What is a 'Kosher Kitchen'?

Introduction

Keeping a kosher kitchen is considered by many to be the baseline of religious Judaism. Many families keep kosher (at least at home) even if they keep little else, often to the strictest standards. This has likely served to preserve Jewish identity for generations, forcing us to stay together and form communities.

Apart from avoiding eating non-kosher food, the laws of kashrus also forbid cooking in utensils previously used for non-kosher. We also may not cook meat in utensils previously used for milk or vice versa. As we shall see, this has a clear source in the Torah, but it can nevertheless be difficult to understand the rationale. As always, I will attempt to provide clarity of the underlying principles as well as some practical ramifications.

Midianite Utensils

The Biblical source for these laws is the command given regarding the utensils taken as spoils from the war against the Midianites, prior to entering Eretz Yisrael:

וַיֹּאמֶר אֶלְעָזָר הַכֹּהֵן אֶל אַנְשֵׁי הַצָּבָא הַבָּאִים לַמִּלְחָמָה זֹאת חֻקַּת הַתּוֹרָה אֲשֶׁר צִוָּה ה' אֶת מֹשֶׁה: אַךְ אֶת הַזָּהָב וְאֶת הַכָּסֶף אֶת הַנְּחֹשֶׁת אֶת הַבַּרְזֶל אֶת הַבְּדִיל וְאֶת הָעֹפָרֶת: כָּל דָּבָר אֲשֶׁר יָבֹא בָאֵשׁ תַּעֲבִירוּ בָאֵשׁ וְטָהֵר אַךְ בְּמֵי נִדָּה יִתְחַטָּא וְכֹל אֲשֶׁר לֹא יָבֹא בָּאֵשׁ תַּעֲבִירוּ בַמָּיִם:

במדבר לא, כא – כג

Elazar the Priest said to the men of the army, who come in to war, "This is the law of the Torah that Hashem commanded Moshe: The gold, silver, copper, iron, tin and lead – anything that comes into contact with the fire, you shall pass into the fire and purify, however it must be cleansed in water of sprinkling. Anything that does not come into contact with fire, you shall pass into water."

Bamidbar 31:21-3

The "water of sprinkling" is the water containing the ashes of the Parah Aduma (Red Heifer), and is needed to cleanse the utensils from ritual impurity caused by contact with a dead body. However, Chazal understand that the purification through fire serves a more mundane purpose – the purging of any non-kosher taste absorbed into the utensils. If a utensil were to be used subsequently without undergoing the required purging, this taste could be ejected into other food, rendering it non-kosher.[1]

Earthenware

Elsewhere, we are commanded to purge any leftover taste of a sin offering from the utensils in which it was cooked. Here, the Torah also teaches us the law of earthenware utensils:

וּכְלִי חֶרֶשׂ אֲשֶׁר תְּבֻשַּׁל בּוֹ יִשָּׁבֵר וְאִם בִּכְלִי נְחֹשֶׁת בֻּשָּׁלָה וּמֹרַק וְשֻׁטַּף בַּמָּיִם:

ויקרא פרק ו פסוק כא

"An earthenware utensil in which it will be cooked must be broken. If it was cooked in a copper vessel, it must be purged and rinsed with water."

Vayikra 6:21

 

Chazal learn from here that food absorbed in an earthenware utensil can never be purged (completely).[2] For this reason, the only option is to destroy the utensil.[3]

Bitul

The Rambam writes that if non-kosher meat was cooked in an earthenware utensil, and this utensil was not destroyed but was instead used to cook kosher meat, this meat becomes non-kosher. If however it was used to cook a different type of food (i.e. not meat), this food is only forbidden to eat if the taste of the (non-kosher) meat is detectable within it.[4]

The reason for this distinction is straightforward to understand. Use of non-kosher utensils only affects the food cooked in them if significant 'non-kosher taste' is transmitted to the kosher food. If this kosher food is not meat, it is possible to determine whether a significant taste is present by means of a simple 'taste test.'[5] However, if kosher meat was cooked in the utensil, the taste of non-kosher meat may not be detectable due to its similarity to the taste of the kosher meat. The 'taste test' is therefore not reliable in this instance.

The Rambam's source for this distinction comes from a gemara that discusses cases where small amounts of non-kosher food fall into kosher food inadvertently. However, this gemara has a solution for the case of non-kosher food falling into kosher food of the same type – the non-kosher food is nullified as long as the volume of the kosher food is sixty times larger.[6]

The Rambam does not give this solution in the case of the food cooked in the non-kosher utensil, presumably because in this case assessing the respective volumes is also not practical. There is no way of knowing how much non-kosher food became absorbed in the utensil.[7] We can only be lenient in the unlikely event that the volume of the kosher food is sixty times larger than the volume of the entire utensil.[8]

The Anachronism

The fundamental principle behind all of the above does not appear to be true in the world today. We use pots to cook a variety of food, and if these pots have been washed in between, we never taste any hint of the previous dish in the current one. Any amount of food that does get absorbed into a utensil is insignificant, and certainly considerably smaller than a sixtieth of the kosher food cooked in it subsequently.[9]

This fact shows that absorption into standard utensils has changed significantly since the war against the Midianites, and since the time of Chazal. This change can easily be explained based on improved quality both of the pots that we use (being smoother and without significant deformities), and of the detergents used to clean them.

The logical conclusion is therefore that the standard utensils of today can be kashered simply by washing them thoroughly with soap. There should be no problem with using the clean utensils of a non-Jew, and not even any need to keep separate dishes for meat and milk. Could this really be true?

As I am sure the vast majority of readers will know, the rabbinic consensus today is not so lenient. Few discuss the possibility that the rules followed for centuries are no longer relevant. Even those who do, are fearful of making significant changes to these rules, and bend over backwards to justify maintaining at least the majority of them.[10]

For me, the most ironic part of this is that even following the old rules to the letter should lead to significant leniencies. Even in the past, if it were possible to determine that no significant taste had been transmitted to food cooked in a non-kosher pot, this would be sufficient in order to allow consumption of the food. There should be no difficulty in making such a determination nowadays.[11]

Intentional Nullification

While many of the justifications given for following the old rules appear spurious at best, there is one point which is worthy of discussion. Even if no taste absorbed in a utensil will ever be significant enough to forbid the food cooked in it, does this necessarily mean that intentionally causing a transmission of this small amount of food is permitted?

The usual rule is that we may not 'nullify a prohibition intentionally' (אין מבטלין איסור לכתחילה). Would the use of a non-kosher utensil, causing the forbidden taste absorbed in it to become nullified within the kosher food cooked, fall under this prohibition?

This exact question is already debated by the rishonim. The Rashba writes that if the amount of non-kosher food absorbed into a utensil is so small that its taste will never be noticeable in other food, cooking in this utensil is permitted and there is no issue of 'nullifying a prohibition intentionally.'[12] However, the Ra'ah strongly disagrees.[13] The Shulchan Aruch rules leniently in accordance with the Rashba,[14] while other poskim advocate stringency.[15]

It would therefore appear that there is some basis for continuing to be particular about using only kosher utensils, and for keeping separate utensils for meat and milk.[16] However, when things go wrong and the wrong utensils are used inadvertently, this should rarely render the food non-kosher.[17]

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[1] See for example Avoda Zara 75b.

[2] Pesachim 30b

[3] Returning the shards to the furnace will remove the absorbed taste and it is then possible to recraft a new utensil. See Zevachim 96a.

[4] Hilchos Ma'achlos Asuros 17:1

[5] This test would have to be administered by a reliable non-Jew (see footnote 11 below for details).

[6] Chulin 97a-b

[7] See Radvaz on the Rambam, who gives this explanation.

[8] See Shulchan Aruch, Yoreh Deah 98:4.

[9] See https://faculty.biu.ac.il/~fixeled/FixlerFrankBliea.pdf for a study (in Hebrew) on amounts of food that do get absorbed into utensils. Although the study concludes that such absorption does take place, it concedes that the amount is certainly less than a sixtieth (although as we have written above, this is clear without the need for this study). At the end of the article, letters from various contemporary poskim are added, some of which support the position that I put forward here.

[10] See for example https://ph.yhb.org.il/17-32-08/.

[11] The classic way to make this determination was to ask a non-Jewish expert cook to taste some of the food and to tell us if he could discern the relevant taste. Although the Ashkenazi practice was not to rely on the testimony of a non-Jew (see Rema, Yoreh Deah 98:1), Sefardi tradition does accept such testimony. Once a Sefardi eats the food, relying on the non-Jew, and confirms that there is no non-kosher taste, an Ashkenazi can take the word of the Sefardi. In reality, as today we know that neither the non-Jew or the Sefardi will discern any non-kosher taste, this whole process can be dispensed with and the food should be permitted without the need for any 'taste test.'

[12] Toras HaBayis, Bayis 4, Sha'ar 4.

[13] Bedek HaBayis there.

[14] Yoreh Deah 99:7; 122:5

[15] Shach and Taz there. See also Bi'ur HaGra

[16] Although it is also quite possible that even the stringent rulings of the Shach and Taz were only relevant in their times. In a world when most non-kosher utensils were capable of imparting taste to food, they felt that it would not be appropriate to make a distinction regarding exceptional cases. Today, when utensils never impart taste to food, it is harder to justify this stringency.

[17] The utensil may need kashering in the traditional manner, or may even need to be discarded when kashering is not possible, based on the stringency discussed above.

Breaking the Rules

Introduction

The Torah contains a large number of commandments, covering many different aspects of our lives (as well as many that are not obviously relevant to us, depending on historical and personal circumstances). Inevitably, sometimes these commandments will conflict with each other, and there are several halachic principles that we must follow to determine what we should do in these circumstances.[1]

At other times, there may be no conflict between formal commandments, and the halacha may be straightforward, but there is nevertheless a dilemma as to how to proceed. It may seem surprising to some, but there are (rare) occasions where following the halacha is not the correct option. The purpose of this post is to clarify this point.

Prophecy

We will start with what appears to be an example of conflict within halacha. We are commanded to follow the instructions of a prophet:

נָבִיא מִקִּרְבְּךָ מֵאַחֶיךָ כָּמֹנִי יָקִים לְךָ ה' אֱ-לֹהֶיךָ אֵלָיו תִּשְׁמָעוּן:      (דברים יח, טו)

"Hashem your G-d will establish for you a prophet from among you, from your brethren, like me. You must listen to him."

Devarim 18:15

What happens if the prophet instructs us to transgress a commandment? Chazal tell us that provided that the instruction is only temporary, for the needs of the time, we must listen.[2] The paradigm example was the instruction of Eliyahu HaNavi to bring a sacrifice at Mount Carmel, in violation of the prohibition on bringing a sacrifice outside the Beis HaMikdash, in order to demonstrate the existence of G-d and the futility of Ba'al worship.[3]

In this case, for the people instructed by the prophet, there is a conflict between the commandment to listen to the prophet and the prohibition of sacrificing outside the Beis HaMikdash. There is also a clear rule that tells us how to resolve the conflict. But what about the prophet himself? How does he decide that it is necessary to disregard a Torah prohibition?

One obvious possibility is that the prophet never can make such a decision unilaterally. We must follow the prophet only because he speaks in the name of G-d, and we can rely on him not to give such an instruction without being told explicitly to do so. However, this assumption may not be correct.

The gemara attempts to derive from the case of the prophet that the Chachamim have the right to uproot a Biblical commandment. This derivation is rejected as being over-generalised, as the prophet can only act in this way in order to address the specific needs of the time (not to uproot a commandment permanently). Crucially, the gemara concludes that a beis din has the same power, and can impose punishments not mandated by the Torah based on the needs of the time.[4]

The clear implication is that there sometimes is a necessity to suspend halacha, even without Hashem's explicit command. Tosfos explain that prophecy could never be critical to this, as after the Torah was given, prophets have no right to add anything.[5] In the case of Eliyahu, prophecy may have been required in order to rely on fire coming down from heaven,[6] but this is a mere technicality.

We can conclude that a prophet or beis din does have the authority to disregard halacha at times of severe need.[7] Obviously, careful deliberation will be required to determine when this is necessary. By definition, there is no rulebook that can decide this.

Aveira Lishma

There is not always a prophet or beis din available to decide when a particular situation is severe enough to require extreme action. The truth is that when required, even an individual may need to take the law into his or her own hands. No law book, even one given by Hashem, can provide the correct guidance in 100% of situations in a format comprehensible to humans.[8]

Chazal provide just one explicit example of this. When the Cana'anite general Sisra fled from battle, he reached the tent of Yael, the wife of Chever HaKeini, a descendant of Yisro. He asked for water, and despite being a married woman, she proceeded to seduce and then kill him, thus playing a significant role in the saviour of the Jewish People from the Cana'anim. Speaking of this act, Chazal comment, "An aveira with the right motivation (lishma) is as great as a mitzvah with ulterior motivation."[9]

The concept of aveira lishma was misused by Shabtai Tzvi in the 17^th century with devastating effects. In the 19^th century, certain Chasidic commentators applied the term to the relationship of Zimri with the Midianite princess Kozbi,[10] and to David HaMelech's relationship with Batsheva,[11] despite both of these things being explicitly criticised in Tanach.[12]

Such abuse of the term, whether by action (in the case of Shabtai Tzvi) or through commentary alone, was criticised severely, and rightly so.[13] However, this does not mean that we can erase the entire concept, and we must recognise that there are instances in which halacha must be 'overruled.'

Contemporary Examples

It is difficult to provide contemporary examples similar to that of Yael, but this is not because they don't exist. Israeli government officials, from unknown spies up to the prime minister, will frequently need to break Shabbos and likely commit other 'transgressions', even when there is no clear-cut or immediate danger to life. A modern country simply could not function without this. Judgement regarding when this is necessary can usually only be made by the individuals involved, and the details usually cannot be public knowledge.

There may also be potential to apply the concept of aveira lishma in some difficult situations where halacha could cause family breakdown, or prevent people from starting families. Many rulings in these areas use forms of 'halachic gymnastics' in an effort to be lenient. Committing an aveira lishma, or even advising someone else to do so, may well be a better option than falsifying halacha.[14] It is impossible to give a formula as to when aveira lishma would be appropriate in these cases, and each case must be judged on its merits.[15]

I had also originally considered the case of doing melacha on Shabbos to save a limb, as a potential case of aveira lishma. However, upon further reflection, this case does have a valid solution within halacha (details below).[16]

One of the main difficulties in applying aveira lishma to situations such as the above is in ensuring that the act is indeed carried out lishma (with pure intentions).[17] This is especially difficult when the main beneficiary of the aveira is the person committing it.

In practice, the overwhelming majority of us are unlikely to be faced with a situation that requires an aveira lishma. Nevertheless, being aware that the concept exists is important for a broader understanding of the Torah and of the limits of what is expected from us.

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[1] Examples of this are the rule that a positive commandment 'pushes aside' a negative commandment (provided that certain conditions are met) and that saving a life takes precedence over almost every other commandment.

[2] Also provided that the prophet has established himself by performing a 'sign or miracle.' See Rambam, Hilchos Yesodei HaTorah 7:7 and all of chapter 10 for details.

[3] Yevamos 91a.

[4] Yevamos 90b

[5] Quoting Megila 2b.

[6] This is the explanation of Tosfos in Yevamos, and is supported by the Yerushalmi in Ta'anis 2:8, which says that Eliyahu acted fully, based on the command of Hashem. However, Tosfos in Sanhedrin 89b (ד"ה אליהו) considers the possibility that Eliyahu acted independently, and this question is also debated by the commentaries on Melachim 1, 18:36.

[7] At least in theory, this applies even to Batei Din today who do not have semicha (in the original sense of the term). However, it is limited to Batei Din recognised by the community as having power (see Choshen Mishpat 2:1 for details), and whether such Batei Din exist today is questionable.

[8] In general, halacha must be followed even when the underlying reason for a particular halacha does not apply. I explained in Eternal or Obsolete?, quoting the Rambam (Moreh Nevuchim 3:34), that it is usually necessary to have one rule for everyone and for all generations, even if this causes damage in a minority of cases. However, in extreme cases, this damage will be so severe as to necessitate breaking the ordinary rules and relying on us understanding that this is a one-off.

[9] Nazir 23b, based on Shoftim 5:24.

[10] See Mei HaShiloach at the beginning of Parshas Pinchas.

[11] See for example R' Tzadok HaKohen MiLublin, Divrei Sofrim 28.

[12] The application to Zimri is particularly objectionable, as Chazal in Nazir 23b explicitly contrast the praiseworthy act of Yael with the perverse act of Zimri.

[13] See for example Ramchal in Kinas Hashem Tzva'os volume 2, Inyan Yael; R' Chaim miVolozhin, Keser Rosh 132.

[14] As these areas of halacha are today usually under the control of beis din, who are expected to issue written halachic rulings, this option may not be practical. By definition, a halachic ruling cannot permit an aveira lishma, as an aveira lishma involves a transgression of halacha.

However, one example in which the ultimate decision remains in the hands of the individual is the case of a wife who confesses to committing adultery, without there being sufficient evidence for beis din (or the husband) to confirm this. The halacha is that she is not believed, due to the concern that she has fabricated the story in order to marry someone else (see Nedarim 90b, Shulchan Aruch Even HaEzer 115:6). Therefore, if the husband is unconvinced that adultery has been committed, he is certainly not obligated to divorce, and beis din will tell the wife that she may stay with her husband. The wife herself will know the truth, and in extreme circumstances may be justified in staying with her husband, on the grounds of aveira lishma.

[15] Prevention of family breakdown or facilitating marriage clearly cannot be used automatically as a justification for an aveira lishma; the existence of laws like mamzerus, which prevent or break certain marriages in their very essence, certainly have a purpose.

[16] Melacha on Shabbos is in principle forbidden even to save a limb, according to the simple reading of the gemara, the vast majority of rishonim and the Shulchan Aruch. Nevertheless, today the consensus is to rule leniently. The justification given for this is that today's medical knowledge tells us that whenever a limb is at risk, there is also at least a small risk to the person's life.

While I never disputed the risk involved to human life, I believed and still believe that Chazal were also aware of this (people died after losing limbs in the past as well). Although melacha is permitted on Shabbos even when there is only a minority chance of it being required in order to save human life, my impression from Chazal is that this is only true when this chance is significant (see for example Yoma 84b, Shulchan Aruch Orach Chaim 329:2). When a limb is at risk, the risk of death is often not significant enough to permit melacha on Shabbos according to Chazal.

However, if we were to follow Chazal here, this would have disastrous consequences. In today's world, if Judaism required sacrificing a limb when necessary in order to keep Shabbos, we would be viewed both externally and internally as similar to cults that require child mutilation and other despicable practices. One could therefore make an argument for breaking Shabbos to save a limb as a form of aveira lishma.

After further consideration, I concluded that in fact we do not need to resort to aveira lishma in this case. It is true that Chazal did not consider potential loss of a limb to be a significant risk to life, but this is because 'significant risk' is relative to the conditions of the time. When life expectancies were low, and the chances of any person dying within the coming year were relatively high, the additional risk to life caused by the potential loss of a limb was indeed not especially significant. This is no longer the case, and in our times, it is quite possible that Chazal would agree with the view of modern poskim.

[17] This was not in question in the case of Yael, who risked her life in order to save the Jewish People. 

Baruch HaTov VeHameitiv

A relatively short halachic observation this time, in my mind for personal reasons.

Introduction

Chazal instituted a variety of brachos to be made to thank Hashem for possessions, geographical features of the Universe, life events and more. Some of these brachos are made only in very specific and clearly defined circumstances, such as the bracha made upon sighting the New Moon each month (colloquially known as kidush levana). Others, such as the bracha of shehechiyanu, are made on many occasions, and some thought is required to identify the common denominator between these occasions.

A bracha that is similar to shehechiyanu, but made less frequently, is the bracha of hatov vehameitiv.[1] This bracha is made upon hearing good news or acquisition of new items, where the person hearing is not the sole beneficiary. Examples explicit in the Mishna and gemara are when rain falls and the person owns farmland in partnership with another, joint purchase of a new house or utensils, inheritance, and drinking a new type of wine together with others.[2]

The final explicit example is when a baby boy is born to a couple.[2] The clear implication is that no bracha should be made upon hearing of the birth of a girl. This halacha would have been easily understandable in the ancient world, as the birth of a girl was simply not considered good news.[3] Good news is defined subjectively rather than objectively,[4] such that this halacha is only an indicator of the then prevalent attitude to the birth of a girl, and not necessarily of an objectively 'correct' attitude.

Subjectivity and Modern Application

By the early 20^th century, perceptions appear to have changed significantly. The Mishna Berura writes that although the bracha of Hatov Vehameitiv is not said on the birth of a daughter, it is obvious that shehecheyanu should be said the first time one sees his daughter. He argues that this is no worse than seeing a friend for the first time in 30 days, where Chazal tell us that the bracha of shehecheyanu is said.[5]

Although this may have been obvious to the Mishna Berura, I find it extremely difficult to accept that recitation of Shehecheyanu after the birth of a daughter was so obvious to Chazal and poskim preceding the Mishna Berura to the extent that they did not even see the need to write it. Furthermore, the analogy to seeing a friend after 30 days is questionable – the experience of being reunited with an old friend is very different to that of the birth of a child, who the parents have never met before.

It is therefore clear to me that the Mishna Berura simply was not comfortable with the idea that the birth of a daughter could be passed off as a non-event (a similar feeling felt I am sure was felt by many of us the first time we encountered this halacha). By his time, the worth of women simply had to be celebrated, even if full equality was still a long way off.

This position has been accepted at least in part by almost the entire Jewish world. While some poskim disagree with the Mishna Berura and write that no bracha should be said on the birth of a daughter,[6] festive celebrations of the birth of a daughter are the norm in all sections of our society. There is no doubt in my mind that this represents a change from ancient times.[7]

It is also clear that this change has continued past the time of the Mishna Berura, and in today's society, many (if not all) Orthodox Jews experience equal degrees of joy from the birth of male and female children.[8] The logical conclusion is that the ruling of the Mishna Berura, perhaps radical in his time, is now anachronistic. The correct bracha to say after the birth of any child is Hatov Vehameitiv, as long as the parents consider this 'good news.'[9]

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[1] The full bracha is ברוך אתה ה' א-להנו מלך העולם הטוב והמטיב, not to be confused with the much longer version said as the fourth bracha after a meal (although clearly both brachos thank Hashem for the good He has given us).

[2] Brachos 59b. When the person hearing is the sole beneficiary, the bracha of shehechiyanu is made.

[3] See also Kiddushin 82b. While this was the prevalent view even then it was not unanimous – see Bava Basra 141a.

[4] Although the Rashba writes that the bracha is only made on tangible benefit and not on any good news. A son typically provided tangible benefits to his parents in their old age and by taking care of their burial (daughters were historically less able to do so), and 'every person desires to have an inheritor' (Responsa 4:77).

[5] Mishna Berura 223:2

[6] See for example Mishne Halachos 13:32

[7] In the above responsum, the Mishne Halachos points out that Ri ben Yakar felt it necessary to tell people not to make the bracha of Hadayan Haemes (said upon the receipt of bad news) on the birth of a daughter.

[8] In my view, this change is a positive one and an example of the progress made by humanity. However, the halachic ramifications would be true even were the change to be neutral or even negative.

[9] Even if the happiness experienced is not 100% equal after the birth of a boy and a girl.

The Mitzvah of Yibum

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.

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[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