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Rambam - 3 Chapters a Day

Gerushin - Chapter Thirteen, Yibbum vChalitzah - Chapter One, Yibbum vChalitzah - Chapter Two

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Gerushin - Chapter Thirteen

1

[The following rules apply with regard to] a woman who told her husband:1 "You divorced me in the presence of so and so and so and so," and those witnesses came and denied her statements.2 If afterwards, she and her husband departed [for a far-removed country] while peace prevails in the world at large,3 and then she returns and says, "My husband died," her word is not accepted.

[The rationale is] that she is considered to be a liar, who desires to free herself from her ties to her husband.4 If one witness comes and testifies on her behalf that her husband died, she should not [be granted permission to] marry; we fear that perhaps she hired him.5 If, however, she marries, nevertheless, she need not leave [her second husband], for there is a witness who supports her.

א

הָאִשָּׁה שֶׁאָמְרָה לְבַעְלָהּ גִּרשְׁתַּנִי בִּפְנֵי פְּלוֹנִי וּפְלוֹנִי וּבָאוּ אוֹתָן הָעֵדִים וְהִכְחִישׁוּהָ וְאַחַר כָּךְ הָלְכָה הִיא וּבַעְלָהּ וְשָׁלוֹם בָּעוֹלָם וּבָאָה וְאָמְרָה מֵת בַּעְלִי אֵינָהּ נֶאֱמֶנֶת. שֶׁזּוֹ הֻחְזְקָה שַׁקְרָנִית וְרוֹצָה לְהִשָּׁמֵט מִתַּחַת בַּעְלָהּ. בָּא עֵד אֶחָד וְהֵעִיד לָהּ שֶׁמֵּת בַּעְלָהּ לֹא תִּנָּשֵׂא שֶׁמָּא הִיא שָׂכְרָה אוֹתוֹ. וְאִם נִשֵּׂאת לֹא תֵּצֵא שֶׁהֲרֵי יֵשׁ לָהּ עֵד:

2

Similarly, when there is a state of war in the world at large, if [a woman] comes and says, "My husband died in the war,"6 her word is not accepted, even where the couple's relationship is peaceful.

[The rationale is that we fear that] she will rely on a situation in which the likelihood is that he will die - e.g., the people in the front and at the rear were killed, and her husband is in the center. She might think, "Since these were killed, and those were killed, he was killed surely together with them."

For this reason, her word is not accepted, even if she says, "He died in the war, and I buried him."7 If, however, she says that he died in bed, her word is accepted.8

ב

וְכֵן אִם הָיְתָה מִלְחָמָה בָּעוֹלָם וּבָאָה וְאָמְרָה מֵת בַּעְלִי בַּמִּלְחָמָה אֵינָהּ נֶאֱמֶנֶת וְאַף עַל פִּי שֶׁהָיָה שָׁלוֹם בֵּינוֹ לְבֵינָהּ (שֶׁמָּא) תִּסְמֹךְ דַּעְתָּהּ עַל דְּבָרִים שֶׁרֻבָּן לְמִיתָה וְתֹאמַר מֵת כְּגוֹן שֶׁנֶּהֶרְגוּ הָרִאשׁוֹנִים וְהָאַחֲרוֹנִים שֶׁהָיָה בַּעְלָהּ בְּאֶמְצָעָן שֶׁהֲרֵי הִיא אוֹמֶרֶת מֵאַחַר שֶׁנֶּהֶרְגוּ אֵלּוּ וְאֵלּוּ נֶהֱרַג הוּא בִּכְלָלָן. לְפִיכָךְ אֵינָהּ נֶאֱמֶנֶת וַאֲפִלּוּ אָמְרָה מֵת בַּמִּלְחָמָה וּקְבַרְתִּיו. אֲבָל אִם אָמְרָה מֵת עַל מִטָּתוֹ נֶאֱמֶנֶת:

3

If we are not aware of a war raging in the world, and a woman comes and says: "There was a war in a particular county and [my husband] died in that war," a priori, she should not marry. If, however, she marries, she need not leave [her second husband].9

ג

לֹא הֻחְזְקָה מִלְחָמָה בָּעוֹלָם וּבָאָה וְאָמְרָה מִלְחָמָה הָיְתָה בְּמָקוֹם פְּלוֹנִי וּמֵת בַּמִּלְחָמָה לֹא תִּנָּשֵׂא לְכַתְּחִלָּה. וְאִם נִשֵּׂאת לֹא תֵּצֵא:

4

Similarly, if a woman says, "My husband died in a landslide," her word is not accepted. In the same vein, if an area was overrun by swarms of snakes and scorpions, and she says, "He was bitten by a snake - or a scorpion - and died," h er word is not accepted.10 [The rationale is] that she might rely on the fact that most men die because they were bitten in this manner, [and make a statement without knowing for certain whether or not her husband died].

ד

וְכֵן הָאִשָּׁה שֶׁאָמְרָה מֵת בַּעְלִי תַּחַת הַמַּפּלֶת אֵינָהּ נֶאֱמֶנֶת. וְכֵן אִם הָיָה שִׁלּוּחַ נְחָשִׁים וְעַקְרַבִּים וְאָמְרָה נְשָׁכוֹ נָחָשׁ אוֹ עַקְרָב וָמֵת אֵינָהּ נֶאֱמֶנֶת. שֶׁמָּא תִּסְמֹךְ דַּעְתָּהּ עַל רֹב אֲנָשִׁים שֶׁמֵּתוּ כָּךְ בִּנְשִׁיכָה:

5

If [a woman] says, "They filled the house - or the cave - [in which we were hiding] with smoke; he died, but I was saved," her word is not accepted. [It is possible that] just as she [was saved] by a miracle, he could have been [saved by a miracle].

If it is a year of famine, and she says: "My husband died," her word is not accepted.11 [If she says,] "He died and I buried him," her word is accepted.12

ה

אָמְרָה עִשְּׁנוּ עָלֵינוּ בַּיִת אוֹ מְעָרָה הוּא מֵת וַאֲנִי נִצַּלְתִּי אֵינָהּ נֶאֱמֶנֶת. כְּשֵׁם שֶׁנַּעֲשָׂה לָהּ נֵס כָּךְ נַעֲשָׂה לוֹ. הָיְתָה שְׁנַת רְעָבוֹן וְאָמְרָה מֵת בַּעְלִי אֵינָהּ נֶאֱמֶנֶת. מֵת וּקְבַרְתִּיו נֶאֱמֶנֶת:

6

If [a woman] says, "Gentiles - or thieves - attacked us. He was slain, and I was saved," her word is accepted, because it is not common for attackers to kill women.13 Thus, [it is not fitting] to say: Just as she was saved, he was saved.

ו

אָמְרָה נָפְלוּ עָלֵינוּ עַכּוּ״‎ם אוֹ לִסְטִים הוּא נֶהֱרַג וַאֲנִי נִצַּלְתִּי נֶאֱמֶנֶת. שֶׁאֵין דַּרְכָּן לַהֲרֹג אֶת הַנָּשִׁים כְּדֵי שֶׁנֹּאמַר כְּשֵׁם שֶׁנִּצְּלָה הִיא כָּךְ נִצַּל הוּא:

7

If an epidemic was raging throughout the world, and [a woman] says, "My husband died," her word is accepted.14 For [there is no widely accepted likelihood] with regard to a plague; everyone knows that in a time of plague some die and some live. And it is possible that strong young men will die from the plague, and elderly infirm people will be saved. And therefore, we do not suspect that she relied on the likelihood that most people died.

ז

הָיָה דֶּבֶר בָּעוֹלָם וְאָמְרָה מֵת בַּעְלִי נֶאֱמֶנֶת שֶׁדָּבָר פָּשׁוּט בְּפִי כָּל אָדָם שֶׁבִּשְׁנַת הַדֶּבֶר זֶה חַי וְזֶה מֵת. וְאֶפְשָׁר שֶׁיָּמוּתוּ בַּדֶּבֶר נְעָרִים חֲזָקִים וְיִנָּצְלוּ הַזְּקֵנִים הַחוֹלִים. וּלְפִי זֶה אֵין חוֹשְׁשִׁין לָהּ שֶׁמָּא סָמְכָה דַּעְתָּהּ עַל רֹב הַמֵּתִים:

8

It has already been stated15 that a witness who [did not see evidence of the person's death himself, but who] testifies after hearing the statements of another person is acceptable with regard to [the verification of the death of] a woman's [husband].

When does this apply? When the person heard a mentally competent adult - even a servant or a maid -servant - say that so and so died. If, however, a person heard from a mentally incompetent person or from a minor16 that an individual died, he may not testify [to that effect], nor do we rely on their statements.

ח

כְּבָר אָמַרְנוּ שֶׁעֵד מִפִּי עֵד כָּשֵׁר לְעֵדוּת אִשָּׁה. בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁשָּׁמַע מִפִּי בֶּן דַּעַת שֶׁמֵּת פְּלוֹנִי כְּגוֹן עֶבֶד אוֹ שִׁפְחָה. אֲבָל אִם שָׁמַע מִפִּי שׁוֹטֶה אוֹ מִפִּי קָטָן אֵינוֹ מֵעִיד וְאֵין סוֹמְכִין עַל דִּבְרֵיהֶם:

9

[There is an exception to the above principle.] If a person heard children saying: "We just came from so and so's funeral. These and these many people recited eulogies. The sage so and so and these and these others followed the bier. A nd this and this is what happened to the bier,"17 the person may offer this as testimony [regarding a man's death], and on this basis permission is granted for [the deceased's] wife to remarry.

ט

שָׁמַע מִן הַתִּינוֹקוֹת שֶׁהֵן אוֹמְרִין עַכְשָׁו בָּאנוּ מֵהֶסְפֵּד פְּלוֹנִי כָּךְ וְכָךְ סַפְדָּנִין הָיוּ שָׁם וּפְלוֹנִי הֶחָכָם וּפְלוֹנִי עָלָה אַחַר מִטָּתוֹ כָּךְ וְכָךְ עָשׂוּ בְּמִטָּתוֹ הֲרֵי זֶה מֵעִיד מִפִּיהֶן עַל פִּי הַדְּבָרִים הָאֵלּוּ וְכַיּוֹצֵא בָּהֶן וּמַשִּׂיאִין אֶת אִשְׁתּוֹ:

10

When a Jew says, "I killed so and so," [the man's wife] is allowed to remarry on the basis of his testimony. [The rationale is] a person's own testimony cannot be used to incriminate him. [Therefore, he is not disqualified, and] he did testify that [the husband] died.18

י

יִשְׂרָאֵל שֶׁאָמַר הָרַגְתִּי אֶת פְּלוֹנִי הֲרֵי זוֹ תִּנָּשֵׂא עַל פִּיו שֶׁאֵין אָדָם מֵשִׂים עַצְמוֹ רָשָׁע וַהֲרֵי הֵעִיד שֶׁמֵּת:

11

It has already been stated19 that statements made by a gentile in the course of conversation can be used as a basis to grant [a woman] permission to remarry.

What is implied? If a gentile exclaimed: "How terrible is it that so and so died! He was so nice! He did so much for me!" Or if the gentile was talking and said, "We were traveling on our way, and to our amazement, so and so who was traveling with us fell down and died. We all were amazed that he died so suddenly." If he makes statements of this nature that indicate that he has no intention of giving testimony,20 his word is accepted.

יא

כְּבָר אָמַרְנוּ שֶׁהָעַכּוּ״‎ם שֶׁהֵסִיחַ לְפִי תֻּמּוֹ מַשִּׂיאִין עַל פִּיו. כֵּיצַד. הָיָה עַכּוּ״‎ם מֵסִיחַ וְאָמַר אוֹי לִפְלוֹנִי שֶׁמֵּת כַּמָּה הָיָה נָאֶה וְכַמָּה טוֹבָה עָשָׂה עִמִּי. אוֹ שֶׁהָיָה מֵסִיחַ וְאוֹמֵר כְּשֶׁהָיִיתִי בָּא בַּדֶּרֶךְ נָפַל פְּלוֹנִי שֶׁהָיָה מְהַלֵּךְ עִמָּנוּ וָמֵת וּתְמֵהַנִי לְדָבָר זֶה כֵּיצַד מֵת פִּתְאֹם וְכַיּוֹצֵא בִּדְבָרִים הָאֵלּוּ שֶׁהֵן מַרְאִין שֶׁאֵין כַּוָּנָתוֹ לְהָעִיד הֲרֵי זֶה נֶאֱמָן:

12

When a Jew hears a gentile [say] in the course of conversation [that a man died], he may testify that he heard these statements, and the man's wife may be granted permission to remarry on this basis.

When does the above apply? When there is no rationale to explain [why the gentile would make these statements if they were not true]. If, however, there could be a reason for the gentile's statements, and he is making them with another intent in mind [his word is not accepted].

For example, [a gentile] told a Jew, "Do such and such for me, or else I will kill you, as I killed so and so,"21 he is not making these statements in the course of conversation, for his intent is to cast fear upon his listener.

יב

יִשְׂרָאֵל שֶׁשָּׁמַע מֵעַכּוּ״‎ם הַמֵּסִיחַ לְפִי תֻּמּוֹ מֵעִיד שֶׁשָּׁמַע מִמֶּנּוּ וְתִנָּשֵׂא עַל פִּיו. בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁלֹּא הָיְתָה שָׁם אֲמַתְלָא. אֲבָל אִם הָיְתָה שָׁם אֲמַתְלָא בְּשִׂיחַת הָעַכּוּ״‎ם שֶׁמָּא לֹא יִתְכַּוִּן אֶלָּא לְדָבָר אַחֵר. כְּמוֹ שֶׁאָמַר לְאֶחָד עֲשֵׂה לִי כָּךְ וְכָךְ שֶׁלֹּא אֶהֱרֹג אוֹתְךָ כְּדֶרֶךְ שֶׁהָרַגְתִּי פְּלוֹנִי. אֵין זֶה מֵסִיחַ לְפִי תֻּמּוֹ שֶׁכַּוָּנָתוֹ לְהַטִּיל אֵימָה עַל זֶה:

13

Similarly, if a person heard the gentile legal authorities say, "We executed so and so," their word is not accepted.22 For they will use falsehood to reinforce their position and to cast fear [among the populace]. The same applies in all similar instances.

יג

וְכֵן אִם שָׁמַע מֵעֶרְכָּאוֹת שֶׁל עַכּוּ״‎ם שֶׁאָמְרוּ הָרַגְנוּ פְּלוֹנִי אֵינָם נֶאֱמָנִין. שֶׁהֵן מַחֲזִיקִין יְדֵי עַצְמָן בְּכָזָב כְּדֵי לְהַטִּיל אֵימָה. וְכֵן כָּל כַּיּוֹצֵא בִּדְבָרִים אֵלּוּ:

14

When, at first, a gentile made statements in the course of conversation,23 and afterwards was asked questions [by Jews] until all the details [of the person's death] were disclosed,24 his statements are accepted, and the woman is granted permission to remarry on this basis.

יד

עַכּוּ״‎ם שֶׁהֵסִיחַ לְפִי תֻּמּוֹ תְּחִלָּה אַף עַל פִּי שֶׁשָּׁאֲלוּ אוֹתוֹ אַחַר כָּךְ וּבְדָקוּהוּ עַד שֶׁיְּפָרֵשׁ כָּל הַמְאֹרָע הֲרֵי זֶה נֶאֱמָן וּמַשִּׂיאִין עַל פִּיו:

15

It has already been stated25 that a witness who testifies: "I heard that so and so died,"26 is acceptable with regard to testimony [concerning] a woman's [husband], and the woman may remarry on this basis. [This applies even when] he heard the statements from a woman or from a servant.

If, however, a witness, a woman or a servant says: "So and so died; I saw that he died," the witness should be asked:27 "What did you see? How do you know that he died? " If the witness responds with clear [testimony], his word is accepted. If the witness replies, describing a situation in which it is highly likely that the person would have died, we do not grant his wife license to remarry. For testimony concerning a man's death [can be accepted] only when [the witness can say] with certainty that he saw the man die, and there is no doubt concerning the matter.

טו

כְּבָר הוֹדַעְנוּ שֶׁהָעֵד שֶׁאָמַר שָׁמַעְתִּי שֶׁמֵּת פְּלוֹנִי אֲפִלּוּ שָׁמַע מֵאִשָּׁה שֶׁשָּׁמְעָה מֵעֶבֶד הֲרֵי זֶה כָּשֵׁר לְעֵדוּת אִשָּׁה וּמַשִּׂיאִין עַל פִּיו. אֲבָל אִם אָמַר הָעֵד אוֹ הָאִשָּׁה אוֹ הָעֶבֶד מֵת פְּלוֹנִי וַאֲנִי רְאִיתִיו שֶׁמֵּת. שׁוֹאֲלִין אוֹתוֹ הֵיאַךְ רָאִיתָ וּבְמַה יָּדַעְתָּ שֶׁמֵּת. אִם הֵעִיד בְּדָבָר בָּרוּר נֶאֱמָן וְאִם הֵעִיד בִּדְבָרִים שֶׁרֻבָּן לְמִיתָה אֵין מַשִּׂיאִין אֶת אִשְׁתּוֹ שֶׁאֵין מְעִידִין עַל הָאָדָם שֶׁמֵּת אֶלָּא כְּשֶׁרָאוּהוּ שֶׁמֵּת וַדַּאי וְאֵין בּוֹ סָפֵק:

16

What is implied? If a man was seen falling into the sea, even if he fell into the ocean, testimony should not be offered that the man died, because it is possible that he was cast away or escaped [from the sea] from an [unseen] place.28

If he fell into a body of water with definite boundaries - e.g., a cistern or a cavern in which a person standing [at the edge] could see the entire periphery - testimony that the man died may be offered, and license may be granted for his wife to remarry, provided [the witnesses] remained there for a period of time beyond which it was impossible for the man to live,29 and saw that he did not ascend [from the body of water].

Similarly, if he was cast into the sea and a net was cast in after him, and a limb that a person would not be able to live without was raised up,30 testimony may be offered that he died, and his wife may [be granted license] to remarry.31

טז

כֵּיצַד. רָאוּהוּ שֶׁנָּפַל לַיָּם אֲפִלּוּ טָבַע בַּיָּם הַגָּדוֹל אֵין מְעִידִין עָלָיו שֶׁמֵּת שֶׁמָּא יָצָא בְּמָקוֹם אַחֵר. וְאִם נָפַל לְמַיִם מְקֻבָּצִים כְּגוֹן בּוֹר אוֹ מְעָרָה שֶׁעוֹמֵד וְרוֹאֶה כָּל סְבִיבָיו וְשָׁהָה כְּדֵי שֶׁתֵּצֵא נַפְשׁוֹ וְלֹא עָלָה מְעִידִין עָלָיו שֶׁמֵּת וּמַשִּׂיאִין אֶת אִשְׁתּוֹ. וְכֵן אִם הִשְׁלִיכוּהוּ בַּיָּם וְהִשְׁלִיכוּ מְצוּדָה אַחֲרָיו וְהֶעֱלוּ מִמֶּנּוּ אֵיבָר שֶׁאִי אֶפְשָׁר שֶׁיִּנָּטֵל מִן הַחַי וְיִחְיֶה הֲרֵי זֶה מְעִידִין עָלָיו שֶׁמֵּת וּמַשִּׂיאִין אֶת אִשְׁתּוֹ:

17

If [a man] fell into a lair of lions, leopards or the like, testimony that he died may not be offered,32 for it is possible that they will not eat him. If he fell into a pit of snakes and scorpions,33 into a furnace,34 or into a boiling caldron filled with wine or oil,35 or his esophagus and windpipe were slit - either in their majority36 or in their entirety - testimony may be offered that he died, even if he arose and fled. For [in these situations], he ultimately will die.

Similar laws apply in all situations in which it is impossible that the person will live, but rather will die shortly afterwards. Testimony may be offered that he [died].

יז

רָאוּהוּ שֶׁנָּפַל לְגֹב אֲרָיוֹת וּנְמֵרִים וְכַיּוֹצֵא בָּהֶן אֵין מְעִידִין עָלָיו. אֶפְשָׁר שֶׁלֹּא יֹאכְלוּהוּ. נָפַל לַחֲפִירַת נְחָשִׁים וְעַקְרַבִּים אוֹ לְתוֹךְ כִּבְשַׁן הָאֵשׁ אוֹ לְתוֹךְ יוֹרָה רוֹתַחַת מְלֵאָה יַיִן אוֹ שֶׁמֶן אוֹ שֶׁשָּׁחֲטוּ בּוֹ שְׁנֵי סִימָנִין אוֹ רֻבָּן אֲפִלּוּ עָמַד וּבָרַח מְעִידִין עָלָיו שֶׁמֵּת. שֶׁוַּדַּאי סוֹפוֹ לָמוּת. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה מִדְּבָרִים שֶׁאִי אֶפְשָׁר שֶׁיִּחְיֶה אֶלָּא יָמוּת מִיָּד בִּזְמַן קָרוֹב הֲרֵי אֵלּוּ מְעִידִין עָלָיו:

18

If we see a man hanging37 and a vulture eating from his body, testimony may not be offered that he died. [This applies] even if he was stabbed with a lance, or arrows were shot at him.38

If, however, we see the vulture eating from a place that would cause him to die - e.g., his brain, his heart or his intestines, one may offer testimony that he died.

יח

רָאוּהוּ צָלוּב וְהָעוֹף אוֹכֵל בּוֹ אַף עַל פִּי שֶׁדְּקָרוּהוּ אוֹ יָרוּ בּוֹ חִצִּים אֵינוֹ מֵעִיד עָלָיו שֶׁמֵּת. וְאִם רָאוּ הָעוֹף אוֹכֵל בְּמָקוֹם שֶׁהַנֶּפֶשׁ יוֹצְאָה בִּנְטִילָתוֹ כְּגוֹן מֹחוֹ אוֹ לִבּוֹ אוֹ בְּנֵי מֵעָיו הֲרֵי זֶה מֵעִיד עָלָיו שֶׁמֵּת:

19

[The following laws apply when] one witness testifies, "I saw that he died in a war or in a landslide, or that he drowned in the ocean39 and died," or mentioned other causes that would probably lead to death. If he says, "I buried him," his statements are accepted,40 and she may be granted permission to remarry. If he did not say, "I buried him," she should not be granted permission to remarry. If, however, she remarries, she need not leave [her second husband].41

יט

עֵד אֶחָד אוֹמֵר רְאִיתִיו שֶׁמֵּת בַּמִּלְחָמָה אוֹ בְּמַפּלֶת אוֹ שֶׁטָּבַע בַּיָּם הַגָּדוֹל וָמֵת וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ שֶׁרֻבָּן לְמִיתָה אִם אָמַר קְבַרְתִּיו נֶאֱמָן וְתִנָּשֵׂא עַל פִּיו. וְאִם לֹא אָמַר קְבַרְתִּיו לֹא תִּנָּשֵׂא. וְאִם נִשֵּׂאת לֹא תֵּצֵא:

20

Similarly, if one witness42 testifies that a woman's husband drowned in the sea or in a body of water that does not have a defined periphery, he did not emerge [from the water], all traces of him have disappeared,43 and his existence has been forgotten, the woman should not [be granted license to] remarry on this basis, as we have explained.44

If, however, she remarries,45 she need not be forced to leave her second husband. Even if a gentile said in the course of conversation, "So and so drowned at sea," and on this basis [the man's wife] remarried, she need not be forced to leave her second husband. Nevertheless, [in the above instances,] the sage who gave permission for her to remarry should be placed under a ban of ostracism.46

כ

וְכֵן הָאִשָּׁה שֶׁהֵעִיד לָהּ עֵד אֶחָד שֶׁטָּבַע בַּעְלָהּ בַּיָּם אוֹ בְּמַיִם שֶׁאֵין לָהֶם סוֹף וְלֹא עָלָה וְאָבַד זִכְרוֹ וְנִשְׁתַּכַּח שְׁמוֹ הֲרֵי זוֹ לֹא תִּנָּשֵׂא עַל עֵדוּת זוֹ כְּמוֹ שֶׁבֵּאַרְנוּ. וְאִם נִשֵּׂאת לֹא תֵּצֵא. וַאֲפִלּוּ הָיָה הָעַכּוּ״‎ם שֶׁהֵסִיחַ לְפִי תֻּמּוֹ וְאָמַר טָבַע פְּלוֹנִי בַּיָּם וְנִשֵּׂאת עַל פִּיו הֲרֵי זוֹ לֹא תֵּצֵא. וְחָכָם שֶׁהוֹרָה לְהַשִּׂיאָהּ לְכַתְּחִלָּה מְנַדִּין אוֹתוֹ:

21

[The following rules apply when the body of a man who was] slain or died of natural causes is discovered. If his forehead, his nose and his facial features are intact, and his identity can be established based on them,47 testimony concerning his death may be offered.

If, however, any of these identifying factors is missing, even if there are signs [through which he can be identified]48 on his body and on his personal artifacts,49 even if one of those signs is a mole,50 testimony concerning his death should not be offered.

When does [the leniency mentioned in the first clause] apply? When the corpse was seen within three days of his murder or death. After three days have passed, testimony concerning his death should not be offered, because his facial features [may have] become distorted.51

כא

מְצָאוּהוּ הָרוּג אוֹ מֵת. אִם פַּדַּחְתּוֹ וְחָטְמוֹ וּפַרְצוּף פָּנָיו קַיָּמִין וְהִכִּירוּהוּ בָּהֶן שֶׁהוּא פְּלוֹנִי מְעִידִין עָלָיו. וְאִם נִטַּל אֶחָד מֵאֵלּוּ אַף עַל פִּי שֶׁיֵּשׁ לָהֶם סִימָנִין בְּגוּפוֹ וּבְכֵלָיו וַאֲפִלּוּ שׁוּמָא אֵין מְעִידִין עָלָיו שֶׁמָּא אַחֵר הוּא. בַּמֶּה דְּבָרִים אֲמוּרִים בְּשֶׁרָאוּהוּ בְּתוֹךְ שְׁלֹשָׁה יָמִים אַחַר הֲרִיגָתוֹ אוֹ אַחַר מִיתָתוֹ. אֲבָל אַחַר שְׁלֹשָׁה אֵין מְעִידִין עָלָיו מִפְּנֵי שֶׁפַּרְצוּף פָּנָיו מִשְׁתַּנֶּה:

22

[The following rules apply when a man] drowned at sea and was cast out onto dry land. Although several days have passed, if his facial features and his nose can be identified,52 testimony may be offered with regard to his [death], for in water the features of a corpse do not become distorted until an extremely long period of time has passed.53

If the corpse lay on dry land for twelve hours54 after being cast out of the sea and the corpse became bloated,55 testimony may not be offered because [his features] have been distorted.56 When we look at the form [of a corpse] in order to identify [a man] to offer testimony with regard to his [death], [it is acceptable if] we look at [the corpse] even by candlelight or by moonlight.57

כב

טָבַע בַּיָּם וְהִשְׁלִיכוֹ הַיָּם לַיַּבָּשָׁה אֲפִלּוּ אַחַר כַּמָּה יָמִים. אִם הִכִּירוּ פָּנָיו וְחָטְמוֹ מְעִידִין עָלָיו, שֶׁאֵינוֹ מִשְׁתַּנֶּה בַּמַּיִם אֶלָּא לְאַחַר זְמַן מְרֻבֶּה. וְאִם שָׁהָה בַּיַּבָּשָׁה אַחַר שֶׁהֻשְׁלַךְ מִן הַיָּם י״‎ב שָׁעוֹת וְנִתְפַּח אֵין מְעִידִין עָלָיו שֶׁהֲרֵי נִשְׁתַּנָּה. כְּשֶׁמִּסְתַּכְּלִין בְּצוּרָתוֹ כְּדֵי לְהַכִּירוֹ לְהָעִיד עָלָיו בּוֹדְקִין אוֹתוֹ וְרוֹאִין אוֹתוֹ אֲפִלּוּ בַּלַּיְלָה לְאוֹר הַנֵּר אוֹ לְאוֹר הַלְּבָנָה:

23

[The following rule applies when] we see a person at a distance and he says that he is so and so, the son of so and so, or so and so from a particular place,58 and that he has been bitten by a snake and is dying. Even if we go [to the place where he was standing], find [the corpse and discover] that its features have changed to the extent that it is no longer distinguishable, we may, nevertheless, [grant license for] his wife [to] remarry.59

כג

רָאוּ אֶחָד עוֹמֵד מֵרָחוֹק וְאוֹמֵר שֶׁהוּא פְּלוֹנִי בֶּן פְּלוֹנִי אוֹ פְּלוֹנִי מִמָּקוֹם פְּלוֹנִי וַהֲרֵי נְשָׁכוֹ נָחָשׁ וַהֲרֵי הוּא מֵת וְהָלְכוּ וּמְצָאוּהוּ שֶׁנִּשְׁתַּנָּה וְלֹא הִכִּירוּהוּ הֲרֵי אֵלּוּ מַשִּׂיאִין אֶת אִשְׁתּוֹ:

24

[A person's testimony is effective in the following instance.] A person came and said: "A court - or people - told me, when you arrive at this and this place,60 tell them that Yitzchak, the son of Michael, died." When this person came to that place and delivered the message - although he is not aware of the identity [of the deceased] - since [the people at that place] do know his identity, [the deceased's] wife [may be granted] permission [to remarry]. We do not presume that perhaps it was another person named Yitzchak, the son of Michael, who died.61

כד

בָּא אֶחָד וְאָמַר אָמְרוּ לִי בֵּית דִּין אוֹ אֲנָשִׁים כְּשֶׁתֵּלֵךְ לְמָקוֹם פְּלוֹנִי אֱמֹר לָהֶם שֶׁמֵּת יִצְחָק בֶּן מִיכָאֵל. וּבָא הַשָּׁלִיחַ וְאָמַר לָנוּ. וְהַשָּׁלִיחַ אֵינוֹ יוֹדֵעַ מִי הוּא זֶה. הוֹאִיל וְאָנוּ יוֹדְעִים פְּלוֹנִי הַיָּדוּעַ בְּשֵׁם זֶה הֲרֵי אִשְׁתּוֹ מֻתֶּרֶת וְאֵין אוֹמְרִין שֶׁמָּא יִצְחָק בֶּן מִיכָאֵל אַחֵר הוּא שֶׁמֵּת:

25

When a Jew and a gentile left from our [location] for a different destination, and the gentile came and said in the course of conversation: "The man who left [this city] with me died," [the deceased's] wife [may be granted license to] remarry. [This applies] even when the gentile does not know the identity of the man, provided he says: "I buried him."62

כה

יָצָא עַכּוּ״‎ם וְיִשְׂרָאֵל מֵעִמָּנוּ לְמָקוֹם אַחֵר. וּבָא הָעַכּוּ״‎ם וְהֵסִיחַ לְפִי תֻּמּוֹ וְאָמַר אִישׁ שֶׁיָּצָא עִמִּי מִכָּאן מֵת. מַשִּׂיאִין אֶת אִשְׁתּוֹ וְאַף עַל פִּי שֶׁאֵין הָעַכּוּ״‎ם יוֹדֵעַ אוֹתוֹ הָאִישׁ. וְהוּא שֶׁיֹּאמַר קְבַרְתִּיו:

26

Similarly, when ten men were taken together while shackled in chains or tied by heavy ropes used to lead camels63 or the like,64 from one place to another,65 and a gentile came and said in the course of conversation that all ten men who went out while tied died, and he buried them,66 their wives [may be granted license to] remarry.

כו

וְכֵן אִם יָצְאוּ עֲשָׂרָה בְּנֵי אָדָם כְּאֶחָד מִמָּקוֹם לְמָקוֹם וְהֵן אֲסוּרִין בְּקוֹלָר אוֹ נוֹשְׂאִים גְּמַלִּים וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ. וְהֵסִיחַ הָעַכּוּ״‎ם לְפִי תֻּמּוֹ וְאָמַר שֶׁעֲשָׂרָה אֲנָשִׁים שֶׁהָלְכוּ מִמָּקוֹם פְּלוֹנִי לְמָקוֹם פְּלוֹנִי וְהֵם נוֹשְׂאִים כָּךְ וְכָךְ מֵתוּ כֻּלָּם וּקְבַרְנוּם מַשִּׂיאִין אֶת נְשׁוֹתֵיהֶן:

27

If a Jew says: "A Jewish man died in our company in this and this place. These and these were his facial features. These and these were signs of identification," we do not make a guess and say that it was probably so and so.67 Rather [the person is not considered to have died] until a witness mentions his name and the name of his city.68

If, however, [a person]69 says: "One of the inhabitants70of the city of so and so journeyed out in our company and died," we check in that city. If only one man left the city, his wife [may be given permission to] marry.

כז

יִשְׂרָאֵל שֶׁאָמַר מֵת אִישׁ יְהוּדִי עִמָּנוּ בְּמָקוֹם פְּלוֹנִי כָּךְ וְכָךְ צוּרָתוֹ וְכָךְ הָיוּ סִימָנָיו. אֵין אוֹמְרִים בְּאֹמֶד הַדַּעַת פְּלוֹנִי הוּא עַד שֶׁיָּעִיד הָעֵד שֶׁהוּא פְּלוֹנִי וְיַזְכִּיר שְׁמוֹ וְשֵׁם עִירוֹ. אֲבָל אִם אָמַר אֶחָד יָצָא עִמָּנוּ מֵעִיר פְּלוֹנִית וּמֵת. מְחַפְּשִׂין בְּאוֹתָהּ הָעִיר אִם לֹא יָצָא מִשָּׁם אֶלָּא הוּא תִּנָּשֵׂא אִשְׁתּוֹ:

28

[The following rule applies if] a document was found saying: "So and so, the son of so and so, died," or "So and so, the son of so and so, was killed": If it can be determined that this was written71 by a Jew,72 [the man's] wife [may be given permission to] marry.73

Similarly, when a person has lost the power of speech, and he was tested, as he would be tested with regard to a get,74 and it is proven that he is mentally sound, if he writes that so and so died, we may rely on his writing, and [the deceased's] wife [may be given permission to] marry.75

We do not follow the standard process of interrogation76 with regard to witnesses who testify [concerning the death of] a woman's [husband]. For our Sages did not speak about establishing stringencies regarding such matters. [Indeed, their approach was characterized by] leniency in order to permit a woman without a husband [to remarry].77

כח

מָצְאוּ כָּתוּב בִּשְׁטָר מֵת אִישׁ פְּלוֹנִי בֶּן פְּלוֹנִי אוֹ נֶהֱרַג פְּלוֹנִי בֶּן פְּלוֹנִי וְנוֹדַע שֶׁזֶּה כָּתַב יִשְׂרָאֵל הֲרֵי זֶה תִּנָּשֵׂא אִשְׁתּוֹ. וְכֵן מִי שֶׁנִּשְׁתַּתֵּק וּבָדְקוּ אוֹתוֹ כְּדֶרֶךְ שֶׁבּוֹדְקִין לְגִטִּין וְנִמְצֵאת דַּעְתּוֹ מְכֻוֶּנֶת וְכָתַב שֶׁמֵּת פְּלוֹנִי בֶּן פְּלוֹנִי סוֹמְכִין עַל כְּתִיבָתוֹ וְתִנָּשֵׂא. וְאֵין בּוֹדְקִין עֵדֵי אִשָּׁה בִּדְרִישָׁה וַחֲקִירָה שֶׁלֹּא אָמְרוּ חֲכָמִים בַּדָּבָר לְהַחֲמִיר אֶלָּא לְהָקֵל מִשּׁוּם הַתָּרַת עֲגוּנָה:

29

Do not wonder at the fact that our Sages discharged78 the prohibition [against a married woman], which is considered a very severe matter, on the basis of the testimony of a woman, a servant or a maidservant, statements made by a gentile in the course of conversation, a written statement or [testimony] that was not investigated by the ordinary process of interrogation, as we have explained.

[These leniencies were instituted] because the Torah requires only testimony of two witnesses, and all the other details of the laws of witnesses with regard to matters that cannot be verified definitively except via witnesses and their testimony - e.g., that one person killed another, or that one person lent money to another. When, by contrast, the matter may be verified definitively without the testimony of a witness, and the witness cannot justify [his statements] if they are not true - e.g, when one testifies that a person died,79 the Torah did not necessitate [that the requirements of formal testimony be met in these instances]. For it is unlikely that a witness will testify falsely.80

For this reason, our Sages [extended] the leniency with regard to this matter and accepted the testimony of a single witness that is based on the testimony of a maidservant, [testimony] from a written document, and [testimony] that was not investigated by the ordinary process of interrogation. [These leniencies were accepted] so that the daughters of Israel will not be forced to remain unmarried.

Blessed be the Merciful One, who grants assistance.

כט

אַל יִקְשֶׁה בְּעֵינֶיךָ שֶׁהִתִּירוּ חֲכָמִים הָעֶרְוָה הַחֲמוּרָה בְּעֵדוּת אִשָּׁה אוֹ עֶבֶד אוֹ שִׁפְחָה אוֹ עַכּוּ״‎ם הַמֵּסִיחַ לְפִי תֻּמּוֹ וְעֵד מִפִּי עֵד וּמִפִּי הַכְּתָב וּבְלֹא דְּרִישָׁה וַחֲקִירָה כְּמוֹ שֶׁבֵּאַרְנוּ. שֶׁלֹּא הִקְפִּידָה תּוֹרָה עַל הֲעָדַת שְׁנֵי עֵדִים וּשְׁאָר מִשְׁפְּטֵי הָעֵדוּת אֶלָּא בְּדָבָר שֶׁאֵין אַתָּה יָכוֹל לַעֲמֹד עַל בֻּרְיוֹ אֶלָּא מִפִּי הָעֵדִים וּבְעֵדוּתָן כְּגוֹן שֶׁהֵעִידוּ שֶׁזֶּה הָרַג אֶת זֶה אוֹ הִלְוָה אֶת זֶה. אֲבָל דָּבָר שֶׁאֶפְשָׁר לַעֲמֹד עַל בֻּרְיוֹ שֶׁלֹּא מִפִּי הָעֵד הַזֶּה וְאֵין הָעֵד יָכוֹל לְהִשָּׁמֵט אִם אֵין הַדָּבָר אֱמֶת. כְּגוֹן זֶה שֶׁהֵעִיד שֶׁמֵּת פְּלוֹנִי. לֹא הִקְפִּידָה תּוֹרָה עָלָיו. שֶׁדָּבָר רָחוֹק הוּא שֶׁיָּעִיד בּוֹ הָעֵד בְּשֶׁקֶר. לְפִיכָךְ הֵקֵלּוּ חֲכָמִים בְּדָבָר זֶה וְהֶאֱמִינוּ בּוֹ עֵד אֶחָד מִפִּי שִׁפְחָה וּמִן הַכְּתָב וּבְלֹא דְּרִישָׁה וַחֲקִירָה כְּדֵי שֶׁלֹּא תִּשָּׁאַרְנָה בְּנוֹת יִשְׂרָאֵל עֲגוּנוֹת: סְלִיקוּ לְהוּ הִלְכוֹת גֵּרוּשִׁין בְּסִיַּעְתָּא דִּשְׁמַיָּא

Footnotes
1.

Note the ruling of the Chelkat Mechokek 17:93, who explains that the Rambam's decision applies only in an instance where the woman has already made false statements in the presence of a court. The fact that a couple constantly quarrel is not considered serious enough to warrant the stringencies mentioned in this halachah.

2.

And so, the couple were forced to remain married. Chapter 12, Halachah 15 describes a situation when a man disappears "when their relationship is peaceful, and peace prevails in the world at large." All the laws that follow in that chapter deal with such situations. This chapter describes situations where these conditions do not prevail, and hence more stringent laws apply.

3.

I.e., the stringencies apply even where peace prevails in the world at large, because of the strife that exists between the couple.

4.

Yevamot 116a records a difference of opinion between the Sages regarding the rationale for this ruling. Rav Chananiah states that the reason is that we suspect that the woman is lying. Rav Simi bar Ashi states that we suspect that in an instance where her husband appears to be dying, the woman will not be careful and will conclude that he died, even though he remained alive.

The Rambam's citation of the first opinion in this halachah represents a reversal of his thinking. For in his Commentary on the Mishnah (Yevamot 15:1), he mentions the latter view.

According to the Rambam's opinion stated here, even if the woman says that she buried her husband, her word is not accepted (Hagahot Maimoniot; Ramah, Even HaEzer 17:48).

5.

The Maggid Mishneh notes that this issue is left unresolved by Yevamot 116b, and therefore, the Rambam chooses the more stringent view. The Maggid Mishneh questions why the Rambam ignores the rationale given by the Talmud - that in most cases, a woman who is granted permission on the basis of the testimony of one witness is careful and thoroughly investigates the matter before she marries, but in this instance, because of her hatred of her husband, she will not make such an investigation - and offers another rationale that is not mentioned there.

Rav Eliyahu Mizrachi (in a responsum quoted by the Kessef Mishneh) offers a resolution to this matter, explaining that the Rambam accepts the testimony of a single witness in such instances without question, because we assume that a person will not lie in an instance where the truth will shortly be revealed. (See the notes at the conclusion of this chapter.) Nevertheless, since the question is left unresolved by our Sages, and a very severe matter is involved, the Rambam does not desire to offer a leniency that was not accepted by our Sages. Therefore, he offers a different rationale, even though it was not mentioned in the Talmud.

On the basis of this explanation, Rav Eliyahu Mizrachi explains that if a witness comes to the court on his own initiative, the woman is granted license to remarry even when differences existed between her and her husband previously. The Chelkat Mechokek 17:95, however, states that this leniency is not accepted by the latter authorities.

6.

If, however, the woman says that her husband died near the battlefront, but not in battle, her word is accepted (Ramah, Even HaEzer 17:48).

7.

There is a slight difficulty with the Rambam's ruling, because the rationale that the Rambam mentioned previously - that she suspects that her husband died, and because of the high likelihood is willing to make such statements even though she has no definite knowledge - seemingly does not apply when the woman says: "I buried him." For if a person is buried, he is definitely dead.

[For this reason, the Rashba - and his opinion is quoted as a minority view by the Shulchan Aruch (Even HaEzer 17:48) - rules that if the woman says that she buried her husband, her word is accepted.]

In the responsum of Rav Eliyahu Mizrachi quoted by the Kessef Mishneh, it is explained that the woman will be afraid to tarry on a battlefield and bury her husband. Nevertheless, since she is certain that he died, she will exaggerate and say that she buried him, although she did not. Alternatively, the Levush states that we suspect that the fear and confusion of wartime is so great that she may have in fact buried a man, but she might have mistaken another man for her husband.

8.

I.e., although war was raging nearby, her husband was not involved in the war and died at home. Her word is accepted, because we do not suspect that she will intentionally lie. And at home, away from the battlefront, she will know for certain whether or not her husband died.

9.

On the one hand, if the woman desired to lie, she could have offered a better lie and not mentioned the war at all (miggo). Nevertheless, when a woman says that her husband died in a war, our suspicion is that she erred and thought her husband died, even when he did not. Therefore, at the outset, she should not be granted permission to marry. If, however, she does marry, since there are grounds to believe her statement, we do not force her to leave her second husband.

The Rambam's ruling is quoted by the Shulchan Aruch (Even HaEzer 17:49). The Ramah, however, follows the ruling of Rabbenu Asher, who maintains that if the woman marries, she should be forced to leave her second husband.

10.

If, however, the woman says that her husband died in bed at those times, her word is accepted. If she says that he died in a landslide or was bitten by a swarming mass of snakes, and she buried him, according to the Rambam her word is not accepted. According to the Rashba, her word is accepted if she says that she buried him [Maggid Mishneh; Ramah (Even HaEzer 17:51)].

11.

This law applies even if she says that he died on his bed (Ramah, Even HaEzer 17:53). We fear that she left her husband sick, without any source of nurture, and assumed that he died without knowing for certain (Yevamot 114b).

12.

In the previous instance, we do not fear that she is lying, but rather merely exaggerating and relying on the likelihood that he died. We do not, however, fear that she would exaggerate and say that she buried him if it were not true.

The woman's word is accepted with regard to a famine, while it is not with regard to war, because of the obvious difference between the two instances. In wartime, there is an immediate danger and everyone is worried about saving his own life (Ibid.).

13.

Rashi (Yevamot 115a, Avodah Zarah 25b) states that the attackers will keep the woman alive in order to rape her. Tosafot (Avodah Zarah 25b) explains that a woman is not considered likely to fight back, and her physical weakness arouses mercy. Therefore, she is left alive.

14.

Rabbenu Asher rules that the woman's word is not accepted. Rabbenu Nissim, moreover, maintains that that is the proper reading in the Mishneh Torah. Our translation follows the standard printed texts of the Mishneh Torah and the authoritative manuscripts most widely available.

The Shulchan Aruch (Even HaEzer 17:55) states that the woman's word is accepted, while the Ramah quotes Rabbenu Asher's view.

15.

Chapter 12, Halachah 15.

16.

On the basis of Hilchot Yibbum 4:31, the Beit Yosef (Even HaEzer 17) and others explain that here the Rambam is talking about a minor who is not intellectually mature. The testimony of a minor who is intellectually mature is accepted (see the following halachah). In the Shulchan Aruch (Even HaEzer 17:13), Rav Yosef Karo quotes the Rambam's wording exactly. The Turei Zahav 17:9 and the Beit Shmuel 17:33, however, make the above distinction.

17.

Yevamot 121b explains that all these details are necessary, because it is possible that the children are play-acting and buried an insect that they called by the person's name. If, however, their statements reflect sufficient details to indicate that the funeral actually took place, they may serve as the basis for license to be granted a woman to remarry.

18.

This is one of the classic examples of the principle palginin diburo, "we divide his statement." I.e., we accept his word with regard to the fact that so and so died. We discard the portion of his statement in which he said that he himself killed him.

If we accepted that aspect of the statement as well, he would no longer be acceptable as a witness. For his deed would cause him to be disqualified on the basis of Scriptural law. (See also Hilchot Edut 12:2.)

19.

Chapter 12, Halachah 16.

20.

If the gentile is making these statements with the intent that attention be paid to them, there is reason to suspect that perhaps he intends to create legal problems for a Jewish person. If, however, he makes statements casually, in the course of conversation, we do not suspect that a gentile will desire to cause problems for a Jew (Beit Shmuel 17:38).

As reflected in the halachot that follow, we do fear that a gentile may lie, if doing so will enhance his position, and we fear that he will rush to the conclusion that a man died when he is in fact alive.

21.

If, however, a gentile says: "I killed so and so," without any apparent intent to cast fear upon his listeners, the deceased's wife is allowed to remarry (Shulchan Aruch, Even HaEzer 17:7).

22.

If, however, other gentiles relate in the course of conversation that a Jew was killed by gentile legal authorities, their word is accepted (Ramah, Even HaEzer 17:14). As indicated by the Ramah, there is a difference of opinion whether it is acceptable if gentile legal authorities report that a person was executed, but do not say that they performed the execution.

If gentile government authorities report that a person has died or been killed (but not executed by a court of law), their statements are accepted by many halachic authorities. A distinction should be made between the government authorities in democratic countries where freedom of speech prevails, and totalitarian governments that act arbitrarily without consideration of the populace.

23.

The Chelkat Mechokek 17:29 states that this law applies even in instances where the gentile's original statements were not sufficient to serve as a basis for remarriage.

24.

If, however, the gentile was asked direct questions first, and then in the course of conversation said that a man died, his word is not accepted (Ramah, Even HaEzer 17:15).

25.

Chapter 12, Halachah 15.

26.

I.e., as reflected by the second half of the halachah, this applies if the witness does not know any details of the person's death at all. Since we do not know any details of the situation, we assume that his statements are true. When, however, the situation can be investigated, the court is obligated to do so.

This is the subject of the remainder of the chapter and also the concern of many of the responsa issued by our Sages concerning this issue throughout the generations. For quite often, the evidence of a man's death and the identification of his corpse were only partial, and the Rabbis had to clarify whether the testimony was sufficient to serve as grounds for his wife to remarry.

27.

As stated in Halachah 28, the formal process with which witnesses are questioned is not employed with regard to testimony of this nature. Nevertheless, enquiry should be made lest the witness had erred and made his statements on the basis of likelihood and not actual fact.

28.

The commentaries explain that according to Scriptural law, the man is considered to be dead. Nevertheless, our Sages enforced stringencies and forbade a woman from remarrying in such an instance. (See Halachah 20.)

29.

The Pitchei Teshuvah 17:134 quotes many classical commentaries that maintain (based on Yevamot 121a) that this duration of time is considered to be three hours. Nevertheless, the later commentaries are more lenient and consider a far shorter period to be sufficient.

30.

The Maggid Mishneh quotes the Rashba as stating that this applies only when the man was tied to a rope or chain when cast into the water, and then a limb was lifted out, or if the limb was lifted up in a net afterwards, and it could definitely be identified as the man's. When quoting this law, the Shulchan Aruch (Even HaEzer 17:32) incorporates these concepts.

31.

In this instance as well, the Maggid Mishneh quotes the Rashba as stating that even when our Sages stated that a person could not live without a particular limb, they did not intend that he would necessarily die immediately, and it is possible that the person could live for twelve months. Therefore, even when such a limb is discovered, the woman is required to wait twelve months before remarrying. The Shulchan Aruch (ibid.) incorporates these concepts into its restatement of the law.

32.

In this instance, however, the Rambam states that the likelihood that the man died is so great that his heirs may take possession of his inheritance (Hilchot Nachalot 7:3).

33.

Based on Yevamot 121a, the Kessef Mishneh explains the difference between a lion's lair and a pit of snakes as follows: A lion's lair is usually wide, and so the person will not necessarily provoke the lions. A pit of snakes is small, and the man will step on the snakes, and this will provoke them. Tosafot adds that we do not say that perhaps a miracle occurred to him as occurred to Daniel.

34.

The Maggid Mishneh quotes the Rashba as stating that this applies only when the furnace is so deep that he cannot emerge from it. This qualification is quoted by the later authorities (Chelkat Mechokek 17:57; Beit Shmuel 17:92).

35.

The Maggid Mishneh quotes the Rashba as stating that the same laws apply with regard to a caldron of water. When quoting this law, the Shulchan Aruch (Even HaEzer 17:30) incorporates these concepts.

36.

For once the majority of these organs are slit, we can be certain that the person will die.

37.

The Hebrew word צלוב is translated both as crucified (the method of execution often used by the Romans in the Talmudic period) and as hung. We have chosen the latter term to emphasize the rulings of the later halachic authorities. The Bayit Chadash (Even HaEzer 17) rules that if a person is seen hanging, testimony concerning his death may be offered. The Chelkat Mechokek 17:58 and the Beit Shmuel 17:94 dispute this and cite instances in which a person who had been hanged was subsequently rescued.

38.

If, however, he was stabbed or shot in a place that would kill him, testimony that he died may be offered (Beit Yosef, Even HaEzer 17; Beit Shmuel 17:94).

39.

The Maggid Mishneh explains that this refers to an instance where the person remained there and watched for an amount of time sufficient for a person to die without seeing the person emerge from the water. This is substantiated by the later authorities (Chelkat Mechokek 17:61). If the witness does not observe the sea, watching for the person to emerge for that length of time, more stringent rules apply.

40.

By saying he buried the deceased, the witness erases any questions of doubt that might exist regarding whether or not the person actually died. Alternatively, because he buried him, he will have seen his features closely and will not mistakenly identify him.

As stated in Halachah 3, the testimony of a woman who says that her husband died at war is not accepted, even if she says that she buried him. The commentaries, however, differentiate between the two instances, explaining that since the woman's husband is involved, she will be more emotionally upset and less objective. Hence, it is more likely that she would mistake the deceased's identity.

Alternatively, she desires to remarry, and thus she will stretch the truth slightly to be granted that license, while an outsider will not take such liberties.

With regard to the concept of burial in relation to a person who drowned, there are three opinions mentioned by the Rabbis:

a) The Kessef Mishneh states that if the witness sees that the person did not emerge after waiting the length of time in which one would ordinarily drown, he did not have to bury the deceased in order to testify. (Kin'at Eliyahu notes that this interpretation makes the following halachah appear slightly redundant.)

b) The Chelkat Mechokek 17:62 states that the intent was that we saw the corpse after it was taken out from the water.

c) The Noda BiY'hudah (Volume I, Even HaEzer, Responsum 28) states that the intent is that the drowned man was actually buried. For there are times when a person is taken out of the sea and presumed dead, and then is revived afterwards.

41.

Yevamot 115a states that the question in this instance is whether the testimony of one witness is accepted, because the matter will surely be revealed in the near future - in which case the woman would be permitted to remarry - or because we rely on the fact that the woman will carefully investigate the matter before she remarries, and in this instance, since it is highly likely that her husband died, she will rely on the likelihood and not make a thorough investigation. Therefore, she should not be granted permission to remarry. Since the question is left unresolved, the ruling given by the Rambam applies.

In the responsum quoted by the Kessef Mishneh, Rabbi Eliyahu Mizrachi explains that - as reflected by the concluding halachah of this chapter - the Rambam maintains that the testimony of one witness is accepted, because the matter will surely be revealed in the near future. Nevertheless, he still maintains that, at the outset, the woman should not be granted permission to remarry, because in these situations it is possible for a person to think that a man has died, even though he is actually alive.

42.

The Maggid Mishneh emphasizes that the same ruling is given even if two or more witnesses offer the same testimony. As long as a body of water does not have a defined periphery, these laws apply.

43.

This also reinforces the presumption that he died, for if he had remained alive, most likely he would have returned home or divulged his identity in another manner.

44.

Halachah 16. Note also the Rambam's comments in Hilchot Nachalot 7:3:

When a man drowned in water that does not have a defined periphery, witnesses [testify] that they saw him drown, and all traces of him have disappeared, his heirs may take possession of his estate, despite the fact that a priori, his wife is not granted permission to remarry.

The reason stringency was taken in these matters is [the severity of] a prohibition punishable by karet. But with regard to financial matters, if witnesses testify concerning an instance in which we can assume that the man died..., all traces of him have disappeared, and we have heard that he died, the heirs may take possession of his estate.

45.

The Ramah (Even HaEzer 17:34) states that this applies only when the woman remarried after receiving license from a Rabbinic authority. If she remarried on her own initiative without consulting an authority, she should be forced to leave her second husband.

46.

This applies only when the sage issued this ruling knowingly. If, however, he issued the ruling in error, he is not censured in this manner (Chelkat Mechokek 17:64, based on Yevamot 121a).

47.

Yevamot 120a quotes Isaiah 3:9: "The recognition of their countenance testifies against them," as support for this concept.

48.

The Maggid Mishneh and the Kessef Mishneh differentiate among three types of signs: a) simanim g'ru'im, signs that are not definitive, b) simanim muvhakim, signs that are definitive, c) simanim muvhakim b'yoter, signs that are extremely definitive.

Signs that are not definitive are never effective means of identification. Signs that are definitive are effective with regard to the identification of lost objects and other questions of monetary law, as stated in Hilchot Gezelah Va'Avedah 13:3-5. They are not, as stated in this halachah, effective with regard to the laws of marriage and divorce. (See also Hilchot Nachalot 7:3.) Signs that are extremely definitive - e.g., a get has a hole next to a particular letter, as stated in Chapter 3, Halachah 11 - may be relied upon with regard to the laws of marriage and divorce.

Similarly, if there is an extremely definitive sign on a corpse, it may be used as evidence to identify the body. These distinctions are also reflected in the statement of the law in the Shulchan Aruch (Even HaEzer 17:24).

49.

With regard to personal artifacts, there is a further problem. Even if there are very distinctive signs on these articles, they cannot serve as a means of identification, because it is possible that they were lost or stolen and taken by another man. See Shulchan Aruch (op. cit.).

50.

There are opinions that maintain that if the person can pinpoint exactly the place of the mole, it may be used as a sign of identification (Beit Shmuel 17:71).

51.

I.e., even if the witnesses think that they can identify the corpse, their testimony cannot be relied on, because the person's facial features may have been distorted.

52.

Yevamot 121a explains that lying in water generally causes the flesh of a corpse to shrink, and the person's features remain distinct.

53.

Yevamot, ibid., mentions a corpse being identified after being in the Jordan River for 17 days.

54.

Once a corpse that has been lying in the water is brought to dry land, its features will begin to lose their distinctive qualities rapidly.

There are several different versions of this halachah. We have chosen to follow the standard printed text in our translation. The Kessef Mishneh states that the proper version should be "if the corpse lies on dry land for hours" - i.e., it need not be identified immediately, but it cannot wait any significant period. The Shulchan Aruch (Even HaEzer 17:26) states that the body must be identified immediately after it emerges onto dry land. The Beit Shmuel 17:80, however, mentions that an interval of an hour is granted.

55.

The Maggid Mishneh notes that the Rambam's statement of this law is conditional, "If the... corpse became bloated," implying that if we see that the corpse has not become bloated, we may identify it. The Rashba, by contrast, states we suspect that the facial features of a corpse will become distorted after a brief amount of time, and does not allow room for leniency.

Even according to this conception, leniency has been granted by the later authorities when a corpse was removed frozen from a river, and it took several hours to thaw.

56.

In restating this law, there are several points mentioned by the Shulchan Aruch (ibid.): a) the corpse may not have a wound. If the body was wounded, we fear that its features will be distorted; b) even if it is less than three days after the deceased's passing, if his corpse lay in water for a significant period, it must be identified directly after its discovery.

The Ramah adds that extremely distinctive signs may be used as a means of identification even though the body has lain on dry land for a long period.

57.

Although these sources of light are not overly bright, our Sages felt that they were sufficient to enable a person to identify a corpse. There is no need to wait until daylight.

58.

The Tur (Even HaEzer 17) states that the person must mention both these factors: his father's name and his city. The Beit Shmuel 17:66 states that, although in general one of these means of identification would have been sufficient, both are necessary because the person's facial features have changed. The Chelkat Mechokek 17:40, however, states that when it is obvious that the person knows the place from which the person came, the ruling of the Rambam and the Shulchan Aruch (Even HaEzer 17:23) may be followed, and only one factor need be mentioned. This is also borne out by the following halachah and its source in Yevamot 115b.

59.

I.e., we do not assume that the person was lying, but instead suppose that the poison caused his features to change (Meiri).

Yevamot 122a, the source for this halachah, mentions that perhaps the statements were made by a demon. The Rambam, however, does not mention this possibility, in keeping with his conception (see The Guide for the Perplexed, Vol. III, Chapter 46), that demons are not a relevant halachic phenomenon.

60.

I.e., he was informing the Rabbinical court of that city that one of the Jewish inhabitants had died (Kessef Mishneh).

61.

The Ra'avad and the Maggid Mishneh mention that this principle applies only when we do not know of another person in the city with that name, or we know that this other person is still alive. The Shulchan Aruch (Even HaEzer 17:18) incorporates these additions into its statement of this law.

62.

The Maggid Mishneh explains that the Rambam's ruling is that when a gentile knows the name of a Jew, it is unnecessary for him to say that he buried him, when relating that he died. If, however, the gentile did not know the identity of the Jew, it is necessary for him to say that he buried him.

The Tur (Even HaEzer 17) and other authorities do not agree with the Rambam with regard to this point and maintain that the gentile's statements are accepted even when he does not say that he buried the Jew. The Shulchan Aruch (Even HaEzer 17:17) mentions both opinions, but appears to favor the latter view.

63.

Our translation is based on the gloss of Rav Kapach, who cites a similar interpretation mentioned by the Razeh.

64.

From the Rambam's words, it appears that the men must be tied together. Otherwise, we suspect that one of them left and was replaced by another. In his commentary on the source for this law (Yevamot 122a), Rashi does not share this conception and maintains that the number of men itself is sufficient to serve as identification.

65.

The Noda BiY'hudah (Even HaEzer, Volume I, Responsum 36) notes that the Rambam requires that a) a specific number of men were mentioned, b) that their starting point and destination were mentioned, and c) that they were chained together.

The Noda BiY'hudah questions these requirements, because the standard text of Yevamot 122a (the Rambam's source) mentions two stories: one of men traveling in chains and one of sixty men traveling to Betar. The Rambam appears to have fused the two stories together, adopting the requirements mentioned by both and thus being more stringent than his source.

The Noda BiY'hudah reconciles this difficulty by referring to the statement of these incidents in Rabbenu Yitzchak Alfasi's Halachot, which follows a different version from our text of Yevamot. Rabbenu Yitzchak Alfasi mentions "two men traveling in chains to Antioch." Since the Rambam was a student of one of the disciples of Rabbenu Yitzchak Alfasi, it is likely that the Rambam also had the same version of this passage.

66.

Here too, the Rambam is referring to an instance in which the gentile did not know the identity of the people who died. (See the notes on the previous halachah.)

67.

This applies even if the person is missing, and there are no traces of him left.

68.

According to the Rambam and the Shulchan Aruch, alternatively, a person's name and his father's name.

69.

Our wording is based on the gloss of the Ramah (Even HaEzer 17:19), who states that this law applies even if the report is given by a gentile in the course of conversation.

70.

In this instance as well, the name of the deceased is not mentioned.

71.

The Maggid Mishnehates that the note must also be signed, andwe must see that the signature was written by a Jew. The signature need not, however, be verified. (See Shulchan Aruch, Even HaEzer 17:11 and commentaries.)

72.

Regardless of the language in which the note was written, if it was written by a Jew, it is acceptable. If, however, it was written by a gentile, it is not acceptable even if it is written in Hebrew. For a gentile's statements are acceptable only when made in the course of conversation (Maggid Mishneh).

In his Bedek HaBayit (Even HaEzer 17), Rav Yosef Karo asks why a statement written by a gentile in the course of conversation is not effective. And in his Shulchan Aruch (loc. cit.), he rules that it is.

73.

This is a leniency accepted in order to allow a woman to remarry. Generally, testimony must be given verbally and not in writing. (See Hilchot Edut 3:4.)

74.

See Chapter 2, Halachah 16.

75.

See Hilchot Edut 9:11, which explains that such testimony is ordinarily not accepted by a Rabbinic court. An exception is made in this instance in order to allow a woman to remarry.

76.

Which includes questions defining the exact time and place of the event. (See Hilchot Edut 1:4.)

77.

Moreover, even if slight contradictions arise regarding minor points of the testimony of two witnesses, the testimony is nevertheless accepted (Shulchan Aruch, Even HaEzer 17:21).

In one of his responsa (quoted by the Ramah, op. cit.), the Rambam writes: "Whoever is stringent and interrogates witnesses exactingly is not conducting himself properly, and his approach does not find favor in the eyes of our Sages." The Ramah, however, continues that if testimony appears contrived to the court, they must thoroughly investigate the matter.

78.

I.e., these are leniencies that our Sages instituted. The acceptance of the testimony of one witness, by contrast, is a leniency implied by Scriptural law.

This follows the interpretation of the Rambam's statements here by the Noda BiY'hudah (Even HaEzer, Volume I, Responsa 27 and 33). There is, however, an apparent contradiction based on the Rambam's statements in Hilchot Edut 5:2.

79.

I.e., if the man presumed dead returns, it will be obvious that the witness lied.

80.

See similar statements in Hilchot Kiddush HaChodesh 3:14 and Hilchot Yibbum VaChalitzah 4:31.

The Ra'avad and others note that our Sages (Yevamot 93b, 115a) mention two rationales why a woman should be permitted to remarry, the one cited by the Rambam and also because of the severe consequences that she will bring upon herself if her husband is found alive (see Chapter 10, Halachah 7), a woman will investigate the matter thoroughly and will not remarry unless she is certain that he has actually died. The Talmud appears to imply that these rationales are contradictory and cites cases in which one would apply, but not the other.

The Noda BiY'hudah (loc. cit.) explains that the Rambam sees the two rationales as complementary. Ordinarily, when a matter can easily be verified - e.g., a question of whether or not chalitzah was performed - the statement of one witness is acceptable without question. In this instance, however, it is not always easy to verify whether in fact the man died, and therefore the rationale that the woman must investigate the matter is necessary. For this reason, in all the instances where the Talmud implies that one rationale would conflict with another, the Rambam reaches a conclusion that takes both rationales into consideration.

Yibbum vChalitzah - Chapter One

Introduction to Hilchos Yibbum vChalitzah

They contain three mitzvot: two positive commandments and one negative commandment. They are:

1) To marry the widow of one's childless brother;
2) To free her of this obligation through @14chalitzah;
3) For a childless widow not to marry another man until the mandate upon her deceased husband's brother [to marry her] is removed.
A [childless] widow who is fit to be married by her husband's brother is referred to as zekukah l'yibbum. [Her husband's brother is referred to as a yavam.] The mandate obligating her to the yavam is referred to as zikah.

These mitzvot are explained in the chapters [that follow]:

הלכות יבום וחליצה - הקדמה יש בכללן שלש מצות. שתי מצות עשה. ומצוה אחת לא תעשה. וזהו פרטן: א) לייבם.
ב) לחלוץ.
ג) שלא תנשא יבמה לאיש זר עד שתסיר רשות היבם מעליה.
והאשה שהיא ראויה לייבום נקראת זקוקה לייבום. ורשות היבם נקראת זיקה: וביאור מצות אלו בפרקים אלו:

1

It is a positive commandment1 of Scriptural law for a man to marry the widow of his paternal2 brother if he died without leaving children, as [Deuteronomy 25:5] states: "[And one of them dies] childless,... her husband's brother should cohabit with her." [This applies to a widow] from nisu'in, or from erusin.

[The childless widow is referred to as a yevamah; the rite through which they marry, yibbum.]

Scriptural law does not require a man to consecrate his yevamah, for she is his wife that heaven acquired for him. [All that is necessary] is that he cohabit with her. Her deceased husband's estate is responsible for her marriage contract.3

א

מִצְוַת עֲשֵׂה מִן הַתּוֹרָה שֶׁיְּיַבֵּם אָדָם אֵשֶׁת אָחִיו מֵאָבִיו בֵּין מִן הַנִּשּׂוּאִין בֵּין מִן הָאֵרוּסִין אִם מֵת בְּלֹא זֶרַע שֶׁנֶּאֱמַר (דברים כה ה) ״וּבֵן אֵין לוֹ״‎‎ (דברים כה ה) ״יְבָמָהּ יָבֹא עָלֶיהָ״‎‎. וּמִן הַתּוֹרָה אֵין צָרִיךְ לְקַדֵּשׁ יְבִמְתּוֹ שֶׁזּוֹ אִשְׁתּוֹ הִיא שֶׁהִקְנוּ אוֹתָהּ לוֹ מִן הַשָּׁמַיִם אֶלָּא יָבוֹא עָלֶיהָ. וּכְתֻבָּתָהּ עַל נִכְסֵי בַּעְלָהּ שֶׁמֵּת:

2

If the yavam does not want to perform the rite of yibbum, or if the woman does not consent,4 he should [free her from this obligation through the rite of] chalitzah. [Only] afterwards is she permitted to marry another man.

It is a positive commandment5 of Scriptural law for [a brother] to perform chalitzah for [the deceased's widow], if he does not want to perform the rite of yibbum, as [Deuteronomy 25:9] states: "She shall... remove his shoe."6

The mitzvah of yibbum takes precedence over the mitzvah of chalitzah.7

ב

לֹא רָצָה לְיַבֵּם אוֹ שֶׁלֹּא רָצְתָה הִיא. הֲרֵי זֶה חוֹלֵץ לָהּ וְאַחַר כָּךְ תִּהְיֶה מֻתֶּרֶת לְהִנָּשֵׂא לְאַחֵר. וּמִצְוַת עֲשֵׂה מִן הַתּוֹרָה לַחֲלֹץ אִם לֹא רָצָה לְיַבֵּם שֶׁנֶּאֱמַר (דברים כה ט) ״וְחָלְצָה נַעֲלוֹ״‎‎ וְגוֹ'. וּמִצְוַת יִבּוּם קוֹדֶמֶת לְמִצְוַת חֲלִיצָה:

3

The Torah's words [Deuteronomy 25:5], "When one of them dies childless" [should not be interpreted narrowly].8 [When the deceased] has a son, a daughter, a descendant of a son, or a descendant of a daughter, as long as he has left progeny9 - whether from the woman [to whom he is presently married] or from another woman, his wife is free from the obligation of chalitzah or yibbum.

Even if he has a descendant who is illegitimate or an idolater, [that descendant] frees [the deceased's] wife from the obligation of chalitzah or yibbum.

ג

זֶה שֶׁנֶּאֱמַר בַּתּוֹרָה (דברים כה ה) ״וּבֵן אֵין לוֹ״‎‎ אֶחָד הַבֵּן וְאֶחָד הַבַּת אוֹ זֶרַע הַבֵּן אוֹ זֶרַע הַבַּת הוֹאִיל וְיֵשׁ לוֹ זֶרַע מִכָּל מָקוֹם. וּבֵין מֵאִשָּׁה זוֹ בֵּין מֵאַחֶרֶת הֲרֵי זֶה פּוֹטֵר אֶת אִשְׁתּוֹ מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. אֲפִלּוּ הָיָה לוֹ זֶרַע מַמְזֵר אוֹ עוֹבֵד עֲבוֹדָה זָרָה הֲרֵי זֶה פּוֹטֵר אֶת אִשְׁתּוֹ מִן הַחֲלִיצָה וּמִן הַיִּבּוּם:

4

[The above applies to children born from a Jewish woman.] If, however, [a deceased man] has a child born from a maidservant or a gentile woman, his wife is not free of these obligations. For the offspring of a maidservant are servants. And the offspring of a gentile woman are gentiles, and considered as if they have no connection to him.

[These concepts are derived as follows:] With regard to a maidservant, [Exodus 21:4] states: "The woman and her children will belong to her master," teaching that her offspring have the same status as she.10 And with regard to a gentile woman, [Deuteronomy 7:4] states: "They will lead your son away from Me" - i.e., prevent him from being considered part of the congregation.

Even when a man's son born from a maidservant is freed, or his son born from a gentile woman converts, he is regarded in the same way as other converts or freed slaves and does not cause [the deceased's] wife to be freed [from the obligation of yibbum]. [Even when a man] fathered a son with a maidservant, freed the son and the mother, and married her - if he dies without fathering any other children, his wife should perform the rite of yibbum with his brother, although the son [whom the deceased] fathered is alive and has been freed.11

ד

אֲבָל בְּנוֹ מִן הַשִּׁפְחָה וּמִן הַכּוּתִית אֵינוֹ פּוֹטֵר אֶת אִשְׁתּוֹ שֶׁזֶּרַע הַבָּא מִן הַשִּׁפְחָה עֲבָדִים וְהַבָּא מִן כּוּתִית כּוּתִי וּכְאִלּוּ אֵינָם. הֲרֵי הוּא אוֹמֵר בְּשִׁפְחָה (שמות כא ד) ״הָאִשָּׁה וִילָדֶיהָ תִּהְיֶה לַאדֹנֶיהָ״‎‎ מְלַמֵּד שֶׁוְּלָדָהּ כְּמוֹתָהּ. וּבְכוּתִית הוּא אוֹמֵר (דברים ז ד) ״כִּי יָסִיר אֶת בִּנְךָ מֵאַחֲרַי״‎‎ מֵסִיר אוֹתוֹ מִלֵּחָשֵׁב בַּקָּהָל. וְאַף עַל פִּי שֶׁנִּשְׁתַּחְרֵר בְּנוֹ מִן הַשִּׁפְחָה אוֹ נִתְגַּיֵּר בְּנוֹ מִן הַכּוּתִית הֲרֵי הֵן כִּשְׁאָר הַגֵּרִים וְהַמְשֻׁחְרָרִין וְאֵינָם פּוֹטְרִין אֶת אִשְׁתּוֹ. הֲרֵי שֶׁהָיָה לוֹ בֵּן מִן הַשִּׁפְחָה שֶׁלּוֹ וְשִׁחְרְרוֹ וְשִׁחְרְרָהּ וּנְשָׂאָהּ וּמֵת בְּלֹא זֶרַע הֲרֵי זוֹ תִּתְיַבֵּם לְאָחִיו וְאַף עַל פִּי שֶׁבְּנָהּ מִמֶּנּוּ קַיָּם שֶׁכְּבָר שִׁחְרְרוֹ:

5

[The following rules apply when a man] dies and leaves his wife pregnant: If she miscarries after he dies, his wife [is obligated to] perform the rite of yibbum. If she bore the child, and the fetus emerged into the world alive, the mother is free of the obligation to perform the rite of chalitzah or yibbum. This applies even when the child dies immediately after being born.

According to Rabbinic decree, however, [this does not apply] unless it is known that the child was carried for a full term pregnancy and was born after nine full months had passed.12 If, however, the term of the pregnancy is unknown [the following rules apply]: If the child lives 30 days, the child is considered viable, and he frees his father's wives from the obligation of yibbum or chalitzah.

If the child dies within 30 days [of his birth], even on the thirtieth day, there is a doubt whether the child is viable or non-viable. This applies regardless of [the cause of the infant's death], whether he died as a result of illness, fell from a roof or was eaten by a lion. According to Rabbinic law, [the deceased's wives] must perform the rite of chalitzah;13 they may not perform the rite of yibbum.14

ה

מִי שֶׁמֵּת וְהִנִּיחַ אִשְׁתּוֹ מְעֵבֶּרֶת. אִם הִפִּילָה אַחַר מוֹתוֹ הֲרֵי זוֹ תִּתְיַבֵּם. וְאִם יָלְדָה וְיָצָא הַוָּלָד חַי לַאֲוִיר הָעוֹלָם אֲפִלּוּ מֵת בְּשָׁעָה שֶׁנּוֹלַד הֲרֵי אִמּוֹ פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. אֲבָל מִדִּבְרֵי סוֹפְרִים עַד שֶׁיִּוָּדַע בְּוַדַּאי שֶׁכָּלוּ לוֹ חֳדָשָׁיו וְנוֹלַד לְתִשְׁעָה חֳדָשִׁים גְּמוּרִים. אֲבָל אִם לֹא נוֹדַע לְכַמָּה נוֹלַד. אִם חַי שְׁלֹשִׁים יוֹם הֲרֵי זֶה וְלַד קַיָּמָא וּפוֹטֵר נְשֵׁי אָבִיו מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. וְאִם מֵת בְּתוֹךְ הַשְּׁלֹשִׁים אֲפִלּוּ בְּיוֹם הַשְּׁלֹשִׁים בֵּין שֶׁמֵּת מֵחלִי בֵּין שֶׁנָּפַל מִן הַגַּג אוֹ אֲכָלוֹ אֲרִי הֲרֵי זֶה סָפֵק נֵפֶל סָפֵק בֶּן קַיָּמָא וּצְרִיכָה חֲלִיצָה מִדִּבְרֵי סוֹפְרִים. אֲבָל לֹא תִּתְיַבֵּם:

6

Whenever a man has a brother, even if the brother is illegitimate or an idolater, whether he is above the age of majority or below the age of majority,15 as long as his head and the majority [of his body]16 emerged into the world before his brother's death,17 his existence causes [his brother's wife] to be obligated to perform the rite of yibbum.18

If [the deceased] had a brother who was born to a maidservant or to a gentile woman, he is not considered to be his brother in any [halachic] context. [His existence] does not cause [his brother's wife] to be obligated to perform the rite of yibbum. Even when [the brother] was born as a member of the Jewish people,19 since his mother was not Jewish when he was conceived, he is not considered to be [the deceased's] brother.

ו

מִי שֶׁיֵּשׁ לוֹ אָח מִכָּל מָקוֹם אֲפִלּוּ מַמְזֵר אוֹ עוֹבֵד עֲבוֹדָה זָרָה בֵּין קָטָן בֵּין גָּדוֹל מִשֶּׁיָּצָא רֹאשׁוֹ וְרֻבּוֹ לַאֲוִיר הָעוֹלָם קֹדֶם שֶׁיָּמוּת אָחִיו הֲרֵי זֶה זוֹקֵק אֶת אִשְׁתּוֹ לְיִבּוּם. וְאִם הָיָה לוֹ אָח מִן הַשִּׁפְחָה אוֹ מִן הַכּוּתִית אֵינוֹ אָחִיו לְדָבָר מִן הַדְּבָרִים וְאֵינוֹ זוֹקֵק אֶת אִשְׁתּוֹ. וְאַף עַל פִּי שֶׁהָיְתָה לֵדָתוֹ בִּקְדֻשָּׁה הוֹאִיל וְהָיְתָה הוֹרָתוֹ שֶׁלֹּא בִּקְדֻשָּׁה אֵינוֹ אָחִיו:

7

Maternal brothers are considered to be brothers only with regard to the laws of mourning20 and the laws of witnesses.21

With regard to the laws of inheritance,22 and the laws of yibbum and chalitzah, [maternal brothers] are considered as if they did not exist. For fraternity is derived from the father alone.23

ז

אַחִים מִן הָאֵם אֵינָן חֲשׁוּבִין אַחִים (אֶלָּא לַאֲבֵלוּת וּלְעֵדוּת אֲבָל) לְעִנְיַן יְרֻשָּׁה אוֹ לְעִנְיַן יִבּוּם וַחֲלִיצָה הֲרֵי הֵן כְּמִי שֶׁאֵינָן. שֶׁאֵין אַחְוָה אֶלָּא מֵאָב:

8

There is no concept of fraternity among converts and freed slaves. [Thus, even two converts or two freed slaves born from the same father] are considered unrelated.24 Even if one of them was conceived before his parents were converted and born after they were converted, and the other was conceived and born after the parents were converted, they are not considered to have any family connection.

Even if they are twins who were born after their parents were converted, they are not considered to be brothers25 unless they were also conceived after their parents converted.

ח

גֵּרִים שֶׁנִּתְגַיְּרוּ וַעֲבָדִים שֶׁנִּשְׁתַּחְרְרוּ אֵין לָהֶן אַחְוָה כְּלָל וַהֲרֵי הֵן כְּזָרִים זֶה לָזֶה. וַאֲפִלּוּ אֶחָד מֵהֶם הוֹרָתוֹ שֶׁלֹּא בִּקְדֻשָּׁה וְלֵדָתוֹ בִּקְדֻשָּׁה וְהַשֵּׁנִי הוֹרָתוֹ וְלֵדָתוֹ בִּקְדֻשָּׁה הֲרֵי הֵן כְּזָרִים. וַאֲפִלּוּ תְּאוֹמִים וְנוֹלְדוּ בִּקְדֻשָּׁה אֵין בֵּינֵיהֶן אַחְוָה עַד שֶׁתְּהֵא הוֹרָתָן וְלֵדָתָן בִּקְדֻשָּׁה:

9

When a man who has many wives dies, [a brother who] engages in relations or performes the rite of chalitzah with one of them frees the others from all obligations. [The deceased's brother] may not marry two [of the deceased's wives], as [implied by Deuteronomy 25:9]: "...who did not build his brother's house." [This is interpreted as an exclusion:] he may build one house, but not two houses.26

Similarly, if [the deceased had many brothers, one of them should perform either the rite of chalitzah or yibbum with one of the widows. This frees the others of all obligations.

ט

מִי שֶׁהָיוּ לוֹ נָשִׁים רַבּוֹת וָמֵת. בִּיאָתָהּ אוֹ חֲלִיצָתָהּ שֶׁל אַחַת מֵהֶן פּוֹטֶרֶת אֶת הַשְּׁאָר וְאֵינוֹ מְיַבֵּם לִשְׁתַּיִם שֶׁנֶּאֱמַר (דברים כה ט) ״אֲשֶׁר לֹא יִבְנֶה אֶת בֵּית אָחִיו״‎‎ בַּיִת אֶחָד הוּא בּוֹנֶה וְאֵינוֹ בּוֹנֶה שְׁנֵי בָּתִּים. וְכֵן אִם הָיוּ לוֹ אַחִים רַבִּים אֶחָד מֵהֶן חוֹלֵץ אוֹ מְיַבֵּם לְאַחַת מִן הַיְבָמוֹת וְיֻתְּרוּ שְׁאָר הַצָּרוֹת:

10

[The following rules apply if] the widows include some who are fit to marry into the priesthood, and some who are not fit to marry into the priesthood: If [the brother] desires to perform the rite of yibbum, he may choose any of the widows that he desires. If he desires to perform the rite of chalitzah, he should perform this rite with one of the wives who is already forbidden to the priesthood, so that he will not disqualify one of the women who may marry into the priesthood through the rite of chalitzah.27

י

הָיוּ בִּיבָמוֹת אֵלּוּ כְּשֵׁרוֹת לִכְהֻנָּה וּפְסוּלוֹת. אִם הָיָה מְיַבֵּם מְיַבֵּם לְאֵי זוֹ שֶׁיִּרְצֶה. וְאִם הָיָה חוֹלֵץ יַחֲלֹץ לַפְּסוּלָה כְּדֵי שֶׁלֹּא יִפְסל אֶת הַכְּשֵׁרָה לִכְהֻנָּה בַּחֲלִיצָה:

11

[The following rules apply if] many [of a man's] brothers die and he [becomes obligated to perform the rite of yibbum or chalitzah] to [all] their wives: If it is possible for him to perform the rite of yibbum with all of them,28 he should. If not, he may perform chalitzah with all of them, or perform chalitzah with whomever he desires, or perform yibbum with whomever he desires, [choosing one of the widows] from each [of his deceased brother's] households.

יא

מֵתוּ לוֹ אַחִין רַבִּים וְנָפְלוּ נְשׁוֹתֵיהֶן לְפָנָיו. אִם אֶפְשָׁר לוֹ לְיַבֵּם אֶת כֻּלָּן מְיַבֵּם וְאִם לָאו חוֹלֵץ. אוֹ חוֹלֵץ לְמִי שֶׁיִּרְצֶה מֵהֶן וּמְיַבֵּם לְמִי שֶׁיִּרְצֶה אַחַת מִכָּל בַּיִת וּבַיִת:

12

When [a yavam] marries a yevamah, all the other widows from that household become forbidden to him and to his other brothers. If he or his other brothers have relations with one of the other widows, they transgress a positive commandment, for [Deuteronomy 25:9] states: "Her yavam will engage in relations with her." [This is interpreted to mean:] With her, and not with another woman from that household. A prohibition stemming from a positive commandment is considered to be a positive commandment.29

Similarly, when [one of the brothers] performs chalitzah with his yevamah, the woman with whom chalitzah was performed and all the other widows from that household become forbidden to [the brother who] performed chalitzah and to the other brothers. They are all forbidden to the brothers by Rabbinic decree,30 sharing the status of sh'niyot.31 [This is the only prohibition involved,] for since their brother died childless, the severe prohibition against sexual relations (issur ervah) is removed. Therefore, [if one of the brothers consecrates such a woman,] the consecration is binding, as it would be be if he consecrated one of the sh'niyot.

יב

הַכּוֹנֵס אֶת יְבִמְתּוֹ נֶאֶסְרוּ צָרוֹתֶיהָ עָלָיו וְעַל שְׁאָר הָאַחִין וְאִם בָּא הוּא אוֹ אֶחָד מֵהָאַחִין עַל צָרָתָהּ הֲרֵי זֶה עוֹבֵר בַּעֲשֵׂה שֶׁנֶּאֱמַר (דברים כה ה) ״יְבָמָהּ יָבֹא עָלֶיהָ״‎‎ וְלֹא עָלֶיהָ וְעַל צָרָתָהּ וְלָאו הַבָּא מִכְּלַל עֲשֵׂה עֲשֵׂה. וְכֵן הַחוֹלֵץ לִיבִמְתּוֹ נֶאֶסְרָה הַחֲלוּצָה הִיא וְכָל צָרוֹתֶיהָ עַל הַחוֹלֵץ וְעַל שְׁאָר אַחִין. וְכֻלָּן אֲסוּרוֹת עֲלֵיהֶן מִדִּבְרֵי סוֹפְרִים כִּשְׁנִיּוֹת. שֶׁמֵּאַחַר שֶׁמֵּת אָחִיו בְּלֹא וָלָד נִסְתַּלֵּק אִסּוּר עֶרְוָה מֵעַל כָּל נָשָׁיו לְפִיכָךְ תּוֹפְסִין בָּהֶן הַקִּדּוּשִׁין כִּשְׁנִיּוֹת:

13

When a person performs the rite of chalitzah with his yevamah, not only does she become forbidden to him, but her relatives32 - e.g., her mother and her daughter - also become forbidden. Similarly, she is forbidden to marry his son and his brother.33 Even the sh'niyot - e.g., her daughter's granddaughter - related to her are forbidden to him, and she is forbidden to his son's grandson. To summarize: Her status is like that of a divorced wife.

Similarly, if his yevamah dies while she is still under obligation to him,34 he is forbidden to marry these relatives of hers, as if she were his wife and she died in his lifetime.35 All these prohibitions are of Rabbinic origin.

[If the deceased had two wives, his brother] may marry the sister of the wife with whom he did not perform the rite of chalitzah, or any other of her relatives.36

יג

הַחוֹלֵץ לִיבִמְתּוֹ כְּשֵׁם שֶׁהִיא אֲסוּרָה עָלָיו כָּךְ קְרוֹבוֹתֶיהָ אֲסוּרוֹת עָלָיו. כְּגוֹן אִמָּהּ וּבִתָּהּ. וְכֵן הִיא אֲסוּרָה לִבְנוֹ וּלְאֶחָיו. וַאֲפִלּוּ שְׁנִיּוֹת שֶׁלָּהּ אֲסוּרוֹת כְּגוֹן בַּת בַּת בִּתָּהּ. וְכֵן הִיא אֲסוּרָה לְבֶן בֶּן בְּנוֹ. כְּלָלוֹ שֶׁל דָּבָר הֲרֵי הִיא כְּאִשְׁתּוֹ שֶׁגֵּרְשָׁהּ. וְכֵן אִם מֵתָה יְבִמְתּוֹ וַעֲדַיִן הִיא זְקוּקָה לוֹ אָסוּר בִּקְרוֹבוֹתֶיהָ כְּאִלּוּ הָיְתָה אִשְׁתּוֹ וּמֵתָה תַּחְתָּיו. וְכָל הָאִסּוּרִין הָאֵלּוּ מִדִּבְרֵיהֶן. וּמֻתָּר אָדָם לִשָּׂא אֲחוֹת צָרַת חֲלוּצָתוֹ וּשְׁאָר קְרוֹבוֹתֶיהָ:

14

It is forbidden for a man to marry a close relative of a woman with whom he is obligated to perform either yibbum or chalitzah - e.g., her mother or her daughter - until one of his brothers performs yibbum with the woman who is obligated, or performs chalitzah with her to free her of her obligation.37

Afterwards, [the other brother] may marry the woman's mother, daughter, or any of her other relatives, despite the fact that these relatives are all forbidden to the brother who performed either yibbum or chalitzah, as explained [in the previous halachah].

יד

אָסוּר לְיָבָם לִשָּׂא קְרוֹבַת זְקוּקָתוֹ כְּגוֹן אִמָּהּ אוֹ בִּתָּהּ עַד שֶׁיְּיַבֵּם אֶחָד מֵאֶחָיו לָהּ אוֹ יַחֲלֹץ לָהּ וְתָסוּר זִקָּתוֹ מֵעָלֶיהָ וְיִשָּׂא אִמָּהּ אוֹ בִּתָּהּ אוֹ שְׁאָר קְרוֹבוֹתֶיהָ. אַף עַל פִּי שֶׁהֵן כֻּלָּן אֲסוּרוֹת עַל אָחִיו שֶׁחָלַץ אוֹ יִבֵּם כְּמוֹ שֶׁבֵּאַרְנוּ:

15

When a man marries his yevamah and then divorces her, he may remarry her if he so desires. She is considered to be his wife with regard to all matters. There remains no trace of the prohibition [that existed when she was] his brother's [wife], neither from Scriptural law nor from Rabbinic law.38

טו

הַכּוֹנֵס אֶת יְבִמְתּוֹ וְגֵרְשָׁהּ אִם רָצָה לְהַחֲזִיר יַחֲזִיר מִפְּנֵי שֶׁהִיא אִשְׁתּוֹ לְכָל דָּבָר וְלֹא נִשְׁאַר עָלֶיהָ שֵׁם אִסּוּר מִפְּנֵי אָחִיו כְּלָל לֹא מִדִּבְרֵי תּוֹרָה וְלֹא מִדִּבְרֵי סוֹפְרִים:

16

As explained in Hilchot Ishut,39 the sexual relations in which a boy of nine years and one day engages are halachically significant. This is a law received through the Oral Tradition.

Accordingly, when a yavam who is below the age of majority, but over the age of nine, engages in sexual relations with his yevamah, he should maintain [his bond with her].40 He may not, however, perform the rite of chalitzah until he attains the age of majority and is inspected [for signs of physical maturity].41 For with regard to chalitzah, the term ish ("man") is specifically mentioned in the Torah.42

If [a yavam] is below this age, sexual relations in which he engages are of no halachic significance. [Moreover,] even the sexual relations in which a nine-year-old engages do not acquire [the yevamah for him in a manner that is] binding [entirely].43 Therefore, his yevamah is not permitted to marry another man until he engages in relations with her after he attains majority [and divorces her], or performs the rite of chalitzah [at that age], as will be explained.44

טז

כְּבָר בֵּאַרְנוּ בְּהִלְכוֹת אִישׁוּת שֶׁבֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד בִּיאָתוֹ בִּיאָה וְדָבָר זֶה הֲלָכָה מִפִּי הַקַּבָּלָה. לְפִיכָךְ יָבָם קָטָן שֶׁבָּא עַל יְבִמְתּוֹ אִם הָיָה בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד יְקַיֵּם. אֲבָל אֵינוֹ חוֹלֵץ עַד שֶׁיִּגְדַּל וְיִבָּדֵק שֶׁהֲרֵי (דברים כה ז) ״אִישׁ״‎‎ כָּתוּב בַּפָּרָשָׁה לְעִנְיַן חֲלִיצָה. וְאִם הָיָה פָּחוֹת מִזֶּה אֵין בִּיאָתוֹ בִּיאָה. וּבִיאַת בֶּן תֵּשַׁע שָׁנִים אֵינָהּ קוֹנָה קִנְיָן גָּמוּר. לְפִיכָךְ אֵין יְבִמְתּוֹ נִתֶּרֶת לְזָר עַד שֶׁיָּבוֹא עָלֶיהָ אַחַר שֶׁיִּגְדַּל אוֹ עַד שֶׁתַּחֲלֹץ כְּמוֹ שֶׁיִּתְבָּאֵר:

17

Similarly, with regard to a yevamah who is below the age of majority: If her yavam desires to perform the rite of yibbum with her, he may.45 He may not, however, perform the rite of chalitzah with her until she attains the age of majority and is inspected [for physical signs of maturity]. Even if she engaged in sexual relations after she became twelve years old,46 she may not perform the rite of chalitzah until she undergoes an inspection and manifests signs of physical maturity.

יז

וְכֵן הַיְבָמָה הַקְּטַנָּה אִם רָצָה הַיָּבָם לְיַבֵּם אוֹתָהּ מְיַבֵּם אֲבָל אֵינָהּ חוֹלֶצֶת עַד שֶׁתַּגְדִּיל וְתִבָּדֵק. וַאֲפִלּוּ נִבְעֲלָה אַחַר י״‎ב שָׁנָה אֵינָהּ חוֹלֶצֶת עַד שֶׁתִּבְדֹּק וְיִמְצְאוּ בָּהּ הַסִּימָנִין:

18

Just as a yavam may not perform chalitzah until he attains manhood, so too, a yevamah may not perform chalitzah until she attains womanhood.47

When a yavam who is below the age of majority engages in sexual relations with a yevamah who is also below the age of majority, they should grow up together.

יח

כְּשֵׁם שֶׁאֵין הַיָּבָם חוֹלֵץ עַד שֶׁיֵּעָשֶׂה אִישׁ כָּךְ אֵין הַיְבָמָה חוֹלֶצֶת עַד שֶׁתֵּעָשֶׂה אִשָּׁה גְּדוֹלָה. וְיָבָם קָטָן שֶׁבָּא עַל יְבָמָה קְטַנָּה יִגְדְּלוּ זֶה עִם זֶה:

19

As all other women,48 a yevamah should not perform either yibbum or chalitzah until she waits a 90-day interval. [These 90 days] do not include the day of her previous husband's death or the day of yibbum or chalitzah.

Why may she not perform chalitzah within these 90 days?49Because she is not fit to perform yibbum [at that time]. [Deuteronomy 25:7-9] states: "And if the man does not desire to take his yevamah,... she should remove his shoe" [establishing an equivalence between these two rites]. [Thus,] when she is fit to perform yibbum, she is fit to perform chalitzah. And when she is not fit to perform yibbum, she is not fit to perform chalitzah.50

Should [a brother] perform yibbum or chalitzah with her within these three months, since she is not pregnant, she has discharged her obligation and need not perform any further activity.51

יט

הַיְבָמָה לֹא תִּתְיַבֵּם וְלֹא תַּחֲלֹץ עַד שֶׁתַּמְתִּין תִּשְׁעִים יוֹם חוּץ מִיּוֹם הַמִּיתָה וּמִיּוֹם הַיִּבּוּם וּמִיּוֹם הַחֲלִיצָה כִּשְׁאָר כָּל הַנָּשִׁים. וּמִפְּנֵי מָה לֹא תַּחֲלֹץ בְּתוֹךְ תִּשְׁעִים יוֹם מִפְּנֵי שֶׁאֵינָהּ רְאוּיָה לְיִבּוּם וְנֶאֱמַר (דברים כה ז) ״אִם לֹא יַחְפֹּץ הָאִישׁ לָקַחַת אֶת יְבִמְתּוֹ״‎‎ (דברים כה ט) ״וְחָלְצָה נַעֲלוֹ״‎‎ וְגוֹ' בְּעֵת שֶׁהִיא עוֹלָה לְיִבּוּם עוֹלָה לַחֲלִיצָה וְכָל זְמַן שֶׁאֵינָהּ עוֹלָה לְיִבּוּם אֵינָהּ עוֹלָה לַחֲלִיצָה. וְאִם יִבֵּם אוֹתָהּ אוֹ חָלַץ בְּתוֹךְ הַשְּׁלֹשָׁה חֳדָשִׁים הוֹאִיל וְאֵינָהּ מְעֵבֶּרֶת הֲרֵי זוֹ נִפְטְרָה וְאֵינָהּ צְרִיכָה כְּלוּם:

20

[The following rules apply when a brother] performs chalitzah with his yevamah, and afterwards it is discovered that she is pregnant: If she gives birth and the child is viable, it is considered as if she had never performed chalitzah. She is permitted to [marry into the] priesthood, and [the brother who performed chalitzah with her] is permitted [to marry] her relatives.

If the woman miscarries, or if the child who is born does not live for 30 days after being born, this - or another - brother52 should perform chalitzah with her again. For chalitzah performed with a pregnant woman is not considered chalitzah,53 nor are relations with a pregnant woman considered yibbum.

כ

הַחוֹלֵץ לִיבִמְתּוֹ וְנִמְצֵאת מְעֻבֶּרֶת וְיָלְדָה. אִם הָיָה וָלָד שֶׁל קַיָּמָא הֲרֵי זוֹ כְּמִי שֶׁלֹּא נֶחְלְצָה לוֹ מֵעוֹלָם וּמֻתֶּרֶת לִכְהֻנָּה וּמֻתָּר בִּקְרוֹבוֹתֶיהָ. וְאִם הִפִּילָה אוֹ שֶׁלֹּא שָׁהָה שְׁלֹשִׁים יוֹם אַחַר שֶׁנּוֹלַד חוֹזֵר וְחוֹלֵץ לָהּ הוּא אוֹ אֶחָד מֵאֶחָיו. שֶׁחֲלִיצַת הַמְעֻבֶּרֶת אֵינָהּ חֲלִיצָה וּבִיאַת הַמְעֻבֶּרֶת אֵינָהּ יִבּוּם:

21

Therefore, when [a man] marries or performs chalitzah with his yevamah who is pregnant, another woman who was married to the deceased husband should not remarry until this woman gives birth. For a child does not remove [the obligation of yibbum] until it emerges into the world.54

כא

לְפִיכָךְ הַכּוֹנֵס אוֹ הַחוֹלֵץ לִיבִמְתּוֹ הַמְעֵבֶּרֶת לֹא תִּנָּשֵׂא צָרָתָהּ עַד שֶׁתֵּלֵד זוֹ. שֶׁאֵין הַוָּלָד מַתִּיר עַד שֶׁיֵּצֵא לַאֲוִיר הָעוֹלָם:

22

[The following laws apply when a yavam] marries his yevamah, and then she is discovered to be pregnant. They should be separated [immediately],55 and we wait [to see the results of] her pregnancy. If she miscarries, he should maintain her as his wife.56

If she gives birth [different rules apply]: If the child dies, even on the day it was born, the yavam should divorce her, [give her] a get and perform chalitzah with her.57 [Only] then, is she permitted to marry another man. If the child lives for 30 days after its birth,58 [the child] is considered to be viable, and there is no need for a divorce, for [relations between the two are forbidden by] a severe prohibition].59

כב

הַכּוֹנֵס אֶת יְבִמְתּוֹ וְנִמְצֵאת מְעֵבֶּרֶת מַפְרִישִׁין אוֹתָן וּמַמְתִּינִין לָהּ. אִם הִפִּילָה יַחֲזֹר וִיקַיֵּם. וְאִם יָלְדָה אֲפִלּוּ מֵת בַּיּוֹם שֶׁנּוֹלַד הֲרֵי זֶה מוֹצִיאָהּ בְּגֵט וְחוֹלֵץ לָהּ וְאַחַר כָּךְ תִּהְיֶה מֻתֶּרֶת לַאֲחֵרִים. וְאִם נִתְקַיֵּם הַוָּלָד שְׁלֹשִׁים יוֹם אַחַר שֶׁנּוֹלַד הֲרֵי זֶה וָלָד שֶׁל קַיָּמָא וְאֵינָהּ צְרִיכָה מִמֶּנּוּ גֵּט מִפְּנֵי שֶׁהִיא עֶרְוָה עָלָיו:

23

If she gives birth to a viable child six months after she performed yibbum, there is a doubt whether this child is the son of her first husband and was born after a nine-month pregnancy, or is the son of her [yavam] and was born after a six-month pregnancy. Therefore, [the yavam] should divorce his wife, giving her a get. The child is not, however, considered illegitimate.60

If [the yavam] has relations with her after she gives birth, the children that are born afterwards are considered to be of doubtful legitimacy.61

כג

יָלְדָה לְאַחַר שִׁשָּׁה חֳדָשִׁים מִשֶּׁנִּתְיַבְּמָה וָלָד שֶׁל קַיָּמָא הֲרֵי זֶה הַוָּלָד סָפֵק אִם בֶּן תִּשְׁעָה לָרִאשׁוֹן אִם בֶּן שִׁבְעָה לָאַחֲרוֹן לְפִיכָךְ יוֹצִיא בְּגֵט וְהַוָּלָד כָּשֵׁר. וְאִם בָּא עָלֶיהָ אַחַר שֶׁיָּלְדָה הַבָּנִים שֶׁיָּבֹאוּ אַחֲרָיו סָפֵק מַמְזֵרִים:

Footnotes
1.

Sefer HaMitzvot (Positive Commandment 216) and Sefer HaChinuch (Mitzvah 598) include this mitzvah as one of the 613 mitzvot of the Torah.

In his Guide for the Perplexed, the Rambam explains that marriage of this nature was a custom carried out before the giving of the Torah (as reflected by Genesis 38:8), and the Torah allowed this rite to be perpetuated. Sefer HaChinuch explains that the closeness shared with the deceased by both his widow and his brother enjoins them to come together and produce a child who will perpetuate the deceased's memory and virtue. As Sefer HaChinuch mentions, there are also profound mystic concepts associated with this mitzvah.

2.

Implied is an exclusion. One should not perform this rite with the widow of one's maternal brother (Yevamot 17b; Halachah 7 below).

3.

See Hilchot Ishut 22:10-14.

4.

According to the Rambam's conception, the woman cannot be compelled to marry her brother-in-law against her will. See Chapter 2, Halachah 10 and notes.

5.

Sefer HaMitzvot (Positive Commandment 217) and Sefer HaChinuch (Mitzvah 599) include this mitzvah as one of the 613 mitzvot of the Torah.

6.

The woman also participates - indeed she plays a more active role - in the rite of chalitzah. Nevertheless, the mitzvah is considered to be incumbent on the brother of the deceased, because the effect of this mitzvah is that he foregoes a right - the right to marry the woman - that belongs to him. Until he performs chalitzah, the woman is bonded to him, and through performing chalitzah he severs this connection. Therefore, the mitzvah is considered his.

Moreover, chalitzah is a means to dissolve the connection established by kiddushin. Since kiddushin are established by the man, chalitzah is also his initiative. See the Kovetz who questions whether the man is obligated to perform chalitzah or he merely has the opportunity of doing so.

7.

The concluding mishnah of the first chapter of Bechorot states:

The mitzvah of yibbum takes precedence over the mitzvah of chalitzah. [This applied] originally, when the participants [in the rite] intended to perform a mitzvah. In the present age, when they do not intend to perform a mitzvah, the mitzvah of chalitzah takes precedence over the mitzvah of yibbum.

In his Commentary on the Mishnah, the Rambam explains that the Mishnah follows the opinion of Abba Shaul, who maintains that the prohibition against marrying one's brother's wife is not removed entirely by the mitzvah of yibbum. Instead, it is merely temporarily superseded. And therefore, if the couple have any intentions other than the fulfillment of the mitzvah, they transgress this prohibition. As such, rather than involve oneself in such a challenge, one should perform the mitzvah of chalitzah.

In that commentary, and in a subsequent responsum, the Rambam explains that the halachah follows the opinion of the Sages who differ with Abba Shaul. These Sages maintain that when a man dies childless, the prohibition against his brother's marrying his wife is lifted entirely. Even if the brother marries the widow because of her looks, or because of her money, there is no prohibition involved. For that reason, the mitzvah of yibbum takes precedence.

The Ashkenazic community, following the rulings of Rabbenu Tam and the authorities who succeeded him, do not accept this ruling and follow Abba Shaul's opinion. Accordingly, the Shulchan Aruch (Even HaEzer 165:1) quotes the Rambam's view, while the Ramah states that chalitzah is preferable, and that a couple should not be allowed to perform yibbum unless the court is certain that their intent is solely to perform the mitzvah.

There is some discussion of the Rambam's intent by the commentaries, for his ruling in Hilchot Gerushin 10:16 implies a recognition of the importance of chalitzah. Nevertheless, the clarity of his statements in his Commentary on the Mishnah and in Sefer HaMitzvot makes it obvious that he follows the opinion of the Sages who differ with Abba Shaul. At present, even within the Sephardic community, the mitzvah of chalitzah is generally observed.

[Note also the opinion of the Beit Shmuel 174:3, who states that even according to the Ashkenazic authorities, by Scriptural law yibbum takes precedence, and that the primacy given to chalitzah is a Rabbinic institution.]

8.

The Hebrew word בן, translated as "son," can also mean "child" or "descendant." Hence, the ruling mentioned by the Rambam.

9.

If, however, a man fathered a child [or children], and he [they all] died in the father's lifetime, the man's wife is obligated to perform the rite of yibbum.

10.

Regardless of who the father is.

11.

See Hilchot Gerushin 10:19.

12.

The Ramah (Even HaEzer 156:4) states that these laws apply as long as we know that the pregnancy lasted into the ninth month.

13.

The Ramah (ibid.) rules that even if a fetus is stillborn, these laws still apply.

14.

For according to Scriptural law, there is no obligation for yibbum, and the prohibition against relations with her husband's brother remains in force.

15.

In such an instance, the brother may not perform the rites of yibbum or chalitzah until he comes of age, as is explained below.

16.

The Gur Aryeh notes that Hilchot Issurei Bi'ah 10:6 appears to imply that the emergence of an infant's forehead alone is sufficient for it to be considered having been "born." Hence, he interprets the Rambam's words as meaning either the forehead or the majority of the body.

17.

If, however, the brother is not born until after the man's death, the deceased's wife is not obligated to perform the rite of yibbum, as explained in Chapter 6, Halachah 16.

18.

Needless to say, the woman should not marry the illegitimate man or the idolater. Instead, she should seek to be freed from her obligation through chalitzah.

The Shulchan Aruch (Even HaEzer 157:4) and the Ramah mention the possibility of leniency, if the deceased's brother was an apostate at the time the deceased married his wife.

19.

I.e., the maidservant was freed, or the gentile woman was converted, before the baby was born.

20.

See Hilchot Aveilut 2:1.

21.

See Hilchot Edut 13:1.

22.

See Hilchot Nachalot 1:6.

23.

Yevamot 17b derives this concept from Genesis 42:13: "We are twelve brothers, the son of one father."

24.

And therefore, one is not obligated to perform the rite of yibbum if his brother dies childless.

25.

This ruling applies with regard to the laws of yibbum. With regard to the laws of forbidden relationships, by contrast, in Hilchot Issurei Bi'ah the Rambam rules that if one twin has relations with the other's wife, he is liable for transgressing the prohibition against relations with his brother's wife.

26.

As reflected in Halachah 12, there is a prohibition involved.

27.

Our Sages forbade a priest from marrying a woman who performed the rite of chalitzah (Hilchot Ishut 1:7). Since it makes no difference to the brother with which widow he performs the rite of chalitzah, our Sages counsel that it be performed in a manner that does not damage a woman's future possibilities. See Yevamot 44a.

A court should enforce the application of this law (Beit Shmuel 161:2).

28.

I.e., if he is capable of meeting the responsibilities a husband has - providing for his wife's livelihood, her clothing and her conjugal rights.

29.

A person who transgresses a positive commandment is not liable to receive the forty lashes given when a negative commandment of the Torah is violated. Hence, the Rambam clarifies that although a prohibition is involved, it is a prohibition stemming from a positive commandment, and not one stemming from a negative commandment.

30.

The Ramban (Nachmonides, Hasagot L'Sefer HaMitzvot, Hosafot Negative Commandment 14) differs and maintains that the violation of a Scriptural prohibition is involved. The difference between their opinions stems from their interpretation of Yevamot 10b.

That passage interprets Deuteronomy 25:9: "... who did not build his brother's house," as implying a prohibition. "Once he did not build it, he no longer has the right to build it." The Ramban follows the authorities who maintain that this is a Scriptural prohibition, while the Rambam (based on Yevamot 40b) maintains that the prohibition is Rabbinic in origin, and the reference to the verse is merely an asmachta, a support.

31.

Literally, "prohibitions of a second degree," relatives with whom relations are permitted by Scriptural law, but forbidden by Rabbinic decree. See Hilchot Ishut 1:6.

32.

This refers to seven women who are included in the category of arayot and with whom sexual relations are forbidden, as mentioned in Leviticus, Chapter 18, and Hilchot Issurei Bi'ah 2:7,9. They include her mother, both her maternal and paternal grandmothers, her daughter, the daughter of her son, the daughter of her daughter and her sister.

33.

I.e., even a brother who was not born during the lifetime of the widow's husband.

34.

I.e., before she performs either yibbum or chalitzah.

35.

He is, however, permitted to marry the woman's sister, just as he is allowed to marry his wife's sister after her death.

36.

Although the woman herself is forbidden, as stated in the previous halachah, her relatives are permitted.

37.

See Chapter 7, Halachah 8.

38.

I.e., we do not say that he has already fulfilled the mitzvah of yibbum, and now the woman's status reverts to the prohibition under which she was previously forbidden. See Yevamot 39a.

39.

Chapter 11, Halachah 3.

40.

I.e., none of the other brothers should marry her instead. See Chapter 5, Halachot 18-19.

41.

Two pubic hairs, as stated in Hilchot Ishut 2:10.

42.

Deuteronomy 25:7 states: "If the man does not desire...."

43.

Rather, these sexual relations are considered to be equivalent to a ma'amar, the status of which is discussed in Chapter 2, Halachah 1.

44.

See Chapter 5, Halachah 21, where this situation is described in detail.

45.

Yevamot 119a explains that there is a certain dimension of leniency implied by this ruling. Since the woman is below the age of majority, it is possible that as she grows older she will manifest signs of being an aylonit, a woman who lacks female sexual characteristics (Hilchot Ishut 2:3,6). If that were to be the case, then the mitzvah of yibbum would not apply to such a woman, as stated in Chapter 6, Halachah 8, and relations with her would still be forbidden. Nevertheless, since the overwhelming probability is that a woman will not be an aylonit, our Sages did not impose any restrictions.

46.

Rav David Arameah interprets this to be referring to engaging in relations with her previous husband before her death. Although with regard to her husband, we assume that she has manifested signs of physical maturity, as stated in Hilchot Gerushin 11:5, with regard to the laws of yibbum and chalitzah an inspection is required. Note an alternative explanation offered by the Or Sameach.

47.

See Chapter 6, Halachah 6.

48.

See Hilchot Gerushin 11:18, which prohibits a widow or a divorcee from remarrying within 90 days of her husband's death or their divorce, to preclude the possibility of questions arising concerning who is the father of her child.

49.

For performing chalitzah will not prevent the determination of a child's father.

50.

The converse of this principle - that one who does not perform chalitzah (e.g., a king) does not perform yibbum - also applies. See the Rambam's Commentary on the Mishnah, Sanhedrin 2:1 and Hilchot Melachim 2:3).

51.

The Ramah (Even HaEzer 164:1) differs and maintains that such a woman requires chalitzah from her deceased husband's other brothers after the three months have passed. See also Beit Shmuel 164:4.

52.

The Ramah (Even HaEzer 164:2) states that the chalitzah should be performed by another brother, and not by the brother who had originally performed chalitzah with her.

53.

See Chapter 4, Halachah 26.

The Beit Shmuel 164:5 quotes the view of Tosafot, who maintain that, according to Rabbinic law, performing chalitzah while pregnant disqualifies a woman from marrying into the priesthood and prevents her from performing yibbum if she miscarries.

54.

And the yibbum or the chalitzah performed by the woman is of no consequence whatsoever.

55.

Lest she give birth, in which case she would be forbidden to the yavam.

56.

The Ramah (Even HaEzer 164:5) states that this rule applies only if he marries her before her pregnancy is discovered. If he marries her after her pregnancy is discovered, their relationship should be terminated even if she miscarries.

57.

The divorce is necessary lest it appear that a married couple are separating without a divorce, and the chalitzah is necessary as explained in Halachah 5. (See also Chapter 2, Halachah 21.)

58.

The Maggid Mishneh states that the same law applies if the child is born with its limbs properly formed after a full-term pregnancy, even if he dies on the day of birth. This ruling is quoted by the Ramah (Even HaEzer 164:6).

59.

She does not require a get, because everyone knows that the consecration of such a woman is not binding.

60.

For whether he is the son of the woman's first husband or the son of her second husband, no sin was committed in his conception.

61.

For we are unsure whether or not the woman is permitted to remain married to her yavam. The laws governing a person of doubtful legitimacy are discussed in Hilchot Issurei Bi'ah 15:21-22.

Yibbum vChalitzah - Chapter Two

1

It is a Rabbinic ordinance that a yavam should not enter into marital relations with his yevamah until he consecrates her in the presence of two witnesses, with a p'rutah or an article worth a p'rutah.1 This [act] is called a ma'amar.2

A ma'amar does not complete the acquisition of a yevamah, as will be explained.3

When [a yavam] performs a ma'amar with his yevamah without her knowledge, his deed is of no consequence. For a woman can be consecrated only willingly.4 When a minor is widowed after being merely consecrated,5 a ma'amar can be performed only with the consent of her father.

א

מִדִּבְרֵי סוֹפְרִים שֶׁלֹּא יָבֹא הַיָּבָם עַל יְבִמְתּוֹ עַד שֶׁיְּקַדֵּשׁ אוֹתָהּ בִּפְנֵי שְׁנֵי עֵדִים בִּפְרוּטָה אוֹ בִּשְׁוֵה פְּרוּטָה וְזֶהוּ הַנִּקְרָא מַאֲמָר. וְאֵין הַמַּאֲמָר קוֹנֶה בַּיְבָמָה קִנְיָן גָּמוּר כְּמוֹ הַבִּיאָה. וְהָעוֹשֶׂה מַאֲמָר בִּיבִמְתּוֹ שֶׁלֹּא מִדַּעְתָּהּ לֹא עָשָׂה כְּלוּם שֶׁאֵין הָאִשָּׁה מִתְקַדֶּשֶׁת אֶלָּא לִרְצוֹנָהּ. וּקְטַנָּה מִן הָאֵרוּסִין אֵין עוֹשִׂין בָּהּ מַאֲמָר אֶלָּא מִדַּעַת אָבִיהָ:

2

Just as [the yavam] must consecrate his yevamah, so too, he should recite the marriage blessings in the presence of ten men6 and compose a ketubah ("marriage contract"), as is required of any man who marries a woman.7

When [a yavam] enters into marital relations with his yevamah without previously performing a ma'amar with her, he acquires her in a binding manner;8 he does not have to consecrate her after engaging in marital relations with her. He should be given stripes for rebellious conduct9 and should write a ketubah for her.

ב

וּכְשֵׁם שֶׁהוּא מְקַדֵּשׁ אֶת יְבִמְתּוֹ כָּךְ הוּא מְבָרֵךְ בִּרְכַּת נִשּׂוּאִין בַּעֲשָׂרָה וְכוֹתֵב כְּתֻבָּה כְּדִין כָּל נוֹשֵׂא אִשָּׁה. הַבָּא עַל יְבִמְתּוֹ וְלֹא עָשָׂה בָּהּ מַאֲמָר קָנָה קִנְיָן גָּמוּר וְאֵינוֹ צָרִיךְ לַחֲזֹר וּלְקַדֵּשׁ אַחַר הַבְּעִילָה. וּמַכִּין אוֹתוֹ מַכַּת מַרְדּוּת. וְכוֹתֵב לָהּ כְּתֻבָּה:

3

When [a yavam] engages in marital relations with his yevamah, he acquires her [as his wife]. [This applies] regardless of whether he entered into these relations unintentionally10 or with a licentious intent,11 under duress or willingly, whether he acted with a licentious intent and she acted unintentionally or under duress, or she acted with a licentious intent and he acted unintentionally or under duress, whether she was asleep12 or awake, whether he performed vaginal or anal intercourse,13 whether he inserted merely the head of his penis or the entire organ.14

ג

הַבָּא עַל יְבִמְתּוֹ בֵּין בְּשׁוֹגֵג בֵּין בְּמֵזִיד בֵּין בְּאֹנֶס בֵּין בְּרָצוֹן. בֵּין שֶׁהָיָה הוּא מֵזִיד וְהִיא שׁוֹגֶגֶת אוֹ אֲנוּסָה. בֵּין שֶׁהָיְתָה הִיא מְזִידָה וְהוּא שׁוֹגֵג אוֹ אָנוּס. בֵּין שֶׁהָיְתָה יְשֵׁנָה בֵּין שֶׁהָיְתָה עֵרָה (בֵּין שֶׁבָּא עָלֶיהָ כְּדַרְכָּהּ בֵּין שֶׁלֹּא כְּדַרְכָּהּ). אֶחָד הַמְעָרֶה וְאֶחָד הַגּוֹמֵר קָנָה:

4

When does the above apply? When [the yavam] intends to perform a sexual act. If, however, he fell from the roof [with an erection] and [accidentally] inserted his organ into his yevamah, had relations with her when he was so intoxicated that he was not conscious of anything,15 or when he was asleep, he does not acquire her [as his wife].

If he intended to masturbate in a hole in the wall and unintentionally inserted his organ into his yevamah, he does not acquire her [as his wife].16 If he intended to sodomize an animal and unintentionally inserted his organ into his yevamah, he does acquire her [as his wife].17

ד

בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁנִּתְכַּוֵּן לִבְעל אֲבָל (אִם נָפַל מִן הַגַּג וְנִתְקַע בָּהּ אוֹ) שֶׁבָּא עָלֶיהָ שִׁכּוֹר שֶׁאֵינוֹ מַכִּיר כְּלוּם אוֹ יָשֵׁן לֹא קָנָה. נִתְכַּוֵּן לְדָבָר אַחֵר וְהֵטִיחַ בִּיבִמְתּוֹ לֹא קָנָה. לְהָטִיחַ בִּבְהֵמָה וְהֵטִיחַ בִּיבִמְתּוֹ קָנָה שֶׁהֲרֵי נִתְכַּוִּן לְשׁוּם בְּעִילָה מִכָּל מָקוֹם:

5

[The following rules apply when a yavam takes] his yevamah [home to] perform yibbum, and within 30 days she claims that they did not engage in sexual relations. [The yavam] claims that they did engage in relations and then divorces her. Since he already took the initiative and divorced her, we compel him to perform chalitzah with her.18

If he did not divorce her, we compel him to engage in relations with her,19 or to perform chalitzah and also to divorce her, giving her a get.20

If he divorced her after thirty days had passed, and she claims that they did not engage in sexual relations, we request that he perform chalitzah with her.21 If, however, he admits that he had not entered into relations with her, we compel him to perform chalitzah with her.22

If she claims that they engaged in sexual relations, and he denies engaging in relations, she is not required to engage in chalitzah, for his word is not accepted [when he desires] to cause her to be forbidden to all other men, once he brings her to his home as his wife.

ה

יְבָמָה שֶׁנִּתְיַבְּמָה וְאָמְרָה בְּתוֹךְ שְׁלֹשִׁים יוֹם לֹא נִבְעַלְתִּי וְאַף עַל פִּי שֶׁהוּא אוֹמֵר בָּעַלְתִּי וְגֵרְשָׁהּ כּוֹפִין אוֹתוֹ שֶׁיַּחֲלֹץ הוֹאִיל וְקִדֵּם וְגֵרְשָׁהּ בְּגֵט. וְאִם עֲדַיִן לֹא גֵּרֵשׁ כּוֹפִין אוֹתוֹ שֶׁיִּבְעל אוֹ יַחֲלֹץ וְיוֹצִיא בְּגֵט. גֵּרְשָׁהּ לְאַחַר שְׁלֹשִׁים יוֹם וְהִיא אוֹמֶרֶת לֹא נִבְעַלְתִּי מְבַקְּשִׁים מִמֶּנּוּ שֶׁיַּחֲלֹץ לָהּ. וְאִם הָיָה מוֹדֶה שֶׁלֹּא בָּעַל כּוֹפִין אוֹתוֹ לַחֲלֹץ. הִיא אוֹמֶרֶת נִבְעַלְתִּי וְהוּא אוֹמֵר לֹא בָּעַלְתִּי אֵינָהּ צְרִיכָה חֲלִיצָה שֶׁאֵין זֶה נֶאֱמָן לְאָסְרָהּ עַל כָּל אָדָם אַחַר שֶׁכְּנָסָהּ:

6

When a man dies [childless], and he is survived by many brothers, the mitzvah is incumbent on the eldest brother to perform either yibbum or chalitzah, as [implied by Deuteronomy 25:6]: "The firstborn son whom she bears [will perpetuate the name of the deceased brother]." The Oral Tradition interprets the verse as referring to the eldest of the surviving brothers, causing the verse to be rendered: "The eldest brother will perpetuate the name of the deceased brother." The subject of the phrase "whom she bears" is the mother of the brothers and not the yevamah.23

ו

מִי שֶׁמֵּת וְהִנִּיחַ אַחִים רַבִּים מִצְוָה עַל הַגָּדוֹל לְיַבֵּם אוֹ לַחֲלֹץ שֶׁנֶּאֱמַר (דברים כה ו) ״וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד״‎‎. מִפִּי הַשְּׁמוּעָה לָמְדוּ שֶׁאֵינוֹ מְדַבֵּר אֶלָּא בִּבְכוֹר שֶׁבָּאַחִין כְּלוֹמַר גְּדוֹל הָאַחִין יָקוּם עַל שֵׁם אָחִיו הַמֵּת. וְזֶה שֶׁנֶּאֱמַר אֲשֶׁר תֵּלֵד מַשְׁמָעוֹ אֲשֶׁר יָלְדָה הָאֵם וְאֵין מַשְׁמָעוֹ אֲשֶׁר תֵּלֵד הַיְבָמָה:

7

If the eldest brother does not desire to perform yibbum, all the other brothers are given that option.24 If they also do not desire, we return to the eldest brother and tell him: "The mitzvah is incumbent on you. Perform either yibbum or chalitzah." We do not compel the yavam to perform yibbum;25 we do, however, compel him to perform chalitzah.26

ז

לֹא רָצָה הַגָּדוֹל לְיַבֵּם מְחַזְּרִין עַל כָּל הָאַחִין. לֹא רָצוּ חוֹזְרִין אֵצֶל הַגָּדוֹל וְאוֹמְרִין עָלֶיךָ מִצְוָה אוֹ חֲלֹץ אוֹ יַבֵּם. וְאֵין כּוֹפִין אֶת הַיָּבָם לְיַבֵּם אֲבָל כּוֹפִין אוֹתוֹ לַחֲלֹץ:

8

If the eldest brother says: "Give me a respite until [a brother] who is a minor attains majority," "... until [a brother] who is on a journey returns," or "... until [a brother] who has [temporarily] lost his powers of speech and hearing recovers; if he refuses, I will perform yibbum or chalitzah" - his request is not accepted. He is told: "The mitzvah is incumbent on you. Perform either yibbum or chalitzah."27

ח

אָמַר הַגָּדוֹל הַמְתִּינוּ לִי עַד שֶׁיַּגְדִּיל הַקָּטָן אוֹ עַד שֶׁיָּבוֹא הַהוֹלֵךְ אוֹ עַד שֶׁיַּבְרִיא הַחֵרֵשׁ וְנִמְלַךְ בּוֹ וְאִם לֹא יִרְצֶה אֲנִי אֲיַבֵּם אוֹ אֲנִי אֶחְלֹץ אֵין שׁוֹמְעִין לוֹ. אֶלָּא אוֹמְרִין לוֹ עָלֶיךָ מִצְוָה אוֹ יַבֵּם אוֹ חֲלֹץ:

9

Similarly, if the eldest brother is in another country,28[the obligation is transferred to his younger brother]. The younger brother does not have the option of saying: "The mitzvah is incumbent on my older brother. Wait until he comes." Instead, we tell the brother that is present: "Perform either yibbum or chalitzah."29

ט

וְכֵן אִם הָיָה הַגָּדוֹל בִּמְדִינָה אַחֶרֶת אֵין אָחִיו הַקָּטָן יָכוֹל לוֹמַר עַל אָחִי הַגָּדוֹל הִיא הַמִּצְוָה הַמְתִּינוּ לוֹ עַד שֶׁיָּבוֹא אֶלָּא אוֹמְרִין לְזֶה שֶׁהוּא כָּאן יַבֵּם אוֹ חֲלֹץ:

10

The laws pertaining to a yevamah who is fit to perform yibbum30 and refuses to do so are the same as those governing a woman who rebels against her husband.31 We compel her yavam to perform chalitzah with her,32 and she forfeits [the money due her by virtue of her] marriage contract.

When the deceased is survived by many wives, the one that the yavam asks to perform yibbum and refuses is considered to have "rebelled." He should perform chalitzah with her, and she forfeits [the money due her by virtue of her] marriage contract.33The other wives who were not asked [to perform yibbum] receive [the money due them by virtue of their] marriage contracts, as other widows do.

י

יְבָמָה הָרְאוּיָה לְיִבּוּם שֶׁלֹּא רָצְתָה לְהִתְיַבֵּם דִּינָהּ כְּדִין מוֹרֶדֶת עַל בַּעְלָהּ וְכוֹפִין אֶת יְבָמָהּ לַחֲלֹץ לָהּ וְתֵצֵא בְּלֹא כְּתֻבָּה. וְאִם הִנִּיחַ אָחִיו נָשִׁים רַבּוֹת כָּל מִי שֶׁתְּבָעָהּ הַיָּבָם מֵהֶן לְיִבּוּם וְלֹא רָצְתָה הִיא הַמּוֹרֶדֶת וְחוֹלֵץ לָהּ וְתֵצֵא בְּלֹא כְּתֻבָּה. וּשְׁאָר צָרוֹתֶיהָ שֶׁלֹּא נִתְבְּעוּ נוֹטְלוֹת כְּתֻבָּתָן כִּשְׁאָר הָאַלְמָנוֹת:

11

If [the deceased was survived by] many [brothers], and the eldest brother states that he wants to perform yibbum with [one of the deceased's wives], [she is under obligation to him].34 Even if she does not desire [to marry] him, but is willing to marry one of his brothers, her desire is not considered. For the mitzvah is that the eldest brother perform yibbum.

יא

הָיוּ הַיְבָמִין רַבִּים וְתָבַע אוֹתָהּ הַגָּדוֹל לְיִבּוּם וְהִיא אֵינָהּ רוֹצָה בּוֹ וְרוֹצָה בְּאָחִיו אֵין שׁוֹמְעִין לָהּ, שֶׁמִּצְוָה בַּגָּדוֹל לְיַבֵּם:

12

[The following rules apply when] the eldest brother says: "I do not want to perform either yibbum or chalitzah. Behold, my brother is present." If one of the brothers asks her to perform yibbum, and she does not desire [to marry] him, but she does desire [to marry] another brother, and he desires [to marry] her, she is not considered to have "rebelled." Once the eldest brother upon whom the mitzvah is incumbent demurs, all the brothers are equal.35 Since she desires [to marry] one of [the brothers], and he desires [to marry] her, she is not considered to have "rebelled."36

Moreover, if one of the brothers was in another country, and the woman says: "I would prefer to wait for him to come and perform yibbum with me. I do not want [to marry] this one," she is not considered to have "rebelled." [Since] the brother who asks [to marry her] is not the eldest, we tell him: "If you desire to perform chalitzah and pay her [the money due her by virtue of her] marriage contract, you may.37 If not, she wants to wait until your brother comes. Since you do not have a prior claim, [she is granted that prerogative].38

יב

אָמַר הַגָּדוֹל אֵינִי רוֹצֶה לֹא לְיַבֵּם וְלֹא לַחֲלֹץ. הֲרֵי אַחַי לְפָנַיִךְ. וְתָבַע אוֹתָהּ אֶחָד מִן הָאַחִין לְיִבּוּם וְהִיא אֵינָהּ רוֹצָה בּוֹ וְרָצְתָה בְּאָח אַחֵר וְהוּא רוֹצֶה בָּהּ. אֵין זוֹ מוֹרֶדֶת מֵאַחַר שֶׁנִּסְתַּלֵּק הַגָּדוֹל שֶׁמִּצְוָה בּוֹ הֲרֵי כֻּלָּן שָׁוִין וְהוֹאִיל וְהִיא רוֹצָה בְּאֶחָד מֵהֶן וְהוּא רוֹצֶה בָּהּ הֲרֵי זֹאת לֹא מָרְדָה. וְלֹא עוֹד אֶלָּא אִם הָיָה אֶחָד מֵהֶן בִּמְדִינָה אַחֶרֶת וְאָמְרָה הֲרֵי אֲנִי מַמְתֶּנֶת אוֹתוֹ עַד שֶׁיָּבוֹא וִייַבֵּם אוֹתִי אֲבָל זֶה אֵינִי רוֹצָה בּוֹ אֵין זוֹ מוֹרֶדֶת. וְאוֹמְרִים לְזֶה שֶׁאֵינוֹ הַגָּדוֹל הַתּוֹבֵעַ אוֹתָהּ אִם תִּרְצֶה לַחֲלֹץ לָהּ וְלִתֵּן לָהּ כְּתֻבָּה חֲלֹץ. וְאִם לָאו הֲרֵי רָצְתָה שֶׁתֵּשֵׁב עַד שֶׁיָּבוֹא אָחִיךָ הוֹאִיל וְאֵין לְךָ דִּין קְדִימָה עָלָיו:

13

If the brother [whom the yevamah desired to marry] returned and did not desire [to marry] her, we turn again to the brother who desired to perform yibbum, but was not desired by the woman. We tell the woman: "There is no one who desires to perform yibbum with you except this one, and the mitzvah of yibbum is given priority. Either perform yibbum with this one, or leave without receiving [the money due because of your] marriage contract, as is the law with regard to all women who rebel."

יג

בָּא זֶה שֶׁתָּלְתָה בּוֹ וְלֹא רָצָה בָּהּ. חוֹזְרִין אֵצֶל זֶה שֶׁתָּבַע אוֹתָהּ לְיַבֵּם וְהִיא אֵינָהּ רוֹצָה בּוֹ. וְאוֹמְרִין לָהּ אֵין כָּאן מִי שֶׁרָצָה לְיַבֵּם אֶלָּא זֶה וּמִצְוַת יִבּוּם קוֹדֶמֶת. אוֹ תִּתְיַבֵּם לוֹ אוֹ תֵּצֵא בְּלֹא כְּתֻבָּה כְּדִין כָּל מוֹרֶדֶת:

14

Whenever the law is that a woman should perform chalitzah and not yibbum, as we have mentioned,39 if she is entitled to receive [the money due her by virtue of] her marriage contract,40she may collect that money in the same way as other widows.

Similarly, if the yavam was a leper or he has other blemishes [for which] men [are required to divorce],41 he must perform chalitzah for her, and she is entitled to receive [the money due her by virtue of] her marriage contract.

If a yevamah suffered blemishes while she was waiting for yibbum, it is the yavam's lack of fortune.42 If he does not desire to perform yibbum, he must perform chalitzah and give her [the money due her by virtue of] her marriage contract.

יד

כָּל יְבָמָה שֶׁאָמַרְנוּ שֶׁדִּינָהּ שֶׁתַּחֲלֹץ וְלֹא תִּתְיַבֵּם הֲרֵי זוֹ נוֹטֶלֶת כְּתֻבָּתָהּ אִם יֵשׁ לָהּ כְּתֻבָּה כִּשְׁאָר כָּל הָאַלְמָנוֹת. וְכֵן אִם הָיָה יְבָמָהּ מֻכֶּה שְׁחִין אוֹ שֶׁיֵּשׁ בּוֹ שְׁאָר מוּמֵי אֲנָשִׁים חוֹלֵץ לָהּ וְנוֹטֶלֶת כְּתֻבָּתָהּ. נוֹלְדוּ בָּהּ מוּמִין כְּשֶׁהִיא שׁוֹמֶרֶת יָבָם, נִסְתַּחֲפָה שָׂדֵהוּ. אִם לֹא רָצָה לְיַבֵּם יַחֲלֹץ וְיִתֵּן כְּתֻבָּה:

15

When, during her [first] husband's lifetime, a yevamah takes a vow prohibiting her from deriving benefit from her yavam,43 or from all Jews,44 [her yavam] should be compelled to perform chalitzah for her, and she is entitled to collect [the money due by virtue of] her marriage contract.45

If she takes such a vow after her [first] husband's death, we request46 [her yavam] to perform chalitzah for her.47 If he does not desire to do so, she is considered to have "rebelled."48Similarly, even if she took such a vow in her husband's lifetime, if her intent was that he should not perform yibbum with her,49 he is not compelled to perform chalitzah, unless she [accepts the status of] one who rebels and forfeits [payment of] her marriage contract.

טו

יְבָמָה שֶׁנָּדְרָה הֲנָיָה מִיבָמָהּ בְּחַיֵּי בַּעְלָהּ. אוֹ שֶׁנָּדְרָה הֲנָיָה מִכָּל הַיְּהוּדִים. כּוֹפִין אוֹתוֹ שֶׁיַּחֲלֹץ לָהּ וְתִטּל כְּתֻבָּתָהּ. וְאִם נָדְרָה לְאַחַר מִיתַת בַּעְלָהּ מְבַקְּשִׁים מִמֶּנּוּ שֶׁיַּחֲלֹץ לָהּ וְאִם לֹא רָצָה הֲרֵי זוֹ מוֹרֶדֶת. וְכֵן אִם נִתְכַּוְּנָה בְּנִדְרָהּ אֲפִלּוּ בְּחַיֵּי בַּעְלָהּ כְּדֵי שֶׁלֹּא יְיַבֵּם אוֹתָהּ אֵין כּוֹפִין אוֹתוֹ לַחֲלֹץ אֶלָּא אִם כֵּן מָרְדָה וְתֵצֵא בְּלֹא כְּתֻבָּה:

16

No heed is paid to the words of a yevamah, when her yavam asks her to perform chalitzah, and she says: "I do not want to perform chalitzah, nor do I want to collect [the money due me by virtue of my] marriage contract. Instead, I will remain in my husband's house like other widows."50 For she was given over to [the yavam] from heaven, and the choice [is his whether] to perform yibbum or to perform chalitzah51 and pay her [the money due her by virtue of her] marriage contract.

Moreover, even if she says "I will provide for my sustenance from my own means, and I will remain without a husband for the rest of my life,"52 her words are not heeded. For the yavam will tell her: "As long as you are under obligation to me, no one else will want to marry me."53 Even if he is already married [this argument still holds weight], for it is possible for him [to desire] to marry another wife, or that [his obligation to] the yevamah will cause strife within his marriage.54

טז

יְבָמָה שֶׁתְּבָעָהּ הַיָּבָם לַחֲלִיצָה וְהִיא אוֹמֶרֶת אֵינִי חוֹלֶצֶת וְלֹא נוֹטֶלֶת כְּתֻבָּה אֶלָּא אֵשֵׁב בְּבֵית בַּעְלִי וְכִשְׁאָר כָּל הָאַלְמָנוֹת אֵין שׁוֹמְעִין לָהּ. שֶׁהֲרֵי הִקְנוּ אוֹתָהּ לְזֶה מִן הַשָּׁמַיִם. רָצָה מְיַבֵּם רָצָה חוֹלֵץ וְנוֹתֵן כְּתֻבָּה. וְלֹא עוֹד אֶלָּא אֲפִלּוּ אָמְרָה אֲנִי נִזּוֹנֶת מִשֶּׁלִּי וְאֵשֵׁב עֲגוּנָה כָּל יְמֵי חַיַּי אֵין שׁוֹמְעִין לָהּ. שֶׁהֲרֵי הַיָּבָם אוֹמֵר לָהּ כָּל זְמַן שֶׁאַתְּ זְקוּקָה לִי אֵין נוֹתְנִין לִי אִשָּׁה אַחֶרֶת. וַאֲפִלּוּ הָיָה נָשׂוּי אֶפְשָׁר שֶׁיִּשָּׂא אִשָּׁה אַחֶרֶת אוֹ תִּהְיֶה לוֹ מְרִיבָה בְּתוֹךְ בֵּיתוֹ מִפְּנֵי הַיְבָמָה:

17

[The following rules apply when] a yevamah had no right to the privileges of a marriage contract from her [deceased] husband, because she was forbidden to him, but she is permitted to marry the yavam, as will be explained.55 If the yavam desires to perform yibbum, he may. He is not obligated to the woman [for the privileges of her] marriage contract, just as her [previous] husband was not.56 The laws regarding the yavam's obligation for the additional amount to be paid the woman are the same as those that applied with regard to her husband.57

If, however, a husband did not write his wife a marriage contract, or she sold him or waived to him the rights to her marriage contract, the yavam is obligated to write a new marriage contract for her as he would be required for another widow.58

יז

יְבָמָה שֶׁלֹּא הָיָה לָהּ עַל בַּעְלָהּ כְּתֻבָּה מִפְּנֵי שֶׁהָיְתָה אֲסוּרָה עָלָיו וַהֲרֵי הִיא מֻתֶּרֶת לַיָּבָם כְּמוֹ שֶׁיִּתְבָּאֵר. אִם רָצָה הַיָּבָם לְיַבֵּם מְיַבֵּם וְאֵין לָהּ עָלָיו כְּתֻבָּה כְּדֶרֶךְ שֶׁלֹּא הָיָה לָהּ עַל בַּעְלָהּ. וְדִינָהּ עִם יְבָמָהּ בַּתּוֹסֶפֶת כְּמוֹ שֶׁהָיְתָה עִם בַּעְלָהּ. אֲבָל אִם לֹא כָּתַב לָהּ בַּעְלָהּ כְּתֻבָּה אוֹ שֶׁמָּכְרָה לוֹ כְּתֻבָּתָהּ אוֹ מָחֲלָה אוֹתָהּ צָרִיךְ הַיָּבָם לִכְתֹּב לָהּ כְּתֻבָּה כִּשְׁאָר הָאַלְמָנוֹת:

18

Before the yavam performs yibbum or chalitzah with the yevamah, she is forbidden to marry another man,59 as [Deuteronomy 25:5] states: "the wife of the deceased should not be allowed to [marry] an outsider."

If she marries another person,60 and they engage in sexual relations, they are both punished by lashes,61 and he must divorce her with a get. [This applies] even if she has borne him several children.62 She is forbidden to him and to her yavam.63Her yavam should perform chalitzah with her; this causes her to be permitted to marry other men.

יח

הַיְבָמָה קֹדֶם שֶׁיָּבוֹא עָלֶיהָ יְבָמָהּ אוֹ קֹדֶם שֶׁיַּחֲלֹץ לָהּ הֲרֵי הִיא אֲסוּרָה לְהִנָּשֵׂא לְזָר שֶׁנֶּאֱמַר (דברים כה ה) ״לֹא תִהְיֶה אֵשֶׁת הַמֵּת הַחוּצָה לְאִישׁ זָר״‎‎. וְאִם נִשֵּׂאת לְאַחֵר וּבָעַל לוֹקֶה הוּא וְהִיא וּמוֹצִיאָהּ בְּגֵט. וַאֲפִלּוּ הָיוּ לוֹ כַּמָּה בָּנִים מִמֶּנָּה. וְנֶאֶסְרָה עָלָיו וְעַל יְבָמָהּ. וִיבָמָהּ חוֹלֵץ לָהּ וְאַחַר כָּךְ תִּהְיֶה מֻתֶּרֶת לַאֲחֵרִים:

19

If she was consecrated by another man, she does not become forbidden to her yavam. Instead, the man who consecrated her should divorce her, and her yavam may perform either yibbum or chalitzah.64

If her yavam was a priest who is forbidden to marry a divorcee, she should be divorced by the man who consecrated her, so that the sinner should not benefit, and her yavam should perform chalitzah with her.65

יט

נִתְקַדְּשָׁה לְאַחֵר לֹא נֶאֶסְרָה עַל יְבָמָהּ אֶלָּא נוֹתֵן לָהּ הַזָּר שֶׁקִּדְּשָׁהּ גֵּט וִיבָמָהּ מְיַבֵּם אוֹ חוֹלֵץ. וְאִם הָיָה יְבָמָהּ כֹּהֵן שֶׁאֵינוֹ יָכוֹל לִשָּׂא גְּרוּשָׁה תֵּצֵא מִן הַזָּר בְּגֵט כְּדֵי שֶׁלֹּא יְהֵא הַחוֹטֵא נִשְׂכָּר. וְיַחֲלֹץ לָהּ יְבָמָהּ:

20

If the man who consecrated [the yevamah] and then divorced her, marries her [after] her yavam performs chalitzah with her, they are not forced to separate.66 If, by contrast, a man divorced [a yevamah] after being married to her and then remarried her again, the couple are forced to separate. For this resembles the case of a married woman who [thought that her husband had died and] remarried, who is forbidden to both her first and second husbands, as has been explained.67

A yevamah who engages in licentious sexual relations does not become forbidden to her yavam.68 If he desires, he may perform chalitzah; if he desires, he may perform yibbum.

כ

חָזַר הַזָּר שֶׁגֵּרְשָׁהּ מִן הָאֵרוּסִין וּנְשָׂאָהּ אַחַר שֶׁחָלַץ לָהּ יְבָמָהּ אֵין מוֹצִיאִין אוֹתָהּ מִיָּדוֹ. אֲבָל אִם גֵּרְשָׁהּ מִן הַנִּשּׂוּאִין וְחָזַר וּנְשָׂאָהּ אַחַר שֶׁחָלְצָה מוֹצִיאִין אוֹתָהּ מִיָּדוֹ מִפְּנֵי שֶׁהִיא דּוֹמָה לְאֵשֶׁת אִישׁ שֶׁנִּשֵּׂאת וּבָא בַּעְלָהּ שֶׁהִיא אֲסוּרָה עַל זֶה וְעַל זֶה כְּמוֹ שֶׁבֵּאַרְנוּ. וְהַיְבָמָה שֶׁזִּנְּתָה וְהִיא זְקוּקָה לֹא נֶאֶסְרָה עַל יְבָמָהּ אֶלָּא רָצָה חוֹלֵץ רָצָה מְיַבֵּם:

21

[The following rules apply to] any yevamah concerning whom there is a question according to Rabbinic law whether or not she is under obligation to a yavam - e.g., a yevamah bore a child who died within thirty days, after a pregnancy that was not full term. In this instance, she is required by Rabbinic law to perform chalitzah, because of the doubt [that exists whether the birth was viable], as explained above.69 If such a woman was consecrated by another man before performing chalitzah, her yavam should perform chalitzah with her, and she may remain married to her husband.70

If she was consecrated by a priest - who is forbidden to be married to a woman who performed chalitzah - [her yavam] should not perform chalitzah for her.71 [This leniency was instituted] since we do not cause a man's wife to be forbidden because of a Rabbinic decree instituted on account of doubt.72

If the priest divorces [the woman] or dies, she should perform chalitzah.73 Afterwards, she is permitted, a priori, to marry other men.

כא

כָּל יְבָמָה שֶׁהִיא סָפֵק מִדִּבְרֵיהֶם אִם יֵשׁ עָלֶיהָ זִקַּת יָבָם אוֹ אֵין עָלֶיהָ זִקַּת יָבָם. כְּגוֹן יְבָמָה שֶׁיָּלְדָה וָלָד שֶׁלֹּא כָּלוּ לוֹ חֳדָשָׁיו וּמֵת בְּתוֹךְ שְׁלֹשִׁים יוֹם שֶׁדִּינָהּ שֶׁתַּחֲלֹץ מִסָּפֵק מִדִּבְרֵיהֶם כְּמוֹ שֶׁבֵּאַרְנוּ. אִם הָלְכָה וְנִתְקַדְּשָׁה לְאַחֵר קֹדֶם חֲלִיצָה חוֹלֵץ לָהּ יְבָמָהּ וְתֵשֵׁב עִם בַּעְלָהּ. וְאִם נִתְקַדְּשָׁה לְכֹהֵן שֶׁהוּא אָסוּר בַּחֲלוּצָה אֵינוֹ חוֹלֵץ לָהּ. שֶׁאֵין אוֹסְרִין עַל זֶה אִשְׁתּוֹ מִשּׁוּם סְפֵק דִּבְרֵיהֶן. גֵּרְשָׁהּ הַכֹּהֵן אוֹ מֵת הֲרֵי זוֹ חוֹלֶצֶת וְאַחַר כָּךְ מֻתֶּרֶת לַאֲחֵרִים לְכַתְּחִלָּה:

Footnotes
1.

A ma'amar can also be effected with a sh'tar, a legal document (Maggid Mishneh).

From Yevamot 52a it would appear that this practice was instituted as an expression of modesty. Just as with regard to marriage, although it is acceptable to consecrate a woman through sexual relations according to Scriptural law, our Rabbis ordered a ban of ostracism to be placed on a person who does so; so too, with regard to yibbum, they required that the man designate the woman as his wife before entering into marital relations with her.

2.

The word ma'amar means "statement." The Tosefot Yom Tov explains that the term was chosen because the yavam must make a statement of intent. Rav Kapach offers an alternative interpretation, citing Deuteronomy 26:17,18, which uses the root אמר to mean "designate," or "declare allegiance to."

3.

See Chapter 5, Halachot 2-3.

The standard printed text of the Mishneh Torah continues "as does sexual relations." Nevertheless, authoritative manuscripts and early printings of the Mishneh Torah do not contain this addition. Based on that version, Rav Kapach explains that the comparison may be, not to sexual relations with a yevamah, but rather to the effectiveness of the transfer of money in ordinary kiddushin.

4.

See Hilchot Ishut 4:1.

5.

If the minor's marriage is consummated, she leaves her father's authority and acts independently. As long as she is merely consecrated, however, she is under her father's authority. See Hilchot Ishut 3:11-12.

6.

See Hilchot Ishut 10:3 for the text of these blessings. The Ramah (Even HaEzer 166:2) states that the ceremony of chuppah should also be performed, and the Ma'aseh Rokeach adds that Birkat Erusin (Hilchot Ishut 3:23) should be recited.

7.

The text of the ketubah to be composed by the yavam appears in Chapter 4, Halachah 32.

8.

The fact that he disobeyed our Sages' wishes does not cause his deed to lose its effectiveness.

9.

The punishment given for disobeying a Rabbinic ordinance. See Hilchot Ishut 3:21.

10.

Note the Shulchan Aruch (Even HaEzer 166:9), which cites a minority opinion that differentiates between whether the yevamah had been married to her first husband or merely consecrated by him. In the latter instance, she must be consecrated a second time.

11.

Our translation is based on Rashi's gloss, Yevamot 53b.

12.

Although it is improper for a husband to engage in relations with his wife when she is asleep, this does not negate the effectiveness of the yavam's act.

13.

The purpose of yibbum is to "perpetuate the name of his brother" (Deuteronomy 25:7) - i.e., to conceive progeny. Although this objective cannot be achieved through anal intercourse, it is still an effective means of acquisition. Since both the man and the woman are capable of conceiving children, the fact that they cannot accomplish that through this sexual act does not detract from its effectiveness (Beit Shmuel 166:6).

14.

Our translation is based on Hilchot Issurei Bi'ah 1:10.

15.

Note the Or Sameach, who questions this ruling based on the Jerusalem Talmud (Yevamot 6:1, quoted by the Rambam in Chapter 6, Halachah 3), which states that when a mentally incompetent person performs yibbum, his act is binding. The Or Sameach explains that a mentally incompetent person may have the intent to engage in sexual relations. In this instance, however, the person has lost control of his faculties to the extent that he has no intent whatsoever.

16.

For masturbation is not considered to be sexual relations.

17.

For sodomy is considered to be a forbidden form of relations.

18.

Since it is within 30 days, we accept the possibility that the yavam did not engage in relations with her, and compel him to perform chalitzah so the yevamah can remarry another man (Yevamot 111b).

19.

And remain married to her.

20.

Since he brought her home as his wife, even if he agrees that they did not engage in relations, he is required to divorce her, because it is likely that they did engage in relations (Maggid Mishneh; Ramah, Even HaEzer 167:6). Nevertheless, since she claims that they did not, and there is plausibility to her claim, he is also required to perform chalitzah.

21.

After a couple have lived together for thirty days, we assume that they have engaged in relations, for a man will not restrain himself any longer. Hence, the man cannot be compelled to perform chalitzah (Yevamot, ibid.). Nevertheless, we ask him to perform this rite, for otherwise the woman will not be permitted to remarry.

22.

He has nothing to lose in this concern, for since he divorced her without entering into relations with her, he is no longer permitted to fulfill the mitzvah of yibbum. Therefore, he should fulfill the mitzvah of chalitzah so that she can remarry.

23.

According to the simple meaning of the verse, the subject is - as reflected in our translation - the yevamah. Nevertheless, in a halachic context, it is possible for one verse to have several interpretations. Accordingly, Yevamot 2:8 (see the Rambam's Commentary on the Mishnah) interprets this verse to be referring to the deceased's mother. (See also Yevamot 24a, quoted in Chapter 6, Halachah 8, which considers the yevamah the subject of the phrase in a different halachic context.)

24.

See Halachah 12.

25.

Although the Rambam maintains that the mitzvah of yibbum takes priority over the mitzvah of chalitzah, we cannot compel a man to wed a woman with whom he does not desire to live.

26.

For until this mitzvah is performed, the yevamah may not remarry.

27.

I.e., the yevamah should not be subjected to an unnecessary delay, if possible.

28.

When stating this law, the Shulchan Aruch (Even HaEzer 161:5) uses the expression "an overseas country." The Beit Shmuel 161:6 cites the expression used by the Rambam and explains that it refers to a country in which a different language is spoken, even if it is relatively close. He cites a ruling of Mahari Mintz, which states that if the eldest brother is in another city, and the yevamah does not have the funds to pay for travel there, the younger brother can be compelled to perform the mitzvah. (Kin'at Eliyahu notes that the Rambam often uses the word medinah to mean metropolis. He questions whether that is the Rambam's intent here.)

29.

Here also, the intent is not to subject the yevamah to an unnecessary delay.

30.

I.e., there is no halachic reason preventing her from doing so.

31.

See Hilchot Ishut 14:8, which states that a woman who refuses to engage in marital relations because she is repelled by her husband, should be divorced by her husband, because "she is not like a captive, [to be forced] to engage in relations with someone she loathes." She does, however, forfeit the money due her by virtue of her marriage contract and any presents that her husband gave her. As mentioned in the notes on Hilchot Ishut, the Shulchan Aruch (Even HaEzer 77:2) follows a different perspective with regard to this ruling.

There is also a difference of opinion among the authorities whether a woman who refuses to engage in yibbum is considered to have "rebelled." As mentioned in the notes on Chapter 1, Halachah 2, the Ashkenazic authorities maintain that the mitzvah of chalitzah takes precedence over the mitzvah of yibbum. Therefore, they maintain that a woman has the right to refuse to engage in yibbum, and she is not judged to have "rebelled" for this reason.

32.

The Shulchan Aruch (Even HaEzer 77:2) differs with the Rambam and maintains that a husband should not be compelled to divorce a woman who "rebels." According to that perspective, a yavam should also not be compelled to perform chalitzah.

According to the Ramah (Even HaEzer 165:1), who favors chalitzah, when a yavam desires to perform yibbum and the yevamah refuses, the yavam cannot be compelled by force to perform chalitzah. He should, however, be convinced to do so. Note the gloss of the Beit Shmuel 165:1, which discusses this ruling in detail.

All authorities agree that if the yavam is one of the individuals considered unfit to marry (see Halachah 14), he should be compelled to perform chalitzah.

33.

This applies even if one of the other women would be willing to marry the yavam; the choice is his and not hers.

34.

The Maggid Mishneh explains that the woman must either consent to yibbum or be considered to have "rebelled."

35.

The Ra'avad and others differ with the Rambam on this point and maintain that if the eldest brother demurs, the prerogative is given to the brother who is next in the order of age. This perspective is followed by the Shulchan Aruch (Even HaEzer 161:4).

36.

If, however, the brother she desires to marry does not desire to marry her, she is considered to have "rebelled," as stated in the following halachah.

37.

Although, according to the Rambam, the mitzvah of yibbum takes priority over the mitzvah of chalitzah, this is the case only when yibbum can be performed immediately. In this instance, this brother is not forced to wait until his other brother returns, for having the obligation to perform yibbum or chalitzah is a detriment to a man, as stated in Halachah 16 (Rav David Arameah).

38.

Generally, the court makes an effort to have the mitzvah of yibbum or chalitzah performed as soon as possible, as reflected in Halachot 8 and 9. This, however, is a measure of consideration for the woman, so that she will not be forced to remain without a husband. In this instance, it is she who desires the delay. Hence, she is given that prerogative (Or Sameach).

39.

See Chapter 1, Halachah 5. (See also Chapter 3, Halachot 4, 13-14 and Chapter 6, Halachah 7.)

40.

I.e., her first husband or his estate would have had to pay her the money due her by virtue of her marriage contract.

41.

He has constant bad breath or a smell coming from his nose, or he works as a copper miner, a tanner, or a collector of dog feces, as stated in Hilchot Ishut 25:11.

42.

A man is entitled to divorce his wife if he discovers that she possessed physical blemishes that mar her appeal before her marriage, and he is not required to pay her the money due her by virtue of her marriage contract, as stated in Hilchot Ishut 7:8, 25:2. Nevertheless, in this instance this law does not apply, because the connection between the yavam and the yevamah begins directly after her first husband's death.

43.

I.e., she took a vow not to benefit from the yavam in her husband's lifetime for other reasons, without the explicit intent that she would free herself from obligation to him.

44.

I.e., the woman took a vow not to benefit from any Jews. Although that vow did not take effect with regard to her husband, once her husband died it takes effect with regard to the yavam.

45.

She is not allowed to marry the yavam, because she will derive benefit from him and thus break her vow. Nor is she considered to be a woman who rebels, because her vow was not taken to free her from the obligation of yibbum. (See Yevamot 112a.)

46.

Since the vow was taken specifically to free her from the obligation of yibbum, the yavam is not obligated to respect it.

47.

If he agrees and performs chalitzah willingly, he is obligated to pay her the money due by virtue of her marriage contract.

48.

In which case he is compelled to perform chalitzah with her, but is not required to pay her the money due by virtue of her marriage contract, as stated in Halachah 10.

49.

Moreover, even if we are unsure of the woman's intent when taking the vow, we assume that she desired to free herself from the obligation of yibbum.

50.

As stated in Hilchot Ishut 18:1-2, a widow is entitled to live in her deceased husband's home and derive her livelihood from his estate until she remarries.

51.

The Kiryat Sefer explains that just as a man can divorce his wife against her will, so too, a yavam can perform chalitzah with his yevamah against her will. Even if she desires yibbum, she can be compelled to perform chalitzah. The Maggid Mishneh cites certain authorities who differ with the Rambam and maintain that since the mitzvah of yibbum takes priority, the yevamah cannot be forced to perform chalitzah.

52.

I.e., she is willing to forego the obligation of her husband's estate to her.

53.

For as long as there is the possibility that the yavam will marry the yevamah, other women will hesitate to marry him, for no woman would like to share her husband with another woman.

54.

Hence, the woman is compelled to perform chalitzah.

If neither the yevamah nor the yavam desires to perform chalitzah, the court is under no obligation to see that the mitzvah is performed. Although the Zohar, Volume III, page 180a, explains that chalitzah brings about benefit for the deceased's soul, neither his brother nor his wife has a binding obligation to perform this act on his behalf. If they desire to, they may, but they cannot be compelled to do so. (See the Responsa of the Chatam Sofer, Even HaEzer, Volume II, Responsum 85.)

55.

See Chapter 6, Halachah 13.

56.

The Maggid Mishneh quotes the Ramban and the Rashba as saying that if the yavam desires to divorce the yevamah immediately, he is not required to pay her the money due her by virtue of her marriage contract. If, however, he desires to remain married to the woman, he must write a marriage contract for her, for it is forbidden for a man to remain married to a woman without a marriage contract, as stated in Hilchot Ishut 10:10. The Ramah (Even HaEzer 168:9) quotes this interpretation.

The Maggid Mishneh notes that this interpretation does not fit the Rambam's wording. In that light, the Or Sameach offers the following interpretation: The yavam is never obligated to write a marriage contract for the yevamah. Why did our Sages require a man to write a marriage contract for his wife? So that there would be a financial responsibility attached to divorce, and hence a husband would not consider it to be a light matter. In this instance, the yavam is held responsible for the additional amount that the husband added to the marriage contract. Hence, there is financial responsibility attached to divorce, and there is no imperative for a further obligation.

57.

As mentioned in Hilchot Ishut 24:2-3, although her husband is not obligated for the fundamental requirement of the marriage contract, he is obligated for the additional amount that he promised her. This obligation is transferred to the yavam.

58.

The yavam is not, however, obligated to write a marriage contract equivalent to the one that the woman's first husband gave her. It is sufficient that he write her a marriage contract for 100 zuz, as explained in Hilchot Ishut 22:14.

59.

Both Sefer HaMitzvot (Negative Commandment 357) and Sefer HaChinuch (Mitzvah 596) include this as one of the Torah's 613 commandments.

60.

This applies even if she married without knowing of the existence of the yavam (Shulchan Aruch, Even HaEzer 159:2).

61.

If, however, the couple do not engage in relations, they are not punished with lashes.

62.

The children are not, however, considered illegitimate. See Hilchot Issurei Bi'ah 15:1-2.

63.

I.e., she is compared to a woman who engages in relations with another man while married. See Hilchot Gerushin 10:7.

She becomes forbidden to both men, even though she claims not to have engaged in sexual relations with her second husband (Kessef Mishneh; Ma'aseh Rokeach; see Hilchot Issurei Bi'ah 19:3).

64.

The Shulchan Aruch (Even HaEzer 159:1) states that this law applies even when the man consecrates her without knowing of the existence of the yavam. The Beit Shmuel 159:1 differs and cites the opinion of the Rashba and the Ramban, who maintain that in such an instance, if the yavam desires to perform chalitzah, the woman may remain married to her second husband.

65.

I.e., one might think that since the yavam cannot perform yibbum with her, she should be allowed to remain married to her second husband. If so, however, the man's transgression - marrying the yevamah - will have brought him benefit. Hence, he is required to divorce her (Yevamot 92b).

66.

The rationale is that since the prohibition is merely a disciplinary measure, if the couple marry again they may remain married (Maggid Mishneh).

The Ramah (Even HaEzer 159:1) states that if the second husband knew of the existence of the yavam and consecrated the woman anyway, he is forbidden to remain married to her, even if he remarried her after chalitzah.

67.

See Hilchot Gerushin 10:5,7).

68.

The Ramah (Even HaEzer 159:3) states that she does, however, become forbidden to the man with whom she engaged in relations. Even if her yavam performs chalitzah, the two may not marry.

69.

This refers to an instance where the child's physical appearance indicates that the birth was viable. Therefore, the woman is not required to perform chalitzah according to Scriptural law. Nevertheless, because the pregnancy was not full term, our Sages required chalitzah, as explained in Chapter 1, Halachah 5.

70.

I.e., we do not force the couple to divorce, as in the previous halachah.

71.

In his gloss on the Shulchan Aruch (Even HaEzer 164:7), Rabbi Akiva Eiger states that this leniency applies only when the priest consecrated the woman without knowing of her obligation to perform chalitzah. If he knew of her obligation and consecrated her nonetheless, the couple are not permitted to remain married.

72.

The Ramah (Even HaEzer 164:7) states that similar laws apply when a yevamah was consecrated by an Israelite, and her yavam is abroad and cannot perform chalitzah for her.

73.

I.e., the leniency is granted to the priest, because it is necessary and not to other men.

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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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