The Law That Will Not Guess

About This Talk

Chapter 8 closes the treatise with nothing but cases whose decisive facts have been destroyed, and it never once resolves a doubt; instead it engineers an order of acts under which every possible version of the facts leaves the woman free and no prohibition broken. A man consecrated one of two sisters without anyone knowing which and died childless: a single surviving brother performs chalitzah with both women, while two brothers must have one perform chalitzah with one sister and the other perform yibbum with the second, never yibbum first, since the other sister may have been the wife and he would then have married a relative of the woman obligated to him, and because the Rambam holds yibbum takes precedence wherever it can be reached the order is the whole ruling; brothers who married the sisters without seeking advice are not forced to dissolve the marriages, and even priests are not held to the decree against marrying a chalutzah because a chalitzah performed out of doubt was not what the decree addressed. Where two unrelated men each left one brother and each had consecrated one of two sisters, each brother performs chalitzah with each sister and nobody performs yibbum, since the second faces a possible sister of his own yevamah; where one left one brother and the other left two, the single brother goes first with both; where both left two, the pairs cross, each releasing one sister and then marrying the one the other released. The uncertainty then shifts from which woman to which man: a woman and her daughter-in-law gave birth in the same hiding place and the children were confused, so the daughter-in-law's known sons perform chalitzah only, each widow being either a brother's wife and permitted or a father's brother's wife and an ervah, after which the elder woman's sons may perform either, and the reverse configuration is worked out the same way. A widow who did not wait three months bore a son whose father cannot be determined, and sons of both husbands perform chalitzah with his widow and none performs yibbum, because each is only a possible paternal brother but a certain maternal brother, and a maternal brother's wife is always an ervah, which is also why that doubtful son may perform chalitzah but never yibbum with his own brothers' widows; yet where each husband had fathered a further son by another wife, the doubtful son may perform either ceremony with that son's widow, since either he is a paternal brother and this is yibbum or they are no relation at all and she is permitted to him. A woman who remarried on a report of her husband's death abroad and then saw him return leaves, when both husbands die childless, a brother of each to perform chalitzah and neither to perform yibbum, the first by Scriptural law and the second by Rabbinic decree. The chapter's largest case has five women whose five later sons were confused: four of the identified brothers perform chalitzah with each widow and the fifth marries her, twenty ceremonies in all, with each brother marrying one widow rather than several. The Rambam then states the three governing rules, that a doubtful obligation of chalitzah bars her from marrying anyone until that man performs it, that a doubtful prohibition whether Scriptural or Rabbinic bars yibbum with him, and that a superior chalitzah or acceptable relations frees a co-wife; and he ends the treatise not with a ruling but by telling the reader that these patterns are enough to rule on any such question that arises, since all the fundamental principles have now been explained.