It is a mitzvah for the elder brother to perform the yibum. [For we expound the verse (Deuteronomy 25:5): "And he shall take her as a wife in yibum (6): and it shall be the first-born" (He who performs the yibum shall be the first-born) "that she bears" (That yevamah must be capable of bearing — to exclude an eilonith) "shall be invested" (The first-born, the yavam, shall be invested) "in the name of his dead brother" (to inherit him, his other brothers not sharing with him)]. And if the younger were beforehand (to take her in yibum), he acquires her. If one were suspected of (relations with) a bondswoman, and she were freed, or with a gentile woman, and she became a proselyte, he may not marry her. If he did, she is not taken from him. If one were suspected of (relations with) a married woman, and they (beth-din) took her from him [her husband, because of this one, who caused her to be forbidden to him, and this one went and married her], even though he married her, he must send her away. [For the Torah forbids her also to him, just as she is forbidden to her husband, it being expounded (Numbers 5:13 and 14): "she be unclean," twice — once, vis-à-vis the husband; once, vis-à-vis the adulterer. And this applies only to one who is suspected of adultery; but if one is suspected of relations with an unmarried woman, it would seem that it is a mitzvah for him to marry her, as we find in respect to one who forces a virgin (Deuteronomy 22:29): "And to him shall she be as a wife."]
Bartenura on Mishnah Yevamot
מצוה בגדול ליבם – for we expound (Deuteronomy 25:5-6): “he shall take her as his wife and perform the levir’s duty. The first son/והיה הבכור that she bears [shall be accounted to the dead brother [that his name may not be blotted out in Israel],” that the person who performs the levirate marriage should be a first-born, “that she bears” and that sister-in-law should be worthy to give birth, excluding a barren woman; יקום/shall be accounted – the first born who performs as the levir in the name of his brother to cause him to inherit and not that his brothers divide it with him.
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English Explanation of Mishnah Yevamot
Introduction
Our mishnah gives a general rule about yibbum and then begins to discuss a different issue, namely one who is suspected of having relations with a woman who is forbidden to him.
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Bartenura on Mishnah Yevamot
הנטען על אשת איש – who is suspected of [having a sexual relationship with] a married woman
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English Explanation of Mishnah Yevamot
The commandment to perform yibbum is upon the oldest brother. If a younger brother preempted him [by performing yibbum], he has acquired [a wife]. If a man is suspected of [having relations] with a slave and then she was freed, or with a non-Jewish woman who then converted, he must not marry her. If, however, he did marry her they do not take her away from him. If a man is suspected of [having relations] with a married woman, and then [in consequence] she was taken away from her husband, even though he married her, he must divorce her. Any brother of the deceased husband may perform yibbum or halitzah. However, the first option is supposed to go to the oldest remaining brother. If, contrary to what is supposed to happen, a younger brother does perform yibbum, the yibbum is valid and she is his wife. We will learn more about this in chapter four, mishnah five.
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Bartenura on Mishnah Yevamot
והוציאוה – and the Jewish court removed her from under her husband, for that reason that she is prohibited to him and this one went and married her.
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English Explanation of Mishnah Yevamot
The three parts of this section all deal with a man who is suspected of having relations with a woman who is forbidden to him. In the first part, he is suspected of having relations with either a slave or a non-Jew. Both of these women are prohibited to him. Subsequently, the slave is freed (thereby becoming a fully Jewish woman) and the non-Jewish woman converts to Judaism. In their current state both women are permitted to him. Nevertheless, he is not allowed to marry them. There are two reasons given for this. One, so that people will not confirm the original rumor that he had relations with a woman forbidden to him. Two, so that people won’t say that she only converted in order to marry him. In contrast, if he is suspected of having an affair with a married woman, and then she is forced to separate from her husband, and the suspected adulterer marries her, the court imposes a divorce. Adultery is a much more serious crime than relations with non-Jews and therefore just a suspicion that he had adultery with her, rules out all future marriages. Note that this rule is ultimately meant to protect marriages. A man whose wife has had adultery can no longer remained married to her. To prevent a situation whereby she sets her eyes on another man and forces her husband to divorce her by committing adultery, the rabbis permanently forbade her to the adulterer. .
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Bartenura on Mishnah Yevamot
יוציא – that from the Torah, she is forbidden also to him, as she is forbidden to the husband, as we expounded, that once she is defiled, she is defiled twice – once to the husband and the other time to the person engaged in sexual relations wither. And specifically one who is suspected [of having intercourse] with a married woman, but one who is suspected [of having intercourse] with a free/unattached woman, it appears that it is Mitzvah to marry [her] as we find concerning rape (Deuteronomy 22:19): “Moreover, she shall remain is wife; [he shall never have the right to divorce her].”
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English Explanation of Mishnah Yevamot
Questions for Further Thought: • Why does section two follow section one? What is the connection, if any, between the two laws?
