the portion that is permitted to him.

Thus, [when one of the wives of the deceased] is forbidden to [the yavam] as an ervah, the other wife also remains forbidden to him as an ervah. [She is still forbidden as] his brother's wife, for she is not under any obligation at all to him.

יד

מִי שֶׁמֵּת אָחִיו וְהִנִּיחַ שְׁתֵּי נָשִׁים הָאַחַת אֲסוּרָה עָלָיו מִשּׁוּם עֶרְוָה וְהַשְּׁנִיָּה אֵינָהּ עֶרְוָה. כְּשֵׁם שֶׁהָעֶרְוָה פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם כָּךְ צָרָתָהּ פְּטוּרָה וְלֹא נָפְלָה לוֹ זִקָּה כְּלָל עַל בַּיִת זֶה. שֶׁנֶּאֱמַר (דברים כה ט) ״אֲשֶׁר לֹא יִבְנֶה אֶת בֵּית אָחִיו״‎‎ בַּיִת שֶׁיֵּשׁ לוֹ לִקּוּחִין בְּאֵי זֶה מֵהֶן שֶׁיִּרְצֶה הוּא שֶׁיֵּשׁ לוֹ עָלָיו זִקָּה. וּבַיִת שֶׁמִּקְצָתוֹ אֵינוֹ יָכוֹל לִבְנוֹתוֹ שֶׁהֲרֵי אֵין לוֹ בָּהּ לִקּוּחִין אֵינוֹ בּוֹנֶה אֲפִלּוּ מִקְצָתוֹ שֶׁהוּא מֻתָּר. וְנִמְצֵאת צָרַת הָעֶרְוָה עֶרְוָה עָלָיו מִשּׁוּם אֵשֶׁת אָחִיו שֶׁהֲרֵי אֵין לוֹ עָלֶיהָ זִקָּה:

15

Accordingly, [the following rules apply when] Reuven dies [childless], leaving two wives, one of whom is forbidden as an ervah to [his brother] Shimon, and both are fit to marry [his brother] Levi.37 [The wives of] this household are under no obligation at all to Shimon, and both are under obligation to Levi.

[The following rule applies if] Levi performed yibbum with the woman who was married [to Reuven] but who was not an ervah to Shimon, [Levi] had another wife, and then he died [childless], and both women fell before to Shimon. They are both free of the obligation to perform either chalitzah or yibbum with Shimon.38 [Levi's yevamah] is forbidden because she was married to the same man as was a woman forbidden [to Shimon] as an ervah, and the other wife is forbidden because she was married to the same man [as the yevamah].

This principle applies whenever a woman is married to the same man as a woman who was the other wife [of a woman forbidden to the yavam] and to any further extension of this principle.39 As long as a woman is under no obligation [to her yavam], she remains forbidden to him as his brother's wife.

טו

לְפִיכָךְ רְאוּבֵן שֶׁמֵּת וְהִנִּיחַ שְׁתֵּי נָשִׁים הָאַחַת עֶרְוָה עַל שִׁמְעוֹן וּשְׁתֵּיהֶן רְאוּיוֹת לְלֵוִי אֵין לְשִׁמְעוֹן זִקָּה עַל בַּיִת זֶה וַהֲרֵי שְׁתֵּיהֶן תַּחַת זִקַּת לֵוִי. יִבֵּם לֵוִי הָאַחַת מֵהֶן שֶׁהִיא צָרַת עֶרְוָה שֶׁל שִׁמְעוֹן וְהָיְתָה לוֹ אִשָּׁה אַחֶרֶת וּמֵת לֵוִי וְנָפְלוּ שְׁתֵּיהֶן לִפְנֵי שִׁמְעוֹן שְׁתֵּיהֶן פְּטוּרוֹת מִן הַחֲלִיצָה וּמִן הַיִּבּוּם מִשִּׁמְעוֹן. הָאַחַת מִפְּנֵי שֶׁהָיְתָה צָרַת עֶרְוָה וְהַשְּׁנִיָּה מִפְּנֵי שֶׁהִיא צָרָתָהּ. וְכֵן הַדִּין בְּצָרַת צָרָתָהּ עַד סוֹף הָעוֹלָם. שֶׁכָּל אִשָּׁה שֶׁאֵין לוֹ עָלֶיהָ זִקָּה בְּאִסּוּר אֵשֶׁת אָח עוֹמֶדֶת לְעוֹלָם:

16

Similarly, the wife of a brother who died before [his younger brother was born is forbidden to him]. She is under no obligation to him, as implied by [Deuteronomy 25:5]: "When brothers dwell together," interpreted to mean: when they live at the same time. She remains forbidden to him forever, and she frees all of her husband's other wives from an obligation to him.

טז

וְכֵן אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְּעוֹלָמוֹ הוֹאִיל וְאֵין לוֹ עָלֶיהָ זִקָּה שֶׁנֶּאֱמַר (דברים כה ה) ״כִּי יֵשְׁבוּ אַחִים יַחְדָּו״‎‎ עַד שֶׁיֵּשְׁבוּ שְׁנֵיהֶם בָּעוֹלָם הֲרֵי זוֹ עֶרְוָה עָלָיו לְעוֹלָם מִשּׁוּם אֵשֶׁת אָח וּפוֹטֶרֶת צָרָתָהּ:

17

What is implied? Reuven died [childless], leaving a wife who fell before Shimon [his brother]. After Reuven died, whether before Shimon performed yibbum with Reuven's wife or afterwards, Levi [another brother] was born.

Reuven's wife remains forbidden to Levi as an ervah forever. Therefore, if Shimon dies [childless], and this woman and another woman [who was married to Shimon] fall before Levi, neither are obligated to perform chalitzah or yibbum.

יז

כֵּיצַד. רְאוּבֵן שֶׁמֵּת וְהִנִּיחַ אִשָּׁה וְנָפְלָה לִפְנֵי שִׁמְעוֹן וְאַחַר שֶׁמֵּת רְאוּבֵן נוֹלַד לֵוִי. בֵּין שֶׁנּוֹלַד לֵוִי קֹדֶם שֶׁיִּבֵּם לָהּ שִׁמְעוֹן בֵּין שֶׁנּוֹלַד אַחַר שֶׁיִּבְּמָהּ. הֲרֵי אֵשֶׁת רְאוּבֵן עֶרְוָה עַל לֵוִי לְעוֹלָם. לְפִיכָךְ אִם מֵת שִׁמְעוֹן וְנָפְלָה זוֹ וְצָרָתָהּ לִפְנֵי לֵוִי שְׁתֵּיהֶן פְּטוּרוֹת מִן הַחֲלִיצָה וּמִן הַיִּבּוּם:

18

[Moreover,] if Shimon [merely] gave a ma'amar to his yevamah, Reuven's wife, and died before he consummated his relationship with her, Levi should perform chalitzah with [Shimon's] other wife, but not yibbum. [The rationale is] that a ma'amar does not establish a completely binding relationship with a yevamah, as we have explained.40

יח

עָשָׂה שִׁמְעוֹן מַאֲמָר בִּיבִמְתּוֹ אֵשֶׁת רְאוּבֵן וּמֵת קֹדֶם שֶׁיִּכְנֹס אוֹתָהּ הֲרֵי לֵוִי חוֹלֵץ לְצָרָתָהּ וְלֹא מְיַבֵּם. שֶׁאֵין הַמַּאֲמָר קוֹנֶה בַּיְבָמָה קִנְיָן גָּמוּר כְּמוֹ שֶׁבֵּאַרְנוּ:

19

When a woman willingly commits adultery while married to her husband, and [her act is observed by] witnesses [he is required to divorce her].41 If he died [childless] before he divorced her, and she fell before a yavam, she is not obligated to perform chalitzah or yibbum. Moreover, [her deceased husband's] other wives are also [not obligated to perform chalitzah or yibbum], as if she were forbidden to the yavam as an ervah. For just as impurity is mentioned with regard to the arayot,42 so too, that term is mentioned with regard to such a woman, as [Numbers 5:13] states: "And she became impure."43

When, however, the husband of a sotah dies [childless] before he has caused her to her drink the bitter waters,44 or if the woman must be divorced instead of drinking the bitter waters,45 she should perform chalitzah, but not yibbum.46 Similarly, if [her deceased husband] had another wife, that woman is permitted [to the yavam] and may perform chalitzah or yibbum.

יט

אִשָּׁה שֶׁזִּנְּתָה תַּחַת בַּעְלָהּ בְּרָצוֹן וּבְעֵדִים וּמֵת קֹדֶם שֶׁיְּגָרְשֶׁנָּה וְנָפְלָה לִפְנֵי יָבָם הֲרֵי הִיא פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. וְכֵן צָרָתָהּ כְּאִלּוּ הָיְתָה עֶרְוָה עַל הַיָּבָם מִפְּנֵי שֶׁטֻּמְאָה כְּתוּבָה בָּהּ כַּעֲרָיוֹת שֶׁנֶּאֱמַר (במדבר ה יג יד) ״וְהִיא נִטְמָאָה״‎‎. אֲבָל סוֹטָה שֶׁמֵּת בַּעְלָהּ קֹדֶם שֶׁיַּשְׁקֶנָּה מֵי הַמָּרִים אוֹ שֶׁאֵינָהּ בַּת שְׁתִיָּה אֶלָּא בַּת גֵּרוּשִׁין הֲרֵי זוֹ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. וְאִם הָיְתָה לָהּ צָרָה הֲרֵי צָרָתָהּ מֻתֶּרֶת וְחוֹלֶצֶת אוֹ מִתְיַבֶּמֶת:

20

Similar rules [apply] if two yevamot come from one household and one of them was a sh'niyah to the yavam, [forbidden to him because of] a negative commandment or a positive commandment, or an aylonit - another wife of [her deceased husband] is permitted [to the yavam] and may perform chalitzah or yibbum.

[Different rules apply, however, when a yavam] performed chalitzah with his yevamah, and then the sister, the mother, or another [close relative] of the woman with whom he performed chalitzah married another one of his brothers, that brother has another wife, and [the brother] dies [childless].47 Just as the close relative of the woman with whom he performed chalitzah is forbidden to him, so too, is the other wife forbidden to him. Their status is like sh'niyot, and they should perform chalitzah, but not yibbum.

Why did the Sages forbid [marriage] to a close relative of a woman with whom one performed chalitzah? Because it is difficult to distinguish her from a woman married to the same man as a woman with whom one performed chalitzah.48

כ

וְכֵן שְׁתֵּי יְבָמוֹת הַבָּאוֹת מִבַּיִת אֶחָד שֶׁהָיְתָה הָאַחַת מֵהֶן שְׁנִיָּה עַל הַיָּבָם אוֹ מֵחַיָּבֵי לָאוִין אוֹ מֵחַיָּבֵי עֲשֵׂה אוֹ אַיְלוֹנִית הֲרֵי צָרָתָהּ מֻתֶּרֶת וְחוֹלֶצֶת אוֹ מִתְיַבֶּמֶת. אֲבָל הַחוֹלֵץ לִיבִמְתּוֹ וְהָלְכָה אֲחוֹת חֲלוּצָתוֹ אוֹ אִמָּהּ וְכַיּוֹצֵא בָּהֶן וְנִשֵּׂאת לְאָחִיו וְלוֹ אִשָּׁה אַחֶרֶת וָמֵת וְנָפְלוּ שְׁתֵּיהֶן לְפָנָיו. כְּשֵׁם שֶׁקְּרוֹבַת חֲלוּצָתוֹ אֲסוּרָה עָלָיו כָּךְ צָרָתָהּ אֲסוּרָה. וַהֲרֵי שְׁתֵּיהֶן כִּשְׁנִיּוֹת לוֹ וְחוֹלְצוֹת וְלֹא מִתְיַבְּמוֹת. וּמִפְּנֵי מָה אָסְרוּ צָרַת קְרוֹבַת חֲלוּצָתוֹ. מִפְּנֵי שֶׁמִּתְחַלֶּפֶת בְּצָרַת חֲלוּצָתוֹ:

21

When two yevamot come from one household and one of them was forbidden to the yavam as an ervah, but she was also an aylonit, the other wife of [the deceased husband] is permitted [to the yavam] and may perform chalitzah or yibbum. [The rationale is that] since the laws of yibbum and chalitzah do not apply with regard to an aylonit, it is as if she did not exist, and the obligation [of yibbum] falls on the other wife alone.

Similarly, if [the deceased] brother divorced the woman forbidden as an ervah or she dissolved their marriage through] mi'un before he died, or she died during the lifetime of the deceased brother, and then he died, his other wife is permitted and should perform either chalitzah or yibbum. We do not say that since she was married to the same man as an ervah once, she remains forbidden forever. For a woman married to the same man as an ervah does not become forbidden [to the yavam] unless they were [both married to the same man at the time of his death, when] the obligation of yibbum takes effect.

כא

שְׁתֵּי יְבָמוֹת הַבָּאוֹת מִבַּיִת אֶחָד שֶׁהָאַחַת מֵהֶן עֶרְוָה עַל הַיָּבָם וַהֲרֵי הָעֶרְוָה אַיְלוֹנִית. צָרָתָהּ מֻתֶּרֶת וְחוֹלֶצֶת אוֹ מִתְיַבֶּמֶת. הוֹאִיל וְהָאַיְלוֹנִית אֵינָהּ בַּת יִבּוּם וַחֲלִיצָה הֲרֵי זוֹ כְּמִי שֶׁאֵינָהּ. וְנָפְלָה זִקָּתוֹ עַל צָרָתָהּ בִּלְבַד. וְכֵן אִם גֵּרֵשׁ אָחִיו אֶת הָעֶרְוָה אוֹ מֵאֲנָה בּוֹ קֹדֶם שֶׁיָּמוּת. אוֹ שֶׁמֵּתָה בְּחַיֵּי בַּעְלָהּ וְאַחַר כָּךְ מֵת אָחִיו. הֲרֵי צָרָתָהּ מֻתֶּרֶת וְחוֹלֶצֶת אוֹ מִתְיַבֶּמֶת. וְאֵין אוֹמְרִין הוֹאִיל וְנַעֲשֵׂית צָרָה לְעֶרְוָה שָׁעָה אַחַת תֵּאָסֵר לְעוֹלָם. שֶׁאֵין הַצָּרָה אֲסוּרָה עַד שֶׁתִּהְיֶה צָרַת עֶרְוָה בִּשְׁעַת נְפִילָה לְיִבּוּם:

22

[In the situation mentioned in Halachah 14,] if there was a doubt regarding the status of the kiddushin of [the woman] who was forbidden to the yavam as an ervah or there was a doubt that she was divorced, the other wife [of the deceased brother] should perform chalitzah, but not yibbum.49

[The same ruling applies if the woman who was forbidden] was a minor who is fit to absolve her marriage through mi'un, if she did not dissolve her marriage [to the deceased] brother during his lifetime, even though she did dissolve her obligation to] the yavam through mi'un,50 another woman married to her husband must perform chalitzah; she may not perform yibbum.

כב

הָיְתָה זוֹ שֶׁהִיא עֶרְוָה עַל הַיָּבָם מְקֻדֶּשֶׁת לְאָחִיו שֶׁמֵּת בְּסָפֵק אוֹ מְגֹרֶשֶׁת מִמֶּנּוּ בְּסָפֵק. אוֹ שֶׁהָיְתָה קְטַנָּה הָרְאוּיָה לְמָאֵן וְלֹא מֵאֲנָה בְּאָחִיו בְּחַיָּיו. אַף עַל פִּי שֶׁמֵּאֲנָה בַּיָּבָם צָרָתָהּ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת:

23

[In the situation mentioned in Halachah 14,] if the other woman [married to the deceased brother] married another man, and then it was discovered that [the woman forbidden to the yavam as] an ervah was an aylonit,51 the woman who married must be released by both her [second] husband and her yavam. Her [second] husband must divorce her with a get, while her yavam must perform chalitzah with her. [In this way,] she is permitted to marry another man.

כג

הָלְכָה צָרַת עֶרְוָה וְנִשֵּׂאת לְאַחֵר וְאַחַר כָּךְ נִמְצֵאת הָעֶרְוָה אַיְלוֹנִית. תֵּצֵא הַצָּרָה מִבַּעְלָהּ וּמִיבָמָהּ וּצְרִיכָה גֵּט מִבַּעְלָהּ וַחֲלִיצָה מִיבָמָהּ כְּדֵי לְהַתִּירָהּ לַשּׁוּק:

24

[In the above situation], if the yavam performed yibbum with the other wife of the deceased, because he thought that the woman forbidden to him as an ervah was an aylonit, and it was discovered that she was not an aylonit, the yavam must divorce [the woman with whom he performed yibbum] with a get.52 Any child [she bears him] is illegitimate.53

כד

יִבֵּם הַיָּבָם הַצָּרָה מִפְּנֵי שֶׁדִּמּוּ שֶׁהָעֶרְוָה אַיְלוֹנִית וְנִמְצֵאת הָעֶרְוָה שֶׁאֵינָהּ אַיְלוֹנִית תֵּצֵא מִיבָמָהּ בְּגֵט וְהַוָּלָד מַמְזֵר:

25

[In the following situation, chalitzah and not yibbum is required.] There were three brothers. Two were married to two sisters, and one was married to a woman who did not share a family connection. If the brother married to the woman who was not related died [childless], and then one of the brothers married to one of the sisters died [childless], [the remaining brother] should perform chalitzah but not yibbum, with the woman who did not share a family connection54. [The rationale is that] she was obligated to the second brother, and his other wife was the sister [of the surviving yavam's] wife.55

Moreover, even if one of the brothers who married one of the sisters divorced his wife after the brother married to the woman who was not related died [childless], and then he himself dies [childless], [the remaining brother] should perform chalitzah, but not yibbum, with the woman who did not share a family connection. Since there was even one moment when this woman was obligated to the second brother while his other wife was the sister [of the surviving yavam's] wife [this prohibition was enforced].56 For if [he] were [allowed to] perform yibbum with her, it is possible that [in such a situation, a brother] might perform yibbum with such a woman even when the second brother who died did not divorce his wife.

כה

שְׁלֹשָׁה אַחִין. שְׁנַיִם מֵהֶן נְשׂוּאִין שְׁתֵּי אֲחָיוֹת וְאֶחָד מֵהֶן נָשׂוּי נָכְרִית. מֵת הַנָּשׂוּי נָכְרִית וְאַחַר כָּךְ מֵת אֶחָד מִבַּעֲלֵי אֲחָיוֹת. הֲרֵי הַנָּכְרִית חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת מִפְּנֵי שֶׁהִיא צָרַת אֲחוֹת אִשְׁתּוֹ בְּזִקַּת אָחִיו שֶׁמֵּת אַחֲרוֹן. וְלֹא עוֹד אֶלָּא אֲפִלּוּ גֵּרֵשׁ אֶחָד מִבַּעֲלֵי אֲחָיוֹת אֶת אִשְׁתּוֹ אַחַר שֶׁמֵּת הַנָּשׂוּי נָכְרִית וּמֵת הַמְגָרֵשׁ הֲרֵי הַנָּכְרִית חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת הוֹאִיל וְנַעֲשֵׂית צָרַת אָחוֹת אִשְׁתּוֹ בְּזִקָּה שָׁעָה אַחַת. שֶׁאִם תִּתְיַבֵּם שֶׁמָּא יָבֹא לְיַבֵּם אוֹתָהּ. וַאֲפִלּוּ לֹא גֵּרֵשׁ זֶה שֶׁמֵּת אַחֲרוֹן אֶת אִשְׁתּוֹ:

26

Why was this decree not applied when a marriage was involved? For example, if [a brother is married to two women,] one of them is forbidden [to his brother] as an ervah and one is not. If he divorces the wife who is forbidden and then dies childless, [the surviving brother] may perform yibbum with the wife [of the deceased brother], as we have explained.57

[The distinction is that] the prohibition against [performing yibbum] with a wife [of one's deceased brother] when one of his wives is forbidden [to the yavam] as ervah is known by all.58 Thus, if [the deceased brother] did not divorce the woman forbidden [to the yavam], no one would allow him [to perform yibbum with his brother's] other wife. The prohibition against [performing yibbum with] a woman who was obligated to [a man whose] other wife is forbidden [to the yavam] is not known to all, and it is possible that [in such a situation, a brother] might be allowed to [perform yibbum with] such a woman even when [the second brother who died] did not divorce the forbidden woman.

כו

וּמִפְּנֵי מָה לֹא גָּזְרוּ דָּבָר זֶה בַּנִּשּׂוּאִין שֶׁהֲרֵי צָרַת עֶרְוָה בַּנִּשּׂוּאִין אִם גֵּרֵשׁ אֶת הָעֶרְוָה וּמֵת צָרָתָהּ מֻתֶּרֶת לַיָּבָם כְּמוֹ שֶׁבֵּאַרְנוּ. מִפְּנֵי שֶׁאִסּוּר צָרַת הָעֶרְוָה בַּנִּשּׂוּאִין יָדוּעַ לַכּל וְאֵינָן בָּאִין לְהַתִּיר הַצָּרָה אִם לֹא גֵּרֵשׁ הָעֶרְוָה. וְאִסּוּר צָרַת עֶרְוָה בְּזִיקָה אֵינוֹ יָדוּעַ לַכּל וּבָאִין לְהַתִּיר הַצָּרָה וַאֲפִלּוּ לֹא נִתְגָּרְשָׁה הָעֶרְוָה:

27

[In the following situation, chalitzah and not yibbum is required.] There were three brothers, all married to women who did not share any family connection. One of the brothers died [childless]. Another gave his yevamah a ma'amar, but died [childless] before he consummated his marriage to her. Thus, this woman and the wife of the second brother fell before the third brother.

These women should perform chalitzah, but not yibbum, because the woman who was given the ma'amar has two obligations for yibbum incumbent on her.59 As such, it is as if she had been married to two men. Our Sages interpreted the phrase [Deuteronomy 25:5] "the wife of the deceased," as a restriction. [One may perform yibbum with the wife of one deceased man,] but not [the wife of] two deceased men.60

Therefore, whenever a woman has two obligations for yibbum incumbent on her, she should perform chalitzah, but not yibbum. The same applies to the woman married to [the second brother who died]. The prohibition [against performing yibbum with these women] is Rabbinic in origin.61

כז

שְׁלֹשָׁה אַחִין נְשׂוּאִין שָׁלֹשׁ נָשִׁים נָכְרִיּוֹת. מֵת אֶחָד מֵהֶן וְעָשָׂה הַשֵּׁנִי מַאֲמָר בִּיבִמְתּוֹ וּמֵת קֹדֶם שֶׁיִּכְנֹס וְנָפְלוּ שְׁתֵּיהֶן לִפְנֵי הַיָּבָם הֲרֵי אֵלּוּ חוֹלְצוֹת וְלֹא מִתְיַבְּמוֹת. מִפְּנֵי שֶׁבַּעֲלַת הַמַּאֲמָר עָלֶיהָ זִקַּת שְׁנֵי יְבָמִין. וְנִמְצֵאת כְּאִלּוּ הִיא אֵשֶׁת שְׁנֵי מֵתִים. וְדָרְשׁוּ חֲכָמִים וְאָמְרוּ (דברים כה ה) ״אֵשֶׁת הַמֵּת״‎‎ וְלֹא אֵשֶׁת שְׁנֵי מֵתִים. לְפִיכָךְ כָּל אִשָּׁה שֶׁעָלֶיהָ זִקַּת שְׁנֵי יְבָמִין חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת וְכֵן צָרָתָהּ. וְאִסּוּרָן מִדִּבְרֵי סוֹפְרִים:

28

Why does [the yavam] not merely perform chalitzah with the woman who was given the ma'amar and is thus obligated to perform yibbum because of two men, and then perform yibbum with the [first] wife of [the deceased brother]? This is a decree instituted so that people will not say that when there are two yevamot coming from one household, one should perform chalitzah and the other yibbum.62 For this reason, [the Sages] forbade [performing yibbum with the deceased's first] wife.

כח

וּמִפְּנֵי מָה לֹא יַחֲלֹץ לְבַעֲלַת הַמַּאֲמָר שֶׁעָלֶיהָ זִקַּת שְׁנֵי יְבָמִין וִייַבֵּם צָרָתָהּ. גְּזֵרָה שֶׁלֹּא יֹאמְרוּ שְׁתֵּי יְבָמוֹת הַבָּאוֹת מִבַּיִת אֶחָד אַחַת חוֹלֶצֶת וְאַחַת מִתְיַבֶּמֶת. וּלְפִיכָךְ אָסְרוּ אַף צָרָתָהּ:

29

[In the above instance, if the second brother] gave his yevamah a ma'amar and then gave her a get [to nullify] the ma'amar, [different rules apply] if he dies. [The woman] becomes permitted [to the third brother], for the ma'amar that caused her to be forbidden was nullified. He may perform either chalitzah or yibbum with her.63

כט

עָשָׂה מַאֲמָר בִּיבִמְתּוֹ וְנָתַן גֵּט לְמַאֲמָרוֹ וּמֵת חָזְרָה לְהֶתֵּרָהּ. שֶׁהַמַּאֲמָר שֶׁאֲסָרָהּ הֲרֵי בִּטְּלוֹ. וְרָצָה חוֹלֵץ רָצָה מְיַבֵּם:

30

[In the following situation, chalitzah and not yibbum is required. A yavam] who is below the age of majority, [but more than] nine years and one day old, enters into relations with his yevamah and dies before he attains majority. She then becomes obligated for yibbum to the minor's older brother for a second time. She should perform chalitzah, but not yibbum. As we have explained,64 relations in which a minor engages are considered equivalent to a ma'amar given by [a brother] past majority. Hence, the woman has two obligations for yibbum incumbent on her.

ל

בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד שֶׁבָּא עַל יְבִמְתּוֹ וּמֵת כְּשֶׁהוּא קָטָן וְנָפְלָה פַּעַם שְׁנִיָּה לִפְנֵי אָחִיו הַגָּדוֹל הֲרֵי זוֹ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. שֶׁבִּיאַת בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד כְּמַאֲמָר מִן הַגָּדוֹל כְּמוֹ שֶׁבֵּאַרְנוּ וְנִמְצָא עָלֶיהָ זִקַּת שְׁנֵי יְבָמִין:

31

[The following rule applies when] a woman who was half [a Canaanite] maid-servant and half a freed woman65 was consecrated by Reuven. She was then given her freedom and was consecrated by [Reuven's brother,] Shimon. Afterwards, both [brothers] died. Levi, [a third brother, may] perform yibbum with [this woman]; she is not considered to be "the wife of two deceased men." For if her consecration by Reuven is effective, her consecration by Shimon is of no consequence.66 And if her consecration by Shimon is effective, her consecration by Reuven is of no consequence.

לא

מִי שֶׁחֶצְיָהּ שִׁפְחָה וְחֶצְיָהּ בַּת חוֹרִין שֶׁנִּתְקַדְּשָׁה לִרְאוּבֵן וְנִשְׁתַּחְרְרָה וְחָזְרָה וְנִתְקַדְּשָׁה לְשִׁמְעוֹן וּמֵתוּ שְׁנֵיהֶם מִתְיַבֶּמֶת לְלֵוִי וְאֵינָהּ אֵשֶׁת שְׁנֵי מֵתִים. אִם קִדּוּשֵׁי רְאוּבֵן קִדּוּשִׁין אֵין קִדּוּשֵׁי שִׁמְעוֹן כְּלוּם. וְאִם קִדּוּשֵׁי שִׁמְעוֹן קִדּוּשִׁין אֵין קִדּוּשֵׁי רְאוּבֵן כְּלוּם:

Footnotes
1.

These categories are all defined in the following three halachot.

2.

A man who never displayed any male physical characteristics and who is sexually impotent. The Aruch interprets the term as meaning "one who became impotent as a result of fever." Yevamot 80a interprets it as meaning "one who never saw the light of the sun while potent."

3.

A person with both male and female sexual organs.

4.

Since the entire purpose of yibbum is to perpetuate the deceased brother's name (Deuteronomy 25:7), when this is not possible there is no obligation for this rite.

The Tur (Even HaEzer 172) quotes opinions that maintain that an androgynous is considered a normal male and may perform either yibbum or chalitzah, as he desires. Although the Shulchan Aruch (Even HaEzer 172:8) also mentions this view, the Rambam's opinion appears to be favored.

5.

The intent is not that they should be encouraged to perform yibbum, but that if they perform yibbum, they acquire the yevamah as a wife. The rationale is that the act of yibbum does not require intent, as stated in Chapter 2, Halachah 3.

6.

In the Kessef Mishneh, Rav Yosef Karo emphasizes that this ruling applies only when the yevamah's deceased husband was mentally competent. If the deceased also was a deaf-mute, the deaf-mute yavam may divorce her by signaling with hand motions. Rav Yosef Karo reiterates this decision in the Shulchan Aruch (Even HaEzer 172:12).

7.

See Chapter 5, Halachah 18. Note Chapter 5, Halachah 21, which states that if he did not enter into relations with his yevamah after he attained majority, he must also perform the rite of chalitzah.

8.

A person consecrated one of two sisters, and it is not known which one he consecrated. He is not allowed to marry, because he does not know which of the women is his wife and which is forbidden to him. If he dies, his brother may not perform yibbum, because the same doubt applies with regard to him. (See Chapter 8, Halachah 1.)

9.

See Hilchot Issurei Bi'ah, Chapter 16, for a detailed treatment of this subject.

10.

A person whose genital area is covered by flesh and determination of his sex is not possible , as stated in Hilchot Ishut 2:25.

The Tur (Even HaEzer 172) quotes opinions that maintain that there is doubt whether a tumtum may perform yibbum. Therefore, he must perform chalitzah. Although the Shulchan Aruch (Even HaEzer 172:9) also mentions this view, the Rambam's opinion appears to be favored.

11.

Once the operation is performed and it is determined that he is a male, there is no difference between him and other males.

12.

These categories are all defined in the following three halachot.

13.

With regard to a minor, see Chapter 4, Halachah 16.

14.

For according to Scriptural and Talmudic law, neither a woman's understanding nor her consent is necessary for a divorce to be effective.

15.

See Halachah 10. (See also a delineation of the women included in these three categories in Hilchot Ishut 1:6-8.)

16.

A severe prohibition punishable by karet. See Hilchot Ishut 1:5; Hilchot Issurei Bi'ah 2:1.

17.

I.e., if the brother's consecration was effective, then the yavam is performing a mitzvah, and if it was not effective, he has no ties to the woman at all, and he may consecrate her as he consecrates any other woman (Yevamot 41b).

18.

Although the marriage of a deaf-mute is not binding according to Scriptural law, his brother may still perform yibbum.

19.

Note the Rambam's Commentary on the Mishnah (Yevamot 2:3), where he cites a different proof-text for this concept, one that is not mentioned in other Rabbinic sources.

20.

For a positive commandment does not supersede the observance of a negative commandment punishable by karet. Although it is not necessary to mention a proof-text for this concept, the Rambam does so, because it represents the simple meaning of the passage from the Torah (Maggid Mishneh; Kin'at Eliyahu).

21.

And yet to be permitted to her deceased husband, so that her original marriage was binding (in contrast to the instances mentioned in Halachah 12).

22.

Nevertheless, after engaging in relations once to fulfill the mitzvah of yibbum, the yavam would be obligated to divorce the yevamah, as evident from Hilchot Ishut 4:14.

23.

Note the statements of the Beit Shmuel 174:3, who connects this concept with the difference of opinion between the Sephardic and Ashkenazic authorities with regard to which takes precedence: yibbum or chalitzah. (See the notes on Chapter 1, Halachah 2.)

24.

The commentaries raise the question of why, in this clause, the Rambam omits the mention of women with whom relations are forbidden by virtue of a positive commandment. They explain that his omission holds the key to the comprehension of a more general question.

Although the observance of a positive commandment supersedes the observance of a negative commandment, the observance of one positive commandment does not supersede the observance of another positive commandment. And therefore, the question arises: Why does yibbum establish a binding marriage bond when the transgression of a positive commandment is involved? Such a transgression is not mandated by law.

The commentaries explain that indeed the yavam should not - even according to Scriptural law - perform yibbum in such a situation, and therefore the Rambam omits mention of those forbidden by a positive commandment in this clause. If, however, the yavam does violate the positive commandment, the marriage bond created is binding. For just as the positive commandment of yibbum is not greater than the positive commandment involving the prohibition, the positive commandment involving the prohibition is not greater than the positive commandment of yibbum. See the conclusion of the Responsa of the Noda Biy'hudah on Choshen Mishpat and the commentary of the Or Sameach on this halachah.

25.

In which instance the prohibition against further relations is merely Rabbinic in origin.

26.

I.e., the positive commandment of yibbum does not supersede both the prohibition against a High Priest's marrying a widow, and the positive commandment that he must marry a virgin. For this reason, this halachah mentions an instance when the woman's marriage was consummated. If she became a widow when she had merely been consecrated, only a negative commandment is involved, and the laws mentioned in the previous halachah apply.

27.

The commentaries infer that the Rambam's wording implies that if the High Priest divorces the woman, she herself may marry others; she does not require chalitzah. See the conclusion of the gloss of the Beit Shmuel 174:3.

28.

Who is also her brother.

29.

E.g., the deceased brother married his maternal sister. She has no family connection whatsoever to the surviving brother, and he is permitted to marry her.

30.

It is not as if he married two yevamot from the same household, because the woman who was forbidden to the deceased is not considered part of his household.

31.

An example of a negative commandment incumbent on the deceased, but not on the yavam, would be a High Priest who married a widow. His brother, an ordinary priest, is not bound by that prohibition. An example of a positive commandment incumbent on the deceased, but not on the yavam, would be a High Priest who married a woman who had engaged in relations previously. His brother, an ordinary priest, is not bound by that prohibition.

32.

For example, the deceased married his maternal grandmother, who is forbidden to him as a sh'niyah. If the deceased has a paternal brother who had a different mother, that brother is a yavam and there is no prohibition against his marrying his brother's grandmother.

33.

Note the Kessef Mishneh, which suggests altering the text of the Mishneh Torah and substituting the word "and" for "or." For, as it explains, if the yevamah is not forbidden to the yavam, the fact that she was forbidden - or that there was a doubt whether she was forbidden - to her deceased husband does not prevent the yavam from marrying her, as stated in the previous halachah.

34.

For it is possible that his original kiddushin were binding, and by marrying the yevamah he will be transgressing the prohibition against marrying two sisters.

35.

Chapter 1, Halachah 13. (See also Chapter 7, Halachah 8.)

If the kiddushin the yavam gave were definitely binding, the chalitzah would be of no consequence, because the yevamah would not be obligated to him at all. Nevertheless, since that has not been established definitively, the chalitzah is necessary, and as a consequence, the yavam must divorce the woman whom he originally desired to marry.

36.

But not to the deceased - e.g., the yavam's daughter.

37.

E.g., Reuven married Shimon's daughter. She is thus forbidden to Shimon and permitted to Levi.

38.

If Levi had another brother, they would, however, be under obligation to him.

39.

I.e., if Reuven, Shimon, and Levi had another brother and he performed yibbum with the woman who was not previously married to Reuven, that brother had another wife, and then he died without children - his wives are also under no obligation to Shimon. Since one of the wives was once freed from an obligation to him, even if she remarries she can never be obligated to him. Moreover, she frees all the other wives of her second husband from an obligation to him.

40.

Chapter 5, Halachot 2-3.

Through the ma'amar, Shimon established a connection with his yevamah. Therefore, our Sages ordained that Levi should not perform yibbum with Shimon's wife. Nevertheless, since Shimon did not establish a marriage that was binding according to Scriptural law with his yevamah, Levi is required to perform chalitzah with Shimon's wife.

The Kessef Mishneh (in its gloss on Halachah 10), notes that - as reflected in Halachah 25 - even if Shimon did not give a ma'amar to Reuven's wife, the very fact that she is under obligation to him is sufficient cause for Levi to be prohibited from performing yibbum with her. The Rambam did not mention this concept in this halachah, because: a) he was quoting the Mishnah (Yevamot, Chapter 1), and b) he wanted to emphasize that even if Shimon gave Reuven's wife a ma'amar, Levi is still obligated to perform chalitzah with Shimon's wife. The ma'amar does not free her of obligation entirely.

41.

See Hilchot Ishut 24:18.

42.

As Leviticus 18:24 states: "Do not become impure through any of these [forbidden relationships]."

43.

The Ra'avad differs with the Rambam regarding this matter and maintains that just as the woman's husband would have to give her a get to terminate their relationship, so too, her yavam must perform chalitzah with her. The Shulchan Aruch (Even HaEzer 173:11) follows the Rambam's ruling, while the Ramah mentions that of the Ra'avad.

44.

A sotah is not given the bitter waters to drink after her husband's death, as stated in Hilchot Sotah 2:7.

45.

As explained in Hilchot Sotah 2:2, there are some women whose fidelity should be tested by the bitter waters. Nevertheless, because of certain incidental factors, she is not given these waters to drink and instead must be divorced by her husband.

46.

According to the Rambam, the difference between these two instances is that the infidelity of the sotah has not been proven, while in the former case, the woman's infidelity is an established fact.

47.

Although Rashi offers a different interpretation for this concept, the halachic authorities follow the Rambam's view.

48.

If the relatives of a woman who performed chalitzah were permitted, one might think that another woman who was married to the deceased husband of the woman who performed chalitzah would also be permitted.

49.

Since it is possible that the ervah was never married to the deceased, or that her marriage was already terminated, the yavam must perform chalitzah to enable the other wife to remarry. He may not, however, perform yibbum, for it is possible that the marriage of the ervah was effected by the kiddushin or not terminated by the divorce, in which instance, the yavam would be forbidden to have relations with the other wife of his deceased brother, as stated in Halachah 15.

50.

The minor nullifies her marriage retroactively through mi'un, and it is as if she had never been married at all. As such, the obligation of yibbum falls on the other wife. Nevertheless, since this halachic concept might not be known to all, our Sages forbade the other wife of the deceased from performing yibbum, lest the impression be created that a woman married to the same man as an ervah is also permitted (Yevamot 13a, 107b).

51.

The other wife of the deceased was under the impression that she did not require chalitzah to be released, as stated in Halachah 15. Afterwards, it was discovered that the woman forbidden to the yavam as an ervah was an aylonit, in which instance the obligation of yibbum falls solely on the other wife, as stated in Halachah 21. Thus, her second marriage involves a transgression and must be terminated. (See Chapter 2, Halachah 18.) Nevertheless, a child fathered by her second husband is not considered illegitimate, because the negative commandment violated is not punishable by karet.

52.

The Or Sameach explains that ordinarily, when a woman is prohibited as an ervah, a get is not necessary. Nevertheless, an exception is made in this instance, lest people think that the deceased divorced his other wife before his death, and the act of yibbum was binding.

The Tur (Even HaEzer 173) maintains that a get is not required, and indeed suggests that this is also the Rambam's intent, but the text of the Mishneh Torah was flawed by a printer's error. The Shulchan Aruch (Even HaEzer 173:9) does not require a get.

53.

As stated in Halachah 14, the prohibition against relations with a brother's wife applies in such an instance. This prohibition is punishable by karet. Hence, any child born to this couple - whether before or after he discovers that the ervah was an aylonit - is illegitimate.

54.

His wife's sister, by contrast, need not perform yibbum or chalitzah. She is free to marry any man.

55.

With regard to yibbum, the obligation to perform yibbum is powerful enough to have the woman considered the wife of a man whose other wife is an ervah to the yavam. Nevertheless, this comparison is not complete. For since the deceased brother never actually married her, she is obligated to perform chalitzah.

56.

The Ra'avad and others differ with the Rambam regarding this issue, maintaining that the prohibition is not applied when the second brother divorces his first wife.

57.

See Halachah 21.

58.

And, as reflected in Halachah 14, it is of Scriptural origin.

59.

I.e., since she did not perform yibbum with the brother who gave her the ma'amar, she is still obligated to perform yibbum because of her first husband, and since a ma'amar is considered equivalent to consecration, she is also obligated to perform yibbum because of the second brother who died.

60.

If, however, the second brother performed yibbum before dying, this restriction does not apply.

61.

It was stated above that the prohibition against marrying a woman who is obligated to perform yibbum because of two men is derived from a verse. Nevertheless, as reflected by the fact that chalitzah is required (Yevamot 31b), that verse is only an asmachta, a support. The source of the prohibition is Rabbinic in origin. (Note Tosafot, who differ and maintain that the prohibition is of Scriptural origin.)

62.

See Chapter 1, Halachah 12, which states that once a yavam has foregone the privilege of yibbum by performing chalitzah, neither he nor his brothers may perform yibbum with any of the wives of that brother.

63.

For the only obligation incumbent on her is due to the brother who died first. The third brother must also perform either yibbum or chalitzah with the wife of the second brother.

64.

Chapter 5, Halachah 18.

65.

E.g., a Canaanite maid-servant who was owned by two partners, and one partner set her free, but the other did not.

66.

The consecration of such a woman is discussed in Hilchot Ishut 4:16.

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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