Siman 161

One who had many wives and died, the bi'ah or the chalitzah of one of them exempts them all. The intention is not merely that there is no need to perform yibbum or chalitzah for all of them, but rather that it is forbidden to perform yibbum on more than one, as it is written: "who will not build his brother's house"—he builds one house, and he does not build two houses. Consequently, when he performs yibbum on one of them, the remaining ones are forbidden to him under the prohibition of a brother's wife. Also regarding chalitzah, the Torah did not require performing chalitzah for all of them, as it is said: "the house of the one whose shoe was removed"—he performs chalitzah for one house, and he does not perform chalitzah for two houses (Gemara 44a). And similarly, it is impossible to say that the intention of the Torah is to perform yibbum for one and chalitzah for the second, for from the expositions we brought, it is only proven that one may not perform yibbum for two and one may not perform chalitzah for two; but perhaps he should perform yibbum for one and chalitzah for one? However, even this is impossible, for in every chalitzah she must be fit for yibbum, as it is written: "And if the man does not desire to take his yevamah, then she shall remove his shoe"—behold, if he desired, he would perform yibbum. But this second one, behold, he is not able to perform yibbum as we have written, and consequently she is also exempt from chalitzah (this is the intention of the Gemara ibid.).

And know that our teacher, the Beit Yosef, wrote in his great work that there is no prohibition to perform chalitzah for both of them, but rather that it is not necessary to do so, as I have written. There are those who disagreed with him and hold that there is a prohibition in the matter (Bach and Be'er Heitev), and there are those who upheld his words (Beit Shmuel). And so is the primary view, for what prohibition could pertain to this, to remove a shoe and spit before him? And all the proofs that those who prohibit brought from the homiletical interpretations that one should not perform chalitzah for two, and also from the language of the Tosafot and commentators who wrote so, are no proof at all. For the Gemara, which required a homiletical interpretation, was so that we should not say there is an obligation to perform chalitzah for both of them. And this is the meaning of the phrasing: "anyone who is not eligible for yibbum is not eligible for chalitzah," meaning that she does not require chalitzah, for regarding yibbum a prohibition applies, but not regarding chalitzah; and regarding chalitzah we required this so that there should be no obligation, as I wrote in the previous section (and so wrote the Responsa Kneset Yechezkel, end of siman 68). However, if he performed chalitzah for the second one, even though according to the law it is nothing, nevertheless, because of appearances, since they saw that she underwent chalitzah, she is prohibited to the priesthood (Bach and Beit Shmuel). And it is simple that if she married, she does not have to leave.

Our sages, of blessed memory, said (ibid.) that if there were two yevamot and one was fit for the priesthood and the second was disqualified from the priesthood, such as if she is a challalah or a divorcee or a zonah, when he performs yibbum he may perform yibbum with whichever one he desires; but when he performs chalitzah, he should perform chalitzah with the one who was already disqualified from the priesthood. For why should he disqualify the one who is fit from the priesthood when he is not compelled to do so, as he can perform chalitzah with the other? And regarding this, our sages, of blessed memory, said (ibid.): A person should not pour out the water of his well when others need them; meaning, a person should not cause damage to others in a matter that he is not compelled to do, and this is nothing other than wickedness. And they compel him to perform chalitzah with the disqualified one if he does not want to (Beit Shmuel, subsection 2), for in a case such as this, they compel against the conduct of Sodom.

If the deceased had many brothers and many wives, nevertheless it is forbidden to perform yibbum with more than one, and similarly one should not perform chalitzah with more than one. Post facto, whichever of the brothers performed yibbum or performed chalitzah, it is sufficient, and all the wives are released and may marry into the public. However, initially the sages of blessed memory said (24a): The mitzvah is for the eldest to perform yibbum, and if the younger preceded him, he has merited. The intention is not a minor less than thirteen years and one day, for his cohabitation or his chalitzah does not release [the widow], but rather the intention is the younger of the brothers. And this is the matter: that initially the Torah was particular that the eldest of the brothers should perform yibbum, and if there is a firstborn brother, the mitzvah is upon him; if there is no firstborn, we follow the second, and so for all of them. The general rule of the matter: the elder always precedes. And this matter is a received law reaching back to Moses from Sinai, and they supported it with verses as is found in the Gemara, see there. And as the Rambam wrote in chapter 2 of Hilkhot Yibbum, law 6: That which is stated, "And it shall be that the firstborn whom she bears," they learned from the oral tradition that it only speaks of the firstborn among the brothers, meaning the eldest among them. And that which is stated, "whom she bears," is like "whom she bore," future tense in place of past tense, and it refers to the mother of the brothers, see there.

And regarding the matter of chalitzah, whether there is a mitzvah for the eldest more than for the younger, there is a dispute in the Gemara (39b). The Rif and the Rosh brought the dispute and did not write a halachic ruling, and the Rambam and the Tur ruled stringently that also in chalitzah the eldest is preferred, and so ruled our teacher, the Rema. And it is a simple matter that if the eldest of the brothers is not fit for yibbum, such as if the yevamah is a forbidden relation to him or if he is old compared to her and it is not proper advice that he perform yibbum with her, the second brother stands in his place. And if the second is also not fit, the third stands, and so on forever. And so too regarding chalitzah, if the eldest is not fit for chalitzah, such as if his foot is crooked or the like, the second stands in his place, and so the third and the fourth, as has been written.

If the older brother did not want to perform yibbum but rather to perform chalitzah, and the younger brother wants to perform yibbum, the yibbum of the younger brother is better than the chalitzah of the older brother, for chalitzah in the place of yibbum is not a mitzvah (21a). But if both of them only want chalitzah, the chalitzah of the older brother is preferable, as I have written. And some say that if the older brother has a wife, the chalitzah of the younger brother is preferable to the chalitzah of the older brother (Beit Shmuel, subsection 7). And one can say the reason is because the older brother is not fit for yibbum according to the enactment of Rabbeinu Gershom, for it is forbidden to marry two wives even in the place of a mitzvah. And it is possible that even in a place where they perform yibbum and marry two wives, it is also better for the younger brother who does not have a wife than the older brother who has a wife, so that he does not bring a rival wife into his home (and this is implied by the words of the Ritva brought in the Beit Yosef in siman 165).

That which has been explained, that the yibbum of the minor precedes the chalitzah of the adult, is not according to what I wrote later in siman 165, for in this current time the mitzvah of chalitzah precedes. And even according to those who hold that even in this current time the mitzvah of yibbum precedes, it is only when she consents to the yibbum of the minor; but if she does not consent and it is better for her to perform chalitzah, the chalitzah of the adult is preferable. Our teacher, the Rema, ruled thus in section 6. And the reason for the matter is that although yibbum is much greater than chalitzah, nevertheless we are obligated to see to the benefit of the yevamah, and the Sages, of blessed memory, derived this for her from a verse in the chapter HaCholetz (Yevamot 44a), see there.

It has already been explained that the mitzvah is upon the eldest, and if the eldest does not want to perform chalitzah nor to perform yibbum, we do not coerce him, since the mitzvah can be fulfilled by the second brother, for this is not like all positive commandments where we coerce him, but rather this is an enhancement of the mitzvah. And if this one also does not agree, we return to the third, until all the brothers. And if all of them do not want to perform chalitzah nor to perform yibbum, then of necessity we return to the eldest and say to him: "The mitzvah is upon you; either perform chalitzah or perform yibbum." And if he did not want to, we coerce him, for this is like all positive commandments, since all of them do not want to and the mitzvah would be nullified, and it is necessary to coerce one of them; therefore, we coerce the eldest. And know that at the time we coerce him, when he does not want to perform chalitzah nor to perform yibbum, we coerce him regarding the chalitzah and not regarding the yibbum, even though its mitzvah is greater, so that it will not be to the detriment of the yevamah in this, for a person does not dwell with a snake in a basket. And we have already explained that we are obligated to look after her welfare, and therefore we coerce him to release her with chalitzah.

Even though it has been explained that the yibbum of a minor is preferable to the chalitzah of an adult, this is when the minor is currently fit for yibbum. But if he is a literal minor before thirteen years and one day, or if he was an adult in years but is currently a deaf-mute, the adult brother cannot say, "I desire only chalitzah, and therefore wait until my minor brother grows up or until he is healed from his deafness so he may perform yibbum." We do not listen to him, and we say to him that we do not delay the performance of a mitzvah (Gemara 39b), and do as you wish: either perform chalitzah or perform yibbum. And so too the reverse: if the oldest of the brothers is in a distant place and the minor who is fit to perform yibbum and chalitzah is before us, he cannot say, "Since the mitzvah is upon the adult, wait for him until he arrives." And we do not listen to him for the reason that has been explained, that we do not delay the mitzvah. But if he is in a nearby place, we wait for him; and if expenses are required for this and she is a poor woman, it is also like a distant place (Bach and Taz and Beit Shmuel).

Even though it is a mitzvah for the eldest to perform yibbum or chalitzah, nevertheless, if the younger brother preceded him and performed yibbum, he has merited the mitzvah. The same law applies if the younger brother performed chalitzah for her; it is effective ex post facto and we do not punish him. However, ab initio, one must seek out the eldest and give him his portion in the money, as will be explained in siman 165.

Our teacher, the Rema, wrote in section 4: And even if the eldest swore not to perform yibbum and not to perform chalitzah, we compel him and not the minor; and nevertheless, we release the oath for the eldest even though it is only for the sake of appearances. Thus far his words. The explanation of these matters is that we hold that one who swears to nullify a mitzvah, the oath does not take effect, as in the case of one who swears not to eat matzah on the nights of Pesach, as is written in Yoreh Deah siman 236. And here too, he has sworn to nullify the mitzvah of yibbum and chalitzah, and the oath does not take effect. And even though when there is another brother, why should the oath not take effect, since it is possible that the second brother will fulfill the mitzvah? For certainly this is so if the second is willing; but if he is unwilling, or he is a minor whom we cannot compel by law, and of necessity the application of the mitzvah is only upon the eldest, it automatically follows that he is one who swears to nullify the mitzvah. And it is not reasonable to say that because of the oath of this one we should compel the minor, for what does the minor care about what the eldest swore?

And there is a question regarding this: why should the oath not take effect? For behold, we establish there that with an inclusionary oath, the oath takes effect, such as one who swears that he will not eat matzah the entire year and also on the nights of Pesach; since it takes effect regarding the entire year where there is no mitzvah, it also takes effect by inclusion regarding Pesach. If so, here too, if he had sworn regarding yibbum alone, the oath would have taken effect, and this is not considered swearing to nullify a mitzvah since it is possible through chalitzah. Similarly, if he swore regarding chalitzah alone, the oath takes effect since it is possible through yibbum. If so, since it takes effect on one, let it also take effect on the other by inclusion. And the answer to this is that it is not similar to there; for there, he included in his oath an absolute permission, such as matzah during the rest of the year where there is no mitzvah at all. But here, both chalitzah and yibbum are a mitzvah, for the Torah obligated him to remove the bond of yibbum through one of the two, and he swore that he would not release the bond through either of them; behold, this is exactly swearing to nullify a mitzvah. To what is this comparable? To one who swears that he will not recite kiddush, neither over wine nor over bread; would we say that since it would have taken effect on one of them, it is not considered swearing to nullify a mitzvah? (Rivash, siman 159). Furthermore, inclusion does not apply here since the actions are not equal, for chalitzah is for distancing and yibbum is for drawing near; it is like one who swears not to eat matzah on the nights of Pesach and not to go up to the roof, where it is not applicable to say that since it takes effect regarding going up to the roof, it also takes effect regarding the eating of matzah. And here it is the same, for inclusion only applies to equal actions, such as not eating matzah all year and on the nights of Pesach, and the like (ibid.). Furthermore, there are those who say that an inclusionary oath only takes effect when he did not mention the mitzvah explicitly, such as when he said not to eat matzah all year; but if he specified the mitzvah by itself, such as saying not to eat matzah all year and on the nights of Pesach, it does not take effect (Tosafot, Shevuot 24a, s.v. "Ella"). And according to this opinion, it is obvious that here it does not take effect.

The sages taught in the Mishnah (43b): Four brothers married to four women died, and there are other brothers; if the eldest among them wishes to perform yibbum for all of them, he has the permission to do so. And we do not say that since there are many brothers, each one should perform a mitzvah; since the primary obligation of the mitzvah is upon the eldest, he may perform yibbum for all of them. And it is stated there in the Gemara that this is specifically when he is wealthy and able to provide for all of them, but otherwise we do not allow him, as this is not proper counsel that he should bring them into his home and not have the means to provide for them. And the same law applies that he may perform yibbum for more than four if there were many brothers and they all died, but the Tanna informs us in his wording of good counsel: that he should not perform yibbum for more than four even if he is very wealthy, so that each one may receive her onah once a month, for the standard onah is once a week from Shabbat to Shabbat. And according to this, if he was already married, he should not perform yibbum for more than three. And in our lands, more than one is forbidden according to the decree of Rabbeinu Gershom, as was written in siman 1. And know that what was written in this siman, that the eldest of the brothers takes precedence, this is when both are complete Jews; but a yevamah who was left bound to two brothers, one a Jew and the second an anus of the forced ones of the times, the Jew takes precedence to perform chalitzah even when he is younger than the anus. And if the anus preceded and performed chalitzah, she is permitted to the public, for even though he sinned, he is a Jew. And in siman 157 much was explained regarding this, see there.