Siman 156

It is written: "If brothers dwell together, and one of them dies and has no son, the wife of the deceased shall not be married outside to a stranger; her brother-in-law shall come upon her." This is a positive commandment, that when a brother dies without offspring, his brother shall perform yibum with his wife. The Torah permitted the wife of his brother who died without offspring from the general category of forbidden relations. Not only did it permit her, but it is an obligation upon him. For initially, before his brother married her, she was within the general category of permitted women—if he wished he could marry her, and if he wished he would not marry her. Once his brother married her, she became forbidden to him under the prohibition of a forbidden relation among those liable for koret. Once his brother died without offspring, she returned to being permitted to him. And it is not that the permission is as it was before, being dependent upon his will, but rather that the Torah decreed upon him that he must marry her. Regarding this it is said: "her brother-in-law shall come upon her," meaning to say, an obligation is incumbent upon him to marry her (Yevamot 39b). There is no difference whether she was his wife from marriage or whether she was his wife from betrothal, for even a betrothed woman is called his wife.

That which is written in the Torah, "and he has no son," is not specifically a son, for the same law applies to a daughter, or a son's son, or a daughter's son, or a son's daughter, or a daughter's daughter, even to the tenth generation. We learned this from that which is written "he has no [ein lo]," which we expound as "look into him" (Rashi on the Pentateuch). And even though from this exposition the Sages, of blessed memory, expounded (22b) regarding a mamzer son that he exempts from yibbum, nevertheless these expositions are equivalent and we learn all of them from this (Tosafot Bava Batra 109a, 115a). Furthermore, it is written in the section of yibbum, "that his name be not blotted out of Israel," and since he has a daughter or the offspring of his offspring, behold, his name is not blotted out (the Rosh, chapter 2).

Therefore, if he left a son or a daughter, or offspring from the son or offspring from the daughter until the end of all generations—whether from this woman or from another woman, even a son or a daughter from an unmarried woman, or even a mamzer or a mamzeret, or their offspring's offspring, even if he converted to a star-worshiper—this one exempts his wives from chalitzah, and it is forbidden to perform yibbum with them, for they are under the prohibition of a brother's wife who has children. And only if the offspring was alive at the time of his death—even if he died immediately after his death, and even if he was ill or a gosses or wounded with injuries from which it is impossible for him to live—since he lived at the time of his death, he exempts them from chalitzah and they are forbidden in yibbum.

But if he had a son from a maidservant or from a gentile woman, he does not exempt, for it has already been explained in siman 15 that such a son is not genealogically attributed to him but rather to his mother, and he is not like his son for any matter. There are some of the Geonim who instructed that his son from his maidservant exempts, because he certainly emancipated her, for a man does not make his cohabitation a cohabitation of licentiousness. The Rambam disagreed with them in the tenth chapter of Gerushin, for we only say this regarding a woman who was divorced or one who betrothed with a condition, but without this, ordinary cohabitations are cohabitations of licentiousness; see there. And the Rosh, of blessed memory, was concerned for the opinion of the Geonim and ruled that she performs chalitzah and does not undergo yibbum. And the Tur wrote likewise, that this is the opinion of Rav Natronai Gaon, of blessed memory; see there. (And the Shulchan Aruch did not mention this, for it is so automatically; since they brought two opinions, she automatically performs chalitzah and does not undergo yibbum; and see Beit Shmuel, subsection 2). And know that a son from a maidservant or from a gentile woman, even if he was emancipated afterwards or converted, does not exempt, for he is not his son. And a brother from the father performs yibbum even if they are not from one mother, but a brother from the mother and not from the father does not perform yibbum, and it will be explained in siman 157.

The Rambam, of blessed memory, wrote in the first chapter of Hilchot Yibum, law 5: One who died and left his wife pregnant, if she miscarried after his death, she must undergo yibum. If she gave birth and the offspring emerged alive into the air of the world, even if it died at the moment it was born, behold, its mother is exempt from chalitza and from yibum. However, by the words of the Scribes, [she is not exempt] until it is known with certainty that its months were complete and it was born at nine full months. But if it was not known at how many months it was born, if it lived thirty days, behold, this is a viable offspring and it exempts the wives of its father from chalitza and from yibum. And if it died within thirty days, even on the thirtieth day, whether it died from illness or fell from the roof or a lion ate it, behold, this is a doubtful miscarriage or a doubtful viable offspring, and she requires chalitza by the words of the Scribes, but she shall not undergo yibum. Thus far his words. And it is explained from his words that according to the Torah, anyone who is born is in the presumption of being a viable offspring even if it died immediately, for we follow the majority of births which are viable offspring. And according to the Rabbis, anyone who did not live thirty full days, even if it did not die from illness but from some other cause, it is a miscarriage regarding the matter that she requires chalitza. And if it lived thirty full days, it is in the presumption of being a viable offspring even if it died from illness. And he does not distinguish between one born at nine months or one born at eight, or between whether its hair and nails were finished or not.

But in the first chapter of Milah, law 13, he wrote: One who is born in the eighth month, if he was complete in his hair and in his nails, behold, this is a complete newborn and he is a seven-month child, but he was delayed, and it is permitted to move him on Shabbat and he is not like a stone, and we circumcise him on Shabbat. But if he was born and his hair is defective and his nails are not complete according to their creation, behold, this is certainly an eight-month child who was not fit to be born except in the ninth month and came out before he was finished; therefore, he is considered like a stone and it is forbidden to move him on Shabbat. And nevertheless, if he survived thirty days, behold, he is a viable newborn and he is like all others born in every matter, for anyone who survived thirty days among humans is not a nefel. And one who is born in the seventh month of her pregnancy, if he was born complete, behold, he is a viable newborn and we circumcise him on Shabbat. A doubt of whether he is a seven-month child or an eight-month child, we circumcise him on Shabbat in any case, etc., for if he is an eight-month child, behold, it is like cutting flesh, etc. Thus far his words.

And in the second chapter of Rotzeach, law 6, he wrote: Whether one kills an adult or one kills a minor a day old, he is executed for it, etc., provided that his months were complete; but if he was born at less than nine months, he is like a nefel until he survives thirty days, etc. Thus far his words. And at the end of the first chapter of Nachalot, he wrote that if the mother died and afterwards the son died, even if he was a minor a day old and his months were not complete, since he lived one hour after his mother, he inherits and transmits inheritance, etc. Thus far his words. And in the first chapter of Avel, he wrote that anyone who has not survived thirty days is a nefel and one does not mourn for him, even if he died on the thirtieth day; but if it was known with certainty that he was born at nine complete months, even if he died on the day he was born, one mourns for him. And a nine-month-old who was born dead, and an eight-month-old who died even after thirty days, this is a nefel, etc. Thus far his words.

And in the first chapter of Tum'at Met, law 14, he wrote: Even a minor one day old who touched or carried or formed a tent over a corpse becomes impure, and he is one who is impure from a corpse; and this is when he was born at nine months, but an eight-month-old is like a stone and does not contract impurity. Thus far his words. And at the beginning of the ninth chapter of Tum'at Tzara'at he wrote: Everyone contracts impurity through nega'im, even a minor one day old. Thus far his words. And he wrote it without qualification. And he wrote similarly in the first chapter of Mishkav u-Moshav, see there. And one must understand his opinion in all these matters, that he did not equate the laws to one another.

And according to the Maggid Mishneh, the Rambam holds that according to the Torah, through one of three things he is in the presumptive status of a viable child: the first is when his hair and nails are finished, for even if he is an eight-month-old, we say that he is a seven-month-old who delayed (Yevamot 80b, and like Rabbi); and similarly if he survived thirty days, even if his hair and nails were not finished, and even if he is an eight-month-old, we also say he delayed (like Rabban Shimon ben Gamliel ibid.). And the general rule is: any human who survived thirty days is not a nefel, even an eight-month-old whose signs were not finished; and similarly, when it is known that his months were complete, he is a viable child even if he died immediately. And this is according to the Torah. However, the Sages were more stringent in some matters. Regarding inheritance, they established it upon the Torah law, for in monetary matters leniency and stringency are not applicable, as a stringency for one is a leniency for the other. Regarding a murderer, we require either that his months were complete or that he survived thirty days; but regarding an eight-month-old whose hair and nails were finished, even though he is a viable child according to the Torah as I have written, nevertheless, since the Sages were stringent regarding him, it is impossible to execute a person for him. Therefore, regarding mourning as well, one does not mourn unless his months were complete or he survived thirty days. And this is what he wrote regarding yibbum, that according to the Torah, if he only emerged alive, even if he died immediately, he exempts; and he means when his hair and nails were finished. But the Sages were stringent until it is known that his months were complete or that he lived thirty days (the Maggid Mishneh in the first chapter of Hilkhot Yibbum).

And his words are perplexing, for according to this, in every place where the Rambam mentions "born" without qualification, his intention is that its hair and nails were completed, as he wrote regarding yibbum. And if so, why did the Rambam write regarding tumah that a one-day-old minor conveys tumah specifically when born at nine months and not when born at eight? For since its signs were completed, it is a complete child according to the Torah, and we say that it delayed. (And thus the Lechem Mishneh questioned in the first chapter of Nachalot). And it is further difficult, what the Maggid Mishneh wrote, that if it survived thirty days, one mourns for it even in the case of an eight-month birth even according to rabbinic law; but the Rambam did not write so regarding mourning, as has been explained. And the Maggid Mishneh himself found difficulty with his words in the first chapter of Nachalot, see there. And there are further several fine points and arguments.

Therefore, it appears to me that the words of the Maggid Mishneh are true, and one only needs to add to them. The source of the Rambam for all these matters appears to me to be from Tosefta Shabbat, chapter 16, where we learn there: An eight-month-old is like a stone, etc. Who is an eight-month-old? Anyone whose months were not completed. Rabbi says: Recognizable signs are in him—his hair and his nails that are not finished. Rabban Shimon ben Gamliel says: Anything that remained thirty days in a human is not a nefel; see there. And he holds that Rabbi and Rabban Shimon ben Gamliel do not disagree (and so it appears in Yevamot ibid.), for both hold that one is sufficient—either with the completion of his hair and nails, or with remaining thirty days even if his signs were not completed, and we say this is a seven-month-old who was delayed (like Rabbah Tosfa'ah ibid.). But the Rabbis disagree with them and hold that if his months were not completed, neither the completion of his hair and nails nor remaining thirty days is effective (for so it implies in Shabbat 136a; and see there in Tosafot and examine carefully). According to this, for the Rabbis it is exactly the opposite, and they hold that for an eight-month-old nothing is effective. And according to their words, Rabbi Abbahu said in Yevamot ibid. that one does not perform an act regarding an eight-month-old until he is twenty years old; see there (and he explains like Tosafot and not like Rashi there, and examine carefully). Therefore, this ruling of Rabbi Abbahu is not found anywhere in the Rambam because he does not rule like the Rabbis. Furthermore, the Rabbis hold that regarding ordinary births nothing is required, but Rabban Shimon ben Gamliel disagrees on two counts: he holds that even for an eight-month-old thirty days is effective, and also regarding ordinary births he does not leave the presumption of a nefel until thirty days (and this is the opinion of Tosafot in Shabbat ibid. and in Yevamot ibid.). And so Rabbi holds, and the Rambam ruled like them (because of the incident of Rabbah Tosfa'ah and from Shmuel in Shabbat ibid. who ruled the halacha like Rabban Shimon ben Gamliel).

It is known that the way of the Rambam is that he relies in his words from one place to another, as he warned regarding this principle at the end of chapter 2 of Ishut, see there. Therefore, in the laws of Milah, which is the first halachah according to the order of his books, he explained well that an eight-month birth whose signs were not completed and did not survive thirty days is a complete nefel. But if they were completed or he survived, he leaves the status of a nefel according to the Torah and we circumcise him on Shabbat, and so too regarding ordinary births. And regarding Milah, it is impossible to be stringent by rabbinic decree and transgress the positive commandment of Milah on the eighth day. And in the laws of Yibbum, he did not write the law of an eight-month birth at all, for he relied on what he wrote regarding Milah, and he only wrote regarding ordinary births that according to the Torah she is exempt in any case, even if he died immediately, and only by rabbinic decree is it required that he survive thirty days even in ordinary births like Rabban Shimon ben Gamliel, or that it was known with certainty that his months were complete. And one should not ask that just as we said regarding an eight-month birth whose hair and nails were completed that it is like surviving thirty days, let us also say so regarding ordinary births; for this is no question, as certainly according to the Torah it is so, but by rabbinic decree the primary factor is surviving thirty days, just as in an animal it is seven days. And regarding matters of inheritance, where it is necessary to establish it upon the law of the Torah, he wrote only the law of the Torah, and it deals with where his hair and nails were completed like the way of ordinary births even though we did not know clearly that his months were complete. And an eight-month birth need not be mentioned, for he relied on what he wrote regarding Milah as I have written. And regarding a murderer, because of the killing of a soul, one must be stringent even regarding a rabbinic decree, and what he wrote there "if he was born at less than nine" means that it is possible to be so where we do not know clearly that his months were complete, and he relied on what he wrote regarding Yibbum. And only regarding mourning, because the halachah follows the words of the one who is lenient in mourning, he ruled like the Sages that even surviving thirty days does not avail for a certain eight-month birth (like Rabbi Abbahu in Yevamot and as I have written, and examine this). And regarding impurity, where he wrote "even a minor one day old provided he was born at nine months," he was precise and wrote "born at nine months" and did not write "his months were complete," and its explanation is like ordinary births which presumably are born at nine months. And regarding an eight-month birth where he wrote that he is like a stone, he was precise and wrote so as he wrote regarding Milah, meaning that his hair and nails were not completed and he did not survive thirty days, and he relied on what is there. And regarding Nega'im and Zivah, he left the matters unspecified and relied on what he wrote regarding the impurity of a corpse, according to his way.

And know that "his months were completed" is only found when he had relations with her at the time of her immersion and separated from her afterward and she gave birth at nine months (Tur), for if not so, who could know when she conceived? And I wonder, for even without this it is possible to know, as our sages, of blessed memory, said (at the end of the third chapter of Niddah) that a woman only conceives close to her immersion or close to her menstrual period. And if so, in a woman who has a set menstrual period it is found, such as when there are nine months from close to her period. And one cannot say that this is not precisely so, for it explicitly implies in the Shas (Sotah 27a) that it is precise, see there. And it must be said that this is only according to the majority, and there is a minority for whom it is not so (Tosafot Sotah ibid.). And in the entire Torah we follow the majority, but in this matter the sages were stringent that we should not follow the majority, for if not so, behold most offspring are viable; rather, our sages, of blessed memory, were stringent in this matter, and likewise regarding eight days in an animal, as the Rishonim, of blessed memory, wrote. And consequently, it is impossible to know in any other way except when he separated from her. And furthermore, since in this there is a dispute whether it is close to her immersion or close to her period, if so, whichever way you look at it, it is impossible to know; for if there are nine months from her immersion, perhaps the law follows the one who says close to her period and his months were not completed, and if there are nine months from close to her period, perhaps the law follows the one who says close to her immersion and perforce he was delayed two weeks, and if so, who is to say that he was not delayed a month and a half and it is from the previous immersion and he is an eight-month offspring.

The Tur wrote that in a case where it is unknown if its months were completed, if it lived thirty days and its hair and nails were finished, it exempts; but if it did not live thirty days after it was born, even if it died on the thirtieth day, or even if it lived thirty days but its hair and nails were not finished, this is a doubt whether it is a nefel or a viable birth, and she performs chalitzah and does not perform yibbum. Thus far his words. Our teacher, the Beit Yosef, wondered at this, for since it lived thirty days, nothing more is required even if its hair and nails were not finished, and there is no one who holds this view; see there. Therefore, he did not bring his opinion in the Shulchan Aruch, section 4. Our teacher, the Rema, brought the opinion of the Tur in the name of "there are those who say"; see there. And there is one who says that there are some among the poskim who hold this way, for Rabban Shimon ben Gamliel, who says that staying alive is a sign, adds to the words of Rabbi, and holds that it requires both the finishing of its signs and staying alive (Beit Shmuel, subsection 6). But it is not so, for certainly for the finishing of its signs one requires staying alive, as we establish the law like Rabban Shimon ben Gamliel, but for staying alive one does not require signs (the Gra, subsection 16), and as I wrote in section 12, that even though from the Torah they are equal, nevertheless, according to rabbinic law, the primary factor is staying alive thirty days.

And it appears to me that the Tur stated his own reasoning, for even though this is not found explicitly, nevertheless it is necessary to say so because this is something that is impossible to be—that a viable child would not have completed its hair and nails. And the proof for this is from the language of Rabbi who said: Who is a child of eight months? His signs prove it: anyone whose hair and nails are not completed. This implies explicitly that this is a definitive sign. And in the Tosefta the version is: "his signs testify about him," see there. And perforce one must say that what Rabban Shimon ben Gamliel said, "anyone who survived thirty days is not a nefel," he meant as follows: even though his signs were completed, as long as he did not survive thirty days, he has not left the status of a doubtful nefel; but if he survived and his signs were not completed, it is obvious that he is nothing. And the matter is a kal vachomer: if when his signs are completed, we say according to Rabbi that even if he was born in the eighth month he delayed and is a child of seven months, as has been written, then certainly if he survived thirty days and his signs were not completed, we say he is a child of eight months. And one cannot say that Rabban Shimon ben Gamliel holds that the absence of completed signs is no proof at all; first, because since Rabbi says that this is a definitive sign, it is not reasonable to say that they argue over physical realities. Furthermore, if it were so, Rabban Shimon ben Gamliel should have said, "these signs are no proof, rather anyone who did not survive"; and since he did not say so, hear from it that he does not argue on this. And when his months are complete, it is impossible for this to be, that his signs would not be completed. Therefore, the Tur only wrote his ruling in a case where it is not known if his months were complete, for when his months are complete, this reality is impossible to exist at all. And it is possible that the opinion of the Rambam and the other Rishonim is also so, and because of the great simplicity of the matter, they did not need to mention this explicitly. And this is the opinion of our teacher, the Rema, and so one should instruct.

However, even according to the words of the Tur, if it lived thirty days and died and they did not examine it to see if its hair and nails were fully developed, we rely on saying that it was viable, for according to the Torah it exempts from the moment it emerged alive into the atmosphere of the world (Taz and Be'er Sheva subsection 6). And whenever there is a doubt whether its months were complete, she performs chalitzah and does not perform yibbum. And whenever it died within thirty days and it was not known with certainty that its months were complete, it is a doubt. And even when it was stillborn or miscarried, if there is only a doubt that its months were complete, the Tur wrote that she does not perform yibbum but only chalitzah (see Be'er Sheva subsection 7 who remained in further study, and his intention is to what was written in the Beit Yosef that his proof from Nazir 13a is difficult, for we do not rule like Rabbi Shimon there but like Rabbi Yehuda; however, in Bedek HaBayit he corrected this, that there is proof for this from the beginning of the chapter HaCholetz, and as written in siman 164 section 2, see there and examine carefully).

Our teacher, the Rema, wrote in section 4: There are those who say that in this time, even if she did not enter the ninth month except for one day besides the day on which she conceived, it is a viable birth. And even though we say in the Gemara that one who gives birth at nine does not give birth in partial months, many have already wondered at this, as the senses contradict this; rather, we must say that now the matter has changed, and so it is in several matters. However, the months of pregnancy are each thirty days, and we do not calculate them according to the order of the years. Thus far his words. And I wonder at his words: first, that in the Shas there is a dispute regarding this, as is proven in the Gemara (Yevamot 42a) which stated in this language: "Even according to the one who says that one who gives birth at nine does not give birth in partial months," etc. And in Niddah (27a) it says: "This is well according to the one who says that one who gives birth at nine gives birth in partial months," etc. Behold, it is explicit that there is a dispute regarding this, and why must we say that natures have changed? Let us say that we rule like the one who says she gives birth in partial months. Furthermore, it is necessary to say so, for behold in the Gemara (Niddah 38a) there is a dispute whether this, that a woman gives birth at seven or at nine, is according to her months, each of which is thirty days, or whether it depends on the months of the year, such that one day in a month is considered a full month, and this is called in the language of the Gemara "the shofar caused it," meaning the shofar that the beit din blows for the sanctification of the month (Rashi). And it is clear that the one who holds that she does not give birth in partial months does not hold that "the shofar caused it" (Rashi, Rosh Hashanah 11a, s.v. "Even"). And our teacher, the Rema, himself ruled above in siman 4, section 14, that "the shofar caused it," where he wrote there: A woman who conceived at the end of Sivan and gave birth at the beginning of Kislev, we are not concerned, for the months cause it and it is a seven-month birth. Thus far his words. And perforce we rule that she gives birth in partial months. And there is no logic to say that for a seven-month birth "the shofar caused it" and for a nine-month birth it is not so, for what logic is this? And it is explicitly proven in the Shas that there is no difference in this. And if so, it is even more difficult regarding what he wrote here, that we calculate each of the months of pregnancy as thirty days, for he contradicts himself regarding what he wrote there. And it is further difficult, for from the words of the Tosafot in Niddah (27a, s.v. "Rather") it implies that the one who holds she does not give birth in partial months does not hold that the fetus can be delayed in the womb, see there. And behold, in this entire siman it has been explained that we say the reasoning of "delayed."

And it must be said according to what we wrote in siman 4, section 25, that from the Rambam it is clarified in several places that he does not hold of this principle that "the development of the fetus caused it." And we explained there that our teacher, the Rema, also did not write this law there except regarding the matter of not removing a woman from her husband, see there; but in all other matters we do not establish that "the development of the fetus caused it." And according to this, it is simple that in the laws of yibbum and chalitzah we must rule thus stringently. And according to this, even though there is a dispute in the Gemara whether one who gives birth in broken months does so in the ninth month or not, we should have been stringent in this like the one who holds that she does not give birth in broken months; however, because this matter contradicts the senses, regarding this he says that we should not be stringent even regarding the matter of yibbum and chalitzah. But the months of pregnancy we must calculate each month as thirty days, and we should not be lenient to say "the development of the fetus caused it." And the explanation of his words is thus: since we see with our senses that they give birth in broken months, if so, we should have established the halachah accordingly and said also that "the development of the fetus caused it"; to this he says that it is not so, for even if the law is that "the development of the fetus did not cause it" and she does not give birth in broken months, nevertheless regarding this matter nature has changed, as we find this in several matters (Tosafot Chullin 47a, and Avodah Zarah 24b, and Moed Katan 11a).

If the child died within thirty days and we do not know if its months were complete, she is not believed to say that its months were complete and to exempt herself from chalitzah; only regarding not performing yibbum is she believed. However, to marry an outsider she is not believed, for even to testify about another woman she is not believed, as we require valid witnesses, and certainly for herself she is not believed. Only to say "my husband died" is she believed, for the reason that she is exacting and then marries, as was written in siman 17, but she is not believed to say "my yavam died" so that she may marry an outsider (Yevamot end of chapter 15). And the same law applies that she is not believed to say its months were complete. But if the husband during his lifetime said that he knows its months were complete, he is believed, for the Torah gave credibility to the father over the sons (see Beit Shmuel subsection 5).

A yevamah who married an outsider, and witnesses testify regarding her that the offspring she bore after his death lived thirty days, and other witnesses contradict them and say that it did not live thirty days, nevertheless she is permitted to her husband and does not require chalitzah. For even though we establish that whenever there are two against two, according to the Torah we establish it upon the chazakah, and when there is a chazakah of permission she is permitted, yet by Rabbinic law she is forbidden—nevertheless, here where according to the Torah she is permitted according to everyone and the prohibition is Rabbinic as I have written, she is also permitted by Rabbinic law when there is a chazakah of permission. And here there is a majority, which is superior to a chazakah, for the majority of women give birth at nine months and it is in the chazakah of being a ben kayama. And it appears to me that this is specifically when the two who contradict do not state a defect regarding the offspring, but only that it did not live thirty days; however, when they state some defect, such as saying that its hair and nails were not fully developed, such that according to their words she is forbidden even by Torah law, she requires chalitzah (and so it appears from the Beit Shmuel, subsection 9).

And all the more so if there are no witnesses that it did not live thirty days, but only a mere rumor, since she has married we do not concern ourselves with it even when there are no witnesses that it lived thirty days, for we do not concern ourselves with a rumor that arises after marriage. However, if it is before marriage, we do not allow her to marry until the matter is clarified. And similarly after marriage, if there are witnesses who testify that it did not live thirty days and there are no other witnesses against them to contradict them, she requires chalitza if she is the wife of an Israelite and remains with her husband, and it will be explained in siman 164. And one should not ask that if so, also in the law in the previous section why should she not perform chalitza since she is permitted to remain with her husband; however, the Rosh, of blessed memory, wrote in a Responsum (Klal 52) that nevertheless we concern ourselves with the rumor because some say that the child of a yevama to an outsider is a mamzer by rabbinic decree, and they will spread a rumor about her children from the second husband. Only in a case where by law she must necessarily perform chalitza, like that in siman 164, we are not to look at the rumor, which is not the case when by law she does not require chalitza, we concern ourselves with the rumor regarding her children.

The Tur wrote: One who says "this is my son" or "I have children" is believed to exempt his wife from yibbum, even if he was established as having brothers, and even if witnesses came afterward saying that he has brothers, she is permitted. However, if there are witnesses that he has brothers, he is not believed to say "I have children" to permit her. If he said at the time of kiddushin "I have children" and retracted and said at the time of death "I do not have children," he is not believed to forbid her; and the Ramah wrote that she performs chalitzah and does not undergo yibbum. Thus far his words. And in siman 157 he wrote: If he was not established as having brothers and said "I have brothers," he is not believed. If one came and said "I am his brother," he is not believed; and even if one witness testifies about him that he is his brother, he is not believed to remove her from her established status. If he was established as having brothers and said "I have no brothers," or if he said regarding someone who is established as being his brother that he is not his brother, the Razah wrote that he is believed to permit her, and the Rambam wrote that he is not believed, and such is the opinion of Rav Alfas, and such is the conclusion of my father, the Rosh, of blessed memory. Thus far his words.

The explanation of his words is that when he says "this is my son" or "I have sons," even if he was established as having brothers, he is believed to exempt her. This is by virtue of a migo, for it is in his power to divorce her and exempt her from yibum. Therefore, even though she is in the status of being bound to a yavam, he is believed to exempt her by virtue of a migo. And even though a migo in the place of a chazakah is an inquiry that was not resolved in the Gemara (Bava Batra 5b), that is when the migo contradicts the chazakah; but here, the migo does not contradict the chazakah, for it is true that he has brothers according to the chazakah, but he also has sons, and therefore he is believed via migo (Nimukei Yosef, chapter 8 of Bava Batra). According to this resolution, when he says "I have no brothers," he is not believed based on this migo, since we would need to believe him based on the migo and contradict the chazakah, which is a legal doubt, and therefore he is not believed to permit her to the general public. Likewise, if he was established as having no sons, he is also not believed to say "I have sons," since it contradicts the chazakah. And there is another way to resolve this, that it is not similar to every migo in the place of a chazakah, for specifically when the migo is only because he could claim another argument, it is not so powerful as to push aside the chazakah; but here, it is a migo because of something that is in his power to do, and it is very powerful to push aside the chazakah (Ran, chapter 3 of Kiddushin). And behold, we hold in Yoreh Deah siman 127 that a single witness is believed in a matter that is in his power even in a matter where there is a chazakah of prohibition, and therefore also with a migo such as this, he is believed to push aside the chazakah. According to this resolution, he is believed also to say "I have no brothers," and likewise he is believed to say "I have sons" even when he was established as having no sons.

And there is another question regarding this: how is he believed with a migo that it is in his power to divorce her? For when he divorces her, she will be forbidden to a kohen, and based on this migo, we are permitting her to the general public as a widow who is not bound to a yavam and is permitted even to a kohen. Therefore, in truth, some say that she is also forbidden to a kohen, according to the law of every migo, where we do not give the claim more power than the migo itself. This is an explicit Gemara in Bava Batra (70b) and as explained in Choshen Mishpat siman 296, see there (Shiltei HaGibborim in the name of the Riaz in the eighth chapter of Bava Batra). However, the Ramban, of blessed memory, wrote that she is permitted even to a kohen, for he does not care whether she will be forbidden to the priesthood or not (Nimukei Yosef ibid.). This migo is not weakened for him for this reason, since his primary desire is only that she not be bound to a yavam, and he could divorce her and she would marry an Israelite. When they come before us, we perforce believe them that she is not bound to this yavam, and automatically, since she is not bound, she is permitted to the priesthood (Ramban in his novellae to Bava Batra 134b). And so it appears from the words of the Tosafot and the Nimukei Yosef there (and so wrote the Mishneh LaMelech at the beginning of chapter 3 of Yibbum, see there). And one also should not ask how he is believed with this migo of what is in his power to divorce her, when we have established in siman 152 that a husband who says "I divorced my wife" is not believed even though he has this migo. For it is different there, as there is a contradiction to what he says, "I divorced her," since there is no rumor of the divorce, as is written there. But here this does not apply, for in truth, if he had divorced her, there would be a rumor; rather, we believe him because it is in his power to divorce her.

And with this, the words of the Tur are clarified, who ruled that when one says "I have sons," he is believed even when it was established that he has brothers, and there is no dispute in this, because even according to the first resolution he is believed since he does not contradict the established status, and specifically when it was not established that he has no sons, as I have written. And in siman 157, regarding when he says "I have no brothers," where he wrote that the opinion of the Rif, the Rosh, and the Rambam is that he is not believed because he contradicts the established status, and the Razah who ruled that he is believed because he holds like the second resolution that we wrote, that this migo, because it is in his power, is strong enough to uproot the established status. And according to this, even if it was established that he has no sons and he said "I have sons," he is also believed, as I have written. And it appears to me that also the opinion of the Rashba in his novellae to Kiddushin there is so, see there, for he wrote similar to the second resolution. And there is room to doubt, according to the opinion of those who forbid, if he said "I had brothers at the time I married her and now they died," if he is believed because he does not contradict the original established status, or perhaps since in any event it was established that he has brothers, he is not believed to remove her from the established status even in such a case; and from the wording of the poskim it implies that in any case he is not believed. (And know that seemingly from Rashi and Tosafot in Kiddushin there, who explained that the dispute of Rabbi and Rav Nachman is specifically when he contradicts himself from the time of death to the marriage, but when he does not contradict, even Rav Nachman admits, if so even if we rule like Rav Nachman he is also believed like the opinion of the Razah; however there is no proof, for one could say that they hold as the Ramban wrote regarding the Rif, of blessed memory, that we do not sustain the resolution of Abaye, and when it is established that he has brothers he is never believed to say that he has no brothers, and if so, in the final law he is not believed, and delve into this).

That which the Tur wrote, that when there are witnesses that he has brothers he is not believed to say that he has sons, his reasoning is that since the essence of his credibility is by virtue of a migu, as I have written, it is effective only against a chazakah and not against witnesses. And even though this is not like a migu in the place of witnesses, for he does not contradict the words of the witnesses, nevertheless, since according to the witnesses she is established in a state of prohibition, he is not believed with his migu to remove her from the prohibition. And so it is explained from the words of Rashi and the Rashbam there, see there. And that which he wrote, that if witnesses came afterward saying that he has brothers she is permitted, the reason is simple: since at the time of the act she went out to a state of permission by virtue of a migu, and these witnesses do not testify against his claim, she remains in her established state of permission as before, for this is like one who was established as having sons and is permitted to the public.

And know that our teacher, the Beit Yosef, in section 6 wrote this law in the name of "some say," and this is his wording: And some say that if there are witnesses that he has brothers, he is not believed afterward to say that he has sons. Thus far his words. And it implies that there is one who disagrees with this, yet we have not seen explicitly who disagrees with this. And he follows his reasoning in his great work that the Rambam disagrees with this. And it requires further study, for the Rambam is not dealing at all with a case where there are witnesses (Beit Shmuel, subsection 11). However, his intention is clear, since the Rambam wrote at the beginning of the third chapter of Yibbum, without qualification, that one who says "I have sons" is believed. And it implies explicitly that this refers to everyone; for if it could enter your mind that one who has brothers is not believed, he should have explained this as they explained in the Gemara. And behold, most people have brothers, and how could he state the matters without qualification? Rather, certainly he holds that since in this he does not contradict the fact that he has brothers, if so, even if there are witnesses and even if the brothers are before us, he is believed. And in the Gemara (Bava Batra ibid.) where it says that even though he is presumed to have a brother he is believed, it does not interpret like Rashi and the Rashbam that he is only believed when there is a presumption and not with witnesses; rather, it is because according to the sugya there it must be said so, see there, but the same law applies when there are witnesses.

And that which the Tur wrote: If he said at the time of kiddushin, "I have sons," and then said at the time of death, "I have no sons," he is not believed to forbid her; and the Ramah, etc. Thus far his words. And it also deals with a case where he is presumed to have brothers and is not presumed to have sons, and he is believed in what he said, "I have sons," as has been explained. Therefore, he is not believed to say, "I have no sons." And there is a great novelty in this, for even though one could say that he should not be believed at the time of kiddushin because he says so intentionally so that she will marry him and not worry that she will fall before a yavam, and conversely it would seem appropriate to say that he should be believed at the time of death, for one could say he is telling the truth so as not to cause her to stumble in the prohibition of a yevama to an outsider—nevertheless, he is not believed. And the reason for the matter is that since the sages believed him in his statement because of the migo, as I have written, it is as if she has been established in the presumption that she is not bound to a yavam, and he is not believed to remove her from her presumption. And all the more so if the first statement was not at the time of kiddushin and the final statement was not at the time of death, that he is not believed. However, the Ramah was stringent in the matter and ruled that she performs chalitzah and does not undergo yibbum, for perhaps since he spoke at the time of death, we should believe him for stringency. And it is a dispute in the Gemara there (and the first opinion is like Rabbi, and the Ramah is concerned that perhaps the halacha is like Rabbi Natan; see there in Kiddushin 64a).

And know that regarding what has been explained, that he said it at the time of the kiddushin, the intention is not that he betrothed her on this condition; for if so, there would be no doubt in this, for one way or the other: if he has no sons, the kiddushin are nothing, and if he has sons, she is not bound to a yavam. Rather, it means that he said this to her at the time of the conclusion of the matter when they became engaged, but the kiddushin were performed without specification. And there is room to doubt according to the first opinion—that he is not believed to retract—whether this is specifically when he says "I never had sons," but if he says they died after the kiddushin he is believed, since he does not contradict his previous statement; or perhaps even in such a case he is not believed, because since she was established in a state of permissibility, he is not believed to forbid her. And so it implies from the language of the poskim, and as I wrote in section 25 regarding brothers. And the words of the Tur regarding brothers will be explained in siman 157 with the help of Heaven.

The Rambam (chapter 20) and the Tur and the Shulchan Aruch, section 8, wrote that one witness is believed to testify that a son was born to her husband to permit her to a stranger. Our teacher, the Rema, wrote that there are those who disagree. Thus far his words. Behold, the opinion of the Rambam is that just as one witness is believed to testify that her husband died and she may perform yibbum, or that her yavam died and she may marry into the public, so too he is believed to say that he has a son and she may marry into the public. According to this, for one who holds that one witness is not believed to say that her yavam died and she may marry into the public, also in this case he is not believed. Therefore, the Rambam, who rules there that regarding the death of a yavam he is believed, and so ruled our teacher, the Beit Yosef, in siman 158, therefore they ruled that also in this case he is believed. And our teacher, the Rema, who ruled there that he is not believed, ruled also in this case that he is not believed. But if so, it is difficult regarding the Tur, who here ruled that he is believed, and there ruled that he is not believed, see there (for it is a question that was not resolved, as is written there).

And it appears to me that these laws are not dependent on one another, for even according to the one who holds that regarding the death of the yavam a single witness is believed, nevertheless, it is possible that regarding "a son was born to him" he is not believed. And this is the opinion of the Ra'avad in the third chapter of Yibbum, for there a single witness is believed because of the principle of a matter that is destined to be revealed, for when the yavam comes and is alive, his lie will be revealed before all; but regarding "a son was born to him," it will never be clarified, for if it is clarified that in such-and-such a place he has no son, he can say that he is in another place. And so too the opposite: even if we say that regarding the death of the yavam he is not believed, it is possible that here he is believed, for specifically when she remained with a certain zikah, a single witness is not believed to remove her from the presumption of her zikah, which is not the case when a certain zikah never took effect upon her, but only a doubtful zikah, and the witness testifies that she was never subject to zikah, it is possible that he is believed. And the witness is no worse than the husband himself, who is believed by power of a migo to say that he has a son, as I have written. And so too the witness, even though migo is not applicable to him, nevertheless, he is no worse than the litigant himself. And it appears to me that this is the opinion of the Tur (and the difficulty of the Beit Shmuel in subsection 14 is answered, and see the Bach and it is simple, and according to what I have written it is well-settled). And there is one who says that the intention of the Tur is when the husband went with one woman to the provinces of the sea, and therefore a single witness is believed because of the principle that the majority of women conceive and give birth, and the majority assists him (ibid.). But it is impossible to say so, for if so, he should have clarified that only in such a case is he believed; and furthermore, the Tur brought this in the name of the Rambam, and according to the Rambam it is obvious that in every case he is believed, for he categorized this law with "her husband died" and "her yavam died," see there. And furthermore, in such a case the Ra'avad would not have disagreed with him. Therefore, it appears to me as I have written.

The Rambam wrote (ibid.): One who commits zanah with a woman, whether she is unmarried or a married woman, and she becomes pregnant, and he says, "This fetus is mine," even if she admits it to him, even though he is his son regarding inheritance, he is a doubt regarding yibbum. Just as she committed zanah with this one, so she committed zanah with another, and from where is the matter known that this is certainly his son? For he has no chazakah; rather, it is always a doubt, and we judge it stringently, and she performs chalitzah and does not undergo yibbum. Thus far his words. For that which was explained, that one who says "this is my son" is believed, that is when he says he is a son from his wife; but in zanah, from where is it known that she did not commit zanah with another as well? And all the more so with a married woman, for most acts of intercourse are after the husband. And behold, that which they believed him when saying "this is my son" is by the reasoning of a migo, for he could have released her with a get, and every migo is only effective so that we believe him regarding his claim. Therefore, with his fit wife, when he says "this is my son" and we believe him, no concern remains; which is not the case with a zonah, for certainly we believe him, but from where is it known that she did not commit zanah with another also?

The Tur, in the name of the Rosh, wondered at his words, for since according to his words it is a doubt, why should he inherit him? And there are those who said that regarding inheritance he is believed because it is within his power to give to him during his lifetime (the Gra, subsection 29). And it appears to me that this is only when the father says that he should inherit him that he is believed for this reason, but here the Rambam ruled that he inherits him automatically even without a command; the Rosh rightly questioned that if he is not certainly his son, why should he inherit him and take away from the certain brothers? Furthermore, it is a wonder, for in the Gemara Ketubot (14a) it is explicitly proven regarding a betrothed man and a betrothed woman that when both of them admit, she is believed. And there is one who wishes to say that a betrothed man and a betrothed woman are different because she is his wife, which is not the case with an ordinary unmarried woman (Knesset HaGedolah, siman 56). But it is not so, for in the Gemara Yevamot (end of chapter 7) it is explicitly proven that they are equal, see there (and this is the intent of the Maggid Mishneh). Furthermore, it is difficult, for the Rambam himself ruled in chapter 8 of Hilkhot Terumot, law 14, that a kohen who raped or seduced a daughter of an Israelite and cohabited with her and she gave birth, if only we did not hear that another cohabited with her and she is not suspected of others, we judge the offspring after him and she eats terumah because of her son, see there. And so he ruled in chapter 15 of Hilkhot Issurei Biah, law 17, regarding a betrothed woman who became pregnant, when she says it is from the betrothed man and he does not deny her, she is believed, and all the more so when he says explicitly that it is from him. And there are those who wish to say that the Rambam is dealing with terumah in this time, which is rabbinic, and in the prohibitions of cohabitation where we do not presume him to be a doubtful mamzer, it is also rabbinic, for from the Torah a doubtful mamzer is permitted to enter the congregation (Bach and Beit Shmuel, subsection 15). But there is no foundation for these words, for in any such case he should not have written without specification but rather should have explained, and such is not his way; and it is explicitly clear from his words that he wrote this from the essential law and not because this is rabbinic. Furthermore, that a doubtful mamzer is fit from the Torah is not the case in a majority of disqualified people, and the Rambam declares him fit in every manner, if so it is a Torah matter (see Beit Shmuel ibid.).

And in truth, the opinion of the Rashba and the Rosh is that in any case where he had relations with her and it is not known that another had relations with her, and both admit that it is from him, she is exempt from chalitzah and from yibbum. The Maggid Mishneh also agreed to this if she is not suspected of relations with others. Nevertheless, our teachers, the authors of the Shulchan Aruch, in section 9 wrote only the opinion of the Rambam, except they wrote that if they were imprisoned in a house of captives such that it is certain the child is from him, he exempts her, and this is simple. Furthermore, they wrote that there are those who say that with a zona designated for him, he also exempts her. It is possible that in this case even the Rambam agrees, as the Tur wrote, see there. And there are those who disagree on this (see Chelkat Mechokek subsection 16 and the Gra subsection 30).

Regarding the reasoning of the Rambam, of blessed memory, it appears to me that his words are clear, for we have no basis upon which to exempt her. For behold, it has already been explained in siman 4, section 31, that the fact that the woman is believed to validate the status of the child is due to her presumption of fitness, and furthermore, that a woman who commits adultery is careful and checks herself. And there in section 32, it was explained that she is not believed to establish the child as belonging to a specific person when he does not admit that it is from him. And in the laws of forbidden relations there, the Rambam wrote only that she is believed to validate the child, but not to establish him as the son of a specific person. And in the laws of terumot there, where he validates him to eat terumah, it is because we knew that he had relations with her, as is explained there, and he is believed to feed him terumah because it is within his power to feed him, and this is explained in the Shas (Ketubot 25b). It follows that based on her credibility, it is obvious that she does not have the power to exempt herself from yibbum, for they only believed her to validate the child and not to establish him as the son of a specific person. And based on the credibility of the father, one also cannot exempt her, for it has already been explained in this siman that the reason we believe the father to say "this is my son" to exempt her from yibbum is by virtue of a migo, for it is within his power to divorce her; and similarly regarding terumah, as I wrote, that it is within his power to feed him terumah and to make him his heir because it is within his power to give to him. And even if he does not say explicitly that he will make him his heir, nevertheless, since he says he is his son, why should he not be believed regarding his own? But to exempt her from yibbum based on the fact that he believes the woman that she did not commit adultery with another, it is not relevant to exempt based on the reasoning of migo, for every migo is only credibility regarding the claim that he claims, that we should believe him in this; and here, even if we believe him that he had relations with her, it is not relevant to believe him that another did not have relations with her, for he himself does not know of this and only believes her, and she is not believed, as we explained. And this is what the Rambam, of blessed memory, was precise about in his words: "And from where does he know etc.," meaning that she is not believed for this and he relies only on her credibility.

And even if we do not scrutinize so much, the matter is simple. For behold, it is true that both of them are believed to maintain the status of the offspring as kosher for all matters; nevertheless, it is simple that they are not believed to extract from others. For we do not find anywhere that the interested parties would have the ability to extract from the possession of another without witnesses. And here, the Torah granted merit to the brother of this man in his wife when he dies without children, and how can they abrogate the right of the brother based on themselves when there are no witnesses or a chazakah in the matter? And if it is because of a migo, that it is in his power to divorce her, behold we have explained that there is no migo here. And even though here there is no right for the brother, as we do not permit him to perform yibbum—this is because of the doubt, that perhaps her words are true and he would encounter a forbidden relation—but his right is not abrogated, and of necessity she must perform chalitzah and not yibbum. And let it not be difficult for you that if so, how does this offspring extract his portion in the inheritance? For this is because of the migo that it is in his power to give to him; and furthermore, regarding his own property he is certainly believed, but not regarding the property of others. But when he says "this is my son from my wife," behold he has a migo and also a chazakah that she did not commit adultery with another, for all women of Israel are in a chazakah of fitness; which is not the case with this harlot, who lost her chazakah of fitness and committed adultery also with another (and this is the chazakah that the Rambam mentioned).

A woman whose husband and son went to a country overseas, and they came and told her, "Your husband died," is permitted to marry anyone, and we do not fear that perhaps the son died and she is bound to a yavam, for we establish him in his status of being alive, and we do not fear that perhaps he died. And if she, her husband, and her son went to a country overseas, and she came and said, "My husband died and afterwards my son died, and I am permitted to anyone," she is believed, for when she left she was in a status of permission to anyone (Rashi, end of chapter 15). Furthermore, she has a migo, for if she wanted she could have said, "My husband died," and remained silent regarding the son (Tosafot 94a), and automatically we would have established him in his status of being alive. But if she said, "My son died and afterwards my husband died, and I am permitted to be taken in yibbum," she is not believed to be taken in yibbum; rather, she performs chalitzah and is not taken in yibbum, for she removes herself from the status she had here, and without chalitzah she is not released because she has made herself a forbidden matter (Rashi). But if two witnesses testify thus, she is permitted to be taken in yibbum, and regarding one witness there is a dispute, and it will be explained in siman 158 with the help of Heaven.

Some say that the fact that she is believed to say "my husband died and afterward my son died" is specifically when there is no rumor that they died; but when there is a rumor, she is not believed (the Maor, chapter 10 of Yevamot). And according to the two reasons that were explained, she is not believed: for according to the first reason, because she was in a status of permission to the public, now when it is heard that both of them died and it is not known who died first, she is not in a status of permission, for perhaps the son died first. And according to the second reason, because of a migo, we have already explained in Choshen Mishpat siman 82 in the rules of migo that we do not say a migo in the place of a rumor when the rumor is well-known (and so it appears in the Chelkat Mechokek subsection 16, and from this is a contradiction to the Noda BiYehuda, Choshen Mishpat siman 30, see there). And see what we wrote in section 42.

And if one witness knows of their deaths, whether she is believed to say, "My husband died and afterwards my child died," the great figures of the generation divided over this based on an incident that occurred after the decrees of 5408. There were those who wished to forbid her without chalitzah on the grounds that there is no migo here, for she is afraid of the witness and is forced to say that the son also died. The Taz, of blessed memory, wrote at length in this siman to permit her for two reasons: First, that on the contrary, since she is afraid of the witness, she presumably does not lie so that the witness will not contradict her. Furthermore, one witness is nothing, for one witness is not believed to forbid and to remove something from its status of permissibility, as is explained in Yoreh Deah siman 127. And according to this reason, one should not raise a difficulty that in a matter that is destined to be revealed even one witness is believed, as is explained in many places; for it can be said that if so, she is also believed for this reason. And there is one who raised a difficulty against this from what will be explained in siman 158: in a case where he has a son and one witness came and testified that the son died and afterwards the husband died, she is permitted to the yavam. Behold, the witness removes her from a status of prohibition regarding the yavam and brings her into permissibility; if so, the same applies to the opposite, that he removes her from a status of permissibility to the general public and brings her into prohibition (this is the intent of the Beit Shmuel at the end of subsection 16). However, this is not a comparison, for there the entire essence of the permission is based on the witness, as she does not know if her husband died, and she is permitted based on the witness who testifies that her husband died, and automatically he is also believed to permit her to the yavam. This is not the case here, where she herself says her husband died and is believed, and she is in a status of permissibility to the general public; the witness cannot remove her from her status (the glossator on the Taz). Nevertheless, it appears to me as the law that she should not marry into the general public until the matter is clarified, for we hold that wherever it is possible to clarify, we clarify. And it is obvious that this matter is possible to clarify, who died first. However, when it is not possible to clarify, it appears as the law like the words of the Taz, of blessed memory.

The halacha is: if she and her husband went to a country overseas and they had no children, and she came and said, "A son was given to me in the country overseas and he died, and afterwards my husband died, and I am bound to a yavam," she is believed, for she left from here with this presumption. But if she said, "My husband died and afterwards my son died, and I am permitted to the public," she is not believed, for she removes herself from her previous presumption. Nevertheless, we are concerned for her words such that she may not undergo yibbum, but rather she performs chalitzah and does not undergo yibbum (Mishnah, end of chapter 15).

And there are those of our teachers who wrote that specifically when there are witnesses that both of them died, but without this, she is believed to say "my husband died and afterward my son" through a migo that she could have said "a son was born to me and he is alive," for the majority assists her, as the majority of women conceive and give birth (Tosafot 119a, s.v. "amai"). And there is one who raised a difficulty regarding this: if so, why is she believed to say "my son died and afterward my husband"? Since there are witnesses, she is not in the status of being bound to a yavam (Maharsha). And more than this should be questioned: even when there are no witnesses, why is she believed to say "my son died and afterward my husband"? Let us say the majority of women conceive and give birth and she stands in her status of permission to the public, and how is she believed against the majority to undergo yibbum? And in truth, the Rashba, of blessed memory, raised this difficulty in his novellae there and answered: since she left without children and returned without children, she has not left her initial status. Thus far his words. That is to say, in this matter one does not follow the majority, since even now before us we see her, that she is not of the majority of women, and also while she was here she was not of the majority of women; therefore we follow her previous status. And according to this, even when there are no witnesses, she is certainly not believed to say "my husband died and afterward my son," for she does not have the migo that we wrote, since she is before us in the status of one who is not of the majority, as has been written.

And it must be said that our teachers hold that when there are witnesses that both of them died, it would have been proper by law to say that she should be believed in whatever she says because she is afraid that she will be contradicted by the witnesses, like the reasoning of the Taz that we wrote in section 39. Nevertheless, when she contradicts her initial chazakah that was before us, we do not rely on this reasoning in place of a chazakah. Therefore, in the case of "my son died and afterwards my husband," she is believed, as she maintains herself in her initial chazakah that was before us. And even though when there are witnesses she is not in the chazakah of being bound to a yavam, this is not so, for the witnesses also say that both died, and she is afraid to lie as we have written. But when she says "my husband died and afterwards my son," whereby she removes herself from her initial chazakah, she is not believed, for the reason of her fear does not come to nullify her previous chazakah. And when there are no witnesses, they hold that it is a superior rov, for even though there is no offspring before us, nevertheless it is possible that he is in another place. Therefore, she is believed even to remove herself from her chazakah, such as when she says "my husband died and afterwards my son," for a rov is preferable to a chazakah, and she has a migo since she could have said her son is still alive. And similarly, she is believed to maintain the chazakah and say "my son died and afterwards my husband," and even though it is against the rov, nevertheless since the sages gave credibility to a woman to say "my husband died" so that she may marry into the public, and "my husband died" so that she may perform yibum, for the reason that she is precise as we wrote in siman 17, and they were not concerned for the chazakah of the husband's life as we wrote there, therefore they believed her in whatever she says for this reason and were also not concerned for the rov. And all the more so when she has a chazakah of yibum that she is believed. However, this is all if we do not say the reasoning of "attach the minority to the chazakah" and the rov is weakened. But if we say this reasoning, she is not believed to remove herself from her previous chazakah and say "my husband died and afterwards my son," because we say attach the minority of those who miscarry to the previous chazakah of being bound, and this rov that most women conceive and give birth is weakened. And shortly it will be explained whether we say this reasoning or not. (And the Tosafot possibly wrote this not according to the conclusion of the beginning of the chapter "Ha-Isha Batra," see there, and see Beit Shmuel sub-section 17 and Be'er Heitev, and according to what I have written, all is well; and delve into it):

It is stated in the Gemara (ibid.) that this which we said regarding one who says "a son was born to me and my husband died and afterwards my son died," that we are concerned for her words and she performs chalitzah but does not perform yibbum, this is specifically when she is disqualified from the priesthood even without this chalitzah, such as if she is a divorcee or the like. However, if until now she is fit for the priesthood, she does not perform chalitzah unless she says that she and her husband were in a secluded place where there were no witnesses; but without this, she shall not perform chalitzah until a clear matter is clarified. And the reason is that we are concerned lest witnesses come and testify that she spoke the truth and was permitted to the public and did not require chalitzah, and we will need to proclaim regarding her that she is fit for the priesthood, and there are people who saw the chalitzah and did not hear the proclamation, and when they see that she married a kohen they will say that a chalutzah is permitted to a kohen. Therefore, she shall not perform chalitzah and shall not perform yibbum, but rather shall remain in the status of one bound until witnesses come and the matters are clarified. And the Tur and the Shulchan Aruch in section 12 brought this law, and also the Rambam wrote so in chapter 3. And in the Rif and the Rosh this is not found, and it appears to me that they do not disagree on this, and only relied on that which they wrote regarding this law afterwards at the beginning of the chapter "Ha-Isha Batra," and automatically in this law it is also so (and for naught did the Beit Shmuel press himself on this in subsection 17).

The Rambam wrote in chapter 3, law 16: Similarly, a woman whose husband and her co-wife went to a province overseas, and two witnesses came and said to her, "Your husband died," behold, she may never perform chalitzah nor may she enter into yibbum until it is known if her co-wife gave birth or did not give birth. And why should she not perform chalitzah after nine months from the death of the husband and be permitted to a stranger in any event, for if her co-wife gave birth, behold this one is exempt, and if she did not give birth, behold she has performed chalitzah? It is a decree lest it become known after the chalitzah that her co-wife gave birth to a viable child, and it turns out that this woman is not a chalutzah, and she will marry a kohen after she performed chalitzah, and an observer who did not know of the witnesses who came will say that a chalutzah is permitted to a kohen, and he will testify that he saw her married into the priesthood by the authority of a beit din. Therefore, if she was forbidden to the priesthood from her beginning, behold she performs chalitzah after nine months and may marry a stranger. But this co-wife who was with her husband when he died shall wait ninety days like other yevamot and perform chalitzah or enter into yibbum, and she need not be concerned for her co-wife who is in the other province, since her husband was not with her in the province. Thus far his words. And in the Shulchan Aruch, section 13, they transcribed this in brief, and its end they omitted entirely; see there.

And behold, there is a great question regarding the essence of this law, for this ruling that she may neither perform chalitzah nor enter into yibbum is a Mishnah at the beginning of the sixteenth chapter of Yevamot. And they asked in the Gemara there: Why should she not marry an outsider? Let us follow the majority of women who conceive and give birth, and presumably her co-wife gave birth and she is permitted to an outsider. And it answers there that this follows the view of R. Meir, who is concerned for the minority, but we do not rule like R. Meir; if so, why did they rule like our Mishnah? And even according to the conclusion there, because here there is the majority that permits her to an outsider, as has been written, and against this there is her chazakah for yibbum, as here he had no son, and a majority is superior to a chazakah; however, we say that there is a minority of women who miscarry—join the minority to the chazakah and it is like half and half, and it is a doubt. Therefore, she may not marry an outsider and also may not enter into yibbum. And Rashi and Tosafot explained there that this too is only according to R. Meir, for whom a minority is significant, but according to the Rabbis we do not say "join the minority to the chazakah," for a minority is as if it is non-existent, and we still should not have ruled like our Mishnah (Yam Shel Shelomo there, siman 2). And one must say that the Rambam, the Rif, the Rosh, the Tur, and the Shulchan Aruch, who ruled like the Mishnah, hold that the reasoning of "join the minority to the chazakah" is said even according to the Rabbis (ibid.).

And the Rashba wrote there that this is the opinion of the Rif and the Rambam, and he wrote that there are texts that explicitly read this way, that this is also according to the Rabbanan. And Rav Hai Gaon wrote similarly; see there. And evidence can be brought for this, for in Kiddushin and Chullin and Niddah (18a) the Shas says that R. Meir holds that one joins the minority to the chazakah and the majority is weakened, and here we say that it is half and half. Our teachers, the Tosafists, were forced in all these places to distinguish between one and the other according to their system, that here too it is according to R. Meir. But according to the Rif and the Rambam, it is well understood according to its plain meaning, that here it is according to the Rabbanan. And regarding the law, it is possible that the Tosafists also hold this way, for they wrote in Bekhorot (20b) that for stringency the Rabbanan also concern themselves with joining the minority to the chazakah, see there (where they wrote in the name of Rabbeinu Tam, of blessed memory, that therefore milk does not exempt from the law of the firstborn; and the Rif and the Rambam ruled that milk does exempt, and it can be said that their reason is because there is a chazakah that assists the majority to maintain the offspring in its chazakah of being non-consecrated as it was in the womb, as the Tosafists wrote there; and furthermore, the chazakah of an animal that has not given birth is not a strong chazakah, as it is the way of animals to give birth).

However, there is a question regarding this: if so, how is a single individual trusted regarding shechitah based on the reasoning that "the majority of those found engaged in shechitah are experts"? Let us say: join the minority to the chazakah, and the majority is weakened, or it becomes half and half. It is true that there are some among the Rishonim who said that when they said "the majority of those found engaged in shechitah are experts," it does not mean specifically a majority, but rather all. And so wrote the Tosafot in Bekhorot there, that this majority is a "majority and common," see there. However, even without this, it is well-settled according to what the Rashba and the Ritva wrote here: when do we say "join the minority to the chazakah"? When the minority is set apart from the majority itself, such as here, where the majority of women conceive and give birth, and from this there is a minority who conceive and miscarry. But regarding a minority that is not set apart from the majority, such as regarding shechitah, where the majority are experts and the minority are not experts—for the minority is not set apart from the majority of experts—we do not say "join the minority to the chazakah." Therefore, the Gemara does not say here that there is a minority of women who do not conceive, for this minority is not set apart from the majority. (The Rashba and the Ritva wrote this regarding the matter of a child found next to dough, for the majority of children pat the dough, see there; and consequently, regarding the matter of shechitah it is also so, as is understood. And so wrote the Ri"t Algazi in Bekhorot there. And the Ramban, of blessed memory, has another approach to this, see there in the Rashba).

A woman whose husband went to a country overseas and died there, and he has no children, and she remained bound to a yabam, and a rumor emerged that he had taken a wife there—the Ribash ruled in a responsum (siman 509) that she is forbidden to perform yibbum until it is clearly known, even though the rumor was not established in a beit din, because there is a concern of a severe prohibition. However, she is permitted to perform chalitzah immediately since the rumor was not established in a beit din; for even though if it were known that he had a wife there we would not allow her to perform chalitzah, as has been written, nevertheless it is a minor prohibition and we are not concerned for it, see there. But regarding a Torah prohibition, we are concerned for a rumor, as will be explained in siman 157.