Mishneh Torah, Levirate Marriage and Release 6-8

Sugya Map

• Primary Issue: The scope and limits of the Zikah (bond) of Yibbum—specifically, which categories of yevamot and yevamim are bound by the Torah's requirement for Yibbum or Chalitzah, and which are exempt due to inherent disqualifications (e.g., saris, androgynos, arayot).
• Nafka Mina:
  • Does a ma'amar (betrothal-like act) or consummation create a binding marriage when the union itself is biblically forbidden or Rabbinically restricted?
  • When an obligation is "inferior" (e.g., for sh'niyot or cases of doubt), how does it affect the status of the other wives (tzarot) in the same household?
  • The hierarchy of mitzvot: Does the positive commandment of Yibbum override a negative commandment (prohibition) in practice, even if not a priori?
• Primary Sources:
  • Yevamot 8a, 13a, 41a, 80a.
  • Mishneh Torah, Hilchot Yibbum v'Chalitzah 6–8.
  • Even HaEzer 172–176.

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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 וכו' לפיכך אם עבר ובעל קנה."

• Leshon Nuance: The Rambam uses the phrasing מן הדין היה (by the letter of the law it ought to be) to signal that while the act is prohibited a priori (l'chatchilah), the status of the resulting union is legally operative (b'dieved). The use of קנה (he acquires) is a technical halachic term—the marriage bond is not merely an act of transgression; it functions as a kiddushin-level connection that requires a get for dissolution.

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Readings

1. Nachal Eitan (on MT 6:10)

The Nachal Eitan tackles the central kushya posed by the Sha'agat Aryeh and the Maharshal: If Yibbum is a positive commandment, how can it possibly override a negative commandment (lo ta'aseh)? The Nachal Eitan employs a sophisticated lomdus—the distinction between a "full" prohibition and a lav haba miklal asei (a prohibition derived from a positive commandment). He argues that because the prohibition against marrying sh'niyot or certain yevamot is only a lav haba miklal asei, the positive commandment of Yibbum is structurally strong enough to override it. He differentiates this from the Cohen's prohibition against a widow (a full lav), where the mitzvah of Yibbum fails to override the prohibition because the prohibition is not merely an inference from a positive commandment.

2. Ohr Sameach (on MT 6:10)

The Ohr Sameach provides a psychological-legal analysis of the Rambam's logic. He posits that the Rambam’s ruling hinges on whether the prohibition is intrinsic to the act of intercourse or merely to the status created by the intercourse. In the case of an almanah (widow) to a High Priest, the act of intercourse itself is forbidden because it desecrates the woman. In the case of Yibbum with a forbidden yevamah, the intercourse is only forbidden because it creates a marriage bond. If the bond is created, the prohibition is triggered by the resulting status. He suggests that the Rambam views the mitzvah of Yibbum as a mechanism that, while forbidden to perform, creates a valid bond once the act is done, essentially "absorbing" the transgression into a legal marriage that then requires a get to terminate.

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Friction

The Strongest Kushya: If the Rabbis decreed that one should not perform Yibbum with a sh'niyah or a woman forbidden by a negative commandment, why does the resulting union (b'dieved) create a valid marriage that requires a get? If the act was a violation of a Rabbinic decree, the marriage should be void ab initio, as the Rabbis have the power to "uproot" (aka'u) the marriage (as per Ketubot 3a).

The Terutz: The Maggid Mishneh and Or Sameach reconcile this by distinguishing between the mitzvah and the issur. The Rambam maintains that the mitzvah of Yibbum itself is a Scriptural mandate. While the Rabbis forbade the act to prevent a repeat offense, they did not have the authority to negate the Scriptural acquisition (kinyan) that results from the mitzvah of Yibbum once performed. Thus, the marriage is valid because the Torah's Yibbum power is at play, but the yavam is punished for violating the Rabbinic fence.

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Intertext

• Deuteronomy 25:5–9: The foundational text for Yibbum and Chalitzah. Rambam’s reliance on "So that the name of [the deceased] not be obliterated" serves as the meta-psak heuristic for excluding sarisim and ayloniyot.
• SA Even HaEzer 174:1: The Shulchan Aruch codifies the Rambam's view that when one yevamah is forbidden, the tzarah (rival wife) is also exempt, effectively "building the house" logic. This mirrors the Gemara Yevamot 13a regarding the scope of Zikah—it is not merely an individual bond but a household obligation.

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Psak/Practice

In contemporary meta-psak, the Rambam's insistence that Yibbum is a mitzvah (even if Chalitzah is the preferred practice in Ashkenazic tradition) remains the bedrock for understanding the "validity" of Yibbum bonds. The primary heuristic remains: Where a doubt exists regarding a Rabbinic prohibition, we are lenient, but where a doubt exists regarding the validity of a Zikah bond, we remain stringent, requiring Chalitzah to exit the obligation.

Practically, the Rambam's ruling in 6:10 that b'dieved one "acquires" the woman is the critical safeguard—it prevents the creation of mamzerut by ensuring that such unions are treated as marriages requiring a get, rather than illicit encounters.

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Takeaway

The laws of Yibbum reveal a legal system that treats the Zikah bond as an ontological reality that persists even when the act of marriage is restricted; the mitzvah of building the brother's house is so potent that it survives even the transgression of the Rabbis' fences.