Yibbum vChalitzah - Chapter Three

When 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.

When2 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.

When 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.

[The 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

The 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

Just 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.

[The 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].

If 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

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

If 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, he should perform yibbum21 with both of them.

If [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

A 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.25

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.

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

Accordingly,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.29

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

[The 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.

[The 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.

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

When 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

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. 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

Similar 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.39

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. 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

When 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.

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].

If, 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.

[The 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.46

[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