Introduction
In the sad event of a married man dying without leaving children, the Torah explicitly commands his brother to marry the childless widow in order to 'build the house of his brother.' This mitzvah is known as yibum, and is an exception to the otherwise severe prohibition of marrying one's sister-in-law.[1] Should he not wish to do so, he must go through chalitza, a kind of shaming process whereby his sister-in-law removes his shoe, spits in front of him and declares, "This shall be done to the man who will not build his brother's house."[2]
There are at least two clear implications from this section of the Torah that may seem strange to people today. Firstly, there is an assumption that the widow would want to marry her brother-in-law under these circumstances, and has contempt for his refusal to do so. This assumption likely no longer holds true,[3] but historically the financial and societal stability available to the widow through this mitzvah would have been a decisive factor in the majority of cases.
Secondly, people may wonder why fulfilment of the mitzvah of yibum is virtually unheard of today. Granted that the whole situation is rare, and even when it does occur, the chances of the brother-in-law and sister-in-law both wanting to marry each other may be slim. But surely there must be some cases where they do want to, and is this not what the Torah wants?
Impure Intentions
In fact, the Mishna tells us that although originally yibum was preferred, now that people do yibum not for the sake of the mitzvah, it is better to do chalitza.[4] The gemara explains that this ruling of the Mishna is in accordance with the view of Abba Shaul, who says that marrying one's sister-in-law for her beauty, for the married status or for any other ulterior motive is 'akin to' incest and that the child of a such a relationship is 'close to being' a mamzer (illegitimate child).
The same gemara says that the ruling of the Mishna was later reversed again, not due to an improvement in motivation but because the halacha was decided according to the Chachamim who argue with Abba Shaul. Thus, even one who does yibum with impure intentions fulfils the mitzvah.[5] However, other sections of gemara indicate that the halacha indeed follows the view of Abba Shaul,[6] and the rishonim dispute what the final halacha is.
Intertwined into these discussions is the question as to what exactly is the position of Abba Shaul. Ramban writes that according to his logic, the attempted act of yibum without the correct intentions has no halachic validity. The sister-in-law remains unmarried and will require chalitza (rather than a get) in order to marry someone else. This is in conflict with the ruling of another Mishna, which states that the act of yibum affects marriage even if done unwittingly.[7] The halacha is like this Mishna, itself demonstrating that the halacha does not follow Abba Shaul.[8] [9] This view appears to be shared by the Rambam in a responsum, who writes that according to Abba Shaul, the prohibition of marrying one's sister-in-law is not 'undone' (הותרה) in the case of yibum, but is only pushed aside (דחויה).[10]
The Ritva argues that Abba Shaul merely applies a Rabbinic stringency forbidding insincere yibum. It was Chazal who instituted that insincere yibum is akin to incest, and that the progeny of such a relationship is close to being a mamzer. On a Biblical level, yibum is valid under all circumstances even according to Abba Shaul, and a get would be required.[11]
According to this, there is no indication from the Mishna that the halacha follows the Chachamim. Nevertheless, the Ritva quotes the ruling of Ramban and his other teachers in accordance with the Chachamim, and does not question this ruling.[12]
By contrast, Tosfos quote Rabbeinu Tam as ruling according to Abba Shaul, forbidding insincere yibum. Rabbeinu Tam does not stipulate that this is merely a Rabbinic prohibition, and it seems that his position is that the lack of sincerity invalidates the entire mitzvah of yibum.[13] However, neither does Rabbeinu Tam indicate, as Ramban would have him do, that ruling according to Abba Shaul negates the validity of yibum performed unwittingly.
Intention versus Motivation
This position of Rabbeinu Tam is a surprising one. There is a general dispute in the gemara as to whether intention is crucial in order to fulfil mitzvos (מצוות צריכות כוונה); practical cases under dispute include cases of a person who blows shofar purely for the music, or one who was forced to eat matzah on Pesach.[14] In these cases, there is no intention whatsoever to fulfil the mitzvah; nevertheless, according to one opinion, the mitzvah has been fulfilled and there is no need to repeat it.
The dispute regarding yibum is different. The brother-in-law intends to fulfil the mitzvah of yibum, but according to Abba Shaul, this intention is not sufficient. Any ulterior motive behind this intention is enough to invalidate the mitzvah.[15] Why would yibum be so different?[16]
Abstinence
The answer to this may be given by the Yerushalmi. The Yerushalmi at first suggests that Abba Shaul concurs with the position of R' Akiva, that if the widow marries another person without chalitza, any children born are mamzerim (a view which is not accepted as halacha). Although this suggestion is rejected, as R' Akiva did not speak about children fathered by the brother-in-law, the suggestion is instructive. The possibility raised was that the connection between the widow and her brother-in-law is not to be treated lightly, and even a small violation on the part of the brother-in-law himself is extremely problematic.
The Yerushalmi concludes that Abba Shaul in fact shares the position of R' Yossi ben Chalafta, who fulfilled the mitzvah of yibum but only engaged in conjugal relations with his sister-in-law (and wife) five times, resulting in the birth of his five children. Even on those five occasions, the act was conducted with abstinence from physical pleasure as far as possible.[17]
This attitude to the mitzvah of yibum does appear extreme. The requirement for complete devotion to the mitzvah, without allowance for natural human feelings, is not something seen in relation to other mitzvos. It seems that Abba Shaul and R' Yossi ben Chalafta felt that the act involved in yibum, if carried out in its natural way, is so antithetical to the idea of fulfilling a mitzvah of the Creator to the point that it cannot be desirable.[18]
In Practice
Based on this view, Rabbeinu Tam writes that we do not allow a couple to peform yibum, even if both of them want to, unless it is 'recognisable and known' that their motivation is for the mitzvah. This is also the ruling of the Rema, whereas the Shulchan Aruch indicates that the halacha is in accordance with the view that yibum is always preferable, even if insincere.[19]
As might be expected from the above, in the Ashkenazi world, the mitzvah of yibum has not been practiced in recent history. The Sephardim did allow yibum, although cases where the brother-in-law and sister-in-law have chosen this mitzvah are rare. Furthermore, in 1950, the Israeli Chief Rabbinate (including Sephardi Chief Rabbi, Ben-Tzion Meir Chai Uziel), attempted to institute a blanket prohibition on yibum, for all Jews. The documented reasoning given was to promote unity, and prevent the Torah becoming like two Torahs.
R' Ovadya Yosef argued strongly that this institution had no validity, and was an example of attempted erasure of Sephardi practice. While in general I do not share R' Ovadya's halachic philosophy of cementing differences between Ashkenazim and Sephardim, my first inclination was that in this instance he was right. What can be achieved by forcibly preventing two people from consensual marriage, when there is a strong tradition allowing it?
However, upon further reflection and study of R' Ovadya's responsum on the matter, I believe I do understand a valid purpose of the institution. Following the view of the Chachamim would not only have an effect on cases where both parties fully desire of marriage. R' Ovadya writes that if one of them wants to do chalitza, it would be good to attempt to persuade them of the value of the mitzvah of yibum.[20]
There should be no need to explain that such well-meaning attempted persuasion could have disastrous effects in the modern world. If we are going to allow yibum, caution must be exercised to ensure that the results are net positive. On the other hand, while cutting off any possibility of yibum may prevent such disasters, it remains an extreme step. At the very least, we should be aware of the philosophy behind the view this step is based on.
[1] A
relationship with a (former) sister-in-law following divorce from the brother,
or after the brother dies leaving children, is punishable by kareis
(early physical and/or spiritual death).
[2] Devarim
25:5-10
[3]
Although thankfully, due to medical advances and other factors, the situation
itself is much rarer than it used to be.
[4] Bechoros
13a
[5] Yevamos 39b
[6] See Yevamos
3a and 109a, Kesuvos 64a.
[7]
Yevamos 53b.
[8] Chidushei
HaRamban, Yevamos 39b. R' Shmuel Rozovsky explains that according to this, the
language 'akin to' and 'close to' merely reflects Abba Shaul's uncertainty as
to the correctness of his position (Shiurei R' Shmuel, Yevamos 473).
[9] It is worth pointing out several examples in the gemara where although no mitzvah of yibum exists, the severe prohibition of marrying a sister-in-law (carrying the punishment of kareis) also does not apply:
1. After performing chalitza, yibum is no longer an option, but it is forbidden only through an independent negative commandment (אשר לא יבנה את בית אחיו) or Rabbinically (see Yevamos 10b; Rambam Hilchos Yibum v'Chalitza 1:12).
2. If the brother-in-law is not yet
bar mitzvah, there is no mitzvah of yibum but also no prohibition (Yevamos
111b).
3. If the widow is pregnant, yibum is
forbidden and invalid even after the fact, even if the child is later
stillborn. There is however no liability to bring a korban (see Yevamos 35b,
following Reish Lakish).
Presumably according to Ramban, Abba Shaul would also question all of these halachos, as there is no mitzvah and therefore potentially no waiver of the severe prohibition (regarding the first example, one could argue that as the mitzvah of chalitza has been performed, no further mitzvah is required).
[10] Responsa
of the Rambam, siman 218. The Rambam rules according to the Chachamim in Hilchos
Yibum v'Chalitza 1:2.
[11]
Chidushei HaRitva, Yevamos 53b. He reasons that were the Ramban correct, the
gemara would have stated clearly that the above Mishna is against Abba Shaul.
It is possible that according to the Ritva, 'close to being a mamzer' is not a
real halachic status and in actuality the child could marry. The phrase is
meant to stress the severity Chazal attached to insincere yibum.
[12] Ibid.
Kesuvos 64a
[13]
Yevamos 39b (ד"ה אמר רב). It is also explicit in the Or Zarua (Hilchos Yibum V'Kidushin
siman 638), who follows Rabbeinu Tam, that the problem with yibum is on a
Biblical level.
[14] See Rosh
Hashana 28a.
[15] This
is implied by the language "for the sake of beauty, married status or for
another ulterior motive." However, several acharonim do conflate the
dispute regarding yibum with the general concept of intention to fulfil
mitzvos. See for example Kovetz He'aros siman 36; Aruch HaShulchan, Even Haezer
siman 165.
[16] The
question holds even if the problem is Rabbinic.
[17] Yerushalmi, Yevamos 1:1. The Bavli
tells a different (and contradictory) version in Shabbos 118b, whereby R' Yossi
ben Chalafta's abstinence took on a different form and did not involve yibum.
[18]
According to this, the terms "akin to incest" and "close to
being a mamzer" are rhetorical flourishes designed to show the severity of
the issue (and concern that a child of this relationship will likely not turn
out well) and are not meant in halachic terms. In reality, no incestual
relationship is involved and there is no real issue of mamzerut. Support for
this can be found from the language of the gemara and poskim that the mitzvah
of chalitza is merely preferable to the mitzvah of yibum (according to
Abba Shaul), implying that yibum is not actually forbidden.
[19] Even
Ha'ezer 165:1. It is worth pointing out that while the Shulchan Aruch does
quote an opinion that chalitza is preferable (the view of Abba Shaul), no
dissenting view is brought in relation to the validity of yibum post facto
(this halacha is quoted in 166:7), or in relation to any of the other halachos
discussed in footnote 9 above.
[20] Yabia Omer
8, Even Ha'ezer siman 26
