Siman 162

One who marries his yevamah, the rivals become forbidden to him and to the rest of the brothers by a positive commandment (11a), as it is written: "who will not build his brother's house"—he builds one house and not two houses, and a prohibition derived from a positive commandment is a positive commandment (Rashi). And we do not say that the rivals remain under the prohibition of a brother's wife which carries the penalty of karet, for once one of them has undergone yibbum or chalitzah, she becomes like an agent for all her fellow rivals, and the one performing yibbum or chalitzah becomes like an agent for all the brothers, and the prohibition of a brother's wife is removed from all of them when he died without children; only the positive commandment we wrote remains upon them. The Rambam in chapter 1 explains that the positive commandment is from the verse "her yavam shall come upon her"—upon her and not upon her fellow, and it is a prohibition derived from a positive commandment. His reasoning we will explain in section 4 with the help of Heaven. And the Tosafot there have the version in the Gemara that they transgress a negative commandment of "he shall not build," for once he has performed yibbum with one, we read regarding the rival: since he did not build, he shall not build again. But a positive commandment we have not heard from the verse "he builds one house and not two houses," for the verse comes for the essence of the law, that he should not perform yibbum with more than one, and not for a positive commandment, see there. And Rashi, of blessed memory, holds that the positive commandment is automatically understood from it.

And similarly, one who performs chalitzah with his yevamah, the chalutzah and her rival wives are forbidden to him and to the brothers by a negative commandment of "he shall not build," for since he did not build but rather performed chalitzah, he shall not build again. Thus wrote Rashi (10b) and Tosafot, and so too wrote the Bahag in the laws of forbidden relations, see there. And it is similarly explained in the Gemara there that they are subject to a negative commandment, and similarly later (53a) it says there that the entire house stands under a negative commandment, see there. And according to this, there is much to wonder about the Tur and the Shulchan Aruch who wrote also regarding this that it is a positive commandment, and besides it being against the Shas, what positive commandment is there in this? And it is possible to say that since it is written "the house of him that hath his shoe loosed," and we expound: he performs chalitzah for one house and not for two houses, and it is a negative commandment derived from a positive commandment. And regarding chalitzah, when he performs chalitzah another time, no prohibition is relevant to this, but rather the intention is that one should not perform an act with them further, and automatically, when he cohabits with them, he transgresses a positive commandment (and the Gra in subsection 2 wrote that it is a scribal error in the Tur and Shulchan Aruch and it should say "by a negative commandment").

The words of the Rambam in chapter 1 are even more perplexing in this matter, for after he wrote the law of one who marries his yevamah, that they transgress a positive commandment regarding the tzarot, he wrote, and this is his wording: And so too, one who performs chalitzah for his yevamah, the chalutzah and all her tzarot are forbidden to the one who performed chalitzah and to the rest of the brothers, and all of them are forbidden to them by the words of the scribes like sheniyot; for since his brother died without offspring, the prohibition of ervah was removed from all of his wives, therefore kiddushin takes effect with them as with sheniyot. Thus far his words. And the sages of the generations have already wondered about him, that he makes this a rabbinic prohibition, whereas in the Gemara it is explained that it is a prohibition of a lav. And the Rambam follows this path also in chapter 18 of Issurei Biah, law 4, and this is his wording: One who comes upon one of the sheniyot or their like, such as one who comes upon a relative of his chalutzah or upon his chalutzah, he has not made her a zonah, for she is not forbidden to be married to him from the Torah, as I have written in the laws of yibbum. Thus far his words.

And it appears to me in my humble opinion regarding the reasoning of the Rambam, of blessed memory, that he holds that in the verse "who will not build his brother's house," there is neither a negative commandment nor a positive commandment. For as we wrote, the Tosafot hold that there is no positive commandment in this because the verse was necessary for its own context. Therefore, the Rambam, of blessed memory, acted wisely to find another positive commandment regarding one who takes his yevamah, from "her yavam shall come upon her," as I wrote in section 1. Similarly, he holds that there is no negative commandment here either from the verse "he shall not build," for this too is necessary for its own context, so that one should not say when two women remain that he may perform yibbum with one and chalitzah with the other, as is explicitly stated in the Gemara (44a, see there in Tosafot, starting with the words "and let us perform yibbum," there are books that read etc., and such was the version before the Rambam). And indeed, our teachers the authors of the Tosafot were much troubled by this and were very pressed (10b, starting with the words "he" etc., "and it is a wonder" etc., see there). And there is further proof for this, for behold, regarding this law, Rabbi Yochanan and Resh Lakish disagreed there concerning one who performs chalitzah with his yevamah and then returns and betroths her; and Rabbi Yochanan says they are not liable for karet. And in the Yerushalmi the version is "they are not liable" without specification, implying that there is no liability at all from the Torah. And even according to our version, it is not explicit in the words of Rabbi Yochanan that there is at least a negative commandment. And there is proof that there is no negative commandment at all, for further on (11a) Rav Acha and Ravina disagree regarding one who takes his yevamah and he or one of the brothers comes upon her co-wife; for one says it is with karet and one says it is with a positive commandment. And the Gemara explains that they disagree in the disagreement of Rabbi Yochanan and Resh Lakish: the one who says with karet is like Resh Lakish, and the one who says with a positive commandment is like Rabbi Yochanan, see there. And it is difficult: why did they not disagree in that very same disagreement of Rabbi Yochanan and Resh Lakish regarding one who performs chalitzah with his yevamah and then one of the brothers comes upon her co-wife, where one says with karet and one says with a negative commandment? Rather, it is certainly because in this there is no prohibition from the Torah according to Rabbi Yochanan, whose ruling is the law. And although one could say it is because regarding one who performs chalitzah, Rabbi Yochanan and Resh Lakish only disagreed regarding the brothers, for regarding the one who performed chalitzah himself Resh Lakish admits, as is stated there in the sugya; but nevertheless, why did they not disagree regarding the brothers? Furthermore, in the Yerushalmi in the first chapter it says: What do you think, is chalitzah an acquisition? It is nothing but a release etc., once he has performed chalitzah with her, the bond of the deceased is uprooted from her retroactively, see there. And according to this, it appears clearly that all the connections that the women had with the deceased were nullified; and if so, why should the one who performed chalitzah or another brother be liable when he betroths the woman who received chalitzah or the co-wife, since they have been severed from one another and are like strangers to each other? And there is a bit more proof, for it is a settled law throughout the Gemara that the sister of a woman who received chalitzah is not prohibited from the Torah but only by the words of the Scribes. And if we say that all agree that there is a negative prohibition regarding a woman who received chalitzah, why should her sister not be prohibited from the Torah? And granted that this is not the "sister of a forbidden relation," nevertheless there should at least be a prohibition (however, this can be simply rejected, for behold Resh Lakish says so, that the sister of a woman who received chalitzah is by the words of the Scribes, and according to him it certainly appears that there is a negative commandment; and examine this carefully).

Therefore, from all these proofs, the Rambam, of blessed memory, proved that there is no prohibition from the Torah regarding the chalutza and her rivals. And that which the Shas says that they are among those subject to a negative commandment is a different matter and is not according to the halacha, as we will explain with the help of Heaven. For behold, Rava Akiva maintains in the end of the chapter "HaCholetz" that there is a mamzer from those subject to a negative commandment, and the halacha is not so, as is known. And he maintains consequently that kiddushin does not take effect for those subject to a negative commandment, as is famous in the Shas that kiddushin depends on mamzerut. And in the fifth chapter of Yevamot, where it is stated in the Mishnah that "after chalitza there is nothing"—meaning that kiddushin does not take effect—the Shas establishes it (52b) according to Rava Akiva, see there. And all the Rishonim held that the Rabbis also maintain that she is subject to a negative commandment, and only that they maintain kiddushin takes effect for those subject to a negative commandment. But the Rambam maintains that only Rava Akiva maintains that she is among those subject to a negative commandment, and for a different reason: because we say in Yevamot (44a) that Rava Akiva maintains that from the relative of his chalutza the offspring is a mamzer, and his reason is that it is written, "the house of him that hath his shoe loosed," the verse called her "his house," see there. And it turns out that Rava Akiva and the Rabbis also differ in this dispute, whether she is called "his house" or not; for Rava Akiva maintains she is called "his house," and the Rabbis maintain she is not called "his house." And according to this, that which is stated in the Gemara that she is among those subject to a negative commandment because it is written, "who will not build up his brother's house," this is only according to Rava Akiva who calls her "his house." And consequently, since there is a negative commandment and Rava Akiva maintains there is a mamzer from those subject to a negative commandment, therefore also kiddushin does not take effect. But according to the Rabbis, the status of "his house" does not exist in this, and they are uprooted from one another as we brought from the Yerushalmi, and they are like total strangers, and there is no negative commandment here at all. Therefore, there (52b) where the Shas says that this is among those subject to a negative commandment, and similarly later (53a), there it deals with Rava Akiva. And similarly in this sugya where the Shas says to Rabbi Yochanan that they are among those subject to a negative commandment, it is also so, as it refers to the Baraita there which the Shas establishes according to Rava Akiva, see there (where Rabbi Shimon said the latter clause comes to us according to Rava Akiva, etc.). And therefore the Rambam ruled that the prohibition to marry is miderabbanan. And that which they said in the Gemara (32a), "perhaps he performs chalitza first and then performs yibbum and stands in violation of 'who will not build,' for the Merciful One said: since he did not build, he shall no longer build," see there—this is its explanation: that after the chalitza the Torah did not require yibbum, and consequently it would be a prohibited act of intercourse like with all single women. And according to the system of the Rambam, with every single woman there is a prohibition from the Torah without kiddushin, as he wrote at the beginning of the Laws of Ishut, but through kiddushin it is permitted from the Torah, and the Rabbis decreed regarding it. And furthermore, it is possible to say that the Rambam interprets like all the commentators that there is a negative prohibition in this according to everyone, but the negative commandment is specifically when he comes upon her by way of yibbum. And this is what the Torah said, "since he did not build, he shall no longer build," meaning in the manner of "building" it is forbidden, but by way of kiddushin and marriage it is permitted, and miderabbanan it is forbidden. And as the Sages of blessed memory said in Kiddushin (78a) that all agree regarding one who takes back his divorcee, that if he had intercourse and did not perform kiddushin he does not receive lashes; what is the reason? The Torah prohibited it by way of "taking," see there. And here too let us say the opposite: specifically by way of "building" the Torah prohibited, meaning by way of the building of yibbum, but by way of kiddushin it is permitted. (And indeed some have the version there: and they agree regarding one who takes back his chalutza, that if he performed kiddushin and did not have intercourse he does not receive lashes; what is the reason? The Torah prohibited it by way of "building a house," as is brought in Tosafot, Yevamot 10b, starting with "HaCholetz," see there. And this is a proof for our words, and we shall interpret according to our words, and examine it closely.)

And also the words of the Tur can be somewhat reconciled in this manner, for he certainly admits that there is a negative commandment of "he shall not build," but this is when he comes upon her by way of the building of yibbum and not by way of kiddushin and marriage. Therefore, when the Tur wrote that the chalutza and her rivals are forbidden, meaning that they are forbidden in all manners even by way of kiddushin, and this we have not heard from "who will not build," and also it was not pleasing to him to explain like the Rambam that this is only rabbinic. Therefore, he wrote it as a positive commandment, and the positive commandment is as I wrote in section 2, for from there it is explained that it is forbidden for him and for the brothers to perform any act with her and with her rivals, and consequently it is forbidden in all manners.

One who performs chalitzah for his yevamah is forbidden by rabbinic law to her relatives, such as her mother, her daughter, and her sister. They decreed regarding her as if she were a forbidden relation because to people a chalutzah appears like a forbidden relation. They even decreed regarding her secondary relations as they did with a forbidden relation itself, and this is not a decree upon a decree, for they were stringent in this because of the sister of his divorcee, who is a complete forbidden relation, and similarly all her relatives; and to people in general, a chalutzah appears like a divorcee. Similarly, she is forbidden to his relatives. However, the brothers are permitted to all her relatives, for since they did not perform an act with her, she does not appear like the relative of their divorcee. Therefore, the one who performs chalitzah is not permitted to marry the sister of his chalutzah unless his chalutzah died, just like his wife when she dies, that he is permitted to her sister; but regarding her other relatives, he is forbidden even after her death. There is no difference between a certain chalutzah and a doubtful chalutzah.

And so the sages taught in the Mishnah (40b): A man is permitted to the relative of the co-wife of his chalutzah, but he is forbidden to the co-wife of the relative of his chalutzah. For example, Yaakov who performed chalitzah for Leah and became forbidden to her relatives as we have written; nevertheless, regarding the relatives of the co-wives, he is not forbidden. And even though all of them were bound to him equally, and if he desired he could perform chalitzah for this one and if he desired he could perform chalitzah for that one, and the chalutzah is like the agent of all of them as has been explained, nevertheless, since the prohibition of the relative of the chalutzah is only rabbinic as we have written, they did not decree regarding her co-wives, and people will not come to exchange one for the other. But regarding the co-wife of the relative of the chalutzah—such as Rachel, the sister of Leah, who was forbidden to Yaakov because she is the sister of his chalutzah as we have written, and Rachel married another and he died and left a co-wife to Rachel—the co-wife is forbidden to Yaakov just like Rachel herself. And the reason our sages, of blessed memory, stated there is because it is common that when the yevamah performs chalitzah, her sister goes with her to the beit din, and it turns out that Rachel was present at the time of Leah's chalitzah, and the world will think that Rachel is the one performing chalitzah. And if he marries the co-wife of Rachel, they will say that he married the co-wife of his chalutzah, in which there is a Torah prohibition. And even according to the Rambam, who holds that it is rabbinic, nevertheless its prohibition is very severe and is like a Torah prohibition, such as the secondary forbidden relationships. And according to what I have written, even the Rambam holds that there is a Torah prohibition in this. And nevertheless, they did not decree regarding the relatives of the sister of his chalutzah, such as her daughter or her granddaughter, for they did not decree to such an extent. And there are some of our teachers who explained that specifically when Rachel, the sister of Leah, was married to the brother of the deceased, and afterwards he also died, and Yaakov is forbidden to perform yibbum with Rachel because she is the sister of his chalutzah, and therefore he is also forbidden to perform yibbum with the co-wives of Rachel and performs chalitzah for one of them (Nimukei Yosef in the name of the Ritva, and so wrote the Tosafot and the Rosh, see there and examine carefully); but when she was married to another and he died, he is permitted to her co-wife.