משנה: יָבָם קָטָן שֶׁבָּא עַל יְבָמָה קְטַנָּה יִגְדְּלוּ זֶה עִם זֶה. בָּא עַל יְבָמָה גְדוֹלָה יְגַדְּלֶנּוּ. הַיְבָמָה שֶׁאָֽמְרָה בְּתוֹךְ שְׁלֹשִׁים יוֹם לֹא נִבְעַלְתִּי כּוֹפִין אוֹתוֹ שֶׁיַּחֲלוֹץ לָהּ. לְאַחַר שְׁלֹשִׁים יוֹם מְבַקְשִׁים מִמֶּנּוּ שֶׁיַּחֲלוֹץ לָהּ. וּבִזְמַן שֶׁהוּא מוֹדֶה אֲפִילוּ אַחַר שְׁנֵים עָשָׂר חוֹדֶשׁ כּוֹפִין אוֹתוֹ שֶׁיַּחֲלוֹץ לָהּ. הַנּוֹדֶרֶת הֲנָייָה מִיבָמָהּ בְּחַיֵי בַעֲלָהּ כּוֹפִין אוֹתוֹ עַד שֶׁיַּחֲלוֹץ לָהּ. לְאַחַר מִיתַת בַּעֲלָהּ מְבַקְשִׁין מִמֶּנּוּ שֶׁיַּחֲלוֹץ לָהּ. אִם נִתְכַּװְנָה לְכָךְ אֲפִילוּ בְּחַיֵי בַעֲלָהּ מְבַקְשִׁין מִמֶּנּוּ שֶׁיַּחֲלוֹץ לָהּ. MISHNAH: If an underage levir had intercourse with an underage sister-in-law, they should grow up together119And stay married.. If he had intercourse with an adult sister-in-law, she should raise him119And stay married.. If the sister-in-law claims within thirty days120After he officially brought her into his house. The marriage ceremony of the levir is without meaning unless it is followed by the sex act. that she was not copulated with, one forces him to perform ḥalîṣah with her121It is obvious that she cannot prove her claim by witnesses. But for the first thirty days, her claim carries a presumption of truth. Unless the levir can disprove her claim, she is not married in levirate and is freed by ḥalîṣah.. After thirty days, one asks him to perform ḥalîṣah with her122It is not credible that a woman would stay more than thirty days with a man who does not sleep with her. If the levir denies her claim, she would have to prove it. In the absence of proof, the court may counsel a separation but cannot force it.. But if he confesses, one forces him to perform ḥalîṣah with her even after twelve months.
If a woman made a vow during her husband’s lifetime forbidding herself any usufruct from her levir131She made the vow when she did not think that her husband would die childless, but now she finds herself forbidden to marry the levir., one coerces him until he performs ḥalîṣah with her. After her husband’s death, one begs him that he should perform ḥalîṣah with her132If she made the vow in order to prevent levirate, the court will not coerce the levir to abandon the biblical commandment of levirate. It is clear that the Mishnah became obsolete when preference changed from levirate to ḥalîṣah.. If she had [ḥalîṣah] in mind even during her husband’s lifetime, one begs him that he should perform ḥalîṣah with her.
הלכה: יָבָם קָטָן כול׳. תַּנֵּי. טַעֲנַת בְּתוּלִים עַד שְׁלֹשִׁים יוֹם. דִּבְרֵי רִבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים. מִיָּד. מַה נָן קַייָמִין. אִם בְּשֶׁבָּעַל. מִיָּד. וְאִם בְּשֶׁלֹּא בָעַל. אֲפִילוּ לְאַחַר כַּמָּה. אֶלָּא כֵן אֲנָן קַייָמִין בִּסְתָם. רִבִּי מֵאִיר אָמַר. חֲזָקָה אָדָם מַעֲמִיד עַצְמוֹ שְׁלֹשִׁים יוֹם. וְרַבָּנִין אָֽמְרִין. אֵין אָדָם מַעֲמִיד אֲפִילוּ יוֹם אֶחָד. רִבִּי יִרְמְיָה בָעֵי. מַהוּ שֶׁיְּהֵא נֶאֱמָן לוֹמַר עַל דְּרִבִּי מֵאִיר. הֶעֱמַדְתִּי עַצְמִי שְׁלֹשִׁים יוֹם בִּשְׁבִיל לַעֲשׂוֹת הַװְלָד שְּׁתוּקִי. נִישְׁמְעִינָהּ מִן הָדָא. הַיְבָמָה שֶׁאָֽמְרָה בְּתוֹךְ שְׁלֹשִׁים יוֹם. לֹא נִבְעַלְתִּי. כּוֹפִין אוֹתוֹ שֶׁיַּחֲלוֹץ לָהּ. לְאַחַר שְׁלֹשִׁים יוֹם מְבַקְשִׁין מִמֶּנּוּ לַחֲלוֹץ לָהּ. (לְאַחַר שְׁלֹשִׁים.) וְאָמַר רִבִּי לָֽעְזָר. דְּרִבִּי מֵאִיר הִיא. וְאָמַר רִבִּי לָֽעְזָר. לֹא שָׁנוּ אֶלָּא אֶצְלָהּ. הָא אֶצֶל צָרָתָהּ לֹא. כְּמַהּ דְּתֵימַר תַּמָּן. לֹא הַכֹּל מִמֶּנָּה לַחוֹב לְצָרָתָהּ. אַף הָכָא לֹא הַכֹּל מִמֶּנָּה לַחוֹב לִבְנוֹ. HALAKHAH: “If an underage levir,” etc. 123The entire paragraph is from Ketubot Halakhah 1:4. It was stated: A claim of non-virginity may be brought within thirty days, the words of Rebbi Meїr. But the Sages say, immediately124In the Babli, 111b, and the Tosephta, Ketubot 1:4: “A claim of non-virginity may be brought within thirty days, the words of Rebbi Meїr. Rebbi Yose says, if they were alone together, immediately; if they were not alone together, within thirty days (Tosephta), indefinitely (Babli).”
The husband goes to court to annul the marriage, without divorce and without payment, claiming that he was lead to believe the bride to be a virgin when he found that she was not.. Where do we hold? If he copulated, immediately. If he did not copulate, even after a longer delay. But we must hold if it was not spelled out. Rebbi Meїr said, it is credible that a man may hold himself back for thirty days. But the Sages say, a man does not hold himself back even for one day125In the Babli, 112a, this is declared to be irrelevant for our Mishnah since a man will sleep with his bride immediately after the marriage ceremony but might be reluctant to touch his sister-in-law for some time.. Rebbi Jeremiah asked: According to Rebbi Meїr, would a man be believed to assert that he held himself back for thirty days in order to make the child fatherless126If his wife becomes pregnant immediately after the marriage ceremony, can he declare in court that the child is not his since he did not sleep with his bride for some time?? Let us hear from the following: “If the sister-in-law claims within thirty days that she was not copulated with, one forces him to perform ḥalîṣah with her. After thirty days, one asks him to perform ḥalîṣah with her.” (After thirty days.)127Missing in Ketubot. And Rebbi Eleazar said, this is Rebbi Meїr’s128But the majority will accept the widow’s claim only on the day after she entered the levir’s house.. And Rebbi Eleazar said, that refers only to her, but not to her co-wife129If the co-wife married an outside man based on the other’s levirate marriage, she cannot cast aspersion on the validity of her cowidow’s marriage without the testimony of two credible witnesse.
The Babli agrees, 112a, at least in the interpretation of Rashi and Rabbenu Ḥananel.. As you say there130“There” is here, Yebamot, “here” is there, Ketubot, cf. Note 122., she is not believed to damage her co-wife, so here, he is not believed to damage his son.
הַנּוֹדֶרֶת הֲנָייָה מִיבָמָהּ כול׳. כְּהָדָא. הוּא אוֹמֵר. בָּעַלְתִּי. וְהִיא אוֹמֶרֶת. לֹא נִבְעַלְתִי. אַף עַל פִּי שֶׁחָזַר וְאָמַר. לֹא בָעַלְתִי. לֹא הַכֹּל מִמֶּנּוּ. שֶׁכְּבָר מִשָּׁעָה הָרִאשׁוֹנָה אָמַר. בָּעַלְתִּי. אֲבָל אִם אָמַר מִשָּׁעָה הָרִאשׁוֹנָה. לֹא בָעַלְתִי. שְׁנֵיהֶן יְכוֹלִין לַעֲקוֹר חֲזָקָה. חֲבֵרַייָא בָעֵיי. מַה נָן קַייָמִין. אִם בְּמִשְׁנָה הָרִאשׁוֹנָה שָׁמַעְנוּ שֶׁמּוּתָּר לְייַבֵּם. אִם בְּמִשְׁנָה אַחֲרוֹנָה שָׁמַעְנוּ שֶׁמּוּתָּר לַחֲלוֹץ. שָׁמַענוּ שֶׁכּוֹפִין. רַב הוּנָא בְשֵׁם רַב. וְהוּא שֶׁיְּהֵא הַגֵּט יוֹצֵא מִתַּחַת יָדוֹ לְתוֹךְ יָדָהּ. הוּא אָמַר. גֵט אִשָּׁה. וְהִיא אוֹמֶרֶת. גֵט יְבָמָה. בְּתוֹךְ שְׁלֹשִׁים חֲזָקָה לֹא בָעַל כּוֹפִין אוֹתוֹ שֶׁיַּחֲלוֹץ לָהּ. לְאַחַר שְׁלֹשִׁים יוֹם מְבַקְשִׁין מִמֶּנּוּ שֶׁיַּחֲלוֹץ. רִבִּי יוֹסֵי בָעֵי. לְאַחַר שְׁלֹשִׁים יוֹם חֲזָקָה בָעַל. וְאַתְּ אָמַר כּוֹפִין. אֶלָּא כֵינִי. רַב הוּנָא בְשֵּׁם רַב. וְהוּא שֶׁיְּהֵא הַגֵּט יוֹצֵא מִתּוֹךְ יָדוֹ לְתוֹךְ יָדָהּ. הוּא אָמַר. גֵט אִשָּׁה. וְהִיא אוֹמֶרֶת. גֵט יְבָמָה. בְּתוֹךְ שְׁלֹשִׁים חֲזָקָה לֹא בָעַל כּוֹפִין אוֹתוֹ שֶׁיַּחֲלוֹץ לָהּ. לְאַחַר שְׁלֹשִׁים יוֹם מְבַקְשִׁין מִמֶּנּוּ שֶׁיַּחֲלוֹץ לָהּ. כְּהָדָא. הוּא אָמַר. בְָּעַלְתִּי. וְהִיא אוֹמֶרֶת. לֹא נִבְעַלְתִי. פְּשִׁיטָא דְהוּא מַעֲלֶה לָהּ מְזוֹנוֹת. פְּשִׁיטָא שֶׁאֵינוֹ יוֹרְשָׁהּ. לֹא צְרִיכָא דְלֹא מַהוּ שֶׁייֵרֵשׁ נִיכְסֵי אָחִיו. הִיא אוֹמֶרֶת. נִבְעַלְתִי. וְהוּא אוֹמֵר. לֹא בָעַלְתִי. פְּשִׁיטָא שֶׁאֵינוֹ מַעֲלֶה לָהּ מְזוֹנוֹת. פְּשִׁיטָא שֶׁהוּא יוֹרֵשׁ נִיכְסֵי אָחִיו. לֹא צְרִיכָא דְלֹא מַהוּ שֶׁייִרָשֶׁנָּה. “If a woman made a vow forbidding herself any usufruct,” etc. 133The entire Halakhah refers to Mishnah 15, not Mishnah 16. Consider the following: He said, I copulated, but she says, I was not copulated with. Even if he changed and then said, I did not copulate, he cannot be believed since from the start he had said, I copulated. But if from the start he said that he had not copulated, the two together can uproot the presumption134The court must believe that they had no sexual relations and that she never became the levir’s wife while living in his house.. The colleagues asked: What are we talking about? If following the early Mishnah135Bekhorot 1:7 stating that in early times, levirate was preferred, but today ḥalîṣah is preferred., we have understood that one may marry in levirate. If following the later Mishnah, we have understood that one may perform ḥalîṣah. Where did we hear that one coerces136Deut. 25:5–9 makes it clear that the levir can be compelled to appear in court but not that he can be compelled to do anything against his will.? Rav Huna in the name of Rav: That is, if a bill of divorce has passed from his hand to her hand137In the Babli, 112a, this is the answer of Rav to the question why one does coerce him to perform ḥalîṣah if she already lives in his house, why does one not coerce him to sleep with her? Note that the colleagues prevented this question to be asked by referring to the later Mishnah.. He says, it is the bill of divorce of a wife. But she says, it is the bill of divorce of a sister-in-law138As was determined earlier, in order to remarry she needs a bill of divorce for his “bespeaking” and ḥalîṣah for her candidacy of levirate.. Within thirty days, the presumption is that he did not copulate; one coerces him to performḥalîṣah. After thirty days, one asks him to perform ḥalîṣah. Rebbi Yose asked, after thirty days, the presumption is that he copulated and you say one coerces139The only difference between the colleagues and R. Yose is the formulation of the question. Since after 30 days the presumption is that she became his wife, why should he be asked to perform a useless ḥalîṣah? The answer is that he already gave the bill of divorce but that might not be enough to let the sister-in-law remarry.? But it must be the following: Rav Huna in the name of Rav: That is, if a bill of divorce has passed from his hand to her hand. He says, it is the bill of divorce of a wife. But she says, it is the bill of divorce of a sister-in-law. Within thirty days, the presumption is that he did not copulate; one coerces him to performḥalîṣah. After thirty days, one asks him to performḥalîṣah. The following: If he says, I copulated, and she says, I was not copulated with, it is obvious that he has to sustain her140He obligated himself since he asserts that she is his wife by biblical standards.. It is obvious that he does not inherit from her141She asserts that she is not his wife.. The problem is whether he inherits his brother’s property142If there are potential co-heirs, he inherits only if he is married to the widow.. If she says, I was copulated with, and he says, I did not copulate, it is obvious that he does not have to sustain her143If he asserts that he did not copulate, it is obvious that there are no eyewitnesses to back up her claim for support as a wife. Since in money matters the proof is on the claimant, she cannot enforce her claim.. It is obvious that he inherits his brother’s property144This is not obvious. In fact, all classical commentators amend the text to read “he does not inherit” and the editor of the Leiden ms. here notes a corruption. Their reason is that the coheirs can point to his denial of acquisition. There is little reason to accept the argument and the correction since Deut. 25:5–6 makes it quite clear that the transfer of property is an automatic consequence of the transfer of the wife and her word is the only one that should carry weight in his family.. The problem is whether he inherits from her145One the one hand, she asserts that he inherits from her. On the other hand, he renounces all his rights in any settlement with her family. No answers are given to the questions that never apply in practice..