Siman 173

Even though a brother's wife is an ervah and one is liable for karet because of her, and when he dies without offspring the Torah permitted her to him and obligated him to perform yibbum, nevertheless, when there is an additional prohibition of ervah in this yibbum, the yibbum is set aside and she remains an ervah to him and he is liable for karet because of her. How so? Reuven who married the daughter of Shimon his brother and died without offspring, it is forbidden for Shimon to perform yibbum with her, for she is his daughter. And similarly, when their wives are sisters to one another and one of them dies, it is forbidden for the second to perform yibbum with her, for she is his wife's sister; and so too in the case of all the arayot. And if there is another brother to whom the yevama is not an ervah, he performs yibbum or performs chalitzah. And if there is no other brother, she goes out with nothing and does not require chalitzah either, for anyone who does not come up for yibbum does not come up for chalitzah, as has been explained many times.

And it is not only that the ervah is exempt from chalitzah and from yibbum, but even her co-wife. For example, if the deceased had two wives, one who is an ervah to the yavam and the second who is not an ervah, the law of the co-wife is like the law of the ervah, and it is forbidden for him to perform yibbum with her and he is liable for karet because of her. And not only this, but even the co-wife of her co-wife. For example, if there was another brother here who was permitted to both of them and he performed yibbum with the co-wife and died, and his wives fell before this brother; just as he is forbidden to this one who was taken in yibbum to the deceased because she is to him like an ervah from the falling of his first brother, so too he is forbidden to all the wives of this second brother because they are the co-wives of this co-wife and their law is like an ervah. And so too if there was another third brother here and he performed yibbum with the co-wife of the co-wife and died, this one is forbidden to all his wives because the co-wife of the co-wife is to him like an ervah, and therefore even the co-wife of the co-wife of the co-wife is to him like an ervah, and so on forever. And this is what the sages taught at the beginning of Yevamot: Fifteen women exempt their co-wives and the co-wives of their co-wives from chalitzah and from yibbum until the end of the world.

The reason for the matter is that even though we hold that a positive commandment overrides a negative commandment, this is when there is no karet involved in the negative commandment. However, a negative commandment that carries karet, the positive commandment does not override it. For the general rule that a positive commandment overrides a negative commandment is derived from shaatnez in tzitzit, and there is no karet in that. Therefore, the positive commandment of yibum does not override the prohibition of karet that exists in this yibum. And even though yibum overrides the prohibition of karet of a brother's wife, this is because the essence of the mitzvah of yibum is thus, and it is impossible in any other way, and if not so, the mitzvah of yibum would be nullified. But it does not override another prohibition of karet, for the mitzvah of yibum can be fulfilled without it (Tosafot 3b, s.v. "lo ta'aseh").

And one should not ask: is not one of the thirteen principles by which the Torah is expounded a "binyan av," meaning to learn one matter from another through "mah matzinu," and if so, let us learn all the arayot from the wife of a brother? For certainly it would be so if it were possible to learn the prohibition of another ervah alone from the prohibition of a brother's wife. But here, when we would learn the prohibition of another ervah from a brother's wife, there is also the prohibition of a brother's wife regarding that other ervah, and we do not derive two prohibitions from one prohibition (Gemara 7b). Furthermore, even regarding one prohibition we do not learn in such a manner; for the prohibition of the brother's wife that was upon her—that prohibition was removed when he died without children, for now she is no longer his brother's wife as he has already died. This is not the case with the other prohibition that you seek to permit, such as the ervah of his daughter or the ervah of his wife's sister, for this prohibition causes them to be forbidden and the prohibition still remains in its place (Yerushalmi, beginning of Yevamot).

The Torah itself explained this matter regarding the nakedness of a wife's sister, as it is written: "And a woman to her sister you shall not take to be a rival, to uncover her nakedness upon her in her lifetime." And this "upon her" is superfluous, for it should only have written "to uncover her nakedness in her lifetime," and we would know that during his wife's lifetime she is forbidden and after her death he is permitted to her. Our sages, of blessed memory, received this derivation (3b): It is stated here "upon her" and it is stated "her brother-in-law shall come upon her," and the Torah commanded that even in a place where "her brother-in-law shall come upon her," if there is the prohibition of a wife's sister here, she remains in her prohibition. And I only have her; from where do I know her rival? The verse teaches: "to be a rival" (letzror), meaning that this "letzror" is entirely superfluous, and it was received by tradition that the intention is regarding the rival of a wife's sister in the place of "upon her," which is yibum, that the law of the rival is like the law of the forbidden relation. And I only have the rival; from where do I know the rival of her rival? From that which is written "letzror," for it could have written "latzor" and it wrote "letzror" to teach us also regarding the rival of a rival, and so on forever. And we learn all forbidden relations from a wife's sister: just as a wife's sister is forbidden in the place of yibum, so too all forbidden relations and their rivals. And one should not ask, "What did you see to learn all forbidden relations from a wife's sister? Let us learn from a brother's wife." This is not a question: first, because we compare for stringency; and furthermore, when we learn other forbidden relations from a wife's sister, they are similar to one another, for in both of them there are two prohibitions of nakedness, which is not the case with a brother's wife where there are not two forbidden relations (8a), as I have written. And similarly, the second reasoning that we wrote in the previous section is not similar to a brother's wife.

And if you should ask, why do we need a verse when we have already explained this through logical reasoning? They already explained in the Gemara there that the verse was necessary for a case where this deceased man married his wife and died, and she fell before his brother for yibum, and before he performed yibum he married her sister or one of the other arayot related to this yevama. I might have said that since she had already fallen before him for yibum and the prohibition of a brother's wife was permitted to him, the prohibition of a wife's sister should also be permitted, because the mitzvah of yibum preceded this prohibition. For this we require the verse, that in all manners the mitzvah of yibum does not override the prohibition of another ervah. And similarly, it would be possible to say that we need the verse for a co-wife, for through logical reasoning we would not have known this; however, if so, the verse "to be a rival" would have sufficed to teach us that a co-wife is like the ervah, and likewise the co-wife of a co-wife. But the verse "beside her" would still be superfluous. Therefore, one must say as we have written. (And the interpretation of Rava on page 8, we did not write, for the Tosafot there wrote that Rava disagrees with Ulla and holds that "partial cohabitation is not considered cohabitation," and we rule according to Ulla, as the Rambam and the Ra'avad wrote in the third chapter of Biat Mikdash, see there).

There is another derivation in the Gemara (8b): Rabbi says, "and he shall take," "and she shall be taken," "and he shall perform yibbum," "and she shall be subject to yibbum," to forbid co-wives and those forbidden by arayot. It is explained from the words of the Rambam, chapter 6, law 9, that this is the explanation: Since it is written "and he shall take her" and it is not written "and he shall take," it implies that specifically when he has the capacity for taking her and kiddushin takes effect with her, she is bound for yibbum, excluding an ervah with whom kiddushin does not take effect. And a co-wife we learned from that which is written, "who will not build his brother's house"—a house in which he has the capacity for taking whichever of them he desires is that which he has a zika toward; but a house that he cannot build part of, because he has no capacity for taking her, he may not build even the part of it that was permitted. Thus, the co-wife of the ervah is an ervah to him because of the prohibition of a brother's wife, for he has no zika toward her. Thus far his words. (And he does not interpret like Rashi and Tosafot, see there. And according to his interpretation, one must say that he did not have the version there: "What is 'and he shall take her'? Everywhere that there are two etc.," but rather "Everywhere etc." And the derivation is from "house," and "and he shall take her" he derives for the ervah herself as I wrote. And that which the Maggid Mishneh wrote, that he did not concern himself with writing according to the conclusion that an ervah does not require a verse and there is no practical halachic difference, see there—and his intention was for the statement of Rava, see there—this is not necessary; and as I wrote in the previous section, we do not rule like Rava. And that which he seized upon the derivation of Rabbi and not the Baraita of "upon her" is because he holds that "upon her" requires a ruling of a beit din, as he wrote in chapter 12 of Shegagot and as is found in the Gemara there, "and Rabbi, this 'upon her' etc. he requires for etc." and delve into this.)

There is a question regarding this: since we have said that when the yevamah is an ervah to the yavam, the law of chalitzah and yibbum does not apply to her, if so, when she was a niddah at the time of falling, her law should be like an ervah, for behold, a niddah is among the arayot. The answer to this is that a niddah is not similar to all other arayot, for with all other arayot, the essence of their prohibition is upon the yavam and not upon other people, but the niddah is prohibited to everyone, and even to her husband she must wait until she becomes pure. Furthermore, a niddah is destined to become permitted, which is not the case with other arayot. And even the sister of his wife, if his wife died after the falling and she is prohibited to the yavam because I do not read concerning her at the time of falling "her yavam shall come upon her," this is because she did not stand at the time of falling to become permitted afterward, for from where do we know that his wife will die? This is not the case with a niddah. Furthermore, if he transgressed and came upon her during her niddah state, he has acquired her for yibbum (Pesachim 72b), even though he transgressed a prohibition of kareth, which is not the case with arayot (and see Tosafot and the Rosh at the beginning of Yevamot).

And know that this which we have written, that a tzarah is like the ervah herself, is only in the context of the mitzvah of yibum and not in another context. For example, his daughter or his wife's sister who married another, and the husband of his daughter or the husband of his wife's sister died and left other wives, he is permitted to them. And similarly his mother, who was married to another and he died and left other wives, he is permitted to them (Mishnah 13a). And thus our Sages, of blessed memory, received the tradition, that only in the context of "ascending" is the tzarah forbidden, but not in a context other than "ascending," meaning, not in the context of yibum, the tzarah is not forbidden. And according to the exposition of Rabbi, we also expound from the verse "and perform yibum with her" that it is in the context of "and perform yibum with her" that the tzarah is forbidden, but not in a context other than "and perform yibum with her" she is permitted. And this is not a matter of wonder, that it should be more stringent in the context of yibum than not in the context of yibum, for certainly it is so; for what relation does a tzarah have to an ervah? Rather, in the context of yibum, since she is exempt from yibum, the tzarah automatically remains under the prohibition of a brother's wife, and she is subject to karet because of this very prohibition.

And behold, regarding all forbidden relations there is no distinction between during the lifetime of the forbidden relation and after death, except for the sister of his wife; and similarly regarding his mother-in-law after death there is a dispute among the poskim, and we explained this in siman 15, section 16, see there. Therefore, according to the poskim that after death she is not subject to karet but rather to a negative prohibition or a positive commandment, when such a case occurs, she is subject to chalitzah according to the law of all those subject to negative prohibitions, which will be explained in siman 174. And so wrote the later authorities (Knesset HaGedolah and Noda BiYehudah).

If the yevama was in a state of a forbidden relation to the husband who married her through a prohibition of karet, she is as if she was not his wife at all, for neither kiddushin nor marriage take effect for him with her, and it is merely an act of licentiousness. Therefore, when he dies and leaves other fit wives, he performs chalitza with one of them or performs yibbum, and their law is not like the rivals of a forbidden relation. And even if this forbidden relation was a forbidden relation to the yavam as well, nevertheless, the rivals have no connection to this (Beit Shmuel, subsection 4). And if she was a forbidden relation only to the husband and not to the yavam, behold, this yavam is permitted to her, not by the law of yibbum, but rather as an ordinary woman, for she is not included in the category of his brother's wife.

A yevamah who is a doubtful ervah to the yavam—for example, if he betrothed a woman with doubtful kiddushin and the sister of this woman was married to his paternal brother, and his brother died and left another wife, and therefore the woman is a doubtful tzorat ervah—she performs chalitzah and does not perform yibbum. And all the more so the sister of the woman, who is a doubtful sister of his betrothed, does not perform yibbum and requires chalitzah even when there is no other woman, for perhaps she is not the sister of his betrothed since the kiddushin were in doubt. Therefore, if he gave her chalitzah, both are forbidden to him, for even this one whom he betrothed in doubt he is compelled to divorce, as she is a doubt whether she is the sister of his chalutzah; for perhaps the kiddushin did not take effect and the chalitzah was a complete chalitzah. And even though the sister of a chalutzah is only by rabbinic decree and they did not decree in a case of doubt, nevertheless, ab initio it is forbidden (Bach). And some say that even ex post facto it is forbidden (Beit Shmuel, subsection 3); even though it is a rabbinic doubt, nevertheless, they decreed on account of the sister of his divorcee (Nimukei Yosef, chapter 2).

The Tur wrote: I saw in the words of the Rambam that if the yevama was a doubtful ervah to the husband, she performs chalitzah and does not perform yibbum; and it appears that this is a scribal error, for in any case she should perform yibbum, for if she was not an ervah to him, she is bound to the yavim, and if she was an ervah to him, kiddushin did not take effect with her and she is to the yavim like a strange woman. Thus far his words. Many things have been said regarding this (see Beit Yosef, Bach, and Beit Shmuel subsection 2). However, the truth is that the intention of the Rambam is, for example, where one betrothed one of two sisters and did not know which of them he betrothed, for each one stands in a state of doubtful ervah because of "sister of his wife." And when he died and they fell before a yavim, he cannot perform yibbum with either of them because of the doubt of "sister of his zekukah," but rather he performs chalitzah for both of them (Mishneh LaMelech chapter 6, halacha 13), and it is an explicit Gemara (41b), see there. But a different doubtful ervah who is not an ervah to the yavim, she either performs chalitzah or performs yibbum (as written in the Shulchan Aruch section 5, and his words at the beginning of section 3 require further study, see there and examine carefully).

The sages taught in the Mishnah (30a): And all of them who had betrothals or divorces in doubt, these tzarot perform chalitzah and do not undergo yibbum. How so? A doubt in kiddushin: he threw her the kiddushin, it is a doubt whether it was closer to him or closer to her—this is a doubt in kiddushin. A doubt in divorce: he wrote in his handwriting and there are no witnesses on it; there are witnesses on it but there is no date in it; there is a date in it but there is only one witness in it—this is a doubt in divorce. Thus far its words. Meaning, this woman is a definite ervah to the yavam, only that his deceased brother had with her a doubt in kiddushin or a doubt in divorce, and the tzarot are doubtful tzarot of an ervah, and therefore they perform chalitzah and do not undergo yibbum. (And in the Shulchan Aruch, section 6, it should be according to the version of the Be'er HaGolah: "A yevamah who is an ervah to the yavam," and the version of the Beit Shmuel, subsection 5, is very forced). And that which the Tanna counts in a doubt of divorce is not exact, for from the Torah it is a complete get and only from the Rabbis is it a disqualified get, and it comes to teach us that even though from the Torah the ervah was already divorced and he would be permitted to perform yibbum with the tzara, nevertheless from the Rabbis she performs chalitzah and does not undergo yibbum (Nimukei Yosef). And the doubt that he counts in kiddushin exists also in divorce, but what he counts in divorce does not exist in kiddushin (see there in the Gemara and Tosafot), for they did not institute a date in kiddushin; and similarly, "wrote in his handwriting and there are no witnesses on it" or "there is only one witness in it" is valid in kiddushin (Nimukei Yosef). And there are those who hesitate regarding this, for in kiddushin it is also disqualified from the Rabbis, and therefore it only comes to exclude a date, for this is valid in kiddushin even from the Rabbis (see there in Nimukei Yosef and in Tosafot). And we have already explained this in the laws of kiddushin by document in siman 32, see there.

And behold, in a case of uncertain kiddushin, even though her co-wife stands in the presumption of permissibility to the yavam, nevertheless, due to the uncertainty, she does not perform yibbum. And conversely, in a case of uncertain gerushin where he threw her a get and it is uncertain if it was close to him or uncertain if it was close to her, even though the co-wife stands in the presumption of permissibility to the market, nevertheless, due to the uncertainty, she requires chalitzah. And they did not follow the presumption in this matter because of the severity of the prohibition, and also because there is a remedy through chalitzah. And likewise, if there are two groups of witnesses, one group saying that the kiddushin or the get was close to him and one group saying it was close to her, even though according to the Torah when there are two groups of witnesses we establish it upon the presumption, nevertheless, the rabbis were stringent not to follow the presumption, and whether in kiddushin or in gerushin, she performs chalitzah and does not perform yibbum. And likewise when there are two witnesses, one saying close to him and one saying close to her (Gemara).

Reuven and Shimon are brothers who married two sisters, and one died during the lifetime of her husband, and afterwards the husband died and left another wife, the yavam is permitted to perform yibbum with her, for she is not like the co-wife of a forbidden relation since at the time of the deceased's death the forbidden relation was not alive. And likewise if he divorced her before he died, and even if he married the co-wife before he divorced the forbidden relation or before she died, we do not say that there was one moment where she was the co-wife of a forbidden relation, for we hold that the death of the brother causes the falling for yibbum, and therefore since at the time of death the forbidden relation was not alive or was divorced, the co-wife is no longer included in the category of a co-wife of a forbidden relation. And the same law applies if the forbidden relation was a minor and performed mian against him during his lifetime, he is permitted to perform yibbum with her co-wife when he dies. But if she did not perform mian against him during his lifetime and performed mian against him after his death, even though according to the essential law it is permitted to perform yibbum with her co-wife, as the mian uproots her marriage from the beginning, nevertheless her co-wife performs chalitzah and does not undergo yibbum because at the time of falling for yibbum she appeared as the co-wife of a forbidden relation. And even though the essence of the marriage is only rabbinic, nevertheless they were stringent in this because of the severity of the prohibition, and furthermore because it is possible to perform chalitzah, and all the more so when she did not perform mian at all.

If there is a doubt whether the ervah died during his lifetime or after his death, such as if a house collapsed upon him and upon the ervah of the yavam and it is not known who died first, it is a simple matter that according to the Torah the tzarah performs chalitzah and may not enter into yibbum, since there is a doubt regarding the core of the matter. However, it is possible to say that according to the Torah she stands in her status of being permitted to the market, and the sages were stringent in this matter. This is also implied in the Gemara (31a, and see there in Tosafot s.v. "Nafal").

If the ervah was an aylonit, her rival wife may perform yibbum. And it is not only necessary to say if the deceased brother did not recognize that she was an aylonit, for it would be a mistaken transaction since she was not his wife and is not the rival wife of an ervah; but even if he recognized her, and the kiddushin were complete and likewise the marriage was a complete marriage, nevertheless the rival wife performs yibbum. For since an aylonit is not subject to yibbum, the zika does not fall except upon the rival wife alone, for the Torah which forbade the rival wife of an ervah only forbade it in a place of mitzvah, as has been written. And since this aylonit, even without being an ervah, is not fit for yibbum, her rival wife is the rival wife of an ervah not in a place of mitzvah (Rashi, Yevamot 12a, starting with "The halacha," in the name of the Behag).

If he performed yibbum on the co-wife because he thought the ervah was an ailonit, and afterwards it was clarified that she is not an ailonit, she must leave her yavam without a get and the offspring is a mamzer, for kiddushin does not take effect on the co-wife of an ervah, as she is a brother's wife not in the place of a mitzvah and she is among those liable for karet (see Beit Shmuel, subsection 9). And if she is found to be a doubtful ailonit, it appears to me that she requires a get due to the doubt and the offspring is a doubtful mamzer, but chalitzah is not required in any case; for if she is not an ailonit, behold she does not require chalitzah, and if she is an ailonit, the yibbum was valid and she has already undergone yibbum.

And if the opposite occurred, where the rival wife married into the marketplace because she was the rival wife of an ervah, and afterwards it was clarified that the ervah is an aylonit and requires chalitzah from the yavam, she must leave the husband with a get according to the law of a yevamah who married into the marketplace, as was explained in siman 159. And the yavam performs chalitzah and does not perform yibbum, for she became forbidden to him as is written there. And if initially she had not yet married a stranger but only became betrothed, he gives her a get and the yavam either performs chalitzah or performs yibbum, for through kiddushin she did not become forbidden to the yavam, as is written there. And it appears to me that even if she is found to be a doubtful aylonit the law is so, for perhaps she is an aylonit and married into the marketplace in prohibition.

One whose wife committed adultery under him willfully and there are witnesses, and he died without seed and she fell before his brother for yibum, her law is like the law of an ervah; and not only is she exempt from chalitzah and from yibum, but even her rival-wife is exempt like the law of a rival-wife of an ervah. And thus our sages, of blessed memory, said (11a): The rival-wife of a sotah is forbidden; what is the reason? "Defilement" is written regarding her like the arayot, as it is written: "and she be defiled secretly," and regarding the arayot it is also written: "Do not defile yourselves with all these." And regarding the wife of a kohen who committed adultery by compulsion, there is reason to doubt if she and her rival-wife are exempt from chalitzah (Nimukei Yosef ibid.), for even though she is forbidden to her husband and regarding him it is called "defilement," as it is found in the Gemara (56b): If the wife of a kohen was raped, her husband is lashed on her account because of "defilement," this is because of the sanctity of the priesthood, but not regarding her person such that she would be called "defiled"; rather, she was "defiled" regarding the priesthood and not that she is defiled in essence (and the difficulty of the Bach and the Beit Shmuel subsection 10 is settled).

However, I am greatly astonished by this doubt, for it is an explicit Gemara in Sotah (6a) that she is even subject to yibbum if his brother was profaned from the sanctity of the kehunah, see there. And all the more so that she requires chalitzah, and it is a kal vachomer that her rival-wife either performs chalitzah or undergoes yibbum, and she is no worse than any of those prohibited by a negative commandment; and this requires great study (afterwards I found this difficulty in the Mishneh LaMelech, chapter 6).

But a doubtful sotah, such as one where he warned her and she secluded herself and it is not known whether she was defiled or not, even though she is forbidden to her husband, nevertheless she performs chalitzah and does not perform yibbum. And her rival wife either performs chalitzah or performs yibbum, for a doubtful sotah was only excluded regarding the prohibition of the husband; and since the yavam comes by power of his brother's marriage, he stands in the place of the husband, such that she is forbidden to him for yibbum, but she requires chalitzah (Tosafot Sotah 5b, s.v. Elu). Therefore, the rival wife also performs yibbum (and see Tosafot Yevamot 11a, s.v. Tzarat).

Our teacher, the Rema, wrote in section 11 that there are those who say that even if she certainly committed adultery she requires chalitzah, and the same applies to her co-wife, and one should be stringent. Therefore, one who has a wife who was swapped, even though she certainly committed adultery, her co-wife requires chalitzah. Thus far his words. And the same applies to her herself, that she requires chalitzah, except that through her chalitzah her co-wife is not exempt (Beit Shmuel, subsection 12), for her chalitzah is like a disqualified chalitzah. Now, this opinion is a minority opinion, and the Rif, the Rambam, the Rosh, and the Tosafot ruled according to the first opinion, which is an explicit Gemara in Yevamot ibid. However, the Ra'avad, of blessed memory, was stringent in this based on the sugya in Sotah (5b); see there. And the Tosafot there and the Rosh in Yevamot ibid. have already resolved that the sugyot do not contradict one another. I do not know why he was concerned for a minority opinion, and it must be said that it is because the plain meaning of the sugya in Sotah does not indicate so (as the Gra wrote in subsection 12; see there). And it appears to me that in a case where she was swapped, even the first opinion admits, for they only said she and her co-wife are exempt when there are witnesses, and not when there are no witnesses to the matter, even if it is clear that she committed adultery and even if she says she committed adultery, for the verses of Sotah deal with witnesses, as is explicit there.

A woman whose husband went to a province overseas and she married based on witnesses or based on one witness whom the beit din permitted, and afterwards her husband came back and died, her rival wife is permitted to undergo yibbum and is not like the rival wife of a sotah, for she married with the permission of the beit din and from the Torah she is permitted even to her husband, and only by rabbinic decree is she forbidden, as was written in siman 17. Therefore, she herself also requires chalitzah and does not undergo yibbum by rabbinic decree, just as her husband was forbidden to her by rabbinic decree and he comes through the power of the husband; but her rival wife is permitted whether for chalitzah or for yibbum (Yevamot 11a).

The wife of his brother who was not in his world is not subject to yibbum, as it is written: "When brothers dwell together," implying that they must have one dwelling in one world. Since she is not subject to yibbum, she is like the wife of a brother not in the context of a mitzvah, which is an ervah and carries the penalty of karet, and she exempts her co-wife. How so? Reuven died and his wife fell before Shimon his brother, and afterwards another brother was born to their father named Levi; Levi is liable for karet for the wife of Reuven. There is no difference whether Levi was born before Shimon performed yibbum with the wife of Reuven or whether he was born after Shimon performed yibbum with her. For even though when he was born she had already undergone yibbum and he did not find her under the zika of his first brother's marriage, nevertheless she has the status of the wife of his brother who was not in his world. Therefore, when Shimon dies and she falls before Levi for yibbum, she and her co-wife are exempt from chalitzah and from yibbum, according to the law of a co-wife of an ervah. And if Shimon died before he performed yibbum, her co-wife performs chalitzah but does not undergo yibbum, for since we establish that "there is zika," she is the co-wife of the wife of his brother who was not in his world through zika. Nevertheless, she performs chalitzah because she is not a complete co-wife since this one had not yet undergone yibbum. The same applies if Shimon performed maamar with her, her co-wife also performs chalitzah, for maamar does not effect a complete acquisition. (The Tur challenged the Rambam regarding what he wrote in chapter 6, halacha 18, regarding this law "if he performed maamar with her etc.," for even without maamar the law is so since there is zika; however, the Rambam adopted the language of the Mishnah 18b; and see Beit Yosef):

The Tur and the Shulchan Aruch wrote in section 14: A minor who is not an ervah to him, and he died and the minor performed miun against the yavam, she is forbidden to him and permitted to a stranger without chalitzah if there are no other brothers; and specifically she, but her tzarah is permitted to him, and even she is permitted to the rest of the brothers against whom she did not perform miun. Thus far their words. The explanation of the matters is that we hold that even after the death of the husband she can perform miun against the yavam and uproot the first marriage, for she performs miun against his zikah (like Ulla 107b). And certainly if she performs miun without specification, saying "I do not desire the zikah of the yavamin," she is separated from all of them; but if she says "I do not desire the zikah of this yavam," she is released only from him and not from the rest of the brothers, for in his zikah she has no desire, but in the others she has desire (ibid.). And if she says "I do not desire the first marriage," she is also released from all of them. And this is what they ruled, that when she performed miun against this yavam, she is permitted from his side without chalitzah when there are no other brothers, but when there are others, she is not released from them. But to this one against whom she performed miun, she is forbidden to him. And even though we hold in siman 155 that when she performs miun against her husband she is permitted to his father because she uprooted the marriage entirely and she is like a stranger, if so, here too why should he be forbidden to her? For it can be said: since she did not perform miun against her husband during his lifetime, she appears like his brother's wife and not in a place of mitzvah since she performed miun. Therefore, her tzarah is permitted, for there is nothing here that would forbid her to him. And so too the rest of the brothers, one of them is able to perform yibbum with her, and if they do not want to perform yibbum with her, one of them is obligated to perform chalitzah for her (we have explained according to the words of the Ramban in the Milchamot).

From the words of the Rambam, chapter 11 of Gerushin, law 17, it is explained that even when she performed me'anah with one of the yevamin, she is exempt from all of them from the perspective of the zika, except that she is permitted to them; see there. And there is one who wishes to depend this dispute on the dispute explained in siman 155, section 13: if she performed me'anah with the yavam, such that she is forbidden to his father, whether she is also forbidden to the rest of the deceased's relatives; see there. And it is impossible to say so, for our teacher, the Beit Yosef, ruled there like the Rambam that she is permitted to the rest of the relatives, yet here he ruled that she is not exempt from the others. Rather, it is certain that they are not related to one another (see Beit Shmuel, subsection 18, and there is no necessity in this; and besides this, it is possible to reconcile the words of the Rambam with the words of the Ramban, only that he distinguishes when she says explicitly, "I do not wish to be exempt except from you," and delve into this).

The Tur further wrote: A minor who was married to his maternal brother or to his mother's brother, and he died and she married his paternal brother, and he died and she fell before him for yibum while still a minor—she cannot perform mi'un to uproot the first marriage in order to undergo yibum; and her co-wife performs chalitzah and does not undergo yibum, and it appears that even she performs chalitzah if she performs mi'un. Thus far his words. The explanation of the matters is that the wife of his maternal brother is a Torah prohibition of ervah, and the wife of his mother's brother is among the secondary prohibitions of ervot, as written in siman 15. Therefore, she does not have the power to perform mi'un now regarding the first marriage so that she may undergo yibum, because at the time of falling she appeared as an ervah or as a secondary prohibition. And this is as written in siman 155, that if she performed mi'un against the yavam she is forbidden to his father because at the time of falling she appeared as his daughter-in-law, see there, and here it is also so. And her co-wife performs chalitzah and does not undergo yibum; and it is not only necessary to state this when she was the wife of his maternal brother, but even when she was the wife of his mother's brother, which is a secondary prohibition—and we establish that the co-wife of a secondary prohibition is permitted for yibum, and it will be explained in siman 174—nevertheless, here the co-wife is forbidden to undergo yibum. For just as they forbade the co-wife of his daughter from undergoing yibum when his daughter performed mi'un after death because at the time of falling she appeared as the co-wife of his daughter, so too if we permit this secondary prohibition to perform mi'un after his death to permit her co-wife, they would also come to permit the co-wife of his daughter (the Rif, chapter "Beit Shammai"). And that which he wrote, "that even she performs chalitzah if she performs mi'un," his intention refers to the wife of his maternal brother; for without mi'un she would be exempt, for even though she is an ervah only by rabbinic law according to the law of the marriage of an orphaned minor, nevertheless the marriage of the paternal brother is not superior to the marriage of the maternal brother (the Gra, subsection 20). But regarding the wife of his father's maternal brother, even without mi'un she performs chalitzah (ibid.), for the marriage of the wife of his father's maternal brother was a rabbinic secondary prohibition, and the marriage of the paternal brother would be by Torah law for an adult; therefore these marriages are superior to the first marriages, and a rabbinic zika applies to her, and she requires chalitzah.

The wording of our teacher, the Beit Yosef, in section 13 is perplexing regarding this matter, as he wrote, and this is his wording: A minor who was married to the brother of her mother (so it should be read), which is a sheniyyah to him, and he died, and his paternal brother married her and died, and she fell before a levir for yibbum and she is still a minor—we do not say she should perform mi'un to uproot the first marriage so that she may undergo yibbum; rather, her rival wife performs chalitzah and does not undergo yibbum, for even she performs chalitzah if she performs mi'un. Thus far his words. And it is difficult, for even if she does not perform mi'un she requires chalitzah (ibid.). And it must be said that this is what he meant: that if she does not perform mi'un, her rival wife is not exempted by her chalitzah, but if she performs mi'un, she exempts her rival wife. And this is the explanation: that even she, her chalitzah is sufficient if she performs mi'un. (And as for the difficulty raised by the Gra, that the rival wife of a sheniyyah should undergo yibbum, we have already resolved it according to the words of the Rif, that mi'un after death is worse, as a decree on account of the rival wife of his daughter; and delve into this).

And know that this law is in the Gemara (108b) in this language: If the wife of his maternal brother, who is a sheniyah to him, [died] and his paternal brother married her and died, what is the law as to whether she may perform miun now and uproot the first marriage so that her tzarah may perform yibbum? And they asked Rava and he forbade it; see there. And there are those who do not have the version "her tzarah" because it was obvious to them that her tzarah is permitted even without miun, according to the law of the tzarah of a sheniyah; rather, the question was regarding the sheniyah herself (the Rashal and in Yam Shel Shlomo chapter 13, siman 12, and the Gra there). And the Rambam omitted this law entirely, and the Maggid Mishneh already wondered about this in chapter 11 of Gerushin; see there. And he also did not write at all the law of miun after death except regarding his daughter-in-law who performed miun to the yavam, that she is forbidden to his father because she appeared at the time of falling as his daughter-in-law. And it is possible that he relied on this for all matters, and regarding her tzarah it was obvious to him that she is permitted, and it requires further study. And so is the law if she wishes to perform miun regarding the marriage of his paternal brother so that her tzarah may perform yibbum, it is forbidden according to the first opinion (the Maharsha there, who upholds the version "her tzarah" and explains thus, and the Gra there raised many difficulties against him, and his primary difficulty is from that which we establish that the tzarah of a sheniyah is permitted, and we have already settled this; and according to the Rashal and the Gra, also in the Rif the version "her tzarah" is not present).

It has already been explained that the co-wife of a certain sotah is exempt from chalitzah and from yibbum, and a doubtful sotah performs chalitzah but does not undergo yibbum, and the co-wife undergoes yibbum. According to this, there is room for doubt, for we maintain that just as she is forbidden to the husband, so too she is forbidden to the adulterer; if the adulterer transgressed and married her and died, what is her law regarding chalitzah and yibbum, and likewise regarding her co-wife (Mishneh LaMelech chapter 6, halacha 19). And from the Yerushalmi Sotah (beginning of chapter 5) it implies that they have one law, as we find the version there: Just as she is forbidden to the brother of the husband, so too she is forbidden to the brother of the adulterer, see there. And his intention is when the adulterer married her and died (ibid.). And so it appears, for regarding the adulterer it is also written "and she is defiled," as is explained there in the Mishnah.

One who died and did not leave a certain wife at all, but rather a doubtful wife, such as one with whom he had a doubtful kiddushin or a doubtful divorce; in a case of doubtful kiddushin, he may perform yibbum or chalitzah, for if it was not a valid kiddushin, she is a stranger to him and permitted to him. But in a case of a doubtful divorce, she performs chalitzah and may not perform yibbum, for perhaps the get was valid and it turns out she is his brother's divorcee and subject to karet. And that which we learned in the Tosefta (chapter 12), that all doubtful cases perform chalitzah and may not perform yibbum, does not refer to doubtful kiddushin; and so it is explicitly explained in the Gemara (41b), see there.

The sages taught in the Mishnah (108b): One who divorces a woman and remarries her, she is permitted to the yabam, and we do not say that since at the time she was divorced she stood before him under the prohibition of a brother's divorcee which is punishable by karet, how could she be permitted now? For since at the time of the zika she was permitted to him, we are not concerned with what preceded it, as the primary factor is the time of falling for yibum. Similarly, one who divorces an orphan and remarries her—meaning he married a minor orphan through rabbinic marriage, divorced her, and remarried her—she is permitted to the yabam, for just as her marriage is rabbinic, so too her get is rabbinic (and this requires great study, as I wrote in siman 141, section 9, and it must be said that it is not exact). However, a minor whose father married her off, which is a Torah marriage, and she was divorced during her minority through her father, whereby the get is also from the Torah, and he remarried her afterwards, which is a rabbinic marriage—for once she was married her father no longer has authority over her, and this is what is called an "orphan during the lifetime of the father"—and he died while she was still a minor, or even if she reached majority but he did not have relations with her after she reached majority, she is forbidden to the yabam. For according to the Torah, she is his brother's divorcee and he is liable for karet on her account. According to the Rambam, she is also exempt from chalitzah, but the Tur wrote that she performs chalitzah. It is possible that his reason is that not everyone knows the distinction and they might say that a yevamah goes out to the market without anything. It is better that the rival wife performs chalitzah and she too will be exempt, for if this one performs chalitzah, she would not exempt the rival wife with her chalitzah (Beit Shmuel, subsection 22), as there is no substance to her chalitzah, as has been explained.

And such is the law regarding a woman with her faculties who became a deaf-mute, and when he divorced her she had her faculties, and she became a deaf-mute and married [the second husband] and he died, that she is forbidden to the yavam; for her divorce was from the Torah and her second marriage was rabbinic. And if she regained her faculties while with him and he had relations with her after she regained her faculties, and similarly a minor who reached majority while with him and he had relations with her after she reached majority and he died, they are permitted to the yavam, for it has retroactively become a marriage of the Torah, as a minor and a deaf-mute have the same law. And all the more so if he remarried them after she regained her faculties or reached majority, for then even if he did not have relations with them they are permitted, as the marriage is of the Torah.

This minor whose divorce is from the Torah and whose return is rabbinic and is forbidden in yibum, and similarly with a deaf-mute in this manner, her co-wife is permitted to perform yibum and her law is not like the co-wife of an ervah, for from the Torah she is not the wife of this deceased person, as she is also exempt from chalitzah according to the opinion of the Rambam as I have written, and she is not her co-wife at all. And it is not similar to a minor who is an ervah to the yabam where her co-wife performs chalitzah and does not perform yibum as is taught at the beginning of Yevamot, for there the ervah is from the perspective of the essence of the yabam, such as his daughter or his wife's sister and the like, but here the ervah is from the perspective of his deceased brother. And if so, whichever way you look at it: if we follow the law of the Torah, she is not an ervah at all for she was already divorced, and if we follow the rabbinic law, he took her back and she is his wife and is not an ervah to the yabam.

It appears to me that this reasoning is found in the Yerushalmi (chapter 2 of Yevamot, halacha 6), for there is a dispute regarding this there, and it states there the reasoning of the one who permits with this wording: from whatever side [you approach it], the side through which he acquired her, corresponding to it he permitted her co-wife, and the side through which he did not acquire her, corresponding to it he permitted her co-wife. Thus far his words. And it means to say: if you follow the side that the deceased has an acquisition in her, which is rabbinic since he took her back, then her co-wife is permitted, for she is not essentially an ervah to the yavam. And if you follow the side that he did not acquire her, corresponding to it, and this is according to the Torah, for he has no marriage with her according to the Torah, her co-wife is also permitted, for she is not the co-wife of an ervah at all, as she had already been divorced. And it is possible that this is the reasoning of the Rif and the Rambam in chapter 6, who ruled that her co-wife performs yibbum (and in the Gemara there it is only according to Rabbi Eliezer, see there and examine closely).

And our teachers, the Rishonim (the Ramban, the Rashba, the Rosh, and the Nimukei Yosef), gave another reason for their words: because if this minor were to grow up with him, she would be subject to yibbum herself. Therefore, it is not appropriate to decree regarding the co-wife due to the forbidden relation as in other cases of minors who are forbidden relations, since regarding her herself there is a permission over the course of time. And we do not decree regarding the co-wife due to her that they might come to perform yibbum with her, for most people are experts in the fact that the kiddushin of an orphaned minor is of rabbinic status. See there.

And the opinion of the Ra'avad and the Ma'or is that her rival-wife is forbidden from performing yibbum just like she herself, for we decree regarding her rival-wife on account of she herself. And in the Gemara there, where they permitted her rival-wife, it is not according to the halacha; see there. And in truth, in the Yerushalmi there is a dispute regarding this, and the conclusion of the Yerushalmi appears to be toward prohibition; see there. However, many Amoraim permit there. And for the law, it appears that one should be concerned for those who prohibit. And it requires further study in the Shulchan Aruch, section 16, that he did not bring the opinion of those who prohibit at all, while in the Tur he did bring it; see there.