Siman 176

The sages taught in the Mishnah (23b): One who betrothed one of two sisters and does not know which of them he betrothed, he gives a get to this one and a get to this one. It has already been explained in siman 41 that even if they were never identified, such that even at the time of the kiddushin he did not know which of them he betrothed and he was unable to cohabit with either of them because perhaps she is his wife's sister—and it would be kiddushin that are not fit for cohabitation—nevertheless, it is kiddushin. For this is how we rule: kiddushin that are not delivered for cohabitation are kiddushin. (And the Gemara there, which establishes it as a case where they were identified and subsequently became mixed up, this is according to Rava; but we rule according to Abaye, as the Rif wrote):

We further learned: If a man died and has one brother, he performs chalitza for both of them, for he does not know which one is his yevama. And performing chalitza for one and yibum for the other is not done, because the sister of his chalutza is forbidden to him by rabbinic enactment during her lifetime. And performing yibum first is also not done, for perhaps this is not his yevama and he encounters the sister of his zekuka, who is like his wife (Rashi). If he had two brothers, one performs chalitza and one performs yibum; that is to say, one performs chalitza first to one, and the second, if he wishes to perform yibum to the second, he performs yibum. For if this is his yevama, it is well, and if it is her sister, he does not encounter the sister of his zekuka, for chalitza removed the zika (ibid.). And we do not decree perhaps he will perform yibum first before they perform chalitza to her, for because of this we do not decree; for even if it should happen so, perhaps he will happen upon the zekuka, and although it is forbidden to do so, nevertheless, to decree because of this we do not decree (see Tosafot ibid. 24a, s.v. "ei"). And it is possible to say further that according to the one who says the mitzvah of yibum precedes chalitza, it is proper to do so: that first one brother should perform chalitza to her, and afterwards the second should perform yibum to the second, for perhaps he will happen upon the yevama and fulfill the mitzvah of yibum (for in a similar case we say so on 98b; see there).

We further learned: If they preceded and married, we do not remove them from their hands. That is to say, when he has two brothers and they preceded before they asked the beit din, and each one married one of the sisters, we do not remove them from their hands, for each one can say, "I married the one subject to zika," or her sister after she was married to the second. That is to say, it is possible that both of them happened upon a permitted state, for the one who was married first was the one subject to zika and the second was her sister. And even if it were the opposite, that the first married the sister of the one subject to his zika, at that time he was certainly in a state of prohibition; however, once his brother came and performed yibbum with the second, who is his yevama, the zika was retroactively uprooted from the other (ibid.).

The Tosafot and the Rosh wrote that specifically here we do not remove them from their hands, because it can be said that each one did not commit a prohibition, as has been written. However, if he married the sister of his zekukah, he must certainly remove her, since he cohabited with her under a certain prohibition. And even according to the opinion explained in siman 158 that we do not remove her, that is when he betrothed her first and had not yet cohabited with her under a prohibition, for the zikah was severed by the kiddushin as has been written there; but if he cohabited with her without kiddushin, such that the act of cohabitation was under a prohibition, we remove her from his hand (Tosafot).

And behold, the Tur also wrote thus, and according to this, he contradicts himself regarding what he wrote in siman 175 concerning four brothers where two are married to two sisters and died, that they perform chalitzah and do not perform yibbum, for each one encounters the sister of his zekukah. And the Tur wrote there that if they preceded and married, they do not remove them from their hands. Therefore, the acharonim wrote that it is a scribal error in the Tur (Bach and Beit Shmuel). And we explained there in section 8 that there is no scribal error here, and that the Rambam wrote thus in the Commentary on the Mishnah, and the Bartenura ruled thus in Eduyot, see there. And nevertheless, it can be said that there is no contradiction from here, and it is not similar to the above; for here it deals with one who encountered the sister of his zekukah without the mitzvah of yibbum, but there, behold, there is a mitzvah of yibbum with each one, and granted that initially it is forbidden because of the sister of a zekukah, nevertheless, when the prohibition was transgressed such that the second performed yibbum, behold, the mitzvah of yibbum was fulfilled, and therefore they do not remove her from his hand. This is not the case here; even when the prohibition was transgressed, there is no mitzvah here, and therefore they remove her from his hand.

Some say that from what we learned in the Mishnah this law, that if they preceded and married they do not remove them from their possession in the case of two brothers and not in the case of one brother, we learn from this that in the case of one brother, if he performed chalitzah to one of them and married her sister, he must divorce her even ex post facto, for perhaps he married the sister of his chalutzah. And even though the sister of a chalutzah is by rabbinic enactment and it is a rabbinic doubt, nevertheless they forbade it even ex post facto because they decreed the sister of a chalutzah due to the sister of a divorcee, which is punishable by karet; therefore, they strengthened their decree even in a case of doubt and ex post facto when there is only a doubt that she is under him in prohibition (Nimukei Yosef). And all the more so if at the outset he married one and afterwards performed chalitzah to the second or did not perform chalitzah at all (and see Be'er Sheva subsection 1):

The Rosh, the Tur, and the Shulchan Arukh further wrote that this which was taught in the Mishnah, "if they preceded and married, we do not remove [them] from their hands," this is when they married before they asked the beit din, as is implied by the expression "preceded," meaning they preceded to act before they asked (and so it is implied from Rashi). However, when they asked the beit din and they commanded them that initially one should perform chalitzah with one and afterward the second should perform yibbum with the second, and they both married, we remove [them] from their hands because they transgressed the opinion of the beit din.

We further learned: Two men who betrothed two sisters, this one does not know which one he betrothed and that one does not know which one he betrothed, this one gives two gittin and that one gives two gittin. If they died, and this one had a brother and that one had a brother, this one performs chalitzah with both of them and that one performs chalitzah with both of them, for each and every one of them is forbidden to perform yibbum, for perhaps he will encounter the sister of his zekukah (Rashi). If this one had one brother and that one had two, the lone brother performs chalitzah with both of them, and of the two, one performs chalitzah and one performs yibbum; and first the one performs chalitzah with her, and afterwards the second performs yibbum, for whatever the case may be: if she is his yevamah, it is well, and if not, the zikat yevamin has already been severed from her by the chalitzah of the former. If they went ahead and married, we do not remove them from their hands, as has been explained. And know that it is stated in the Gemara (24a) that in all that we learned here, "if they went ahead and married we do not remove them from their hands," this is even when both of them are kohanim, because the prohibition of a chalutzah to a kohen is rabbinic, and they did not decree in a case of a doubtful chalutzah. And it is not similar to what was written in section 6, that they decreed regarding the sister of a chalutzah on account of the sister of a divorcee even in a case of doubt; and if so, why should we not decree for kohanim on account of a divorcee? For it can be said that they are not similar, as the sister of a divorcee is an ervah and subject to karet, but a divorcee to a kohen is a mere lav, and therefore they were not stringent regarding a doubtful chalutzah on account of a doubtful divorcee, since even the certain case is only a lav.

If this one had two brothers and that one had two brothers, the brother of this one performs chalitzah for one, and the brother of that one performs chalitzah for one; the brother of this one performs yibbum with the chalutzah of that one, and the brother of that one performs yibbum with the chalutzah of this one. And from whatever side you approach it: if this is his yevamah, he marries well, for his brother did not perform chalitzah for this one, but for her sister who was not his yevamah and it is nothing; and if she is not his yevamah, he marries well as she is a stranger, for there is no concern due to the sister of one bound to him, since his brother performed chalitzah for her sister who was his yevamah and the zika was severed; and if the concern is a yevamah to a stranger, she has already received chalitzah from her husband's brother (Rashi).

If two of the brothers preceded and performed halizah for both of them because they did not know which one was the yevamah, the other two brothers may not perform yibbum, this one to this one and that one to that one, because regarding the first it can be said that he is taking the sister of his zekukah. Rather, one first performs halizah for one, and afterward the second performs yibbum for the second, regardless of the case: if she is his yevamah, it is well; and if she is not his yevamah, he has not encountered the sister of his zekukah, for his brother already performed halizah for his yevamah. And there is also no need to doubt a yevamah to a stranger, for she has already received halizah from her husband's brother, as she received halizah from all of them.

And if these latter two preceded and married after the chalitzah of the first two and did not come to ask the beit din, we do not remove them from their hands, for there is nothing here but a doubtful prohibition of the sister of one's zekukah in the first marriages of these two. For it can be said that it turned out properly for both of them, as the first married his yevamah and the second married a stranger, and she had already received chalitzah from the first brothers. And even if it happened the opposite way, that the first married the sister of his zekukah, nevertheless, once the second came and performed yibbum, the zikah was severed from him and his wife became permitted to him, and the prohibition that was done, was done (Rashi).

One whose husband went to a distant land and they heard that he died, and she married based on witnesses or based on a beit din as written in siman 17, and afterwards her husband came—meaning they testified falsely or they erred—and both of them died, her first husband and this one whom she married, the brother of this one and the brother of that one perform chalitzah and do not perform yibbum. The brother of the first performs chalitzah by Torah law and does not perform yibbum by rabbinic law (Gemara 91a), for the sages penalized her because she did not investigate the testimony of the witnesses as to whether it was true that he died. And the brother of the second performs chalitzah by rabbinic law, for by Torah law she is not his yevamah at all, since the kiddushin of his brother did not take effect with her; rather, it is by rabbinic law that they required her to have chalitzah because of a decree, lest they say that the first divorced her and the second married her. And he does not perform yibbum, neither by Torah law nor by rabbinic law. However, her co-wife may perform yibbum with the brother of the first, as written in siman 173.

A woman who had sons and her daughter-in-law had sons, and she and her daughter-in-law gave birth to two males in a hidden place and the sons became mixed up, and they grew up and married women and died—the sons of the daughter-in-law perform chalitzah for both of them first and do not perform yibbum, for each of the two is a doubt whether she is his brother's wife, who is permitted to him, or if she is his father's brother's wife, who is an ervah to him. However, the sons of the old woman have a different law, for after the sons of the daughter-in-law have performed chalitzah, they perform chalitzah or perform yibbum from whatever the case may be [mi-mah nafshach]; for if she is his brother's wife, behold it is incumbent to perform yibbum with her, and if she is the wife of the son of the daughter-in-law, behold she is his brother's son's wife and is permitted to him after she has already received chalitzah, and for each one the case is so from whatever the case may be, as is understood.

And if the certain sons of the old woman and of the daughter-in-law died and the doubtful ones remain, for the wives of the sons of the old woman, the doubtful ones perform chalitzah and do not perform yibbum, for each one is a possible wife of his father's brother. But for the wives of the sons of the daughter-in-law, initially one of the doubtful ones performs chalitzah for her, and afterwards the second one performs yibbum from whatever the case may be: for if this one who performed chalitzah is the son of the daughter-in-law, he has performed chalitzah for his brother's wife, and if so, the second doubtful one is the son of the old woman, and it is permitted for him to marry the wife of his brother's son after she has received chalitzah from her yavam. And if this one who performed chalitzah first is the son of the old woman, and he has performed chalitzah for the wife of his brother's son and has done nothing, if so, the second doubtful one is the son of the daughter-in-law, and he performs yibbum with his brother's wife.

A woman who did not wait three months after the death of her husband or after she was divorced, and married another and gave birth, and it is not known if the offspring belongs to the first and she gave birth at nine months, or if he is the son of the second and she gave birth at seven months; and she had sons from the first and from the second, and the doubt grew up and married a woman and died—her sons from the first and from the second perform chalitzah and do not perform yibbum, for to each of them he is a doubt lest he is his brother from the mother and not from the father, and he would be liable for karet for her. And so too the doubt for their wives performs chalitzah and does not perform yibbum for this reason. And if the first and the second each had a son from another woman and they died, this doubt performs chalitzah or performs yibbum for their wives, for if he is his brother from his father, behold he performs chalitzah for his yevamah or performs yibbum for his yevamah, and if he is not his brother, she is a stranger to him and is permitted to him when she has no other yavam to whom she would be bound. And if the doubt died, one of the two certain sons performs chalitzah to her first, and afterwards the second performs yibbum from whatever the case may be: if she is his brother's wife, behold she is his yevamah, and if she is not his brother's wife, she is a stranger to him and has already received chalitzah from the brother whose yevamah she is. And so too when they died and each one has many sons from another woman, one of the certain ones performs chalitzah first, and afterwards the doubt may marry her for the reason that has been explained.

Five women each had a known son, and all five of them gave birth in one hiding place and the offspring were mixed up, and they grew up and married women and died, and their wives fell before the five certain sons, none of whom knows which is his brother's wife—this is their remedy: Four of the certain sons perform chalitzah for one, and the fifth marries her after she has received four chalitzah acts; for if she is his brother's wife, she is a yevamah, and if she is not his brother's wife, she is a stranger and has already received chalitzah from the yavam, as one of these four is necessarily her yavam. And likewise for the second, four perform chalitzah for her and the fifth marries her, and likewise all of them. And the law is the same that one may marry all of them after each has received four chalitzah acts, but this is better, for perhaps each will happen upon her yavam and the mitzvah of yibbum will be fulfilled. And if one of the certain sons died, four of the doubtful sons perform chalitzah for her and the fifth performs yibbum. If some of the certain sons were kohanim and some were not kohanim, the kohanim perform chalitzah and do not perform yibbum, lest they encounter a chalutzah, and those who are not kohanim perform yibbum. And likewise, if among these doubtful cases some of the certain sons were brothers from the mother and not from the father, and some were brothers from the father and from the mother, those who are from the mother alone perform chalitzah and do not perform yibbum, for it is a prohibition of karet, and the brothers from the father either perform chalitzah or perform yibbum. If some were kohanim and some were brothers from the mother, they all perform chalitzah and do not perform yibbum (see Rashi 98b, s.v. hachi garsinan, and in the Tur).

Regarding the mixtures we have written about, there are times when a man performs chalitza for his mother, his sister, or his daughter. How so for his mother? His mother and another woman gave birth to two males in a hidden place, and he is one of them, and they also have two certain males—for example, Rachel the wife of Yaakov who bore him Yosef, and Chanah the wife of Reuven who bore him Chetzron, and furthermore Rachel and Chanah bore two males in a hidden place. Yaakov and Reuven died, and Yosef married Chanah and Chetzron married Rachel. Yosef and Chetzron died, and [the widows] fell for yibbum before the mixtures. Rachel fell before the son of Chanah, who is the brother of Chetzron, and Chanah fell before the son of Rachel, who is the brother of Yosef. Since it is not known who is her son and who is her yavam, and she requires chalitza from both of them, he performs chalitza for his mother out of doubt. How so for his sister? His mother and another woman gave birth to two females in a hidden place, and his mother had given birth [to him] from another man whom she married after the death of his father, and they were mixed, and it is not known which daughter belongs to which mother. Two brothers of this man, who were his brothers from his father but not from his mother, arose and married the mixed daughters, and both fell before him for yibbum. One of them is his sister from his mother, and if he had recognized her, she would not have required chalitza; but now that he does not recognize her, she requires chalitza. For his daughter? How so? His wife and another woman gave birth to two females in a hidden place—for example, the wife of Reuven and the wife of Shimon who gave birth to two females and they were mixed. Two brothers of Reuven came and married them. It turns out that Reuven performs chalitza for his daughter out of doubt when his two brothers died. Had he known which was his daughter, he would not have performed chalitza for her, but now that he does not know, he necessarily performs chalitza for his daughter because of the doubt (Gemara 99a). The Laws of Chalitza are concluded.