Dedicated as a zechut for Chaya Fradel bat Sara Yenta and Tzvi Yaakov Yehoshua ben Rachel and all those seeking their zivugim
First a word about Seder Nashim….
Nashim (literally, women) is the third seder (order) of Mishnayot. It deals with the laws of betrothal and marriage. This includes:
• Obligations of both parties
• Financial arrangements related to marriage
• Dissolution of marriage
• Financial arrangements for widow or divorcee
• Violation of marital laws and its consequences:
o Status of children
The Seder also discusses (as a tangent) the laws of Nedarim (vows) as well as Nazir. The Rambam explains the placement of these two bodies of law here as due to the fact that the husband has (a limited) authority to nullify some of his wife’s vows. Connected to the laws of vows is the nazir , which status is invoked as the result of a vow.
Seder Nashim contains seven masechtot:
• Yevamot: The laws of yibum (levirate marriage) and chalitza; incestuous and other prohibited marriages; stringencies for Kohanim; the aguna
• Ketubot: The financial settlement to which a woman is entitled upon divorce or widowhood as specified in her ketuba (marriage contract); financial and other obligations resulting from marriage and from the ketuba; circumstances for divorce; property held in trust by the husband for the wife; rights of the woman after the dissolution of the marriage by divorce or death
• Nedarim: The formulas used in making different types of vows and oaths; validity of insincere vows; nullification of vows
• Nazir: The vows which initiate the status of nazir; renewal of nazir status after contact with a corpse; impact and nullification of nazir vows; the prohibitions of a nazir
• Sotah: A married woman who commits adultery; the procedure in the Bet HaMikdash when a woman is accused by her husband; women who are exempt from the procedure; description of several (unrelated) ceremonies; who goes out to war and who is exempt; the laws of egla arufa ; the change in the Jewish nation after the destruction of the Bet HaMikdash
• Gittin: The laws of divorce
• Kiddushin: The laws of kiddushin (betrothal); laws of property acquisition; conditions to marriage; marriage of a minor daughter; effect of prohibited relationships
And now to Yevamot:
כִּי־יֵשְׁבוּ אַחִים יַחְדָּו וּמֵת אַחַד מֵהֶם וּבֵן אֵין־לוֹ לֹא־תִהְיֶה אֵשֶׁת־הַמֵּת הַחוּצָה לְאִישׁ זָר יְבָמָהּ יָבֹא עָלֶיהָ וּלְקָחָהּ לוֹ לְאִשָּׁה וְיִבְּמָהּ׃ וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד יָקוּם עַל־שֵׁם אָחִיו הַמֵּת וְלֹא־יִמָּחֶה שְׁמוֹ מִיִּשְׂרָאֵל׃ וְאִם־לֹא יַחְפֹּץ הָאִישׁ לָקַחַת אֶת־יְבִמְתּוֹ וְעָלְתָה יְבִמְתּוֹ הַשַּׁעְרָה אֶל־הַזְּקֵנִים וְאָמְרָה מֵאֵן יְבָמִי לְהָקִים לְאָחִיו שֵׁם בְּיִשְׂרָאֵל לֹא אָבָה יַבְּמִי׃ וְקָרְאוּ־לוֹ זִקְנֵי־עִירוֹ וְדִבְּרוּ אֵלָיו וְעָמַד וְאָמַר לֹא חָפַצְתִּי לְקַחְתָּהּ׃ וְנִגְּשָׁה יְבִמְתּוֹ אֵלָיו לְעֵינֵי הַזְּקֵנִים וְחָלְצָה נַעֲלוֹ מֵעַל רַגְלוֹ וְיָרְקָה בְּפָנָיו וְעָנְתָה וְאָמְרָה כָּכָה יֵעָשֶׂה לָאִישׁ אֲשֶׁר לֹא־יִבְנֶה אֶת־בֵּית אָחִיו׃ וְנִקְרָא שְׁמוֹ בְּיִשְׂרָאֵל בֵּית חֲלוּץ הַנָּעַל׃
When brothers dwell together and one of them dies and leaves no offspring, the wife of the deceased shall not become that of another party, outside the family. Her husband’s brother shall unite with her: he shall take her as his wife and perform the levir ’s duty. The first child that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel. But if that party does not want to take his brother’s widow [to wife], his brother’s widow shall appear before the elders in the gate and declare, “My husband’s brother refuses to establish a name in Israel for his brother; he will not perform the duty of a levir.” The elders of his town shall then summon him and talk to him. If he insists, saying, “I do not want to take her,” his brother’s widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: “Thus shall be done to the man who will not build up his brother’s house!” And he shall go in Israel by the name of “the family of the unsandaled one.”
If a man dies without children, his brother is commanded to marry the widow to “establish” his brother’s name, so that it not be “blotted out.” This mitzva – and the concepts underlying it – has been the subject of much discussion and explanation. For example, Rabbi Samson Raphael Hirsch, in his commentary to Devarim 25:5 explains that this mitzva represents an act of lovingkindness performed towards someone who is no longer alive, concluding a series of mitzvot dealing with various acts of consideration, mercy and kindness. Rabbi Hirsch notes that the main purpose is not to care for the widow who has been left behind, since the determinant for the applicability of yibum is the childlessness of the deceased, and not whether his wife had borne children to someone else. The leading idea, he explains, is consideration for the dead brother and his memory. He connects this to the first mitzva in the Torah – פרו ורבו – be fruitful and multiply, and associates the word for children, banim, with the word for building, binyan. When a man dies without having left children, the edifice which he could have built does not exist. All that he accrued in his lifetime will go to others. Thus, the Torah provides for a continuation of his life’s work, as, in Rabbi Hirsch’s words, “the name of the deceased hovers over this marriage and the inheritance that goes with it; and within the framework of this marriage, the moral and spiritual influence of the deceased lives on.”
Apparently, yibum was practiced in some form before the Torah was given. In Bereishit 38, when Yehuda’s son, Er, dies, leaving Tamar a childless widow, yibum is performed by the next son, Onan. When Onan dies, Yehuda is reluctant to allow his third son, Shela, to marry Tamar. The Torah describes the extraordinary measures that Tamar takes so that she will be the recipient of yibum – ultimately performed by Yehuda himself. Note that, once the Torah was given, yibum was restricted to paternal brothers of the deceased.
The Law of YibumIf a man dies without having had children, one of his paternal brothers must marry the widow. This is a particular exception to the laws of arayot (forbidden relationships ), since in general a man may not marry his brother’s former wife:
עֶרְוַת אֵשֶׁת־אָחִיךָ לֹא תְגַלֵּה עֶרְוַת אָחִיךָ הִוא׃
Do not uncover the nakedness of your brother’s wife; it is the nakedness of your brother.
Yibum is effected when the brother and the widow engage in marital relations. According to Torah law, kiddushin and chupa are not effective in establishing the yibum bond. However, the Rabbis enacted that a ”pre-yibum” bethrothal, as maamar (designation) be performed . If maamar is not performed, or if it is performed against the widow’s wishes, yibum is still effective .
In addition to the positive mitzva of yibum, there is a prohibition upon the widow to marry anyone other than her husband’s brothers, as long as yibum (or chalitza) is possible. However, if it is impossible – because there are no living brothers or because she is forbidden to marry the brothers due to other considerations – she may marry anyone she wishes.
In the event that the widow refuses to marry any of the brothers, or that none of them wish to marry her, a procedure known as chalitza (literally, “removing a shoe”) is performed. This is based on Devarim 25:9:
וְנִגְּשָׁה יְבִמְתּוֹ אֵלָיו לְעֵינֵי הַזְּקֵנִים וְחָלְצָה נַעֲלוֹ מֵעַל רַגְלוֹ וְיָרְקָה בְּפָנָיו וְעָנְתָה וְאָמְרָה כָּכָה יֵעָשֶׂה לָאִישׁ אֲשֶׁר לֹא־יִבְנֶה אֶת־בֵּית אָחִיו
his brother’s widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: Thus shall be done to the man who will not build up his brother’s house!
Chalitza not only “frees” the widow from yibum, it actually forbids her to any of her brothers-in-law. The details of chalitza are described in Perek 12.
When yibum is possible but there is a refusal to perform it, chalitza is needed. If yibum is precluded by halacha, there is no chalitza.
There are three main cases where, while yibum is impossible, chalitza is still performed:
• Where yibum is required on a Torah level but prohibited by the Rabbis, such as when the widow is a woman who is forbidden to a Kohen and her husband was a Kohen.
• Where there is a question of yibum is required
• Where Torah law precludes yibum but requires chalitza; i.e., when she is prohibited to the brother by both a negative and a positive commandment. An example would be a widow who “falls to” a Kohen Gadol, who:
o Positive commandment: may only marry a virgin AND
o Negative commandment: may not marry a widow.
He may not marry her, but she needs chalitza before she can marry anyone else.
Co-wives are known as tzarot (See I Shemuel 1:6). The requirement of yibum is for ONE of the brothers to perform yibum (or chalitza) with ONE of the widows. Once this has happened, all the tzarot are free to remarry and are forbidden to the remaining brothers.
To Whom Does Yibum Apply?
There are three parties to every “yibum equation”:
• The deceased
• The widow
• The brother(s)
All three must meet certain qualifications for yibum to be invoked.
The deceased: Must have died without children. If he had children who died during his lifetime, without progeny of their own, yibum is invoked. Yibum does not apply if the surviving descendants are illegitimate. However, if they are not Jewish, the Jewish widow would require yibum. The childlessness factor relates only to the deceased – if his widow had children from another marriage, if he was childless (and survivorless), then yibum applies. If the deceased was incapable of fathering children, yibum may apply, depending on the reason for the incapacity.
The widow: Must be someone the brother can legally marry, i.e., not one of the 21 women forbidden to a man because of blood or marriage ties (listed in Vayikra 18).
• Of the 21 forbidden relationships, it is possible for 15 to have been married to the deceased but now forbidden to the brother(s). For example, an uncle may marry his niece. Should he die childless, the widow is forbidden to his brother (her father). These women are now forbidden to their brother(s)-in-law, because the ONLY erva prohibition that is lifted by the yibum obligation is marrying one’s brother’s wife. In these 15 cases, chalitza is not required if the prohibition affects all the brothers. If she is forbidden to only one or some of them, she is still subject to yibum or chalitza from the others.
• If the deceased had more than one wife, and any of the wives is an erva to the surviving brothers, all the widows are excluded from yibum.
• If the widow was previously forbidden in yibum to this brother, yibum is not performed. For example, Leah is married to Reuven, who dies childless. He has two brothers, Shimon and Levi. Levi is married to Leah’s sister, Rachel, so he cannot perform yibum, since a man may not marry a sister of his wife in his wife’s lifetime . So she then “marries (via yibum)” his brother Shimon, who also dies childless. In the meantime, Rachel also died. Now Leah should be receiving yibum from Levi, the last surviving brother, but since he was previously forbidden to her, yibum is not invoked.
• If the widow committed adultery while married, and her husband died before divorcing her, no yibum is performed for her or her co-wives.
• If the widow is an aylonit – an adult woman who never exhibited signs of puberty, and manifests some male characteristics. Since she is inherently incapable of having children, she is excluded from yibum. Note that infertility for other reasons, or the fact that a woman is post-menopausal, does not exclude the woman from yibum. The Gemara (12a-b) debates the yibum status of the co-wives of an aylonit.
• If the widow is prohibited for reasons other than erva, such as mamzerut or the restrictions of a Kohen. There are some cases where yibum is permitted by Torah law, but prohibited by the Rabbis; chalitza is then mandated by Rabbinic law. However, if they performed yibum, she is legally married and he must give her a get.
• The brother(s): Must be paternal brothers, regardless of maternal relationship. They must also be alive at the time of the brother’s death; if born after his death, they are forbidden to marry the widow. In some cases of male infertility, yibum may not be performed. By Rabbinic law, if the brother may not marry an ordinary Jewish woman (e.g., a mamzer, someone who has been castrated, certain converts), then yibum is forbidden. Chalitza is then required. However, if they performed yibum, she is legally married, and he must give her a get.
The Rabbinic Decrees
There are 4 rabbinic decrees which deal with yibum. These concern the yavam’s (the surviving brother who theoretically should perform yibum) relationship with:
• His zekuka
• His chalutza
• The yevama he betrothed via maamar
• The yevama he divorced.
The following is a brief explanation of these categories, which are dealt with at length in Perakim 2-5 of the masechta.
Zekuka: A widow requiring yibum and her brother-in-law are seen as connected by a relationship called zika. Based on this bond, he can take her in yibum even against her wishes, and she may not marry anyone else until yibum or chalitza are performed. The widow in this status is called a zekuka. The Rabbis saw the zika relationship as close to a marital one, and therefore forbade the marriage of the widow’s close relatives to the yabam. For example, just as a man cannot marry two sisters, he cannot marry the sister of his zekuka. The zika prohibitions apply to all the brothers, forbidding each one to marry her close relatives. Sometimes, the zika relationship can preclude yibum. For example, Reuven, Shimon and Levi are brothers. Reuven and Shimon marry Leah and Rachel, who are sisters. Both Reuven and Shimon die childless. Now Levi should have to perform yibum with both Leah and Rachel – but they are not only both zekuka to him, they are sisters of a zekuka to him, and thus forbidden. Any yibum precluded by zika requires chalitza.
Chalutza: Once chalitza is performed, the zika relationship is dissolved. Theoretically, that would mean that the relatives of the zekuka who were once forbidden are now permitted to the brother. However, due to the perceived similarity between chalitza and divorce, the Rabbis were concerned that people would think that erva prohibitions were dissolved by divorce, which is not the case. They therefore prohibited the relatives of a chalutza (a woman who has received chalitza) as well. Another ramification of the popular equation of chalitza with divorce is the Rabbinic prohibition for a Kohen to marry a chalutza (he is prohibited by Torah law from marrying a divorcee).
Maamar: As a sign of propriety, the Rabbis mandated maamar, an act of betrothal, prior to yibum. This is effected by giving the woman an object of value (such as ring) or a marriage document. This act creates a rabbinically-recognized state of matrimony, which means that: (1) none of the other brothers may marry her; and (2) if the brother who betrothed her wants to end the relationship, he needs to grant her a get (to remove the maamar status) as well as perform chalitza (to remove the yibum status). This dual status of “yevama /wife “ can create some unusual situations, which we will discuss in Perakim 2-5.
Divorce: A regular get granted to a woman who requires yibum by her brother-in-law is ineffective on a Torah level for dissolving the yibum bond. However, since (as noted above) there was a popular equivalence between divorce and chalitza, the Rabbis gave some authority to this get. Once the get is given to one widow by one brother, all the co-wives are prohibited to all the brothers, as would be the case if chalitza would have been performed. Note that chalitza must still be performed by one brother and one co-wife. This get also prohibits the woman from marrying a Kohen, and prohibits the man from marrying any of the woman’s erva relatives.
Some Background Information on Marriage
According to the Torah, marriage occurs in two stages:
• Erusin or kiddushin (betrothal)
• Nisuin (full marriage)
Once erusin has been effected, the couple is considered to be legally married, with the exception of the permission to engage in marital relations and the assumption of contractual marital obligations (commonly called ketuba). The woman who has undergone erusin may not marry anyone else, and if she has relations with someone else is considered an adulterer who incurs the death penalty. Erusin can only be dissolved by a get. If the man dies during the erusin period, the woman needs yibum or chalitza.
Erusin is effected one of three methods:
o Mamon: Gift of money or other object of value to the woman
o Shtar: Marriage document
o Bi’ah: Cohabitation for the purpose of making her his wife.
Out of a sense of propriety, the Rabbis prohibited bi’ah as a method of erusin.
Nissuin takes place when the woman formally enters the man’s home or the chuppa. This procedure is known as chuppa and is the culmination of the two stages of marriage.
In ancient times, erusin and nissuin often occurred up to a year apart, with the woman returning to her parents’ home and preparing for the marriage. During this period, as noted above, she was legally considered a married woman. The practice to combine the two ceremonies, as we do today, probably arose because of upheaval and uncertainty. If a woman was an arusa (betrothed woman) and her arus (fiancée) went missing, she would be an aguna (chained woman), forbidden to marry anyone else until his fate was determined. To separate between the two ceremonies under the chuppa, the ketuba is read and/or the officiant will deliver a sermon.
Upon marriage, the husband assumes certain contractual obligations towards his wife. He also gains certain property rights. These are discussed at length in Masechet Ketubot.
There are several types of relationships which are forbidden by Torah law. These include the erva relationships listed in Vayikra 18: a man’s close relatives, his wife’s close relatives, and the wives of his close relatives. They also include the prohibition of marriage between a mamzer and a legitimate Jew, and between a natural Jew and converts from certain nations. Additionally, a Kohen may not marry certain women (such as a divorcee). With the exception of a wife’s sister, all erva
These forbidden marriages can be divided into 4 categories:
Forbidden by a POSITIVE mitzva
1st and 2nd generation converts from Egypt or Edom
Kohen Gadol and non-virgin
Forbidden by a NEGATIVE mitzva with a maximum punishment of malkut (lashes)
Kohen and divorcee
Mamzer and legitimate Jew
Forbidden by a NEGATIVE mitzva with a punishment of karet (death by the hand of Heaven)
All erva relationships
Forbidden by a NEGATIVE mitzva with capital punishment if violated intentionally, in the presence of witnesses who warned them of the consequences.
Some cases of erva (e.g., mother or mother-in-law)
In addition to marriages prohibited by Torah law, the Rabbis prohibited “similar” relationships, where the kinship is similar to the one forbidden by the Torah. These are known as sheniyot le’arayot (secondary arayot). The Rabbis also forbade the marriage of a chalutza to a Kohen.
The question arises about the validity of a forbidden marriage. If a man performs one of the three acts of kiddushin (Mamon, Shtar or Bi’ah), is the marriage valid?
• If the marriage is forbidden by a positive mitzva, or by a negative mitzva with a maximum punishment of lashes: the kiddushin is valid after the fact. The woman is considered married with regard to the laws of adultery, and a full get is needed to dissolve the marriage. Note that consummation of the marriage is prohibited.
•If the marriage is forbidden because it is one of the erva relationships: the kiddushin has no validity and no divorce is required.
Structure of the Masechta
2a-17a חֲמֵשׁ עֶשְׂרֵה נָשִׁים The women to whom yibum does not apply
When does one mitzva override another
17a-26a כֵּיצַד אֵשֶׁת אָחִיו The prohibition of a wife of a brother born posthumously
Women who are obligated in yibum but need chalitza due to a prohibited relationship
26a-35a אַרְבָּעָה אַחִין Women who are related to each other and liable for yibum
Women who are obligated to 2 brothers for yibum
35b-50a הַחוֹלֵץ Mistaken chalitza or yibum
Laws of inheritance and marriage contract in the yibum relationship
50a-53b רַבָּן גַּמְלִיאֵל The validity of maamar and get in a yibum bond
53b-66a הַבָּא עַל יְבִמְתּוֹ Definition and laws of bi’ah
Marriage restrictions for Kohanim
The mitzva of pru u’revu
66a-70a אַלְמָנָה Taking teruma as it relates to the daughter and wife of a Kohen
Permission and disqualification of these women to eat teruma
70a-84a הֶעָרֵל Disqualification of a Kohen from eating teruma, while allowing his wife to continue to eat
Those who are prohibited from marrying a native Jew
84a-87b יֵשׁ מוּתָּרוֹת Detailed review of prohibited marriages
Rights of women in prohibited marriages
87b-97a הָאִשָּׁה רַבָּה Marriages based on mistaken assumption of the death of the spouse
Status of the issue of those marriages
Ramifications of bi’ah by a child between ages 9-13
97a-101a נוֹשְׂאִין עַל הָאֲנוּסָה Anomalous family relationships
Rape or seduction
101a-106b מִצְוַת חֲלִיצָה The chalitza process
107a-112b בֵּית שַׁמַּאי The marriage of a minor orphan girl
112b-114b חֵרֵשׁ Marriages of people of unsound mind
Divorce in the case of insanity
114b-118b הָאִשָּׁה שָׁלוֹם Allowing a woman to remarry in the case of incomplete testimony
119a-122b הָאִשָּׁה בָּתְרָא A woman testifying regarding her husband’s death
Identifying a dead body
Direct vs. indirect evidence of death