Yibbum vChalitzah - Chapter Four

Sanhedrin 31b derives this from Deuteronomy 25:8: ‘‘And the elders of his city shall callhim...’’— i.e., ‘‘his city’’ and not her city.

Our text is based on authoritative manuscripts and early printings of the Mishneh Torah.This version appears appropriate, for the decision to perform yibbum or chalitzah is that ofthe remaining brother alone.

This follows the Rambam’s perspective (Chapter 1, Halachah 2) that, in general, it is pre-ferable to perform yibbum rather than chalitzah. Even so, the judges should take counseland see whether the couple appear appropriate for each other.

See Hilchot Issurei Bi’ah 21:26.

Darchei Moshe (Even HaEzer 169) states that establishing a place for the chalitzah beforehand serves to publicize the matter.

For, as explained in the halachot to follow, both the yavam and the yevamah must recitecertain phrases within the chalitzah ceremony.

Lo avah yabmi means ‘‘My yavam did not desire’’ [Deuteronomy 25:7]. Improper emphasis could, however, cause the statement to be interpreted as: ‘‘No, my yavam desired.’’

For chalitzah is considered as a ‘‘judgment,’’ and judgments may not be made at night(Yevamot 104a). (See also Halachah 16.)

I.e., there is no need for these individuals to be formally ordained as judges. Never-theless, as the Rambam states in his Commentary to the Mishnah (Yevamot 12:1), and asthe Shulchan Aruch (Even HaEzer 169:1) states, at the outset, it is proper for three ordainedjudges to preside over the ceremony.

For they must read the phrases for the yavam and the yevamah, as will be stated later inthe text. See Halachah 15, which states that this requirement is a factor only a priori.

The Rama (Even HaEzer 169:2) rules that a judge whose father is a native-born Jew andhis mother is a convert may serve in this capacity.

Deuteronomy 25:10 states: ‘‘And his name will be called in Israel....’’ This phraseimplies that only those of Jewish ancestry can serve in this capacity.

This serves two purposes. It is of benefit to the woman, for men will become aware thatshe is eligible to remarry. It also will make known the fact that she is forbidden to a priest(Rashi, Yevamot 101b).

Who do not know how to read. For their presence is only for the sake of making the matter known.

The entire shoe (according to the Rama, Even HaEzer 169:15, even its straps must bemade of leather).

See Yevamot 102a and the Shulchan Aruch (ibid.:16), which discuss whether a sandal or a shoe should be used. Diagram

There are certain opinions that allow a shoe that is sewn with linen, but both the Shul-chan Aruch and the Rama (ibid. 169:15) follow the Rambam’s view.

At the outset, the shoe should belong to the yavam. (See the Shulchan Aruch (ibid.:14).

The yavam should not be wearing socks, and no mud should be stuck to his feet (Shul-chan Aruch, ibid.:26).

The Sifri derives this concept from Deuteronomy 25:8, which states: ‘‘And he shall standand say.’’ After the fact, however, if the chalitzah was performed while the yavam and the yevamah were seated, it is acceptable (Rama, ibid. 169:12).

The Tur states in the name of Rabbenu Yitzchak Alfasi that if the yavam does not presshis foot to the ground, the chalitzah is not acceptable. The Shulchan Aruch (ibid.:32) quotesthis as a minority opinion.

The Shulchan Aruch (ibid.:30) differs and follows the opinion of the Tur, who statesthat the chalitzah should be performed while the woman is standing and bends to untie andremove the yavam’s shoe.

The Shulchan Aruch (ibid.) states that the yevamah should untie and remove the shoe withher right hand alone. The Rama states, however, that, after the fact, the chalitzah is accept-able if she uses her left hand.

The Tur and others question the rationale for this act. Significantly, the commentaries cite the Rambam’s source as the Zohar, Volume III, page 180a, which states that the removal of the shoe signifies the cutting of the woman’s connection with her deceased husband.

Although the literal meaning of Deuteronomy 25:9 is ‘‘she spits in his face,’’ Yevamot 106b explains that in a halachic context, the phrase should be interpreted as above.

For Deuteronomy, ibid., states that she must spit ‘‘before the eyes of the elders.’’

The Mishnah (Yevamot 12:6) and the Shulchan Aruch (Even HaEzer 169:42) mention‘‘those standing there.’’

We find a threefold repetition of a phrase employed by the Sages as a means of publi-cizing the matter. See Hilchot Temidim UMusafim 7:11.
The Halachot Gedolot interprets the threefold repetition as a reprimand. It is as if Godtold him: ‘‘Wicked man! With your body, you could have performed a mitzvah, and yourefused....’’ The judges will proclaim: ‘The one whose shoe was removed’ like a mourner.‘The one whose shoe was removed’ like one placed under a ban of ostracism. ‘The onewhose shoe was removed’ like a person who rebels against [God’s] commandments.’’

Our translation of lishmah is based on the Shulchan Aruch (Even HaEzer 169:44).

I.e., one who is blind in both eyes (Hagahot Maimoniot, Rama, loc. cit.:48).

As reflected by Halachah 15, this is just an a priori ruling. After the fact, the chalitzah is acceptable.
The Ra’avad states that this law applies only when there is another brother who canperform chalitzah. If there is not another brother, the blind man should perform this ritualon the woman’s behalf. Although the Maggid Mishneh contests the Ra’avad’s decision, the Beit Shmuel 169:48 upholds it.

See Halachah 14.

Rabbi Eliezer maintains that the phrase (Deuteronomy 25:9), kachah ye’aseh, ‘‘this iswhat should be done,’’ implies that all the deeds and the order required by the Torah isimperative for the chalitzah to be brought about. The final opinion of Rabbi Akiva doesnot, however, accept this view (Yevamot 104b).

This reflects a Talmudic principle frequently applied and stated explicitly with regard tothe meal offering brought in the Temple. These offerings consist of flour and oil. The flourand the oil should be mixed together. Nevertheless, as long as the quantity of flour is not toolarge to be mixed with the oil, the offering is acceptable, even when in actual fact the twowere not mixed together (Rashi, Yevamot 104b).

The difference between a chalitzah that is pasul, ‘‘not acceptable,’’ and a chalitzah thatis not significant at all is discussed in Halachah 26.

As mentioned in the Maggid Mishneh, the Rambam’s view is dependent on the Tosefta,while on the surface, the Mishnah (Yevamot 104b) appears to accept the position that achalitzah performed by a deaf-mute is unacceptable, but not of no consequence. The Maggid Mishneh attempts to justify the Rambam’s ruling, but notes that the Ramban and the Rashba follow the latter view. [Significantly, in his Commentary to the Mishnah (Yeva-mot 12:4), the Rambam also appears to favor the latter view, and his decision in the Mishneh Torah represents a reversal of his thinking.] The Shulchan Aruch (Even HaEzer169:44) mentions both views without appearing to favor either one.

As mentioned in Halachah 26, the chalitzah does not permit the yevamah to remarry,but prevents her from performing yibbum.
There is a difference of opinion among the commentaries whether the effectiveness ofspitting is a Scriptural Law or a Rabbinic institution. The Maggid Mishneh states that itappears that the Rambam is deriving the concept from the exegesis of a verse, but this isnot accepted by all authorities.

Yibbum is permitted, and she is not disqualified from marrying into the priesthood.

Yevamot 105a distinguishes between spitting and the recitation of the verses as follows:Spitting should be carried out after the removal of the yavam’s shoe. Therefore, if it isperformed before the removal of the shoe, it is considered a distinct act. The recitation ofthe verses, by contrast, should be performed before the removal of the shoe. An observerwill thus realize that the fundamental aspect of the ceremony is still to be performed.

Instead of the two standing when she spits and they recite the verses, and the yavam’s standing, as mentioned in Halachot 6 and 7.

And not on his foot itself, as mentioned in Halachah 6.

Instead of judges who know how to read, as stated in Halachah 5.

Although at the outset, a blind person should not perform this act, as stated in Hala-chah 8.

See Halachah 5.

Since chalitzah is considered a judgment, three acceptable judges must preside over theceremony.

Deuteronomy 25:9 states: ‘‘She shall remove his shoe from his foot.’’ If the shoe is tiedabove the knee, it is not considered to have been removed from his foot.

The entire act of removing the shoe must be performed by the woman. The Rama (EvenHaEzer 169:33) quotes Rabbenu Asher, who rules that if the man could walk wearing theshoe while it is untied, the chalitzah is acceptable even if the man untied the shoe and thewoman removed it.

As stated in Halachah 8, the ceremony must be performed with this intent in mind.

Since the girl is not past the age of majority, her deed is not totally effective. Never-theless, since she can be be married at this age, her deed has a minimal effect, and she canno longer perform yibbum.

The Rambam’s intent is that the chalitzah is unacceptable, but it at least has the effectof preventing the woman from performing yibbum in the future, as opposed to a chalitzah that is of no consequence, as explained in Halachah 26.

These individuals are all considered mentally and/or emotionally challenged, and theirdeeds are not considered of consequence with regard to Scriptural Law. As mentionedabove, there are opinions that maintain that chalitzah performed by a deaf-mute is unac-ceptable, but not of no consequence whatsoever.

E.g., a yevamah who is pregnant.

The commentaries explain that the Rambam’s opinion is that such a man should notperform chalitzah at all. Other commentaries maintain that if the stump of the yavam’s legcan be placed in a shoe and that shoe tied beneath his knee, the chalitzah is acceptable.Although the Rambam accepts, after the fact, chalitzah performed when the straps of theshoe are tied below the yavam’s knee, that is only because it is theoretically possible tohave tied them on his foot. When it is impossible to tie the shoe on to his foot, as in theinstance at hand, the chalitzah should not be performed (Maggid Mishneh).
The Shulchan Aruch (Even HaEzer 169:35) mentions both opinions, but appears to favorthe Rambam’s view. The Beit Yosef states that according to the Rambam, such a chalitzah isof no consequence at all. The Beit Shmuel 169:33 states that since there are authorities whomaintain that such a chalitzah is acceptable, the later authorities agree that a woman may notperform yibbum after such a chalitzah.

After the fact, if a yavam does not press his heel to the ground in an ordinary instance, the chalitzah is, nevertheless, acceptable. The distinction between an ordinary chalitzah and thecase at hand is that ordinarily, it is possible for the yavam to press his heel to the ground, andtherefore the fact that he does not actually do so is not significant. In this instance, the yavamis incapable of doing so. Hence, the chalitzah is unacceptable.
Although the Ra’avad and others differ with the Rambam on this issue, the Shulchan Aruch (Even HaEzer 169:34) accepts the Rambam’s view.

A cloth shoe does not protect the foot at all; therefore, it is not considered a shoe(Yevamot 103a). This ruling is also applied in other contexts— e.g., on Yom Kippur,when we are forbidden to wear shoes, it is permitted to wear a cloth shoe (Hilchot Sh’vi-tat Asor 3:7).
The Rashba and others maintain that there is no difference between a cloth slipper anda shoe made from the other substances mentioned. This is the view quoted by the Shulchan Aruch (Even HaEzer 169:22).

These substances offer some protection, and so the chalitzah is of some consequence.Nevertheless, when the Torah uses the word na’al, the intent is always a leather shoe.

This applies after the fact. A priori, none of these situations is acceptable.

The same rules apply with regard to a shoe made from any of the other substances men-tioned in the previous halachah and covered with leather (Maggid Mishneh).

In the present age, when the Rabbinic court owns a special chalitzah shoe, it is customaryto give it to the yavam as a present before the ceremony.

See Hilchot Tum’at Tzara’at, Chapter 12, which describes the process in which a garmentor shoe affected by tzara’at is judged by a priest. There are two stages to this process: one inwhich the article is ‘‘quarantined’’ for a period of a week to determine whether it has actuallybeen affected, and a second stage during which the priest declares that the article is affectedand must be burned.

Rashi (Yevamot 103b) interprets this as a leather covering placed on the feet of an idol toprevent damage when it is transported from place to place. Thus, the sandal is placed in thecategory of ‘‘an accessory to a false deity.’’

For it is abhorrent to use an article associated with impurity or false deities for the pur-pose of a mitzvah (Yevamot 103b).

The rationale is that the performance of mitzvot is not considered to be a personal benefit.

The difference between this and the previous instance can be explained as follows: It is possible to nullify the connection between ‘‘an accessory to a false deity’’ and the worship of the false deity. (See Hilchot Avodat Kochavim 8:8-9.) As such, there is a possibility that such a sandal will not have to be destroyed. An object offered to a false deity, including the hide from which a sandal was made, can never be separated from its association with the false deity (ibid.). As such, it is condemned to be destroyed, forbidden for eternity and considered as if it did not exist.

See Hilchot Avodat Kochavim, Chapter 4, which describes the laws governing such a city.All the property in the city is condemned to be burned, and thus it cannot be used for chali-tzah, for the reasons described above.

Yevamot 102a questions whether the Torah’s intent is that the yevamah must bare the yavam’s foot, in which instance these examples would be acceptable, or she must remove hisshoe in the ordinary manner, in which instance they would not be acceptable. Since thequestion remains unresolved, the Rambam rules stringently.

Our translation is based on the Aruch. It is possible that it is not precise according tothe Rambam’s view. The intent, however, is definitely a sharp pungent herb.

The intent is that she must spit again in order for the chalitzah to be performed asrequired. Even if she does not spit at all, the chalitzah is acceptable after the fact, as statedin Halachah 12 (Maggid Mishneh).

Rabbenu Asher differs and maintains that a yevamah who spits blood need not spitagain, even if she does not suck her wound. His view is accepted by the Shulchan Aruch (Even HaEzer 169:40).

The fact that spittle is mixed with blood or another substance does not disqualify it.

The intent is that the spittle must pass in front of or below the yavam’s face. If the yeva-mah was taller than the yavam and the wind moved her spittle away before it passed beforehis face, the spitting is not acceptable.

Although a priori the judges must see the spittle, as stated in Halachah 7, after the facttheir failure to do so does not render the spitting unacceptable.
In Yevamot 106b, a phrase ‘‘before the eyes of the elders’’ (Deuteronomy 25:9) is cited as a support for this requirement. Nevertheless, the Rabbis explain that the requirement isRabbinic and not Scriptural in origin, and the verse is merely an asmachta. See the Beit Shmuel 169:39.

Note the Maggid Mishneh, which mentions that there is a dispute among the Rabbisabout this issue. The rationale for the position that the chalitzah is acceptable is that in thisinstance, the yavam did intend to free the yevamah from her obligation to him. (See also Shulchan Aruch, Even HaEzer 169:52.)

For as mentioned in Halachah 8, the chalitzah must be performed with the intent ofreleasing the woman from her obligation.
The chalitzah is, however, effective, in that it prevents the man (or his brothers) fromever performing yibbum with this woman. Therefore, the man is compelled by the court toperform an acceptable chalitzah, for from this point on he has nothing to lose, and he canenable the woman to remarry through his act (Rashba, as quoted by Maggid Mishneh;Shulchan Aruch, loc. cit. 169:51).

This applies even if the condition is stated in a manner that meets the requirements ofconditional statements (Shulchan Aruch, loc. cit.:50).

If such a condition is made, the woman is, however, rightfully obligated to pay theamount she agreed to pay, unless she has a reason for which she considers the yavam asunfit to marry her that the court would accept [Shulchan Aruch (ibid.)].

Based on Hilchot Gerushin 6:19, it would appear that the intent is that he tells twowitnesses that he does not want to perform the chalitzah, the chalitzah should be nullified,because he is being compelled to perform it.

Yevamot 106a establishes an equivalence between divorce and chalitzah with regard tothese laws. On this basis, the Rivash (Responsum 482, quoted by the Kessef Mishneh in thegloss on Halachah 16) raises a difficulty, noting that when a husband issues a protest regarding a get, the get is nullified entirely. With regard to chalitzah, however, theRambam rules that it is merely unacceptable.
The Rivash offers a resolution, explaining that when a protest is issued with regard to a get, the get itself becomes nullified, and therefore the divorce is of no consequence at all.With regard to chalitzah, however, the yavam did perform all the required acts. His protest isaccepted to the extent that it is considered that he performed these acts without intending torelease the woman from her obligation. This, however, merely causes a chalitzah to beunacceptable, as stated in Halachah 16. It does not nullify it entirely.

See Hilchot Gerushin 6:20.

The equivalence established by Yevamot 106a applies in this context as well. The Ram-bam discusses the laws governing a get given under compulsion in Hilchot Gerushin 2:20.

This refers to a situation analogous to those described in Chapter 2, Halachah 14, or Chapter 6, Halachah 4, in which the person should be compelled to perform chalitzah.
The Rama (Even HaEzer 169:13) states that even according to the Ashkenazic authorities who maintain that the mitzvah of chalitzah takes precedence, a yavam may be compelled toperform chalitzah only for these reasons.

For, as stated in Hilchot Gerushin loc. cit., the person’s actions are consider to be per-formed voluntarily, because:
He wants to be part of the Jewish people, and he wants to perform all the mitzvotand eschew all the transgressions; it is only his evil inclination that presses him.Therefore, when he is beaten until his [evil] inclination has been weakened, and heconsents, he is considered to have [acted] willfully.

I.e., as opposed to acting as agents for a Jewish court.

See Chapter 1, Halachah 13.

As mentioned above, there is a difference of opinion among the Rabbis if the Rambam’sintent is that these acts of chalitzah are acceptable according to Scriptural Law or not.

The Maggid Mishneh states that the woman should, however, be forced to separatefrom her second husband until she performs an acceptable chalitzah. The Shulchan Aruch(Even HaEzer 169:55) follows this ruling.

As stated in Halachah 16.

The Kessef Mishneh states that the Rambam’s ruling alludes to the following law: Ifneither the yevamah nor the yavam has the intent to perform chalitzah, the fact that sheremoves his shoe is of no consequence, and she is permitted to perform yibbum. Note thediscussion of this subject in Sefer HaKovetz.

This distinguishes it from a bill of divorce (a get), which is actually necessary to bring about the divorce. For that reason (as implied by Hilchot Gerushin 11:9), it need not bewritten for the sake of the man and the woman, nor is it bound by the other details thatapply to a get.
Note, however, the Shulchan Aruch (Even HaEzer 169:56), which states that the paperon which the document is written must be ruled with a stylus (i.e., sirtut is required),because it contains Biblical verses.

The Rambam is emphasizing that we do not suspect that perhaps the court erred andpresided over a chalitzah without knowing the identity of the parties involved.

For as stated in Halachah 5, at the outset five judges are necessary. Nevertheless, it isthe presence of three that is considered significant.

Using the Hebrew words of the verse.

We have included these lines based on the standard printed texts of the Mishneh Torah, although it is highly likely that they are a printer’s addition. They are not found in most early manuscripts and printings. Moreover, it is likely that they are a later printer’s addition because the Rambam does not mention witnesses signing this document, but rather only the judges who presided over the chalitzah.

See Halachah 29.

The Rambam concludes Hilchot Gerushin by stating:
Do not wonder at the fact that our Sages released the prohibition [against a marriedwoman], which is considered a very severe matter, on the basis of the testimony of a woman, a servant or a maid servant, statements made by a gentile in the course ofconversation, a written statement, or [testimony] that was not investigated by theordinary process of interrogation, as we have explained.
[These leniencies were instituted] because the Torah required the testimony of twowitnesses, and all the other details of the laws of witnesses only with regard tomatters that cannot be verified definitively except via witnesses and their testimony— e.g., that one person killed another, or that one person lent money to another.When, by contrast, the matter can be verified definitively without the testimony ofa witness, and the witness cannot justify [his statements] if they are not true— e.g.,when one testifies that a person died, the Torah did not necessitate [that therequirements of formal testimony be met in these instances]. For it is unlikelythat a witness will testify falsely.
As interpreted by the Noda B’Yhudah (Even HaEzer, Volume I, Responsa 27 and 33),the Rambam’s statement implies that since the matter will ultimately become public know-ledge, no formal testimony is required, and the statements of an individual who witnessedthe matter himself are sufficient to be accepted.

See Chapter 2, Halachah 2; Hilchot Ishut 22:14.

It appears in this context that the Rambam is referring to the literal meaning of theverse and not the halachic meaning, as stated in Chapter 2, Halachah 6.

This refers to an instance where the woman was a virgin when she married her firsthusband. Since she did not collect her due from her first husband, she is still entitled to amarriage contract of two hundred zuz. Otherwise, she would be granted only one hundred zuz, as is granted to other widows.

Although there is some rationale for the placement of the text of the ketubah here, because the Rambam refers to it in the previous halachah, the commentaries question whyhe did not include it in Hilchot Ishut, where the laws of ketubot are discussed in detail.
The version of the ketubah cited by the Rambam is employed with minor variations by theSephardic community today. In the Ashkenazic community, the variations are greater, butthe basis of the document remains the same.

For the coins of the Talmudic era were one part silver and seven parts base metal (Hilchot Ishut 10:8).

Based on Hilchot Ishut (ibid.), this phrase appears to be a printer’s addition, for theRambam considers the commitment to this sum to be a Rabbinic ordinance. It is lacking inmany authoritative printings and manuscripts of the Mishneh Torah. According toAshkenazic custom, the phrase should be included in the ketubah.

This conveys a man’s pledge to give his wife sha’arah (her sustenance), kesutah (herclothing) and onatah (her conjugal rights). These constitute a man’s fundamentalobligations in marriage, as stated in Exodus 21:10. (See also Sefer HaMitzvot, negativecommandment 262; Hilchot Ishut 12:2.)

I.e., to provide his wife with her provisions and clothing.

I.e., a kinyan sudar, the exchange of a handkerchief that serves to formalize the acquisi-tion of property, or the establishment of a binding contractual agreement.

An agreement made facetiously, without the desire to keep it.

The essential requirement of the marriage contract of a widow is only one hundred zuzim. In order to explain this reduction, the marriage contract mentions her status.

This is necessary for the reasons mentioned previously and also to identify the womanas being forbidden to the priesthood. Even if this husband leaves her a widow, she may notmarry a priest, because of her previous divorce.

Such a woman is forbidden to the priesthood, as stated in Hilchot Issurei Bi’ah 18:17.

If a woman had engaged in intimate relations previously outside the context ofmarriage, she should also be given a ketubah of this amount according to many autho-rities. Others maintain that she should be given the amount usually given to a virginbride, so that she will not be publicly embarrassed. Others differentiate between a womanwho had relations only with her prospective husband (in which case, the second ruling isfollowed) and one who had relations with others (in which case the first ruling is followed).

The commentaries note the apparent contradiction between the Rambam’s rulinghere [which is also reflected in his Commentary to the Mishnah (Sotah 2:4)], and hisruling in Hilchot Sefer Torah 7:16, where he states that one may write three words, butnot four, without ruling the writing surface. The Maggid Mishneh notes that both of theseopinions have their source in Megillah 7b. He and other commentaries discuss this issue in Hilchot Sefer Torah.
The contradiction was brought to the attention of the Rambam’s grandson, RabbiYehoshua, who states that the ruling in Hilchot Sefer Torah should be followed, sincethere the subject is given full focus, while in Hilchot Yibbum the matter is mentionedtangentially. Significantly, however, the Shulchan Aruch (Yoreh De’ah 284:2) differs andfollows the more stringent view.

See Chapter 1, Halachah 19.