Vayeshev | Yibbum (Levirate Marriage) in Ancient Israel

            After Yehuda's eldest son Er died without any children, Yehuda instructed Onan to perform yibbum and establish offspring for his brother (Bereishit 38:8-9).  Rashi (ad loc.) says that the product of such a union should be named for his dead uncle.  Ramban (ad loc.) disagrees with Rashi and maintains even though the purpose of yibbum is to remember the deceased brother, there is no mitzva to name the child for his uncle.  When Boaz married Ruth, he said that he intended that the deceased should be remembered, yet he named the child Oved and not Machlon (the name of Ruth's late husband).

            The Ramban goes on to explain that the ancient wise men knew that there is a great benefit in levirate marriage.  Rav C.D. Chavel, in his commentary on the Ramban, cites mystical works such as the Zohar which attempt to explain these benefits.  Prior to the giving of the Torah, such a levirate marriage was performed by a father, brother or any relative.  When the Torah was given, a prohibition of marrying a daughter-in-law was given.  However, due to the importance and value of yibbum, the Torah allowed a brother to marry his sister-in-law, if her husband had left no progeny.

            According to the Ramban, there was no mitzva of yibbum before the Torah was given.  However, yibbum was practiced by those who understood its value.  Perhaps this custom predated the incident of Er and Onan, but it was not recorded in the Torah.  However, Bereishit Rabba (85:6) says that Yehuda originated the mitzva of yibbum.  If indeed this was an established custom, perhaps the midrash means merely that Yehuda did this as a mitzva, not just due to local custom.  The mishna (Kiddushin 82a) says that Avraham fulfilled all the mitzvot of the Torah before they were given.  Presumably, his descendents were also taught to observe mitzvot even though they were not commanded to do so.

            On the other hand, another midrash says that Yehuda was commanded in the mitzva of yibbum.  The midrash (Shir Ha-Shirim Rabba 1:16) traces the evolvement of the 613 mitzvot.  Adam and Noach were commanded in the Noachide laws, Avraham received the mitzva of mila, Yitzchak was obligated in mila on the eighth day, Yaakov was prohibited to eat the displaced sinew on the hip pocket (gid ha-nasheh) and Yehuda received the mitzva of yibbum.

            Tosafot Yeshanim (Yevamot 2a) ask why Yevamot was chosen as the first tractate in the order of Nashim.  After all, Kiddushin and Ketuvot precede chronologically any application of yibbum.  One of the answers given is that yibbum is the first mitzva fulfilled by women.  This seems rather difficult, as the mitzva of peru u-revu (procreation) had obviously been already fulfilled since the very creation.

            Perhaps Tosafot felt that not only is yibbum a mitzva that preceded the giving of Torah, but women were commanded in this mitzva as well.  Even though women certainly fulfill the mitzva of peru u-revu (Ran, Kiddushin 41a), we follow the opinion that women are not commanded in this mitzva (Yevamot 65b; see also The Weekly Mitzva, shiur #1).

            Apparently, the question of whether Yehuda was commanded in yibbum or merely observed it as a custom is disputed by Rishonim.  As we have seen, the Ramban, in his commentary to the Torah, says that it was a custom.  In his novellae (Yevamot 98a), Ramban asserts that Noahcides are forbidden to have a relations with blood relatives (such as mother or daughter), but are permitted to marry relatives through marriage.  He asserts that Yaakov was permitted to marry two sisters (however, see Ramban's commentary to Vayikra 24:10 for another, seemingly contradictory, explanation).  He therefore says that Yehuda was allowed to marry his daughter-on-law.  He does not refer to yibbum as a mitzva at all.

            However, the Rashba (ad loc.) refutes the proof brought from the incident of Tamar and Yehuda.  The Rashba argues that even if all relatives (not just blood relatives) are forbidden to Noachides, Tamar was permitted, since the MITZVA of yibbum would overcome any prohibition.  The mitzva was incumbent upon all family members prior to giving the Torah, and was limited by the Torah to brothers of the deceased.  Why, then, did Yehuda first instruct Er to perform yibbum, instead of doing it himself?  The Rashba answers that Yehuda wished to have the mitzva fulfilled according to Torah parameters, in a manner similar to the tradition that our ancestors fulfilled the entire Torah before it was given. 

            Thus, the Ramban apparently feels that this act of yibbum was not required, and the Rashba considers it a mitzva.

            When Tamar was found to be pregnant, Yehuda proclaimed that she should be given the death penalty.  What was the sin for which this punishment should be imposed?  The Chizkuni (Bereishit 38) points out that if a widow who is awaiting a levirate marriage has relations with someone, it is punishable by stripes (malkot) but not by death.  He explains that the reason for the more stringent punishment is due to the severity of the Noachide laws.  The Chizkuni adds that Tamar in fact not sin at all.  Since she intended to fulfill the mitzva of yibbum, it was permissible for her to have relations with Yehuda, her father-in-law.  Had she sinned, any transgression of the seven Noachide laws would incur a death penalty (Rambam, Hilkhot Melakhim).  Rav M. Kasher, in his Torah Sheleima, cites a manuscript of Ba'alei Ha-Tosafot that Tamar was thought to be guilty of a form of adultery, since she was awaiting yibbum.  This obviously implies that the mitzva of yibbum applied to her.

            We have learned that, according to the Ramban, there was no mitzva of yibbum.  Why, then, would Tamar be punished?  The Ramban himself explains that Tamar was considered to be rebellious.  He assumes that the household of Yehuda was considered to be royalty, and anyone who rebels against the king or his kingdom is punished by death (see Rambam Hilkhot Melakhim 9:14).

            There is a dispute in the gemara (Yevamot 39b) whether it is preferable to perform yibbum or chalitza (a ceremony which, when performed, frees the widow to marry anyone of her choosing). She'elot U-teshuvot Beit Yosef (Even Ha-Ezer) comments that yibbum is preferable, as historically it preceded chalitza.  He feels that while Noachides practiced yibbum, either as a mitzva or a custom, chalitza was an alternative given only at matan Torah.

            We have discussed the issue of yibbum prior to matan Torah.  Today, the mitzva and obligation or yibbum is certainly in force, yet the accepted custom is that only chalitza is done (Yevamot 39b; Shulchan Arukh Even Ha-Ezer 165:1).