Siman 166

It has already been explained that the Rambam, of blessed memory, holds that the mitzvah of yibum precedes chalitzah even in this time. When the yavam desires to perform yibum and she does not consent, and she does not provide a good pretext as to why she does not want to undergo yibum, she is considered like a moredet. This is the wording of the Rambam in chapter 2, law 10: A yevamah fit for yibum who did not want to undergo yibum, her law is like the law of a moredet against her husband, and they compel her yavam to perform chalitzah for her, and she leaves without a ketubah. Thus far his words. And he follows his reasoning in chapter 14 of Ishut, that also regarding a moredet against her husband, they compel him to divorce her and she leaves without a ketubah. However, many disagree with him, and here too, they do not compel him to perform chalitzah for her (Maggid Mishneh).

He further wrote that if his brother left many wives, whichever of them the yavam claimed for yibum and she did not want is the moredet, and he performs chalitzah for her and she leaves without a ketubah; and her other co-wives who were not claimed take their ketubah like other widows. Thus far his words. And his reasoning is simple: since the Torah gave him permission to perform yibum with whichever of them he desires, she is the moredet (ibid.). And it is simple that if she did not want and he claimed the other for yibum, she is obligated to undergo yibum, and if it is not her will to undergo yibum, we consider her also as a moredet. However, it is possible to say that for two it is impossible to judge them as a moredet, since he only has permission for one, and the choice is in his hand to turn from one to the second, and then the first is not like a moredet; and so it appears primary.

He further wrote: If there were many brothers-in-law and the eldest demanded her for yibum, but she does not want him and wants his brother, we do not listen to her, for the mitzvah is for the eldest to perform yibum. If the eldest said, "I do not want to perform yibum nor to perform chalitzah; behold the brothers are before you," and one of the brothers demanded her for yibum, but she does not want him and wanted another, and he wants her, she is not a moredet. Since the eldest, for whom the mitzvah applies, has removed himself, they are all equal; and since she wants one of them and he wants her, she has not rebelled. Furthermore, even if one of them was in another province and she said, "Behold, I am waiting for him until he comes and performs yibum with me, but this one I do not want," she is not a moredet. And we say to this one who is not the eldest who demands her: If you wish to perform chalitzah for her and give her the ketubah, perform chalitzah; and if not, behold she desired to remain until your brother comes, since you have no right of precedence over him. If this one upon whom she depended came and did not want her, we return to the one who demanded her for yibum whom she does not want, and we say to her: There is no one here who wants to perform yibum except this one, and the mitzvah of yibum takes precedence; either be taken in yibum by him or leave without a ketubah, according to the law of any moredet. Thus far his words. And he follows his reasoning as I have written.

All these laws are not explained in the Gemara, and the Rambam wrote them from his own reasoning. He follows his own approach there, that whenever the eldest of the brothers has departed, there is no longer a mitzvah for the next eldest to precede, which is unlike what was written in siman 161. However, the Rashba and the Ra'avad disagreed with him, [holding] that the next eldest precedes. Just as we adjudicate the law of a moredet regarding her against the eldest of the brothers, so too if the firstborn has departed, the second enters in his place and we adjudicate the law of a moredet against him; and if the second has departed, we adjudicate regarding the third, and so too all of them. But the Rambam does not hold so, and this depends on the versions in the Gemara (see Maggid Mishneh). Likewise, they disagree with him on the essence of this law regarding compelling to perform chalitzah, for even in the law of "he is loathsome to me," most of the poskim disagree with him, as was written in siman 77. And all these laws do not apply to one who holds that the mitzvah of chalitzah precedes (and therefore they did not mention any of these laws in the Shulchan Aruch, see there).

The mitzvah of yibum and chalitzah is as follows: if the yavam is in one place and she is in another place, the yevamah is obligated to go after the yavam. And even if in the place of the yevamah there is a great beit din and in the place of the yavam there is a small beit din, she is obligated to go after him, as it is said: "And the elders of his city shall call him," and not the elders of her city (Sanhedrin 31b). And specifically to the place where he dwells permanently is she obligated to go, but if he went from his place to another place for some business and did not uproot his permanent dwelling, she is not obligated to go after him there, for they are not called "the elders of his city" (Nimukei Yosef ibid.). And so it is implied in the Yerushalmi, and he is forced to come to her place (Beit Shmuel, subsection 1). And likewise, if there is no beit din in his place, he is obligated to go to her place when there is a beit din there, for in his place there are no "elders of his city," as "elders" means a beit din. And if there is no beit din in her place either, they both go to a place where there is a beit din, and she goes to the place that is closer to him; since by law she must go after him, he also has the right regarding the proximity of the place (it appears to me). And likewise, if he dwells among the Cutheans, his status is like a place where there is no beit din, and he cannot say to her, "Bring me a beit din to my place," for a beit din does not have to go after him; rather, he must go to the place of assembly and exempt his yevamah. And it seems simple that this is specifically when they both did not agree upon yibum, or in a place where they do not perform yibum; but in a place where they perform yibum and the will of both of them is for yibum, a beit din is not necessary; rather, he betroths her with maamar before witnesses and has relations with her, as will be explained.

When they come before the beit din in a place where they practice yibbum, they give them advice that is appropriate for both of them, whether to perform yibbum or to perform chalitzah. For example, if he was old and she was young, or vice versa, or if he had a wife, and similar cases, they give them advice that it is better that he perform chalitzah for her. And regarding this it is said, "Then the elders of his city shall call him and speak to him," meaning that they should speak to him words that are heard for their benefit (44a). However, they do not coerce him when he does not want to listen to the advice, and if he wants to perform yibbum, he performs yibbum, since the Torah gave him permission, unless he is among those whom they coerce to divorce (Responsa of the Rosh, klal 52, siman 7).

The mitzvah of yibum is only when he has relations with her, and according to the Torah there is no need to betroth her with kiddushin; rather, the sages enacted for the sake of proper conduct that he should not have relations with her until he first betroths her in the presence of two witnesses with money or with a document, and this is called in the Gemara "maamar." And this is just as the sages enacted not to betroth through relations, even though according to the Torah it is permitted to betroth through relations; so too they enacted in this case that he should not have relations with her without the kiddushin of maamar yevama. And if he had relations without maamar, he has acquired her, but he is liable for having transgressed a rabbinic decree (52a). And what is the kiddushin of maamar? He gives her money or the equivalent of money in the presence of witnesses and says to her: "Behold, you are betrothed to me with the maamar of levirates" (Rashi ibid. s.v. natan).

Rashi, of blessed memory, wrote (ibid.) that maamar is not full kiddushin like Torah kiddushin, for kiddushin does not take effect with a brother's wife, and the Torah did not permit her to become like a foreign woman except through the order of the mitzvah, and the Merciful One wrote only bi'ah regarding her. Thus far his words. And the Bartenura wrote similarly at the beginning of chapter 2, and this is his wording: And regarding a yevamah, kiddushin of money are not full kiddushin but are only from the words of the scribes, for the yevamah is not acquired by the yavam to be like a full wife until he has bi'ah with her. Thus far his words. And this is what our sages, of blessed memory, expounded (54a): "And he shall take her as a wife"—bi'ah completes it for her, but money and a document do not complete it for her; see there. However, from this there is no proof, as one could say that this is regarding the mitzvah, that the yibbum has not been fulfilled, but if he betrothed her, one could say that even from the Torah her status is like a wife, according to the one who holds that kiddushin takes effect with a yevamah, as I wrote in siman 159; and why should the yavam be less than another? It would have been possible to say this, but from the explanation of Rashi and the Bartenura it is clarified that it is a decree of the Torah that for the yavam, the yevamah shall not have the status of a wife except through bi'ah. And according to this, even if he said to her plainly, "Behold you are betrothed to me with this," and did not say to her "with the maamar of yevamin," she is also not like a wife from the Torah. And even though if he betrothed her after chalitzah with full kiddushin she is a wife from the Torah, as is explained in the Gemara (52b) and will be explained in siman 170, this is because through chalitzah she was released from the zikat yevamin; but as long as the zikat yevamin is upon her, kiddushin does not take effect with her from the Torah for the yavam. And so it is clarified from the words of the Tosafot and the Nimukei Yosef at the beginning of the chapter "Rabban Gamliel"; see there.

It is a simple matter that the biat yevama requires witnesses of seclusion just as in kiddushin of bi'ah. And even though the Rambam and the poskim did not mention this, it appears that due to the great simplicity of the law, they did not find it necessary to mention it. And so wrote explicitly one of the Rishonim (Shiltei HaGibborim on Perek Ba Shul, in the name of the Riaz). And so it is explained from the words of the Tosafot (Kiddushin 12b, s.v. "mishum"). According to this, since it has been explained that all types of kiddushin do not acquire a yevama according to the Torah, it follows that even though he performed kiddushin with her, nevertheless for bi'ah he requires witnesses of seclusion, since according to the Torah he has not yet acquired her. And so wrote the great Acharonim (Beit Shmuel, subsection 2, and the Gra, subsection 9). And one of the greats expressed doubt regarding the essence of this law, whether witnesses are required at all for the biat yevama, for perhaps since the Torah decreed "her yavam shall come upon her" in any case—that even if they were acting inadvertently or were coerced, or she was asleep, he acquires her, as will be explained—if so, perhaps witnesses are also not required (Mishneh LaMelech, chapter 2). And the Maharshal in Yam Shel Shlomo, Perek Ba Shul, siman 25, ruled simply that witnesses are not required; see there.

And in truth, one must wonder about this, for behold we learned in the Mishnah: One who has relations with his yevamah, whether unintentionally, or intentionally, or under duress, etc., has acquired her, as will be explained in this siman. And "unintentionally" is when he did not know that she is his yevamah, and "intentionally" is for the sake of zenut. And if it should enter your mind that witnesses are required, how could you find such a case? For behold, one must designate witnesses for the seclusion as in kiddushin of intercourse, as was explained in siman 33, and he must know that there are witnesses, as written in siman 42. And if he did not know at all that this is his yevamah, behold there are no witnesses here; and likewise in "intentionally" for the sake of zenut, for if he designated witnesses, behold there is no zenut here. And furthermore, for it will be explained that when he only intended for the sake of intercourse, even for the sake of intercourse with an animal, and he had relations with her, he has acquired her, and witnesses are not relevant to this, for behold he did not intend to have relations with her at all. And furthermore, for behold in kiddushin, just as he must know of the witnesses, so too must she, and if she did not know, the kiddushin does not take effect, as written in siman 42. And behold regarding a yevamah, it is simple that she does not need witnesses, for behold it will be explained that if he had relations with her even while she was sleeping, he has acquired her, and when she is sleeping, behold she knows nothing. Rather, one must say that since the Torah granted her to him, she does not need witnesses, for behold he may have relations with her against her will; if so, let us say also that he likewise does not need witnesses, since the Torah obligated him to have relations with her. And this is not a matter of wonder, for behold even regarding a get, where witnesses are certainly required, as there is no matter of ervah with fewer than two, nevertheless the Rashba, of blessed memory, wrote in Kiddushin (65b) that if he wrote it in his own handwriting, witnesses are not required, since it is written, "and he shall write for her a scroll of severance," his writing is like witnesses; see there. And here too, since it is written, "her yavam shall come upon her," nothing else is required.

Furthermore, we have already explained in Choshen Mishpat at the beginning of siman 241, based on the words of the Gemara there, that regarding all forbidden relations where we require witnesses, it is because we derive from monetary law in cases of denial that witnesses are necessary because the matter affects others. Therefore, also regarding kiddushin, even though both of them consent, nevertheless, since it affects others—as through the kiddushin she becomes forbidden to everyone—it is impossible without witnesses. And we further explained there that in one specific detail a get is similar to monetary law: just as in monetary law when both of them consent there is no need for witnesses, for who can hinder them regarding their property, so too regarding a get, since her consent is not required at all and it is within his power to do as he wishes, therefore writing in his own hand is effective according to the Torah even without witnesses; see there. If so, regarding yibum as well, behold, there is no liability to others in this yibum, for even prior to yibum, when she is bound, she is forbidden to everyone. And similarly, her consent is not required at all; why should we require witnesses? Therefore, it is not mentioned in the Gemara or the poskim that yibum requires witnesses, and on the contrary, the opposite is proven. This requires great study.

And know that from the words of our teacher, the Rema, in section 2, who wrote: "And if he had relations with her without a maamar, he has acquired her, and specifically if he had relations with her in the presence of witnesses," thus far his words. It is clear from his words that if there was no maamar, witnesses are required for the yibbum, but if there was a maamar, witnesses are not required for the relations. The Acharonim wondered about him, for certainly even with a maamar witnesses are required for the relations, since the maamar is only of rabbinic origin (Beit Shmuel and the Gra there). And it appears to me that his opinion is this: that for the essence of the relations of a yavam, witnesses are not required, as has been written. However, since regarding a yevamah the term "taking" is written, as in the kiddushin of a woman where we derive kiddushin of money from the term "taking," and regarding a yevamah it is also written "and he shall take her to him for a wife and perform yibbum with her," it is possible that from this the sages based the maamar of yevamin. Therefore, granted that for the relations witnesses are not required, nevertheless, for the primary taking of her to him as a wife, it is proper that there be witnesses or that it be in public, which is like witnesses (Beit Shmuel siman 26, subsection 1). Therefore, when he performed maamar before witnesses, he no longer requires witnesses for the relations. But when he did not perform maamar, he requires witnesses for the relations—and not specifically for the essence of the relations, but rather for his intent for yibbum and to take her to him as a wife. Therefore, even if the essence of the relations was unintentional or intentional, nevertheless, he can designate witnesses beforehand that his intent is to perform yibbum with her, and the relations can be afterward in any manner (so it appears to me).

The maamar can be performed either with money or with a document; so it appears according to the plain meaning of the sugya (52a), and so wrote the Shulchan Aruch. However, the Rambam and the Tur mentioned only money, because they hold that according to the conclusion of the sugya, we only have maamar with money (the Gra, subsection 5, and the Beit Shmuel wondered in vain), and also in the Tosefta and Yerushalmi only maamar with money was mentioned, see there (ibid.). And this is the order: he betroths her with money before two witnesses and says to her, "Behold, you are betrothed to me with the maamar of levirate marriage with this perutah according to the law of Moses and Israel," and he enters with her into the chuppah after the kiddushin like any other woman, and intends to establish a name for his brother (Darkhei Moshe). And he can perform the maamar through a messenger, just as with other kiddushin.

The Rambam wrote in chapter 2 that just as one sanctifies his yevamah, so too he recites the birkat nissuin in the presence of ten and writes a ketubah according to the law of anyone who marries a woman. Thus far his words. He did not mention birkat erusin, and similarly in the Shulchan Aruch this was not mentioned. However, from the Tur it is explained that birkat erusin is required, and so wrote the Yam Shel Shlomo (chapter 5, section 2), and this is more logical since the sages treated her like any other woman. The text of the ketubah is not like the text of ordinary ketubot, as will be explained. If he said to her, "Behold, you are sanctified to me through the kiddushin of my brother," it is nothing, for she is not sanctified to him through the kiddushin of his brother. There was an incident involving a yavam who, when he sanctified her with maamar, said to her at the time he gave her the perutah, "Behold, you are sanctified to me with this and with the kiddushin of my brother." The Rivash, of blessed memory, ruled that she is sanctified, for it is like a loan and a perutah; even though with a loan alone she is not sanctified, nevertheless, with a loan and a perutah she is sanctified, and here too it is similar.

Even though he may cohabit with her against her will, nevertheless, the maamar cannot be performed except with her consent, as with all kiddushin. And thus the sages taught (19b): One who performs maamar with his yevamah without her consent has not acquired her; for since the sages ordained this, they did not wish to ordain that it be against her will, and he does not acquire her such that she would require a get for his maamar, and halitzah is sufficient (see Rashi, Kiddushin 44a, s.v. "Rabbi"). And since it is only with her consent, therefore a ketannah who was widowed from erusin, while her father's authority is still over her, he may perform maamar with her with her father's consent. But if she was widowed from nisuin, he must wait until she reaches majority for the sake of the maamar, because a ketannah lacks the legal capacity to receive kiddushin. And there is room for doubt: since the cohabitation can take place during her minority, as will be explained in siman 167, perhaps he may perform the maamar for her through her mother and brothers as with general kiddushin; this requires further study, and the poskim did not speak of this at all.

If a son is born to her from him, he does not need to name him after his deceased brother, for that which is written, "he shall succeed in the name of his brother," refers to the inheritance and refers to the yavam, and not to the one born, as I wrote in siman 163; see there. And the ketubah that they write for her is not upon the property of the yavam, for he has no obligation to give her a ketubah, as they have acquired a wife for him from Heaven and it was not by his will that he chose her, and his property is not encumbered to her even when he performed maamar (Beit Shmuel), but rather her ketubah is upon the property of her first husband. And these too belong to the yavam, for he takes his inheritance as I wrote there, except that from these properties, certainly that which reaches the amount of her ketubah is not entirely his and they are encumbered to her ketubah like any wife, and if she dies in his lifetime, he shall inherit from her. However, if no property remained from the first husband, the rabbis ordained for her a ketubah from the yavam like any man for his wife, so that she should not be light in his eyes to divorce her (Gemara 52a). And one should not ask that if so, what is this that they said that she has no ketubah from him when there is property belonging to the first—it is obvious, for would she take two ketubot? For it can be said that indeed they could have said so, like a woman who was widowed and married another, who has a ketubah from this one and from that one, but they do not say so because of the reason that has been explained. And there are other resolutions to this, and it will be explained at the beginning of siman 168 (see Tosafot 39a, s.v. "isha").

The ketubah of a yevamah must be ruled with lines because of the verses written in it, for this is the text of the ketubah: On such-and-such day, on such-and-such of such-and-such month, in the year such-and-such from the creation of the world according to the count we use here in such-and-such city, how so-and-so son of so-and-so came before us and thus said to us: My brother from my father died and left life to the sages and all of Israel, and a son or daughter who inherits and bestows and establishes a name in Israel he did not leave, and he left this woman whose name is so-and-so who was married to him, and it is fitting for me from the Torah to perform yibbum as it is written in the book of the Torah of Moses: "her husband's brother shall go in unto her," and I will work and honor and feed and provide for you according to the laws of Jewish men who work and honor and feed and provide for their wives in truth, and I give to you two hundred silver zuz which are due to you as was written in the ketubah that your first husband wrote for you, and upon me is your food, your clothing, and your needs, and to come unto you according to the way of all the earth. And this so-and-so desired and was taken in yibbum to so-and-so her yavam in order to establish his name in Israel as it is written: "And it shall be, that the firstborn whom she beareth shall succeed in the name of his brother which is dead." And this is the dowry she brought to him from her father's house, whether in silver or in gold, etc. And he desired and added for her from his own another hundred zekukim, etc. And so-and-so took upon himself the responsibility of this ketubah document, this dowry, and this addition, and thus said so-and-so: Responsibility, etc. And everything is valid and established as in all ketubot. And all property of tzon barzel that she brought in and all property of nichsei melug shall be maintained for her with the yavam as with the husband, and after he has taken her, he consumes the usufruct and is obligated in her ransom (Beit Shmuel, subsection 4).

The sages taught in the Mishnah (53b): One who has intercourse with his yevamah, whether unintentionally or intentionally, whether under duress or willingly, even if he is unintentional and she is intentional, he is intentional and she is unintentional, he is under duress and she is not under duress, she is under duress and he is not under duress, whether one merely begins the act or one completes it, he has acquired her, and it did not distinguish between one act of intercourse and another. Thus far its words. And even according to the poskim who rule like Abba Shaul, that one who does not act for the sake of the mitzvah is like one who encounters an ervah, this is on a rabbinic level, but according to the Torah there is no distinction (Nimukei Yosef). And even if we say that it is also forbidden by the Torah, this does not affect the acquisition; he has committed a transgression, but he acquires her, just as in the case of one who has intercourse with his yevamah while she is a niddah, and we have already written regarding this in the previous siman (and so wrote the Beit Shmuel in subsection 5).

It is called "unintentional" when he did not know that she was his yevamah, thinking she was his wife or another woman (Rashi). It is called "intentional" when he intended for the sake of zenut and not for the sake of the mitzvah (ibid.). It is called "under duress" when he intended for his wife and his yevamah overpowered him and he had relations with her (Gemara). And likewise if both of them were unintentional, or both of them were intentional, or both of them were under duress (ibid.), for what difference is there in this? And you find it where both of them are under duress, for example, where gentiles coerced him and attached him to his yevamah against their will when he was prepared for his wife. And why were we required to say regarding duress that he was prepared for his wife? For if not so, since there is no erection except by intent, it is not called "under duress" even though in the essence of the act he is coerced, as is explained in the Shas ibid.

The general rule of the matter is: if he only knows that he had intercourse with her, he has acquired her, even if the act was done under duress or without intent—for example, if he did not intend for intercourse with her at all and by some cause had intercourse with her, such as if he intended to have intercourse with an animal and for some reason it happened that he had intercourse with her, he has acquired her, since he intended for the sake of intercourse in general. However, when he did not intend for the sake of intercourse at all, he has not acquired her. And thus our Sages, of blessed memory, said there: If he intended to strike against a wall and struck against his yevamah, he has not acquired her; to strike against an animal and struck against his yevamah, he has acquired her, for he intended for the sake of intercourse in the world. Therefore, if he had intercourse with her while he was asleep or drunk like the drunkenness of Lot, he has not acquired her, because there is no intent here for any intercourse in the world. However, her intent we do not require at all, and therefore even if he had intercourse with her while she was asleep, he has acquired her. And so too if he fell from the roof while in a state of erection and fell upon his yevamah unintentionally, he has not acquired her, because there is no intent here for any intercourse in the world. But the fact that she did not intend is of no concern to us, for the Torah made it dependent on him and not on her. And this—that we do not require that he intend for her specifically—is because it is written, "her yavam shall come upon her," and we expound: "shall come upon her" in any manner, meaning even without intent to come upon her. However, if there is no intent for any intercourse at all, we do not read in this "shall come upon her," for "shall come upon her" implies with intent; and granted that we do not require intent for her, nevertheless, intent for intercourse we certainly require. And thus our Sages, of blessed memory, received it, and thus they expounded in the Yerushalmi there: "her yavam shall come upon her"—with his knowledge; "and take her to him as a wife"—without her knowledge, see there. Meaning, that one verse is superfluous, and from this we expound that even without her knowledge he has acquired her; however, from the phrasing "shall come upon her," it implies with his knowledge, and therefore we require the knowledge of intercourse, but her knowledge we do not require (so it appears to me).

Tosafot wrote there that a yevamah is only acquired if he comes upon her with a live organ in a state of erection, but with a flaccid organ it is not an acquisition. And it is not only necessary according to the one who holds that one who copulates while flaccid regarding forbidden relations is exempt, but even according to the one who holds that he is liable (Shevuot 18a), nevertheless, regarding yibum we require a cohabitation in the manner of establishing a name, see there. And even though we do not require the emission of seed, and similarly we do not require the completion of the cohabitation, as it was taught in the Mishnah that even with ha'araah alone he acquires, nevertheless, this is all in the manner of establishing a name, except that he did not complete it entirely; but with a flaccid organ, this is not in the manner of establishing a name. And this is what the Tur and the Shulchan Aruch wrote in section 8, and this is his wording: And similarly, if they attached him to his yevamah without an erection but rather with a flaccid organ, he has not acquired. Thus far his words. And their intention is not specifically that when others attached him he has not acquired, but if he himself came upon her with a flaccid organ he has acquired, for there is no difference in this at all; rather, they took the common case (it appears to me). And know that ha'araah acquires even in a deficient cohabitation, such as inadvertently or under duress and the like, and similarly in an unnatural manner, for such is the law regarding all forbidden relations, that ha'araah is like a completed cohabitation and an unnatural manner is like a natural manner, and there is no need to elaborate on this.

The Tur wrote: And this fact, that an accidental act of intercourse effects acquisition of his yevamah in any manner, applies specifically when she fell to him from marriage; however, if she fell to him from betrothal, he does not effect acquisition through accidental intercourse except to inherit his brother's property, to release her with a get, and to exempt her co-wife. But he does not effect acquisition to inherit her, to become impure for her, or to nullify her vows. However, through ha'ara'ah, he effects acquisition for all matters even if she fell to him from betrothal. Thus far his words. And similarly, she may not eat terumah by means of a deficient act of intercourse from betrothal (Gemara 56a). And the explanation of these matters is as follows: since generally a deficient act of intercourse, such as an accidental one and the like, does not effect acquisition, and it is only because the verse included more regarding a yevamah as we have written, it stands to reason that it was only included for what is explicitly stated in the verse. For example, to inherit his brother's property, as it is written, "shall succeed in the name of his dead brother," and to exempt her from yibbum, for this is the primary matter, and she requires a get should he divorce her, and to exempt her co-wife, as it is written, "his brother's house," and we expound that he may not build two houses. But for terumah, and to inherit her, and to become impure for her, and to nullify her vows, he does not have the power through a deficient act of intercourse unless the husband also had the power, for then "he shall succeed in the name of his brother," and that is from marriage. But in betrothal, where even the husband did not merit these things, the yavam is not superior to the husband (Tosafot ibid.).

But ha'ara'ah, which in the entire Torah is considered like the completion of the act of intercourse, except regarding a shifchah charufah, effects acquisition for all matters. However, in the Yerushalmi it implies that even regarding ha'ara'ah there is a dispute (see the Beit Yosef, and they ruled according to Rav there like the latter version). Therefore, our teacher, the Beit Yosef, wrote in section 9 that some say the same applies to ha'ara'ah, see there. He wrote this based on the words of the Rosh (chapter 6, section 5) who wrote that in the Yerushalmi it implies they disagree regarding ha'ara'ah, see there. And I am astonished, for one who examines the Yerushalmi will see explicitly that, on the contrary, it is more lenient than our Talmud, for it refers to unintentional intercourse, that specifically with ha'ara'ah it does not acquire for all matters, but with the completion of the act it acquires for all matters even with unintentional intercourse and with other flawed acts of intercourse that have been explained. And it appears to me that this was also the intention of the Rosh, see there. Therefore, the Tur did not mention this (but in Tosafot 56a, starting with "le-devarim," it is explicit like the Beit Yosef, and it requires further study; and see the Gra, subsection 15).

Our teacher, the Rema, wrote: There are those who say that one who has relations with his yevamah must recite the blessing "Who has sanctified us with His commandments and commanded us regarding the act of relations with a yevamah." Thus far his words. And it is from the Tur in the name of the Ittur. And even though he already recited the blessings of erusin and nisuin, and in all marriages one fulfills the obligation with these blessings, this is because in those cases, according to the Torah, kiddushin is required. However, regarding a yevamah, these blessings have no relevance to the act of relations, which is the essence of the mitzvah according to the Torah. And even though it is stated in the Yerushalmi Berakhot (Chapter 9, Halacha 3) that for all mitzvot one recites the blessing at the time of their performance except for kiddushin through relations—and the Ran explained in the name of the Ramban in the first chapter of Pesachim that this is because it is impossible to recite the blessing while he is with her in bed due to "and He shall see no unseemly thing in you," and to recite the blessing beforehand is impossible because one only recites a blessing over a mitzvah when it is prepared before him, see there—nevertheless, he was not concerned for this, since this is not found in our Shas. Furthermore, regarding the act of relations with a yevamah, which is a great positive commandment, we are not concerned for this, and he can recite the blessing before he enters the bed with her. However, in the rest of the poskim, this law is not found.