Siman 172

The law of a yavam who is a saris, a deaf-mute, an imbecile, a minor, a tumtum, and an ayalonit. And in it are 29 seifim. The saris is not subject to yibbum or chalitzah, whether the yavam is a saris or whether the deceased was a saris. This matter is explicit in the Torah, as it is written: "to establish for his brother a name," and a saris is not capable of establishing a name. Therefore, when the yavam is a saris, he is not subject to yibbum, and since he is not fit for yibbum, he is not subject to chalitzah either. Thus our Sages, of blessed memory, received by tradition: anyone who does not come up for yibbum does not come up for chalitzah, for it is written: "And if the man does not desire to take his yevamah, then his yevamah shall go up to the gate etc." This implies that if he desired, he would perform yibbum; anyone who comes up for yibbum comes up for chalitzah, and anyone who does not come up for yibbum does not come up for chalitzah (20a). Similarly, when the deceased was a saris, his wife does not come up for yibbum, as it is written: "that his name be not blotted out from Israel," which excludes this one whose name is already blotted out (Rashi 79b). Consequently, his wives do not require chalitzah either, as I have written. Likewise, an ayalonit is not subject to yibbum since she is not capable of bearing children and is not fit for the establishment of a name; therefore, she is also not subject to chalitzah, as I have written that chalitzah is dependent upon yibbum.

And not only are they exempt from chalitzah and from yibbum, but there is even a prohibition of karet involved in yibbum when they are not fit for this, for the prohibition of a brother's wife remains upon them, which is punishable by karet. Therefore, a saris who has relations with his brother's wife does not require a get from him, and if there is another brother, she is not exempt through the relations or the chalitzah of the saris (Beit Shmuel, subsection 1). And the other brother must perform chalitzah for her; and as for performing yibbum, it appears that it is forbidden to perform yibbum with her, since the saris had disqualified relations with her, she is disqualified from yibbum. Or, perhaps since he is not subject to yibbum at all, it is like mere relations of zenut and it is not applicable that he should disqualify her from yibbum. And such is the law regarding an ayalonit, and if she has a co-wife, she may perform yibbum or chalitzah (Gemara Yevamot 12b). And similarly, when the deceased was a saris, if his brother has relations with his wife, he is liable for karet, for she is a brother's wife not in the context of a mitzvah.

And likewise, their chalitzah is of no consequence, for if a saris performed chalitzah for his brother's wife, she is not disqualified from the priesthood. And likewise, when they performed chalitzah for the wife of a saris, she is not disqualified from the priesthood. And likewise, a definite ayalonit, when she has undergone chalitzah, it is of no consequence and she is permitted to a kohen for one who has fulfilled the commandment of procreation (see in the Mishnah 61a). And this is regarding a definite saris and a definite ayalonit, but a doubtful saris or a doubtful ayalonit perform chalitzah and do not perform yibbum, and their chalitzah prohibits them to the priesthood. And it is not relevant to say that since they are not eligible for yibbum they are not eligible for chalitzah, for it is because of the doubt that they are prohibited from yibbum, and perhaps they are eligible for yibbum by law, and it is like every doubt regarding a prohibited intimacy, and therefore they are obligated in chalitzah by law.

The Sages, of blessed memory, said (79b) that there is a saris who is eligible for chalitzah, and thus the Sages taught in the Mishnah there: A human-made saris performs chalitzah and others perform chalitzah for his wife, because he had a period of fitness; a sun-saris does not perform chalitzah and others do not perform chalitzah for his wife, because he never had a period of fitness. Therefore, that which was explained regarding a saris refers to a sun-saris and not a human-made saris. And what is a sun-saris? One who was born this way from his mother's womb. A human-made saris is one who was castrated afterwards and his testicles were severed by human hands, or other parts of the organ that prevent procreation. This is the "patzua daka" mentioned in the Torah who is forbidden to enter the congregation of Israel, and his laws were explained in siman 5. Therefore the Sages said "he performs chalitzah and others perform chalitzah for his wife" and they did not say "they perform yibbum," because even though from the essence of the law of yibbum he is permitted and obligated to perform yibbum and is called "one capable of yibbum"—and therefore he is also eligible for chalitzah—nevertheless, there is another prohibition resting upon the woman, for she is not permitted to be married to him. Therefore, if this saris had relations with her, he has acquired her by the law of yibbum, but he must release her with a get because it is forbidden to remain with her. And if she is a female convert who is permitted to marry a patzua daka, he performs yibbum even ab initio and she is a wife to him. Similarly, when the deceased was a human-made saris, they perform yibbum with his wife or perform chalitzah, for his brother is permitted to her (and that which we learned "and others perform chalitzah for his wife" is mentioned incidentally to "he performs chalitzah," and examine this carefully).

It is found that the prohibition of a disqualification from the congregation that was explained in siman 5 is the opposite of the prohibition of yibbum. For regarding a disqualification from the congregation, only a saris through human intervention is prohibited and not a saris hamah who was born so, as I wrote there. However, regarding yibbum, it is the opposite: a saris through human intervention is subject to yibbum, and a saris hamah is not subject to yibbum. The reason for the matter is that regarding entering the congregation, the Torah only prohibited one upon whom an act was performed that prevents procreation, as it is written: "He that is crushed or maimed shall not enter into the congregation of Hashem," because he ruins the settlement of the world, and not one who was born so or became so by the hands of Heaven, as I wrote there, because he did not perform an act upon his body. But regarding yibbum, perforce one must say that what the Torah insisted upon—that the yavam be capable of "establishing a name"—is that from his birth he be fit for establishing a name, and not regarding what was ruined afterward. For if not so, you would never find the mitzvah of yibbum at all; for if we say that when the brother is ruined he is unfit for yibbum, then also when the deceased is ruined his wife would not be fit for yibbum based on the verse "that his name be not blotted out," as I wrote. And you have no man who, before his death, his power of procreation is not weakened due to suffering, and how would you find yibbum? Rather, certainly the Torah only insisted upon the time of his birth, and so too regarding the brother performing yibbum, we also do not concern ourselves with what was ruined afterward (this appears to be the intention of Rava ibid. who said "if so, you have no woman etc.," and see there in Rashi, and delve into this).

And one should not ask: ultimately, a human saris is forbidden from yibum due to the prohibition of being disqualified from the congregation, and if so, he is not eligible for yibum, and if so, he should also not be eligible for chalitzah. The answer to this, it appears to me, is as the Shas says (20b) regarding a widow to a Kohen Gadol, or a divorcee or a chalutzah to an ordinary Kohen, that when they fall for yibum, they perform chalitzah and do not perform yibum; for from the Torah, he is permitted to have the first cohabitation for the mitzvah of yibum, because a positive commandment comes and overrides a negative commandment, but we decree against the first cohabitation on account of the second cohabitation, see there. And so too here, regarding a human saris, he is certainly subject to yibum from the Torah, for the positive commandment of yibum comes and overrides the negative commandment of "he shall not enter who is crushed or maimed," but we decree against the first cohabitation on account of the second cohabitation, and therefore she is obligated in chalitzah.

A saris adam is one whose sinews or testicles were cut, severed, or crushed by human hands; he is called a saris adam. When he reaches thirteen years and one day, he is called an adult, and he never produces signs if the act was performed on him in his youth. Similarly, the aylonit of whom we spoke refers to when she was created so, but if she was damaged afterward—for example, if her reproductive organs were castrated or if she drank a cup of roots—she is not included in the category of aylonit and either performs chalitzah or is taken in yibbum. For just as with the yavam the Torah was not concerned with what occurred after birth, so too with the yevamah, for it is one reason and one matter.

The signs of a saris chamah were written by the Rambam in chapter 2 of Ishut, law 13, and this is his wording: And these are the signs of a saris: anyone who has no beard, and his hair is defective (soft), and his flesh is smooth (smooth like the flesh of a woman, for the way of a man's flesh is to be hairy, Rashi, ibid.), and his urine does not produce bubbles, and when he urinates he does not make an arch (that the stream does not go far when he urinates upward and an arch is not formed, Nimukei Yosef, ibid.), and his semen is thin (that it is not viscous but clear like water), and his urine does not ferment (that it does not smell when it remains in a vessel), and he bathes in the rainy season and his flesh does not produce steam, and his voice is defective and is not distinguishable between a man and a woman; and this saris is what is called a saris chamah. Thus far his words.

The signs of an aylonit he wrote there in law 6, and this is his wording: And these are the signs of an aylonit: anyone who does not have breasts, and has difficulty during intercourse (that intercourse is hard for her), and does not have a lower abdomen like women (as is found in Niddah 47b), and her voice is deep and she is not distinguishable between a man and a woman. Thus far his words. And the Rambam holds that even though in the Gemara in Yevamot there it is found in this language: Our Rabbis taught: Who is a saris chamah etc. and these are his signs: anyone who has no beard, and his hair is thin, and his flesh is smooth; Rabban Shimon ben Gamliel says: anyone whose urine does not produce bubbles; and some say: anyone who urinates and does not create a jet; and some say: anyone whose semen is thin (or faint); and some say: anyone whose urine does not become pungent; others say: anyone who bathes in the rainy season and his body does not emit steam; Rabbi Shimon ben Elazar says: anyone whose voice is thin and he is not distinguishable between a man and a woman. And who is an aylonit etc. and these are her signs: anyone who does not have breasts and has difficulty etc. Rabban Shimon ben Gamliel says: anyone who does not have a lower abdomen like women; Rabbi Shimon ben Elazar says: anyone whose voice is deep etc. See there. And the Rambam holds that it is not a dispute, but rather each one adds to the other, and he ruled that we require all of them (the Maggid Mishneh).

And he explained there that these signs are only effective to render them a saris and an ayalonit when they are twenty years old minus thirty days, and his reasoning we have explained in siman 155. Before this time, even if these signs appeared in them, they are still minors until they reach this time with these signs, and then we establish them as adults, only he is a saris and she is an ayalonit. And if by this time these signs did not appear in them and they do not have two hairs, they are considered as minors until the majority of their years have passed, which is thirty-five years and one day, for then we establish them as adults and he is a saris and she is an ayalonit even if they do not possess even one of all these signs. And in all of this, both of them are equal.

However, he wrote one distinction between a saris and an ayalonit: that this requirement for a saris to have all the signs of a saris applies when he has two hairs in his beard, and then even if he does not have two hairs below, nevertheless it is impossible to establish him as an adult and as a saris until he possesses all the signs that have been explained. But if he also does not have two hairs in his beard, then even if only one sign of the signs of a saris that were explained appears in him at this time, we establish him as an adult and as a saris; see there. But regarding an ayalonit, in all cases she requires all the signs. And the reasoning is simple: for a woman does not have hair in her beard, and it turns out that it is not a deficiency that she does not have hair in her beard. But regarding a man, upon whom this deficiency is added that he does not have two hairs in his beard, therefore one sign of the signs of a saris is sufficient when he is twenty years old less thirty days. (And his reason is that in the Gemara, Yevamot 80b, Rav Huna and Rav Yehuda disagree, as Rav Huna said "until there are all of them" and Rav Yehuda said "even with one of them," and the Shas explains that they disagree when he did not bring two hairs in the beard, and he ruled like Rav Yehuda. And the Rif ruled likewise, and he holds that since when he brought two hairs in the beard Rav Yehuda admits that he requires all the signs, it follows that in a woman this deficiency is not applicable and it is as if she brought them, and therefore we require all of them.)

The Tur disagrees with him regarding an aylonit, and this is the wording of the Tur: And these are the signs of an aylonit: anyone who does not have breasts, or for whom intercourse is difficult, or whose voice is like the voice of a man, or who does not have high and rounded flesh like a palm above that place; and with one of these she is considered an aylonit. Thus far his words. And his reason appears to me to be that the Tosafot and the Rosh extensively investigated these two hairs of the beard, as to what their function is; for either way, if they are signs of maturity, all the signs of a saris should not avail, just as when one brings two hairs below on the body, he is an adult and is not a saris even if he has all the signs of a saris; and if they are not signs, why should they avail regarding the matter that we require all the signs? And what emerges from their words is that the place of the beard is not similar to the rest of the body, because it is common for there to be hair there, and therefore with two hairs in the beard, he does not leave the status of a saris when he has all the signs until his beard is full; and when his beard is full, all the signs of a saris will not avail, and his law is like one who brought two hairs below. And according to this, when there are two hairs in his beard, just as there is an advantage in this, so too there is a deficiency in this in that his beard is not full. And so it appears from the Tur himself later in this siman. And if so, the aylonit must be like a saris who did not bring two hairs in his beard, and one sign of the signs of an aylonit is sufficient; for if not so, but rather we judge her like a saris who brought two hairs in his beard, then we should judge her like one whose beard is full, such that all the signs would not avail for her. Rather, it is certainly that she is like a saris who did not bring two hairs in his beard at all, who has neither the advantage of two hairs in the beard nor the deficiency that her beard is not full.

According to what has been explained, the principles of these laws are as follows: a male of thirteen years and one day and a female of twelve years and one day who have not produced two hairs have the status of minors until twenty years, and according to the Rambam, twenty years minus thirty days, even if they produced symptoms of a saris or an ayalonit, and we do not judge them as a saris or an ayalonit. When a man reaches this age and does not have two hairs in the beard, if he produced only one symptom of the symptoms of a saris, he is an adult and a saris. If he did not produce even one symptom, he is still a minor until thirty-five years and one day, for then his status is that of an adult and he is a saris even without any symptom. If he has two hairs in his beard, he requires all the symptoms as I have written. Regarding an ayalonit at this age, according to the Rambam she requires all the symptoms of an ayalonit, and if not, she is a minor until the majority of her years; and according to the Tur, one symptom is sufficient. Know that at this age, if they produced symptoms of a saris or an ayalonit according to the opinions that have been explained, even if they produced two hairs afterwards, it is nothing (Tur), and they remain forever a saris and an ayalonit. This is specifically before twenty when they produced two hairs, for then they are adults and all symptoms of a saris or an ayalonit will not avail to establish them as a saris or an ayalonit. Such is also the law for a man when his beard is full (that which the Beit Shmuel wondered about in subsection 5 regarding the Beit Yosef, it seems to me that it is not a difficulty at all, for in this too there is a distinction between less than twenty and more than twenty, just as with the two hairs themselves, and all is well; and study this carefully).

And if before the majority of their years they brought two hairs, they are adults, and even if they subsequently brought the signs of a saris or an aylonit, it is nothing, and they are adults from the day of bringing the two hairs (Beit Shmuel, siman 155, subsection 7). And we do not judge them as a saris or an aylonit, for specifically when the signs of a saris or an aylonit preceded the two hairs after twenty years, the two hairs do not avail afterward as I have written, and not when the two hairs preceded. And according to this, from twenty years until the majority of their years, whoever preceded with their signs remains so: if the two hairs preceded, they are adults and not a saris or an aylonit, and if the signs of a saris or an aylonit preceded, the two hairs will not avail afterward and they remain a saris or an aylonit (and in the Shulchan Aruch they were very brief regarding these laws, and this which our teacher, the Rema, wrote in section 5, "if he had two hairs on the rest of the body etc.," his intention is before twenty, or afterward before the signs of a saris or an aylonit preceded them).

Our teacher, the Rema, wrote in section 6 that there are those who say that we do not judge nowadays the law of a definite saris, for we are concerned that perhaps he had hairs and they fell out, or that he had follicles and we are not expert, as was written in siman 155 regarding the matter of mi'un, and therefore we judge him as a doubtful saris and he performs chalitzah, and so it is proper to rule. Thus far his words. (See Beit Shmuel, subsection 8). And it appears that also regarding the matter of an aylonit it is so, and it is an a fortiori argument from a saris, for certainly it is impossible for men to ascertain all the signs of an aylonit according to the opinion of the Rambam, who requires all the signs as has been written.

And in section 1 he wrote, and this is his wording: If he was a doubtful saris, he performs chalitzah, and we do not presume him to be a certain saris unless they saw in him immediately when he was born one of the signs of a saris, such as if he urinated and did not produce an arch; but without this, there is a concern that he was damaged after his birth, and he must perform chalitzah. Thus far his words. And one should not infer from this that when they saw the sign in him from birth we judge him as a certain saris, and that he contradicts himself regarding what he wrote in section 6 which we brought in the previous section, for it is not so; for what he wrote here is also according to the essential law, and these are the very words of the Tosafot (80b, s.v. ad) that the signs of a saris must be from his mother's womb, and therefore, as long as we did not see it from when he was born, it is impossible to judge him with the law of a certain saris even without the concern of hairs and folds. And in section 6 he wrote according to the stringency due to the concern of hairs and folds, and therefore in any case we do not judge the law of a certain saris (and so wrote the Beit Shmuel, subsection 8).

Our teacher, the Beit Yosef, wrote in section 8: An androgynos is not subject to chalitzah or yibbum, and some say his status is like a male in all matters. Thus far his words. The first opinion is the view of the Rambam, and this is his wording in chapter 6: And these are those who have no attachment at all: a saris chamah and an androgynos, because they are not fit to father children and never had a period of fitness. Thus far his words. It is also explicitly stated in the Tosefta (chapter 11), and the Rif wrote likewise at the end of the first chapter of Yevamot; see there. It is explained from this that even though in the entire Torah we hold that an androgynos is a doubt whether male or doubt whether female, nevertheless, it is not for this reason that he is not subject to chalitzah and yibbum. For regarding intercourse, he is like a complete male according to the opinion of the Rambam, as he ruled in chapter 1 of Issurei Biah, law 15: One who comes upon an androgynos by way of his maleness is liable, etc., and he is permitted to marry a woman; see there. We have already explained his reasoning in siman 24, section 2, and in siman 44; see there. Rather, his exemption from chalitzah and yibbum is because he is incapable of procreation from birth, and his status is like a saris chamah.

And the opinion of the "some say" is the opinion of the Tur in this siman, who wrote, and this is his wording: Regarding an androgynos, the Rambam wrote that his law is like a saris chama etc. and such is the opinion of the Rif; but according to the opinion of Ri, his law is like a complete male in all his matters, and such is the conclusion of my father, the Rosh, of blessed memory. Thus far his words. And his words are puzzling, for what is the connection between one and the other? And also the conclusion of the Rosh is not at all regarding this matter, but rather regarding the matter that his law is like a complete male, and certainly it is so; but regarding the matter of chalitzah and yibbum, his law is like a saris chama (Beit Yosef). And behold, on the contrary, the Rosh also brought at the end of the first chapter the Tosefta that we brought, see there. And already all the poskim have taken issue with him (Beit Yosef and Bach and Maharshal and the Gra in subsection 18, and he took issue with the Beit Shmuel). And it appears to me that he follows his reasoning in siman 44, where he wrote there that regarding an androgynos who was betrothed to a man, the opinion of the Rambam is that it is a case of uncertain kiddushin, and he disagreed with him, see there. Behold, according to the Rambam, even though regarding cohabitation in the aspect of his maleness he is like a male, nevertheless there is also in him an uncertainty of femaleness, and therefore we are concerned for kiddushin when a man betroths him, and automatically he must not be capable of procreation, for he has no seed or his seed is not fit to procreate, and he is similar to a saris chama; for if he were capable of procreation, how is it possible to have an uncertainty in him regarding femaleness? But the Tur, who holds that he is a certain male even for leniency and we are not concerned at all for his femaleness, and we say that it is merely a hole, if so, who told us that he is not fit to procreate? And the Tosefta would hold that he is an uncertain male or uncertain female, therefore of necessity he is not fit to procreate as I wrote; but if we say that he is a complete male, from where do we know that he is not fit to procreate? And in any case, if he has the signs of a saris, we have exempted him for that reason and not for the reason of his being an androgynos, and of necessity he does not have the signs of a saris and it is possible that he is also fit to procreate. Therefore, for the halachah, he performs chalitzah and does not undergo yibbum (and perhaps this is the intention of the Beit Shmuel as well, see there and examine carefully).

A tumtum performs chalitzah but does not perform yibbum, for he is a doubt whether male or doubt whether female. And if he was torn open and found to be male, if he wishes he performs chalitzah, and if he wishes he performs yibbum. And some say that even when he is found to be male, there is a concern of a saris chamah, even when he does not possess the signs of a saris, for the fact that he was closed up corrupted his reproductive power and he is not fit to father children; therefore, we follow the stringency and he performs chalitzah but does not perform yibbum. And if he has other brothers and he performed chalitzah, he has disqualified her to them (Tur), and she is forbidden to perform yibbum with one of them and requires chalitzah from one of them, and perhaps from all of them, because it is a disqualified chalitzah and she must return to all the brothers according to the one who holds so. But it appears more likely that this is not included in the category of disqualified chalitzah, for however you look at it, either he is fully subject to chalitzah or he is not subject to chalitzah at all.

The Rambam wrote in chapter 6, law 4: And these perform chalitzah and do not perform yibbum, etc., and a petzuah daka, etc., and the very elderly man whose strength has weakened and failed; and if a saris adam had intercourse, he has acquired, etc. Thus far his words. And behold, it is so stated in the Tosefta at the end of chapter 2, that an elderly man performs chalitzah and does not perform yibbum, see there; and the Rif and the Rosh brought it at the end of chapter 2, see there. And the matters are puzzling, for in the Tosefta chapter 11 it is explicitly stated that an elderly man performs yibbum, and so it is explicit in the Gemara (20b). And how did the Rambam rule like the Tosefta at the end of chapter 2, which is against the Gemara and against another baraita in the Tosefta itself? And it appears clear to me that the Rambam, because he saw that the Toseftot contradict one another, divided them according to his own reasoning: that certainly if he is an elderly man who is fit for intercourse, he is permitted to perform yibbum ab initio, even though his strength to father children has ceased, since he had a "time of fitness"; and it is regarding this that the Shas and the Tosefta of chapter 11 deal. And the Tosefta at the end of chapter 2 deals with one who is not fit for intercourse at all due to the weakness of his strength. Therefore, the Rambam was wise to say "whose strength has weakened and failed," meaning that he is not fit for intercourse at all. (And even though regarding a saris adam the Toseftot also contradict one another, see there, it is not a difficulty at all, for at the end of chapter 2 it deals with the rabbinic level, as it is stated in the Shas there, a decree of the first intercourse on account of the second intercourse; and in chapter 11 it deals with the Torah level; but regarding an elderly man this does not apply, and reflect on this).

And according to this, one must wonder about our teacher, the Beit Yosef, in section 10, who wrote: An extremely old man whose strength has waned and failed is governed by the law of a saris adam regarding chalitzah and yibbum, except that if he had intercourse with his yevamah, he is permitted to maintain her. Thus far his words. And it is a wonder, for one way or the other: if he is able to have intercourse, why should he not perform yibbum even ab initio? And it appears that he interprets that it deals with one who is fit for intercourse, and that which the Gemara permitted is ex post facto, while the Tosefta forbids it ab initio. And so it appears the Acharonim (Beit Shmuel subsection 12 and the Gra) understood it. However, it is clear that the Rambam's intention is as I have written, and a clear proof for this is from that which the Rambam concluded: "And if a saris adam had intercourse, he has acquired her," and he did not write this regarding an old man; learn from this that his intention regarding an old man is one who is not fit for intercourse at all. And the law requires further study, for from the wording of the Tur it also implies like their words, see there (and the Yam Shel Shlomo, first chapter, siman 13, wrote that he is not fit for intercourse, see there, and it is explicit like our words).

And behold, regarding an elderly yevamah who is not capable of having children, we have not found anywhere that she should not undergo yibbum ab initio; on the contrary, the Rambam there, and the Tur, and the Shulchan Aruch in section 16 ruled that an elderly woman and a barren woman undergo yibbum ab initio. And if so, why were they more stringent regarding an elderly man than an elderly woman? According to our explanation that it deals with an elderly man who is not fit for intercourse, it is well-settled, for regarding an elderly woman this is not applicable, as she is always fit for intercourse, for she is "natural soil" and is not the active party. But according to the explanation of our teacher, the Beit Yosef, it is difficult; and it must be said even according to his opinion that it is not because he is unfit to procreate, but because his intercourse is not considered a complete act of intercourse due to the weakness of his strength. According to this, if he is merely fit for a complete act of intercourse, it is permitted to perform yibbum even ab initio according to all opinions, and such is the primary halachic ruling.

It was taught in the Tosefta (chapter 2): The deaf-mute woman and the deranged woman may be taken in yibum but they may not perform chalitzah, for chalitzah requires intent and yibum does not. And even according to the one who holds like Abba Shaul, that initially there is a prohibition when they do not intend for the sake of the mitzvah, nevertheless, it is not a disqualifying factor when there is no capability, and here it is considered like an after-the-fact case. And so ruled all the poskim, and all the more so a minor female who may be taken in yibum as written in siman 167, and so it is explicitly explained in the Gemara (61b). And if his desire is to divorce them afterward, their law is as follows: regarding a deaf-mute woman, he may divorce her with a get after he has cohabited with her, for just as her entry was through gesturing, so her exit is through gesturing, like one who marries a deaf-mute woman. And a deranged woman is not divorced unless she knows how to guard her get and knows how to guard herself. And the minor female is not divorced until she grows up, for her yibum is from the Torah and she does not have the capability in her minority to receive a get for Torah-level kiddushin unless she has a father and the father receives her get, as written in siman 141 (Beit Shmuel, subsection 13). And it is possible that in yibum even her father does not have the authority to receive her get, and only when he married her off of his own will did the Torah grant him the right to receive her get, but not in yibum, and it requires further study for the law. Or it is possible that she herself can receive her get in her minority when she knows how to guard her get, and there are some of the Rishonim who hold so (Nimukei Yosef, chapter 13, on the Mishnah: "A minor yavam who cohabited with a minor yevamah, they shall grow up with one another," he wrote: "And if he wishes to divorce her, he cannot until he grows up, for the get of a minor is not a get, and so too she, until she knows how to guard her get." Thus far his words. And so it appears from Rashi there, who only explained regarding him, see there).

The Rambam wrote in chapter 6, law 3: And these perform yibbum and do not perform chalitzah: the deaf-mute, the deranged, and the minor, because they lack the capacity of mind to perform chalitzah. And when the deaf-mute performs yibbum, he may never release her, for his cohabitation makes her a completely married woman and his divorce is not a complete divorce. And a boy of nine years and one day can no longer divorce until he reaches majority. Thus far his words. For one less than nine years old, his cohabitation is not cohabitation at all. And even when he reaches majority, he is unable to divorce unless he cohabited with her after reaching majority; for if not so, his cohabitation is only like a maamar in an adult, as was written in siman 170. And if so, when he did not cohabit with her after reaching majority and wishes to divorce her, she requires a get and chalitzah: a get for his maamar—that is, his cohabitation which is like a maamar—and chalitzah for her zikah.

The Tur and the Shulchan Aruch wrote in section 12 that this rule—that a cheresh who performed yibum cannot divorce—applies specifically when he inherited the widow from his brother who was a pikeiach. However, if he inherited her from his brother who was a cheresh, he may release her with a get after he has cohabited with her; for just as his brother married her through gestures, so too he may release her through gestures. This law is explicitly stated in the Gemara (Gittin 71a). Therefore, it must be said that when the Rambam wrote that a cheresh never releases her, his intention was for when she fell to him from a brother who was a pikeiach, and he did not need to specify this because the standard case is such, and the majority of the world are not chereshim. Our teacher, the Beit Yosef, wrote thus in his great work. There are those who wish to say that his intention included even when she fell to him from a brother who was a cheresh, but this is not the primary view. For even though according to the approach of the Yerushalmi it is so—as it holds that what we learned regarding a cheresh who married a woman of sound senses, that just as he marries through gestures so he releases through gestures, this applies only to betrothal through money (beginning of chapter 14 of Yevamot) and not when he cohabited with her—nevertheless, this is not the approach of our Shas. There is nothing in the Rambam or in any of the poskim to suggest they would adopt the words of the Yerushalmi in this matter. Therefore, the primary view is as we have written (and see Beit Shmuel sub-section 14 and the Gra sub-section 26).

Two brothers, one of sound mind and one a cheresh, married to two women of sound mind; if the cheresh, husband of the woman of sound mind, died, his brother of sound mind, if he wishes, performs chalitzah, and if he wishes, he performs yibbum. We do not say that since according to the Torah his brother’s kiddushin did not take effect regarding her, she is not cast before him for yibbum according to the Torah, for this is certainly so; however, according to the Torah she is also permitted to him, and she is like an unmarried woman according to the Torah. Therefore, since according to the Rabbis she is cast before him, he has the ability to perform yibbum or chalitzah. This applies when the women are not related to one another, but when they are related, their law will be explained in siman 175. And if the one of sound mind, husband of the woman of sound mind, died, his brother the cheresh cannot perform chalitzah, as he is not eligible for chalitzah. Therefore, he marries her and never releases her, for his brother’s kiddushin are from the Torah, and a cheresh is not eligible to give a get for kiddushin of the Torah, as has been written in siman 121.

Two brothers who are of sound senses are married to two women, one of sound senses and one a chereshet. If the one of sound senses who was the husband of the chereshet dies, the chereshet is not a candidate for chalitzah; rather, he performs yibbum. And if he later wishes to divorce her with a get, he may divorce her, for his brother's marriage was also through gestures, as has been written in section 25. If the one of sound senses who was the husband of the woman of sound senses dies, his brother, if he wishes, performs chalitzah, and if he wishes, he performs yibbum (Mishnah, chapter 14). And there is no novelty in this at all, but rather it comes to teach us that we do not decree in the case where the husband of the woman of sound senses dies that he should not perform chalitzah as a safeguard because of the case where the husband of the chereshet dies.

Two brothers, one a cheresh and one of sound senses, married to two women, one a cheresh and one of sound senses—the cheresh woman to the cheresh man and the woman of sound senses to the man of sound senses—if the cheresh husband of the cheresh woman dies, she is not fit for chalitzah, and his brother of sound senses performs yibbum. If he later wishes, he may release her with a get, for his brother's marriage was also by means of gestures. If the man of sound senses, the husband of the woman of sound senses, dies, his cheresh brother takes her in marriage and may never release her, because his brother's marriage was according to the Torah and his get is by means of gestures. If both brothers were chereshim, or if their wives were cheresh women, and certainly if all of them were chereshim, when one of them dies, the second performs yibbum; and when he later wishes to release her with a get, he may release her because of the reasons that have been explained, and they are not fit for chalitzah.

A blind man may perform yibbum; even though he does not see her, he performs yibbum based on witnesses who say that this is his yevamah. For chalitzah, he is not fit ab initio because he cannot see the saliva, as written in siman 169. We have already explained there that ex post facto his chalitzah is a valid chalitzah, as this is not a disqualifying factor. More than this, our teacher, the Rema, wrote in section 15 that if there is no brother here but him, he performs chalitzah even ab initio, since it is impossible otherwise. The wife of a minor and the wife of a shoteh are exempt from chalitzah and from yibbum, for they did not institute marriage for them as they did for a cheresh. But the wife of a cheresh, an elderly woman, and a barren woman are like all other women and perform chalitzah or yibbum, even though they are currently unfit to bear children, because they had a period of fitness. Therefore, if she is barren from birth like an ailonit, it appears to me that she is forbidden to perform yibbum and performs chalitzah (and the intention of the Rema is that even according to those who hold the mitzvah of yibbum takes precedence—because of which the Beit Yosef ruled in siman 169 that ab initio he does not perform chalitzah—nevertheless, according to our practice, even they admit that he performs chalitzah ab initio).