Siman 165

Whether the mitzvah of yibbum takes precedence in this time or if the mitzvah of halitzah [takes precedence] is a dispute of the authorities. The Rif (chapter HaCholetz) and the Rambam (chapter 1) and Rashbam and the Ra'avyah in the name of the Responsa of the Geonim (Hagahot Maimoniot) ruled that the mitzvah of yibbum takes precedence. However, Rabbeinu Tam and Rabbeinu Chananel and the Ra'avan and the Sefer Mitzvot Gadol and others of the great sages of France (ibid.) ruled that in this time the mitzvah of halitzah takes precedence. And even though the sages, of blessed memory, explicitly said (21a) that halitzah in the place of yibbum is not a mitzvah, nevertheless they hold thus for a reason that will be explained. And the Tur wrote that this is also the opinion of Rashi; see there.

The foundation of their dispute is because the sages taught in the Mishnah at the end of the first chapter of Bekhorot: The mitzvah of yibbum precedes the mitzvah of chalitzah originally, when they would intend for the sake of the mitzvah; now that they do not intend for the sake of the mitzvah, they said the mitzvah of chalitzah precedes the mitzvah of yibbum. And it is stated in Yevamot (39b) that they retracted to say that the mitzvah of yibbum precedes the mitzvah of chalitzah. This was not because the generations improved such that they now intend for the sake of the mitzvah, but rather because there is a dispute regarding the mitzvah of yibbum when one does not intend for the sake of the mitzvah, whether it constitutes yibbum or not. For it was taught: Abba Shaul says, one who takes his yevamah for the sake of beauty, or for the sake of marriage, or for the sake of any other matter, it is as if he encounters an ervah, and it is close in my eyes to the offspring being a mamzer. But the sages say, "her yavam shall come upon her," in any case. Therefore, the Mishnah in Bekhorot holds like Abba Shaul. However, in the generations of the Amoraim, they retracted to say that the mitzvah of yibbum precedes, for we establish the law like the Rabbis and not like Abba Shaul. Therefore, the Rif and the Rambam ruled like the Rabbis according to that which they retracted to say. But Rabbeinu Tam, Rabbeinu Chananel, and the Semag rule like Abba Shaul because the anonymous Mishnah in Bekhorot is like him, and so we taught in the Tosefta of Yevamot, chapter 6, see there; and we do not establish the law like that which they retracted to say.

And there is a question regarding this: how is it possible to speak like Abba Shaul, that specifically he must intend for the sake of the mitzvah, for we have learned in a Mishnah (beginning of chapter 6): One who has relations with his yevamah, whether unintentionally or intentionally, whether under duress or willingly, has acquired her? And behold, he does not intend for the sake of the mitzvah. According to this, the Gemara should have said that our Mishnah is not in accordance with Abba Shaul; and since it does not say so, it implies that in this even Abba Shaul admits, and a reason is required why (Nemukei Yosef, beginning of chapter 6).

Therefore, some say that all agree that according to the Torah it is not necessary specifically for the sake of the mitzvah, and in any manner that he has intercourse with her, he has acquired her. Therefore, post facto, Abba Shaul does not disagree. It is only ab initio that Abba Shaul holds it is forbidden by rabbinic decree when he does not intend for the sake of the mitzvah, and if he intends for the sake of beauty, it is ab initio like one who encounters an forbidden relation. And the rabbis who disagree with him also hold that ab initio it is proper to intend for the sake of the mitzvah, but they disagree with him in that even ab initio, when he intends for the sake of beauty, he is not like one who encounters an forbidden relation (ibid.). According to this, there is not such a great difference between Abba Shaul and the rabbis, or between the first Mishnah and the later Mishnah. However, from all the Rishonim it does not appear so. Furthermore, if so, how can Abba Shaul say that it is close in his eyes for the child to be a mamzer, since according to the Torah it is completely permitted? And if his intention is that by rabbinic decree he is close to being a mamzer, why did the rabbis do so in a matter that is completely permitted according to the Torah? (And from the Tosefta there is also proof, for in chapter 6 it states anonymously like Abba Shaul, and the law of "one who has intercourse with his yevamah etc." is not found in the Tosefta; and delve into this).

And there is also a need to explain the reasoning of Abba Shaul, for it cannot be said that it is because he holds that mitzvot require kavanah, for if so, how did the Rif and the Rambam rule not in accordance with him? For they hold that mitzvot require kavanah, as is written in Orach Chaim siman 60. Furthermore, regarding a matter in which there is pleasure, the Rambam holds that kavanah is not required, and therefore he ruled that one who eats matzah without kavanah has fulfilled his obligation, as is written there in siman 475, because there is pleasure in it, as is explained there (Beit Yosef and Magen Avraham subsection 14), and all the more so regarding the pleasure of cohabitation. And one must also understand the essence of the words of Abba Shaul, that he should only intend for the sake of the mitzvah and not for the sake of pleasure—how is this possible? For behold, regarding Yishai the father of David, who was a complete tzaddik, David said of him, "Behold, I was brought forth in iniquity," and the Sages of blessed memory said in Midrash Vayikra (chapter 14): Did my father Yishai intend etc., for even the most pious of the pious, it is impossible for him without some aspect of pleasure, see there; and all the more so regarding a mitzvah that pertains to the collective of Israel.

Therefore, it appears to me that Abba Shaul holds that even if we say regarding all mitzvot that one does not need intent to fulfill the mitzvah, in yibbum we necessarily require that he intend to fulfill the mitzvah of yibbum. And when he intends so, then even if his intent is also for his own pleasure, we have no concern with it, since he intends to fulfill the mitzvah. And the reason is that since a brother's wife is an ervah to him, and the Torah only permitted her to him when [the brother] did not leave offspring and the Torah obligated him in this, therefore, if he does not intend for the sake of the mitzvah that the Holy One, blessed be He, commanded him, he is cohabiting with an ervah. But when he intends for the sake of the mitzvah, he is doing what he was commanded, and if he also intends for his pleasure, we have no concern with it. For to what is this comparable? To one who eats a kezayit of matzah on the night of Pesach for the sake of the mitzvah and his desire is also to enjoy his eating; and here too it is the same. And this is what Abba Shaul said, "One who takes his yevamah for the sake of beauty," meaning only for the sake of beauty and not for the sake of the mitzvah. And the Rabbis who disagree with him hold that the prohibition of a brother's wife is completely removed from her when [the brother] dies without children, and she is completely permitted to him. Therefore, even if he cohabits with her only for the sake of beauty, we have no concern with it. And even if regarding all mitzvot we established that one needs intent to fulfill it, here the verse revealed to us, "her brother-in-law shall come upon her," in any case—meaning, he shall come upon her in whatever manner he wishes. And since the prohibition of a brother's wife was completely removed from her, it is like one who eats matzah without intent and under duress, who has fulfilled the obligation because there is pleasure in his eating, and ultimately the mitzvah was fulfilled; and here too it is so. And in the Mishnah in Bekhorot, its explanation is also thus: that at first they would intend for the sake of the mitzvah as well, and later they did not intend at all for the sake of the mitzvah, only for the sake of beauty or another matter, and therefore, according to those who hold like Abba Shaul, this is close to an ervah.

And Abba Shaul and the Rabbis do not disagree except regarding the law of whether he committed a transgression in such a case when he had relations with her only for the sake of beauty or did not commit a transgression, but regarding the act of yibbum and its acquisition, Abba Shaul admits that he has acquired her and she is like his full wife. To what is this comparable? To one who has relations with his yevamah while she is a niddah; even though he violated a prohibition of karet, nevertheless he acquired her, as I wrote in the previous siman. Therefore, that which we learned, "one who has relations with his yevamah intentionally has acquired her," follows even Abba Shaul; and it is true that he committed a severe transgression when he intended only for the sake of zenut, but nevertheless he acquired her.

According to this, even according to the poskim who rule like Abba Shaul and like the final Mishnah that the mitzvah of halizah takes precedence, the concern is only that perhaps they will not intend for the sake of the mitzvah at all. However, if they were intending for the sake of the mitzvah, even if they also intend for their own pleasure, we have no concern regarding it. This is certainly so if we say according to the opinion of the "there are those who say" in section 4, that according to the Torah there is no concern here at all; see there. According to this, even in this time, if both of them desire yibbum and we instruct him that he should intend for the sake of the mitzvah, it would seem appropriate to permit them even if we knew that his intention was also for the sake of beauty; and more will be explained regarding this with the help of Heaven.

And even according to those who hold that the mitzvah of yibum takes precedence, this is specifically when the yibum is good for her. But if the beit din sees that it is not good for her, such as if he is old and she is young or vice versa, they are obligated to endeavor that he should perform chalitzah for her. And thus our sages, of blessed memory, expounded (44a): "And the elders of his city shall call him and speak to him" — this teaches that they give him advice appropriate for him; for if he was young and she was old, or he was old and she was young, they say to him: "Go to one like yourself." And so too, if he set his eyes on her money, they mislead him so that he performs chalitzah (106a). And all the more so if he is among those whom they compel to divorce, which were explained in siman 154, all the more so that they do not allow them to perform yibum and they compel them to perform chalitzah. And so too in a place where it is forbidden to marry two women and he has a wife, they compel him to perform chalitzah even if both of them desire yibum. And when she states before us correct reasons that she does not want yibum, even if all these are not present, if her words are correct, they see to it that he performs chalitzah for her and they assist her in this.

If the yevama vowed against deriving benefit from the yavam during her husband's lifetime, or if she vowed against deriving benefit from all Jews and her husband died, they compel him to perform chalitza, for it is impossible to say that she did this intentionally so that she would not be subject to yibum; since the husband was still alive, she is like one under duress in this matter. And if she found a release for her vow through a sage, she is permitted to him, and we do not say that since she was forbidden to him at the time of falling before him for yibum she shall never be permitted, for the prohibition was not from the perspective of the matter of yibum, and furthermore, the sage uproots the vow from its inception (see Beit Yosef and Beit Shmuel subsection 4). And one should not say that if so, why do they compel him to perform chalitza, let him tell her to go to a sage and he will release her; for it can be said, for example, that she has no opening for her vow. And if he should say to her, behold we establish that we open with regret, let her regret and be permitted, for she can say to him: Do we not require regret from the inception, as is written in Yoreh Deah siman 228, and how can I say that I regret from the inception when in truth I do not regret from the inception? Therefore, they compel him to perform chalitza.

But if she made a vow after the death of her husband, we request of him that he perform chalitzah for her, but we do not compel him. For how could we compel him in a matter that she did intentionally against him? And even if she made a vow during the husband's lifetime, if it appears that her intention was to remove herself from the yavam, such as if her husband was ill or the like, we also do not compel him to perform chalitzah, but rather we request of him. And some say further that even when it is not known clearly that her intention during his lifetime was for this, we attribute it to such being her intention until it becomes clearly known to us that she did not intend this (Beit Shmuel, subsection 5, in the name of the Maggid Mishneh). And some say that when she vowed benefit from Jews in general, the yavam is not included, and this is the opinion of Rashi, the Meor, and the Rashba (ibid.). Consequently, since there is a dispute regarding this, it is impossible to compel him to perform chalitzah when she vowed benefit from all Jews during her husband's lifetime, for perhaps we establish the law according to this opinion that she is permitted to the yavam, and therefore we do not compel but rather request (ibid.).

Our teacher, the Rema, wrote in section 2: If her yavam was a kohen and she went and became betrothed to another so that he would not be able to perform yibbum with her, her law is like one who vowed benefit from him, and we request of him (see the Beit Shmuel, subsection 7, who maintained that this is the opinion of Rabbeinu Tam, and nevertheless wondered about this) and we do not compel him to perform chalitzah, since she caused herself to be forbidden to him. Thus far his words. And it is simple, and this is according to the poskim who hold that the mitzvah of yibbum takes precedence. He further wrote: And there are those who say that if she spat before the brothers or the like and caused herself to be forbidden from performing yibbum, she does not have the law of a moredet, since it is impossible for her to perform yibbum from now on. Thus far his words.

The explanation of his words is as follows: Behold, according to the poskim who hold that the mitzvah of yibum takes precedence, if she does not desire to undergo yibum with one of the brothers when one is willing to perform yibum with her, or with the eldest of the brothers when he wishes to perform yibum with her, and she does not have a sufficient claim as to why she does not want yibum, her law is like that of a moredet, as written in the Tur and Shulchan Aruch, section 1, see there. And they write a letter of rebellion against her, and they treat her as written in siman 77 regarding the law of a woman who rebels against her husband, and the same applies when she rebels against the yavam. However, according to the poskim who hold that the mitzvah of chalitzah takes precedence, she does not have the law of a moredet if she does not want to undergo yibum, even when she does not have a sufficient claim. And according to this, since according to those who hold the mitzvah of yibum takes precedence she has the law of a moredet, in any place where it has been explained that we request of him to perform chalitzah for her—such as where she vowed against deriving benefit from the yavam and intended to forbid herself to him, as has been written—if we requested of him to perform chalitzah and he only wants yibum, her law reverts to that of a moredet since she caused this (Beit Shmuel, subsection 6). And regarding this he says that in the case of spitting before the brothers, for which there is no remedy, she does not have the law of a moredet even if he did not consent to perform chalitzah. And the reason is that the law of a moredet only applies when it is within her power to retract; we impose the law of a moredet upon her so that she will retract. For in the case of a vow, she can retract through the annulment of a sage. And if you say that she has no opening for her vow and also has no regret from the outset, as written in section 10, behold, since we will write a letter of rebellion against her, the opening is opened before her by this very fact—that had she known they would write a letter of rebellion against her, she would not have vowed. This is not the case with spitting, which is impossible to remedy; therefore, there is no utility if we make her a moredet. And the same applies if she was betrothed to another, for behold, there is no utility, just as with spitting. And the reason he did not write this law regarding one who was betrothed to another is because, in truth, in this matter we judge her more severely than a moredet, for we compel the one who betrothed her to divorce her even though there is no utility to the yavam in this, so that a sinner should not profit, as written in siman 159. And how could he write that she does not have the law of a moredet, behold we penalize her? But in the case of spitting, we do nothing to her. However, regarding the essential laws of a moredet, betrothing and spitting are equal (as mentioned above; and that which the Beit Shmuel there and in subsection 8 and the Gra in subsection 22 troubled themselves with is well-settled, see there and examine carefully). He further wrote, and this is his wording: And it has already been explained nearby that all these distinctions are according to the one who says the mitzvah of yibum takes precedence, but according to the one who says the mitzvah of chalitzah takes precedence, she has no law of a moredet at all if she does not want yibum. Thus far his words. And it is simple.

The approach of Rashi, of blessed memory, (39b, s.v. Amar Rav) is that even according to the final Mishnah that the mitzvah of chalitzah takes precedence, nevertheless, if both of them desire yibbum, we do not compel them to perform chalitzah. We do not fear that perhaps they do not intend for the sake of the mitzvah and he will encounter the prohibition of a brother's wife; rather, we leave them to perform yibbum. However, the opinion of Rabbeinu Tam, of blessed memory, (ibid. in Tosafot) is that we do not leave them to perform yibbum unless it is clarified that they intend for the sake of the mitzvah, such as if they came to perform chalitzah and we say to him, "If it is pleasing to you to perform yibbum, we will leave you to it." For then, if he desires to perform yibbum and she is also consenting, there is no concern here that they do not intend for the sake of the mitzvah since they came to perform chalitzah. This is the opinion of our teacher, the Rema, in section 1, who wrote that if both of them desire yibbum, we do not allow them to perform yibbum unless it is recognizable and known that they intend for the sake of the mitzvah. Thus far his words. And this is when they came to perform chalitzah, as I have written. Likewise, even if they did not come to perform chalitzah, but it is known that he is God-fearing or that they had arranged a match for her with him beforehand, we leave them to perform yibbum (Yam Shel Shlomo, chapter 4, siman 17). There is one who says that nowadays we do not rely on the fact that they came to perform chalitzah, and there is no proof from this that their intention is for the sake of the mitzvah, because nowadays everyone knows that ordinarily we do not allow yibbum (ibid.). I do not know what he saw to be stringent in this, in a matter that according to Rashi is completely permitted, and even Rabbeinu Tam agreed to this when they came to perform chalitzah. What of it if they know that nowadays we do not perform yibbum? On the contrary, from this there is proof that they wanted chalitzah. And if it is because they might come to practice deception, what of it? Behold, according to the Rif, the Rambam, and the Geonim, the mitzvah of yibbum takes precedence; and according to Rashi and Rabbeinu Tam that chalitzah takes precedence, they permitted it in such a case. From where do we have the authority to be stringent in this? It is true that we have not seen yibbum in our regions, but nevertheless, if such a case happens, it appears to me that one should not protest against them. Especially according to what I wrote, that if he intends for the sake of the mitzvah, even though he also intends for the sake of beauty, there is no prohibition. Certainly according to the opinion of "there are those who say" in section 4, that this is only rabbinic, it is obvious that we should not prevent them from performing yibbum (and from what will be explained in section 17 there is also proof for our words; see there and examine carefully).

Furthermore, regarding the essence of this law, we have not seen an explicit decision by our teachers, the authors of the Shulchan Aruch; however, from the implication of the words of our teacher, the Beit Yosef, it appears that he holds that the mitzvah of yibum takes precedence, and from the words of our teacher, the Rema, it is implied that he holds that chalitzah takes precedence. This is according to the custom of the lands, for in the Eastern lands even today they practice yibum, while in the lands of Ashkenaz, France, Russia, Poland, and Austria, they do not practice yibum at all and have adopted the opinion of the poskim that chalitzah takes precedence. However, that we should be so stringent regarding it as the previous opinion, we have not heard. And even the great Acharonim who divided this law into three categories—the first, that if they certainly intend for the sake of the mitzvah, we allow them to perform yibum; the second, that when it is not known if their intention is for the sake of the mitzvah, we compel them to perform chalitzah with words; and the third, that whenever it is certainly known that their intention is not for the sake of the mitzvah, we compel them with all types of compulsion to perform chalitzah (Bach and Beit Shmuel, subsection 1)—it also appears that if there is even a slight proof that their intention is for the sake of the mitzvah, such as when they came to perform chalitzah and the like, we do not compel them to perform chalitzah and we leave them to perform yibum.

Our teacher, the Rema, wrote in section 1 that according to the one who holds that the mitzvah of chalitzah takes precedence, she does not have the status of a moredet if she does not wish to perform yibbum. Nevertheless, we do not compel him to perform chalitzah; rather, we deceive him if it is possible to deceive him, such as by saying to him, "Perform chalitzah on the condition that she gives you a maneh." And this is specifically if he is not among those whom we compel to divorce in the case of a husband, as was written above in siman 154, etc. And some say that if he has another wife, we compel and decree against him until he performs chalitzah. And some say even without another wife, if they do not intend for the sake of the mitzvah and she does not wish to perform yibbum and they cannot deceive him, we compel him to perform chalitzah. And the custom is like the first opinion, that we do not compel chalitzah at all, even if we know of him that he has set his eyes upon money; rather, we mediate between them according to the enactment of the communities, as will be explained below. Thus far his words.

The explanation of his words is that the first opinion holds that compelling to perform chalitzah is only when she provides a proper justification for why she does not desire to perform yibbum, or when he desires neither to perform yibbum nor chalitzah, as will be explained. However, when he desires to perform yibbum, it is unnecessary to state that if she also desires it we do not compel him to perform chalitzah—and not like the opinions of the great later authorities that we cited in section 15 in the second division—but even if she does not desire yibbum, we do not compel him to perform chalitzah even according to those who hold the mitzvah of chalitzah takes precedence, if she does not provide a justification as I have written. And what do we do? We remove our hands entirely, for we do not allow him to perform yibbum with her against her will, and we also do not compel him to perform chalitzah; rather, if it is possible to mislead him, we mislead him, and if not, we remove our hands from this as I have written. And the second opinion holds that if he has a wife, we compel him with all types of compulsion until he performs chalitzah. And the third opinion holds that even without another wife, when she does not desire to perform yibbum and we know that his intention is not for the sake of the mitzvah and it is not possible to mislead him, we compel him to perform chalitzah. And the custom is like the first opinion, that we do not compel in any case (the Beit Shmuel in sub-section 1 wondered at our teacher, the Rema, but there is no wonder here, for so it is in Tosafot Ketubot 64a, starting with the words "V'dini," see there).

He further wrote, and this is his wording: And all this is when he says that he wants to perform yibbum and it is possible to perform yibbum, such that there is no concern of a prohibition regarding his yibbum; but if he says that he wants neither to perform yibbum nor to perform chalitzah, we coerce him, and specifically when she comes with a claim in the manner that was explained above in siman 154. However, if it is possible to mislead him and tell him that he will receive much money for the chalitzah, we mislead him so that we will not need to coerce, and they shall be careful not to deposit the money in the hand of a third party, for then we would not be able to say to him, "we were mocking you." Thus far his words. The explanation of his words is that even though when he wants neither yibbum nor chalitzah we certainly coerce him, this is when she comes with a claim that she desires to marry, as written in siman 154, so that she will have someone to rely upon in her old age, as written there. But if she has no necessity to marry, we do not coerce him at all, and she shall remain without chalitzah and without yibbum. And we learn from this that if she too is an old woman who does not demand the chalitzah because she has already despaired of marrying a husband, beit din does not coerce them to perform chalitzah for her. And it is true that according to the Zohar, chalitzah is a great rectification for the deceased; nevertheless, we do not have the power to coerce because of this, but rather we inform them and request of them that they perform a rectification for the soul of the deceased, but we do not coerce them (and so wrote the Chatam Sofer). And even though this is a positive commandment to perform chalitzah or yibbum, nevertheless we do not coerce, for the mitzvah is only when she desires to marry, as it is written: "the wife of the deceased shall not be outside etc.," but when she desires to remain in her widowhood, we do not coerce (and see Tosafot Ketubot 64a, starting with "tava" at the end of the discussion, that according to the first resolution we coerce even without a claim, like the opinion of the Zohar). However, when she demands chalitzah and comes with a claim, we coerce him to perform chalitzah, and it is better to mislead him than to coerce. And that which he wrote, that they should not deposit in the hand of a third party, this is the reason: for the reason that a misled chalitzah is valid is because she can say, "I was mocking you" (Yevamot 106a), like the case of "take a dinar and take me across the ferry" that was explained in Choshen Mishpat siman 264, where he has only his wage because he can say "I was mocking you," and here too it is so. And there it was explained that if he already received the dinar, we do not extract it from his hand; and if so, also in the hand of a third party they shall not deposit, so that he should not acquire it by way of a gathering of the three (so wrote the Mordechai, chapter HaCholetz, see there; and nevertheless it requires further study, for can they not mislead him through the third party himself? And perhaps their intention is only when she actually deposits before the yavam with the third party and says to him, "give this sum to my yavam after he performs chalitzah," for by the law of a gathering of the three, one is unable to say "I was mocking you," as written in Choshen Mishpat siman 81, section 17, see there; and more will be explained regarding this in siman 169).

The Rambam wrote in chapter 2, law 16: A yevama whom the yavam summoned for chalitza, and she says, "I will not undergo chalitza and I will not take a ketubah, but rather I will dwell in my husband's house like all other widows," we do not listen to her, for she was acquired for this man from Heaven, and if the yavam wishes, he performs yibbum, and if he wishes, he performs chalitza and gives a ketubah. Not only that, but even if she said, "I will support myself from my own property and dwell as an agunah all the days of my life," we do not listen to her, for the yavam says to her, "As long as you are bound to me, they will not give me another wife." And even if he was married, it is possible he would marry another wife, or there would be strife within his house because of the yevama. Thus far his words. And this was transcribed in the Shulchan Aruch, section 3, in brief; see there. And his words require explanation, for first he stated the reason that the woman was acquired for him from Heaven and it is within his power to compel her either to chalitza or to yibbum, and so is the truth, for the Torah says so, that the matter depends on him; and afterwards he says that he needs a pretext that they should give him another wife or to prevent strife within his house.

However, the explanation of his words is as follows: it is true that the Torah granted him the right to do with her as he wishes, but this is only if it is her desire to marry, as it is written, "the wife of the dead shall not be married abroad," etc., and then the choice is in his hand to perform yibbum or to perform chalitzah. But when it is not her desire to marry, the Torah did not impose it upon him, similar to what we wrote in section 18. Therefore, the Rambam required the reason of a pretext. And in the first clause, where he says "because they granted her to him from Heaven," this is when it is her desire to dwell in her husband's house like all widows and to be sustained from his property; in this, certainly the yavam has the power to say to her, "I will not give you a dwelling nor sustenance, but I will perform chalitzah for you and give you your ketubah and you shall depart from his house." And if he demands to perform chalitzah and she demands to perform yibbum, the law is with him, for the Merciful One made it dependent upon him (Rashi, Ketubot 64a). And if she does not listen, they write against her a letter of rebellion even according to the first Mishnah, for the mitzvah of yibbum takes precedence (ibid.). (And see Beit Shmuel, subsection 9, and it requires further study: from where do we know that this is a pretext that she does not desire to perform chalitzah due to shame, for there is no shame in the mitzvot of the Torah?)

Every yevamah whose law is that she must perform chalitzah and not undergo yibbum, she takes her ketubah if she has a ketubah like all other widows, and they also appraise her garments for her as they do for a widow. And similarly, if the yavam was afflicted with boils or other blemishes mentioned in siman 154, he performs chalitzah with her against his will since she does not consent to yibbum, and she takes her ketubah. And even if those blemishes were present in her husband, she can say, "I was able to accept your brother, but I am unable to accept you," as written in siman 154. And this is even according to the one who holds that the mitzvah of yibbum takes precedence. And similarly, if blemishes emerged in her while she was a shomeret yavam, he cannot say, "My desire was only for yibbum and not for chalitzah, and now she is loathsome to me and I cannot perform yibbum with her, and I do not want chalitzah." We do not listen to him, for "his field was flooded." And if he does not want to perform yibbum, he is obligated to perform chalitzah and give her her ketubah, for she committed no negligence and she should not lose her ketubah. And this is even in a place where they practice yibbum. And such is the law according to the one who holds that the mitzvah of chalitzah takes precedence, where they do not allow yibbum, and he does not want chalitzah but only yibbum; and in a manner where they do not compel him to perform chalitzah, as has been explained, nevertheless he must give her her ketubah immediately. For her law is like that of a chalutzah since the delay is not from her. And he cannot say, "Behold, the ketubah was not given to be collected during the lifetime" (Ketubot 81a) "and I stand in the place of the husband, for I was expecting to marry her" (Rashi), "and since I did not marry her, I will not give her the ketubah." For what is her sin? Behold, we do not allow him to perform yibbum with her, and even though we do not compel him to perform chalitzah, nevertheless, by what should she lose her ketubah?

The early authorities enacted enactments regarding the division of the deceased's inheritance between the one who performs chalitzah and the woman who receives chalitzah. Even though according to the law, when he performs chalitzah he takes nothing, nevertheless, since in our lands they do not permit performing yibbum, the yavam can say: "It is my desire to perform yibbum and merit the property of my brother, and if they do not permit me to perform yibbum, why should I lose out on the property?" And even though this is not a valid claim according to the law, nevertheless the early authorities enacted certain enactments in this matter, as will be explained, so that he will agree to perform chalitzah and she will not be anchored, since they do not compel him to perform chalitzah.

And this is the wording of our teacher, the Rema, in section 4: And all this is according to the law, but the communities enacted an enactment that if the yavam and the yevamah agree to chalitzah, they shall divide all the property he left behind, even if half does not reach the amount of her ketubah, and they deduct from her portion everything she squandered during her husband's lifetime, and she must swear unless they reached a compromise without an oath. And what he gave as a gift of a shekhiv mera is not deducted from her portion at all. And that half which reaches the portion of the husband's heirs is taken by the one who performs chalitzah, and the father and the other brothers have no portion in it, and even if they seized it, it is removed from their hands, for the essence of the enactment was so that they would agree to chalitzah, and therefore the one who performs chalitzah is the primary party in this. And even if the other brothers want to divide with the eldest of the brothers and say that they want to perform chalitzah, they are not listened to if the eldest of the brothers wants to perform chalitzah. And all this is when half of the property does not reach the amount of her ketubah, for certainly she does not take more than the amount of her ketubah. And there is another opinion regarding the matter of the enactment of the communities; therefore, it is customary to compromise between them, and even if she has a deed of chalitzah from the brothers, she must compromise with them regarding money, unless they explicitly specified to perform chalitzah for her for free. Thus far his words.

And behold, if there is in the assets of the deceased only double the amount of her ketubah and her nichsei tzon barzel, and certainly if there is less than this, it is implied from his words that she divides with the one who performs chalitzah. And when there is much more, she does not take more than her ketubah and her nichsei tzon barzel. But regarding the remainder of the assets, it was not explained if the one who performs chalitzah takes all of them or if he divides with the brothers. And from the plain sense of his words, it is implied that he takes all the assets, for if not so, he should have explained it. However, several of the great authorities wrote that they only divide between them the measure of her ketubah and her nichsei tzon barzel, but as for the rest of the assets, if there is a remainder, all the brothers divide it among themselves, and there is no advantage for the one who performs chalitzah over the rest of the brothers (see Beit Shmuel, subsection 10). And the Maharshal, of blessed memory, in Yam Shel Shlomo, chapter HaCholetz, siman 18, elaborated on this matter extensively; see there. However, in our lands and in our times, we have never heard that they conduct themselves according to these regulations, but rather they compromise according to the ability. Therefore, I did not see fit to elaborate on this, except for the essence of the matter, which is that the beit din is obligated to endeavor that the yavam should release her with chalitzah.