Yibbum vChalitzah - Chapter One

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 acustom carried out before the giving of the Torah (as reflected by Genesis 38:8), and theTorah allowed this rite to be perpetuated. Sefer HaChinuch explains that the closenessshared with the deceased by both his widow and his brother enjoins them to come togetherand produce a child who will perpetuate the deceased’s memory and virtue. As SeferHaChinuch mentions, there are also profound mystic concepts associated with this mitzvah.

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

See Hilchot Ishut 22:10-14.

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

Sefer HaMitzvot (positive commandment 217) and Sefer HaChinuch (mitzvah 599)include this mitzvah as one of the 613 mitzvot of the Torah.

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 thedeceased, because the effect of this mitzvah is that he foregoes a right— the right to marrythe woman— that belongs to him. Until he performs chalitzah, the woman is bonded tohim, and through performing chalitzah he severs this connection. Therefore, the mitzvah isconsidered 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 oppor-tunity of doing so.

The concluding mishnah of the first chapter of Bechorot states:
The mitzvah of yibbum takes precedence over the mitzvah of chalitzah. [Thisapplied] originally, when the participants [in the rite] intended to perform a mitz-vah. In the present age, when they do not intend to perform a mitzvah, the mitzvahof chalitzah takes precedence over the mitzvah of yibbum.
In his Commentary to the Mishnah, the Rambam explains that the mishnah follows theopinion of Abba Shaul, who maintains that the prohibition against marrying one’s brother’swife is not removed entirely by the mitzvah of yibbum. Instead, it is merely temporarilysuperseded. And therefore, if the couple have any intentions other than the fulfillment of themitzvah, they transgress this prohibition. As such, rather than involve oneself in such achallenge, one should perform the mitzvah of chalitzah.
In that commentary, and in a subsequent responsum, the Rambam explains that thehalachah follows the opinion of the Sages who differ with Abba Shaul. These Sagesmaintain that when a man dies childless, the prohibition against his brother’s marryinghis wife is lifted entirely. Even if the brother marries the widow because of her looks, orbecause 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 authoritieswho succeeded him, do not accept this ruling and follow Abba Shaul’s opinion. Accor-dingly, the Shulchan Aruch (Even HaEzer 165:1) quotes the Rambam’s view, while theRama states that chalitzah is preferable, and that a couple should not be allowed toperform 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 to the Mishnah and in Sefer HaMitzvotmakes it obvious that he follows the opinion of the Sages who differ with Abba Shaul. Atpresent, even within the Sephardic community, the mitzvah of chalitzah is generallyobserved.
[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 primacygiven to chalitzah is a Rabbinic institution.]

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

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

Regardless of who the father is.

See Hilchot Gerushin 10:19.

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

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

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

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

The Gur Aryeh notes that Hilchot Issurei Bi’ah 10:6 appears to imply that the emer-gence 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 majorityof the body.

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

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.

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

See Hilchot Aveilut 2:1.

See Hilchot Edut 13:1.

See Hilchot Nachalot 1:6.

Yevamot 17b derives this concept from Genesis 42:13: ‘‘We are twelve brothers, the sonof one father.’’

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

This ruling applies with regard to the laws of yibbum. With regard to the laws offorbidden relationships, by contrast, in Hilchot Issurei Bi’ah, the Rambam rules that ifone twin has relations with the other’s wife, he is liable for transgressing the prohibitionagainst relations with his brother’s wife.

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

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 per-forms the rite of chalitzah, our Sages counsel that it be performed in a manner that doesnot damage a woman’s future possibilities. See Yevamot 44a. A court should enforce theapplication of this law (Beit Shmuel 161:2).

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.

A person who transgresses a positive commandment is not liable to receive the forty lashes given when a negative Scriptural commandment is violated. Hence, the Rambamclarifies that although a prohibition is involved, it is a prohibition stemming from a posi-tive commandment, and not one stemming from a negative commandment.

The Ramban (Nachmanides, Hasagot L’Sefer HaMitzvot, Hosafot Negative Command-ment 14) differs and maintains that the violation of a Scriptural prohibition is involved. Thedifference 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 inorigin, and the reference to the verse is merely an asmachta, a support.

I.e., relatives with whom relations are permitted by Scriptural Law, but forbidden by Rabbinic decree.

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

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

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

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

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

See Chapter 7, Halachah 8.

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

Chapter 11, Halachah 3.

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

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

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

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

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

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 willmanifest signs of being an aylonit, a woman who lacks female sexual characteristics (HilchotIshut 2:3,6). If that were to be the case, then the mitzvah of yibbum would not apply to such awoman, 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, ourSages did not impose any restrictions.

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

See Chapter 6, Halachah 6.

See Hilchot Gerushin 11:18, which prohibits a widow or a divorcee from remarryingwithin 90 days of her husband’s death or their divorce, to preclude the possibility of ques-tions arising concerning who is the father of her child.

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

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 to the Mishnah,Sanhedrin 2:1 and Hilchot Melachim 2:3).

The Rama (Even HaEzer 164:1) differs and maintains that such a woman requires chali-tzah from her deceased husband’s other brothers after the three months have passed. Seealso Beit Shmuel 164:4.

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

See Chapter 4, Halachah 26.
The Beit Shmuel 164:5 quotes the view of Tosafot, who maintain that, according toRabbinic Law, performing chalitzah while pregnant disqualifies a woman from marryinginto the priesthood and prevents her from performing yibbum if she miscarries.

And the yibbum or the chalitzah performed by the woman is of no consequence whatso-ever.

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

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

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.)

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

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

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.

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.