S.A.L.T. - Motzaei Shabbat

Parashat Vayeshev introduces us for the first time in Chumash to the notion of “yibum,” whereby the brother of one who dies childless marries the widow. Though the formal mitzva in this regard is not presented until later, in Sefer Devarim (25:5-10), it emerges from our parasha that the institution existed even before Matan Torah. Yehuda's eldest son, Er, dies without children, and Yehuda therefore instructs his second son, Onan, to marry the widow, Tamar: “Join with your brother's wife… and provide offspring for your brother” (38:8).

The commentators argue as to what Yehuda meant in the final clause of his instruction - “and provide offspring for your brother.” Rashi explains that the son born from the union between Onan and Tamar (ultimately, no children were born to them, since Onan took precautions to ensure not to impregnate Tamar) would be named after Er. The Ramban rejects this interpretation in light of the fact that nowhere in the laws of yibum do we find any such requirement that the child born to the brother-in-law and widow must bear the name of the deceased. Although the Torah mentions regarding the yibum marriage, “The first son that she bears shall be called by the name of the dead brother” (Devarim 25:6), the Gemara (Yevamot 24a) explains this as a reference to the deceased brother's inheritance. This verse assigns the inheritance to the child born to the brother-in-law; it has nothing at all to do with the deceased brother's name. The Ramban therefore adopts a different, mystical approach to this verse.

How can we justify Rashi's commentary to this verse? From where did he arrive at this notion of naming the child after the deceased brother?

Rav Asher Weiss, in his Minchat Asher (on Sefer Bereishit, 52), explains that Rashi apparently distinguished between the institution of yibum introduced with Matan Torah and that which was practiced before Matan Torah. Before the Torah was given, indeed the child born from the levirite marriage was to be named after the dead brother. This appears nowhere in our halakhic literature, which concerns itself with the situation after Matan Torah, when no such requirement applies. How do we account for this difference between before and after Matan Torah?

Rav Asher explains based on a careful analysis on the nature of the yibum relationship. Many Acharonim, and even some Rishonim, have addressed the complex issue as to how the marriage relationship between the brother-in-law and widow is formed. Does it follow the same procedure as regular marriage, or is it different? The most obvious problem involves the fact that according to Torah law, no kiddushin (formal betrothal, such as giving a ring) is performed in establishing a levirite marriage; the brother-in-law simply takes the widow to his home and lives with her. (Chazal, however, instituted a ceremony parallel to kiddushin in a yibum situation, called a “ma'amar.”) The scholars have arrived at different conclusions to explain this phenomenon. The Maharik (139) suggests that the initial relations between the widow and brother-in-law function as both kiddushin and nisu'in (the actual marriage); the Or Samei'ach (beginning of Hilkhot Yibum) claimed that in the case of yibum the Torah suspended the need for kiddushin altogether. A different theory, which Rav Asher espouses, claims that the brother-in-law continues the original kiddushin performed by the dead brother. Normally, a husband's death means the immediate cessation of his marriage relationship with his wife. In a case of yibum, however, the Torah transfers the kiddushin, so-to-speak, from the deceased to his brother. This, Rav Asher claims, is the very definition of yibum - the perpetuation of the dead brother's kiddushin relationship to his wife through her marriage to his brother.

However, such an institution can apply only after Matan Torah. The Rambam, in the beginning of Hilkhot Ishut, writes explicitly that the entire notion of kiddushin, of a formal designation of a woman as a man's wife before the actual marriage, was introduced with Matan Torah. Before that point, a man and woman would decide to marry and then move in and live together, without any formal, ceremonial procedure. Therefore, the yibum practiced before Matan Torah had to have been of an entirely different nature than it assumed after Matan Torah. Rashi identified the nature of pre-Matan Torah yibum as perpetuating the name of the deceased. Whereas after Matan Torah yibum means the continuation, on some level, of the deceased brother's marriage, before Matan Torah it involved keeping the brother's name alive in the son born from the union of his wife and brother. Therefore, it comes as no surprise that before Matan Torah the child was to be given the name of the deceased brother, whereas after Matan Torah we find no such halakha.

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