Yibbum vChalitzah - Chapter Six

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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