001 - הִלְכוֹת יִבּוּם וַחֲלִיצָה פֵּרֶק א

Laws of Yibbum and Chalitzah

Included in these are three mitzvos: two positive commandments and one negative commandment. They are as follows: (1) To perform yibbum. (2) To perform chalitzah. (3) That a yevamah may not marry a stranger until the authority of the yavam is removed from her. A woman who is eligible for yibbum is called “bound to the yavam.” The authority of the yavam is called “zika.”

The explanation of these mitzvos is in the following chapters:

Chapter 1

1. It is a positive commandment from the Torah for a man to perform yibbum with the wife of his paternal brother, whether the marriage was completed or only betrothal, if he died without offspring—as it says, “And he has no son… her yavam shall come to her” (Devarim 25:5). According to the Torah, he does not need to betroth his yevamah, for she is his wife, given to him from Heaven; rather, he comes to her. Her kesubah is paid from the property of her deceased husband.

2. If he does not wish to perform yibbum, or if she does not wish—he performs chalitzah for her, and afterwards she is permitted to marry another. It is a positive commandment from the Torah to perform chalitzah if he does not wish to perform yibbum—as it says, “She shall remove his shoe…” (Devarim 25:9). The mitzvah of yibbum takes precedence over the mitzvah of chalitzah.

3. The Torah says, “And he has no son” (Devarim 25:5)—this includes a son or a daughter, or the offspring of a son or the offspring of a daughter: as long as he has any offspring, whether from this wife or from another wife, this exempts his wife from chalitzah and from yibbum. Even if his offspring is a mamzer or an idolater, this exempts his wife.

4. But a son from a maidservant or from a non-Jewish woman does not exempt her: for offspring from a maidservant are slaves, and from a non-Jewish woman are non-Jews; it is as if they do not exist. It says regarding a maidservant, “The woman and her children shall belong to her master” (Shemos 21:4), teaching that her child is like her; and regarding a non-Jewish woman it says, “For he will turn your son away from following Me” (Devarim 7:4), removing him from being counted among the congregation. Even if his son from the maidservant was freed, or his son from the non-Jewish woman converted—they are like other converts and freed slaves, and do not exempt his wife. For example, if he had a son from his maidservant, and he freed him, and freed her, and married her, and died without offspring—she is subject to yibbum with his brother, even though her son from him is alive, since he already freed him.

5. If a man died and left his wife pregnant—if she miscarried after his death, she is subject to yibbum; but if she gave birth and the child was born alive into the world—even if he died at the moment of birth—his mother is exempt from chalitzah and from yibbum. However, by rabbinic decree, until it is certain that the child’s months were completed and he was born after a full nine months. But if it is not known how long she was pregnant—if the child survived thirty days, he is considered viable and exempts his father’s wives from chalitzah and yibbum; but if he died within thirty days, even on the thirtieth day—whether he died from illness, or fell from a roof, or was eaten by a lion—he is of doubtful viability, and therefore his mother performs chalitzah by rabbinic decree and does not undergo yibbum.

6. If a man has a brother in any way—even a mamzer or an idolater, whether minor or adult—from the moment his head and most of his body emerged into the world before his brother died, he binds his brother’s wife to yibbum. But if he had a brother from a maidservant or from a non-Jewish woman, he is not considered his brother for any matter and does not bind his wife; even if his birth was in holiness, since his conception was not in holiness, he is not his brother.

7. Brothers from the same mother are considered brothers only for mourning and for testimony; but regarding inheritance or yibbum and chalitzah—they are as if they are not brothers, for brotherhood is only from the father.

8. Converts who converted, and slaves who were freed, have no brotherhood at all, and are like strangers to each other. Even if one of them was conceived not in holiness and born in holiness, and the other was both conceived and born in holiness—they are like strangers; even twins born in holiness are not considered brothers unless both their conception and birth were in holiness.

Laws of Yibbum and Chalitzah, Chapter 1

9. If a man had many wives and died, the yibbum or chalitzah of one of them exempts the others. He does not perform yibbum with two, as it is stated: "Who will not build up his brother's house" (Devarim 25:9)—he builds one house, not two houses. Similarly, if he had many brothers, one of them performs chalitzah or yibbum with one of the yevamos, and the remaining co-wives are exempt.

10. If among these yevamos there are those who are fit for marriage to a Kohen and those who are disqualified, if he performs yibbum, he may do so with whichever he wishes. But if he performs chalitzah, he should perform chalitzah with the one who is disqualified, so as not to disqualify the one who is fit for a Kohen through chalitzah.

11. If many of his brothers died and their wives fell before him for yibbum, if it is possible for him to perform yibbum with all of them, he may do so. If not, he performs chalitzah with all of them, or he may perform chalitzah with whichever he wishes and yibbum with whichever he wishes—one from each house.

12. If one performs yibbum with his yevamah, her co-wives become forbidden to him and to the other brothers. If he or one of his brothers has relations with her co-wife, he transgresses a positive commandment, as it is stated: "Her yavam shall come to her" (Devarim 25:5)—to her, not to her and her co-wife. And the negative prohibition that is derived from a positive commandment is itself a positive commandment. Similarly, one who performs chalitzah with his yevamah—the chalutzah and all her co-wives become forbidden to the one who performed chalitzah and to the other brothers. All of them are forbidden by rabbinic law, like secondary forbidden relatives, since once his brother died childless, the prohibition of ervah was removed from all his wives; therefore, kiddushin takes effect with them, as with secondary forbidden relatives.

13. One who performs chalitzah with his yevamah—not only is she forbidden to him, but so are her relatives, such as her mother and her daughter. Similarly, she is forbidden to his son and to his brother. Even her secondary relatives are forbidden, such as her daughter's daughter's daughter; likewise, she is forbidden to his son's son's son. The general rule is: she is like his divorced wife. Similarly, if his yevamah died while she was still bound to him, he is forbidden to her relatives as if she had been his wife and died during his lifetime. All these prohibitions are by rabbinic law. However, a man is permitted to marry the sister of the co-wife of his chalutzah and the other relatives of the co-wife.

14. It is forbidden for the yavam to marry the relative of his zekukah, such as her mother or her daughter, until one of his brothers performs yibbum with her or he performs chalitzah and the bond is removed from her; then he may marry her mother or her daughter or her other relatives, even though all of them are forbidden to the brother who performed chalitzah or yibbum, as explained.

15. If one performs yibbum with his yevamah and then divorces her, if he wishes to remarry her, he may do so, because she is his wife in every respect, and there remains no prohibition upon her due to his brother—not by Torah law and not by rabbinic law.

16. It has already been explained in the laws of marriage that a boy of nine years and one day, his intercourse is considered intercourse; and this is a law received by tradition. Therefore, a minor yavam who wishes to perform yibbum with his brother's wife—if he is nine years and one day old, he may perform yibbum, but he does not perform chalitzah until he grows up and is examined, for the term "man" (Devarim 25:7, 25:9) is written in the section regarding chalitzah. If he is younger than this, his intercourse is not considered intercourse. And the intercourse of a boy of nine does not effect a complete acquisition; therefore, his yevamah is not permitted to a stranger until he has relations with her after he grows up, or until she performs chalitzah, as will be explained.

17. Similarly, a minor yevamah—if the yavam wishes to perform yibbum with her, he may do so; but she does not perform chalitzah until she grows up and is examined. Even if she had intercourse after the age of twelve, she does not perform chalitzah until she is examined and found to have the signs of maturity.

18. Just as the yavam does not perform chalitzah until he becomes a man, so too the yevamah does not perform chalitzah until she becomes an adult woman. If a minor yavam had relations with a minor yevamah, they should grow up together.

Laws of Yibbum and Chalitzah, Chapter 1

19. A yevamah may not undergo yibbum or chalitzah until she waits ninety days, not counting the day of death, nor the day of yibbum or chalitzah—just as with all other women. Why does she not perform chalitzah within ninety days? Because she is not yet fit for yibbum, and it is stated: "But if the man does not wish..." (Devarim 25:7), "then she shall remove his shoe..." (Devarim 25:9)—at a time when she is eligible for yibbum, she is eligible for chalitzah; and whenever she is not eligible for yibbum, she is not eligible for chalitzah. If he performed yibbum with her or did chalitzah within the three months—since she is not pregnant—she is thereby released and requires nothing further.

20. If one performs chalitzah with his yevamah and it is found that she was pregnant and she gave birth—if the child is viable, she is as one who was never subject to chalitzah by him, and she is permitted to marry a Kohen, and he is permitted to marry her relatives. But if she miscarried, or the child did not survive thirty days after birth—he or one of his brothers must perform chalitzah with her again, for the chalitzah of a pregnant woman is not valid chalitzah, and the yibbum of a pregnant woman is not valid yibbum.

21. Therefore, if one consummates yibbum or performs chalitzah with his yevamah who is pregnant, her co-wife may not marry until this one gives birth, for the child does not permit her until it emerges into the world.

22. If one consummates yibbum with his yevamah and it is found that she was pregnant, they are separated and must wait: if she miscarries, he may remarry her; but if she gives birth—even if the child dies on the day it is born—he must divorce her with a get and perform chalitzah with her, and only afterward may she marry others. If the child survives thirty days after birth, it is considered a viable child, and she does not require a get from him, because she is forbidden to him as an ervah.

23. If she gave birth more than six months after yibbum, and the child is viable—the child is of uncertain status: perhaps a nine-month child of the first husband, or a seven-month child of the second. Therefore, he must divorce her with a get, and the child is kosher. But if he had relations with her after she gave birth, any children born afterward are of doubtful mamzer status.