If brethren dwell together,.... Not only in the same country, province, town, or city, but in the same house; such who had been from their youth brought up together in their father's house, and now one of them being married, as the case put supposes, they that were unmarried might live with him, and especially if the father was dead; and so may except such as were abroad, and in foreign countries, or at such a distance that this law coals not well be observed by them; though the Targum of Jonathan, and so Jarchi, interpret it of their being united in an inheritance, all by virtue of relation having a claim to their father's inheritance; so that it mattered not where they dwelt, it is the relation that is regarded, and their right of inheritance; and the above Targum describes them as brethren on the father's side, and so Jarchi says excepts his brother on the mother's side; for brethren by the mother's side, in case of inheritance, and the marrying of a brother's wife, were not reckoned brethren, as Maimonides observes; who adds, that there is no brotherhood but on the father's side.
Some think that when there were no brethren in a strict and proper sense, the near kinsmen, sometimes called brethren, were to do the office here enjoined, and which they conclude from the case of Boaz and Ruth; but Aben Ezra contradicts this, and says that instance is no proof of it, it respecting another affair, not marriage, but redemption; and says that brethren, absolutely and strictly speaking are here meant; which is agreeably to their tradition :and one of them die, and have no child: son, or daughter, son's son, or daughter's son, or daughter's daughter, as Jarchi notes; if there were either of these, children or grandchildren, of either sex, there was no obligation to marry a brother's wife; so, in the case put to Christ, there was no issue, the person was childless, Mt 22:24;the wife of the dead shall not marry without unto a stranger; by whom is meant not a Gentile, or a proselyte of the gate, or of righteousness, but any Israelite whatever, that was not of her husband's family; she might not marry out of the family; that is, she was refused by all, the design of the law being to secure inheritances, and continue them in families to which they belonged:her husband's brother shall go in unto her, and take her to him to wife; that is, supposing him to be unmarried, and this is indeed supposed in the first clause of the text, by dwelling with his brother; for had he been married, he would have dwelt with his wife and family apart; besides, if this law obliged a married man to marry his brother's wife, polygamy would be required and established by a law of God, which was never otherwise than permitted.
This is to be understood of the eldest brother, as Jarchi, who is in an unmarried state; so it is said in the Misnah ,"the command is upon the eldest to marry his brother's wife; if he will not, they go to all the brethren; if they will not, they return to the eldest; and say to him, upon thee is the commandment, either allow the shoe to be plucked off, or marry;''and such a course we find was taken among the Jews in our Lord's time, Mt 22:25;and perform the duty of an husband's brother to her; cohabit together as man and wife, in order to raise up seed to his brother, and perform all the offices and duties of an husband to a wife; but the marriage solemnity was not to take place when it was agreed to, until three months or ninety days had passed from the death of the brother, that it might be known whether she was with child or no by her husband, and in such a case this law had no force; so runs the Jewish canon "a brother's wife may not pluck off the shoe, nor be married, until three months;''that is, after her husband's death.
Hilchot Yebum Vechalitzah, c, 1, sect, 7. Misn. Yebamot, c. 4. sect. 5. Yebamot, c. 4. sect. 5. Ib. sect.