Siman 159

<b>The law of a yevamah who was betrothed or married to an outsider, and the law when she was taken in yibbum by mistake, and the laws of the relatives of one bound for yibbum. And it contains 28 seifim:</b> Even though a yevamah to an outsider is only among those prohibited by a negative commandment, as it is written, "The wife of the deceased shall not be [married] outside to a foreign man," and regarding those prohibited by a negative commandment betrothal is effective, nevertheless there is a doubt in the Gemara (92b) whether the betrothal is effective. And the reason for the doubt is that perhaps since it is written with the language of "becoming," "she shall not be," etc., the intention of the Torah is that there shall be no "becoming" to a stranger, meaning that the betrothal should not be effective for her. And there is one who holds this way in the Gemara there. Therefore, for the final ruling, they ruled in the Gemara that a yevamah who was betrothed or even married to a stranger requires a get due to doubt. And because there are several opinions regarding this matter, we will therefore explain them with the help of Heaven:

This is the wording of the Ba'al HaHalachot Gedolot in the laws of yibum and chalitzah: A shomeret yavam who was betrothed without chalitzah requires a get from the one to whom she was betrothed and is permitted to the yavam, for thus said a Gaon: A shomeret yavam who married without chalitzah, if she has no children, she must leave this one and that one—from the husband with a get and from the yavam with chalitzah—and she is forbidden to them forever because she is confused with a woman whose husband went to a province across the sea. If she was betrothed but not married, if her yavam was an Israelite, the second one gives her a get and she is permitted to the yavam, but to the one who betrothed her she is forbidden so that a sinner should not be rewarded. If she married and had children from the second one, if her husband was an Israelite, the yavam performs chalitzah for her and she remains with her husband, and we do not remove her; for regarding a woman whose husband went to a province across the sea and they came and told her "your husband died" and she married and afterwards her husband came, she must leave this one and that one and the offspring is a mamzer, but a shomeret yavam is not so, for if you say she must leave, you end up casting a blemish upon her children. And if her husband was a kohen and she has children, even chalitzah is not required, for when the yavam performs chalitzah for her she becomes forbidden to him, and we do not remove her from him so as not to cast a blemish upon her children; but he is forbidden to approach her as long as the yavam is alive, for every act of intercourse he has with her stands in violation of a positive commandment, and he must be warned to separate from her, and when the yavam dies he is permitted to approach her. Thus far the words of the Ba'al HaHalachot Gedolot.

It is not clarified in his words whether he is dealing with one who was betrothed inadvertently, such as where witnesses testified that the yavam died and afterwards he arrived, or if he is dealing with a willful act. The Rishonim agreed that his intention is regarding a willful act, since he wrote "so that a sinner should not be rewarded," and the term "sinner" applies to a willful act (see Beit Shmuel, subsection 1). Therefore, he ruled that she is forbidden to the one who betrothed her forever, even if the yavam performed chalitzah for her. This is more stringent than a married woman who heard that her husband died and was betrothed to another and the husband arrived, where she is permitted to the husband and also to the one who betrothed her if her husband divorced her or she was widowed, as written at the end of siman 17; for there it was inadvertent and close to a case of duress, therefore we do not penalize him, whereas here, being a willful act, we penalize him (Rashba).

But the Rambam, of blessed memory, wrote in chapter 2, law 20, that if the stranger who divorced her after betrothal returned and married her after her yavam performed chalitzah for her, we do not remove her from him. Thus far his words. The Ramban and the Rashba, of blessed memory, agreed with his words (the Maggid Mishneh), for it is impossible that this should be more stringent than a married woman who became betrothed to another, even though here he is intentional, and according to all opinions the yavam may perform yibbum or chalitzah for her (and it requires further study regarding the Nimukei Yosef who wrote that the opinion of the Rambam is like the opinion of the Geonim, and perhaps there is a scribal error in his words and it should say Ramban, or perhaps the Rambam admits regarding the initial act and only after the fact she shall not leave, as is clear from his wording, and in this perhaps he holds that the Geonim would not disagree):

And even when the yavam is a kohen and she has already become forbidden to him for yibbum, even if the one who betrothed her divorces her, we do not say that since she is forbidden to the yavam we should compel the yavam to perform chalitzah for her and she shall remain under the one who betrothed her and he shall marry her; for there is no logic that through his performing a transgression willfully and making her forbidden to the yavam he should profit from this. Rather, we compel him to divorce her and she is forbidden to him, and she is also forbidden to the yavam because of his priesthood, and he shall perform chalitzah for her and she may be married to another.

But if she was betrothed inadvertently, such as if they thought she had no yavam or they heard that he died and the like, the Tur wrote: If the yavam desires to perform yibbum, they compel the one who betrothed her to divorce her; and if he does not desire to perform yibbum, he performs chalitzah for her and she is permitted to the one who betrothed her, and he must betroth her a second time after she performs chalitzah. Thus far his words. And the reason is that since there is a doubt in the Gemara whether betrothal is effective for a yevamah, as I have written, and the get is due to doubt, it follows that regarding the betrothal there is also a doubt whether it was effective or not; therefore, due to doubt, he must betroth her a second time after the chalitzah. And they shall not recite the blessing of erusin, for "doubt regarding blessings is to be lenient." And if the yavam is a kohen, such that she is forbidden to him automatically, there is no benefit in compelling him to divorce, and there is no fine here since they acted inadvertently; let him perform chalitzah for her and she shall remain with the one who betrothed her. And it appears that they compel the yavam to perform chalitzah since they acted inadvertently. And so it is explained from the Responsa of the Rivash, siman 482, regarding a yevamah for whom chalitzah was performed and afterwards it was revealed that the yavam had issued a protest, and in the meantime she was betrothed to another; and he ruled that they compel him to perform chalitzah, see there. However, there is no proof from there because he had already performed chalitzah for her himself and she became forbidden to him due to his own act. But in the case of a kohen, where she became forbidden to him due to the act of betrothal, even though it was inadvertent, nevertheless it is possible that he can say, "Let her sit until she grows old," or "Give me a tarkava of dinars." And so it is implied from the words of the Tosafot and the Rosh there, who wrote that they do not compel him to perform chalitzah, and it implies that this also applies to an inadvertent act (and so wrote the Beit Shmuel, subsection 5).

And know that according to what we have written, it is explicitly stated in the Tur and in the Rosh, and so wrote the Ramban, the Rashba, the Maggid Mishneh, and the Nimukei Yosef, that in a case of unintentional error she is permitted to the one who betrothed her. And that which the Ba'al HaHalachot Gedolot, the Rif, and the Rambam forbade her to the one who betrothed her, this is in a case of intentional action. The Tosafot, the Rosh, and all the Rishonim wrote that Rabbeinu Tam acted accordingly in a case of a woman who did not know she had a yavam and became betrothed, and he permitted her to the one who betrothed her after the chalitzah of the yavam. And also our teacher, the Beit Yosef, in his great work ruled accordingly, and more than this, he disagrees there with the Terumat HaDeshen who wished to be stringent regarding a yevamah who became betrothed to another based on a rumor they heard that the yavam had died; the Terumat HaDeshen ruled that this is not an unintentional error, for she should not have become betrothed based on a mere rumor, and it is considered as intentional. He disagrees with him and holds that this is also an unintentional error, see there. And so ruled the Levush, that in a case of unintentional error she is permitted to the one who betrothed her.

And according to this, there is much to wonder at his words in the Shulchan Aruch, section 1, where he wrote, and this is his wording: A woman bound to a yabam who was betrothed to another through error, the stranger who betrothed her gives her a get and her yabam performs yibbum or chalitzah; and if her yabam was a kohen who cannot marry a divorcee, she leaves the stranger with a get so that a sinner shall not be rewarded, and her yabam performs chalitzah for her; and if the stranger who divorced her from the betrothal returned and married her after her yabam performed chalitzah for her, we do not remove her from his hand. Thus far his words. And his words are against all the poskim.

And therefore, in truth, our teacher, the Rema, wrote regarding this, and this is his wording: And there are those who say that even if he went back and married her, they remove her from his hand since she was betrothed to him in a state of prohibition; and specifically if he betrothed her intentionally, but if he betrothed her unintentionally, such that they did not know she had a yavam, if the yavam wishes to perform yibbum, the betrother must divorce her, and if the yavam wishes to perform chalitzah, he performs chalitzah for her and she is married to the betrother, and he must go back and betroth her after her yavam has performed chalitzah for her, and so it appears to me to be the primary view. And there are those who say specifically in a case of complete unintentionality where they did not know there was a yavam here at all, but if there was a yavam here but she thought he had died because a rumor had spread thus, she must leave the betrother. Thus far his words. And there is one who wishes to say that the unintentional case which our teacher, the Beit Yosef, wrote also refers to such a case (Beit Shmuel, end of subsection 1), but it is impossible to say so, for in any such case he should not have written cryptically but rather should have specified. Furthermore, we have already written that in his great book he disagrees on this and holds that this too is considered unintentional.

However, in truth it appears to me that his words are correct, for while it is true that the poskim agreed to this as the law, that in a case of an unwitting act she is permitted, nevertheless the matter is clear that the opinion of the Bahag, the Rif, and the Rambam is that even in an unwitting act she is forbidden. The proof for this is that they wrote together the law of one who was betrothed and the law of one who married another before chalitzah, and just as in marriage there is no distinction between an unwitting act and a willful act, so too in betrothal. Furthermore, from the words of the Tosafot it is explained that Rabbeinu Tam disagrees with the Bahag, and according to the words of the poskim they do not disagree; and it is explicitly explained so in the Mordechai and in Sefer HaYashar of Rabbeinu Tam, siman 23, that he disagrees with the Bahag, which proves that the Bahag’s intention includes even an unwitting act, and such is the intention of the Rif and the Rambam. Moreover, how is it possible that they would leave their words so closed and not distinguish between an unwitting act and a willful act? Rather, it proves that it refers to all cases. And so too conversely, from the words of Rabbeinu Tam it was explained that in his opinion even in a willful act she is permitted to the one who betrothed her, since he wrote the reason that in betrothal we do not penalize; this proves that it refers to all cases, and regarding the incident where he permitted an unwitting act, it was simply a report of the incident as it occurred, but the same law applies even to a willful act in his opinion (and so wrote the Bach). And one should not ask, according to the opinion of those who hold that even in an unwitting act she is forbidden, how is it possible to say that this would be more stringent than a married woman who heard that her husband died and was betrothed to another, who is permitted to the other when she is widowed or divorced? For certainly there is a great distinction in the matter, for in the case of a married woman, since she does not require a get, the betrothal is nothing; this is not the case with a yevamah, who requires a get, and therefore it may well be said that she is forbidden to him, as it somewhat resembles one who takes back his divorcee after she was betrothed to another. The same applies here, since he could perform yibbum with her as she is bound to him, and the chalitzah stands in place of the get. And the poskim who distinguished between an unwitting act and a willful act are stating their own reasoning, but the Bahag, the Rif, and the Rambam hold that even in an unwitting act she is forbidden, and therefore it was ruled so in the Shulchan Aruch. However, for the law, the primary view is like the majority of the poskim and like the words of our teacher, the Rema. Also, regarding what he ruled stringently in a case where she was betrothed based on a rumor, the great later authorities disagree with him (Bach and Beit Shmuel, subsection 6). Likewise, regarding what he ruled that in a willful act if he transgressed and married her we remove her from him, they also disagree with him, for we have already written that it is possible that post facto they agree with the Rambam, and especially since the opinion of Rabbeinu Tam is that even initially it is permitted, as I wrote, one should not be so stringent in a rabbinic matter (and the term "forever" is not so precise, and only the Terumat HaDeshen infers it, while the Beit Yosef and the Bach disagree with him, and so wrote the Beit Shmuel) (see Maharsha 92).

And regarding that which he wrote, that she requires another kiddushin, it is certainly so. And there is one who wishes to be even more stringent in this, that the yavam should not perform chalitzah for her until after the other divorces her (Levush), on the grounds that we require at the time of chalitzah that she also be fit for yibbum, as it is written: "And if the man does not desire etc." And if he performs chalitzah for her before the other divorces her, behold, he is unable to perform yibbum. And he wondered about the poskim who did not write thus. And in my humble opinion, the poskim acted correctly, for certainly if there are many brothers, it is better that he should divorce her beforehand, for if not so, since he is unable to perform yibbum, its law is like a disqualified chalitzah which requires going around to all the brothers. And the poskim admit to this, and they were only dealing with a case where there is one brother and he has no desire to perform yibbum, and we do not care about this, for behold, there are many instances of chalitzah where he is unable to perform yibbum and nevertheless the chalitzah is not disqualified thereby, and here too we are not concerned for it. And see what I wrote in siman 170, for there is the primary law of disqualified chalitzah which requires going around to all the brothers (however there it is only rabbinic, see there).

And regarding that which the Bahag wrote, that if she married she must leave this one and that one and is forbidden to them forever, all the poskim agreed that even if she married inadvertently, such is the law; for he brought proof from a woman whose husband went to a country overseas and she married, and there, even if it was inadvertent, such is the law, as is written in siman 17. And the Bahag did not write that all thirteen consequences apply to her, because the offspring is not a mamzer, as he wrote explicitly. And the Rambam also did not write that all these consequences apply to her. However, the Tur and the Shulchan Aruch wrote that all the consequences apply to her, except regarding a mamzer there is a dispute, for some say the offspring is not a mamzer at all, and some say that by rabbinic decree he is a mamzer. And her yavam shall perform chalitzah for her, and she shall be divorced from this one who married her and may marry another. And even though in the reverse case we were lenient in siman 157, section 11, that even if she married she shall perform chalitzah and remain with her husband, this is because it is the opinion of the Geonim that she does not require chalitzah at all, as is written there. But in a case where she certainly requires chalitzah, it is obvious that she must leave this one and that one, and even if the yavam died she must leave (Tur), because she married under the prohibition of a yevamah to a stranger, and she is swapped with a woman whose husband went to a country overseas; and there it is obvious that in all cases she must leave, even if the husband died, for she became forbidden to the husband and to the paramour, and here too it is the same.

And regarding that which the Behag wrote, that if the husband is a kohen and she has children, she should not perform halitzah and shall be forbidden to him until the yavam dies, and after he dies she is permitted to him; and if he is a Yisrael and she has children from him, the yavam should perform halitzah for her and she remains under him so as not to cast a blemish upon the children—the Rif and the Rambam and all the poskim disagree with him. And it is also proven from the Yerushalmi that even when she has children she must leave. And even though there are some among the Rishonim who hold like the Behag because in every place we are concerned for the blemish of the children, and in the Yerushalmi it is also not explicit that she has children (Ra'avan and Aviasaf in Teshuvot Maimoni siman 37), nevertheless, the majority of the poskim do not hold so, and thus they ruled in the Tur and Shulchan Aruch. (And from that which the Behag wrote, that for every act of cohabitation he transgresses a positive commandment, there is a proof for the explanation of Rashi at the end of the chapter HaCholetz, that according to Rav there is no negative commandment regarding a yevamah to an outsider; and the Tosafot there in the heading beginning with "Ei" disagree with him, and all the Rishonim took issue with Rashi, of blessed memory, see there. Or it is possible that the Behag also holds like the Tosafot, only that the negative commandment is only at the time of kiddushin and marriage, as it is written "the wife of the deceased shall not be outside," and afterwards at the time of cohabitation he transgresses "her yavam shall come upon her" and not another, and it is a negative commandment derived from a positive commandment).

A yevama who married into the general public under the presumption that she has no yavam, and a rumor emerged that she has a yavam, we do not pay attention to a rumor after marriage, for we are not concerned with a rumor (Beit Shmuel in the name of the Rivash). And even if the rumor was established in a beit din, and even a single witness is not believed to remove her from her presumption. But if the rumor emerged before she married, we are concerned with the rumor, and we explained this in siman 157, section 24, see there. And it appears to me that if he transgressed and married her, we do not remove her from him, and so it was explained there regarding a single witness before marriage, and we explained there in section 21 with the help of Heaven, see there.

And if two witnesses came and said that he has no brothers and she married, and afterwards two came and said that he has brothers, some say she shall not leave (Beit Shmuel, subsection 7 in the name of the Beit Yosef and Darkhei Moshe). And there are those who disagree regarding this, for we maintain that "two and two" is a doubt, even though there is a chazakah of permissibility, and only when she married one of her witnesses and she also says "it is clear to me" then she shall not leave, but without this she shall leave (Beit Shmuel). And it must be said that the first opinion holds that since "two and two" is a rabbinic doubt, and according to the Torah we establish it upon the chazakah, and the two who came for permissibility first established her in a chazakah of permissibility, therefore we are lenient regarding the prohibition of a yevamah to the public since the offspring is not a mamzer, for since she married with permission she shall not leave. And furthermore, that here it is like two chazakot for permissibility, for immediately when her husband died she was established in a chazakah of permissibility to the public (Tosafot Yevamot 31a, starting with "Nafal"), and afterwards when the witnesses of permissibility came she was strengthened with another chazakah for permissibility, and therefore they were lenient in this regarding the prohibition of a yevamah to the public that she shall not leave. Nevertheless, the law requires further deliberation.

A shomeret yavam who committed adultery, even intentionally, is not forbidden to the yavam, and if he wishes to perform yibbum, he may perform yibbum with her. It is not comparable to a married woman who committed adultery willfully, who becomes forbidden to her husband, for a woman bound for yibbum is not a married woman; for even when she marries another, she is not forbidden to the yavam except because she might be confused with a married woman, as has been written, and they only decreed regarding marriage and not regarding adultery. And in the Yerushalmi, Sotah, it is derived from a verse: "And it be hid from the eyes of her husband"—and not from the eyes of her yavam. And know that there are some of our teachers who hold that a shomeret yavam who committed adultery is forbidden to her yavam, but their opinion was not cited at all in the poskim, and likewise in the Tur and Shulchan Aruch this opinion was not cited at all (Tosafot in Sotah 18b, starting with "Amri," ruled like Rav Hamnuna, see there; and in Yevamot 92a, starting with "Aval," they ruled not in accordance with him, see there).

And specifically when the yavam is a Yisrael, but if he is a kohen, she is forbidden to him as a zonah, for she had intercourse in violation of a negative or positive commandment. It has already been explained in siman 7 that a yevamah who had intercourse with another becomes a zonah. The offspring is not a mamzer, even according to the one who holds that in marriage the offspring is a mamzer by rabbinic decree, as I have written; nevertheless, in the case of zenut they did not decree, just as they did not decree that she be forbidden to the yavam if he is not a kohen.

Our teacher, the Rema, wrote in section 3 that there are those who say she is forbidden to the adulterer by way of a penalty. Thus far his words. Meaning, even though we hold that whenever she is not forbidden to the husband she is not forbidden to the adulterer, as was written in siman 11, and here, since she was not forbidden to the yavam, why should she be forbidden to the adulterer? Nevertheless, by way of a penalty they forbade her to him, just as with kiddushin where it was explained that if she was betrothed intentionally, even though she is permitted to the yavam, she is nevertheless forbidden to the one who betrothed her; so too regarding zenut, and it is merely a penalty. And according to this, based on the words of the Rambam there, that if the one who betrothed her transgressed and married her she does not go out, here too it is so: that if the adulterer transgressed and married her, we do not remove her from him. And here, even those who disagree there with the Rambam admit here, for the essence of this law is not agreed upon (see Beit Shmuel subsection 9 who questioned the essence of this law, and the Keneset HaGedolah in siman 68, who wants to say regarding the intent of the Nimukei Yosef that specifically when the yavam does not want to perform yibbum because of this, since she is repulsive to him due to the zenut, therefore they forbade her to the adulterer; but if without this he does not want yibbum, or in our times when we do not perform yibbum, she is permitted to the adulterer, see there. And his words are difficult. And in truth, the Mishneh LaMelech at the end of chapter 2 of Sotah wondered about the Nimukei Yosef, from where does he have this? Therefore, post facto, it is simple that we do not remove her from the adulterer when he married her, and so wrote the Chatam Sofer in siman 26).

A yevama who underwent yibbum in error, such as if she heard that her husband died and afterwards the husband arrived: if she was married to her husband, she does not require a get from the yavam, for she is an ervah to him and kiddushin do not take effect with her. Furthermore, she is permitted to her husband, and it is not similar to one who married another where we establish "she must leave this one and this one" in siman 17, for that is because we concern ourselves that perhaps they will say the husband divorced her and this other one married her, and consequently she requires a get from both of them and is forbidden to them because perhaps they will say he took back his divorcee after she married another. But regarding a yevama, she does not require a get from the yavam, for there is no concern here that they will say the husband divorced her; for if he had divorced her, his brother would not have married her as she is an ervah to him, and everyone knows that he performed yibbum in error and she does not require a get, and consequently she is not forbidden to her husband. Therefore, if she was only an arusah and not married, she requires a get from the yavam, for we concern ourselves that perhaps they will say he had a condition in the kiddushin and it was not fulfilled and the kiddushin were voided, and his brother married her permissibly, and consequently she requires a get from him and is forbidden to both of them.

And know that that which we wrote, that in the case of a married woman she is permitted to her husband, so ruled the Rosh, the Tur, and the Shulchan Aruch in section 4. And there are those who hesitated regarding this and hold that she is forbidden to her husband (Beit Yosef in Bedek HaBayit and Be'er Sheva subsection 10). And their reasoning is that certainly there is no concern here that they might say "this one divorced her and his brother married her" as we have written; but in truth, there are those who hold that a married woman was not forbidden for this reason, but rather by way of a penalty, because she did not investigate well to inquire after the death of the husband. And according to this reason, here too she is forbidden, and on the contrary, here the prohibition is more severe, for she is a married woman and the wife of a brother.

And in my humble opinion, it appears clear like the ruling of the Tur and the Shulchan Aruch, for those who hold that it is by reason of a penalty, this is the system of the Rif (whose version is on page 89a, but as the Rosh wrote there). And the Rif himself ruled later that when one performs yibbum by error from marriage, she does not require a get (like Rava on page 94b). And it is stated in the Yerushalmi (beginning of chapter 10) that this fact that they required her to have a get from the second is in order to clarify the prohibition of the first, meaning that they give standing to the kiddushin of the second in order to prohibit her to the first (Nimukei Yosef), and therefore they required her to have a get from the second; and consequently, since they did not require her to have a get from the brother, she is not prohibited to the first. And so it is proven explicitly in our Talmud there, that when they did not require her to have a get from the second, she is not prohibited to the first, see there (which says, "let his wife be prohibited to him, shall we say it is not like Rava etc., rather marriage, and examine this carefully"). And if it is difficult: ultimately, since because she committed a prohibited act they penalized her, in truth why did they not prohibit her here as well to the first? And the Rosh raised this difficulty against the Rif, see there. But this too is settled, for behold the Yerushalmi there raised the difficulty: what did the sages see to penalize her regarding the first, after he desires her and he did not commit a prohibited act, why did they prohibit her to him? And the Yerushalmi answered: they touched upon her from the "scent of ervah," meaning because she appears as the wife of the second (Pnei Moshe), as it appears to the world that she was married to him in a permitted manner (ibid.). And according to this, regarding the first a penalty is not applicable, for how did he sin? And only in a place where she requires a get, when she appears as the wife of the second, she is consequently prohibited to the first. And this is all in the case of one who married another, where there is room to err that the first divorced her; but regarding a brother's wife, where it is impossible to err in this, for she is forever an ervah to him and does not appear as the wife of the second, and does not require a get, how is it possible for us to penalize the first? Behold, he did not sin at all. And it turns out according to this, that which the Sages, of blessed memory, said "the Rabbis penalized her," this is regarding the second, and consequently she was prohibited also to the first since she requires a get from the second; which is not the case regarding a brother's wife, for to the second she is anyway an ervah to him and a get is not applicable to him, and there is no prohibition here upon the first. And it is clear that this is the opinion of the Rif, of blessed memory, and the difficulty of the Rosh, of blessed memory, is answered. (And the Korban Netanel there was pressed in this, and according to our words it is settled; and one must look further into the Beit Yosef in Bedek HaBayit who wrote that the Rif did not bring this statement of Rav, that a yevamah is like a married woman who is prohibited by kiddushin to the first (95b), but behold he brought that of Rava, and it is the same thing, and examine this carefully).

In the Gemara (17b) there is a dispute whether there is zika or there is no zika; that is to say, regarding the yevama who is bound to the yavam, whether her zika is strong enough that she is considered like his betrothed even before he performs yibbum or chalitza, or not. The practical difference is, for example, if the yevama died before chalitza and yibbum, whether the yavam is forbidden to her relatives, such as her mother and her daughter and the like. For if there is zika, he is forbidden to her relatives just as he is forbidden to the relatives of his betrothed, and if there is no zika, he is permitted to them. And we hold that there is zika, and he is forbidden to the relatives of his zekuka. And it is not only necessary to say this when there is only one yavam, for she is certainly cast upon him, but even if there are many yevamin, there is zika to all of them, and all of them are forbidden to the relatives of the zekuka. And this is what the sages taught in the Mishnah (41a): A woman awaiting a yavam whose brother betrothed her sister, they say to him, "Wait from entering into marriage with her," for she is the sister of your zekuka and she is like the sister of your betrothed, until your brother performs an act of yibbum or chalitza, and then her zika will be severed from you and you may enter into marriage with your betrothed; see there. And behold, there are two here, and why should the one wait from entering into marriage with her? Rather, it is certainly that even with two brothers there is zika, and so too with three and four and more.

And know that this which we have said, that there is zika, is not from the Torah but rather is rabbinic. And they only forbade it rabbinically when he betrothed with a prohibition at the time she was a shomeret yavam, as is precise from the wording of the Mishnah that we brought: "A shomeret yavam whose brother betrothed her sister," which implies explicitly that he betrothed her sister while she was a shomeret yavam. However, if he betrothed with permission at the time his brother was alive, when she was not yet bound, he does not need to wait at all and is able to marry her (Tosafot 18b, s.v. Shomeret). And the reason for the matter is that since it is rabbinic, they did not forbid it in such a case where he betrothed her with permission.

Therefore, some say that specifically if he only betrothed her, they do not allow him to enter into marriage, but if he did enter into marriage, he is permitted to remain with her, for the marriage completely uproots the zika (ibid.). And thus ruled the Tur and Shulchan Aruch, section 5. And even if he entered into marriage and has not yet had relations with her, once she has entered the chuppah with him, the zika is uprooted, and he is permitted to have relations with her before his brother performs chalitzah or yibbum with the woman bound by zika (the Rosh, Perek HaCholetz, siman 23). And the reason for the matter is as I have written: since the prohibition is only rabbinic, they were not stringent in such a case (as is evident from the words of the Rosh, see there). However, there are those who disagree on this and hold that since there is zika, even if he married her it is of no avail. For whatever way you look at it: if we say that marriage uproots the zika, betrothal should also uproot it, for betrothal is from the Torah and zika is rabbinic (Nimukei Yosef, beginning of Perek 2). Rather, since the sages prohibited it with betrothal, they also prohibited it with marriage, and the permission is dependent only on the action of his brother, that he should perform chalitzah or yibbum. And the first opinion holds that in truth we should have said that betrothal also uproots the zika (see Tosafot 18b, s.v. "omrim"), but betrothal is not powerful enough to uproot the zika, for zika is also like a form of betrothal. For just as a man, through the betrothal he performs, she is bound to him, so too the zika that the Torah placed upon him, she is bound to him. And if it is because with zika the matter is not yet finished, as she requires yibbum or chalitzah, behold, even with betrothal the matter is not yet finished until he brings her into the chuppah. But when he has already entered into marriage, it rightly pushes aside the zika, for with the zika the matter is still not finished, while with the betrothal and marriage the matter is already finished in its entirety. Therefore, the sages did not see fit to be stringent in this.

And it is not specifically a definite zekukah that is forbidden to her relatives, but even a doubtful zekukah. For example, Reuven who died, he and his sons, and it is not known if he died first and afterwards his sons, and his wife is permitted to the market, or if he died after his sons and his wife is a zekukah for yibbum—the brothers of Reuven are forbidden to betroth the relatives of the zekukah, who is the wife of Reuven, until one of the brothers of Reuven performs chalitzah for her or performs yibbum with her (and this law we learn from the Mishnah of two who betrothed two sisters, this one does not know etc., page 23b, as the Gra wrote in subsection 21, and examine this closely).

A shomeret yavam whose yavam betrothed her sister, and the shomeret yavam died—it is a simple matter that he is permitted to marry his betrothed, and we do not say that since he betrothed her through a prohibition, she should be forbidden to him even when the zika has been pushed aside. And it is not only necessary to state this regarding two yavamin, where it has been explained that only if he married her does the zika lapse, since there is another yavam who can perform the act of chalitzah or yibbum; but even if there is only one yavam—where by betrothing the relative of the one bound to him, he has effectively uprooted the mitzvah of yibbum with his own hands, for even if he divorces his betrothed, the yevamah is forbidden to him as the sister of his divorcee, and it would have been appropriate for us to penalize him—nevertheless, when the yevamah dies, he is permitted to marry her. However, while she is alive, even according to the opinion of those who permit it if he married her in the case of two brothers, as I have written, nevertheless in the case of one brother they agree she is forbidden to him; for he must necessarily divorce her, since he must perform chalitzah for his yevamah, and she is thus the sister of his chalutzah. And more than this, we learned in the Mishnah (41a) regarding a shomeret yavam whose brother betrothed her sister, and the second yavam died, and only this yavam remained who had betrothed the sister of the one bound to him, that he must release his betrothed with a get and his brother's wife with chalitzah; for to perform yibbum with her is forbidden because she is the sister of his divorcee, and to remain with his betrothed is also forbidden because she is the sister of his chalutzah.

A woman awaiting yibum to one brother, where the yavam betrothed her sister and afterwards her sister died, the yavam is permitted to perform yibum with his yevama. And likewise, when there were two brothers and one of them betrothed the sister of the woman bound for yibum, and the second brother and the sister of the woman bound for yibum died, this one who betrothed her sister is permitted to perform yibum with the yevama. We do not say that since the yevama was forbidden to him for yibum at the time he betrothed her sister—and I do not read concerning her "her yavam shall come upon her"—she is like the wife of a brother who has children and is forbidden to him forever. And thus the sages, of blessed memory, said (ibid.): A yevama who was permitted at the time of falling for yibum, and became forbidden again when he betrothed her sister, and became permitted again when her sister died, she shall return to her initial state of permission; if he wishes he performs chalitza, if he wishes he performs yibum. And specifically when she was permitted at the time of falling, such as if he betrothed her sister while she was a woman awaiting yibum. But if he betrothed her sister during the lifetime of his brother, and when his brother died she was not permitted to him, even though her sister died afterwards, it is forbidden to perform yibum with her. Since at the time of her falling for yibum the prohibition of a wife's sister stood before him, she became forbidden to him forever, and he must perform chalitza for her (Tosafot ibid. s.v. "Mai Ta'ama").

Our teacher, the Rema, wrote that there are those who say that now in this time, when there is the enactment of Rabbeinu Gershom Meor HaGolah not to marry two women, if a woman awaiting yibum happened before someone, he is forbidden to marry another until he performs chalitzah for his yevamah. And this is specifically when she was not already betrothed to him, but if she was already betrothed to him, he is permitted to marry her. Thus far his words. The explanation of his words: since we establish that there is zika, he should not marry another before he performs chalitzah for the one bound to him, for if not so, it appears as if he is marrying two women. And even though in our lands we do not practice yibum, nevertheless, since from the Torah it is incumbent upon him for yibum, it appears like two women. But when she was already his betrothed, it is permitted to marry her before he performs chalitzah for his yevamah, for indeed the early authorities lengthily discussed this (in the Mordechai on Ketubot in the glosses) that there is no reason to forbid even initially marrying another; for granted that the sages were stringent regarding zika in the case of a Torah prohibition of incest, shall we also be stringent regarding an enactment? And all the more so in this time when we do not practice yibum. However, despite this, if the zika preceded the betrothal, it is proper to be stringent in this so that he does not delay the one bound to him and will perform chalitzah for her. But when she is his betrothed from before—and behold, even regarding a Torah prohibition of incest it was explained that when he betrothed her sister before she happened for yibum, it is permitted to marry her—certainly regarding an enactment such as this, how could the one bound to him forbid his betrothed to him? And they lengthily discussed this further, see there.