002 - הִלְכוֹת יִבּוּם וַחֲלִיצָה פֵּרֶק ב

Laws of Yibbum and Chalitzah, Chapter 2

1. By rabbinic decree, a yavam may not have relations with his yevamah until he betroths her in the presence of two witnesses with a perutah or something of equivalent value; this is called maamar. However, maamar does not acquire the yevamah with a complete acquisition, as will be explained. If one performs maamar with his yevamah without her consent, it is of no effect, for a woman is only betrothed willingly. If she is a minor from erusin, maamar may only be performed with the consent of her father.

2. Just as he betroths his yevamah, so too he recites the marriage blessings with a minyan of ten, and writes her a kesubah, as is the law for anyone marrying a woman. If he had relations with his yevamah without first performing maamar, he acquires her with a complete acquisition and does not need to betroth her again after the relations; however, he is given lashes of rebellion, and he must write her a kesubah.

3. If one had relations with his yevamah—whether unintentionally or intentionally, whether by coercion or willingly, whether he was intentional and she was unintentional or coerced, or she was intentional and he was unintentional or coerced, whether she was asleep or awake, whether he had relations with her in the usual manner or not in the usual manner, whether it was partial or complete intercourse—he acquires her.

4. In what case is this said? When he intended to have relations. But if he fell and was forced into her, or had relations with her while so drunk that he was not aware of anything, or while asleep—he does not acquire her. If he intended to strike the wall and instead struck his yevamah, he does not acquire her; but if he intended to strike an animal and instead struck his yevamah, he acquires her, since in any case he intended an act of intercourse.

5. If a yevamah underwent yibbum and within thirty days said, "I was not cohabited with," even if he says, "I did cohabit with her," we compel him to perform chalitzah for her, since he already divorced her with a get. If he has not yet divorced her, we compel him to have relations with her, or to perform chalitzah and divorce her with a get. If he divorced her after thirty days and she says, "I was not cohabited with," we request of him to perform chalitzah for her; and if he admits that he did not have relations, we compel him to perform chalitzah. If she says, "I was cohabited with," and he says, "I did not have relations with her," she does not require chalitzah, for he is not believed to prohibit her to all men after he has taken her in.

6. If someone died and left several brothers, the mitzvah is for the eldest to perform yibbum or chalitzah, as it says, "And it shall be, the firstborn who she bears..." (Devarim 25:6). By tradition, we learn that this refers only to the firstborn among the brothers, meaning the eldest of the brothers should stand in place of his deceased brother. The phrase "who she bears" means both whom the mother bore and whom the yevamah will bear.

7. If the eldest does not wish to perform yibbum, we approach all the brothers; if none wish, we return to the eldest and say to him, "The mitzvah is upon you—either perform yibbum or chalitzah." We do not compel the yavam to perform yibbum, but we do compel him to perform chalitzah.

8. If the eldest says, "Wait until the younger grows up, or until the one who is away returns, or until the deaf brother recovers, and we will consult with him, and if he does not wish, I will perform yibbum or chalitzah," we do not listen to him. Rather, we say to him, "The mitzvah is upon you—either perform yibbum or chalitzah."

9. Similarly, if the eldest is in another country, the younger brother cannot say, "The mitzvah is upon my elder brother; wait for him to return." Rather, we say to the one who is present, "Perform yibbum or chalitzah."

10. If a yevamah who is fit for yibbum does not wish to undergo yibbum, her law is like that of a woman who rebels against her husband, and we compel her yavam to perform chalitzah for her, and she leaves without a kesubah. If his brother left many wives, any of them whom the yavam requested for yibbum and she refused—she is the rebellious one, and he performs chalitzah for her, and she leaves without a kesubah. The other co-wives who were not requested receive their kesubah like other widows.

11. If there are several yevamim, and the eldest requests to perform yibbum with her, but she does not want him and prefers his brother, we do not listen to her, for the mitzvah is with the eldest.

12. If the eldest says, "I do not wish to perform chalitzah or yibbum; my brothers are before you," and one of the brothers requests to perform yibbum with her, but she does not want him and prefers another brother, and that brother wants her—she is not considered rebellious. Once the eldest, with whom the mitzvah is, has withdrawn, they are all eligible; and since she wants one of them and he wants her, she is not considered rebellious. Moreover, even if one of them is in another country, and she says, "I will wait until he comes and performs yibbum with me, but I do not want this one," she is not considered rebellious. We say to the one who is not the eldest but is requesting her: "If you wish to perform chalitzah for her and give her her kesubah, do so; but if not, since she wishes to wait until your brother comes, and you have no precedence over him, she may wait."

13. If the one she was waiting for comes and does not want her, we return to the one who requested to perform yibbum with her, and she does not want him. We say to her: "There is no one here who wishes to perform yibbum except this one, and the mitzvah of yibbum takes precedence—either be married to him, or leave without a kesubah, as is the law for any rebellious woman."

14. Any yevamah for whom we have said that her ruling is to perform chalitzah and not yibbum—she receives her kesubah, if she has a kesubah, like all other widows. Similarly, if her yavam is afflicted with boils, or has other defects that disqualify men, he performs chalitzah for her, and she receives her kesubah. If she developed defects while she was awaiting yibbum—her field was swept away—if he does not wish to perform yibbum, he must perform chalitzah and give her the kesubah.

15. If a yevamah vowed to derive no benefit from her yavam during her husband's lifetime, or vowed to derive no benefit from any Jew, we compel him to perform chalitzah for her, and she receives her kesubah. But if she made the vow after her husband's death, we request that he perform chalitzah for her; if he does not wish to, she is considered rebellious. Similarly, if her intent in making the vow, even during her husband's lifetime, was so that he would not perform yibbum with her, we do not compel him to perform chalitzah, unless she is considered rebellious and leaves without a kesubah.

16. If the yavam requests the yevamah to perform chalitzah, and she says, "I will not perform chalitzah and will not take my kesubah, but will remain in my husband's house like other widows," we do not listen to her, for she has been designated for this man from Heaven; if he wishes, he may perform yibbum, or if he wishes, he may perform chalitzah and give her the kesubah. Moreover, even if she says, "I will support myself from my own means and remain an agunah all my life," we do not listen to her, for the yavam can say to her, "As long as you are bound to me, I am not given a wife." Even if he is already married, it is possible that he will marry another wife, or there will be strife in his home because of the yevamah.

17. If a yevamah did not have a kesubah from her husband because she was forbidden to him, but she is permitted to the yavam, as will be explained—if the yavam wishes to perform yibbum, he may do so, but she does not have a kesubah from him, just as she did not have one from her husband. Her rights regarding additional amounts are as they were with her husband. But if her husband did not write her a kesubah, or she sold her kesubah to him, or forgave it to him—the yavam must write her a kesubah, like all other widows.

18. A yevamah—before her yavam has relations with her, or before he performs chalitzah for her—is forbidden to marry a stranger, as it says, "The wife of the deceased shall not be [married] outside to a stranger" (Devarim 25:5). If she marries another and has relations with him, both he and she are lashed, and he must divorce her with a get, even if she had several children; and she becomes forbidden to him and to her yavam. Her yavam performs chalitzah for her, and afterwards she is permitted to others.

19. If she became betrothed to another man, she does not become forbidden to her yavam; rather, the outsider who betrothed her must give her a get, and her yavam may either perform yibbum or chalitzah. If her yavam is a Kohen, who is not permitted to marry a divorcee, she must leave the outsider with a get, so that the sinner should not benefit, and her yavam should perform chalitzah for her.

20. If the outsider who divorced her from betrothal then married her after her yavam performed chalitzah, she is not removed from him. But if he divorced her from marriage, and then married her after she underwent chalitzah, she is removed from him, because she is similar to a married woman who remarried and her husband had relations with her, who is forbidden to both, as we have explained. And a yevamah who committed adultery while she was bound to the yavam does not become forbidden to her yavam; rather, if he wishes, he may perform chalitzah, or if he wishes, he may perform yibbum.

21. Any yevamah who is in doubt according to the words of the Sages whether she is bound to the yavam or not—for example, a yevamah who gave birth to a child whose months were not complete and he died within thirty days, whose law is that she must undergo chalitzah out of doubt, as we have explained—if she went and became betrothed to another man before chalitzah, her yavam performs chalitzah for her and she may remain with her husband. But if she became betrothed to a Kohen, who is forbidden to a chalutzah, he does not perform chalitzah for her, for we do not prohibit a man’s wife to him due to a rabbinic doubt. If the Kohen divorced her, or died, then she undergoes chalitzah, and afterwards she may marry others ab initio.