Yibbum vChalitzah - Chapter Three

1When a man says: “This is my son,” or “I have sons,” his word is accepted,1 and he frees his wife from the obligation of yibbum or chalitzah.אהָאוֹמֵר 'זֶה בְּנִי', אוֹ שֶׁאָמַר 'יֵשׁ לִי בָּנִים' - הֲרֵי זֶה נֶאֱמָן, וּפוֹטֵר אֶת אִשְׁתּוֹ מִן הַחֲלִיצָה וּמִן הַיִּבּוּם.

2When2 a man says: “This is my brother,” or “I have brothers,” his word is not accepted, and his wife does not become forbidden to others because she is required to perform yibbum. We assume that his intent was to cause his wife to be forbidden to other men after his death.באָמַר 'זֶה אָחִי', אוֹ שֶׁאָמַר 'יֵשׁ לִי אַחִין' - אֵינוֹ נֶאֱמָן לֶאֱסֹר אִשְׁתּוֹ וּלְהַנִּיחָהּ זְקוּקָה לַיָּבָם; שֶׁהֲרֵי זֶה מִתְכַּוֵּן לְאָסְרָהּ לְאַחַר מוֹתוֹ.

3When the prevailing presumption is that a man has brothers and he says at the time of his death,3 “I do not have brothers,” his word is not accepted.4 Similarly, if he says that a person presumed to be his brother is not his brother, his word is not accepted. If there was no prevailing presumption that he has brothers, but a rumor becomes circulated5 that there are witnesses who will testify that he has brothers, but these witnesses are overseas, the woman must take this factor into consideration and wait until the witnesses who were mentioned come, and are asked concerning the matter. This ruling applies even when the husband says, “I do not have a brother” at the time of his death.גהָיָה מֻחְזָק שֶׁיֵּשׁ לוֹ אַחִין, וְאָמַר בִּשְׁעַת מִיתָתוֹ 'אֵין לִי אַחִין' - אֵינוֹ נֶאֱמָן; וְכֵן אִם אָמַר עַל מִי שֶׁהֻחְזַק אָחִיו 'אֵין זֶה אָחִי' - אֵינוֹ נֶאֱמָן. לֹא הָיָה מֻחְזָק בְּאַחִין, וְיָצָא עָלֶיהָ קוֹל שֶׁיֵּשׁ שָׁם עֵדִים שֶׁיָּעִידוּ שֶׁיֵּשׁ לְבַעְלָהּ אַחִין, וְהָעֵדִים בִּמְדִינָה אַחֶרֶת, אַפִלּוּ אָמַר הוּא בִּשְׁעַת מִיתָתוֹ 'אֵין לִי אָח' - הֲרֵי זוֹ חוֹשֶׁשֶׁת, וְתַמְתִּין עַד שֶׁיָּבוֹאוּ הָעֵדִים שֶׁאָמְרוּ וְיִשָּׁאֲלוּ.

4The following rules apply when a man engaged in licentious relations with either a single woman or a married woman, she became pregnant, and he claims that he fathered the child. Even if the mother acknowledges his statements, and thus the son is considered his with regard to the laws of inheritance,6 the matter is considered to be one of doubt with regard to the laws of yibbum. For just as the woman engaged in relations with him, she could have engaged in relations with another man.7 How is it possible to know with certainty that this is his son? There is no prevailing presumption to that effect. The matter thus remains one of doubt, and the more stringent perspective should be taken. Hence, his wife is obligated to perform chalitzah,8 and she is forbidden to perform yibbum.9 דמִי שֶׁזִּנָּה עִם אִשָּׁה, בֵּין פְּנוּיָה בֵּין אֵשֶׁת אִישׁ, וְנִתְעַבְּרָה, וְאָמַר 'זֶה הָעֻבָּר מִמֶּנִּי הוּא', וְאַפִלּוּ הִיא מוֹדָה לוֹ - אַף עַל פִּי שֶׁהוּא בְּנוֹ לְעִנְיַן יְרֻשָּׁה - הֲרֵי זֶה סָפֵק לְעִנְיַן יִבּוּם. כְּשֵׁם שֶׁזִּנְּתָה עִמּוֹ כָּךְ זִּנְּתָה עִם אַחֵר, וּמֵאַיִן יִוָּדַע הַדָּבָר שֶׁזֶּה בְּנוֹ וַדַּאי, וַהֲרֵי אֵין לוֹ חֲזָקָה, אֶלָא לְעוֹלָם סָפֵק הוּא, וּלְהַחְמִיר דָּנִין בּוֹ - וְחוֹלֶצֶת, וְלֹא מִתְיַבֶּמֶת.

5The testimony of one witness is accepted with regard to the death of a woman’s husband, and she may perform yibbum on this basis. Similarly, such testimony is acceptable if he states that her yavam died,10 or that her husband fathered a son,11 on which basis she would be granted permission to marry another person without chalitzah. Even the testimony of a servant or a woman, or statements of a gentile made in the midst of conversation are acceptable with regard to the death of a yavam, as they are acceptable with regard to a married woman whose husband has died, to enable her to be permitted to remarry, as mentioned in Hilchot Gerushin.12 הנֶאֱמָן עֵד אֶחָד לְהָעִיד לִיבָמָה שֶׁמֵּת בַּעְלָהּ, וּמִתְיַבֶּמֶת עַל פִּיו; אוֹ שֶׁמֵּת יְבָמָהּ, אוֹ שֶׁנִּתַּן לְבַעְלָהּ בֵּן לְהַתִּירָהּ לְזָר. וְאַפִלּוּ עֶבֶד, אוֹ אִשָּׁה, אוֹ גּוֹי מֵסִיחַ לְפִי תֻּמּוֹ - מֵעִיד בְּמִיתַת הַיָּבָם, כְּמוֹ שֶׁמֵּעִיד לְאֵשֶׁת אִישׁ לְהַתִּירָהּ, כְּמוֹ שֶׁבֵּאַרְנוּ בְּהִלְכוֹת גֵּרוּשִׁין.

6Just as the statements of five specific women are not accepted with regard to testimony regarding the death of a woman’s husband,13 so too, the statements of these five women are not accepted with regard to the death of her yavam. The laws of the testimony governing the death of a yavam are the same as the testimony governing the death of the woman’s husband with regard to disparities between the statements of the witnesses and all other matters.ווְחָמֵשׁ הַנָּשִׁים שֶׁאֵין מְעִידוֹת זוֹ לְזוֹ שֶׁמֵּת בַּעְלָהּ, כָּךְ אֵין מְעִידִין לָהּ שֶׁמֵּת יְבָמָהּ. וְדִין עֵדוּת זוֹ כְּדִין אוֹתָהּ עֵדוּת, לְעִנְיַן עֵדִים שֶׁמַּכְחִישִׁין זֶה אֶת זֶה בְּמִיתַת הַיָּבָם, וּלְכָל דָּבָר.

7The following rule applies when two widows, each one married to one of two brothers,14 come from an overseas country, this one says: “My husband died,” and this one says: “My husband died.” Each one is forbidden to remarry because of her obligation to the husband of the other one.15 For the testimony of a yevamah is not acceptable with regard to the death of the woman’s yavam, as stated in the previous halachah.זשְׁתֵּי יְבָמוֹת שֶׁבָּאוּ מִמְּדִינַת הַיָּם, זוֹ אוֹמֶרֶת 'מֵת בַּעְלִי', וְזוֹ אוֹמֶרֶת 'מֵת בַּעְלִי' - זוֹ אֲסוּרָה מִפְּנֵי בַּעְלָהּ שֶׁל זוֹ, וְזוֹ אֲסוּרָה מִפְּנֵי בַּעְלָהּ שֶׁל זוֹ; שֶׁאֵין יְבִמְתָּהּ נֶאֱמֶנֶת לְהָעִיד לָהּ שֶׁמֵּת יְבָמָהּ, כְּמוֹ שֶׁאָמַרְנוּ.

8If one of these women has a witness who can testify that her husband died, she is still forbidden to remarry - for she is not forbidden to remarry because of an apprehension that her own husband is alive, but rather because of the apprehension that her yavam is alive.16 חהָיָה לְאַחַת מֵהֶן עֵד שֶׁמֵּת בַּעְלָהּ - זוֹ שֶׁיֵּשׁ לָהּ הָעֵד עוֹמֶדֶת בְּאִסּוּרָהּ, שֶׁאֵינָהּ אֲסוּרָה מִפְּנֵי בַּעְלָהּ אֶלָא מִפְּנֵי יְבָמָהּ.

The woman who does not have a witness supporting her, by contrast, is permitted to remarry, for a witness has testified that her yavam died, and her own testimony is accepted with regard to the death of her husband.17 וְזוֹ שֶׁאֵין לָהּ עֵד, מֻתֶּרֶת, שֶׁהֲרֵי הָעֵד הֵעִיד שֶׁמֵּת יְבָמָהּ, וְהִיא נֶאֱמֶנֶת לוֹמַר 'מֵת בַּעְלִי'.

9If one of the above-mentioned women has children, and the other is childless,18 the one who is childless is forbidden to remarry,19 and the one who has children is permitted.20 If there is another living brother to perform yibbum,21 he should perform yibbum with both of them.טהָיָה לְזוֹ בָּנִים, וּלְזוֹ אֵין בָּנִים - זוֹ שֶׁאֵין לָהּ בָּנִים אֲסוּרָה, וְזוֹ שֶׁיֵּשׁ לָהּ בָּנים מֻתֶּרֶת. הָיָה לָהֶן יָבָם אַחַר כָּאן, הֲרֵי זֶה מְיַבֵּם לִשְׁתֵּיהֶן.

10If in the latter instance, the yavam who married them died, they are forbidden to marry another man as they were originally.22 If, however, the yavam married them and then divorced them, they are free to marry other men.23 ימֵת זֶה הַיָּבָם שֶׁיִבֵּם אוֹתָן - אֲסוּרוֹת לְהִנָּשֵׂא לְזָר, כְּשֶׁהָיוּ בַּתְּחִלָּה. נִתְיַבְּמוּ וְנִתְגָּרְשׁוּ, הֲרֵי אֵלּוּ מֻתָּרוֹת לְזָר.

11A woman’s testimony is accepted with regard to the death of her husband, and she may marry another man or perform yibbum on this basis. Nevertheless, the testimony of a yevamah is not accepted with regard to the death of her yavam, and it is not considered to be sufficient basis for her to marry another man. The rationale is that the prohibition against marrying another man when under obligation to a yavam involves merely a negative commandment.24 And therefore the woman may regard it casually.25יאאַף עַל פִּי שֶׁהָאִשָּׁה נֶאֱמֶנֶת לוֹמַר 'מֵת בַּעְלִי', וְתִנָּשֵׂא אוֹ תִּתְיַבֵּם, אֵין הַיְּבָמָה נֶאֱמֶנֶת לוֹמַר 'מֵת יְבָמִי', שֶׁתִּנָּשֵׂא לְזָר; הוֹאִיל וְהוּא אִסּוּר לָאו, שֶׁמָּא יִהְיֶה קַל בְּעֵינֶיהָ.

Similarly, the testimony of a yavam is not accepted with regard to the death of his brother, and it is not considered to be sufficient basis for him to marry his brother’s wife. We fear that perhaps he desired her.וְכֵן אֵין הַיָּבָם נֶאֱמָן לוֹמַר 'מֵת אָחִי', שֶׁיְּיַבֵּם אֶת אִשְׁתּוֹ - שֶׁמָּא עֵינָיו נָתַן בָּהּ.

Similarly, a woman’s testimony is not accepted with regard to the death of her sister, and it is not considered to be sufficient basis for her to be permitted to marry her sister’s husband.26 By the same token, a man’s testimony that his wife has died is not accepted as sufficient basis for him to marry her sister. In this instance, it is necessary that two witnesses testify that one sister has died before the other sister can enter her household. For the testimony of one witness was accepted only so that license to marry could be granted to a woman who would otherwise be forced to remain unmarried, as we have explained.27 וְאֵין הָאִשָּׁה נֶאֱמֶנֶת לוֹמַר 'מֵתָה אֲחוֹתִי', שֶׁתִּכָּנֵס לְבֵיתָהּ, וְאֵין הָאִישׁ נֶאֱמָן לוֹמַר 'מֵתָה אִשְׁתִּי', שֶׁיִּשָּׂא אֶת אֲחוֹתָהּ, עַד שֶׁיָּעִידוּ שְׁנֵי עֵדִים שֶׁמֵּתָה אֲחוֹתָהּ, וְאַחַר כָּךְ תִּכָּנֵס לְבֵיתָהּ; שֶׁלֹּא הֶאֱמִינוּ עֵד אֶחָד אֶלָא מִשּׁוּם הַתָּרַת עֲגֻנָּה כְּמוֹ שֶׁבֵּאַרְנוּ.

12Accordingly,28 when a woman, her husband and her yavam journey overseas, and she comes and says: “My husband died, and afterwards my yavam died,” or “My yavam died, and then my husband died,” her word is not accepted.29יבלְפִיכָךְ הָאִשָּׁה שֶׁהָלְכָה הִיא וּבַעְלָהּ וִיבָמָהּ לִמְדִינַת הַיָּם, וּבָאָה וְאָמְרָה 'מֵת בַּעְלִי וְאַחַר כָּךְ מֵת יְבָמִי' אוֹ שֶׁאָמְרָה 'מֵת יְבָמִי וְאַחַר כָּךְ מֵת בַּעְלִי' - הֲרֵי זוֹ אֵינָהּ נֶאֱמֶנֶת.

If, however, she and her husband depart alone, and she returns and says: “A yavam was born for me overseas, but he died,” her word is accepted, regardless of whether she says “My yavam died, and then my husband died,” or “My husband died, and afterwards the yavam who was born for me died.” The rationale is the source for the statements on which basis the woman was forbidden states that she is permitted.30 אֲבָל אִם הָלְכָה הִיא וּבַעְלָהּ בִּלְבָד, וּבָאָה וְאָמְרָה 'נִתַּן לִי יָבָם בִּמְדִינַת הַיָּם וּמֵת' - בֵּין שֶׁאָמְרָה 'מֵת הַיָּבָם וְאַחַר כָּךְ מֵת בַּעְלִי', בֵּין שֶׁאָמְרָה 'מֵת בַּעְלִי וְאַחַר כָּךְ מֵת הַיָּבָם שֶׁנִּתַּן לִי' - הֲרֵי זוֹ נֶאֱמֶנֶת, שֶׁהַפֶּה שֶׁאָסַר הוּא הַפֶּה שֶׁהִתִּיר.

13The following rules apply when a woman journeys overseas together with her husband and her son: If she returns and says: “My husband died and then my son died,” her word is accepted, for at the time she departed the prevailing presumption was that she was permitted to marry another man. If she says: “My son died, and afterwards my husband died,” her word is not accepted as the basis for yibbum.31 Nevertheless, we grant a certain degree of credence to her words,32 and she should perform chalitzah, but not yibbum.יגהָאִשָּׁה שֶׁהָלְכָה הִיא וּבַעְלָהּ וּבְנָהּ לִמְדִינַת הַיָּם, וּבָאָה וְאָמְרָה 'מֵת בַּעְלִי וְאַחַר כָּךְ מֵת בְּנִי' - נֶאֱמֶנֶת, שֶׁהֲרֵי הָיְתָה בְּחֶזְקַת הֶתֵּר לְזָר. אָמְרָה 'מֵת בְּנִי וְאַחַר כָּךְ מֵת בַּעְלִי' - אֵינָהּ נֶאֱמֶנֶת לְהִתְיַבֵּם, וְחוֹשְׁשִׁין לִדְבָרֶיהָ, וְחוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת.

14The following rules apply when a woman journeys overseas together with her husband alone: If she says, “I bore a son overseas, he died, and then my husband died,” her word is accepted and permitted her to perform yibbum. The rationale is that the prevailing presumption when she departed was that she was permitted to perform yibbum.ידהָלְכָה הִיא וּבַעְלָהּ בִּלְבָד, וּבָאָה וְאָמְרָה 'נִתַּן לִי בֵּן בִּמְדִינַת הַיָּם, וּמֵת וְאַחַר כָּךְ מֵת בַּעְלִי' - נֶאֱמֶנֶת וּמִתְיַבֶּמֶת, שֶׁהֲרֵי הָיְתָה בְּחֶזְקַת הֶתֵּר לִיבָמָהּ בְּעֵת שֶׁהָלְכָה.

If she says: “My husband died, and then the son who was born to me died,” her statements are not accepted as grounds to free her of the obligation for yibbum or chalitzah. Nevertheless, we grant a certain degree of credence to her words, and she should perform chalitzah, but not yibbum.33 אָמְרָה 'מֵת בַּעְלִי וְאַחַר כָּךְ מֵת הַבֵּן שֶׁנִּתַּן לִי' - אֵינָהּ נֶאֱמֶנֶת לִפְטֹר עַצְמָהּ מִן הַיִּבּוּם וּמִן הַחֲלִיצָה, וְחוֹשְׁשִׁין לִדְבָרֶיהָ, וְחוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת.

15When does the above apply? When she was forbidden to the priesthood at the outset - e.g., she had been divorced or a chalalah34 beforehand,35 - or she said: “We were alone in a cave when he died.”36 טובַּמֶּה דְּבָרִים אֲמוּרִים? בְּשֶׁהָיְתָה פְּסוּלָה לַכְּהֻנָּה מִתְּחִלָּתָהּ, כְּגוֹן שֶׁהָיְתָה גְּרוּשָׁה אוֹ חֲלָלָה, אוֹ שֶׁאָמְרָה 'בִּמְעָרָה הָיִינוּ כְּשֶׁמֵּתוּ'.

If this is not the situation, she may not perform chalitzah, lest she perform chalitzah and then witnesses come and confirm her statements that her husband died first. Thus, it will be evident that this chalitzah was unnecessary, and she is permitted to marry a priest. An observer may see that she performs chalitzah and then marries a priest, and he would think that a priest is permitted to marry a woman who performed chalitzah, for he is unaware that witnesses came.אֲבָל אִם אֵין הַדָּבָר כֵּן - אֵינָהּ חוֹלֶצֶת, שֶׁמָּא תַּחֲלֹץ וְיָבוֹאוּ עֵדִים וְיָעִידוּ שֶׁהַדָּבָר כְּמוֹ שֶׁאָמְרָה וְהַבַּעַל מֵת תְּחִלָּה, וְנִמְצֵאת חֲלִיצָה זוֹ אֵינָהּ כְּלוּם, וְתִנָּשֵׂא לְכוֹהֵן, וְיִרְאֶה הָרוֹאֶה אוֹתָהּ שֶׁחָלְצָה וְנִשֵּׂאת לְכוֹהֵן, וִידַמֶּה שֶׁהַחֲלוּצָה מֻתֶּרֶת לַכְּהֻנָּה, וְהוּא אֵינוֹ יוֹדֵעַ בָּעֵדִים שֶׁבָּאוּ.

Therefore, she should not perform chalitzah, nor should she perform yibbum.37 Instead, she should remain under the obligation to perform yibbum as she was when she departed, until witnesses come and clarify the situation.38 לְפִיכָךְ לֹא תַחְלֹץ, וְלֹא תִתְיַבֵּם, אֶלָא תִּשָּׁאֵר בְּחֶזְקַת זְקוּקָה כְּשֶׁיָּצְאָה, עַד שֶׁיָּבוֹאוּ עֵדִים.

16Similar laws apply when a woman’s husband and a second wife journeyed overseas, and two witnesses came and told the first wife, “Your husband died.” She should not perform chalitzah, nor should she perform yibbum until she knows whether or not her husband’s second wife bore a child.39טזוְכֵן אִשָּׁה שֶׁהָלַךְ בַּעְלָהּ וְצָרָתָהּ לִמְדִינַת הַיָּם, וּבָאוּ וְאָמְרוּ לָהּ 'מֵת בַּעְלִיךְ' - הֲרֵי זוֹ לֹא תַחְלֹץ, וְלֹא תִתְיַבֵּם לְעוֹלָם, עַד שֶׁיִּוָּדַע אִם יָלְדָה צָרָתָהּ אוֹ לֹא יָלְדָה.

Why should she not perform chalitzah nine months after the death of her husband, in which case she would be permitted to marry another man from any standpoint? If the other woman bore a child, that frees her of all obligations. And if the other woman did not bear a child, she should be permitted, because she performed chalitzah. Our Sages prohibited this as a decree, lest after the woman performed chalitzah, it become known that her husband’s other wife bore a viable child. This woman will then not be bound by the prohibitions of a woman who performed chalitzah, and she may marry a priest despite performing chalitzah. An observer - who did not know about the witnesses who informed her of the birth of her husband’s child - might conclude that a priest is permitted to marry a woman who performed chalitzah, and he will testify that a Rabbinic court gave her license to marry a priest.וְלָמָּה לֹא תַחְלֹץ אַחַר תִּשְׁעָה חֳדָשִׁים מִמִּיתַת הַבַּעַל, וְתִהְיֶה מֻתֶּרֶת לְזָר עַל כָּל פָּנִים - שֶׁאִם יָלְדָה צָרָתָהּ, הֲרֵי נִפְטְרָה זוֹ; וְאִם לֹא יָלְדָה, הֲרֵי נֶחְלְצָה? גְּזֵרָה שֶׁמָּא יִוָּדַע אַחַר הַחֲלִיצָה שֶׁיָּלְדָה צָרָתָהּ וְלַד שֶׁל קַיָּמָא, וְנִמְצֵאת זוֹ שֶׁאֵינָהּ חֲלִיצָה וְתִנָּשֵׂא לְכוֹהֵן אַחַר שֶׁנֶּחְלְצָה, וְיֹאמַר הָרוֹאֶה שֶׁלֹּא יָדַע בָּעֵדִים שֶׁבָּאוּ שֶׁהַחֲלוּצָה מֻתֶּרֶת לְכוֹהֵן, וְיָעִיד שֶׁרָאָה אוֹתָהּ נִשֵּׂאת לַכְּהֻנָּה עַל פִּי בֵּית דִּין.

Therefore, if she was forbidden to the priesthood at the outset, she may perform chalitzah nine months after the death of her husband and she may marry another man. The wife who accompanied her husband when he died should wait 90 days, as other yevamot.40 Thus, she may perform chalitzah or yibbum. She need not worry about the possibility of the wife in the country giving birth, for that woman was not in the same country as her husband.41 לְפִיכָךְ אִם הָיְתָה אֲסוּרָה לַכְּהֻנָּה מִתְּחִלָּתָהּ - הֲרֵי זוֹ חוֹלֶצֶת לְאַחַר תִּשְׁעָה, וְתִנָּשֵׂא לְזָר. אֲבָל זוֹ הַצָּרָה שֶׁהָיְתָה עִם בַּעְלָהּ כְּשֶׁמֵּת - תַּמְתִּין תִּשְׁעִים יוֹם כִּשְׁאָר הַיְּבָמוֹת, וְתַחְלֹץ אוֹ תִּתְיַבֵּם, וְלֹא תָחוּשׁ לְצָרָתָהּ שֶׁבַּמְּדִינָה הָאַחֶרֶת, הוֹאִיל וְלֹא הָיָה בַּעְלָהּ עִמָּהּ בַּמְּדִינָה.

17When a woman’s husband dies, and her mother-in- law is living overseas, she need not suspect that her mother-in-law bore a child before her husband’s death, and that there is a yavam for her living in another country. Our Sages did not institute a decree of this nature.42 Instead, they allowed the prevailing presumption regarding her status to continue, and she is permitted to remarry.יזהָאִשָּׁה שֶׁמֵּת בַּעְלָהּ וְהָיְתָה לָהּ חָמוֹת בִּמְדִינַת הַיָּם - אֵינָהּ חוֹשֶׁשֶׁת שֶׁמָּא יָלְדָה חֲמוֹתָהּ, וּכְבָר נִתַּן לָהּ יָבָם בִּמְדִינָה אַחֶרֶת, שֶׁלֹּא גָזְרוּ בְּדָבָר זֶה; אֶלָא נַעְמִיד אוֹתָהּ עַל חֶזְקָתָהּ, וַהֲרֵי הִיא מֻתֶּרֶת.

The same concept applies when a woman’s husband dies, and her son is living overseas - she need not suspect that her son died before her husband’s death. Instead, we allow the prevailing presumption regarding her status to continue.וְהוּא הַדִּין לְאִשָּׁה שֶׁמֵּת בַּעְלָהּ, וְהָיָה לוֹ בֵּן בִּמְדִינָה אַחֶרֶת - הֲרֵי זוֹ מֻתֶּרֶת לְזָר; וְאֵין חוֹשְׁשִׁין שֶׁמָּא מֵת הַבֵּן, אֶלָא הַעְמֵד אוֹתָהּ עַל חֶזְקָתָהּ.

18If, however, the mother-in-law departed overseas while she was pregnant, the daughter-in-law must bear that fact in mind. She may not marry another man until she knows the fate of her mother-in-law’s pregnancy. Perhaps a yavam for her was born before her husband died.יחיָצָאת חֲמוֹתָהּ מְעֻבֶּרֶת - הֲרֵי זוֹ חוֹשֶׁשֶׁת, וְלֹא תִנָּשֵׂא לְזָר עַד שֶׁתֵּדַע מַה הָיָה סוֹף עִבּוּר חֲמוֹתָהּ, שֶׁמָּא נֹלַּד לָהּ יָבָם קֹדֶם מִיתַת הַבַּעַל.

19The following laws apply when a woman’s husband and son went overseas, and witnesses came and told her: “Your husband died and then your son died.” If she married,43 and later discovered that they died in the opposite order,44 she must leave her second husband.45 None of the children she bore him is considered illegitimate, however.46יטהָאִשָּׁה שֶׁהָלַךְ בַּעְלָהּ וּבְנָהּ לִמְדִינַת הַיָּם, וּבָאוּ וְאָמְרוּ לָהּ 'מֵת בַּעְלָךְ וְאַחַר כָּךְ מֵת בְּנֵךְ', וְנִשֵּׂאת, וְאַחַר כָּךְ נוֹדַע שֶׁחִלּוּף הָיוּ הַדְּבָרִים - תֵּצֵא, וְהַוְלַד כָּשֵׁר.

More stringent rules apply if she was told: “Your son died and then your husband died,” and on that basis she performed the rite of yibbum and then discovered that they died in the opposite order. She is obligated to leave her second husband. All the children she bore him - both those born before she received this notice and those born afterwards - are considered illegitimate.47 אָמְרוּ לָהּ 'מֵת בְּנֵךְ וְאַחַר כָּךְ מֵת בַּעְלָךְ', וְנִתְיַבְּמָה, וְאַחַר כָּךְ נוֹדַע שֶׁחִלּוּף הָיוּ הַדְּבָרִים - תֵּצֵא, וְהַוְלַד שֶׁנֹּלַּד לִפְנֵי הַשְּׁמוּעָה אוֹ לְאַחַר הַשְּׁמוּעָה מַמְזֵר.

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Yibbum vChalitzah - Chapter Two

Yibbum vChalitzah - Chapter Four

Footnotes

The rationale for this ruling is the principle of migo. If the husband’s statements wereuntrue and his intent were merely to free his wife from the obligation of yibbum, he wouldnot have to lie. Instead, he could give her a get (Bava Batra 134b).
See also the Shulchan Aruch (Even HaEzer 156:6) and commentaries, which mentionother opinions regarding whether this ruling applies when the prevailing presumption isthat the man is childless, when the prevailing presumption is that he has brothers, or whenwitnesses testify that he has brothers.

I.e., when the prevailing presumption is that he does not have a brother, and hence hiswife would not be obligated to perform yibbum.

Even though the statements are being made at the time of the person’s death, when it isunlikely that he would lie, we still suspect that he is speaking falsely to spare his wife thedifficulty of yibbum or chalitzah.

One might assume that, as in Halachah 1, the husband’s statements would have beenaccepted based on the principle of migo. For in this instance as well, the husband could free his wife from yibbum by giving her a get. Nevertheless, our Sages explain that the principle of migo does not have the power to counteract a prevailing presumption.
Still, even if the prevailing presumption is that a person has brothers, his word is acceptedif he says that he has sons. The rationale is that, in this instance, his statements are notcontradicting the prevailing presumption, but rather introducing a new factor (Beit Shmuel157:9).

There is a difference of opinion among the Rabbis whether or not this rumor has to besubstantiated in a court. The Maggid Mishneh interprets the Rambam’s opinion as beingthat even a rumor that is not substantiated should be taken into consideration. Needless tosay, in the contemporary era, when communications have advanced and travel is easier,this question is far less significant than in previous ages.

See Hilchot Nachalot 4:1.

If the woman is married, there is no question regarding the Rambam’s ruling, for wepresume that by and large, she engaged in relations with her husband. If she is single, thematter is more complex.
In this context, the commentaries draw attention to the Rambam’s ruling in Hilchot Terumot 8:14, which states that when a priest had relations with a woman and she becamepregnant, she is allowed to partake of terumah for the sake of her child. This indicates thatwe assume that she was impregnated by that priest.
As indicated by the Rambam’s wording in Hilchot Terumot and in Hilchot Issurei Bi’ah15:17-18, the matter depends on the woman’s reputation. If she is known to be promiscuous, we consider the possibility that she was impregnated by another man. If, however, everyonepresumes that she engaged in relations only with this man, he is considered to be the father ofthe child (Maggid Mishneh).
Nevertheless, the Shulchan Aruch (Even HaEzer 156:9) quotes the Rambam’s wordingwithout making this distinction. See the Beit Shmuel 156:15.

Lest the child have been fathered by another man and the deceased in fact be childless.

Lest the child have been fathered by the deceased, in which case relations with his brother would be prohibited.

10.

Rabbenu Asher differs with the Rambam regarding this matter and maintains that thetestimony of one witness is not acceptable with regard to the death of a yavam. Although theRama (Even HaEzer 158:3) quotes his opinion, many Ashkenazic authorities recommendleniency. (See Beit Shmuel 158:2.)

11.

The Ra’avad and Rabbenu Asher differ with the Rambam with regard to this point, forunlike the death of a person, the birth of a child is not a matter that will surely become un-deniable public knowledge. The Shulchan Aruch (Even HaEzer 156:8) quotes the Rambam’sopinion, while the Rama follows the other view.

12.

In Hilchot Gerushin, Chapters 12 and 13.

13.

See Hilchot Gerushin 12:16, which states that the statements of a woman’s mother in law, the daughter of her mother-in-law, [her husband’s] other wife, her yevamah (i.e., the wife of her husband’s brother) and her husband’s daughter are not accepted with regard to her husband’s death, because the prevailing presumption is that they hate each other.

14.

I.e., the women are married to two brothers. Thus each one is considered the yevamah of the other.

15.

I.e., the testimony of each woman is accepted with regard to the death of her own husband. With regard to the death of her yavam, by contrast, the only testimony is that of her yevamah, and that testimony is not accepted.

16.

And with regard to the death of her yavam, there is no testimony that is acceptable tothe court.
Even if the woman actually remarries, at which point, it would be likely to assume thather husband is dead, her yevamah is still prohibited. Our Sages feared that a woman would risk ruin in both this world and the next, in order to cause her foe to be forbidden to herhusband.

17.

See Hilchot Gerushin 12:15.

18.

And neither has witnesses to support her testimony.

19.

For she is dependent on the testimony of her yevamah, as above.

20.

For her authorization to remarry does not depend on whether or not her yavam is alive.

21.

Or chalitzah.

22.

I.e., there were only three brothers. Since the death of the first two brothers was never verified adequately to allow these women to marry freely, the original prohibition applying to them remains in force.

23.

For her marriage and divorce releases each of the women from their obligation to their missing yavam.

24.

The punishment— lashes— is lesser, and the woman’s children are not considered ille-gitimate.

25.

Having relations with another man while married, by contrast, is a prohibition punish-able by execution by the court, her children are considered illegitimate, and it brings severeretribution in the world to come. Because the prohibition against marrying while underobligation to a yavam is less severe, our Sages feared that the woman might lie about the yavam’s death and transgress this prohibition.

26.

It is forbidden for a husband to marry his wife’s sister while his wife is alive. Our Sagesfeared that the second sister or the husband may desire to give false testimony, so that theycan marry.

27.

I.e., generally, the testimony of two witnesses is required with regard to matters involvingmarriage and divorce. As mentioned in the concluding passage of Hilchot Gerushin (cited inthe notes on Halachah 6), in order to allow a woman to remarry, leniency is granted and werely on the testimony of one witness. In this instance, however, there is no difficulty in theman’s or the woman’s remarrying; the only difficulty is that they cannot marry each other. Insuch an instance, our Sages were not willing to extend leniency.
[There is a slight difficulty when comparing the Rambam’s statements here to hisstatements at the conclusion of Hilchot Gittin. As explained by the Noda B’Yhudah (Even HaEzer, Volume I, Responsa 27 and 33), the Rambam’s wording indicates that, according toScriptural Law, with regard to a point of fact that can be verified, it is not necessary for twowitnesses to testify, and the statements of one witness are sufficient. The leniency granted byour Sages was to accept the testimony of women, relatives and others whose testimonywould not ordinarily be accepted. Here, however, the Rambam is stating (as he does in Hilchot Edut 5:2) that the acceptance of the testimony of a single witness is a leniency of Rab-binic origin. (See the Responsa of the Rivash, Responsum 181.)]

28.

I.e., based on the premise stated in the first clause of the previous halachah.

29.

For the prevailing presumption when she departed was that she would be obligated toperform yibbum if her husband dies.

30.

The prevailing presumption when she departed was that she would not be obligated toperform yibbum if her husband dies. It is only because of her own statements that we might suspect that she is required to do so. Therefore, her statements are sufficient to offset thissuspicion.

31.

We suspect that perhaps she is lying in order to marry her brother-in-law.

32.

I.e., were it not for her statement that her son died first, she would be permitted to marrywithout any restrictions. Because we give her statements some credence, we require her toperform chalitzah.

33.

I.e., were it not for her statement that her son died after her husband, she would berequired to perform yibbum. We do not accept her word to the extent that we allow her tomarry without restrictions. Nevertheless, we give her statements some credence and forbidthe performance of yibbum, lest in fact there be no obligation to do so.

34.

A woman who is born from a relationship that is forbidden to a priest, but not to an Israelite.

35.

In which case, the chalitzah does not make any difference, for the woman was forbidden to the priesthood regardless

36.

In which case, there is no apprehension of witnesses coming.

37.

For according to her testimony, she is forbidden to do so.

38.

Note the discussion of this ruling by the Beit Shmuel 156:17, and the opinion men-tioned there that this ruling applies only when there were witnesses who testified that thewoman’s husband and son both died. Otherwise, the woman’s word would be acceptedbased on the principle of migo— i.e., if she desired to lie, she could have said that her sonwas still alive.

39.

This law applies even if the second wife was not pregnant when she left. Our Sages con-sidered the possibility of the woman becoming pregnant as a reasonable probability.

40.

See Chapter 1, Halachah 19.

41.

We do not consider the possibility that the woman was impregnated by her husbandbefore he departed on the journey and did not realize this until he had already departed.

42.

For even if we presume that the mother-in-law will become pregnant, it is more pro-bable that she will miscarry or give birth to a girl (in which cases, the mitzvah of yibbum would not apply) than that she bear a son (Beit Shmuel 157:11).

43.

For according to the testimony she was given, her husband was survived by a son, and the mitzvot of yibbum and chalitzah do not apply.

44.

In which case her husband would have died without children, and she would be obli-gated to perform yibbum or chalitzah.

45.

See Chapter 2, Halachah 18.

46.

For it is only when a child is born from forbidden relations that are punishable by karet that this status is incurred (Yevamot 49a).

47.

For her relations with her brother-in-law were prohibited by a transgression punishable by karet. The fact that she violated this prohibition unwittingly does not change the status of her children.

By Rabbi Moshe ben Maimon ("Maimonides"); translated by Eliyahu Touger

The text on this page contains sacred literature. Please do not deface or discard.

Vowelized Hebrew text courtesy Torat Emet under CC 2.5 license.

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