The commandment of levirate marriage: That one whose brother died and did not leave children was commanded to take the wife of his dead brother as a wife. And this is what is called yibum in the Torah and [in] the words of our rabbis, may their memory be blessed. And about this was it stated (Deuteronomy 25:5), “the levirate husband shall have intercourse with her, etc.”
It is from the roots of the commandment [that it is] since the woman that a man marries, behold, she is like one of his limbs — as so does nature necessitate because of the story of the first father, as one of his ribs was taken and from it did God build woman — and since this man died with no sons, that there should be a portion from him for his memory and to fill his place in the world in the service of his Creator. And also there is no memory of him in the physical world besides this woman, who is the bone of his bones and the flesh of his flesh. And [so] it was from the kindnesses of God to him to establish seed from her for him, through his brother — who is also like half of his flesh — in order that this seed take his place and serve his Creator in his stead, and so that he merit through him in the world of souls, where he is. As it is known that a son gives merit to the father; as so did they, may their memory be blessed, say (Sanhedrin 104a), “A child gives merit to a father, a father does not give merit to a child.” And truthfully likewise does the living brother that fathered the children from the levirate wife also get a share in them for himself, and he also gets merit in their merit. Nonetheless, not all of the merit will go to him; but rather his brother will take his portion because of the big portion that he has in them — and that is the wife that fell to his portion first, as we have said.
And according to that which we mentioned, when the verse states (Genesis 38:9), “But Onan, knowing that the seed would not be his,” its sense [in terms] of the simple meaning is to say that not all of the merit of the seed would be his, as his brother would take a part in it; and he was not [interested] in partial merit. And also because maybe the main merit is to the dead brother, since he is like the owner of the field and the living brother is like a sharecropper — and like the well-known matter about sharecroppers, that there are some that provide their own seed. And this is what they, may their memory be blessed, said (Yevamot 22b) that any time that his brother has any memory in the world — a son or a daughter or grandchildren from another woman, and even an illegitimate son (mamzer) or daughter — that they exempt his wife from levirate marriage; [such] that it appears from this that the matter is only to memorialize his name and to give him a portion and merit in this physical world. (See Guide for the Perplexed 3:49.) And behold, with my knowing that there is a major principle and a correct explanation about this commandment with the Kabbalists, I will rely upon what I wrote at the beginning of my book. And there I penned my apology, that I do not silence myself from writing my thoughts about the simple understanding of the explanations of the commandments, in order to stimulate the spirit of the children to ask questions about them to their elders and their teachers. By [their] dealing with them, perhaps, a merit will come through me in the revelation of the truth of their matters, and I will merit with them in my place.
From the laws of this commandment is that which they, may their memory be blessed, said (Yevamot 13b and see Mishneh Torah, Levirate Marriage and Release 1:1) that the commandment of levirate marriage [applies] whether she was the wife of his brother from marriage or even from engagement (erusin). And [also] that which they said (Yevamot 17b and see Mishneh Torah, Levirate Marriage and Release 1:7) that regarding the matter of levirate marriage and release and inheritance, only brothers [born of] the father are considered brothers; even though regarding the issue of mourning and the issue of testimony, even brothers [born of] the mother are called brothers. And [also] that which they said (Yevamot 43b and see Mishneh Torah, Levirate Marriage and Release 9:12) that [if] one has many wives and dies but does not leave a child from any of them, one of the brothers has levirate marriage with, or releases, one of [the wives] and they all become permissible [to marry]. And he is not able to have levirate marriage with two — not he and not one of his brothers; as it states, “who will not build up his brother’s house” — and the [traditional] explanation that comes about this is (Yevamot 44a) “One house shall he build” — meaning to say, [it is only for] one brother, and he does not build two houses. And also if he does this, he transgresses the positive commandment, as it states, “he shall have intercourse with her” — and the Sages, may their memory be blessed, expounded, “And not with her and with her rival wife.”
And from the outset, the commandment to perform the levirate marriage is upon the eldest (Yevamot 24a and see Mishneh Torah, Levirate Marriage and Release 2:6). And, so too, they can only release one [wife]; and once she is released, she and all of her rival wives become forbidden to the releaser and to all of the other brothers, by the words of the scribes (rabbinically) — like secondary relations. But there are certainly no Torah prohibitions on them — once his brother died without children, the prohibition on his wives departed. Hence, betrothal is effective, as it is with secondary relations. And [in the case of] one who releases his levirate wife, just like she is forbidden to him, so too are her relatives forbidden to him — and we have mentioned the relatives [concerned] in the Order of Acharei Mot. And, likewise, she is forbidden to his son and to his brother. The general principle of the matter is that, behold, she is like his wife that he divorced. And, so, if the levirate wife died before the levirate marriage [or] release; behold, her law regarding her relatives is that she is like his wife that died [in his lifetime]. And all of these prohibitions are rabbinic.
And that which they, may their memory be blessed, said (Yevamot 41a) that the levirate wife should not perform levirate marriage and not be released until she waits ninety days — excluding the day of death and the day of the levirate marriage, or the day of the release — was in order to distinguish between the seed of the two brothers. And [about] that which they said that she should not be released during this time, they learned that thing from an inference in the Gemara (Yevamot 41b). And they, may their memory be blessed, said about this matter (Yevamot 35b) that if the first brother leaves his wife pregnant and she has a miscarriage after he dies, behold, she must perform levirate marriage or be released (through chalitsah). But if she gave birth and the newborn came out alive, she is exempt from the levirate marriage and from the release. And even if the newborn died immediately [is she exempted] by the law of the Torah. But the Sages said not to exempt her until it becomes definitively known that the newborn completed its months [of gestation]; but if it is not known, she should be released (through chalitsah) and not perform levirate marriage.
And so did they, may their memory be blessed, say about this matter (Yevamot 53b and see Mishneh Torah, Levirate Marriage and Release 2:3-4) that one who has intercourse with his levirate wife — whether it is accidental or premeditated, whether it is under duress or volitional, whether he was premeditated and she was accidental or under duress or she was premeditated and he was accidental or under duress, whether she was awake or asleep, whether he had sexual relations with her according to her [customary] way or even not according to her way, and it is the same whether he [only began] or finished intercourse — behold, he had levirate marriage and acquired her [in marriage]. And to what do these words apply? When he had the intention of having intercourse. But if he did not have the intention of having intercourse, he did not acquire [her in marriage]. And from the words of the scribes (Yevamot 52a) is it that the levirate husband should not have intercourse with his levirate wife until he has betrothed her in front of witnesses — and this is what is called, “maamar” in the Gemara. And this “maamar” does not [constitute] a complete acquisition regarding a levirate wife; as the Torah stated, “the levirate husband shall have intercourse with her” — behold, that the matter of levirate marriage depends on intercourse.
And they, may their memory be blessed, also said (Yevamot 79b and see Mishneh Torah, Levirate Marriage and Release 6:8) about this matter that there are women that are exempt from levirate marriage and also from release. And these are them: the wife of a eunuch of the sun (caused by nature) or of an andrigonos; the wife of someone mentally incapacitated; the wife of a minor; a sterile woman; and one who is sexually forbidden to the levirate husband. As it is stated, “that his name may not be blotted out in Israel” — to exclude a eunuch of the sun and an andrigonos, the names of which are [already] blotted out; since they are not capable of having children from the beginning of their creation, they are like their own species. And it states, “The first son that she bears shall be” — to exclude a sterile woman, who is not capable of having children from the beginning of her creation. “The wife of the deceased shall not be married to a stranger, outside the family” — to exclude the wife of someone mentally incapacitated or a minor, that do not have marriage at all. “He shall take her as his wife” — to exclude one who is sexually forbidden to the levirate husband, that do not have taking (marriage) for him to them. And the Sages counted (Mishnah Yevamot 1:1) fifteen women that do not have taking, that exempt their rival wives from release and from levirate marriage. And they said also (see Mishneh Torah, Levirate Marriage and Release 6:6-7) that there are some women that perform levirate marriage but do not get released, and there are some that get released but do not perform levirate marriage. And there are some that do not perform levirate marriage and do not get released. And there are from the brothers also those that are fit for levirate marriage and release, and some who are not fit for levirate marriage nor for release — and they have no connection [to the woman] at all — and there are some that are fit for release but they are not fit for levirate marriage, and there are some that are fit for levirate marriage but not for release. And the rest of the many details about these matters are all complete in the tractate connected to it and that is Tractate Yevamot.
And this commandment is practiced in every place at all times by males. And one who transgresses it and does not do levirate marriage with his levirate wife — meaning to say that he does not have intercourse with her one time, which is the essence of this positive commandment — or does not exempt her with release, has violated this positive commandment.
מִצְוַת יִבּוּם – שֶׁנִּצְטַוָּה מִי שֶׁמֵּת אָחִיו וְלֹא הִנִּיחַ בָּנִים לִקַּח אֵשֶׁת אָחִיו הַמֵּת לוֹ לְאִשָּׁה, וְזֶהוּ הַנִּקְרָא יָבָם בַּתּוֹרָה וּבְדִבְרֵי רַבּוֹתֵינוּ זִכְרוֹנָם לִבְרָכָה, וְעַל זֶה נֶאֱמַר (דברים כה ה) יְבָמָהּ יָבֹא עָלֶיהָ וְגוֹ'.
The commandment of levirate marriage: That one whose brother died and did not leave children was commanded to take the wife of his dead brother as a wife. And this is what is called yibum in the Torah and [in] the words of our rabbis, may their memory be blessed. And about this was it stated (Deuteronomy 25:5), “the levirate husband shall have intercourse with her, etc.”
מִשָּׁרְשֵׁי הַמִּצְוָה. לְפִי שֶׁהָאִשָּׁה אַחַר שֶׁנִּשֵּׂאת לְאִישׁ הֲרֵי הִיא כְּאֶחָד מֵאֵיבָרָיו, שֶׁכֵּן יְחַיֵּב הַטֶּבַע מִפְּנֵי מַעֲשֵׂה הָאָב הָרִאשׁוֹן שֶׁלֻּקְּחָה אַחַת מִצַּלְעוֹתָיו וּמִמֶּנָּה בָּנָה לוֹ הָאֵל אִשָּׁה, וְהָאִישׁ הַזֶּה שֶׁמֵּת בְּלֹא בָּנִים, שֶׁיִּהְיֶה חֵלֶק מִמֶּנּוּ לְזִכָּרוֹן לוֹ וּלְמַלֹּאת מְקוֹמוֹ בָּעוֹלָם לַעֲבוֹדַת בּוֹרְאוֹ, וְעוֹד אֵין זֵכֶר לוֹ בָּעוֹלָם הַגּוּפָנִי זוּלָתִי זֹאת הָאִשָּׁה, שֶׁהִיא עֶצֶם מֵעֲצָמָיו וּבָשָׂר מִבְּשָׂרוֹ, הָיָה מֵחַסְדֵי הָאֵל עָלָיו לְהָקִים לוֹ זֶרַע מִמֶּנָּה עַל יְדֵי אָחִיו שֶׁהוּא גַּם כֵּן כַּחֲצִי בְּשָׂרוֹ, כְּדֵי שֶׁיִּהְיֶה אוֹתוֹ הַזֶּרַע מְמַלֵּא מְקוֹמוֹ וְעוֹבֵד בּוֹרְאוֹ תַּחְתָּיו, וְיִזְכֶּה עַל יָדוֹ בְּעוֹלַם הַנְּשָׁמוֹת אֲשֶׁר הוּא שָׁם, כְּמוֹ שֶׁיָּדוּעַ, דִּבְרָא מְזַכֶּה אַבָּא, שֶׁכֵּן אָמְרוּ זִכְרוֹנָם לִבְרָכָה (סנהדרין קד, א) בְּרָא מְזַכֶּה אַבָּא, אַבָּא לָא מְזַכֶּה בְּרָא, וּכְמוֹ כֵן בֶּאֱמֶת הָאָח הַחַי אֲשֶׁר הוֹלִיד הַבָּנִים מִן הַיְּבָמָה גַּם אֵלָיו חֵלֶק בָּהֶם וְזוֹכֶה גַּם הוּא בִּזְכוּתָם, אָמְנָם לֹא לוֹ יִהְיֶה כָּל הַזְּכוּת, כִּי גַּם אָחִיו יִטֹּל חֶלְקוֹ בִּשְׁבִיל הַחֵלֶק הַגָּדוֹל שֶׁיֵּשׁ לוֹ בָּהֶם, וְהִיא הָאִשָּׁה שֶׁנָּפְלָה לְחֶלְקוֹ בַּתְּחִלָּה, כְּמוֹ שֶׁאָמַרְנוּ.
It is from the roots of the commandment [that it is] since the woman that a man marries, behold, she is like one of his limbs — as so does nature necessitate because of the story of the first father, as one of his ribs was taken and from it did God build woman — and since this man died with no sons, that there should be a portion from him for his memory and to fill his place in the world in the service of his Creator. And also there is no memory of him in the physical world besides this woman, who is the bone of his bones and the flesh of his flesh. And [so] it was from the kindnesses of God to him to establish seed from her for him, through his brother — who is also like half of his flesh — in order that this seed take his place and serve his Creator in his stead, and so that he merit through him in the world of souls, where he is. As it is known that a son gives merit to the father; as so did they, may their memory be blessed, say (Sanhedrin 104a), “A child gives merit to a father, a father does not give merit to a child.” And truthfully likewise does the living brother that fathered the children from the levirate wife also get a share in them for himself, and he also gets merit in their merit. Nonetheless, not all of the merit will go to him; but rather his brother will take his portion because of the big portion that he has in them — and that is the wife that fell to his portion first, as we have said.
וּלְפִי זֶה שֶׁזָּכַרְנוּ עַל צַד הַפְּשָׁט, כְּשֶׁיֹּאמַר הַכָּתוּב (בראשית לח, ט) וַיֵּדַע אוֹנָן כִּי לֹּא לוֹ יִהְיֶה הַזָּרַע, עִנְיָנוֹ לוֹמַר כִּי כָּל זְכוּת הַזֶּרַע לֹא יִהְיֶה לוֹ, שֶׁאָחִיו יִטּוֹל חֵלֶק בָּהֶם, וּלְמִקְצָת הַזְּכוּת לֹא הָיָה חוֹשֵׁשׁ. גַּם כִּי אוּלַי שֶׁעִקַּר הַזְּכוּת לָאָח הַמֵּת, לְפִי שֶׁהוּא כְּבַעַל הַקַּרְקַע, וְהָאָח הַחַי כְּאָרִיס, וְכָעִנְיָן שֶׁיָּדוּעַ בָּאֲרִיסִין שֶׁיֵּשׁ מֵהֶם שֶׁיִּתְּנוּ הַזֶּרַע מִשֶּׁלָּהֶם, וְזֶהוּ שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (יבמות כב, ב) שֶׁכָּל זְמַן שֶׁיֵּשׁ לְאָחִיו שׁוּם זֵכֶר בָּעוֹלָם, בֵּן אוֹ בַת אוֹ בְּנֵי בָּנִים מֵאִשָּׁה אַחֶרֶת וַאֲפִלּוּ מַמְזֵר אוֹ מַמְזֶרֶת, שֶׁפּוֹטְרִים אֶת אִשְׁתּוֹ מִן הַיִּבּוּם, נִרְאֶה בָּזֶה, שֶׁאֵין הָעִנְיָן, רַק לְהַזְכִּיר שְׁמוֹ וְלָתֵת לוֹ חֵלֶק וּזְכוּת בְּעוֹלָם הַזֶּה הַגּוּפָנִי (עי' מורה נבוכים ח"ג פמ"ט). וְהִנְנִי עִם דַּעְתִּי שֶׁיֵּשׁ בַּמִּצְוָה הַזֹּאת עִקָּר גָּדוֹל וְטַעַם נָכוֹן אֲמִתִּי אֵצֶל הַמְּקֻבָּלִים, אֶסְמֹךְ עַל מָה שֶׁכָּתַבְתִּי בְּרֹאשׁ סִפְרִי, וְעָרַכְתִּי שָׁם הִתְנַצְּלוּתִי לְבַל אֶחְשֹׂךְ עַצְמִי מִכְּתֹב כָּל מַחְשַׁבְתִּי בִּפְשַׁט טַעַם הַמִּצְוֹת, לְעוֹרֵר רוּחַ הַיְּלָדִים לִשְׁאוֹל שְׁאֵלוֹת בָּהֶם אֶל גְּדוֹלֵיהֶם וּמוֹרֵיהֶן, מִתּוֹךְ הָעֵסֶק בָּהֶם אוּלַי יִתְגַּלְגֵּל זְכוּת עַל יָדִי לְגַלּוֹת אֲמִתַּת עִנְיְנֵיהֶם, וְאֶזְכֶּה אֲנִי בִּמְקוֹמִי עִמָּהֶם.
And according to that which we mentioned, when the verse states (Genesis 38:9), “But Onan, knowing that the seed would not be his,” its sense [in terms] of the simple meaning is to say that not all of the merit of the seed would be his, as his brother would take a part in it; and he was not [interested] in partial merit. And also because maybe the main merit is to the dead brother, since he is like the owner of the field and the living brother is like a sharecropper — and like the well-known matter about sharecroppers, that there are some that provide their own seed. And this is what they, may their memory be blessed, said (Yevamot 22b) that any time that his brother has any memory in the world — a son or a daughter or grandchildren from another woman, and even an illegitimate son (mamzer) or daughter — that they exempt his wife from levirate marriage; [such] that it appears from this that the matter is only to memorialize his name and to give him a portion and merit in this physical world. (See Guide for the Perplexed 3:49.) And behold, with my knowing that there is a major principle and a correct explanation about this commandment with the Kabbalists, I will rely upon what I wrote at the beginning of my book. And there I penned my apology, that I do not silence myself from writing my thoughts about the simple understanding of the explanations of the commandments, in order to stimulate the spirit of the children to ask questions about them to their elders and their teachers. By [their] dealing with them, perhaps, a merit will come through me in the revelation of the truth of their matters, and I will merit with them in my place.
מִדִּינֵי הַמִּצְוָה. מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם יג, ב רמב"ם יבום א א) שֶׁמִּצְוַת הַיִּבּוּם הִיא, בֵּין שֶׁהָיְתָה אִשְׁתּוֹ שֶׁל אָחִיו מִן הַנִּשּׂוּאִין אוֹ אֲפִלּוּ מִן הָאֵרוּסִין. וּמָה שֶׁאָמְרוּ (שם יז, ב רמב"ם שם ז) שֶׁלְּעִנְיַן יִבּוּם וַחֲלִיצָה וְלִירֻשָּׁה אֵינָם חֲשׁוּבִים אַחִים אֶלָּא אַחִים מֵאָב, אַף עַל פִּי שֶׁלְּעִנְיַן אֲבֵלוּת וּלְעִנְיַן עֵדוּת נִקְרָאִים אַחִים אֲפִלּוּ אַחִים מֵאִם. וּמָה שֶׁאָמְרוּ (שם מג, ב רמב"ם שם ט, יב) שֶׁמִּי שֶׁיֵּשׁ לוֹ נָשִׁים רַבּוֹת וּמֵת וְלֹא הִנִּיחַ בֵּן מֵאַחַת מֵהֶן שֶׁאֶחָד מִן הָאַחִים מְיַבֵּם אוֹ חוֹלֵץ לְאַחַת מֵהֶן וְיֻתְּרוּ כֻּלָּן, וְאֵינוֹ יָכוֹל לְיַבֵּם שְׁתַּיִם, לֹא הוּא וְלֹא שְׁאָר אֶחָיו, שֶׁנֶּאֱמַר אֲשֶׁר לֹא יִבְנֶה אֶת בֵּית אָחִיו וּבָא הַפֵּרוּשׁ עָלָיו (שם מד א) בַּיִת אֶחָד הוּא בּוֹנֶה, כְּלוֹמַר הָאָח הָאֶחָד, וְאֵינוֹ בּוֹנֶה שְׁנֵי בָּתִּים, וְגַם אִם עָשָׂה כֵּן עוֹבֵר בַּעֲשֵׂה, שֶׁנֶּאֱמַר יְבָמָה יָבֹא עָלֶיהָ, וְדָרְשׁוּ זִכְרוֹנָם לִבְרָכָה וְלֹא עָלֶיהָ וְעַל צָרָתָהּ.
From the laws of this commandment is that which they, may their memory be blessed, said (Yevamot 13b and see Mishneh Torah, Levirate Marriage and Release 1:1) that the commandment of levirate marriage [applies] whether she was the wife of his brother from marriage or even from engagement (erusin). And [also] that which they said (Yevamot 17b and see Mishneh Torah, Levirate Marriage and Release 1:7) that regarding the matter of levirate marriage and release and inheritance, only brothers [born of] the father are considered brothers; even though regarding the issue of mourning and the issue of testimony, even brothers [born of] the mother are called brothers. And [also] that which they said (Yevamot 43b and see Mishneh Torah, Levirate Marriage and Release 9:12) that [if] one has many wives and dies but does not leave a child from any of them, one of the brothers has levirate marriage with, or releases, one of [the wives] and they all become permissible [to marry]. And he is not able to have levirate marriage with two — not he and not one of his brothers; as it states, “who will not build up his brother’s house” — and the [traditional] explanation that comes about this is (Yevamot 44a) “One house shall he build” — meaning to say, [it is only for] one brother, and he does not build two houses. And also if he does this, he transgresses the positive commandment, as it states, “he shall have intercourse with her” — and the Sages, may their memory be blessed, expounded, “And not with her and with her rival wife.”
וּמִצְוָה (שם כד, א רמב"ם שם ב ו) לְכַתְּחִלָּה בַּגָּדוֹל לְיַבֵּם. וּכְמוֹ כֵן אֵין יְכוֹלִין לַחְלֹץ כִּי אִם לְאַחַת. וְכֵיוָן שֶׁנֶּחְלְצָה הָאַחַת נֶאֶסְרָה הִיא וְכָל צָרוֹתֶיהָ עַל הַחוֹלֵץ וְעַל כָּל שְׁאָר הָאַחִים, מִדִּבְרֵי סוֹפְרִים כְּמוֹ שְׁנִיּוֹת, אֲבָל וַדַּאי אֵין בָּהֶן אִסּוּרֵי תּוֹרָה מֵאַחַר שֶׁמֵּת אָחִיו בְּלֹא וָלָד נִסְתַּלֵּק אִסּוּר מֵעַל נָשָׁיו, לְפִיכָךְ תּוֹפְסִין בָּהֶן קִדּוּשִׁין כַּשְּׁנִיּוֹת. וְהַחוֹלֵץ לִיבִמְתּוֹ כְּשֵׁם שֶׁהִיא אֲסוּרָה עָלָיו, כָּךְ קְרוֹבוֹתֶיהָ אֲסוּרוֹת לוֹ, וְהַקְּרוֹבוֹת זְכַרְתִּים בְּסֵדֶר אַחֲרֵי מוֹת, וְכֵן הִיא אֲסוּרָה לִבְנוֹ אוֹ לְאָחִיו, כְּלָלוֹ שֶׁל דָּבָר, הֲרֵי הִיא כְּאִשְׁתּוֹ שֶׁגֵּרְשָׁהּ. וְכֵן אִם מֵתָה יְבָמָה קֹדֶם יִבּוּם וַחֲלִיצָה הֲרֵי דִּינָהּ לְעִנְיַן קְרוֹבוֹתֶיהָ, כְּאִשְׁתּוֹ שֶׁמֵּתָה תַּחְתָּיו. וְכָל אִסּוּרִין אֵלּוּ, מִדִּבְרֵיהֶם.
And from the outset, the commandment to perform the levirate marriage is upon the eldest (Yevamot 24a and see Mishneh Torah, Levirate Marriage and Release 2:6). And, so too, they can only release one [wife]; and once she is released, she and all of her rival wives become forbidden to the releaser and to all of the other brothers, by the words of the scribes (rabbinically) — like secondary relations. But there are certainly no Torah prohibitions on them — once his brother died without children, the prohibition on his wives departed. Hence, betrothal is effective, as it is with secondary relations. And [in the case of] one who releases his levirate wife, just like she is forbidden to him, so too are her relatives forbidden to him — and we have mentioned the relatives [concerned] in the Order of Acharei Mot. And, likewise, she is forbidden to his son and to his brother. The general principle of the matter is that, behold, she is like his wife that he divorced. And, so, if the levirate wife died before the levirate marriage [or] release; behold, her law regarding her relatives is that she is like his wife that died [in his lifetime]. And all of these prohibitions are rabbinic.
וּמָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם מא, א) שֶׁהַיְּבָמָה לֹא תִּתְיַבֵּם וְלֹא תַּחְלֹץ עַד שֶׁתַּמְתִּין תִּשְׁעִים יוֹם, חוּץ מִיּוֹם הַמִּיתָה וּמִיּוֹם הַיִּבּוּם אוֹ יוֹם הַחֲלִיצָה, כְּדֵי לְהַבְחִין בֵּין זֶרַע שְׁנֵי הָאַחִין, וְזֶה שֶׁאָמְרוּ שֶׁלֹּא תַּחְלֹץ בְּתוֹךְ זְמַן זֶה לָמְדוּ הַדָּבָר מִדְּרָשָׁא בַּגְּמָרָא (שם ב). וְאָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּעִנְיָן זֶה (שם לה, ב), שֶׁאִם הִנִּיחַ הָאָח הָרִאשׁוֹן אִשְׁתּוֹ מְעֻבֶּרֶת וְהִפִּילָה אַחַר מוֹתוֹ, הֲרֵי זוֹ תִּתְיַבֵּם אוֹ תַּחְלֹץ. וְאִם יָלְדָה וְיָצָא הַוָּלָד חַי, פְּטוּרָה מִן הַיִּבּוּם וּמִן הַחֲלִיצָה וַאֲפִילּוּ מֵת הַוָּלָד מִיָּד מִדִּין תּוֹרָה, אֲבָל חֲכָמִים אָמְרוּ שֶׁלֹּא תִּפָּטֵר עַד שֶׁיִּוָּדַע בְּוַדַּאי שֶׁכָּלוּ לוֹ חֳדָשָׁיו לַוָּלָד, אֲבָל אִם לֹא נוֹדַע חוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת.
And that which they, may their memory be blessed, said (Yevamot 41a) that the levirate wife should not perform levirate marriage and not be released until she waits ninety days — excluding the day of death and the day of the levirate marriage, or the day of the release — was in order to distinguish between the seed of the two brothers. And [about] that which they said that she should not be released during this time, they learned that thing from an inference in the Gemara (Yevamot 41b). And they, may their memory be blessed, said about this matter (Yevamot 35b) that if the first brother leaves his wife pregnant and she has a miscarriage after he dies, behold, she must perform levirate marriage or be released (through chalitsah). But if she gave birth and the newborn came out alive, she is exempt from the levirate marriage and from the release. And even if the newborn died immediately [is she exempted] by the law of the Torah. But the Sages said not to exempt her until it becomes definitively known that the newborn completed its months [of gestation]; but if it is not known, she should be released (through chalitsah) and not perform levirate marriage.
וְכֵן אָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּעִנְיָן זֶה (שם נג, ב רמב"ם יבום פ"ב הל' ג ד) שֶׁהַבָּא עַל יְבִמְתּוֹ בֵּין בְּשׁוֹגֵג בֵּין בְּמֵזִיד בֵּין בְּאֹנֶס בֵּין בְּרָצוֹן, בֵּין שֶׁהוּא מֵזִיד וְהִיא שׁוֹגֶגֶת אוֹ אֲנוּסָה, בֵּין שֶׁהָיְתָה הִיא מְזִידָה וְהוּא שׁוֹגֵג אוֹ אָנוּס, בֵּין שֶׁהָיְתָה הִיא עֵרָה אוֹ יְשֵׁנָה, בֵּין שֶׁבָּא עָלֶיהָ כְּדַרְכָּהּ אוֹ אֲפִלּוּ שֶׁלֹּא כְּדַרְכָּהּ, וְאֶחָד הַמְּעָרָה אוֹ הַגּוֹמֵר בִּיאָתוֹ עָלֶיהָ, הֲרֵי זֶה יִבּוּם וְקָנָה אוֹתָהּ. וּבַמֶּה דְּבָרִים אֲמוּרִים? בְּשֶׁנִּתְכַּוֵּן לִבְעֹל, אֲבָל לֹא נִתְכַּוֵּן לִבְעֹל לֹא קָנָה. וּמִדִּבְרֵי סוֹפְרִים (שם נב, א) שֶׁלֹּא יָבוֹא הַיָּבָם עַל יְבִמְתּוֹ עַד שֶׁיְּקַדֵּשׁ אוֹתָהּ בִּפְנֵי עֵדִים, וְזֶהוּ הַנִּקְרָא בַּגְּמָרָא מַאֲמָר, וְאֵין מַאֲמָר זֶה קוֹנֶה בַּיְּבָמָה קִנְיָן גָּמוּר, לְפִי שֶׁהַתּוֹרָה אָמְרָה יְבָמָהּ יָבֹא עָלֶיהָ. הִנֵּה שֶׁעִנְיַן הַיְּבָמָה תָּלוּי בַּבִּיאָה.
And so did they, may their memory be blessed, say about this matter (Yevamot 53b and see Mishneh Torah, Levirate Marriage and Release 2:3-4) that one who has intercourse with his levirate wife — whether it is accidental or premeditated, whether it is under duress or volitional, whether he was premeditated and she was accidental or under duress or she was premeditated and he was accidental or under duress, whether she was awake or asleep, whether he had sexual relations with her according to her [customary] way or even not according to her way, and it is the same whether he [only began] or finished intercourse — behold, he had levirate marriage and acquired her [in marriage]. And to what do these words apply? When he had the intention of having intercourse. But if he did not have the intention of having intercourse, he did not acquire [her in marriage]. And from the words of the scribes (Yevamot 52a) is it that the levirate husband should not have intercourse with his levirate wife until he has betrothed her in front of witnesses — and this is what is called, “maamar” in the Gemara. And this “maamar” does not [constitute] a complete acquisition regarding a levirate wife; as the Torah stated, “the levirate husband shall have intercourse with her” — behold, that the matter of levirate marriage depends on intercourse.
וְכֵן אָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם עט, ב רמב"ם שם פ"ו ה"ח) בְּעִנְיָן זֶה שֶׁיֵּשׁ נָשִׁים שֶׁהֵן פְּטוּרוֹת מִן הַיִּבּוּם וְגַם מִן הַחֲלִיצָה, וְאֵלּוּ הֵן, אֵשֶׁת סְרִיס חַמָּה וְאַנְדְּרֹגִינֹס, וְאֵשֶׁת הַשּׁוֹטֶה, וְאֵשֶׁת הַקָּטָן, וְהָאַיְלוֹנִית, וּמִי שֶׁהִיא עֶרְוָה עַל הַיָּבָם, שֶׁנֶּאֱמַר וְלֹא יִמָּחֶה שְׁמוֹ מִיִּשְׂרָאֵל, פְּרָט לִסְרִיס חַמָּה וְאַנְדְּרֹגִינֹס, שֶׁשְּׁמָם מָחוּי הוּא, הוֹאִיל וְאֵינָם רְאוּיִים לֵילֵד מִתְּחִלַּת בְּרִיָּתָן הֲרֵי הֵן כְּמִין בִּפְנֵי עַצְמוֹ, וְנֶאֱמַר וְהָיָה הַבְּכוֹר אֲשֶׁר תֵּלֵד, פְּרָט לְאַיְלוֹנִית, שֶׁאֵינָהּ רְאוּיָה לֵילֵד מִתְּחִלַּת בְּרִיָּתָהּ, לֹא תִהְיֶה אֵשֶׁת הַמֵּת הַחוּצָה, פְּרָט לְאֵשֶׁת שׁוֹטֶה וְקָטָן, שֶׁאֵין לָהֶם אִישׁוּת כְּלָל, וּלְקָחָהּ לוֹ לְאִשָּׁה, פְּרָט לְעֶרְוָה שֶׁאֵין לוֹ בָּהּ לִקּוּחִין. וַחֲמֵשׁ עֶשְׂרֵה נָשִׁים שֶׁאֵין בָּהֶן לִקּוּחִין מָנוּ חֲכָמִים (ריש יבמות), שֶׁהֵן פּוֹטְרוֹת צָרוֹתֵיהֶן מִן הַחֲלִיצָה וּמִן הַיִּבּוּם. וְאָמְרוּ גַּם כֵּן (רמב"ם שם פ"ו הל' ו ז), שֶׁיֵּשׁ מִן הַנָּשִׁים שֶׁמִּתְיַבְּמוֹת וְלֹא חוֹלְצוֹת, וּמֵהֶן חוֹלְצוֹת וְלֹא מִתְיַבְּמוֹת. וְיֵשׁ אַחִים גַּם כֵּן שֶׁהֵן רְאוּיִין לְיִבּוּם אוֹ לַחֲלִיצָה, וְיֵשׁ שֶׁאֵינָם רְאוּיִים לֹא לְיִבּוּם וְלֹא לַחֲלִיצָה וְאֵין לָהֶם זִקָּה כְּלָל, וְיֵשׁ שֶׁהֵם רְאוּיִים לַחֲלִיצָה וְאֵינָם רְאוּיִים לְיִבּוּם, וְיֵשׁ שֶׁהֵם רְאוּיִים לְיִבּוּם וְלֹא לַחֲלִיצָה. וְיֶתֶר רֻבֵּי פְּרָטֵי עִנְיָנִים אֵלֶּה, מְבֹאָרִים כֻּלָּם מֻשְׁלָם בַּמַּסֶּכְתָּא הַמְחֻבֶּרֶת עַל זֶה וְהִיא מַסֶּכֶת יְבָמוֹת.
And they, may their memory be blessed, also said (Yevamot 79b and see Mishneh Torah, Levirate Marriage and Release 6:8) about this matter that there are women that are exempt from levirate marriage and also from release. And these are them: the wife of a eunuch of the sun (caused by nature) or of an andrigonos; the wife of someone mentally incapacitated; the wife of a minor; a sterile woman; and one who is sexually forbidden to the levirate husband. As it is stated, “that his name may not be blotted out in Israel” — to exclude a eunuch of the sun and an andrigonos, the names of which are [already] blotted out; since they are not capable of having children from the beginning of their creation, they are like their own species. And it states, “The first son that she bears shall be” — to exclude a sterile woman, who is not capable of having children from the beginning of her creation. “The wife of the deceased shall not be married to a stranger, outside the family” — to exclude the wife of someone mentally incapacitated or a minor, that do not have marriage at all. “He shall take her as his wife” — to exclude one who is sexually forbidden to the levirate husband, that do not have taking (marriage) for him to them. And the Sages counted (Mishnah Yevamot 1:1) fifteen women that do not have taking, that exempt their rival wives from release and from levirate marriage. And they said also (see Mishneh Torah, Levirate Marriage and Release 6:6-7) that there are some women that perform levirate marriage but do not get released, and there are some that get released but do not perform levirate marriage. And there are some that do not perform levirate marriage and do not get released. And there are from the brothers also those that are fit for levirate marriage and release, and some who are not fit for levirate marriage nor for release — and they have no connection [to the woman] at all — and there are some that are fit for release but they are not fit for levirate marriage, and there are some that are fit for levirate marriage but not for release. And the rest of the many details about these matters are all complete in the tractate connected to it and that is Tractate Yevamot.
וְנוֹהֶגֶת מִצְוָה זוֹ בְּכָל מָקוֹם וּבְכָל זְמַן בִּזְכָרִים. וְהָעוֹבֵר עַל זֶה וְלֹא יִבֵּם יְבִמְתּוֹ, כְּלוֹמַר שֶׁלֹּא בָּא עָלֶיהָ בִּיאָה אַחַת, שֶׁהִיא עִקַּר מִצְוַת עֲשֵׂה זֶה אוֹ שֶׁלֹּא פְּטָרָהּ בַּחֲלִיצָה, בִּטֵּל עֲשֵׂה זֶה.
And this commandment is practiced in every place at all times by males. And one who transgresses it and does not do levirate marriage with his levirate wife — meaning to say that he does not have intercourse with her one time, which is the essence of this positive commandment — or does not exempt her with release, has violated this positive commandment.