Halacha
הלכה א
שְׁנַּיִם מִן הָאַחִין נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת וּמֵתוּ שְׁנֵיהֶם וְלֹא נוֹדַע אֵי זֶה מֵהֶם מֵת רִאשׁוֹן. הוֹאִיל וְאִי אֶפְשָׁר לְיַבֵּם שְׁתֵּיהֶן וַהֲרֵי זִקָּה נָפְלָה עַל שְׁתֵּיהֶן שְׁתֵּיהֶן חוֹלְצוֹת וְלֹא מִתְיַבְּמוֹת. וַאֲפִלּוּ הָיְתָה אַחַת מֵהֶן אֲסוּרָה עַל הַיָּבָם מִשּׁוּם שְׁנִיָּה אוֹ מֵחַיָּבֵי עֲשֵׂה אוֹ מֵחַיָּבֵי לָאוִין הֲרֵי אֵלּוּ חוֹלְצוֹת וְלֹא מִתְיַבְּמוֹת. אֲבָל אִם הָיְתָה אַחַת מֵהֶן עֶרְוָה עָלָיו כְּגוֹן שֶׁהָיְתָה אֵם אִשְׁתּוֹ אוֹ בִּתָּהּ. הֲרֵי אֲחוֹתָהּ מֻתֶּרֶת לוֹ וְרָצָה חוֹלֵץ רָצָה מְיַבֵּם. שֶׁהֲרֵי לֹא נָפְלָה זִקָּתוֹ עַל שְׁתֵּיהֶן, שֶׁאֵין זִקָּה עַל הָעֶרְוָה:
כסף משנה
1.
When two brothers were married to two sisters, [the brothers] both died, and it is impossible to know who died first,1The laws that apply when we do know which brother died first are stated in Halachot 3 and 4. [a third brother who remains alive] may not perform yibbum with both of them.2According to Scriptural law, it is forbidden to marry two sisters. As an extension of this prohibition, when one is obligated to perform yibbum with two sisters according to Rabbinic law, one is not allowed to marry either of them and must perform chalitzah with both. Since they are both obligated to him, they both must perform chalitzah and not yibbum.[The above ruling applies even] when one [of the yevamot] was forbidden to the yavam as a sh'niyah, or because of a positive commandment or a negative commandment.3For according to Scriptural law, the obligation of yibbum applies in all these instances, as stated in Chapter 6, Halachah 10. If, however, one [of the yevamot] was forbidden to the yavam as an ervah - e.g., she was his wife's mother or daughter - the sister is permitted [to the yavam]; he may perform either yibbum or chalitzah, as he desires. For both of the sisters were not obligated to him, since an ervah is not bound by this obligation.
הלכה ב
הָיְתָה אַחַת מֵהֶן אֲסוּרָה עַל יָבָם זֶה מִשּׁוּם עֶרְוָה. וְהָאַחֶרֶת אֲסוּרָה עַל הַיָּבָם הַשֵּׁנִי מִשּׁוּם עֶרְוָה. הָאֲסוּרָה לָזֶה מֻתֶּרֶת לְאָחִיו וְהָאֲסוּרָה לָזֶה מֻתֶּרֶת לְאָחִיו. שֶׁהֲרֵי נָפְלָה זִקַּת כָּל אֶחָד מֵהֶן עַל הַמֻּתֶּרֶת לוֹ בִּלְבַד. וְרָצָה חוֹלֵץ רָצָה מְיַבֵּם לְזוֹ הַמֻּתֶּרֶת לוֹ:
כסף משנה
2.
When in the above situation there were four brothers,] and one [of the yevamot] was forbidden to one of the yevamim as an ervah, and the other yevamah was forbidden to the other yavam as an ervah, [the yevamah] who is forbidden to one [yavam] is permitted to his brother, and [the yevamah] who is forbidden to the other [yavam] is permitted to his brother. For [in both instances] only [the yevamah] who is permitted to him is obligated [to each brother]. [Each one] may perform either yibbum or chalitzah with [the yevamah] permitted to him, as he desires.הלכה ג
מֵת אֶחָד מִן הָאַחִין וְנָפְלָה אִשְׁתּוֹ לְיִבּוּם וְאַחַר כָּךְ מֵת שֵׁנִי וְנָפְלָה אִשְׁתּוֹ לְיִבּוּם שֶׁהִיא אֲחוֹת הָרִאשׁוֹנָה וַהֲרֵי שְׁתֵּיהֶן קַיָּמוֹת. שְׁתֵּיהֶן חוֹלְצוֹת וְלֹא מִתְיַבְּמוֹת כְּמוֹ שֶׁבֵּאַרְנוּ:
כסף משנה
3.
[In the above situation,] if one of the brothers died [and his identity was known], and his wife became obligated to perform yibbum, and then the other brother died, his wife - the sister of the first wife - became obligated to perform yibbum; [as long as] both remain alive, they both must perform chalitzah and not yibbum, as we have explained.4In Halachah 1.הלכה ד
מֵתָה הָאַחֲרוֹנָה חָזְרָה הָרִאשׁוֹנָה לְהֵתֵּרָהּ וְחוֹלֶצֶת אוֹ מִתְיַבֶּמֶת. מֵתָה הָרִאשׁוֹנָה הֲרֵי אַחֲרוֹנָה בְּאִסּוּרָהּ עוֹמֶדֶת וְחוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. שֶׁהֲרֵי לֹא הָיְתָה רְאוּיָה לְיִבּוּם בִּשְׁעַת נְפִילָתָהּ. וְכֵן אִם קָדַם אֶחָד מִן הָאַחִין וְחָלַץ לָאַחֲרוֹנָה הֻתְּרָה הָרִאשׁוֹנָה לִשְׁאָר הָאַחִין שֶׁהֲרֵי הַזִּקָּה שֶׁאָסְרָה אוֹתָהּ הֱסִירָהּ אָחִיו בַּחֲלִיצָתוֹ:
כסף משנה
4.
If [the wife of] the second [brother] dies, the [wife of the] first becomes permitted again. She may perform either chalitzah or yibbum.If [the wife of] the first [brother] dies, the [wife of the] second remains forbidden. She must perform chalitzah and may not perform yibbum. [The rationale is that she was not fit to perform yibbum at the time she came before [her yavam].
Similarly, if one of the brothers performed chalitzah with the [wife of the] second [brother] first,5The Kessef Mishneh (and the Beit Shmuel 175:2) explain that this ruling applies only after the fact - i.e., he performed chalitzah with the second yevamah without asking Rabbinical guidance. Had he in fact asked the Rabbis, they would have prohibited it, lest he err and perform chalitzah with the other sister. Once, however, the chalitzah is performed, we do not fear that a mistake will be made by others on a subsequent occasion. the [wife of the] first becomes permitted to the other brothers. For the obligation that caused her to become forbidden was removed by his brother by performing chalitzah.
הלכה ה
וְכֵן אִם הָיְתָה הָרִאשׁוֹנָה עֶרְוָה עַל אֶחָד מִן הָאַחִין וְקָדַם וְיִבֵּם אֶת הָאַחֲרוֹנָה שֶׁהִיא מֻתֶּרֶת לוֹ הֻתְּרָה הָרִאשׁוֹנָה לִשְׁאָר הָאַחִין שֶׁהֲרֵי הָאַחֲרוֹנָה שֶׁאָסְרָה אוֹתָהּ עֲלֵיהֶן נִתְיַבְּמָה לְמֻתָּר לָהּ. אֲבָל אִם הָיְתָה הָאַחֲרוֹנָה הִיא שֶׁאֲסוּרָה עַל אַחַת מֵהֶן בִּלְבַד מִשּׁוּם עֶרְוָה הֲרֵי הוּא מְיַבֵּם לָרִאשׁוֹנָה וּשְׁאָר הָאַחִין אֲסוּרִין בִּשְׁתֵּיהֶן וְחוֹלְצִין וְלֹא מְיַבְּמִין כְּמוֹ שֶׁבֵּאַרְנוּ. וְאִם קָדְמוּ וְכָנְסוּ כָּל אֶחָד אַחַת מִן הָאֲחָיוֹת מוֹצִיאִין אוֹתָן מֵהֶן:
כסף משנה
5.
Similarly, if [the wife of] the first [brother] was forbidden to one of the brothers as an ervah, and he performed yibbum with [the wife of] the second [brother] who was permitted to him,6Since he was never permitted to marry the wife of the first brother who died, the wife of the second never became forbidden to him. the [wife of the] first becomes permitted to the other brothers. For the woman who caused her to be forbidden to them performed yibbum with a brother to whom she was permitted.If, however, [the wife of] the second [brother] was forbidden to one of the brothers as an ervah, he should perform yibbum with [the wife of] the first [brother],7Since he is not permitted to marry the wife of the second brother, the wife of the first never became forbidden to him. Hence, he should perform yibbum. but the other brothers are forbidden to perform yibbum with both of them.8The Rambam mentions both yevamot to teach that even if the brother who marries the first yevamah dies, she remains forbidden to his brothers. They must perform chalitzah instead, as we have explained.9See the previous halachah.
If [in the situation mentioned in the final clause of Halachah 3] each one of the brothers marries one of the sisters [without asking Rabbinical guidance first], they must be forced to separate.10This applies to both couples. The first yavam who marries a yevamah is forced to separate because he has transgressed a Rabbinic prohibition. Even though he did not transgress in marrying his yevamah, the second yavam is forced to separate from her, because his marriage to her was made possible by a forbidden act, the first yavam's marriage.
Significantly, this represents a reversal of the Rambam's opinion from his rulings in his Commentary on the Mishnah (Yevamot 3:1; Eduyot 5:5), where he rules that the couples may remain married. The Tur (Even HaEzer 175) subscribes to that view. Although the Shulchan Aruch (Even HaEzer 175:3) also mentions it, it appears that the Rambam's ruling in the Mishneh Torah is favored.
הלכה ו
שְׁלֹשָׁה אַחִין שְׁנַיִם מֵהֶן נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת. מֵת אֶחָד מִבַּעֲלֵי אֲחָיוֹת וְעָשָׂה הַשְּׁלִישִׁי בִּיבִמְתּוֹ מַאֲמָר וְאַחַר כָּךְ מֵת בַּעַל אֲחוֹת הַשְּׁנִיָּה וְנָפְלָה הָאָחוֹת הַשְּׁנִיָּה לִפְנֵי הָאָח הַשְּׁלִישִׁי. הֲרֵי זֶה נוֹתֵן גֵּט לְבַעֲלַת הַמַּאֲמָר וְחוֹלֵץ לָהּ וְחוֹלֵץ לָאָחוֹת הָאַחֲרוֹנָה כְּדֵי לְהַתִּירָן לְזָר:
כסף משנה
6.
[Our Sages delivered these rulings in the following situation:] There were three brothers. Two were married to two sisters. One of the brothers married to the sisters died [childless]. The third [brother] gave a ma'amar to his yevamah, and then the husband of the second sister died, and the second sister also became obligated to the third brother. The third brother should divorce with a get [the sister] to whom he gave a ma'amar, and perform chalitzah with her.11This law is fundamentally the same as Halachah 3. The yavam is forbidden to perform yibbum with either of the sisters. There is one added element: the fact that a ma'amar was given.As explained in Chapter 5, Halachot 2-3, a ma'amar does not establish a complete marriage bond. If it established such a bond, the third brother would not be required to divorce his yevamah (and he would not be required to perform chalitzah with her sister). But since it does not, he cannot consummate his relationship with his yevamah. He must, however, divorce her, because of the connection established by the ma'amar. And he should perform chalitzah with the other sister, to enable her to marry another man.
הלכה ז
מֵת זֶה שֶׁעָשָׂה הַמַּאֲמָר וְהָיְתָה לוֹ אִשָּׁה אַחֶרֶת וְנָפְלוּ שְׁתֵּיהֶן לִפְנֵי בַּעַל הָאָחוֹת. בַּעֲלַת הַמַּאֲמָר פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם שֶׁהֲרֵי הִיא אֲחוֹת אִשְׁתּוֹ. וְהָאִשָּׁה הָאַחֶרֶת חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. שֶׁאֵין הַמַּאֲמָר קוֹנֶה קִנְיָן גָּמוּר עַד שֶׁיִּפְטֹר אֶת הַצָּרָה:
כסף משנה
7.
[In the above situation,] if the brother who gave the ma'amar [to the first brother's wife] died [childless], and he had another wife, both she and [the wife of the first brother] fall before [the brother] married to the sister of [the wife of the first brother]. The woman who was given the ma'amar is free from the obligations of chalitzah and yibbum, for she is the sister of [her yavam's] wife. The other woman should perform chalitzah and not yibbum, because the ma'amar does not fully acquire a woman [as a wife]12As reflected in Chapter 6, Halachah 25, even if the yavam who died had not given a ma'amar to the other yevamah, this woman would not have been able to perform yibbum. The new dimension contributed by this halachah is that the ma'amar does not free her from the obligation of chalitzah. to the extent that another wife would be freed of the obligations [of yibbum].13I.e., had the ma'amar established a full marriage bond, she would not have been obligated at all. Since it does not, she must perform chalitzah.הלכה ח
אֶחָד מִן הַיְבָמִין שֶׁקִּדֵּשׁ אֲחוֹת יְבִמְתּוֹ אוֹמְרִין לוֹ הַמְתֵּן וְאַל תְּגָרְשֶׁנָּה וְאַל תִּשָּׂאֶנָּה עַד שֶׁיְּיַבֵּם אָחִיךָ אוֹ יַחֲלֹץ לִיבָמָה זוֹ הַזְּקוּקָה לְכֻלְּכֶם. חָלַץ לָהּ אָחִיו אוֹ יִבְּמָהּ אוֹ שֶׁמֵּתָה הַיְבָמָה הֲרֵי זֶה יִכְנֹס אֲרוּסָתוֹ. מֵתוּ אֶחָיו כֻּלָּם מוֹצִיא אֶת אֲרוּסָתוֹ בְּגֵט וִיבִמְתּוֹ בַּחֲלִיצָה. וְאִם מֵתָה אֲרוּסָתוֹ בֵּין שֶׁמֵּתָה קֹדֶם מִיתַת הָאַחִין בֵּין שֶׁמֵּתָה לְאַחַר מִיתַת הָאַחִין חָזְרָה הַיְבָמָה לְהֶתֵּרָהּ וְרָצָה חוֹלֵץ רָצָה מְיַבֵּם:
כסף משנה
8.
When a brother consecrates the sister of his yevamah,14This law applies if he consecrates her after his brother has died, and the obligation of yibbum is already incumbent upon him. If he consecrated her before his brother dies, and then he dies, he may marry her (Shulchan Aruch, Even HaEzer 159:6). we tell him: "Wait; do not divorce her and do not marry her15At present, the woman he consecrates is forbidden to him, because he is obligated to perform yibbum with her sister. Nevertheless, he is not required to divorce her, because it is possible that the prohibition will be lifted. until your brother performs yibbum or chalitzah with the woman who is under obligation."If his brother performs yibbum or chalitzah with the yevamah, or if she dies, the brother may marry the woman he has consecrated. If all his brothers die,16Or he has no other brothers. he must divorce with a get the woman he has consecrated, and perform chalitzah with his yevamah.
If the woman he has consecrated died, regardless of whether she died before the brothers died or after the brothers died, the yevamah becomes permitted. He may perform either yibbum or chalitzah.17The fact that he was forbidden to marry her while her sister was alive does not prevent him from marrying her after her sister's death (Beit Shmuel 159:13).
הלכה ט
שְׁלֹשָׁה אַחִין שְׁנַיִם מֵהֶן נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת וְיֵשׁ לְכָל אַחַת מִשְּׁתֵּיהֶן צָרָה. וּמֵתוּ הַנְּשׂוּאִין אֶת הָאֲחָיוֹת וְנָפְלוּ הָאֲחָיוֹת וְצָרוֹתֵיהֶן לִפְנֵי יָבָם. אִם חָלַץ לַצָּרוֹת נִפְטְרוּ הָאֲחָיוֹת. אֲבָל אִם חָלַץ לָאֲחָיוֹת לֹא נִפְטְרוּ צָרוֹתֵיהֶן עַד שֶׁיַּחְלְצוּ הַצָּרוֹת. מִפְּנֵי שֶׁחֲלִיצַת אֲחָיוֹת חֲלִיצָה שֶׁאֵינָהּ מְעֻלָּה. וַחֲלִיצָה שֶׁאֵינָהּ מְעֻלָּה אֵינָהּ פּוֹטֶרֶת אֶת הַצָּרָה כְּמוֹ שֶׁבֵּאַרְנוּ:
כסף משנה
9.
[The above laws become even more complicated if the brothers have more than one wife. For example,] there were three brothers. Two were married to two sisters, and each also had another wife. [The brothers] married to the sisters died [childless], and the sisters and the other wives fell before the yavam.If he performs chalitzah with the other wives, the sisters are also freed of their obligation. If, however, he performs chalitzah with the sisters, the other wives are not freed of their obligations until they themselves perform chalitzah. [The rationale is that] the chalitzah performed by the sisters is not "superior,"18From Yevamot 41a, it appears that whenever a yavam cannot perform yibbum with his yevamah, the chalitzah he performs with her is deemed "inferior." and, as we have explained,19Chapter 5, Halachah 12. a chalitzah that is not "superior" does not free another wife [of the deceased] from her obligation.
הלכה י
יֵרָאֶה לִי שֶׁכָּךְ הַדִּין בִּשְׁתֵּי יְבָמוֹת הַבָּאוֹת מִבַּיִת אֶחָד וְהָאַחַת מֵהֶן אֲסוּרָה עַל יְבָמָהּ מִשּׁוּם שְׁנִיָּה אוֹ מֵחַיָּבֵי לָאוִין אוֹ מֵחַיָּבֵי עֲשֵׂה. שֶׁאִם חָלַץ לָאֲסוּרָה לֹא הֻתְּרָה צָרָתָהּ. חָלַץ לַצָּרָה הֻתְּרָה הָאֲסוּרָה:
כסף משנה
10.
It appears to me20This expression is employed by the Rambam in reference to a law that has no direct source in the Rabbinic works of the previous generations. The Rambam's rationale is that just as the Rabbinic prohibition against performing yibbum with the sister of a woman to whom one is obligated is sufficient to cause a chalitzah to be considered "inferior," so too, the prohibitions mentioned in this halachah should have a similar effect.There are several early halachic authorities who rule differently from the Rambam on this issue. The Rambam's decision is, however, accepted by the Shulchan Aruch (Even HaEzer 174:1). that this law also applies with regard to two yevamot coming from one household, when one is forbidden to her yavam as a sh'niyah, or because of a positive or negative prohibition. If the yavam performs chalitzah with the woman who is prohibited, [the deceased's] other wife is not freed of her obligation. If he performs chalitzah with the other wife, the woman who is prohibited is freed of her obligation.
הלכה יא
שְׁלֹשָׁה אַחִין שְׁנַיִם מֵהֶן נְשׂוּאִין שְׁתֵּי אֲחָיוֹת וְהַשְּׁלִישִׁי נָשׂוּי נָכְרִית. מֵת אֶחָד מִבַּעֲלֵי אֲחָיוֹת וְיִבֵּם הַנָּשׂוּי נָכְרִית אֶת אִשְׁתּוֹ. וְאַחַר כָּךְ מֵתָה אִשְׁתּוֹ שֶׁל שֵׁנִי וְאַחַר כָּךְ מֵת הַשְּׁלִישִׁי וְנָפְלוּ שְׁתֵּי נָשָׁיו לִפְנֵי הַשֵּׁנִי (שֶׁאֵין לוֹ אִשָּׁה). הֲרֵי אֵלּוּ פְּטוּרוֹת מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. הָאַחַת מִפְּנֵי שֶׁהָיְתָה אֲחוֹת אִשְׁתּוֹ בְּשָׁעָה שֶׁמֵּת אָחִיו הָרִאשׁוֹן נֶאֶסְרָה עָלָיו לְעוֹלָם מִשּׁוּם אֵשֶׁת אָח כְּדִין אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְּעוֹלָמוֹ. וְהַנָּכְרִית מִשּׁוּם צָרָתָהּ:
כסף משנה
11.
[There is no need for yibbum or chalitzah in the following situation:] There were three brothers. Two were married to two sisters, and the third was married to a woman who did not share a family connection with them. One of the brothers married to the sisters died [childless] and the brother married to the other woman performed yibbum with [the brother's] wife. Afterwards, the wife of the second brother, [i.e., the sister of the yevamah] died, and then the third brother [the one who performed yibbum, died childless]. Thus, his two wives fall before the second brother, who is [now] unmarried.These women are free of the obligation to perform either chalitzah or yibbum. One, the sister of [the yavam's deceased] wife [is forbidden], because she was the sister of his wife at the time his brother died. [At that time,] she became forbidden to him forever, as the wife of a brother who was not alive at the time of his [older] brother's [death]. The other woman [is forbidden], because she is the other wife [of her deceased husband].21This represents a reversal of the Rambam's opinion in his Commentary on the Mishnah (Yevamot 3:7), where he states that the deceased's other wife should perform chalitzah, because there is a doubt whether or not an obligation falls upon her.
הלכה יב
וְכֵן שְׁנֵי אַחִין נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת וּמֵת אֶחָד מֵהֶן. וְאַחַר כָּךְ מֵתָה אִשְׁתּוֹ שֶׁל שֵׁנִי. הֲרֵי זוֹ אֲסוּרָה עוֹלָמִית הוֹאִיל וְנֶאֶסְרָה עָלָיו בִּשְׁעַת נְפִילָה. אֲבָל הַמְגָרֵשׁ אֶת אִשְׁתּוֹ וְהֶחֱזִירָהּ וָמֵת הֲרֵי זוֹ מֻתֶּרֶת לַיָּבָם. וְאַף עַל פִּי שֶׁנֶּאֶסְרָה עָלָיו בְּחַיֵּי אָחִיו בְּשָׁעָה שֶׁגֵּרְשָׁהּ הֲרֵי חָזְרָה לְהֶתֵּרָהּ וּכְשֶׁמֵּת אָחִיו בְּהֶתֵּרָהּ הָיְתָה עוֹמֶדֶת:
כסף משנה
12.
Similarly, when two brothers are married to two sisters and one of [the brothers] dies [childless], and then the wife of the other brother dies, [the wife of the first brother] remains forbidden [to the second brother] forever, since she was forbidden to him at the time [the obligation of yibbum first takes effect].When, however, a man divorces his wife, remarries her and then dies [childless], she is permitted to the yavam. Although she was forbidden to him during his brother's lifetime at the time he divorced her, she became permitted [when he remarried her]. And at the time his brother died, she was permitted.
הלכה יג
קְטַנָּה שֶׁהִשִּׂיאָהּ אָבִיהָ וְגֵרְשָׁהּ בַּעְלָהּ וְהֶחֱזִירָהּ וּמֵת וַעֲדַיִן הִיא קְטַנָּה הֲרֵי זוֹ אֲסוּרָה לַיָּבָם מִפְּנֵי שֶׁגֵּרוּשֶׁיהָ גֵּרוּשִׁין גְּמוּרִין שֶׁהֲרֵי אָבִיהָ הִשִּׂיאָהּ. וְאֵין חֲזָרָתָהּ חֲזָרָה גְּמוּרָה שֶׁאֵין קִדּוּשֵׁי קְטַנָּה קִדּוּשִׁין גְּמוּרִין כְּמוֹ שֶׁבֵּאַרְנוּ:
כסף משנה
13.
[The following rules apply when] a girl below the age of majority was given in marriage by her father, and her husband divorced her, remarried her and then died [childless] while she was still below the age of majority.She is forbidden to her yavam,22For the prohibition forbidding a woman divorced by her husband to her yavam is of Scriptural origin, while her remarriage is binding according to Rabbinic law alone.
The Ra'avad and Rabbenu Asher rule that the minor must perform chalitzah when she attains majority. The Ma'aseh Rokeach states this might also be the Rambam's intent (as reflected by the fact that he states that "she is forbidden to her yavam," and in the next halachah he adds that she "should not perform either chalitzah or yibbum"). Most commentaries do not, however, accept this interpretation. for the divorce was a fully binding divorce, since she was married off by her father.23The Rambam's wording is somewhat imprecise. The kiddushin the husband gives the father are binding according to Scriptural law, because the Torah granted him the right to consecrate her, as stated in Hilchot Ishut 3:11. If the girl is able to distinguish between a get and another object, she can be divorced according to Scriptural law, as stated in Hilchot Gerushin 2:19. The remarriage, by contrast, is not fully binding, because the consecration of a minor is not a completely binding consecration, as explained.24Until she reaches the age of twelve and manifests signs of physical maturity, she is not able to effect kiddushin that are binding according to Scriptural law. (Moreover, the girl's father also does not have the potential to consecrate her again according to Scriptural law once she has been divorced, as stated in Hilchot Ishut 3:12.)
הלכה יד
וְהוּא הַדִּין לִמְגָרֵשׁ פִּקַּחַת וְנִתְחָרְשָׁה וְהֶחֱזִירָהּ וּמֵת וְהִנִּיחָהּ חֵרֶשֶׁת שֶׁהִיא אֲסוּרָה לַיָּבָם וְאֵינָהּ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. וְצָרַת קְטַנָּה זוֹ אוֹ חֵרֶשֶׁת זוֹ חוֹלֶצֶת אוֹ מִתְיַבֶּמֶת. וְאִם הֶחֱזִירָהּ כְּשֶׁהִיא קְטַנָּה אוֹ חֵרֶשֶׁת וְגָדְלָה אוֹ נִתְפַּקְּחָה אֶצְלוֹ וְאַחַר כָּךְ מֵת הֲרֵי זוֹ מֻתֶּרֶת לִיבָמָהּ:
כסף משנה
14.
The same law applies when a man divorces a woman who is mentally competent, she becomes a deaf-mute, he remarries her and dies [childless] while she is a deaf-mute. She is forbidden to the yavam and should not perform either chalitzah or yibbum.25In this instance as well, the divorce is binding according to Scriptural law, while the remarriage is merely a Rabbinic institution.Another woman married [to the deceased husband of] the minor or the deaf-mute may perform chalitzah, or yibbum.26Since the remarriage of the minor or the deaf-mute is only a Rabbinic institution, while the marriage of the deceased's other wife is based on Scriptural law, the remarriage of the minor or the deaf-mute has no effect on the other wife's obligation to her yavam. See Shulchan Aruch (Even HaEzer 173:23).
If [the deceased] remarried her while she was a minor or a deaf-mute, but she attained majority or regained her control of her faculties while married to him, and then he died [childless], she is permitted to her yavam.27If her husband engaged in marital relations with her after she attained majority or regained control of her faculties, he acquires her as a wife according to Scriptural law. (See Hilchot Gerushin 11:6.) Therefore, there is no difference between her and another woman who was married, divorced and remarried.
הלכה טו
שְׁנֵי אַחִין נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת. הָיוּ שְׁתֵּיהֶן קְטַנּוֹת הָרְאוּיוֹת לְמָאֵן אוֹ חֵרְשׁוֹת וּמֵת אֶחָד מֵהֶן תֵּצֵא מִשּׁוּם אֲחוֹת אִשָּׁה וּפְטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. הָיוּ אַחַת גְּדוֹלָה וְאַחַת קְטַנָּה וּמֵת בַּעַל הַקְּטַנָּה תֵּצֵא מִשּׁוּם אֲחוֹת אִשָּׁה וּפְטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. מֵת בַּעַל הַגְּדוֹלָה מְלַמְּדִין הַקְּטַנָּה שֶׁתְּמָאֵן בְּבַעְלָהּ וְתִהְיֶה גְּדוֹלָה זוֹ מֻתֶּרֶת לִיבָמָהּ:
כסף משנה
15.
When two brothers were married to two sisters, who were both below the age of majority and fit to dissolve their marriages through mi'un, or they were deaf-mutes, and one [of the brothers] dies [childless], his wife is not obligated to perform either chalitzah or yibbum, because she is the sister [of the yavam's] wife.28Since both sisters share the same status, we allow the marriage of the sister whose husband is alive to continue. There is no mandate for him to perform yibbum, for the marriage to his yevamah would still be Rabbinical in origin.If one [of the sisters] was above the age of majority and one was below, and the husband of the younger one died [childless], his wife is not obligated to perform either chalitzah or yibbum, because she is the sister [of the yavam's] wife.29Since the marriage of the older sister is binding according to Scriptural law, the younger sister has no obligation to the yavam. If the husband of the older [sister] died [childless], we instruct the younger one to absolve [her marriage to] her husband through mi'un, allowing the older [sister] to perform yibbum.30The yibbum of the older sister is given priority over the marriage of the younger sister, because the older sister's first marriage is binding according to Scriptural law, and the obligation of yibbum is mandated by that authority. The marriage of the younger sister, by contrast, is binding only according to Rabbinic law.
Therefore, the younger sister is advised to perform mi'un, thus dissolving her marriage as if it had never existed. At this point, there is nothing preventing her husband from marrying her sister, his yavam. (See Chapter 4, Halachah 30.)
הלכה טז
שְׁנֵי אַחִין חֵרְשִׁין נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת פִּקְחוֹת אוֹ חֵרְשׁוֹת. אוֹ אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת. וְכֵן שְׁתֵּי אֲחָיוֹת חֵרְשׁוֹת נְשׂוּאוֹת לִשְׁנֵי אַחִים פִּקְחִין אוֹ חֵרְשִׁין אוֹ אֶחָד פִּקֵּחַ וְאֶחָד חֵרֵשׁ וּמֵת אֶחָד מֵהֶן. אִשְׁתּוֹ פְּטוּרָה מִן הַחֲלִיצָה וּמִן הַיִּבּוּם מִשּׁוּם אֲחוֹת אִשְׁתּוֹ. שֶׁהֲרֵי אֵין נִשּׂוּאֵי אֶחָד מֵהֶן נִשּׂוּאִין גְּמוּרִין:
כסף משנה
16.
[The following law applies when two brothers who are both deaf-mutes are married to two sisters, and one [of the brothers] dies [childless]. His wife is not obligated to perform either chalitzah or yibbum, because she is the sister [of the yavam's] wife. [This law applies] regardless of whether both of the sisters were deaf-mutes, both were mentally competent, or one was a deaf-mute and one was mentally competent.Similarly, [the same law applies when] two sisters are both deaf-mutes and are married to two brothers, regardless of whether both of the brothers were deaf-mutes, both were mentally competent, or one was a deaf-mute and one was mentally competent.
[These rulings were given] because none of the marriages is fully binding.31As long as one of the parties involved is a deaf-mute, a marriage is binding only according to Rabbinic law. For this reason, there is no advantage for the yibbum of the deceased's wife over the existing marriage.
הלכה יז
שְׁנֵי אַחִין אֶחָד פִּקֵּחַ וְאֶחָד חֵרֵשׁ נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת פִּקְחוֹת אוֹ אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת וַהֲרֵי הַפִּקַּחַת הִיא אֵשֶׁת הַפִּקֵּחַ. מֵת הַחֵרֵשׁ תֵּצֵא אִשְׁתּוֹ מִשּׁוּם אֲחוֹת אִשָּׁה. מֵת הַפִּקֵּחַ הוֹאִיל וְנִשּׂוּאֵי הַפִּקֵּחַ שֶׁמֵּת נִשּׂוּאִין גְּמוּרִין וְזִקַּת זֶה הַחֵרֵשׁ גְּמוּרָה וְנִשּׂוּאֵי הַחֵרֵשׁ אֵינָן נְשׂוּאִין גְּמוּרִין. הֲרֵי זֶה הַחֵרֵשׁ מוֹצִיא אֶת אִשְׁתּוֹ בְּגֵט מִפְּנֵי שֶׁאֲחוֹתָהּ זְקוּקָה לוֹ. וְאֵשֶׁת אָחִיו הַפִּקֵּחַ אֲסוּרָה לְעוֹלָם שֶׁאֵינוֹ יָכוֹל לִכְנֹס מִפְּנֵי אֲחוֹתָהּ. וְלֹא יַחֲלֹץ מִפְּנֵי שֶׁהוּא חֵרֵשׁ:
כסף משנה
17.
[The following law applies when two brothers - one mentally competent and one a deaf-mute - are married to two sisters, either both mentally competent or one mentally competent and one a deaf-mute, and the mentally competent [sister] is married to the mentally competent [brother]. If the deaf-mute [brother] dies [childless], his wife is not obligated to perform either chalitzah or yibbum, because she is the sister [of the yavam's] wife.32Since both the husband and wife are mentally competent, their marriage is binding according to Scriptural law. The deceased's wife is, therefore, freed of all obligations.If the mentally competent [brother] dies [childless], the deaf-mute should divorce his wife with a get, because her sister is obligated to him.33And it is forbidden to marry the sister of a woman with whom one is obligated to perform yibbum. [The rationale for this ruling is] that the marriage of the deceased mentally competent brother was fully binding, [and thus] the obligation to the deaf-mute is also fully binding. [In contrast,] the marriage of the deaf-mute is not fully binding.
The wife of the mentally competent brother is forbidden [to marry again] forever. For the deaf-mute cannot marry her because of her sister,34For it is forbidden to marry the sister of one's divorcee. nor can he perform chalitzah, because he is a deaf-mute.35See Chapter 4, Halachah 13.
הלכה יח
וְלָמָּה גָּזְרוּ חֲכָמִים שֶׁיּוֹצִיא זֶה הַחֵרֵשׁ אִשְׁתּוֹ הַחֵרֶשֶׁת וְהֵן אֵינָן בְּנֵי חִיּוּב אֶלָּא הֲרֵי הֵן כְּקָטָן אוֹכֵל נְבֵלוֹת שֶׁאֵין בֵּית דִּין מְצֻוִּין לְהַפְרִישׁוֹ. אָמְרוּ חֲכָמִים אִם תֵּשֵׁב אִשְׁתּוֹ עִמּוֹ נִמְצֵאת אֲחוֹתָהּ נִשֵּׂאת לְזָר וְיֹאמְרוּ נִפְטְרָה מִשּׁוּם אֲחוֹת אִשָּׁה. לְפִיכָךְ מוֹצִיא הַחֵרֵשׁ אִשְׁתּוֹ בְּגֵט כְּדֵי שֶׁתִּהְיֶה אֲחוֹתָהּ אֲסוּרָה לְעוֹלָם:
כסף משנה
18.
Why did our Sages decree that a deaf-mute man must divorce his deaf-mute wife [in the above situation]? They are not obligated to observe the mitzvot; their situation resembles that of a child who eats non-kosher meat - in which instance, the court is not obligated to prevent them.36I.e., the court, the agent of the Jewish people as a whole, does not have the responsibility to admonish a child who violates the Torah's laws. The child's parents, by contrast, do and must train him in the observance of the Torah's ways. See Hilchot Ma'achalot Asurot 17:27-28.Our Sages said: If the [deaf-mute's] wife will remain married to him, her sister will marry another man, [and this will be excused, for people] will say: "She was freed [from the obligations of yibbum and chalitzah] because she was the sister of [the yavam's] wife." [To prevent this impression from arising,] the deaf-mute must divorce his wife with a get, and her sister will be forbidden [to him] forever.
הלכה יט
וְכֵן שְׁנֵי אַחִין פִּקְחִין נְשׂוּאִין לִשְׁתֵּי אֲחָיוֹת אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת. מֵת בַּעַל הַחֵרֶשֶׁת תֵּצֵא מִשּׁוּם אֲחוֹת אִשָּׁה. מֵת בַּעַל הַפִּקַּחַת מוֹצִיא אֶת אִשְׁתּוֹ הַחֵרֶשֶׁת בְּגֵט וְאֶת אֵשֶׁת אָחִיו בַּחֲלִיצָה. מִפְּנֵי שֶׁהוּא פִּקֵּחַ וְיָכוֹל לַחֲלֹץ:
כסף משנה
19.
Similarly, when two brothers who are mentally competent are married to two sisters, one mentally competent and one a deaf-mute, and the husband of the deaf-mute dies, [his wife] is free [of the obligation of yibbum], because she is the sister of [the yavam's] wife.37Since both partners are mentally competent, their marriage is binding according to Scriptural law.If the husband of the mentally competent [sister] dies, [his brother] should divorce his wife [the deaf-mute] with a get,38Since his marriage to the deaf-mute is only a Rabbinic institution, his obligation to the wife of his deceased brother, a requirement of Scriptural law, takes priority. Nevertheless, since he must divorce his deaf-mute wife with a get, he may not perform yibbum, for the yevamah is the sister of his divorcee. and should perform chalitzah to free the wife of his [deceased] brother [to marry]. Since he is mentally competent, he can perform chalitzah.39In contrast to the deaf-mute yavam mentioned in Halachah 18.
הלכה כ
שְׁנֵי אַחִין אֶחָד פִּקֵּחַ וְאֶחָד חֵרֵשׁ. הַחֵרֵשׁ נָשׂוּי שְׁתֵּי נָשִׁים פִּקְחוֹת הָאַחַת מֵהֶן עֶרְוָה עַל הַפִּקֵּחַ וּמֵת הַחֵרֵשׁ שְׁתֵּיהֶן פְּטוּרוֹת עַל כָּל פָּנִים. אִם נִשּׂוּאֵי הָעֶרְוָה נִשּׂוּאִין הֲרֵי הַשְּׁנִיָּה צָרָתָהּ וּפְטוּרָה. וְאִם אֵין נִשּׂוּאֵי הָעֶרְוָה נִשּׂוּאִין כָּךְ לֹא יִהְיוּ נִשּׂוּאֵי צָרָתָהּ נִשּׂוּאִין:
כסף משנה
20.
[Neither yibbum nor chalitzah is required in the following situation.] There were two brothers, one mentally competent and one a deaf-mute. The deaf-mute was married to two mentally competent women, one of whom was forbidden to the mentally competent brother as an ervah.If the deaf-mute brother dies [childless], both his wives are free from the obligations [of yibbum and chalitzah, based on the following rationale].40I.e., one might think that although the mitzvot of yibbum and chalitzah do not apply with regard to the woman forbidden as an ervah, they do apply with regard to her deceased husband's other wife.
Generally, when a woman is forbidden as an ervah, her husband's other wives are not obligated, as stated in Chapter 6, Halachah 14. Nevertheless, since the deaf-mute's marriage is only a Rabbinic institution, one might think that the marriage to the woman forbidden as an ervah is not powerful enough to negate the obligation of yibbum. The Rambam's explanations that follow above are intended to counter this supposition. If the marriage of the woman forbidden [to the yavam] as an ervah is considered a marriage, the second woman is considered to be the other wife [of her husband] and is also freed of obligation. If the marriage of the woman forbidden [to the yavam] as an ervah is not considered a marriage, the marriage of the other woman is also not considered a marriage.
הלכה כא
הָיְתָה בִּתּוֹ וְכַיּוֹצֵא בָּהּ חֵרֶשֶׁת וּנְשׂוּאָה לְאָחִיו הַפִּקֵּחַ צָרָתָהּ חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת. שֶׁאֵין נִשּׂוּאֵי הַחֵרֶשֶׁת נִשּׂוּאִין גְּמוּרִין:
כסף משנה
21.
If a man's daughter or the like41I.e., any other woman permitted to his brother, but forbidden to him as an ervah. This includes the brother's mother-in-law and his daughter-in-law, after they were widowed or divorced from their first husbands. was a deaf-mute, and she was married to his brother who was mentally competent [and the mentally competent brother dies childless], his other wife must perform chalitzah, but not yibbum. [The rationale is that] the marriage of the deaf-mute is not a fully binding marriage.42If it were a fully binding marriage, the deceased's other wife would be freed of the obligation of chalitzah as well, as mentioned in note 40. Nevertheless, because the marriage is effective according to Rabbinic law, yibbum is not permitted.הלכה כב
כָּל מָקוֹם שֶׁאָמַרְנוּ בַּהֲלָכוֹת אֵלּוּ שְׁתֵּי אֲחָיוֹת אַחַת שְׁתֵּי אֲחָיוֹת אוֹ אִשָּׁה וּבִתָּהּ אוֹ אִשָּׁה וּבַת בִּתָּהּ וְכַיּוֹצֵא בָּהֶן עִנְיַן הַדְּבָרִים שֶׁהֵן שְׁתֵּי נָשִׁים שֶׁהָאַחַת מֵהֶן עֶרְוָה עִם הָאַחֶרֶת וְאִי אֶפְשָׁר לִשָּׂא שְׁתֵּיהֶן מִשּׁוּם עֶרְוָה. וְכֵן כָּל מָקוֹם שֶׁאָמַרְנוּ אֲחוֹת אִשְׁתּוֹ אוֹ אֲחוֹת יְבִמְתּוֹ אֶחָד אֲחוֹתָהּ אוֹ אִמָּהּ אוֹ בִּתָּהּ עִנְיַן הַדְּבָרִים אַחַת מִקְּרוֹבוֹתֶיהָ שֶׁהֵן עֶרְוָה עִמָּהּ:
כסף משנה
22.
Whenever we have mentioned "two sisters" in these laws, the intent is also a woman and her daughter, or her granddaughter and the like; i.e., two woman [for whom marriage to one causes] the other to be considered an ervah.Similarly, whenever we have mentioned "the sister of [the yavam's] wife" or "the sister of his yevamah," the intent is also her mother or her daughter - i.e., any close relative who becomes forbidden [to the yavam] because of her [marriage].