The Obstacle That Outlives Itself

About This Talk

Chapter 7 is the collision between the obligation of yibbum and the prohibitions that outrank it, and everything in it is decided by the single instant at which a widow comes before her brother in law. Where two brothers married to two sisters both died and the order cannot be established, the surviving brother performs chalitzah with both and yibbum with neither, since each is bound to him and marrying two sisters is forbidden; a widow forbidden only as a sh'niyah or by a positive or negative commandment still carries the Scriptural obligation and so still counts, but a widow forbidden as a full ervah, his wife's mother or his wife's daughter, was never bound at all, which is why her sister is then free for either yibbum or chalitzah, and why four brothers each of whom has a different ervah among the widows can each marry the woman actually bound to him. Where the order of death is known both sisters have chalitzah only while both live; if the second brother's widow dies the first becomes available for yibbum again, and if the first's widow dies the second's stays in chalitzah forever, because she was not fit for yibbum at the time she came before her yavam. Stated bare, that means that where one brother died childless and the surviving brother's wife later died, his sister in law remains forbidden to him permanently, while the clause set immediately beside it rules that a woman her husband divorced and then remarried is permitted to the yavam, since she was permitted at the moment he died and the law never reads the middle. A brother's chalitzah or lawful yibbum with one widow can remove what forbade the other and free her to the remaining brothers, but brothers who married the sisters without a ruling are forced to separate, both couples, the Mishneh Torah reversing the Rambam's own earlier opinion. The chapter then grades half bonds: a ma'amar requires a get and still requires chalitzah, and frees no co-wife; a brother who consecrated the sister of his yevamah is told neither to marry nor divorce her but to wait until another brother acts, giving a get and performing chalitzah only if no brother remains; a chalitzah performed where yibbum was never possible is not superior and releases no co-wife, and with the words "it appears to me" the Rambam extends that downgrading to widows forbidden as a sh'niyah or by a positive or negative commandment. The costs are named openly: a girl married off by her father, or a woman who lost the ability to hear and speak, divorced under Scriptural law and remarried under rabbinic law alone, has neither yibbum nor chalitzah unless she matured or recovered inside that marriage; a younger sister married only by rabbinic authority is instructed to dissolve it by mi'un so the older sister's yibbum can proceed; and where a brother who can neither hear nor speak must divorce his wife because her sister has become bound to him, the widow is left unable to remarry for life, a decree the Sages issued so onlookers would not conclude she had been freed as the sister of the yavam's wife. The chapter closes by widening its own language: two sisters means any two women where marrying one makes the other forbidden, and the sister of his wife means her mother or her daughter as well.