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165 [1] The *mitzvah* of *yibum* comes before the *mitzvah* of *chalitzah*. And if she does not want to do *yibum* with another one of his [her husband's] brothers, or with the eldest who wants to do *yibum*, but without a satisfactory claim, she is considered rebellious. There are those who say that the *mitvah* of *chalitzah* is more important. The Rem"a comments: She is not considered rebellious if she does not want to perform *yibum*. Nevertheless, we do not force him to do *chalitzah*, rather they try to trick him if they are able to, for example that they say to him: do *chalitzah* on the condition that she give you a *maneh* [a coin equal to 100 *zuz*] (Tur in the name of Rabeinu Tam and the Ros"h). Specifically, if they are not among those who force him to divorce her, like was explained earlier in siman 154). If the two of them want to do *yibum*, we do not allow them to unless it is known that they both have intention to fulfill the *mitzvah* (Tur in the name of Rabeinu Tam). Some say that if he has another wife, we force him and pressure him until he does *chalitzah* (Tur in the name of the Sma"g). There are those who say that even if he doesn't have another wife, if the intention isn't for a *mitzvah*, and she does not want to do *yibum*, and they are not able to trick him, they force him to do *chalitzah*. The custom like the first opinion, that we do not force *chalitzah* at all, even if we know that his intentions are for money (Maharim Padvoah siman 18). But we appease between them like the communal institutions, like explained below. All this is when he wanys to perform *yibum*, and it is possible to do *yibum* without worrying about it being forbidden. But if he says he wants to do neither *yibum* nor *chalitzah*, we force him (Beit Yoseif in the name of Rabeinu Tam). Specifically, when she came with a reasonable claim, like explained in siman 154 (Truma Hadeshen siman 220). However, if it is possible to make him make a mistake by saying to him, take a lot of money for the *chalitzah*, we make him make a mistake so we don’t need to force him (N”Y M”K). They should be careful so they don’t plant money in the hands of a third person, because then they cannot say to him: we were just kidding with you (Mordechai Perek Hacholeitz). See later on siman 169 seif 50). [2] A *yivamah* who vowed [that she would not] receive benefit from her *yibum* while her husband was still alive, or she vowed [not to] receive benefit from all Jews, they force him [the *yibum*] to perform*chalitsah*. And if she vowed after her husband's death, they request that he perform *chalitsah*. So too if she intentionally took the vow, even while her husband was still alive, so that he [the *yibum*] would not perform *yibum* with her, they request him to perform *chalitsah*. Rem"a: If her *yibum* was a kohen and she went and married someone else so that he would be unable to perform *yibum*, her status is as one who vowed from receiving benefit from him. Nevertheless, they do not force him to perform *chalitsah*, since she caused herself to be forbidden to him (Responsa of the Rashba 820). Some say that if she spit before the brothers so something similar, and caused herself to be forbidden to do *yibum*, she is not considered rebellious since she cannot perform the *yibum* now (Rashba 1202). It was already explained nearby that all these distinctions are according to the one who says the Mitzvah of *yibum* precedes, but according to the one who says the Mitzvah of *chalitsah* precedes, she would not be considered rebellious at all if she does not want to perform the *yibum* [3] If a *Yivama* claims that the *Yibum* should perform *Chalitsah* but she does not want to [perform *Chalitsah*] but wants to remain an *Agunah* [a 'chained' woman who cannot freely marry], we don't listen to her, even if the *Yibum* is married. Rem"a: and she has the law of a rebellious [wife], which is explained in *Siman* 77 [4] Any woman who is required to perform halitza and not levirate marriage receives her Ketubah (Rema: and her clothing needs are evaluated like those of a widow). Similarly, if her brother-in-law has is afflicted with boils or any of the other male defect described in (Shulchan Arukh, Even HaEzer 164), he must perform halitza and, she receives her Ketubah. Even if her husband exhibited the same defects, she can say, "I was able to tolerate this for your brother; I cannot tolerate it for you." Rem"a: The same law applies for the view that says that halitza is the first resort, even though we do not coerce him to perform halitza, he must give her the Ketubah immediately, as she is considered to have already undergone halitza. All of this is the law, but some locales passed an rule that if the two parties agree to perform halitza they will split the estate, even if the half is not sufficient to cover the Ketubah. We subtractI any amount that she spent during while her husband was alive, and she must take on oath [on that amount], unless they agreed that they would be no oath. Anything that he gave away as a deathbed gift is not subtracted from her portion. The half that the heirs of the husband are entitled to is taken by the one performing halitza, and his father and other brothers have no claim to it. Even if they seized assets, we retrieve them form their hands. The primary purpose of this rule was to make them amenable to performing halitza, and the one performing the halitza is therefore the primary subject. Even if the other brothers wish to divide [the estate] with the eldest brother, and they say that they wish to perform halitza, we do not listen to them if the eldest [also] wishes to perform halitza. All of this is true if half of the estate is insufficient to cover the Ketubah, bacause she certainly cannot take more than the Ketubah. There are other authoritative views about community rules, therefore the practice is to compromise with them. Even if she has a contract that binds them to perform halitza, she still must compromise with them for some monetary amount, unless they explicitly stated that they would perform halitza without payment. [5] If she developed blemishes when she was bound for *yibum*, if he does not want to do *yibum*, she does *chalitzah*, and he gives her a *ketubah*.
Version: Sefaria Community Translation
Source: https://www.sefaria.org
License: CC0