Yibbum vChalitzah - Chapter Five

This refers to a get given before the brother made a statement of intent to marry the yevamah (ma’amar). See Halachot 4 and 5.

See Chapter 2, Halachah 1.

In his Commentary to the Mishnah (Yevamot 3:5), the Rambam writes that at the outset,the get should precede the chalitzah.

I.e., the get nullifies the kiddushin brought about by the ma’amar.

Whenever the Rambam uses the expression ‘‘It appears to me,’’ he is referring to a rulingthat is not specifically mentioned in the Talmud. In this instance, Rashi (Yevamot 32a, 52a)agrees with the Rambam, but the Ra’avad and Tosafot differ and maintain that if the yavam who gave her the ma’amar and the get desires, he may still perform yibbum with her.The Shulchan Aruch (Even HaEzer 170:15) quotes both opinions, but appears to favor thatof the Rambam.

In Halachah 1. The Rambam is adding that even if the yavam had already given the yevamah a ma’amar, this ruling still applies.
If the yavam gives a get without specifying the reason, we assume that his intent is tosever his connection with the yevamah and not merely to nullify his ma’amar (Rashi,Yevamot 32a; Rama, Even HaEzer 170:15).

Once a yavam has performed chalitzah, neither he nor his brothers may perform yibbum afterwards. Similarly, once a get has been given, the yavam is obligated to perform chali-tzah and may not perform yibbum. Since yibbum is not relevant, the ma’amar is not accept-able.

For only one of the wives of the deceased brother may be married by a yavam, as statedin Chapter 1, Halachah 9.

Since a ma’amar does not complete the bond between the yavam and the yevamah, the con-nection between them can be disqualified because of undesirable actions, such as thosementioned by the Rambam.

Although the ma’amar that follows the relations is nullified, the marriage bondestablished by the relations remains in effect (Rav David Arameah).

This ma’amar is disqualified by the actions that follow it.

This ma’amar is disqualified by the actions that preceded it.

Although the ma’amar is unacceptable and yibbum is not allowed, a get is necessary(from both brothers, when two ma’amarim are involved), nevertheless, to nullify the kiddu-shin. Afterwards, one of the brothers should perform chalitzah to enable the woman tomarry another man.

According to Rabbinic Law, the yavam should give the yevamah a ma’amar beforeentering into relations with her. Nevertheless, after the fact, if he failed to give her such ama’amar, their relations still establish a marriage bond between them that the Sagesallowed to continue.

In all these instances, the yavam must divorce the yevamah with a get, because of theirrelations in which they engaged, and also perform chalitzah because of his original obli-gation to her. Similarly, he and/or his brothers must give a get to any of his deceasedbrother’s other wives if she was given a ma’amar in such an instance (Maggid Mishneh,based on Yevamot 50b).

See Halachah 12. See also Chapter 7, Halachah 9, from which it is apparent that when-ever a yavam cannot perform yibbum with his yevamah, the chalitzah he performs with heris deemed ‘‘inferior.’’

I.e., the deceased was married to many wives.

I.e., as mentioned above, unacceptable relations and/or an unacceptable ma’amar have an effect and nullify the possibility of performing yibbum with any of the deceased’s other wives.

There is a question among the commentaries if the word ‘‘each’’ is included in the textof the Mishneh Torah or not. The Maggid Mishneh maintains that this word should beincluded in the text. According to his interpretation, even if the yavam performs chalitzah with one of the deceased’s wives who did not receive a ma’amar or engage in relations with the yavam, this chalitzah does not remove the obligation from the deceased’s other wives,and each of them must perform chalitzah.
The Lechem Mishneh differs and maintains that the word ‘‘each’’ is a later addition.(And indeed most authoritative manuscripts and early printings of the Mishneh Torah sub-stantiate this contention.) According to this view, if the yavam performs chalitzah with oneof the deceased’s wives who did not receive a ma’amar or engage in relations with the yavam, this chalitzah removes the obligation from the deceased’s other wives, and none ofthem is required to perform chalitzah.
Even according to this view, if the yavam performs chalitzah with the yevamah whoreceived an unacceptable ma’amar or engaged in unacceptable relations, this chalitzah does not remove the obligation from the deceased’s other wives, and each of them mustperform chalitzah.
The Shulchan Aruch (Even HaEzer 170:19) quotes the Maggid Mishneh’s interpretationof the Rambam’s ruling, but mentions that other authorities differ.

In which instance she is forbidden to him by Rabbinic decree, as stated in Chapter 1,Halachah 12.

I.e., consecrating the woman by engaging in intimate relations with her, as stated in Hilchot Ishut 1:2.

In which case the relations with the second yevamah violate a positive Scriptural commandment.

For even when the relations violate a Rabbinic prohibition or a positive Scriptural com-mandment, a marriage bond is brought about, as stated in Hilchot Ishut 4:14.

Halachah 2.

As mentioned in Halachah 1, it is only through chalitzah that the connection is com-pletely dissolved.

As explained in the following halachah.

The intent is that the relations are of no consequence with regard to the laws of yibbum.They are, however, adulterous relations and if the yevamah engages in them willingly, sheis not permitted to remain married to her husband.

A person is forbidden to marry the women who are closely related to his divorcee. In this instance, although neither of these gittin is necessary, the prohibition is still applied in both cases.

Both brothers are not required to perform chalitzah in order for her to be permitted tomarry others. Performing chalitzah with her does not, however, cause the deceased’s otherwives to become permitted, as explained in Halachot 11 and 12.

See Halachah 13.

As mentioned in Chapter 1, Halachah 14, the same relatives who are forbidden to a man who divorces his wife are forbidden to a man who performs chalitzah.

This refers to ‘‘acceptable relations,’’ as stated in Halachah 11. If the relations are ‘‘unac-ceptable,’’ different laws apply (Maggid Mishneh).

If, however, the yevamah engages in these relations willingly, she must be divorced by her husband for committing adultery.

See Halachah 13.

I.e., the deceased left two or more wives and was survived by two or more brothers. One brother decided to perform yibbum with one of the widows. Unknowingly, another brother decided to perform yibbum with another widow, and it is not known who performed yibbum first.

For the marriage of one of them is sinful, transgressing a positive commandment. Since it cannot be determined whose marriage is sinful, both are required to divorce.

For it is not known that his brother performed yibbum, and even if he did perform yibbum, perhaps he did so after this brother performed yibbum. Since there are multipledoubts involved (sefek s’feikah), the yavam is not forced to divorce until he has determinedthat his brother has also performed yibbum.

The commentaries have questioned this ruling, based on Chapter 3, Halachah 16, whichrequires a woman to wait until she discovers what has taken place overseas, lest the chalitzahbe unnecessary, she discover that fact and marry a priest and an onlooker not know all thedetails of the situation. Such a scenario could also happen in the present situation.
There are commentaries that try to reconcile the Rambam’s ruling. For example, Mishneh LaMelech explains that in the present instance, the doubt could be protracted indefinitely,while in the previous case, everything is dependent on a woman’s giving birth, and the matter can be clarified after nine months. Nevertheless, because of these objections, the ShulchanAruch (Even HaEzer 170:20) does not mention this element of the Rambam’s ruling.

As mentioned in Chapter 1, Halachah 15 (and Hilchot Ishut 11:3), when a boy overnine years old enters into intimate relations with a woman, his actions are considered ofconsequence in certain contexts.
The Maggid Mishneh and Rashi (Kiddushin 19a) explain that when a minor above nineyears old enters into relations with a woman, he acquires her as his wife according to Scrip-tural Law. (Nevertheless, if another man enters into relations with her, the other man is notexecuted for committing adultery.) Our Sages, however, reduced the level of connectionestablished and caused their marriage bond to have only the effectiveness of a ma’amar.
[The rationale why yibbum performed by a minor is effective although a minor does notpossess the intellectual maturity to take responsibility for his conduct is that we find that yibbum does not require intent at all; what is significant is the act of intimate relations. (SeeChapter 2, Halachah 3.)]
Tosafot differ and maintain that, in this context, the relations of a nine-year old are of noconsequence according to Scriptural Law. Nevertheless, the Rabbis enforced a stringencyand considered these relations to be equivalent to a ma’amar.

This concept is illustrated in the halachah that follows, as is another consequence of theprinciple that the intimate relations that this youth engages in are considered equivalent toa ma’amar given by an adult.

As mentioned in Chapter 4, Halachah 16, chalitzah performed by a minor is of no con-sequence, because the passage concerning chalitzah explicitly mentions an ish— i.e., a malepast majority. Since chalitzah performed by a minor is of no consequence, a get given by himis of no consequence, because the disqualification caused by a get is an extension by theRabbis of the Scriptural prohibition caused by chalitzah.
Significantly, the Rambam’s statements here represent a reversal of his ruling in hisCommentary to the Mishnah (Yevamot 10:6), in which he rules that a get given by a minordoes disqualify a yevamah from performing yibbum with the minor’s brothers.

Had the younger brother been past the age of majority, he would have disqualified the yevamah from performing yibbum with his older brother, as stated in Halachot 7 and 14.

See Halachot 7 and 14.

Since the minor’s relations possess only the strength of a ma’amar, their effectiveness can be nullified by the actions of an older brother.

For the relations in which they engaged after the yavam attained majority complete the marriage bond.

As explained in Hilchot Ishut 2:11, a male who does not manifest signs of impotency isconsidered a minor until he attains the age of 35.

See Hilchot Ishut 4:7-9.

As explained in Hilchot Ishut 4:7 and Hilchot Gerushin 11:1, when a girl’s father died andshe is below the age of majority, our Sages ordained that her mother and/or brothers canarrange a marriage for her. This marriage is not binding according to Scriptural Law. Accord-ingly, when creating this option, our Sages gave the girl the possibility of nullifying themarriage before she reaches majority merely by making a verbal statement.

If, however, she marries, they would respect the limits of modesty and her husbandwould protect her (Yevamot 112b).

If, however, one is a mentally capable woman past the age of majority, yibbum or chalitzah should be performed with her— for her marriage is binding according to Scriptural Law— and not with those whose marriage is binding only by virtue of a Rab-binic ordinance.

For their marriage bonds all share the same status.

The marriage relationship of each one possesses an advantage over the other. The marriage with the minor, had it not been interrupted, could have blossomed into a marriage bond binding according to Scriptural Law. On the other hand, there is an advantage to the marriage to the deaf-mute, because the minor had the option of ending her marriage at will, while that of the deaf-mute was binding. As evident from Halachot 27 and 28, the marriage to the minor is preferable.

For just as she can dissolve her relationship with her husband while he is alive, she cannullify it afterwards, freeing herself from any obligation to the yavam (Hilchot Gerushin 11:3).
The Ra’avad differs and maintains that a minor is permitted to free herself from anobligation to the yavam through mi’un only when this facilitates the establishment of amarriage bond that is binding according to Scriptural Law. (See Halachah 30 and Chapter7, Halachah 15.) In this instance, however, she is not given the privilege. Instead, she mustwait until she attains majority and then perform chalitzah. The Shulchan Aruch (Even HaEzer 171:1) quotes the Rambam’s view.

Since the deaf-mute is not considered responsible for her actions, she cannot perform chalitzah. She must either perform yibbum or remain unmarried for the remainder of her life.
If the yavam performs yibbum with the minor, he may not perform yibbum with the deaf-mute, for he is permitted to perform yibbum only with one of his deceased brother’s wives.

The deaf-mute is not considered responsible for her actions. Nevertheless, sinceaccording to Scriptural and Talmudic Law a get may be given without the woman’sconsent, the divorce is binding (Hilchot Gerushin 10:23).

And performing yibbum with a woman who is consecrated only according to RabbinicLaw does not free a woman who is consecrated according to Scriptural Law from her obli-gation.

For, as mentioned in Halachah 14, after a yavam engages in relations with his yevamah,their relationship cannot be disqualified.

If the second wife does not perform mi’un, her consecration is also binding. Nevertheless, it involves the violation of a positive commandment. Moreover, a get is required for nullifying this marriage, and she becomes forbidden to the priesthood. If, however, she dissolves her marriage through mi’un, a get is not required.

For relations with her are forbidden, and yet her consecration is binding.

Although the Ra’avad differs with the Rambam and maintains that it is forbidden to remain married to the minor, the Shulchan Aruch (Even HaEzer 171:7) follows the Ram-bam’s ruling.

For the marriage to the minor is preferable to that of the deaf-mute.

Since the yavam entered into relations with the deaf-mute first, he is not able to remainmarried to the minor. She should therefore dissolve her obligation to him through mi’un.The Sages preferred this option rather than having her wait until she attains majority andreceives a get and chalitzah, because of the impression that the latter process might create(Or Sameach). Moreover, far fewer legal details are involved (Kin’at Eliyahu).
Note the Tur (Even HaEzer 171), which interprets the Ra’avad’s comments on this hala-chah as implying that the yavam should remain married to the minor. The Tur does notaccept this view.

Once the minor has performed mi’un, it appears that there is no obligation for the deaf-mute to be divorced, for the minor has uprooted her connection to her deceased husband,and as such, the relations with her seemingly should not affect the status of the deaf-mute.Nevertheless, our Sages ruled that the deaf-mute must be divorced, as a penalty, because the yavam should have waited to engage in relations with her until the minor performed mi’un (Or Sameach).
The Tur (loc. cit) differs and maintains that the yavam may remain married to the deaf-mute. The Shulchan Aruch (Even HaEzer 171:8) quotes the Rambam’s view, while the Ramamentions that of the Tur.

For her marriage was established through ‘‘acceptable relations.’’ Even if the other wifeof the deceased was mentally competent, relations with her would not disqualify the yavam’s marriage to the first yevamah.

Because she becomes consecrated through these relations. Nevertheless, continuing thismarriage involves a prohibition.

Since the marriage to the mentally competent woman is binding according to Scriptural Law, it supersedes the marriage to the deaf-mute.

She must be divorced, because the relations with the deaf-mute cause relations with her to be considered as ‘‘unacceptable relations.’’ Therefore, she must receive a get to nullify the consecration brought about by the relations, and chalitzah to nullify her obligation to her yavam.

For these are ‘‘acceptable relations.’’

Since the yavam entered into relations with the woman past majority first, he is not able to remain married to the minor. She should therefore dissolve her obligation to him through mi’un, rather than having her receive a get, because in this manner she is not disqualified from the priesthood.

In this way, the minor dissolves all connection to the yavam, and there is no prohibition against his remaining married to the woman past majority. This option is preferred so that the yavam will have performed an act of yibbum that is binding according to Scriptural Law.