Yibbum vChalitzah - Chapter 7

The laws that apply when we do know which brother died first are stated in Halachot 3and 4.

According to Scriptural Law, it is forbidden to marry two sisters. As an extension of thisprohibition, when one is obligated to perform yibbum with two sisters according to RabbinicLaw, one is not allowed to marry either of them and must perform chalitzah with both.

For according to Scriptural Law, the obligation of yibbum applies in all these instances, as stated in Chapter 6, Halachah 10.

In Halachah 1
Yehudah, Reuven, Shimon and Leviwere brothers. Reuven was marriedto Leah, and Shimon to Rachel. Yehudah was married to Rivkahwho was the mother of Leah, Reuven’s wife. Levi was married to Sarah who was the mother of Rachel, Shimon’s wife. If both Reuven and Shimon die childless, Yehudah may perform either yibbum or chalitzah with Rachel and Levi may perform either yibbum or chalitzah with Leah. Diagram

The Kessef Mishneh (and the Beit Shmuel 175:2) explain that this ruling applies onlyafter the fact— i.e., he performed chalitzah with the second yevamah without asking Rab-binical guidance. Had he in fact asked the Rabbis, they would have prohibited it, lest heerr and perform chalitzah with the other sister. Once, however, the chalitzah is performed, we do not fear that a mistake will be made by others on a subsequent occasion.

Since he was never permitted to marry the wife of the first brother who died, the wife of the second never became forbidden to him.

Since he is not permitted to marry the wife of the second brother, the wife of the first never became forbidden to him. Hence, he should perform yibbum. Diagram

The Rambam mentions both yevamot to teach that even if the brother who marries thefirst yevamah dies, she remains forbidden to his brothers.

See the previous halachah.

This applies to both couples. The first yavam who marries a yevamah is forced to separate because he has transgressed a Rabbinic prohibition. Even though he did not transgress in marrying his yevamah, the second yavam is forced to separate from her, because his marriage to her was made possible by a forbidden act, the first yavam’s marriage.

This law is fundamentally the same as Halachah 3. The yavam is forbidden to perform yibbum with either of the sisters. There is one added element: the fact that a ma’amar was given.
As explained in Chapter 5, Halachot 2-3, a ma’amar does not establish a completemarriage bond. If it established such a bond, the third brother would not be required todivorce his yevamah (and he would not be required to perform chalitzah with her sister). But since it does not, he cannot consummate his relationship with his yevamah. He must, however, divorce her, because of the connection established by the ma’amar.
Reuven, Shimon, and Levi were brothers. Reuven was married to Leah, and Shimon toRachel. Leah and Rachel were sisters. Shimondied, and Levi gave a ma’amar to Rachel. ThenReuven died. Levi must divorce Rachel andperform chalitzah with her, and then he mustperform chalitzah with Leah. Diagram

As reflected in Chapter 6, Halachah 25, even if the yavam who died had not given ama’amar to the other yevamah, this woman would not have been able to perform yibbum. The new dimension contributed by this halachah is that the ma’amar does not free herfrom the obligation of chalitzah.

I.e., had the ma’amar established a full marriage bond, she would not have been obligated at all. Since it does not, she must perform chalitzah.

This law applies if he consecrates her after his brother has died and the obligation of yibbum is already incumbent upon him. If he consecrated her before his brother dies, andthen he dies, he may marry her (Shulchan Aruch, Even HaEzer 159:6).

At present, the woman he consecrates is forbidden to him, because he is obligated to perform yibbum with her sister. Nevertheless, he is not required to divorce her, because it is possible that the prohibition will be lifted.

Or he has no other brothers.

The fact that he was forbidden to marry her while her sister was alive does not preventhim from marrying her after her sister’s death (Beit Shmuel 159:13).

From Yevamot 41a, it appears that whenever a yavam cannot perform yibbum with his yevamah, the chalitzah he performs with her is deemed ‘‘inferior.’’
Reuven, Shimon, and Levi were brothers. Reuven was married to Leah and Sarah, and Shimon to Rachel and Asnat. Sarahand Rachel were sisters. Both Reuven andShimon died. Levi thus must perform chalitzah with Leah and Asnat. Thisapplies even if he performs chalitzah withRachel and Sarah. Diagram

Chapter 5, Halachah 12.

This expression is employed by the Rambam in reference to a law that has no directsource in the Rabbinic works of the previous generations. The Rambam’s rationale is that just as the Rabbinic prohibition against performing yibbum with the sister of a woman towhom one is obligated is sufficient to cause a chalitzah to be considered ‘‘inferior,’’ so too, the prohibitions mentioned in this halachah should have a similar effect.
There are several early halachic authorities who rule differently from the Rambam on thisissue. The Rambam’s decision is, however, accepted by the Shulchan Aruch (Even HaEzer174:1).

This represents a reversal of the Rambam’s opinion in his Commentary to the Mishnah(Yevamot 3:7), where he states that the deceased’s other wife should perform chalitzah, because there is a doubt whether or not an obligation falls upon her.

For the prohibition forbidding a woman divorced by her husband to her yavam is ofScriptural origin, while her remarriage is binding according to Rabbinic Law alone.
Reuven, Shimon, and Levi were brothers. Reuvenwas married to Leah, Shimon to Rachel, and Levito Asnat. Leah and Rachel were sisters. Shimondied and Levi performed yibbum with Rachel. Leah, Reuven’s wife then died. Afterwards, Levi died. Both Rachel and Asnat are free of the obligation to perform either chalitzah or yibbum.
The Ra’avad and Rabbenu Asher rule that the minor must perform chalitzah when sheattains majority. The Ma’aseh Rokeach states this might also be the Rambam’s intent (asreflected by the fact that he states that ‘‘she is forbidden to her yavam,’’ and in the nexthalachah he adds that she ‘‘should not perform either chalitzah or yibbum’’). Most com-mentaries do not, however, accept this interpretation. Diagram

The Rambam’s wording is somewhat imprecise. The kiddushin the husband gives thefather are binding according to Scriptural Law, because the Torah granted him the right toconsecrate her, as stated in Hilchot Ishut 3:11. If the girl is able to distinguish between a getand another object, she can be divorced according to Scriptural Law, as stated in Hilchot Gerushin 2:19.

Until she reaches the age of twelve and manifests signs of physical maturity, she is notable to bring about kiddushin that are binding according to Scriptural Law. (Moreover, thegirl’s father also does not have the potential to consecrate her again according to ScripturalLaw once she has been divorced, as stated in Hilchot Ishut 3:12.)

In this instance as well, the divorce is binding according to Scriptural Law, while theremarriage is merely a Rabbinic institution.

Since the remarriage of the minor or the deaf-mute is only a Rabbinic institution, whilethe marriage of the deceased’s other wife is based on Scriptural Law, the remarriage of theminor or the deaf-mute has no effect on the other wife’s obligation to her yavam. See Shul-chan Aruch (Even HaEzer 173:23).

If her husband engaged in marital relations with her after she attained majority orregained control of her faculties, he acquires her as a wife according to Scriptural Law.(See Hilchot Gerushin 11:6.) Therefore, there is no difference between her and anotherwoman who was married, divorced and remarried.

Since both sisters share the same status, we allow the marriage of the sister whose husband is alive to continue. There is no mandate for him to perform yibbum, for the marriage to his yevamah would still be Rabbinical in origin.

Since the marriage of the older sister is binding according to Scriptural Law, the younger sister has no obligation to the yavam.

The yibbum of the older sister is given priority over the marriage of the younger sister, because the older sister’s first marriage is binding according to Scriptural Law, and the obligation of yibbum is mandated by that authority. The marriage of the younger sister, by contrast, is binding only according to Rabbinic Law. Therefore, the younger sister is advised to perform mi’un, thus dissolving her marriage as if it had never existed. At this point, there is nothing preventing her husband from marrying her sister, his yavam. (See Chapter 4, Halachah 30.)

As long as one of the parties involved is a deaf-mute, a marriage is binding only accord-ing to Rabbinic Law. For this reason, there is no advantage for the yibbum of the deceased’swife over the existing marriage.

Since both the husband and wife are mentally competent, their marriage is bindingaccording to Scriptural Law. The deceased’s wife is, therefore, freed of all obligations.

And it is forbidden to marry the sister of a woman with whom one is obligated to perform yibbum.

For it is forbidden to marry the sister of one’s divorcee.

See Chapter 4, Halachah 13.

I.e., the court, the agent of the Jewish people as a whole, does not have the respon-sibility to admonish a child who violates the Torah’s laws. The child’s parents, by contrast, do and must train him in the observance of the Torah’s ways. See Hilchot Ma’achalot Asurot17:27-28.

Since both partners are mentally competent, their marriage is binding according to Scriptural Law.

Since his marriage to the deaf-mute is only a Rabbinic institution, his obligation to the wife of his deceased brother, a requirement of Scriptural Law, takes priority. Nevertheless, since he must divorce his deaf-mute wife with a get, he may not perform yibbum, for the yevamah is the sister of his divorcee.

In contrast to the deaf-mute yavam mentioned in Halachah 18.

I.e., one might think that although the mitzvot of yibbum and chalitzah do not applywith regard to the woman forbidden as an ervah, they do apply with regard to her deceasedhusband’s other wife.
Generally, when a woman is forbidden as an ervah, her husband’s other wives are notobligated, as stated in Chapter 6, Halachah 14. Nevertheless, since the deaf-mute’s marriageis only a Rabbinic institution, one might think that the marriage to the woman forbidden asan ervah is not powerful enough to negate the obligation of yibbum. The Rambam’sexplanations that follow above are intended to counter this supposition.
Reuven and Shimon were brothers. Shimon was adeafmute. Rachel, Shimon’s daughter marriedReuven as did Leah, a woman with no family connection to him. Reuven died childless. Both ofhis wives are free from the obligations of yibbum and chalitzah. Diagram

I.e., any other woman permitted to his brother, but forbidden to him as an ervah. This includes the brother’s mother-in-law and his daughter-in-law, after they were widowed ordivorced from their first husbands.

If it were a fully binding marriage, the deceased’s other wife would be freed of theobligation of chalitzah as well, as mentioned in note 40. Nevertheless, yibbum is not permit-ted because the marriage is effective according to Rabbinic Law.