Hello kollel!
A question on the mishna which discusses two men who marry two women but don't know which. If they die, and the deceased has two brothers one does chalitza with one and then the other can do yibum with the other.
I understand this gets rid of an Ervah issue but my q is if the woman wasn't his yevama and was rather just an unrelated woman how can he be married to her via the yibum process and not the process of kiddushin, chuppah etc
Thank you!
Very interesting question! I'm not sure I have a good source to answer your question, but I'll try.
If we discuss your question from the d'Oraisa aspect, there is no fundamental difference between Yibum and Kidushin, since both can be effected by Bi'ah. A person is capable to perform Bi'ah and create Kidushin or Nisu'in by that Bi'ah.
Mid'Rabanan, a person needs to do the act of Ma'amar before Yibum. It is a Kidushin-like act, done with the Yevamah, and the Yevamah becomes like a woman who is Mekudeshes by Kidushin. The actual act of Yibum is equivalent to the Nisu'in, which is created by Bi'ah of course.
Since this is so, there is no essential difference between Yibum which is preceded by Ma'amar, and Nisu'in which is preceded by Kidushin.
Aharon Steiner
Thank you. Does a man have to give his yevama a ketubah? If so and she's described incorrectly in it (as a yevama when she isn't) does that affect anything?
Also Does yibum require witnesses in the same way Kiddushin does? That could be a practical difference, and of course so is the lack of kavana by yibum.
A man preforming Yibum gives the woman a Kesubah. The Gemara (Yevamos 38a) says that the assets guaranteeing the debt of the Kesubah are the assets of the first brother who died. In the event that the first brother did not leave behind him land that can guarantee the debt of the Kesubah, the properties of the second brother are guarantors of the Kesubah.
The Nusach of the Kesubah in the case of Yibum is a different one, and you can see it in the Tur (Even ha'Ezer 166).
As for the second question, the Rema (Even ha'Ezer 166) says that both Ma'amar and Yibum need witnesses -- Ma'amar, as we do for Kidushin, and Yibum needs witnesses who see the Yichud as we do for Nisu'in. The source for this is the Shiltei Giborim at the end of Perek 13 of Yevamos. There are Poskim who discuss the matter, but there is a fairly broad consensus that Yibum needs witnesses, based on the Shiltei Giborim. The argument against the Shiltei Giborim is what you wrote -- since Yibum does not need Kavanah, and there are several discussions about whether or not this is a proof for the need of witnesses.
Best Regards,
Aharon Steiner