Class Notes - Class #4

Mitzvot #597 – 599 outline a specialized version of marriage and divorce.  First some context.  Start with the source verses, Deut. 25: 5-10:  when a married man dies without leaving children, the widow may not marry outside the family of her deceased husband.  The brother of the deceased marries the widow.  Their first born child is considered the child of the deceased husband.  If the brother does not want to marry the widow she can complain to the local elders, who facilitate a ceremony that results in her being allowed to marry outside her dead husband’s family. 

A widow whose husband died without leaving children is called a “yevamah.” The deceased husband’s brother is called a “yavam.”  The act of their having sex with each other is called “yibum.”  The quasi-divorce ceremony that takes place if the brother-in-law does not want to marry her is called “halitzah.”

The author puts the obligations of yibum and halitzah in the context of the relationship between husband and wife described in the second creation story, Genesis 2:18.  When a man and woman marry, she becomes fully identified with her husband, just as Eve was fully identified with Adam because she was created from him.  As such, if her husband dies, the wife wants to see her deceased husband’s family continue and to have someone inherit through the line of her husband.  Thus, she is willing to marry her husband’s brother and bear children who will be considered her husband’s descendants.  Both the husband and brother will share the merit of raising the children who will continue to serve God. The widow does that willingly, and if her husband’s brother refuses he deserves to be shamed.

If a man dies, his sons inherit his land.  If he has no sons his daughters inherit.  But if the man has no children his father inherits.  The purpose of the rubric of yibum or halitzah appears to be an attempt to continue the family line of the deceased husband especially for the purpose of inheriting land.  The verses assume that the widow would want to marry her brother-in-law, and that his choice not to marry her is disgraceful.  We might speculate that the wife, having become part of her husband’s extended family, would want to continue as part of that family.  But that is only speculation.  Our author does not seem interested in realistically considering how this all works out for the widow.

This all leaves many open questions. For example: Do the widow and brother-in-law need some sort of wedding ceremony?  What is their relationship after the birth of that first born child?  Why is it disgraceful if the brother-in-law does not want to marry the widow?  What happens if the widow does not want to marry the brother-in-law?  What if the deceased husband has no brothers?  Many brothers?  What if the deceased had more than one wife?  What if the deceased husband had a child who died?  If the deceased husband leaves daughters but not sons?  Grandchildren but not living children?  What if the husband leaves only illegitimate children?  Non-Jewish children?  In what ways is the child of the widow and brother-in-law considered the child of the deceased husband?  Are there any ways that that child is considered the child of the brother-in-law?  Would later children be considered children of the deceased husband or of the brother-in-law?  If the widow and a brother perform yibum, may they later divorce? What happens if, in violation of these mitzvot, the widow marries someone other than her yavam?

But the situation is still more complicated.  Also in the background of these mitzvot are incest prohibitions that we saw earlier in our study.  We learned in mitzvah #202 that sex is forbidden between a wife and her husband’s brothers; that prohibition continues even after the husband dies.  Therefore, if the brother-in-law has a mitzvah either to have sex with the widow or to have halitzah with her because her husband, his brother, died childless, that constitutes an exception to the incest prohibition.  D’oraita, the incest prohibition is overridden for all such brothers and all such widows.  But if the brother-in-law is not required to have yibum or halitzah with one of the widows, any sex between one of the brothers and one of the widows is forbidden under mitzvah #202. 

D’rabanan, though, once one brother has yibum with one of the widows, any sex between the brothers and the widows is forbidden except for sex between that brother and the widow who married him through yibum.  If a brother had halitzah with one of the widows, d’rabanan any sex between any of the brothers and any of the widows is forbidden. But since these prohibitions are d’rabanan, if after halitzah one of the brothers marries one of the widows, the marriage takes effect. 

So yibum/halitzah only happens if it is required to happen.  If the widow and brother-in-law have sex when yibum is not required they are guilty of incest. Our author understands halitzah as a specialized case of divorce.  Thus, if halitzah takes place between a yevamah and a yavam, all of the brothers are thereafter forbidden to have sex with any of the wives.  The brothers are also forbidden to have sex with the female relatives of any of the wives just as if the wives were divorcees, and the male relatives of the brothers are forbidden to have sex with the wives just as if the wives were divorced from the brothers.

The halachot about yibum and halitzah are extraordinarily complex.  The author barely skims the surface, while hinting at some of the areas of complexity.  I have filled in some information our author omits based on Rambam’s conclusions in Hilchot Yibum v’Halitzah.

Three mitzvot govern yibum and halitzah.  Mitzvah #597 prohibits any man other than the yavam from having sex with a yevamah, and prohibits the yevamah from having sex with anyone other than her yavam.  The prohibition ends if the widow and brother-in-law participate in halitzah, prescribed in the source verses for when the yavam does not want to marry the yevamah.  The punishment for violating this mitzvah is malkot.  The implication of this mitzvah is that the widow cannot remarry until the brother acts to accomplish either yibum or halitzah.  Mitzvah #598 requires the yavam to either have sex/yibum with the yevamah or to participate in halitzah that releases the yevamah to marry someone else.  Mitzvah #599 outlines how to perform halitzah.  We should not be surprised that the rabbis read the source verses very carefully in defining the boundaries of yibum and halitzah.

The requirements for yibum or halitzah do not apply to all couples even after the husband dies without offspring.  If either the husband or wife clearly could not have children the couple is not subject to the requirements of yibum or halitzah: if the husband was born without genitals or is a hermaphrodite or if the wife is clearly unable to have children because, for example, she has no uterus.  Yibum or halitzah are not required if the couple was never married in the first place, for example if the putative husband was incompetent or underage, or if the couple were forbidden to marry by a prohibition that makes the putative marriage invalid.

The rabbis provided definitions of the crucial personae. 

Yevamah: A woman is a yevamah if, after eirusin, her husband dies childless, even if she never had nissuin with her deceased husband. 

Brother:  Brothers by the same father are considered brothers for the purpose of yibum and halitzah, even if those brothers have different mothers.  That is also true of inheritance law.  But brothers from the same mother and different fathers are not considered brothers for yibum and halitzah although they are considered brothers when it comes to mourning if someone died and for preventing close relatives from testifying in legal cases where close relatives are parties to the case.  (We will get to that mitzvah, #589, a few classes hence.)  The mitzvot of yibum and halitzah only apply to brothers already born when the deceased dies; there is no yibum or halitzah if the husband’s only brothers were born after he died.  According the Rambam, brothers who were not born Jewish because their mother was not Jewish are irrelevant for these mitzvot.  Brothers who were conceived when their mother was not Jewish are also irrelevant even if the mother converted before the brother was born.  Rambam, Hilchot Yibum v’Halitzah 1:6.

Husband who dies childless: There is no yibum or halitzah if the husband dies leaving any live descendants who were born Jewish: male or female; children, grand-children or great-grandchildren, children who have converted to another religion.  But children who were not born Jewish because their mother was not Jewish do not count even if the later convert to Judaism. Ibid. 1:3-4.

When the husband dies, everything waits at least three months to determine whether or not any of the wives are pregnant.  If a wife is pregnant and miscarries, she is a yevamah subject to yibum or halitzah.  If the wife was pregnant when her husband died and gives birth to a child who survives, the husband is not considered to have died childless, there is no yibum or halitzah, and the widow is forbidden to have sex with the brothers.  D’oraita there is no yibum or halitzah even if the baby dies immediately after birth, but d’rabanan if the baby is not full term or even if the baby might not be full term, yibum or halitzah are required.  The possibility of yibum seems strange, since apparently d’oraita sex between a widow and one of the brothers would be incest.

D’oraita the brother is required to do either yibum or halitzah with the widow.  We will start our discussion assuming the deceased left one widow and has one brother.

Although the Torah describes halitzah in detail, it does not describe yibum.  A sex act is necessary to effectuate a completed yibum.  The rabbis instituted a marriage ceremony with witnesses to precede the sex act, but if the couple skipped the ceremony and had sex, they are married and have accomplished yibum. The ceremony without the sex act does not constitute yibum.  Our author echoes the Mishnah which delineates several obscure cases where the sex act between the yavam and yevamah was not fully intentional or voluntary and still constituted yibum.  The Gemara, Yevamot 53b – 4a, struggles to define the cases.  Apparently after a sex act that constitutes yibum the couple are married like any other couple. 

Our author describes the halitzah ceremony in detail. The ceremony described in the source verses has three elements: 1. The yevamah removes the yavam’s shoe.  2. The yevamah spits at the yavam. 3. The yavam, yevamah and the observers recite prescribed text.  Although the various actions should be done in the prescribed order, varying the order does not invalidate the halitzah.  The author clearly describes the exact characteristics of the shoe, how the yevamah removes the shoe, how the yevamah spits at the yavam. 

The process starts with three judges knowledgeable enough to conduct the ceremony and to help the yavam and yavamah recite their lines correctly as the Torah requires.  Those judges must be unrelated to each other and to the yavam and yavamah.  Then those judges choose at least two other judges, for a total of at least five. Since it is important for the community to know about the halitzah, more judges may be added.  The judges locate an appropriate place for the halitzah.  Since this is a quasi-judicial proceeding, the judges typically sit and the yavam and yevamah stand.  If the yavam and yevamah are seated, though, the halitzah is valid.

The next step is for the judges to establish the crucial facts. Our author does not say what it takes to prove the crucial facts, although the author does say facts can be established from the judges’ personal knowledge.  The judges establish that the yevamah was the wife of a husband who died childless.  They establish that the yavam is an adult, having reached the beginning of puberty, and that the yavam is the brother of the deceased.  Since part of the ceremony requires the yevamah to spit, the judges ask the yevamah if she has eaten anything that would interfere with that, although the halitzah is valid even if she has.  Then the beit din discusses the possibilities of yibum and halitzah with the yavam.  If the yavam chooses halitzah, the ceremony proceeds.

After the halitzah ceremony, the beit din writes a document attesting that the halitzah was done properly and gives that document to the widow.  That provides her with documentation to prove she is now free to marry someone else.  The author provides a model text which goes into great detail. 

So far we have assumed that the deceased had one wife and one brother, but that is not always true.  The deceased may have had several wives and/or several brothers.  That creates all sorts of additional complexity. D’oraita, one of the brothers must either have sex with one of the widows or have halitzah with one of the widows. That releases all the brothers and all the wives from other obligations under these mitzvot. 

If the deceased husband had several brothers and/or several wives, all the wives are prohibited from marrying anyone else until one of the brothers has yibum or halitzah with one of the wives.  The yavam may not take more than one of his deceased brother’s wives; he can only marry one of them.  If a man has many brothers all of whom die childless, that man may have an obligation of yibum/halitzah to widows of all those brothers. The basic obligation for yibum or halitzah falls to the oldest living brother, but either performed by any other brothers fulfills the obligation.  If the deceased husband’s brother participates in halitzah with one of the widows all of the widows are free to marry but none of them may marry or have sex with any of the brothers.  Those incest prohibitions are d’rabanan, not d’oraita, so if after yibum or halitzah one of the brothers marries one of the widows the marriage is effective.  It is easy to imagine complex and perhaps difficult negotiations figuring out which brother and which wife and which ceremony. 

The author indicates that all of this is a tiny sample of the complexity of the topic of yibum and halitzah.  He explains (on the bottom of page 385 in the Feldheim translation) that some men can participate in yibum but not halitzah, or halitzah but not yibum, and some women can participate in yibum but not halitzah, or halitzah but not yibum.  Our author does not explain, but Rambam does.  Here are several examples.  A man who is mentally incompetent can participate in yibum if he is capable of having sex, but may not participate in halitzah if he is not competent to participate in halitzah.  If such a man has sex with his yevamah, and if he remains incompetent, he would be unable to divorce the yevamah.  A man can participate in halitzah but not yibum in cases where there is doubt about whether yibum is necessary; if in fact yibum is not necessary then it is forbidden as incest.  Similarly, a mentally incompetent woman can participate in yibum but not halitzah, and where there is doubt about whether yibum or halitzah are necessary the widow should participatein halitzah but not yibum. 

The author also cites the first Mishnah in Yevamot, which mentions fifteen cases where a deceased husband leaves several widows and one of the widows is ineligible for either yibum or halitzah.  In that case, all the widows are exempt from both yibum and halitzah.  Our author does not explain, but Rambam does.  These are cases where sex between the yavam and yevamah is prohibited and where a marriage between a man and woman in that relationship would not take effect.  For example, consider a case of two brothers where one brother marries his niece, his brother’s daughter.  Then the married brother dies childless leaving his niece as a widow.  The widow is the surviving brother’s daughter.  Sex between a man and his daughter is forbidden by mitzvah #195, and an attempted marriage between a man and his daughter would not take effect.  Therefore there is no yibum or halitzah in this case.  Even if the deceased had other wives who could in theory marry the brother there is still no yibum or halitzah between the brother and any of the widows.  All the widows are free to marry anyone they choose.  In these cases the mitzvot of yibum and halitzah do not override the incest prohibitions.  Rather, neither yibum nor halitzah is required because of the incest prohibition. (If the yavam is forbidden d’rabannan from marrying the yevamah, or the yavam is forbidden to marry the yevamah by a Torah mitzvah but the marriage would take effect if attempted, the yavam and yevamah should arrange for halitzah.) 

Our author does not discuss whether the widow can choose between yibum, halitzah, or simply to continue to live as a widow in her deceased husband’s household.  Mitzvah #597 forbids the yevamah from having sex with men other than her yavam, and forbids other men from having sex with her.  That mitzvah would apparently allow the widow to avoid yibum and halitzah if she is satisfied with that situation. Mitzvah #598 applies only to the yavam, who must either have sex with the widow of participate in halitzah.  Mitzvah #599 sets the parameters for how halitzah is accomplished.  The author specifically says mitzvot #598 and 599 apply to men, and the author does not mention any obligation of the yevamah. Rambam says the widow cannot be forced into yibum if she does not want to, ibid. 2:10, although she might suffer a financial penalty, ibid. 2:11.  But Rambam, ibid. 2:16, also holds that a woman may not choose simply to remain a widow if a brother of the deceased husband is willing to do halitzah.

There are many other questions that our author does not even mention: who pays the yevamah’s expenses while she is awaiting either yibum or halitzah; how all of this effects the obligation of the deceased husband’s estate to pay the k’tubah; whether this rubric effects who inherits from the deceased husband; the exact status of a child born from yibum; that child’s relationship to the deceased and to the yavam; what that child inherits; whether the yevamah after halitzah is permitted to marry a cohen who would normally be prohibited from marrying a divorcee; what happens when there is doubt about the facts needed to identify wives, children and/or brothers; and many more.

Throughout his discussion, the author echoes earlier sources for the assumption that yibum is preferred over halitzah.  His discussion of the shoresh assumes the widow would prefer yibum and the yavam is not willing to cooperate.  But there are other opinions, and different Jewish communities had different preferences.  Currently, yibum is virtually unknown.

But there are still situations where halitzah is required but is difficult to accomplish. 
The deceased husband may leave brothers who cannot be located or who are unwilling or unable to participate in halitzah.  That leaves the widow unable to remarry. 

The author also adds a significant note to the end of his shoresh discussion in mitzvah #598.  He notes that the mystical tradition has a “sound, true” explanation of these mitzvot but the author does not share that with the reader.  Rather, he sticks with his commitment to formulate a rationalist approach to these mitzvot because that approach is more likely to interest young people and beginners who will ask questions of their teachers which might lead everyone to a deeper understanding of the mitzvot.  And the author hopes that perhaps some of the merit for that deeper understanding will accrue to him.