Jerusalem Talmud Yevamot 2:1:4

משנה: כֵּיצַד אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְעוֹלָמוֹ. שְׁנֵי אַחִים וּמֵת אֶחָד מֵהֶם וְנוֹלַד לָהֶן אָח וְאַחַר כָּךְ יִבֵּם הַשֵּׁנִי אֶת אֵשֶׁת אָחִיו וָמֵת. הָרִאשׁוֹנָה יוֹצֵאת מִשּׁוּם אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְעוֹלָמוֹ וְהַשְּׁנִייָה מִשּׁוּם צָרָתָהּ. עָשָׂה בָהּ מַאֲמָר וָמֵת שְׁנִייָה חוֹלֶצֶת וְלֹא מִתְייַבֶּמֶת. MISHNAH: In which way¹In which way does the wife of his brother who did not live in his world free her co-wife?, cf. Mishnah 1:1. “the wife of his brother who did not live in his world”? There were two brothers, one of them died, then a brother was born to them²To whom the widow now is forbidden. She remains forbidden., and after that the second brother took his brother’s wife in levirate³Having already another wife. He then died childless., and died. The first woman⁴The widow taken in levirate. leaves as widow of his brother who did not live in his world and the second one⁵The original wife of the second brother. because she is her co-wife. If he had “bespoken” her⁶In biblical law, only cohabitation makes the sister-in-law the wife of the levir (Deut. 25:5). Since it was felt that having sex without prior ceremony was unbecoming, there is a requirement (rabbinic for the Babli, possibly biblical for the Yerushalmi) to go through the formalities of qiddushin; cf. Chapter 1, Note 63. Qiddushin make a free woman a wife for the purposes of criminal law. But for the sister-in-law, the act is invalid by biblical standards (cf. Chapter 1, Note 94); the wife of the second brother does not become co-wife of the sister-in-law through the latter’s qiddushin by the standards of criminal law. Therefore, the act is not called qiddushin but מאמר “bespeaking”: she is reserved for the brother claiming her; all other brothers are excluded from levirate with her. “Bespeaking” is not preliminary marriage since it is voided not by a bill of divorce but by ḥalîṣah(but it needs a rabbinic bill of divorce).
The other woman is not freed as co-wife but, rabbinically, one does not admit levirate since she is almost a co-wife., the second performs ḥalîṣah but not levirate.

הלכה: כֵּיצַד אֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְעוֹלָמוֹ כול׳. יַחדָּיו. פְּרָט לְאֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְעוֹלָמוֹ. דִּלֹא כֵן מַה אֲנָן אָֽמְרִין. מֵת בְּלֹא בָנִים תְּהֵא אִשְׁתּוֹ אֲסוּרָה לְהִינָּשֵׂא. שֶׁמָּא יוֹלִיד אָבִיו בֵּן וּתְהֵא אִשְׁתּוֹ זְקוּקָה לְיִיבּוּם. מֵעַתָּה אֲפִילוּ מֵתָה אִמּוֹ תְּהֵא אִשְׁתּוֹ אֲסוּרָה לְהִינָּשֵׂא. שֶׁמָּא יֵלֵךְ אָבִיו וְיִשָּׂא לוֹ אִשָּׁה אֲחֶרֶת וְיוֹלִיד בֵּן וּתְהֵא אִשְׁתּוֹ זְקוּקָה לְיִיבּוּם. וְיֹאמֶר קִרְייָה וּבֵן וְאַב אֵין לוֹ. אֶלָּא כֵן אֲנָן קַייָמִין כְּשֶׁמֵּת וְהִנִּיחַ אֶת אִשְׁתּוֹ מְעוּבֶּרֶת. שֶׁלֹּא תֹאמַר. אִילּוּ מֵת וְהִנִּיחַ אֶת אִשְׁתּוֹ מְעוּבֶּרֶת שֶׁמָּא אֵינָה צְרִיכָה לְהַמְתִּין וְלֵידַע אִם בֶּן קַייָמָא הוּא וְאִם אֵינוֹ בֶּן קַייָמָא. אַף הָכָא תְהֵא צְרִיכָה לְהַמְתִּין וְלֵידַע אִם בֶּן קַייָמָא הוּא וְאִם אֵינוֹ בֶּן קַייָמָא. לְפוּם כֵּן צָרַךְ מֵימַר יַחדָּיו. פְּרָט לְאֵשֶׁת אָחִיו שֶׁלֹּא הָיָה בְעוֹלָמוֹ. HALAKHAH: Why “the wife of his brother who did not live in his world”⁷Mentioned in Mishnah 1:1. In contrast to all other cases enumerated there, this is not based on a direct incest prohibition.? “Together”, this excludes the wife of his brother who did not live in his world⁸Cf. Chapter 1, Note 39.. Because if it were not so, what would we say? If he died childless, his widow would be forbidden to remarry, for maybe his father would have another son and his widow would then be a candidate⁹The one under obligation of levirate or ḥalîṣah is always called זקוּקה, the fact of obligation זיקה. It does not seem reasonable to connect this meaning to biblical זקק “to refine, purify”; maybe the root is related to Arabic زقّ، زقق “to feed (a bird his young)”, that she is fodder for the levirate, or even Akkadic zāqiqum“ghost; necromancer”. {Jewish Berber tribes held that a brother who rejects levirate will be punished by the ghost of his dead brother.} for the levirate! Even if [the deceased’s] mother had died, his widow would be forbidden to remarry, [because] maybe the father would go and marry a new wife who could have a son and the widow would then be a candidate for the levirate! Then the verse would have to read¹⁰To free her for remarriage.: “He has neither father nor son”! One would compare this to the case that he left his widow pregnant; does she not have to wait to know whether the child is viable or not¹¹A posthumous child who does not survive for 30 days does not free its mother from levirate or ḥalîṣah.? Here also, should she not have to wait to know whether the child is viable or not? Therefore it was necessary to say “together”; this excludes the wife of his brother who did not live in his world.

יְבָמָהּ יָבֹא עָלֶיהָ. זֶה הַבִּיאָה. וּלְקָחָהּ לוֹ לְאִשָּׁה. זֶה הַמַּאֲמָר. יָכוֹל יְהֵא כְשֵׁם שֶׁהַבִּיאָה גוֹמֶרֶת בָּהּ כָּךְ יְהֵא מַאֲמָר גּוֹמֵר בָּהּ. תַּלמוּד לוֹמַר וְיִבְּמָהּ. עוּרָה אֶת כָּל־הַפָּרָשָׁה כּוּלָּהּ לְיִיבּוּם. הַבִּיאָה גוֹמֶרֶת בָּהּ וְאֵין הַמַּאֲמָר גּוֹמֵר בָּהּ. אִם כֵּן מַה הוֹעִיל בָּהּ מַאֲמָר. לְאוֹסְרָהּ לָאַחִין. “Her levir shall come upon her¹²Deut. 25:5.”, that is cohabitation. “And take her as wife for himself”, that is “bespeaking”¹³A better translation, if one identifies biblical and rabbinic Hebrew, would be: “Acquires her as a wife for himself”, by giving her some valuables as for legally valid qiddushin.. I might think that just as cohabitation is final so “bespeaking” is final¹⁴Cohabitation makes the widow his wife; her marriage to him can be terminated only by death or by a bill of divorce. “Bespeaking” does not remove the obligation of ḥalîṣah if the levir changes his mind, in contrast to qiddushin which can be undone only by a bill of divorce.
Tosephta 3:1: “Qiddushin are final, ‘bespeaking’ is not final”.
The Babli, 54a, formulates: “Cohabitation is final, money or a document are not final.” Cohabitation is final even if in error or unintentional (Mishnah 6:1); money or a document are not final even if given as qiddushin and not as “bespeaking”.; the verse says “and act as levir towards her.” This directs the entire paragraph towards levirate. Cohabitation is final, “bespeaking” is not final. Then what is “bespeaking” good for? To forbid her to the brothers¹⁵After “bespeaking”, she remains forbidden to the other brothers even if the “bespeaker” changes his mind..

רִבִּי לָֽעְזָר בֶּן עֲרָךְ אוֹמֵר. הַמַּאֲמָר קוֹנֶה קִנְייָן גָּמוּר בִּיבָמָה. מַה טַעֲמָא דְּרִבִּי לָֽעְזָר בֶּן עֲרָךְ. וּלְקָחָהּ לוֹ לְאִשָּׁה. הֲרֵי הִיא כְקִידּוּשֵׁי אִשָּׁה. מַה קִידּוּשֵׁי אִשָּׁה קוֹנִין קִנְייָן גָּמוּר. אַף הַמַּאֲמָר קוֹנֶה קִנְייָן גָּמוּר בִּיבָמָה. אֵי זוֹ הִיא מַּאֲמָר בִּיבָמָה. הֲרֵי אַתְּ מְקוּדֶּשֶׁת לִי בְּכֶסֶף וּבְשָׁוֶה כֶסֶף. Rebbi Eleazar ben Arakh says, “bespeaking” acquires a sister-in-law completely. What is the argument of Rebbi Eleazar ben Arakh? “And take her as wife for himself”, the same expression is used as for qiddushin of a woman¹⁹Deut.22:13, “If a man takes a wife”.. Just as qiddushin acquire completely, so “bespeaking” acquires a sister-in-law completely. What is the formula for “bespeaking” a sister-in-law? “You are betrothed to me by money or money’s worth.²⁰The same formula as for qiddushin; Babli 52a, Tosephta 1:1 (the latter also has the formula for “bespeaking” by document).”

בֵּין רַבָּנִין בֵּין רִבִּי שִׁמְעוֹן מוֹדֵיי בָהּ. כְּרַבָּנִין. צַד שֶׁקָּנָה בָהּ מַאֲמָר כְּנֶגְדּוֹ אָסוּר בְּצָרָה. וְצַד שֶׁלּא קָנָה בָהּ מַאֲמָר כְּנֶגְדּוֹ הֵיתֵר בְּצָרָה. לְפִיכָךְ חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת. כְּרִבִּי שִׁמְעוֹן. קָנָה מַאֲמָר שְׁתֵּיהֶן מוּתָּרוֹת. לא קָנָה מַאֲמָר הָרִאשׁוֹנָה אֲסוּרָה וְהַשְּׁנִייָה מוּתֶּרֶת. מִסָּפֵק חוֹלֶצֶת וְלֹא מִתְיַיבֶּמֶת. מַה נְפִיק מִן בֵּינֵיהוֹן. בָּא עַל הַשְּׁנִייָה. עַל דַּעְתִּין דְּרַבָּנִין בִּיאוֹת עֶרְוָה. מִפְּנֵי שֶׁעָשָׂה בָּהּ מַאֲמָר. הָא אִם לֹא עָשָׂה בָהּ מַאֲמָר מִתְיַיבֶּמֶת וְאֵין לוֹ זִיקָה בָהּ. אָמַר רִבִּי חַגַיי. קִייַמְתָּהּ בְּהַהוּא דָמַר רִבִּי יַעֲקֹב בַּר אָחָא בְשֵׁם רִבִּי לָֽעְזָר. שׁוֹמֶרֶת יָבָם שֶׁמֵּתָה מוּתָּר בְּאִמָּהּ. זִיקָה הְָיְתָה לוֹ בָהּ. כֵּיוָן שֶׁמֵּתָה בָֽטְלָה זִיקָתָהּ. וְהָכָא כֵּיוָן שֶׁמֵּת בָּֽטְלָה זִיקָתוֹ. Both the rabbis and Rebbi Simeon agree to the following²¹Two different reasonings lead to the same practical result.. According to the rabbis, the aspect which “bespeaking” acquires is forbidden in the co-wife, the aspect which “bespeaking” does not acquire is permitted in the co-wife; therefore, the latter has to have ḥalîṣah but not levirate²²Since “bespeaking” is neither final nor useless, the wife of the brother becomes possibly a co-wife of his sister-in-law; if he dies she is excluded from levirate since that is possible only for a woman certainly permitted to the (newly born) levir. She cannot leave the family without ḥalîṣah since she was not a full co-wife of the forbidden woman.. According to Rebbi Simeon, if “bespeaking” acquires, both are permitted²³If “bespeaking” preceded the birth of the next brother, the widow of the first brother already was the wife of the second and after his death will be permitted to the third. If the birth of the next brother preceded bespeaking, both are forbidden: the first as widow of a brother who did not live in his world, the second as her co-widow. Whether one wants to emend the text here, from “permitted” to “forbidden”, depends on which case one chooses.. If “bespeaking” does not acquire, the first one is forbidden but the second one permitted. Out of doubt, she has to have ḥalîṣah but not levirate. What is the difference between them²⁴Is there any case where there is a practical difference between the rabbis and Rebbi Simeon?? If he slept with the second one²⁵If the third brother sleeps with the woman to whom he should give ḥalîṣah, this is to some degree incestuous intercourse, he cannot acquire her in levirate, and a child from this union is a bastard.. In the opinion of the rabbis, an incestuous intercourse because he²⁶The second brother. had “bespoken”. Therefore, if he had not “bespoken” she may have levirate and there is no candidacy at all²⁷The simple fact that the widow may not marry outside the family without ḥalîṣah does not establish a relationship with any one of the brothers. In the Babli, 17b, this is the minority opinion ascribed to Rav Huna in the name of Rav.. Rebbi Ḥaggai said, I explained that following what Rebbi Jacob bar Aḥa said in the name of Rebbi Eleazar: If a woman waiting for her levir died, her mother is permitted to him²⁸Quoted many times affirmatively in the Yerushalmi (Yebamot 4:8, 4:16; Soṭah 2:5), rejected in the Babli, 17b.
The position of R. Simeon is not explained but is clear: The relationship is possibly incestuous, the child is only possibly a bastard and cannot be forbidden by the court to marry inside the congregation.. He had in her an interest of candidacy. When she died, the candidacy was eliminated. And here, when he died, the candidacy was eliminated²⁹Rejected in the Babli, 18a: “Candidacy cannot disappear without action.”.