Siman 157

The brother who performs yibum with the wife of his brother who died without offspring is specifically his brother from his father, even if they are not from one mother. However, his brother from his mother and not from his father is forbidden from performing yibum, and she remains for him under the prohibition of ervah as in his lifetime. And this matter we learn through a gezerah shavah from the sons of Yaakov: regarding yibum it is written, "If brothers dwell together," and regarding the sons of Yaakov it is written, "Your servants are twelve brothers, the sons of one man, etc." And this word "brothers" is superfluous, for since it is written "sons of one man," it follows automatically that they are brothers; rather, it is to teach regarding "brothers" written in yibum, that this refers to brotherhood like the sons of Yaakov, who are from one father even if they are not from one mother, like the sons of Yaakov who were not from one mother, and certainly when they are also from one mother (17b). And even if his brother is a mamzer or a complete rasha, he binds her for yibum, for regarding this it is not relevant to learn from the sons of Yaakov, for if so, we would require them to be righteous like them; rather, we only learn regarding the definition of the status of brotherhood and not regarding their quality. But if he had a brother from a maidservant or a gentile woman—meaning that his father cohabited with a maidservant or a gentile woman and fathered a son from her—he does not bind her for yibum, for he is not related after him but rather after his mother, as I wrote regarding a son in siman 156. And consequently, regarding a maidservant herself, it is a doubt and she performs chalitzah and does not perform yibum, as I wrote there regarding a son, due to the concern that perhaps he emancipated her, see there. And this fact that a brother from a maidservant does not bind her applies even if she was emancipated when she conceived and he married her, such that his conception was not in holiness and his birth was in holiness—he does not bind her, for the primary lineage after the father is from the time of conception; and so too with a gentile woman.

It is written, "If brothers dwell together," and the tradition has come that this is specifically when they had one "dwelling" in the world, meaning that the brother was born while [the other] was still alive, to exclude if he was born after his death, he does not bind his wife to yibbum. This is called in the Gemara "the wife of his brother who was not in his world," meaning that he was not yet in the world at the time that this deceased brother was in the world. But if he was only born during his lifetime, even if this deceased one was ill or moribund and this brother was born—even if he was not completely born, but only his head and the majority of him emerged from the womb—it is called that he was in his world, and he binds his wife to yibbum, and she shall wait until he grows up. And even if this newborn is sickly and wounded with blows or moribund such that he cannot live, she is forbidden to marry until he dies, and as long as he is alive, she is called "bound to the yabam." And know that this [rule] that his brother who is a mamzer binds to yibbum, this is when the father was with the forbidden relation while both were imprisoned in a prison house and no other man came upon her; but otherwise, he is a "doubtful brother" and she performs chalitzah and does not perform yibbum (Beit Shmuel, subsection 1). And even though a mamzer otherwise is not permitted to perform yibbum with a daughter of Israel, yet there is a practical difference when she is also a mamzeret, for he is permitted to perform yibbum with her, and in the case of a doubtful mamzer it is not so.

The halakha was decided in the Gemara (39b) that to testify regarding a brother, that he is the paternal brother of the deceased, valid witnesses are not required; rather, even a relative and even a woman are trusted to testify. The reason is because this is merely a disclosure of a matter, and in a matter that is destined to be disclosed, people do not lie. The Rambam wrote in chapter 4 that similarly, even a male slave or a female slave are trusted to testify in this, for according to the reason that was explained, there is no distinction in this. And likewise even a minor, if he is understanding of the matter and recognizes them, is trusted to say, "This person is the brother of that person," and "This is the wife of the deceased," and they perform chalitzah or yibbum based on his word. For since two witnesses are not required and valid witnesses are not required, everyone is trusted regarding this, whether to testify that this is the brother of the deceased or to testify that this woman is the wife of the deceased. And even a witness from the mouth of a witness is trusted to testify in this, since the law of testimony is not required in this (Beit Shmuel, subsection 2). Nevertheless, the beit din must investigate them thoroughly, for they are not superior to two valid witnesses in any testimony. And it appears to me that even testimony by way of writing is effective, since we do not require the law of testimony, provided that they recognize whose writing it is. And there is one who says that even a Cuthean speaking offhandedly is trusted in this, but it does not appear so (see Beit Shmuel ibid. and examine closely). However, all these disqualified individuals are fit to testify even though they are not speaking offhandedly; since the reason is because of a matter that is destined to be disclosed, if so, what difference does it make to me if they are speaking offhandedly or are not speaking offhandedly?

It appears to me that a wicked person is disqualified from testifying, for since he has cast off from himself the yoke of the Kingdom of Heaven, he is unconcerned even if his falsehood is revealed. And it is unnecessary to state regarding those who violate Torah prohibitions that they are disqualified from testifying for a woman that her husband died, as I wrote in siman 17, section 29; rather, even those disqualified by rabbinic law, who are valid there, perhaps that is only due to the regulation for agunot, but not regarding this testimony where many others can be found who recognize them. And all the more so regarding one suspected of sexual immorality, who is disqualified there, he is disqualified here as well, because he is suspected of testifying falsely, as I wrote there in section 30. And regarding one speaking in innocence, even a wicked person is believed, as I wrote there in section 31. And it is possible that only there, where a gentile speaking in innocence is valid, they are also valid, which is not the case here, and it requires further study. And regarding one suspected of sexual immorality, I wrote even there that he is not believed when speaking in innocence, for perhaps he is acting with cunning; see there.

And know that in the Mordechai, chapter Mitzvat Chalitzah, he wrote that this which the sages validated even a relative or a woman, this is when even without their testimony we hold him in the presumption of being the brother of the deceased and the relatives revealed the matter; since we hold this to be so, we say it is a mere revelation of a matter. However, if we did not have a presumption regarding him that he is his paternal brother, and he brought relatives for his testimony, this is not a mere revelation of a matter, see there. But it does not appear so from all the poskim, for certainly where we have a presumption regarding him that he is not his paternal brother, it is obvious that relatives are not believed, and even one valid witness is not believed until two valid witnesses testify. But when we did not know them at all, why should they not be believed? And that which the sages, of blessed memory, said "it is a mere revelation of a matter," this is like a matter that is destined to be revealed, and as I have written. Furthermore, the Rif explains "revelation of a matter" to mean that it is neither a matter of prohibition nor a matter of money, but rather it is a mere matter that reveals that this man is so-and-so and she is such-and-such a woman, see there. And from his words it is also proven not like the Mordechai, and it requires further study (and his proof from the end of the second chapter of Ketubot is no proof, and it is obvious according to the explanation of the Rif, of blessed memory).

Converts who converted (in ancient times) and slaves who were emancipated have no brotherhood at all, even if one of them was conceived not in sanctity and born in sanctity and the second was conceived and born in sanctity. And even if they are twins and were born in sanctity, they have no brotherhood until both of them were conceived and born in sanctity. And thus the sages taught (Yevamot 97b): Two twin brothers who are converts, and similarly emancipated slaves, do not perform chalitzah and do not perform yibbum, and they are not liable on account of "a brother's wife." If their conception was not in sanctity and their birth was in sanctity, they do not perform chalitzah and do not perform yibbum, but they are liable on account of "a brother's wife." If their conception and birth were in sanctity, they are like Israelites in every respect. See Yoreh Deah siman 269. (And the wording of the Tur here is not precise, for he wrote "they are like strangers" regarding their birth in sanctity, yet regarding the matter of a brother's wife they are liable, as he himself wrote in Yoreh Deah there; rather, because he is dealing here with yibbum, he wrote this wording).

This is the wording of the Tur: Rav Sherira Gaon wrote: If she fell before one who converted to the religion of Ishmael, since his conception and birth were in holiness, she is bound to the yavam and is an agunah until he performs chalitzah for her. And Rav Yehudai wrote: If when her husband married her the yavam had already converted, she does not require chalitzah from him; and if the husband was a convert and she lived with him and he died in his apostasy without children, she does not require yibbum, for he is not his brother and he is not bound to her for chalitzah. Thus far. And I do not know why the wife of a convert would not be bound to the yavam, and also what difference there is whether the yavam was a convert when she married or not. Thus far the words of the Tur. And behold, our teacher, the Beit Yosef, in his great book, raised a clamor against the words of Rav Yehudai and wrote that perhaps he was blind and they wrote in his name that which he did not command, and these words have no root or branch nor any side of support at all, and woe to him who is lenient in this. And also Rashi, of blessed memory, responded in a responsum that one should not rely on this at all, and even though he has sinned, he is an Israelite, and if he betrothed, his betrothal is a valid betrothal.

However, in the Mordechai, chapter HaCholetz, it is found from the Rishonim who hold thus, and they stated reasons for this: that one who has converted is not his brother. And the proof is from interest, as it is written, "and your brother shall live with you," and it is permitted to take interest from him because he is not his brother; and here too, "when brothers dwell together," and this one is not his brother. And as for what they distinguish between whether he had converted at the time of his brother's marriage or not, the reason is that they hold that the first marriage causes his wife to fall for yibum; therefore, if at that time he was not included as his brother, she is exempt and there is no zika upon her. This is not the case when he had not converted then, for the zika of yibamin took effect upon her. And another reason: for behold, it is forbidden for her that he should come upon her, and zealots may strike him, and how can his zika take effect upon her in a matter that is forbidden to her? And according to this, his zika is uprooted even if he converted afterward. And another proof is from what the sages, of blessed memory, said (at the end of chapter HaGozel Kama): If so, a yevama who fell before one afflicted with boils should go out without chalitza, for she did not sanctify herself with this in mind? And it answers that a woman is satisfied with any [husband]. See there. But in the case of one who converted, where she is certainly not satisfied, it is certain that she did not sanctify herself with this in mind (and see the Bach and Radach siman 9).

And in truth, all of these are not proofs at all, for "your brother" regarding ribbit does not mean a literal brother, but rather his brother in Torah and mitzvot, and therefore he is not included in "his brother." This is not the case regarding "his brother" in yibbum, which refers to a literal brother; and because he sinned, is he no longer his brother? For the root of "brotherhood" is a term of attachment and connection, and it applies to brothers who are sons of one father and to those of one religion. And behold, it is written, "Was not Esau a brother to Jacob," even though he turned to evil (Kiddushin 18a). And also that which he wrote, that the first marriage causes the falling [for yibbum], it is proven in Yevamot (109b) that death causes the falling for yibbum. And regarding this, that it is forbidden for him to cohabit with her, behold the offspring is not a mamzer; and as long as the offspring is not a mamzer, even though it is forbidden for him to cohabit with her, the zikat yevamin takes effect upon her. And a proof for the matter is those liable for a negative commandment, where she performs chalitzah and does not undergo yibbum. And that which they said at the end of the chapter "HaGozel," the Tosafot already wrote there that it refers to erusin and not to marriage; see there. Therefore, Heaven forbid to rely on this and to exempt her without chalitzah. And so wrote the Maharik in siman 177 and the Terumat HaDeshen in siman 223.

Therefore, our teacher, the Beit Yosef, wrote in the Shulchan Aruch, section 4: If she fell before a yavam who had been inverted, there is one who permits it if he was inverted when his brother married her, but one should not rely upon him; and if the deceased was inverted, his wife is bound to his brother. Thus far his words. And even if he betrothed her at the time he was inverted, for his betrothal is a valid betrothal; and likewise the offspring of the inverted one and the offspring of his offspring until the end of all generations, if they are only from an Israelite woman, even if she is also inverted, their law is like an Israelite in every matter.

Nevertheless, our teacher, the Rema, wrote: However, if she transgressed and married without chalitzah because she did not know she had a yavam, and afterwards it became known that she has a yavam, it is reversed and she does not go out; and some say specifically if he performed chalitzah for her in the end. Thus far his words. And behold, the opinion of the "some say" is certainly correct, for even though a yevamah married an outsider, nevertheless, since she was unintentional, she performs chalitzah and remains with her husband (and see siman 159). And if she married a kohen, it follows automatically that he is compelled to divorce her. But the first opinion, which holds that she does not go out even without chalitzah and relies on the words of the Geonim, is very astonishing; since Rashi and Rav Sherira Gaon rejected this with both hands, as did the Tur and the Beit Yosef, and it is also clear from the words of the Rambam, of blessed memory, and the proofs are clear—how is it possible to rely on this regarding a Torah prohibition? And behold, the author of this opinion is the Mahari Minz in Responsa siman 12, and he elaborated there at length to uphold the words of the Geonim, and he distinguishes between kiddushin that one performs by himself, where certainly his kiddushin are kiddushin, which is not the case with zika that comes on its own. And he further wrote a reason: since anyone who betroths does so based on the will of the Sages, and how could the Sages institute a matter that would lead to a pitfall? And "the Torah's ways are ways of pleasantness," see there. And all these matters are astonishing and have no correct foundation. And he further wrote that even those who are stringent do so only as a mere stringency, see there; but it does not appear so. Therefore, for the law, it is simple that it does not appear correct to rely on this in practice, and it requires great study.

He further wrote: If she had two yevamim, one who converted to another faith and he is the older, and one who is an Israelite and he is the younger, she should only perform chalitzah with the Israelite, and even post facto it is not effective from the one who converted; but if he is from the forced converts, it is effective post facto. Thus far his words. And this is certainly true, that she should not perform chalitzah ab initio except from the Israelite. However, as for his stringency even post facto that the chalitzah of one who converted should not be effective, he follows his own reasoning that such a person is not eligible for chalitzah and does not create a zikkah. But if he is eligible for chalitzah, why should it not be effective post facto? And since the majority of the Rishonim and Acharonim held that he creates a zikkah for yibbum as I have written, it follows that post facto his chalitzah is a valid chalitzah (and so it appears is the opinion of the Beit Shmuel, subsection 5). Nevertheless, it is possible that to be stringent one certainly must be concerned for the opinion of the Geonim that he is not eligible for chalitzah (the Gra, subsection 10). In any event, it appears to me that this is specifically if it is possible to obtain chalitzah from the Israelite, but if it is impossible to obtain it, we do not leave her an agunah, and she is permitted to marry.

He further wrote that one who betroths a woman and has an apostate brother may betroth her and stipulate with a double condition that if she should fall before the apostate for yibbum, she shall not be betrothed. Thus far his words. And there is reason to wonder, for one who stipulates against that which is written in the Torah, his condition is void and the act is sustained. And so we learned in the Tosefta, chapter 3 of Kiddushin: "Behold you are betrothed to me on the condition that you are not bound to yibbum," his condition is void. And so it is in the Yerushalmi at the end of chapter 7 of Metzia. And they further raised a difficulty regarding this, for it has been explained in siman 38 that there is no condition in marriage, for at the time of cohabitation he waives his condition. And in truth, our teacher, the Beit Yosef, in his great book, rejected this with both hands and wrote: "Let the matter be suppressed," etc.

And the opinion of our teacher, the Rema, is thus: that certainly if he makes a condition on the terms that she shall not be bound to yibbum, it is a condition against that which is written in the Torah. However, if he makes a condition that if she falls to yibbum the kiddushin shall not be valid, this is not a condition against that which is written in the Torah. And there is a proof for this from what Chazal said (at the end of the chapter HaGozel) regarding a yevama who fell before one afflicted with boils, for were it not that a woman is satisfied with any [husband], we would say that with this in mind she did not betroth herself, and here too it is similar. And also, that which [is said] that there is no condition in nisuin refers to an unspecified case, but if at the time of intercourse he explicitly makes a condition on these terms, the condition is no worse than at the time of kiddushin (and so wrote the Beit Shmuel, subsection 6). And furthermore, it can be said that specifically regarding a condition where it is uncertain whether it will be fulfilled or not, we say that he waived the condition at the time of intercourse; but here there is no uncertainty, for the condition is for her benefit and the condition is a necessity for her, we do not say that he waived it (ibid.). And that which Chazal said (Yevamot 94b) simply that there is no condition in nisuin, it means that it is an uncommon matter (Noda BiYehuda, siman 56) (and so what is written at the beginning of the chapter Beit Shammai that there is no condition in nisuin, and so it appears in Tosafot there, and this is their wording: that it is not common, etc.).

And know that several geonim agreed regarding kiddushin on condition: the Radach siman 9, and the pious author of Meil Tzedakah, and the gaon the Noda BiYehudah siman 56, and the Beit Meir in the responsa at the end of his book siman 6. And even if he has a brother who is a deaf-mute who is not fit for chalitzah, he may perform kiddushin on condition, see there. And likewise if a brother of his was lost, he may perform kiddushin on condition (Bach). And because it is necessary to perform all the laws of conditions—a double condition, the "hen" before the "lav," and the condition before the act—and under the chupah when he betrothes her it is difficult to do this in public because of the shame, they therefore ordained in Prague that they should perform the kiddushin beforehand only before two witnesses on condition, as will be explained. And after the kiddushin they shall call eight more men in order to recite the birkat erusin with ten. And under the chupah he shall not betroth her, and they shall read the ketubah and say only the seven blessings. And this is the order of the condition (it appears to me that here he should recite the blessing after the kiddushin, and see what I wrote in siman 34):

The chatan says to two kosher witnesses in the presence of the kallah: Hearken to me, you are witnesses that since it is my desire to betroth this woman, Sarah daughter of Abraham, and to marry her, and because of a reason I have, it is my desire to betroth her on a condition, and likewise to enter the huppah with her on this condition, and to cohabit with her on this condition, and every act of cohabitation that I perform with her shall all be on this condition. And this is my condition: If I have viable offspring at the time that I die, or even if I do not have viable offspring but she, Sarah daughter of Abraham, dies before I die, or even if I die first but my apostate brother, Ishmael son of Abraham, dies before I die, or even if I die before my brother but I release her with a get of severance before my death, then the kiddushin shall be complete kiddushin and the marriage shall be a complete marriage. But if I die before my wife and before my brother, and I do not release her with a get of severance before my death, and I do not have viable offspring, then the kiddushin, the huppah, the acts of cohabitation, and all matters of marriage shall be void retroactively, and the ring that I give her now shall be a mere gift and not for the sake of kiddushin. And immediately he shall hand her the ring before the witnesses and repeat and say: On the condition that I spoke, I have handed her the ring of kiddushin. And afterward they shall call eight more men and say the blessing of erusin over the cup.

And afterward they shall go to the huppah and read the ketubah and recite the seven blessings. And before they go to the huppah, the groom shall say to the witnesses: "Hear me, you are witnesses that upon the condition that I spoke at the time of the kiddushin, upon this condition I am going with her to the huppah." And at the time of the yihud, when they enter the room after the huppah, the groom shall say to the witnesses: "Hear me, you are witnesses that upon the condition that I spoke with the bride at the time of the kiddushin, upon this condition I am entering with her into the room." And at the time of the complete yihud, when he is with her in bed, the witnesses shall stand behind the wall and he shall say to them: "Hear me, you are witnesses that upon the condition that I spoke with the bride at the time of the kiddushin, upon this condition I am coming upon her; and so too all acts of cohabitation that I come upon her, if it is not according to what I stipulated, these are not the acts of cohabitation of a man and his wife, but rather like a designated single woman without kiddushin and without a ketubah." And in the ketubah, the witnesses shall write on the other side of the ketubah that all the kiddushin and the nisuin and the ketubah were performed upon such and such a condition, according to the details of the condition that has been explained, and the witnesses shall sign upon this, and the beit din shall verify the signatures so that she will have proof if she needs it. And nevertheless, the poskim wrote that this is not an act of cohabitation of zenut, since she is designated to him alone and is not like a zonah (Radakh ibid.). And after all these, they shall be careful not to come to the point of nullifying the kiddushin and the nisuin, and he should see to give her a get before he dies while she is alive.

Our teacher, the Beit Yosef, wrote: If it was not established that he had brothers, and he 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 or relatives testify about him that he is his brother, they are not believed to remove her from her established status. If it was established that he had brothers, and he said at the time of his death "I have no brothers," he is not believed; and similarly, if he said regarding someone who was established as his brother "this is not my brother," he is not believed. If it was not established that he had brothers, and a rumor went out that there are witnesses who will testify that he has brothers, and the witnesses are in another province, even if he said at the time of his death "I have no brother," she must be concerned and wait until the witnesses they spoke of arrive and are questioned. Thus far his words. And there are those who say that even where it was established that he had brothers, he is believed to say "I have no brothers" (Tur in the name of the Razah). And for the law, the opinion of the Rambam and the Tur is also like the ruling of the Shulchan Aruch.

The explanation of the matter is that when he was not established as having brothers, it is as if she is established in a status of permission to the public, and therefore he is not believed to remove her from her status. Similarly, one witness is not believed to remove her from her status, as is explained in Yoreh Deah siman 127, and relatives, even many, are considered like one witness; therefore, they do not have the power to remove her from her status of permission, and only two valid witnesses can remove her from her status. And one must ask a great question on this: for behold, it was explained in Yoreh Deah there that regarding a matter that was not established either for permission or for prohibition, one witness is believed. And here, this case where he was not established as having brothers—behold, it was not established that he has no brothers, but rather it was not established that he has brothers. If so, why should one witness not be believed to say that he has brothers? And a proof for this is from what was written in siman 156 in section 23 regarding one who was established as having brothers and said "I have sons," he is believed by the logic of a migo, for it is in his power to divorce her. And it was explained there that even though we do not say a migo in the place of a chazakah, that is when the migo contradicts the chazakah, such as if he were to say "I have no brothers," which contradicts the chazakah that he was established as having brothers; but when he says "I have sons," he does not contradict the chazakah, for both are true, that he has brothers and he has sons, see there. And perforce, there he was not established as having sons, for if he were established as having sons, we would not need his statement; rather, he was not established as having sons. It follows that this case of not being established as having sons is not like one who is established as not having sons, for in a case where he is established as not having them, he is not believed with a migo against the chazakah; rather, this case of not being established as having sons is like one who has no chazakah at all, neither that he has sons nor that he does not. Therefore, he is believed to say "I have sons." If so, here too, when he was not established as having brothers, it is like one who has no chazakah regarding brothers, and why should one witness not be believed to say that he has brothers? (And this is the intention of the Beit Shmuel subsection 7 and in siman 156 subsection 10, and examine it carefully).

However, in truth, this is no question at all; for while it is certainly so that when he was not established as having brothers, it is not the same as being established as not having brothers, nevertheless, regarding the woman, she is termed as being established in a status of permission to the public. And similarly there, when she was established as him having brothers but was not established as him not having children, she is also termed as being established in a status of permission to the public. For her being termed as being established in a status of prohibition to the public is only when he was established as having brothers and established as not having children; but if one of these two is missing, she is termed as being established in a status of permission to the public, as is understood. Therefore, here, when he was not established as having brothers, one witness is not believed to say that he has brothers, because he removes her from her status of permission, and not because of the status of the brothers. And similarly there, when he was established as having brothers but was not established as having children, she is also termed as being established in a status of permission to the public since he was not established as not having children, and therefore he is believed to say "I have children."

And know that there is one who wishes to infer from the wording of Rashi and the Ran, of blessed memory, that regarding one who was not established as having either brothers or sons, and did not say "I have sons," and one came and said "I am his brother," that one must be concerned for his words; and consequently, the same law applies when one witness says "he has brothers," that we are concerned for his words and she is forbidden to marry into the general public (Beit Shmuel subsection 7, and so it appears from the Bach), and he wished to extend further opinions of the poskim to this, see there. And behold, their intention is for that which is written in Kiddushin (64a): regarding one who was not established as having either brothers or sons, if he said "I have sons," he is believed. And Rashi explained: for if a brother comes after this and says "I am the brother of the deceased," it is not within his power, for his speech was effective for the presumption. Thus far his words. And so wrote the Ran and the Rashbam (Bava Batra 134b). And it is apparent from this that if he had not said "I have sons," and one had come and said "I am his brother," he would be believed. But in my humble opinion, it does not appear so, for Rashi's intention is that since he was not established as having either brothers or sons, if so, why do we need his statement "I have sons" at all? For even without this, she is in the presumption of being permitted to the general public. To this he explained that the benefit is that if he had not said "I have sons," and one had come and said "I am his brother" and clarified his words, he would have forbidden her; and now that he said "I have sons," even if it is clarified that he has brothers, she is permitted to the general public. And so wrote the Rosh there, that even if two witnesses came afterward and said that he has brothers, nevertheless she is permitted to the general public because by his word she was established as being exempt from yibbum due to the sons he has, see there. And Rashi was brief in his words according to his way, and this is explicitly implied from the commentary of the Rashbam there. And so wrote the Maharsha, that Rashi was compelled to explain thus, see there. And that which he wrote "it is not within his power," the intention is not that he is not believed to say that he is his brother, for certainly even if he is believed—such as when he clarifies his words by witnesses—it is not within his power to forbid her, for his speech was effective for her presumption that she is permitted to the general public (and the Bach, even though he inferred thus, nevertheless regarding the halacha he wrote according to our words, see there).

Furthermore, it appears clear to me that although his statement "I am his brother" is not believed, nevertheless, if he says that in the near future he will clarify the matter via witnesses that he is his brother, one certainly must wait for his clarification. For even in monetary laws, they tell him in this judgment to clarify his words, as is proven in Ketubot (27b), and all the more so in a matter of prohibition. And that which is written in the Tur and Shulchan Aruch that he is not believed, this means that based on his statement alone he is not believed. According to this, the words of Rashi are well-settled according to their plain meaning, that when he said "I have children," we no longer concern ourselves with his words even when he says he is prepared to clarify his words immediately via witnesses, as the Rosh, of blessed memory, wrote.

And regarding that which he wrote, that when it was established that he has brothers and he said "I have no brothers" that he is not believed, we have already explained the reason there: that even though he has a migo to divorce her, nevertheless, we do not say migo in a case of a chazakah. And we explained there that some say he is believed, for such a migo that is within his power to perform is said even in a case of a chazakah, and it is not similar to every migo. And furthermore, it is possible to say that he does not contradict the chazakah, and his intention was that he had them and they died (see Beit Shmuel subsection 9). And see what I wrote there in section 25, that there is reason to doubt even if he said so explicitly whether he is believed, and it appears that he is not believed, as I wrote there.

And regarding that which they wrote, that if a rumor spread that there are witnesses that he has brothers, even if he was not presumed to have brothers, we are concerned for the rumor until it is clarified; and even if he said at the time of his death that he has no brothers, some say this is specifically when the rumor was substantiated in beit din (Nimukei Yosef in the name of the Ramban, chapter 8 of Bava Batra), and some say that even when the rumor was not substantiated in beit din, we are concerned for the rumor (Maggid Mishneh, chapter 3, halacha 3). And it is possible to say that they do not disagree, for if he did not say that he has no brothers, we are concerned even for a rumor that was not substantiated in beit din, for there is no contradiction to the rumor; but if he said "I have no brothers," we are not concerned unless the rumor was substantiated in beit din. And it requires further study. And see what I wrote in siman 159, section 14.

A woman whose husband died and he has neither a son nor a brother, and she is permitted to the market, and her father-in-law and mother-in-law are in a province overseas—we do not concern ourselves that perhaps her mother-in-law gave birth to a male and she is bound for yibum. And it is not similar to what was written in siman 156, section 44, regarding one whose husband and her co-wife went to a province overseas, where she is forbidden to marry into the market until she knows if her co-wife gave birth. And here, why do we not concern ourselves with her mother-in-law, that perhaps she gave birth? For it is not similar; for there, she is in a state of presumption of being bound, and the minority of women who miscarry also assists this presumption, and we say: attach the minority to the presumption, as was written there. This is not so here, where the presumption is a presumption of permission to the market, and also the majority assists the presumption of permission to the market. For she is not bound unless her mother-in-law gave birth to a male, and all those who give birth, half give birth to males and half to females, and a minority of them miscarry; and consequently, the majority also permits her to the market. Thus, it is a majority and a presumption for the market. Therefore, even Rabbi Meir, who concerns himself with a minority, here it is like a minority of a minority, and Rabbi Meir does not concern himself with it, and all the more so the Rabbis (Gemara 119b).

But if her mother-in-law departed from here pregnant, we are concerned lest she gave birth to a male and she is bound to him. And even though in this case as well there is the majority and the presumption that we wrote of, nevertheless, since she departed pregnant, she is not in a presumption of permission to the market; on the contrary, she is somewhat in a presumption of being bound to a yavam. For since she was pregnant and the days of her pregnancy passed, we are not concerned lest she miscarried, for we establish her upon the presumption, just as we are not concerned regarding a person lest he died (Nimukei Yosef) because we establish him in a presumption of life. And for this reason, a woman whose husband died and he had a son in a province across the sea, she is permitted to the market and we are not concerned lest the son died, but rather we establish him in a presumption of life. And so too here, we are not concerned lest she miscarried, and there is only a half-and-half case, for half are males and half are females, and consequently she is forbidden to marry into the market until she knows what became of the fetus.

Our teacher, the Rema, wrote: A yabam is forbidden to dwell with his chalutzah if he is familiar with her, like a betrothed man and his betrothed, and specifically after he has performed chalitzah, but before he has performed chalitzah it is permitted. Thus far his words. For a chalutzah who has undergone chalitzah is forbidden to the one who performed chalitzah by a negative commandment, and therefore if he is familiar with her they are forbidden to dwell in one courtyard. And if the courtyard is his, she moves out before him, and when it is hers, he moves out before her. And if it belongs to both of them, or belongs to neither of them, she moves out before him, for the displacement of a man is harder than that of a woman, as was written in siman 119 regarding a divorcee. And behold, there it was explained that if he was a kohen, she shall not dwell with him in the same alleyway; and it is possible that regarding a chalutzah the law is also thus, or it is possible that since a chalutzah is only forbidden to a kohen by rabbinic enactment, we are not more stringent than with other chalutzot. And before he has performed chalitzah it is permitted, for we have no concern if he comes upon her and she is taken in yibum; and even though we do not practice yibum but only chalitzah, nevertheless, to be so concerned that perhaps he will perform yibum with her, we do not have to be concerned.