Siman 167

Our Sages, of blessed memory, received a tradition that a minor male of nine years and one day is fit for intercourse, and a minor female of three years and one day (Niddah 44b, 45a). And with less than this measure, it does not have the status of intercourse at all. It is a known matter that a minor male has no power of acquisition, and if he betrothed a woman before he became thirteen years and one day old, they are not kiddushin. Therefore, also regarding yibum from the Torah, a minor male is not a subject for yibum, for he must acquire her as a wife and a minor male is not a subject for acquisition. Nevertheless, midrabbanan, since he is at least fit for intercourse, he acquires her midrabbanan; for even though there is no acquisition for a minor male, she is already standing as acquired (Rashi ibid.) because she is bound to him. Therefore, the Sages were stringent in this. Yet this is not a complete acquisition such that it would be in his power to divorce her with a get, for a minor male is not a subject for a get, and he does not give a get until he reaches adulthood. And thus our Sages, of blessed memory, said there: They treated the intercourse of a nine-year-old like a maamar in an adult, in that she still requires chalitzah for her bond and also a get for his intercourse, just as with a maamar.

But when she is a minor, we learned in a Mishnah: A girl three years and one day old who is fit for intercourse, if a yavam has intercourse with her and he is an adult, he has acquired her completely from the Torah. And if another has intercourse with her, he is liable for her as a married woman from the Torah. And we do not say that he only acquires her rabbinically like a maamar with an adult, but rather her acquisition is from the Torah (Tosafot Kiddushin 10a, s.v. ve-chayavin, see there). And in this she is not similar to him, because we do not require her intent at all, for the yavam may have intercourse with her against her will. And just as was explained in the previous siman, that if he had intercourse with her while she was sleeping he acquired her, but if he had intercourse while he was sleeping he did not acquire her, so too it is regarding his minority: this is not yibbum from the Torah. But she in her minority is subject to yibbum from the Torah when she is fit for intercourse, for when she is not fit for intercourse she is not subject to yibbum even rabbinically, as this does not have the status of intercourse at all.

And this applies to yibbum, but regarding chalitzah we require that both of them be gedolim and that they bring two hairs after they have reached the years of adulthood, for hairs from before then are not a sign. And they require an examination [to see] if they brought signs, and we do not rely on the presumption of years. And the reason there is a difference regarding the woman between chalitzah and yibbum is because "man" is written in the passage, "And if the man does not desire," a man and not a katan. And only regarding yibbum, where it is written "her yavam shall come upon her," and there is no command upon her, we do not require her da'at. But regarding chalitzah, we equate the woman to the man (105b); that is to say, since it is written "and his yevamah shall go up to the gate," that she must perform the act of chalitzah, the spitting, and the reading, it follows that we equate her to the man, that she also must be a possessor of da'at, and that means a gedolah (it appears to me that this is the intent of Rashi there, for if not so, let us say this regarding yibbum as well; and examine this carefully):

Therefore, a minor does not perform chalitzah until he is thirteen years and one day old, at which time they shall examine him and find that he has produced two hairs. However, if he had two hairs before he reached majority, he is not considered an adult by means of them unless he produced two other hairs after he reached majority. Nevertheless, if they find two hairs on him after he reached majority, we do not concern ourselves that perhaps they were there previously. Similarly, she does not perform chalitzah until she is twelve years and one day old, and they examined her afterward and found that she produced two hairs, just as with the yavam. And in the Yerushalmi (chapter 12) it is implied that according to the Torah, even in chalitzah it is valid when she is a minor, and only by rabbinic decree do we require her to be an adult, see there (see Tosafot ibid.), but in our Shas it is not so. Therefore, if they performed chalitzah during minority, it is nothing. And it is not similar to the intercourse of a minor, which they treated like a maamar, for since they are destined to live as husband and wife, there is therefore substance to this, which is not the case with chalitzah. And even regarding intercourse, this is specifically regarding yibum because she is bound before him, and therefore they treated it like a maamar, and he likewise acquires the property of his brother (Rashi) since the property will come into his hand when he grows up and has intercourse with her, and it is like his own. But the intercourse of a minor in general is nothing; therefore, a minor who married a woman and died, she is exempt from chalitzah and from yibum, for his actions are nothing.

A nine-year-old and one day old boy who has relations with his yevama cannot release her with a get, for he does not have the power to give a get until he reaches adulthood and has relations with her, and then he has the power to release her with a get. But if he even reached adulthood, only that he did not have relations with her since reaching adulthood, she is not released with a get alone, but rather requires a get and chalitzah: a get for his relations and chalitzah for her zika, for he has not yet removed her zika even though he reached adulthood, since he did not perform an act with her since reaching adulthood. And so too, if he had relations with her when he was a minor and died when he was a minor, or even died after he reached adulthood but did not have relations with her since reaching adulthood, and there are other brothers, she performs chalitzah and does not perform yibbum; for chalitzah requires that her zika has not yet been removed, as I have written, and to perform yibbum is forbidden, for since the rabbis treated his relations like a maamar, it is as if she has the zika of two deceased men upon her, for the first zika has not yet been removed from her, as I have written, and the second zika is from the relations of the minor since they treated it like a maamar, and in a maamar this is the law, as will be explained in siman 174. Therefore, if this minor married another woman after reaching adulthood, and upon this yevama he did not have relations since reaching adulthood, it is necessary that when he dies, the brother will be obligated to perform chalitzah for both of them. For the first one, he is obligated to perform chalitzah because the zika of the first is still upon her, as I have written, and automatically the second is not released by her chalitzah, according to the law of two women from one man, for they are not from one brother; for the zika of this second brother is a light zika of rabbinic origin since they treated it like a maamar, and from the Torah she still belongs to the first, and they are like two yevamot coming from two houses. Nevertheless, the second is also forbidden to perform yibbum by rabbinic decree, for if she performs yibbum and the second performs chalitzah, people will say two women from one house are permitted to perform chalitzah for one and yibbum for the second, for in the eyes of the world the first is also like the wife of the second; and this will be further explained with the help of Heaven in siman 174.

This minor yabam, when he has intercourse with his yebamah, they are permitted to be together and to have intercourse regularly until he grows up, whether she is also a minor or whether she is an adult. And so the sages taught in the Mishnah (111b): A minor yabam who has intercourse with a minor yebamah, they shall grow up with one another; if he has intercourse with an adult yebamah, she shall raise him. That is to say, he is permitted to have intercourse with her regularly and she shall raise him until he grows up, and then it will be permitted to release her with a get and not before, as we explained. And the Tanna teaches us that we do not say that since a minor is not fit to father children, there is no "establishing a name for his brother" here, and he is thus performing a prohibition with each and every act of intercourse; and though he is a minor and we are not commanded to separate him, she, however, is an adult. However, in truth there is no prohibition here, for the Torah permitted her to him, for if not so, how would she be permitted to him when he grows up? For we established that any yebamah regarding whom I cannot read at the time of falling "her yabam shall come upon her," she is like the wife of a brother who has children. And should you say that in truth the Torah only permitted a yebamah when he was an adult at the time of his brother's death, it is impossible to say so, for it is written, "When brothers dwell together," meaning only that they had one dwelling in the world even for one hour, such as if he was born one hour before his death, the Torah commanded "her yabam shall come upon her" when he grows up; and consequently, of necessity, she is also permitted to him in his minority (Gemara). For the matter of "establishing a name for his brother" is nothing other than that he should come upon her by way of intercourse in the manner of establishing a name, and not specifically that she should conceive from this intercourse, for he acquires even through ha'ara'ah, as written in the previous siman. Rather, certainly we are not concerned with the fact that they are not fit to father children in their minority. And therefore, even if she is exceedingly old when her husband dies, shall we say that the mitzvah of yibbum does not apply to her because she is not fit to conceive? For the Torah only excluded an ailonit.

The Rambam wrote in chapter 2, law 5: A yevamah who underwent yibbum and said within thirty days, "I was not had in relations," and even though he says, "I had relations," and he divorced her, we compel him to perform chalitzah since he preceded and divorced her with a get. And if he has not yet divorced her, we compel him to have relations or perform chalitzah and release her with a get. If he divorced her after thirty days and she says, "I was not had in relations," we request of him that he perform chalitzah for her, and if he admitted that he did not have relations, we compel him to perform chalitzah. If she says, "I was had in relations," and he says, "I did not have relations," she does not require chalitzah, for he is not believed to forbid her to every other man after he has taken her in. Thus far his words.

The explanation of his words is that any yevamah who was taken in yibbum, whom he brought into his house and secluded himself with her in the manner of all the world, is under the presumption of having had relations with him, for it is a strong presumption. Therefore, when the matter affects others, such as if he divorced her and she says "I had relations" and he comes to forbid her with the claim that he has not yet had relations with her, we do not heed his words even within thirty days, for as soon as he secluded himself with her, she is under the presumption of having had relations. And all the more so according to the one who holds that witnesses are required for the act of relations in yibbum and he designated witnesses for his seclusion with her, she is under the presumption of having had relations. Therefore, if two wives remained from the deceased and one was taken in yibbum and her rival-wife was permitted to marry, and when she comes to marry she says "I have not yet had relations" and he also says so, we do not heed their words. And so it is explained in the Gemara (112a) that there is a presumption that anyone who takes a wife has relations immediately (Rashi). Therefore, even within thirty days the rival-wife may marry. The Rambam did not need to explain this, for by that which he wrote that he is not believed to forbid her, it follows automatically that they are not believed to forbid the rival-wife, and it is a fortiori as is understood.

However, regarding matters that concern them alone, and she has rendered herself a forbidden object with the claim that she has not yet been cohabited with, a person is believed regarding himself to remove a matter from its status of presumption even for leniency if the matter is solely in his hand; for it is for this reason that a person is believed regarding shechitah and regarding other matters, and all the more so is he believed regarding himself for a prohibition. Therefore, within thirty days, they compel him to cohabit or to perform chalitzah. And even if he performs chalitzah, he will be required to give a get since he said that he cohabited. And even if both of them admit that he did not cohabit, he must give a get because of the presumption (the Maggid Mishneh). And even though a person is believed to remove a matter from its status of presumption in that which is in his hand even for leniency as I have written, nevertheless, in this matter one may not rely upon leniency in a matter where his inclination overpowers him and it is permitted and a matter of a mitzvah. Therefore, she requires a get even if he did not betroth her with a maamar yevamin (see Be'er Sheva subsection 5).

And this is specifically within thirty days, but after thirty days we do not compel him to perform chalitzah; rather, we request it of him because she has made herself a forbidden entity. For in this matter it is not applicable to say that a person is believed regarding himself, as this is against the human presumption that one would restrain himself for more than thirty days. Therefore, he is believed that he had relations, and she is not believed; yet, despite all this, she has indeed made herself a forbidden entity. Therefore, we request of him that he perform chalitzah for her if he gave a get, and if he did not give one, that he should either have relations with her or perform chalitzah. And it is obvious that he must give a get when he performs chalitzah, for he certainly had relations with her, and this is an a fortiori argument from within thirty days as I have written. And if he also admits that he did not have relations, we compel him, and a get is also required as I have written.

And if he gave her a get before he took her in, she is believed even after thirty days to say that he did not have relations with her, and they compel him to perform chalitzah, for since he gave her a get for her zikah, she became forbidden to him, and it is possible that he did not want to have relations with her in a state of prohibition (the Maggid Mishneh). And according to this, she is also believed against the tzarah. And also, if she says "I had relations" and he says "I did not have relations," she is forbidden to marry, for there is no presumption of being taken in here; since it was forbidden to take her in, we say that it is possible he did not have relations with her. And know that regarding what we said that she requires a get, it is simple that even though he wrote her a get beforehand, she requires another get if they merely secluded themselves after the get, for it is a near certainty that he had relations with her. And even if he gave her a get before he took her in, such that she became forbidden to him as I have written, nevertheless, we do not say as a leniency that he did not have relations with her, and it is near certain that he had relations with her, and she requires another get for his bi'ah. And so it is implied in the Gemara there (according to the resolution of Rava Ashi).

And all of this is according to the method of the Rambam, but the method of the Tosafot, the Rosh, and the Tur is that within thirty days we do not follow any matter toward leniency because of the presumption of her entry, and even against her co-wife she is believed to say that he did not have relations with her and she is forbidden to marry, and even if he says that he had relations with her. And likewise, if she says "I had relations" and he says "I did not have relations," she is forbidden to marry, for all thirty days a person restrains himself and it is possible that he did not have relations. And even though certainly every woman who has entered the home is under the presumption of having had relations, it can be said that a yevama is different because they are ashamed of one another. And this reasoning is found in the Gemara there, and the Rambam would hold that this reasoning is only for themselves and not for others, see there, for indeed we find in another place in the Shas (Pesachim 72b) that we do not say the reasoning of being ashamed of his yevama such that he would not have relations with her, and on the contrary, he should have relations with her without asking if she is near her menstrual period, see there.

And behold, it appears that even according to this opinion, we only say this as a stringency, but we do not say this as a leniency—that he did not have relations with her—even if both of them say that he did not have relations with her, and she would require a get in addition to the chalitzah. And so it is explicitly proven from the words of the Tosafot there, that we only say this as a stringency; see there. But from the wording of the Tur it does not seem so, for he wrote, and this is his wording: A yevamah who was taken in yibbum and he comes to divorce her and said that he still has not had relations and she requires chalitzah, and she says that he did have relations and a get is sufficient for her, within thirty days he is believed and she requires chalitzah; and since she says that he had relations and requires a get according to her words, chalitzah is not sufficient for her, and we request of him that he give a get, but we do not compel him, etc. Thus far his words. And from the fact that he wrote that we do not compel him to give a get, one learns from this that he is believed even as a leniency. And also from the fact that he wrote "and since she says that he had relations," it is explicitly proven that if she also were to say that he did not have relations, she would not require a get at all and chalitzah would suffice. And I do not know from where he has this, for from Tosafot it is explicitly proven otherwise, as I wrote. And also from the Rosh it does not seem so, for he brought from the Yerushalmi that to forbid the co-wife they are not believed even when both say she did not have relations, and even within thirty days. And even though the Rosh concludes that when both admit it the co-wife is forbidden, see there, this is all as a stringency. And also in this the poskim disagree, as the Maggid Mishneh wrote, and so ruled our teacher, the Beit Yosef, in section 6, that the co-wife is always permitted even if both admit it and even within thirty days, as I wrote. And in any case, how is it possible to depend on a leniency so as not to require her to have a get? And it requires further study. (The opinion of the Rosh regarding a co-wife is that she is not believed if he says "I had relations," see there; but the Tosafot do not hold so, as I wrote, see there and examine carefully).