The Mitzva of Yibbum and the Mitzva of Chalitza

I. The Mitzva of Yibbum (Levirate Marriage)

 

            If a married man dies without children, his brother is obligated by Torah law to marry the deceased's widow (yibbum) or else to participate in a ceremony that involves the widow's removal of a special sandal from the brother's foot, thereby freeing the woman to remarry (chalitza). It should be remembered that the mitzvaof yibbum is exceptional. In general, a man is forbidden by way of an exceedingly severe prohibition to marry his brother's wife, even if she is divorced or widowed. In the exceptional case of yibbum, not only is the levir permitted to marry his brother's wife, but it is even a mitzvafor him to do so.

 

The gemara records an important disagreement in this regard:

 

Abba Shaul said: If a levir marries his sister-in-law on account of her beauty, or in order to gratify his sexual desires, or with any other ulterior motive, it is as if he has infringed the law of incest; and I am even inclined to think that the child [of such a union] is a bastard. But the Sages said: "Her husband's brother shall go in unto her" – whatever the motive. (Yevamot 39b)

 

According to Abba Shaul, when the levir's intentions are not absolutely pure, his taking his brother's wife as his levirate wife is considered as an infringement on the law of incest. The Sages disagree with his position. The gemara adds that according to Abba Shaul, it is preferable in our generation to avoid yibbum altogether and perform chalitza, as in our generation, the levir's intentions are not so pure, and the brother and the widow do not marry exclusively for the sake of the mitzva.

 

            The gemara seems to imply that all agree that according to the strict letter of the law, preference should be given to yibbum. The disagreement is limited to the question of whether or not in our generation we are compelled to forego yibbum.

 

The preference that should be given to yibbum over chalitza can be formulated in two ways. The simplest formulation is to say that we have here two alternative mitzvot, and one mitzva is given priority. The Rambam, however, implies otherwise:

 

If the brother does not want to perform the rite ofyibbum, or if the woman does not consent, he should [free her from this obligation through the rite of] chalitza. [Only] afterwards is she permitted to marry another man. It is a positive commandment of Scriptural law for [a brother] to perform chalitzafor [the deceased's widow], if he does not want to perform the rite of yibbum, as it is stated: "She shall... remove his shoe." Themitzvaofyibbumtakes precedence over the mitzva ofchalitza. (Rambam, Hilkhot Yibbum Ve-Chalitza 1:2)

 

The Rambam implies that we are not dealing here with two equivalent commandments, one of which is given priority. Rather, the mitzvaof chalitza is relevant only after the option of yibbum has been rejected. This understanding follows from the Rambam's words in other places as well (Sefer ha-Mitzvot, positive commandments 217, 82).

 

In this regard, it may be added that the gemara in Yevamot (21a) establishes that "chalitza as a substitute for yibbum is not a fulfillment of the precept." The context there is a discussion about a case in which the woman is prohibited to her brother-in-law by way of a negative prohibition – for example, if the brother whose duty it is to marry his sister-in-law is a High Priest, who is forbidden to a widow. Does the positive mitzva of yibbum override this prohibition, based on the rule that a positive commandment overrides a negative commandment? The gemara proposes that the brother should perform chalitza, and thus both fulfill the positive commandment and not violate the negative commandment. The gemara rejects this with the argument that "chalitza as a substitute for yibbum is not a fulfillment of the precept." This may be understood in the same way that we understood the Rambam – the mitzva of chalitza is only relevant after the option of yibbum has been exhausted. But it may also be understood to mean that yibbum is the fuller and more desirable fulfillment of the positive commandment, and that chalitza is not the favored alternative.

 

II. The Disagreement Between Abba Shaul and the Sages

 

So far, we have discussed the issue on the theoretical level. In practice, those who accept the view of Abba Shaul claim that nowadays, the mitzvaof chalitza is given precedence over the mitzvaof yibbum because the intentions of those who could potentially perform yibbum are not pure. According to Abba Shaul, when the intention is not pure, the allowance of marrying one's brother's wife is all but cancelled: "It is as if he has infringed the law of incest; and I am even inclined to think that the child [of such a union] is a bastard." Therefore, those who accept his view maintain that it is better nowadays to perform chalitza rather than yibbum.

 

The disagreement between Abba Shaul and the Sages can be understood on the moral plane. Is it appropriate to adopt the path of yibbum when the levir's intentions are not pure? But the Acharonim try to explain the disagreement on the halakhic-legal plane. They mention in this context a pair of halakhic concepts: hutra, "permitted," and dechuya, "set aside."

 

The Rashba was presented with an interesting question (Respona Ha-Rashba 1:689): What is the law governing a dangerously ill person who must eat meat on Shabbat, but no kosher meat is available? In such a case, there are two possible courses of action: He can either eat non-kosher meat or we can slaughter an animal for him on Shabbat. On the one hand, the prohibition of eating non-kosher meat is less severe than the prohibition of slaughtering on Shabbat, and therefore, according to the ordinary halakhic principles, it is better that he should eat the non-kosher meat. On the other hand, it is possible that on Shabbat there is a more sweeping allowance than there is regarding non-kosher meat. Why should this be so? If we say that saving a life sets aside the prohibitions of Shabbat, then the Torah has established that one is permitted to transgress the prohibitions of Shabbat in order to save a life. But if the prohibitions of Shabbat are permitted when a life is in danger, this means that when a life is in danger, the prohibitions of Shabbat connected to saving a life are completely cancelled, and it is as if it were not Shabbat, but rather a weekday. If the prohibitions of Shabbat are not only set aside but permitted when a life is in danger, it would certainly be better to slaughter an animal on Shabbat than to eat non-kosher meat. The prohibitions of Shabbat are entirely permitted when a life is in danger, and it is as if there is no prohibition at all, whereas the prohibition to eat non-kosher meat still exists; it is merely set aside in order to save a life. (See also the Rosh, Yoma 8:14.)

 

Some Acharonim apply these concepts to the matter at hand. They suggest that Abba Shaul and the Sages disagree about whether the prohibition to marry one's brother's wife is set aside by the mitzvaof yibbum or outright permitted. The truth is that the Rambam already proposed this explanation:

 

And you know the final ruling that the mitzva of yibbum takes precedence over the mitzvaof chalitza, even if the levir's intention is not for the sake of the mitzva, but rather for the sake of [the woman's] beauty or for money. Since his brother died without children, the prohibition of incest is permitted to him and completely removed, in accordance with the Sages. But according to the view of Abba Shaul, the mitzva of chalitza is given precedence, since he maintains that the prohibition to marry one's brother's wife is set aside by yibbum, and if the levir's intention is for something else other than the mitzva, it is as if he has infringed the law of incest. (Responsa Ha-Rambam, no. 218)

 

What is the connection between the question of whether the prohibition was set aside or permitted, and the dispute between the Sages and Abba Shaul? Perhaps according to Abba Shaul the positive commandment of yibbum sets aside the prohibition of the wife of one's brother only if the levir fulfills the positive commandment through the setting aside of the prohibition. If his intention is not for the mitzva, he does not fulfill the positive commandment of yibbum, since the fulfillment of a mitzva requires proper intention. In such a case, then, the positive commandment does not set aside the prohibition. The Sages, on the other hand, maintain that the prohibition of the wife of one's brother is permitted, and as long as yibbum is still a possibility, halakhically she is not related to the levir and is absolutely permitted to him.

 

From here it follows that the lack of intention about which Abba Shaul speaks is not only an impure intention, but a lack of intention to fulfill the mitzva. According to this understanding, if a person is aware of the fact that he is fulfilling the mitzvaof yibbum, there is no problem even according to the view of Abba Shaul, even if the levir's motive is not pure. Such intention suffices for him to fulfill the mitzvaof yibbum, and thus the mitzva sets aside the prohibition of one's brother's wife.

 

It is also possible to formulate Abba Shaul's argument in a less formal matter, even according to the Rambam: If we say that the prohibition regarding one's brother's wife is permitted, it is as if there is no prohibition at all, and there is thus no reason to be stringent. But if we say that the prohibition is merely set aside, the prohibition remains in place, but in certain circumstances one is permitted to transgress it. According to this, Abba Shaul argues that when the levir's intentions are not pure, it is morally inappropriate to transgress the prohibition, even if it is formally permitted.

 

The Ramban maintains that Abba Shaul's ruling is based on Torah law. Accordingly, in a case in which the levir's intentions are not pure, the yibbum is invalid even after the fact. The Nimukei Yosef (Yevamot 18a in Alfasi, s.v. kana) disagrees and says that Abba Shaul introduces a limitation by Rabbinic law, and therefore if the levir performed yibbum with impure intentions, the yibbum is nevertheless valid. The Beit Shemuel (Even Ha-Ezer 166, no. 5) argues that there is no necessary connection between the force of the law (whether it is by Torah law or by Rabbinic law) and the question of whether or not the yibbum is valid after the fact. In his view, even if Abba Shaul prohibits the matter by Torah law, there is still room to say that after the fact, the yibbum is valid.

 

III. The Halakha in Practice

 

The Ramban rules in accordance with the Sages, who disagree with Abba Shaul. The Rambam also rules that the mitzvaof yibbum takes precedence over the mitzvaof chalitza, in accordance with the Sages and against Abba Shaul. But the Tosafot rule in accordance with Abba Shaul. The Shulchan Arukh (Even Ha-Ezer 165:1) rules in accordance with the Spanish authorities that the mitzvaof yibbum takes precedence over the mitzvaof chalitza, adding, "If the woman does not want to be taken in levirate marriage by any of the brothers, without sufficient reason, she is treated like a rebellious wife." In other words, it is inappropriate for a woman to refuse to enter into levirate marriage unless she has some special reason. If the widow insists on chalitza, while her brother-in-law is ready to perform yibbum, her monetary rights are liable to suffer.

 

The Rema there appears to rule in accordance with the Tosafot, that the mitzva of chalitza takes precedence over the mitzva of yibbum, but in a case in which the levir refuses to perform chalitza, he is not compelled to do so. Rather, we try to convince him to perform chalitza by offering him monetary compensation. Force is used only if he refuses to perform both yibbum and chalitza. The Rema mentions the possibility of deceiving the levir in such circumstances – in other words, lying to him and making him monetary promises with no intention of keeping them. The Rema adds that if both parties – the widow and the levir – agree to yibbum and it is evident that their intentions are for the sake of the mitzva, we allow them to perform yibbum.

 

In the early days of the State (1950), the Chief Rabbinate of Israel enacted that yibbum is not to be performed, but only chalitza. In 1951, R. Ovadya Yosef, sitting on the district rabbinical court of Petach Tikva, was presented with the case of a widow who demanded chalitza, while her brother-in-law wished to perform yibbum. R. Ovadya ruled that the Chief Rabbinate's enactment banning yibbum has no force, as the Chief Rabbinate lacks the authority to uproot the fundamental law codified by the Shulchan Arukh, which rules that yibbum is given precedence over chalitza. In the background of this ruling stands his refusal to cancel the customary practices of the Sefardi community because of the customary practices of the Ashkenazi community. Rav Ovadya concludes his discussion as follows:

 

According to us, we instruct them to perform yibbum, although we must explain to them the great value of the mitzva, that their intention should be for the sake of the mitzvaof yibbum, and this suffices. For even if their intention is also for the sake of beauty, or for the sake of money, we must not be particular about that… And all the more so if there is a basis to say that the levir's intention is for the sake of the mitzva, in which case it is certainly very appropriate that the court should encourage them to perform this great mitzva. Therefore, in the case before us, the court should try to convince the widow to agree to the levir's request for yibbum in order to raise the name of the deceased over his inheritance. (Responsa Yabi'a Omer, VI, Even Ha-Ezer, no. 14)

 

In actual practice, yibbum is performed nowadays on exceedingly rare occasions, as the members of all communities almost always choose to perform chalitza.

 

(Translated by David Strauss)