006 - הִלְכוֹת יִבּוּם וַחֲלִיצָה פֵּרֶק ו

Laws of Yibbum and Chalitzah, Chapter 6

1. There are brothers who are eligible for yibbum or chalitzah; and there are brothers who are not eligible, neither for yibbum nor for chalitzah, and have no connection at all—their yevamah is permitted to marry another. There are brothers who are eligible for chalitzah but not for yibbum; and there are brothers who are eligible for yibbum but not for chalitzah.

2. The following have no connection at all: a saris chamah (a man who is a eunuch from birth) and an androgynos, because they are not fit to have children, and they never had a time when they were fit.

3. The following perform yibbum but not chalitzah: a deaf-mute, a person who is mentally incompetent, and a minor, because they do not have the mental capacity to perform chalitzah. When a deaf-mute performs yibbum, he can never divorce her, because his act of intercourse makes her a fully married woman, but his divorce is not fully effective. And a boy of nine years and one day who performs yibbum cannot divorce until he grows up, as explained.

4. The following perform chalitzah but not yibbum: those of doubtful status, such as when there is a doubt of a forbidden relationship; a man with crushed testicles or severed organ, and similar types of those who are sterile; and an elderly man who has become very weak and frail. If a saris adam (a man who became a eunuch later in life) has intercourse, he acquires her, since he once had a time when he was fit, and he may divorce her with a get, because he is forbidden to enter the congregation. A tumtum (a person whose sexual organs are indeterminate) performs chalitzah but not yibbum, because his status is in doubt; but if he is torn open and found to be male, if he wishes, he may perform chalitzah, or if he wishes, yibbum. All other brothers may either perform chalitzah or yibbum.

5. There are yevamos who are eligible for chalitzah or yibbum; and there are yevamos who are eligible for yibbum but not for chalitzah; and there are yevamos who are eligible for chalitzah but not for yibbum; and there are yevamos who are not eligible for either chalitzah or yibbum, and have no connection at all, and are permitted to marry another.

6. The following are subject to yibbum but not chalitzah: a deaf-mute woman, a woman who is mentally incompetent, and a minor girl, because they do not have the mental capacity to recite and understand. If the yavam wishes to divorce the deaf-mute woman with a get after intercourse, he may divorce her.

7. The following perform chalitzah but not yibbum: those subject to negative prohibitions, secondary forbidden relationships, and positive prohibitions, as will be explained. Any woman who is possibly divorced performs chalitzah but not yibbum, lest he come to violate a forbidden relationship, for the wife of his brother whom he divorced is forbidden to him as a forbidden relationship. But a woman who is possibly betrothed to his brother is like all other yevamos, and may perform chalitzah or yibbum, for there is nothing here to be concerned about. Likewise, the wife of a deaf-mute, an elderly woman, and a barren woman are like all other yevamos—if he wishes, he may perform chalitzah; if he wishes, yibbum—for the elderly and the barren woman once had a time when they were fit.

8. The following are exempt from chalitzah and yibbum: the wife of a saris chamah and an androgynos, the wife of a person who is mentally incompetent, the wife of a minor, an aylonis (a woman who never matures), and one who is a forbidden relationship. As it says, "so that his name will not be erased from Israel" (Devarim 25:6)—this excludes a saris chamah and an androgynos, whose name is already erased, since they were never fit to have children from the outset, and they are a distinct category. "And it shall be, the firstborn that she bears" (Devarim 25:6)—this excludes an aylonis, who was never fit to bear children from the outset. "The wife of the deceased shall not be" (Devarim 25:5)—this excludes the wife of a person who is mentally incompetent and the wife of a minor, because they have no legal marital status at all. "And he shall take her to him as a wife" (ibid.)—this excludes a forbidden relationship, for there is no valid marriage with her.

9. How is a yevamah who is a forbidden relationship to her yavam? For example, if she is his wife's sister, or her mother, or her daughter—she is exempt from chalitzah and yibbum, and he has no connection to her at all, as it says, "and he shall take her to him as a wife and perform yibbum with her" (Devarim 25:5)—only one with whom marriage and betrothal are effective is subject to yibbum.

Laws of Yibbum and Chalitzah, Chapter 6

10. If the yevamah is forbidden to her yavam by a prohibition of a negative commandment, or a positive commandment, or if she is a secondary relative, she performs chalitzah but does not undergo yibbum. Why does she require chalitzah? Because there is a potential for marriage, since kiddushin takes effect with them, and therefore they are bound to the yavam. By strict law, they should be permitted to perform yibbum, since yibbum is a positive commandment, and wherever you find a positive commandment and a negative commandment, the positive commandment overrides the negative commandment. However, the Sages decreed that those subject to negative commandments and secondary relatives should not perform yibbum, as a safeguard lest he come to have a second act of intercourse with her, and that intercourse is forbidden and there is no mitzvah involved, for the mitzvah of yibbum applies only to the first act of intercourse. Therefore, if he transgressed and had relations with his yevamah who was forbidden to him by a negative commandment or a positive commandment, and certainly if she was a secondary relative, he acquires her as a full acquisition and must divorce her with a get, and she and all her co-wives are permitted to marry others, since they have been released.

11. If a yevamah is a widow from marriage, and a Kohen Gadol has relations with her, her co-wife is not released, because a positive commandment does not override a negative commandment and a positive commandment together. And since he did not acquire her as a full acquisition according to the Torah, her co-wife is not permitted to marry others until she performs chalitzah.

12. If the yevamah is an ervah to her husband—for example, if he transgressed or erred and married his paternal sister, and she fell before his brother for yibbum—she is not his wife, since kiddushin does not take effect with her, and she is not subject to yibbum or chalitzah. But if she had a co-wife, the co-wife performs chalitzah or yibbum. And if this woman who is an ervah to the husband is permitted to the yavam, and the yavam wishes to marry her and to perform yibbum with her co-wife, he is permitted to do so.

13. If the yevamah was forbidden to her husband by a negative commandment, or a positive commandment, or was a secondary relative to the husband, but was not forbidden to the yavam for any of these reasons, she is permitted to the yavam—except for a case where a man remarries his divorced wife after she had married another and then died; in that case, she performs chalitzah but does not undergo yibbum. Likewise, if a yevamah is a possible ervah to the yavam, or a possible ervah to the husband, she performs chalitzah but does not undergo yibbum. Therefore, if someone betrothed a woman with doubtful kiddushin, and afterwards his brother, who was married to her sister, died, and this woman fell to him for yibbum, and she is a possible sister of his wife—she performs chalitzah but does not undergo yibbum, and he must divorce his wife with a get out of doubt. Both are forbidden to him: his yevamah, because she is a possible ervah; and his betrothed, because she is a possible close relative of his chalutzah, which is like a secondary relative, as we have explained.

14. If a man died and left two wives, one of whom is forbidden to the yavam as an ervah and the other is not an ervah—just as the ervah is exempt from chalitzah and yibbum, so too is her co-wife exempt. There is no bond of zika to this household at all, as it is stated: "who will not build up his brother's house" (Devarim 25:9)—a household in which he can marry whichever of them he wishes is one to which he is bound; but a household in which he cannot marry part of it, since he cannot marry her, he does not build even the part that was permitted. Thus, the co-wife of the ervah is considered an ervah to him because of the prohibition of his brother's wife, since he has no bond to her.

15. Therefore, if Reuven died and left two wives, one of whom is an ervah to Shimon and both are permitted to Levi—Shimon has no bond to this household, and both wives are under Levi's bond. If Levi performs yibbum with one of them, who is the co-wife of Shimon's ervah, and he had another wife, and Levi died, and both fell before Shimon—both are exempt from chalitzah and yibbum from Shimon: one because she was the co-wife of an ervah, and the other because she is her co-wife. The same law applies to the co-wife of a co-wife, and so on, forever—for any woman to whom he has no bond remains forever prohibited as his brother's wife.

16. Similarly, the wife of a brother who was not in his world—since he has no connection to her, as it is stated, "When brothers dwell together" (Devarim 25:5), meaning only when both of them are in the world together. If there was never a time when they both existed in the world, she is forbidden to him forever as a forbidden relation because she is his brother's wife, and she exempts her co-wife.

17. How so? If Reuven died and left a wife, and she fell before Shimon for yibbum, and after Reuven died, Levi was born—whether Levi was born before Shimon performed yibbum with Reuven's wife or after he performed yibbum—Reuven's wife is forbidden to Levi forever. Therefore, if Shimon died and this woman and her co-wife fell before Levi, both are exempt from chalitzah and from yibbum.

18. If Shimon performed maamar with his yevamah, Reuven's wife, and died before he consummated the marriage with her, Levi performs chalitzah with her co-wife but does not perform yibbum, because maamar does not acquire the yevamah with a complete acquisition, as we have explained.

19. A woman who committed adultery willingly and with witnesses while married to her husband, and he died before divorcing her, and she fell before the yavam—she is exempt from chalitzah and from yibbum, and so is her co-wife, as if she were a forbidden relation to the yavam. This is because impurity is written regarding her as with forbidden relations, as it is stated, "and she is defiled" (Bamidbar 5:13, 5:14). But a sotah whose husband died before she drank the bitter waters, or who is not fit to drink but only to be divorced—she performs chalitzah but not yibbum; and if she had a co-wife, her co-wife is permitted and may perform chalitzah or yibbum.

20. Similarly, if there are two yevamos coming from one house, and one of them is a secondary forbidden relation to the yavam, or from those prohibited by a negative commandment, or from those prohibited by a positive commandment, or is an aylonis—her co-wife is permitted and may perform chalitzah or yibbum. But if one performed chalitzah with his yevamah, and then her sister, or her mother, or similar relatives, married his brother, and he had another wife, and he died and both fell before him—just as the relative of his chalutzah is forbidden to him, so too is her co-wife forbidden; and both are like secondary forbidden relations to him, and they perform chalitzah but not yibbum. And why did they prohibit the co-wife of the relative of his chalutzah? Because she can be confused with the co-wife of his chalutzah.

21. If there are two yevamos coming from one house, and one of them is a forbidden relation to the yavam, and that forbidden relation is an aylonis—her co-wife is permitted and may perform chalitzah or yibbum, since the aylonis is not fit for yibbum, she is considered as if she does not exist, and the connection falls only upon her co-wife. Similarly, if his brother divorced the forbidden relation or she refused him before he died, or she died during her husband's lifetime, and then his brother died—her co-wife is permitted and may perform chalitzah or yibbum. And we do not say that since she was once a co-wife of a forbidden relation, she should be forbidden forever, for the co-wife is not forbidden unless she is the co-wife of a forbidden relation at the time of falling to yibbum.

22. If the one who is a forbidden relation to the yavam was betrothed to his brother who died with uncertainty, or was divorced from him with uncertainty, or was a minor fit for refusal and did not refuse his brother during his lifetime, even if she refused the yavam—her co-wife performs chalitzah but not yibbum.

23. If the co-wife of the forbidden relation went and married another, and afterwards it was found that the forbidden relation was an aylonis—the co-wife must leave her husband and her yavam, and she requires a get from her husband and chalitzah from the yavam in order to permit her to marry anyone else.

24. If the yavam performed yibbum with the co-wife because they thought the forbidden relation was an aylonis, and it was found that the forbidden relation was not an aylonis—the co-wife must leave the yavam with a get, and the child is a mamzer.

25. If there are three brothers, two of whom are married to two sisters, and one is married to a woman who is not related to the sisters—if the one married to the unrelated woman dies, and afterwards one of the husbands of the sisters dies—the unrelated woman performs chalitzah and does not undergo yibum, because she is the co-wife of the sister of his wife, due to the bond created by the brother who died last. Moreover, even if one of the husbands of the sisters divorced his wife after the one married to the unrelated woman died, and then the one who divorced his wife died—the unrelated woman still performs chalitzah and does not undergo yibum. Since she became the co-wife of the sister of his wife through the bond, even for a single moment, if she were to undergo yibum, people might come to permit yibum for her even if the one who died last had not divorced his wife.

26. Why did the Sages not make this decree regarding marriage itself? For when it comes to a co-wife of an ervah (a woman forbidden due to a close relationship) in marriage, if the ervah is divorced and then her husband dies, her co-wife is permitted to the yavam, as we have explained. This is because the prohibition of the co-wife of an ervah in marriage is well known to all, and people do not come to permit the co-wife unless the ervah was divorced. But the prohibition of the co-wife of an ervah through a bond (zika) is not well known to all, and people might come to permit the co-wife even if the ervah was not divorced.

27. If there are three brothers married to three unrelated women, and one of them dies, and the second performs maamar (betrothal act) with his yevamah, and then dies before consummating the marriage, so that both women fall before the yavam—these women perform chalitzah and do not undergo yibum. This is because the one with whom maamar was performed is now bound to two brothers, and it is as if she is the wife of two deceased men. The Sages expounded and said, "the wife of the deceased" (Devarim 25:5)—not the wife of two deceased men. Therefore, any woman who is bound to two brothers performs chalitzah and does not undergo yibum, and so does her co-wife. Their prohibition is by rabbinic decree.

28. And why should he not perform chalitzah with the one with whom maamar was performed, who is bound to two brothers, and then perform yibum with her co-wife? This is a decree lest people say that two yevamos who come from one house—one performs chalitzah and one undergoes yibum. Therefore, they also prohibited her co-wife.

29. If he performed maamar with his yevamah and then gave her a get for the maamar, and then died—she returns to her original status, for the maamar that prohibited her has now been nullified. If he wishes, he may perform chalitzah with her; if he wishes, he may perform yibum.

30. If a boy nine years and one day old had relations with his yevamah and then died while still a minor, and she fell a second time before his older brother—she performs chalitzah and does not undergo yibum. For the intercourse of a boy of nine is like maamar from an adult, as we have explained, and she is thus bound to two brothers.

31. If a woman was half maidservant and half free, and she became betrothed to Reuven, and was then freed and became betrothed to Shimon, and both of them died—she may undergo yibum with Levi, and she is not considered the wife of two deceased men. If Reuven's betrothal was valid, Shimon's betrothal is nothing; and if Shimon's betrothal was valid, Reuven's betrothal is nothing.