Siman 164

A yevamah shall not undergo yibbum until ninety days have passed from the death of the husband, excluding the day of death and the day of yibbum, for we are concerned that perhaps she is pregnant. By this time, when her pregnancy is not recognizable, it is certain that she is not pregnant, for in three months a pregnancy is recognizable. And even though she should still have had to wait one more day—for behold, the seed is sometimes absorbed at the end of three days, and if so, let us be concerned that she conceived from him on the day of his death and the seed was absorbed at the end of three days, and the recognition of the fetus is at the end of ninety days, and one day is still missing; and behold, the sages were very stringent in this matter even regarding a general distinction, and all the more so regarding a distinction involving a prohibition of karet—it can be said that it is an uncommon matter for the seed to be absorbed at the end of three days and for her to conceive from this and for the fetus not to be recognizable until the final hour. This is like a minority of a minority, and the rabbis were not concerned for it. Aside from this, it is a minority that he would have relations with her on the day of death and that she would conceive from him, and it is like three minorities which is not common at all (see Tosafot Yevamot 37a, s.v. "rov etc." and "it can be said etc."; and their answer is not settled regarding a yevamah, for on the contrary, let us be concerned that perhaps on the next day the fetus will be recognized and it will be found that he had relations with her under a prohibition of karet; and one must say as I have written, and the Tosafot did not answer thus because regarding a standard distinction they did not require this, see there and examine carefully):

Even if Elijah were to come and say that she is not pregnant, she is nevertheless forbidden to undergo yibbum within three months, for such was the decree of the sages even regarding a general discernment—that she must wait three months, even if she is a minor who is not fit to give birth, as was written in siman 13. And all the more so is it thus regarding a yevama; and even one who did not decree regarding a general discernment decreed regarding a yevama (Tosafot 41a, s.v. Ha). And even if it is certain she is not pregnant, such as if she was distant from her husband, she is nevertheless forbidden to undergo yibbum. And not only is yibbum forbidden before this time, but even to perform chalitzah she is also forbidden before she is fit for yibbum, as it is written: "And if the man does not desire to take his yevama... then she shall remove his shoe," etc. Thus, if he desired, he could perform yibbum; it is consequently explained that the Torah insisted she be fit for yibbum at the time of chalitzah (Gemara ibid.). And thus the sages expounded: Anyone who is eligible for yibbum is eligible for chalitzah, and anyone who is not eligible for yibbum is not eligible for chalitzah.

And there is a question regarding this: for in several places the sages said she performs chalitzah and does not perform yibbum. Furthermore, the Tur and Shulchan Aruch, section 4, ruled that a niddah performs chalitzah and does not perform yibbum. Rashi, of blessed memory, answered that because it is impossible, it is like the sister of his chalutzah, the sister of his zekukah, and the doubtful co-wife of an ervah, for if so, she would be forbidden forever; therefore, since according to the Torah she is subject to yibbum, she performs chalitzah. But regarding the three months, where it is possible to wait, we wait. Thus far his words. And so wrote the Rashba and the Nimukei Yosef (and so it appears from Tosafot ibid. s.v. "HaSefekot"). And I wonder, for if so, why does a niddah perform chalitzah? Is it not possible to wait until she becomes pure? And it must be said that specifically regarding a matter that touches upon the essence of the law of yibbum, where she is not fit for yibbum due to a prohibition inherent to the matter of yibbum, in that case she also does not perform chalitzah. But regarding an external prohibition like niddah and the like, she certainly performs chalitzah. For what is this comparable to? To when she is ill and intercourse is difficult for her; would we say she is not subject to yibbum and shall not perform chalitzah then? And proof for this is from the Yerushalmi, which derives this exposition from the verse "My husband's brother refuses to establish etc.": one to whom they say "perform yibbum," they say to him "perform chalitzah"; one to whom they do not say "perform yibbum," they do not say to him "perform chalitzah." Behold, only one who is unfit for yibbum from the perspective of the essence of the yibbum was excluded, for it is impossible to tell him to fulfill the mitzvah of yibbum.

The Tur and the Shulchan Arukh wrote: If he performed yibbum or chalitzah within this time and she was not found to be pregnant, she is released and requires nothing further. However, she may not marry another even though she performed chalitzah until ninety days are completed from the death of the husband. And if the yabam died within the ninety days or after them, some say that she must wait ninety days after his death. And if there were two yabamim and one of them died, she is permitted to perform yibbum with the second within ninety days of the death of this one. Thus far their words.

The explanation of these matters is that even though the sages forbade performing yibbum or chalitzah within three months in all cases, even when we know clearly that she is not pregnant, as has been explained, nevertheless, ex post facto they did not sustain their words regarding both yibbum and chalitzah. For if she performed yibbum or chalitzah within three months and was not pregnant, such as when it is known that she is not pregnant because she was separated from her husband or the like, the yibbum is valid and we do not separate her from the yabam until the completion of the three months. However, if there is a doubt, it appears that we do separate them. There is one who says that even in a case of doubt it is so (Beit Shmuel, subsection 2), and I wonder how it is possible to say this; for if she is found to be pregnant, he is subject to the prohibition of kareth for each and every act of intercourse, and how is it possible that we would not separate them? See section 15.

And also when she performed chalitza within three months, if it was later revealed that she is not pregnant, it is a valid chalitza and does not require another chalitza; likewise, its law is not that of a disqualified chalitza which requires going around to all the brothers. Nevertheless, she may not marry another until ninety days are completed from the death of the husband, even when we know clearly that she is not pregnant. And we do not say that since she already performed chalitza she may marry, for in any event she is no better than all widows and divorcees who are obligated to wait the days of discernment in every case, as was written in siman 13. And if the yavam died within ninety days or after the ninety days and she had not yet performed yibbum or chalitza, some say she must wait ninety days from the death of the yavam, for we fear perhaps he had relations with her, since she is closer to relations than a betrothed woman, for it is a mitzvah to have relations with her and perform yibbum. And since every betrothed woman must wait, certainly a yevama must. However, this is specifically when there was only one yavam; but if there were two yevamin here and one of them died, the second does not need to wait at all. And she is not similar to a betrothed woman, for she is as close to him as to the deceased, and she was not closer to relations with the deceased than with the living one; and also he could have had relations with her even if he is younger than the deceased, for it has already been explained that if the younger one preceded, he has merited. Therefore, as long as it is not known that the deceased had relations with her, the living one may perform yibbum immediately after the completion of ninety days from the death of the first (the Gra, subsection 4).

In any event, according to the opinion of the Tur and the Shulchan Aruch, if she performed chalitzah within ninety days and was found not to be pregnant, it is a valid chalitzah. This is also implied in the Gemara (41b), as it was taught: A yevamah for whom the brothers performed chalitzah within three [months] must wait three months from the day of the husband's death, see there. This indicates that the chalitzah is valid, for if it were not so, it should have informed us that the chalitzah is invalid. Nevertheless, our teacher, the Rema, wrote that there are those who say that whenever she performed chalitzah within three months—whether she was found to be pregnant and miscarried or was found not to be pregnant—it is an invalid chalitzah, and she must return to all the brothers and perform chalitzah with all of them, according to the law of an invalid chalitzah which will be explained in siman 170. This opinion is in the Mordechai at the end of Gittin, see there. This is also according to the first resolution of the Tosafot in Yevamot (35b) s.v. "Venimtzeit," see there. This is also explicitly explained in the Yerushalmi at the beginning of the chapter "HaCholetz," where it says there: If he performed chalitzah within three months, what is the law regarding whether she requires [another chalitzah] after three months? Let us hear it from this, etc., and here too, even though she performed chalitzah, she must perform chalitzah. Thus far its words. According to this opinion, one must say that the reason the baraita did not say the chalitzah is invalid is, for example, where all the brothers performed chalitzah for her within three [months], as is implied by the wording of the baraita: "A yevamah for whom the brothers performed chalitzah," etc., implying that they all performed chalitzah for her. If so, since by Torah law it is a valid chalitzah and it is only invalid by rabbinic decree, and the law of an invalid chalitzah is that she must return to all the brothers, and since she already performed chalitzah with all of them, they did not require her to perform another chalitzah. However, one cannot say and resolve that the baraita is not dealing with this law but rather with the law of three months, and that it actually maintains that she requires another chalitzah, for if so, what does it come to teach us that she must wait three months from the death of the husband? It is obvious, for she still requires another chalitzah at the conclusion of the three months. Rather, it must be as I wrote. Furthermore, one cannot say that this opinion would disagree with the baraita in our Talmud and hold like the Yerushalmi, for certainly we do not rule like the Yerushalmi in a case where in our Talmud it is the opposite; rather, it is certainly as I have written.

According to this opinion, if there are other brothers, she requires chalitzah from all of them after three months, except for this one who performed chalitzah for her within three months, from whom she does not require another chalitzah (Beit Shmuel, subsection 4, and from this there is proof for what I have written, and examine it closely). Nevertheless, if there are no other brothers, she requires chalitzah from this brother after three months (ibid.), for specifically when there are other brothers she does not require it from this one a second time, as his chalitzah is the most inferior of them all, and why should we require it from him as well a second time? Or, if they all already performed chalitzah for her within three months, we likewise do not trouble her, as I have written. But when there is only one brother and he violated the enactment of the sages, we certainly require him to perform another chalitzah after three months in order to fulfill the enactment of the sages (it appears to me).

The sages taught in the Mishnah (beginning of chapter 4): If one performs chalitzah for his yevamah and she is found to be pregnant and gives birth; if the offspring is viable, he is permitted to her relatives and she is permitted to his relatives, and he has not disqualified her from the priesthood. If the offspring is not viable, he is forbidden to her relatives and she is forbidden to his relatives, and he has disqualified her from the priesthood. See there. And there is no difference whether her pregnancy was recognizable at the time of the chalitzah or whether it was not recognizable; for when the offspring is viable, even if her pregnancy was not recognizable, they are permitted to the relatives and she is fit for the priesthood. And when the offspring is not viable, even if her pregnancy was recognizable, they are forbidden to the relatives and she is disqualified from the priesthood (Tosafot). And even if she underwent chalitzah within three months (ibid.). And even according to the one who holds that she requires another chalitzah after three months, as has been explained, nevertheless, according to the Torah it is a valid chalitzah (ibid.). And even according to the one who holds that she does not require another chalitzah when she was not pregnant, nevertheless, when she was pregnant, he admits that she requires another chalitzah, as will be explained. And only because according to the Torah it is a valid chalitzah, therefore it is considered chalitzah regarding the matter of relatives and the priesthood (and see there in Tosafot, starting with the words "And she was found etc." and "Furthermore etc." Thus far his words. And it requires further study, for in such a case everyone admits that she requires another chalitzah, and examine this closely).

The halacha was decided in the Gemara there that the chalitzah of a pregnant woman is not considered chalitzah, and even if she miscarried a complete fetus, we do not say that the matter has been retroactively clarified that this was not a child at all and she was eligible for chalitzah. And even though in several places we say the matter is retroactively clarified, here we do not say so because this doubt is not fit to be clarified now at the time of the chalitzah, as it is impossible to know the future (Tosafot) whether she will miscarry or whether she will not miscarry, and at the time of the act she is as one who is not eligible for chalitzah. Furthermore, perhaps at the time of the chalitzah she was fit to give birth to a complete child, and afterwards a cause occurred that she miscarried, and it turns out that the chalitzah she performed is nothing (Nimukei Yosef). Furthermore, it is written, "and he has no son," and it was received through tradition: look into him; and since at that time he was fit to survive, this is not chalitzah (Tosafot). Nevertheless, one may not exempt her without chalitzah as if it were a complete child, for on the contrary, in this too: look into him, that she should not perform chalitzah and should not marry as long as she remains in a state of doubt (ibid.).

From these matters that have been explained, it is implied that according to the essential law of the Torah, it was not a halizah, and that she is disqualified from the priesthood is from the Rabbis and merely as a stringency (Gemara), for as a stringency it is a halizah, and therefore she is forbidden to be taken in yibbum afterward (Beit Shmuel, subsection 5). And if she married the yavam, they remove her from him, and similarly when she married a kohen, they remove her from him (Nimukei Yosef). And similarly regarding the prohibition of relatives, even if the yavam died before he performed another halizah, she is forbidden to his relatives by virtue of the first halizah, and similarly if she died, the yavam is forbidden to her relatives (Yam Shel Shlomo). And even if she gave birth normally, but he died within thirty days, such that it is a viable child according to the Torah as I wrote in siman 156, nevertheless, if she married a kohen she must leave (Nimukei Yosef). And even though if she had not performed halizah at all in such a case, if she married a kohen she would not leave as I wrote in section 20 and is exempt from halizah, nevertheless here, since she performed halizah and according to the Rabbis she requires halizah, she is forbidden to the priesthood even ex post facto. And if she married a kohen she must leave, even if the yavam died before he performed another halizah for her and there is no other yavam here, nevertheless, from the first halizah she became disqualified from the priesthood (Beit Shmuel, subsection 6).

According to what has been explained, that a disqualified chalitzah requires returning to all the brothers, here too, when a pregnant woman performed chalitzah and miscarried, she requires chalitzah from all the brothers. However, the Rambam, of blessed memory, wrote in chapter 1 that he or one of the other brothers performs chalitzah for her, for he holds that a disqualified chalitzah does not need to return to all the brothers, as I wrote in siman 170. And the Rosh wrote that one of the other brothers should perform chalitzah for her and not him, because his chalitzah is inferior since he already performed chalitzah for her while she was pregnant; and even though it is not called chalitzah, nevertheless his power in his zikah has been weakened, and it is as if he gave her a get and cannot perform a valid chalitzah. And so wrote the Tur and the Shulchan Aruch in section 2. And according to this, it must be said that there is no law of disqualified chalitzah here at all that would require returning to all the brothers, because the chalitzah of a pregnant woman is not called chalitzah at all; for if it were not so, how did they not write that she requires chalitzah from all the brothers according to the one who holds in siman 170 that a disqualified chalitzah must return to all the brothers? But it is possible that they relied on what is below in siman 170, and it requires further study for the halachah (and see the Beit Shmuel, subsection 7, for it is obvious to him that she requires chalitzah from all the brothers).

And just as the chalitzah of a pregnant woman is not a valid chalitzah, so too the cohabitation with a pregnant woman is not considered a cohabitation that counts as yibbum. Therefore, after she miscarries or if it dies within thirty days, she requires chalitzah from him; and if there is another brother, she shall perform chalitzah with the second one, and from him she requires a get, and more will be explained regarding this with the help of Heaven. Consequently, one who marries his yevamah and she is found to be pregnant, and she has another co-wife, her co-wife may not yet marry. For whether there will be a viable offspring or whether there will not be a viable offspring, the co-wife is forbidden to marry. For even if there will be a viable offspring and it turns out they were not subject to chalitzah and yibbum, nevertheless we hold that the offspring does not exempt until it emerges into the air of the world (Gemara). And all the more so if there will not be a viable offspring, for they require chalitzah, as it has been explained that the chalitzah of a pregnant woman is not considered chalitzah, and similarly her cohabitation is not considered cohabitation, and she will need to perform chalitzah after she miscarries. If so, it is impossible for the co-wife to marry yet, and she shall wait until she gives birth; if there is a viable offspring she may marry, and if there is not a viable offspring she may marry after chalitzah.

A yevama shall not undergo yibbum during the time of her niddah, and we do not say that since the prohibition of a brother's wife was permitted, the matter of niddah was also permitted, for they are unrelated matters. Nevertheless, she is eligible for chalitzah, and we do not say regarding this that "anyone who is not eligible for yibbum is not eligible for chalitzah," for this is an external prohibition, as we explained in section 3; see there. And if he transgressed and performed yibbum with her during the time of her niddah, he has acquired her and it is a valid yibbum, even though they transgressed a prohibition of karet. Thus ruled the Rosh at the beginning of Yevamot, and so they ruled in the Tur and Shulchan Aruch, section 4. And the Rosh brought a proof from Pesachim (72b), which says there that if one has relations with his yevama during her niddah, he is exempt from a sacrifice because he performed a mitzvah; see there. It follows that he acquires her if he has relations with her during her niddah; see there. And I wonder, for there in the Gemara it deals with an unintentional act where he did not know she was a niddah, for in his mind he is performing a mitzvah. On the contrary, [if he had relations] near her expected period, it is explained there that it is not a mitzvah, and if he knew she was near her expected period, he is liable for a sin offering. Rather, if he did not know, we say he is exempt because he acted with permission, and the fact that he did not ask her was because he was embarrassed to ask her. And so wrote the Rambam in the second chapter of Shegagot. This is his wording: One who has relations with his yevama and she is a niddah, and he did not know, he is exempt from a sin offering because he acted with permission, etc., for he is not accustomed to her such that he would ask her. Thus far his words. But in an intentional case, when he knew she was a niddah, from where do we know that he acquired her through an act of relations involving a transgression that carries karet? And is this any better than matzah, where one does not fulfill the obligation of matzah with matzah that is prohibited, as explained in the second chapter of Pesachim and in the Rambam, sixth chapter of Chametz; see there? However, from there there is no proof, for we derive that from a verse, "You shall not eat leaven with it" (35a; see there). But here, since there is no derivation for this, we say based on reasoning that he fulfills the mitzvah of yibbum through this. And the proof of the Rosh is from what they said there, that when a skewer of notar was switched for him with a skewer of valid consecrated meat and he ate it, he is liable for a sacrifice, and [the Gemara] distinguishes between this and having relations with his yevama who is a niddah because with notar he does not perform a mitzvah at all. It follows that with his yevama there is at least the mitzvah of yibbum; see there. And one also should not ask: behold, with a stolen lulav we disqualify it even on the second festival day due to the principle of "a mitzvah that comes through a transgression," as is found in Sukkah (30a), and here too it is a mitzvah that comes through a transgression? For Tosafot already wrote there that it is only called "a mitzvah that comes through a transgression" when the mitzvah is performed by means of the transgression, and were it not for the transgression, the mitzvah would not have been performed; see there. But here, even without the transgression, the mitzvah would have been performed when she becomes pure (and this is like a lulav from an asherah, regarding which Tosafot wrote that there is no issue of "a mitzvah that comes through a transgression" in it; see there).

The Rambam wrote at the end of the first chapter of Yibum: One who enters into yibum with his yevamah and she is found to be pregnant, they are separated and they wait for her; if she miscarries, he may return and maintain her, and if she gives birth, even if it died on the day it was born, he must divorce her with a get and perform chalitzah for her, and afterwards she will be permitted to others. And if the child survived thirty days after it was born, this is a viable child and she does not require a get from him because she is an ervah to him. If she gave birth after six months from when the yibum was performed and it is a viable child, this child is a doubt whether it is a nine-month child of the first or a seven-month child of the last; therefore he must divorce with a get and the child is kosher. And if he had relations with her after she gave birth, the children who come after him are doubtful mamzerim. Thus far his words.

The explanation of his words is that the separation is necessary because perhaps the fetus is viable and he is with her under the prohibition of karet. And that which he wrote, that if she miscarried he should return and maintain her, means that he should return and have relations with her for the sake of yibum and maintain her as his wife, for the first relation was nothing, as has been written, that the relation with a pregnant woman is not considered a relation. And if it is difficult, for if the first relation was nothing, they should be liable for a sacrifice for having relations with a brother's wife not in the place of a commandment, one could say that even though it was not a relation to exempt her, nevertheless, since the matter was revealed that this was not a viable fetus, it was not upon him as a brother's wife not in the place of a commandment (Rashba). For if not so, a yebama who miscarried, how could she undergo yibum? Behold, I do not read regarding her at the time of falling "her yavam shall come upon her." Rather, certainly she was not forbidden to him, but only that she must wait (ibid.). And if after she miscarried he does not desire to have relations with her, she requires a get and halizah; a get to exempt her from the first relation, for even though it is not considered a relation, as a stringency it was a relation (Beit Shmuel, subsection 9). And it appears to me that if there is another brother, it is better that that brother should perform halizah for her, for the halizah of this one is not so strong because he had relations with her.

And that which he wrote, that if she gave birth, even if it died on the day it was born, she requires a get and chalitzah, the reason is simple: for it is forbidden for him to be with her, since according to the Torah we follow the majority of women whose births are viable offspring, and she is under the prohibition of karet. Therefore, she requires a get for his cohabitation and chalitzah for his zikah, as I have written previously. And that which he wrote, that if it lived thirty days she requires nothing, is simple; and the same applies if it is known that its months were complete. And so too the opposite: even if she gave birth, if the signs of its hair and nails were not finished and it did not live thirty days, this is a complete nefel and he is permitted to marry her. It is only when its signs were finished but it did not remain thirty days, and it is not known if its months were complete, that she then requires a get and chalitzah because it is a doubtful nefel. And in siman 156 we explained the details of these laws; see there. And that which he wrote, that if she gave birth after six months it is a doubt whether it is a nine-month child from the first or a seven-month child from the last, is simple.

From the words of the Rambam it is somewhat implied that even if he had relations with her after her fetus was recognizable and they acted willfully, nevertheless if she miscarried, he is permitted to maintain her. And so wrote some of the poskim. However, there are those who say that this is specifically when he married her before the fetus was recognizable, for they acted in error; but if he married her after the fetus was recognizable, he must divorce her with a get and chalitzah even though she miscarried, for we penalize them (Nimukei Yosef). And so wrote our teacher, the Rema, in section 5. And there is a question regarding this, for it certainly deals with a case where he had relations with her within three months, for if not so, her fetus would certainly have been recognizable, and if so, let us penalize him? For one could say: granted that he transgressed the rabbinic enactment, nevertheless he did not transgress the Torah law according to what he thought—that she was not pregnant—and therefore we do not penalize them when she ultimately miscarried (and there is a proof from the wife of a kohen, which will be explained in section 20).

Any yevama who is exempt from yibbum according to the Torah, and only by rabbinic decree is there a doubt and they required her to undergo chalitza due to doubt—for example, a yevama who gave birth to an offspring where it was not known if its months were complete or not, and its hair and nails were finished, but it did not survive thirty days, or it died on the thirtieth day itself, the law of which is like within thirty days, as has been written in siman 156—if she went and became betrothed to another or married before chalitza because they thought she was exempt from chalitza and from yibbum, if he is a Yisrael, her yavam performs chalitza for her and she remains with her husband. And in this case, it is not applicable that he should divorce her as in siman 159, for there, since the yavam has the ability to perform yibbum, they compel him to divorce her and the yavam shall do with her as he wishes; but here, the yavam is forbidden to perform yibbum with her, for according to the Torah she is a brother's wife who has children, and why should he divorce her?

And if she was betrothed to a kohen, who is forbidden to a chalutzah, he does not perform chalitzah for her, and we rely on the majority, for the majority of offspring are viable, and she is exempt from chalitzah; for we do not forbid his wife to him due to a rabbinic doubt. And even though she now remains with her husband under a rabbinic doubt of being a chalutzah, nevertheless it is better that she does not perform chalitzah, for if she were to perform chalitzah, they would say that it became known that he was a complete miscarriage and they required her to have chalitzah, and they would come to permit a chalutzah to a kohen. But when we do not require her to have chalitzah, they will say that it became known that it was a proper offspring, such as that we established that its months of gestation were complete, and therefore they did not require her to have chalitzah, and they will not say that a yevamah married an outsider without chalitzah (the Rosh, chapter HaCholetz, siman 5). For in truth, we could have also said regarding a kohen that she should perform chalitzah and remain with him, for the prohibition of a chalutzah to a kohen is rabbinic, and they did not decree upon a doubt of chalitzah (ibid. 24a), except that if she performs chalitzah they will say she certainly requires chalitzah and they will say a chalutzah is permitted to a kohen as I have written. And furthermore, if she performs chalitzah, there will be a slur upon the children she will bear from the kohen (Tosafot, Shabbat 136b, s.v. "Ve-im").

And it is not specifically a kohen, for even if she married a Yisrael, if the yavam is not here, she remains with her husband, the Yisrael, and is permitted to him without chalitzah since she has already married. When the yavam arrives, he shall perform chalitzah for her. And similarly, in the case where she married a kohen, where we did not require her to perform chalitzah, if the kohen died or divorced her, the Rambam ruled at the end of chapter 2 that she performs chalitzah now and is afterwards permitted to others, see there. For since we only permitted her without chalitzah because of the kohen, therefore when the kohen died or divorced her, why should she not perform chalitzah now and be forbidden to a kohen? And there is one who says that since we exempted her without chalitzah and established her status according to Torah law, we do not require her to perform chalitzah further (Shiltei HaGibborim, chapter HaCholetz). And his words appear correct when she has sons or daughters from the kohen, for if we require her to perform chalitzah, it will cast a slur upon the children. And it is possible that in such a case even the Rambam agrees, and the law requires further study (see Tosafot Shabbat 136b, starting with the words "And if," and examine it closely).