Mishneh Torah, Levirate Marriage and Release 6-8

Sugya Map

• Core Issue: The intersection of yibbum (Levirate marriage) and arayot (prohibited relationships). Specifically, when a yevamah is technically forbidden to the yavam by a negative or positive commandment, does the mitzvah of yibbum override the prohibition?
• Primary Sources: Yevamot 8b–9a, 20a, 41a, 56a; Mishneh Torah, Hilchot Yibbum VaChalitzah 6:10.
• Nafka Mina: If a yavam violates the rabbinic decree and consummates the relationship with a prohibited yevamah, is the marriage binding (koneh), and does it discharge the obligation for other wives (the tzarah)?

Text Snapshot

• MT 6:10: "היתה היבמה אסורה על היבם איסור לאו או עשה הרי זו חולצת ומן הדין היה שיתייבמו שהיבום מצות עשה ודוחה לא תעשה..."
• Nuance: The Rambam asserts that yibbum (a positive commandment) inherently possesses the legal force to override a lav (negative commandment). The dikduk here—"מן הדין היה" (it would have been the law)—signals that the subsequent prohibition is a gezeirah (Rabbinic decree), not an inherent lack of legal efficacy in the yibbum act itself.

Readings

1. The Sha’agat Aryeh (Siman 33)

The Sha’agat Aryeh expresses profound bewilderment at the Rambam’s assertion that yibbum overrides a positive commandment (aseh). His logic: How can one aseh (the mitzvah of yibbum) override another aseh (the prohibition against marrying certain relatives)? Usually, aseh only overrides lo ta’aseh (negative prohibitions). He argues that if the woman is forbidden by an aseh, the yibbum should have no legal effect even bedieved (ex post facto).

2. Nachal Eitan (commentary on MT 6:10)

The Nachal Eitan attempts to rehabilitate the Rambam by invoking the Rashba (cited by Maggid Mishneh). He suggests that not all aseh are created equal. A lav that arises from an aseh (lav ha-ba miklal aseh) is considered "lighter" than a standard lav. Consequently, the aseh of yibbum is strong enough to override this specific category. By defining the prohibition as a lav ha-ba miklal aseh, the Nachal Eitan harmonizes the Rambam’s ruling: the yibbum is not just a mitzvah, but a legal instrument that displaces the prohibition.

Friction

The Kushya: The Paradox of Bedieved

The strongest tension lies in the Rambam's ruling that if the yavam ignores the Rabbinic ban and performs the act, he koneh (acquires her as a wife). If the prohibition is rooted in the Torah, how can a forbidden act result in a binding marriage?

The Terutz

The Ohr Sameach provides a razor-sharp resolution: The prohibition of arayot in yibbum is functional, not ontological. If a man engages in relations with a woman who is forbidden to him by aseh, the act itself is not inherently "prohibited" in the same way as a lav punishable by karet. Rather, the prohibition is a byproduct of the yibbum framework. Therefore, if he violates the Rabbinic decree and acts, the yibbum power takes hold, effectively "creating" the marriage. The Ohr Sameach argues that the yavam is not "transgressing" a separate law; he is engaging in a valid, albeit forbidden, legal acquisition. The act of yibbum is the very mechanism that makes the woman his wife, thereby overriding the regulatory framework that attempted to keep them apart.

Intertext

• Deuteronomy 25:5–9: The yibbum verse—"Her husband's brother shall come to her"—is the mekor (source) for the obligation. The Sifrei and Yevamot 24a emphasize "when brothers dwell together," which the Rambam (MT 6:14) uses to exclude a brother born after the deceased. This confirms that yibbum is a familial, not just personal, bond.
• SA Even HaEzer 174:3: The Beit Shmuel notes the divergence between Sephardic and Ashkenazic traditions regarding the priority of yibbum versus chalitzah. This mirrors the Rambam's insistence on the potency of the yibbum act, even in the face of prohibitions, representing a view that yibbum is the primary, intended resolution of the yavam-yevamah bond.

Psak/Practice

The Rambam’s heuristic is clear: Yibbum is a powerful, affirmative legal act. While the Sages imposed chalitzah to prevent the yavam from slipping into forbidden sexual relations (gezeirah), the act of yibbum is so structurally potent that it creates a binding marriage even when forbidden. In meta-halachic terms, this reflects the Rambam’s view that the mitzvah of yibbum is not merely an option—it is a foundational mechanism for "building the house" that can override barriers, provided those barriers are not absolute karet prohibitions.

Takeaway

The yibbum act is a legal override; the Sages' prohibitions are protective walls, not absolute nullifiers. The Rambam teaches that the power to "build the brother's house" is a transformative legal force that persists even where our precautions fail.