Yibbum vChalitzah - Chapter Two

A ma’amar can also be brought about 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 womanthrough sexual relations according to Scriptural Law, our Rabbis ordered a ban of ostracismto be placed on a person who does so; so too, with regard to yibbum, they required that theman designate the woman as his wife before entering into marital relations with her.

The word ma’amar means ‘‘statement.’’

See Chapter 5, Halachot 2-3.

See Hilchot Ishut 4:1.

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

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

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

The fact that he disobeyed our Sages’ wishes does not cause his deed to lose its effective-ness.

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

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

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

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

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

Note the Or Sameach, who questions this ruling based on the Jerusalem Talmud (Yeva-mot 6:1, quoted by the Rambam in Chapter 6, Halachah 3), which states that when amentally and/or emotionally challenged person performs yibbum, his act is binding. The Or Sameach explains that a mentally and/or emotionally challenged person may have theintent to engage in intimate relations. In this instance, however, the person has lost controlof his faculties to the extent that he has no intent whatsoever.

For masturbation is not considered to be sexual relations.

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

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).

And remain married to her.

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). Nevertheless, since she claims that they did not, and there is plausibility to her claim, he is also required to perform chalitzah.

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.

He has nothing to lose. 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.

According to the simple meaning of the verse, the subject is— as reflected in our trans-lation— the yevamah. Nevertheless, in a halachic context, it is possible for one verse tohave several interpretations. Accordingly, Yevamot 2:8 (see the Rambam’s Commentary tothe 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 subjectof the phrase in a different halachic context.)

See Halachah 12.

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

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

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

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

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

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

See Hilchot Ishut 14:8, which states that a woman who refuses to engage in maritalrelations 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 sheloathes.’’ She does, however, forfeit the money due her by virtue of her marriage contractand 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 refusesto engage in yibbum is considered to have ‘‘rebelled.’’ As mentioned in the notes on Chapter1, Halachah 2, the Ashkenazic authorities maintain that the mitzvah of chalitzah takes prece-dence over the mitzvah of yibbum. Therefore, they maintain that a woman has the right torefuse to engage in yibbum, and she is not judged to have ‘‘rebelled’’ for this reason.

The Shulchan Aruch (Even HaEzer 77:2) differs with the Rambam and maintains that ahusband should not be compelled to divorce a woman who ‘‘rebels.’’ According to thatperspective, a yavam should also not be compelled to perform chalitzah.
According to the Rama (Even HaEzer 165:1), who favors chalitzah, when a yavamdesires to perform yibbum and the yevamah refuses, the yavam cannot be compelled byforce to perform chalitzah. He should, however, be convinced to do so. Note the gloss ofthe Beit Shmuel 165:1, which discusses this ruling in detail.
All authorities agree that if the yavam is one of the individuals considered unfit tomarry (see Halachah 14), he should be compelled to perform chalitzah.

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

The Maggid Mishneh explains that the woman must either consent to yibbum or beconsidered to have ‘‘rebelled.’’

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

If, however, the brother she desires to marry does not desire to marry her, she is con-sidered to have ‘‘rebelled,’’ as stated in the following halachah.

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

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).

See Chapter 1, Halachah 5.

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

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

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

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.

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.

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

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

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

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

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

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

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

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

Hence, the woman is compelled to perform chalitzah.
If neither the yevamah nor the yavam desires to perform chalitzah, the court is under noobligation 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 norhis 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.)

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 dueher by virtue of her marriage contract. If, however, he desires to remain married to thewoman, he must write a marriage contract for her, for it is forbidden for a man to remainmarried to a woman without a marriage contract, as stated in Hilchot Ishut 10:10. TheRama (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 obli-gated to write a marriage contract for the yevamah. Why did our Sages require a man towrite 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 thisinstance, the yavam is held responsible for the additional amount that the husband addedto the marriage contract. Hence, there is financial responsibility attached to divorce, andthere is no imperative for a further obligation.

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

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

Both Sefer HaMitzvot (negative commandment 357) and Sefer HaChinuch (mitzvah 596) include this as one of the Torah’s 613 commandments.

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

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

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

I.e., she is compared to a woman who engages in relations with another man whilemarried. See Hilchot Gerushin 10:7.
She becomes forbidden to both men, even though she claims not to have engaged inintimate relations with her second husband (Kessef Mishneh; Ma’aseh Rokeach; see HilchotIssurei Bi’ah 19:3).

The Shulchan Aruch (Even HaEzer 159:1) states that this law applies even when theman 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 aninstance, if the yavam desires to perform chalitzah, the woman may remain married to hersecond husband.

I.e., one might think that since the yavam cannot perform yibbum with her, she should beallowed 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).

The rationale is that since the prohibition is merely a disciplinary measure, if the couplemarry again they may remain married (Maggid Mishneh).
The Rama (Even HaEzer 159:1) states that if the second husband knew of the existence ofthe yavam and consecrated the woman anyway, he is forbidden to remain married to her,even if he remarried her after chalitzah.

The Rama (Even HaEzer 159:3) states that she does, however, become forbidden to theman with whom she engaged in relations. Even if her yavam performs chalitzah, the two maynot marry.

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

In his gloss on the Shulchan Aruch (Even HaEzer 164:7), Rabbi Akiva Eiger states thatthis leniency applies only when the priest consecrated the woman without knowing of herobligation to perform chalitzah. If he knew of her obligation and consecrated her none-theless, the couple are not permitted to remain married.

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

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