Daf Ditty Yevamot 3: Levirate Marriage

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§ The Gemara continues its analysis of the wording of the mishna. And why does the tanna
specifically teach: Exempt from ḥalitza and from levirate marriage? Let him teach: Exempt
from levirate marriage, alone. The Gemara answers: If he were to teach: From levirate
marriage, I would say that she must perform ḥalitza and she must not enter into levirate
marriage. The tanna therefore teaches us that every woman who is eligible for levirate
marriage is eligible for ḥalitza, and anyone who is ineligible for levirate marriage is likewise

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ineligible for ḥalitza, as no obligation of ḥalitza applies unless there is an obligation of a levirate
marriage.

§ The Gemara further inquires: And let him teach: From levirate marriage and from ḥalitza,
as the Torah states the option of levirate marriage first. Alternatively, let him teach: From ḥalitza,
alone, as this would indicate that she may not enter into levirate marriage either. The Gemara
answers: This mishna is in accordance with the opinion of Abba Shaul, who said: The mitzva of
ḥalitza takes precedence over the mitzva of levirate marriage, as he maintains that one who
does not enter into levirate marriage for the sake of Heaven transgresses the prohibition against
marrying one’s brother’s wife, and therefore it would be better in every case to perform ḥalitza.
Consequently, the tanna mentions ḥalitza before levirate marriage.

RASHI

§ The Gemara asks another question with regard to the language of the mishna: The enumeration
of the first clause of the mishna: Fifteen women, which indicates that those women alone are
included in this list, serves to exclude what? Which other cases might have been included? And
the enumeration of the latter clause, which states: These exempt their rival wives, again meaning
these and no others, serves to exclude what? Since the mishna specifies only these women and no
others, the Gemara asks which other women might have been included in these lists.

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The Gemara answers that these enumerations come to exclude those additions of Rav and of Rav
Asi. Rav added the rival wife of a woman suspected by her husband of adultery [sota], while Rav
Asi added the rival wife of an aylonit. The Gemara asks: And according to the opinion of Rav
and according to the opinion of Rav Asi, the enumeration of the mishna comes to exclude what?

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Summary

Why These Exceptions?1

A strong start: why isn't rape of one's daughter mentioned specifically? The rabbis want to
understand why certain relationships are mentioned before others. In asking this question, they
note that some of the relationships mentioned are discussed in Torah and some are only referred
to homiletically. Rape of one's daughter is one of the latter. Thus the rabbis find one more clue
regarding the order of the exceptions to yibum.

With regard to the tzarot, the rival wives, the Gemara questions why the Mishna states that they
are exempt from yibum rather than being prohibited from yibum when the first wives are
exempt. The rabbis decide that tzarot are not in fact prohibited from yibum but are only exempt
in these circumstances. Following this, the Gemara considers yibum and chalitza. The rabbis
determine that any woman who is eligible for yibum by Torah law is eligible for chalitza. Any
woman who is ineligible for yibum according to Torah law is not eligible for chalitza.

The Gemara wonders why fifteen women were excluded from yibum; whom is not on this

1
http://dafyomibeginner.blogspot.com/2014/10/

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list? The tzara of a sota, an aylonit, a minor who did not refuse her marriage. The rabbis discuss
some of the implications of tzara. One interesting note suggests that yibum allows a brother to
build the house of his deceased brother (Deuteronomy 25:9). He is unable to fully 'build' when
the yevama is forbidden to him by Torah law and when one of her tzarot is forbidden to him.

An interesting game of logic: why not mention the six categories of relationships that are
prohibited most severely (marrying one's mother, etc.). The Gemara walks us through the rabbis
considerations: one's mother can never marry one's brother, for she is either also the brother's
mother or she is his father's wife. Thus she will never be eligible for yibum. Her tzara, however
will be permitted to this brother for yibum. When a first wife is not even remotely eligible for
yibum according to Torah law, her tzara is in fact permitted.

This brings our rabbis to an overarching question: can a positive mitzva override a
prohibition? Yes, say the rabbis, but not when the prohibition is punishable by karet. But how
can we justify yibum at all? A man is not to marry his brother's wife. Ah, say the rabbis, but
yibum only occurs when the brother and his wife have no children.

This argument might suggest that the important part of marriage is procreation. Ultimately, these
laws - as much as they seem to address social and familial relationship issues - are based upon the
imperative of procreation and the patrilineal chain of inheritance.

Rav Avrohom Adler writes:2

The Gemora states that the exemptions regarding the fifteen women listed in the Mishna are all
derived from the verse in the Torah discussing his wife’s sister. The Gemora asks: Why didn’t the
Mishna list the case of his wife’s sister first?

The Gemora attempts the following answer: The Tanna enumerated the forbidden relatives in the
order of the degrees of their respective severity, and our Mishna represents the view of Rabbi
Shimon who regards burning as the most severe (and the Mishna first lists the nine women with
whom intimacy is punishable by burning). The Gemora rejects that answer, for then, the case of
‘one’s mother-in-law’ should have been mentioned first, since Scripture enunciated the principle
of burning in the case of one’s mother-inlaw. And furthermore, the case of ‘one’s daughterin-law’
should have come immediately after ‘his mother-in-law’ (and the others that are punishable by
burning), since after burning, stoning is the severest penalty!? Rather, this, in fact, is the proper
reply: Since the prohibition of intimacy with one’s daughter was derived by an exposition (and not
written explicitly in the Torah), the teaching therefore is dearer to him than an obvious explicit
verse (and that is why it is mentioned first).

2
http://dafnotes.com/wp-content/uploads/2015/08/Yevamos_3.pdf

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The Gemora asks: The law (that these women are exempted from yibum), surely, concerning all
the others also was arrived at by exposition!? The Gemora answers: Granted that in respect of
exemption from yibum, the law in respect to them was arrived at by exposition, but the principle
of prohibition (of intimacy) with them has been explicitly enunciated in Scripture, while as regards
to one’s daughter, the very principle underlying the prohibition (of intimacy with her) has been
arrived at by exposition; for Rava stated that Rav Yitzchak bar Avdimi had said to him that this is
derived from the gezeirah shavah of “heinnah-heinnah” and “zimahzimah.” [The prohibition of
having relations with one’s biological daughter, born out of wedlock, is learned from the same
word heinnah – they are used in the verse about a biological daughter and the verse about one’s
wife’s offspring. Just as the verse about a wife’s offspring explicitly enumerates a daughter along
with a granddaughter, so the verse about a biological granddaughter includes a daughter. We then
learn that both of these cases are punishable by burning, from the same word zimah – immorality
used in the verse about a wife’s offspring and in the verse about a wife’s mother. Just as the verse
about a wife’s mother explicitly states that he is punished by burning, so we learn that all the other
cases associated with this word are punished by burning.]

The Gemora asks: Now that it has been stated that preference is given to whatever is arrived at by
exposition, the Tanna should have placed ‘his wife's sister’ last (since this is where the exemption
for yibum is taught)? The Gemora answers: As he was dealing with a prohibition due to sisterhood,
he mentioned also ‘his wife's sister.’

The Gemora asks: Then let him relegate the entire clause to the end? The Gemora answers (its
original question differently): The Mishna listed the fifteen women according to the closeness of
their relationship with the yavam. The closest relatives’ are his daughter, and his daughter’s
daughter and his son’s daughter, since these three are his blood relatives. Since the Tanna listed
three generations descending from the man, he listed three generations descending from the
yavam’s wife, i.e. his wife’s daughter, and her daughter’s daughter and her son’s daughter. Once
the Mishna listed three generations descending from her (yavam’s wife), he decided to list three
generations ascending from her, i.e. his mother-inlaw, and his mother-in-law’s mother and his
fatherin-law’s mother. He then listed the yavam’s maternal sister and his mother’s sister since they
are his blood relatives (more than his daughter-in-law, who is only related through her marriage to
his son).

Once he was discussing prohibitions pertaining to sisters, he mentioned his wife’s sister. Of the
three remaining women (his daughter-in-law, his maternal brother’s wife and the wife of his
brother who was not in his world, who are all not blood relatives), the Tanna should have listed
his daughter-in-law first (because her prohibition is the most severe; stoning compared to kares);
however, since we were discussing prohibitions dealing with siblings, the Tanna listed his maternal
brother’s wife and the wife of his brother who was not in his world and concluded with his
daughter-in-law.

The Gemora asks: Why does the Mishna say that these fifteen women exempt their co-wives; let
the Mishna say that they forbid their co-wives? The Gemora answers: If the Mishna would say
forbid, one might think that it is forbidden to perform a yibum with her, but one is required to
perform chalitzah; the Tanna teaches us that she is exempt from chalitzah, as well. The Gemora
asks: Let the Mishna say that these fifteen women forbid their co-wives from chalitzah? The

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Gemora answers: What would be wrong with performing a chalitzah with an ervah? The Gemora
rejects this answer: If we would allow the yavam to perform a chalitzah, an ignorant person might
mistakenly think that yibum is also permitted and he will perform yibum with an ervah.

The Gemora concludes: Since a co-wife of the ervah becomes forbidden only in situations which
involve the mitzvah of yibum (the deceased was a brother of this person), and not in any other
situation (any time that a man is married to someone else’s ervah); the Mishna uses the term
“exempt,” indicating that this ruling applies only in situations of yibum.

The Mishna had stated: Fifteen women exempt their co-wives and the co-wives of their co-wives
from chalitzah and from yibum. The Gemora asks: Would it have not been sufficient for the
Mishna to say that they are exempt from yibum? The Gemora answers: If the Mishna would have
only said that they are exempt from yibum, we might have thought that there would be a
requirement for chalitzah; the Mishna teaches us that whoever is subject to yibum is subject to
chalitzah and whoever is not subject to yibum is not subject to chalitzah. The Gemora asks: Let
the Mishna say that they are exempt from yibum and chalitzah (reversing the order) or it can say
that they are exempt from chalitzah (and we would understand that he cannot perform a yibum)?
The Gemora answers: The Mishna is following the viewpoint of Abba Shaul, who maintains that
the mitzvah of chalitzah takes precedence over the mitzvah of yibum (since he might not have pure
intentions); it is for this reason that the Tanna mentions chalitzah before yibum.

The Gemora asks: What was intended to be excluded by the number (fifteen) at the beginning (of
the Mishna), and what was intended to be excluded by the number (‘these’ women) at the end? [If
nothing were to be excluded, there would be no need for the addition of a number at the beginning,
or of a reference to it at the end of a list, which presumably enumerated all possible cases.]

The Gemora answers: They were intended to exclude the respective rulings of Rav (who holds that
an adulteress exempts her co-wife from chalitzah and yibum) and Rav Assi (who holds that an
aylonis – a woman incapable of procreating - exempts her cowife from chalitzah and yibum). The
Gemora asks: What, however, do the numbers exclude according to Rav and Rav Assi?

The Gemora answers: If they share each other's views, one number would serve to exclude the
cowife of a minor who made a declaration of refusal (Mi’un - A girl whose father had died could
be given in marriage while still a minor (under the age of twelve) by her mother or older brother.
This marriage is only valid Rabbinically. As long as she has not attained the age of twelve, she
may nullify the marriage by refusing to live with her husband. This act of refusal, referred to as
mi’un nullifies the marriage retroactively. In our case, a man had two wives, and one of them was
an orphaned minor. He died childless, and the minor ‘refused’ the yavam, as she is allowed to do.

The halachah is that the minor and her co-wife are forbidden to the yavam. As the number in the
Mishna excludes this case, the halachah would be that the co-wife is subject to chalitzah.), and the
other to exclude the co-wife of a wife whom her husband remarried after having divorced her. And
if they do not share the views of each other, each would regard one number as serving to exclude
the ruling of his colleague; and the other number, as serving to exclude either the cowife of one
who made a declaration of refusal, or the co-wife of a wife whom her husband remarried after
having divorced her.

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The Gemora asks: According to Rav and Rav Assi, these should have been enumerated in our
Mishna!? The Gemora answers: This could not be done because the law of the co-wife’s co-wife
is not applicable to these cases (as the woman is equally forbidden to all the brothers; this is in
contrast to the Mishna’s cases, where the woman is forbidden to one of the brothers but permitted
to the others).

The Gemora asks: From where do we derive all the halachos listed in the Mishna? The Gemora
cites a braisa which provides a Scriptural verse (in the passages discussing the prohibition of living
with one’s wife sister when his original wife is still alive) teaching us that one cannot perform a
yibum on his wife’s sister. And you shall not take a woman in addition to her sister, to be a rival
to her (tzaros), to uncover her nakedness, ‘aleha’ [upon her] in her lifetime. What was the necessity
there for the expression ‘aleha’? It is because it was stated: Her yavam [husband's brother]shall
cohabit ‘aleha’ [with her], it might have been thought that Scripture speaks even of any of all the
forbidden relatives enumerated in the Torah. Therefore it was here stated, ‘aleha’ and elsewhere it
was also stated ‘aleha’. Just as elsewhere (by the commandment of yibum) it is in the situation of
a mitzvah (where the brother dies childless), so here also (when the Torah prohibits intimacy with
one’s wife’s sister), it is in the case of a mitzvah (of yibum); and yet did not the Merciful One say:
You shall not take.

The braisa continues: We are thus in a position to know the law concerning herself; from where
do we derive the law concerning her co-wife? It is from the Scriptural expression: to be a rival to
her. We have so far deduced the law concerning her co-wife only; from where do we arrive at the
law concerning her co-wife’s co-wife (when a permitted brother (yavam) performs yibum with the
co-wife of the forbidden woman to a different brother, and then this yavam also dies childless, the
tzarah (the co-wife of the original woman) and the tzaras tzarah (the current co-wife)? It is from
the fact that Scripture uses the expression litzror and not that of latzor (for the use of the ‘double
letter ‘reish’ implies many tzaros).

The braisa continues: So far we have deduced the law concerning a wife's sister; from where is the
law concerning the other forbidden relatives to be inferred? You must say: Just as a wife's sister is
singled out in that she is a forbidden relative, the penalty for intentional cohabitation with her is
kares and for unwitting cohabitation a chatas, and she is forbidden to the yavam, so also any
woman who is a forbidden relative, and the penalty for intentional cohabitation with whom is kares
and for unwitting cohabitation a chatas, is forbidden to the yavam.

The braisa continues: Now we know the law concerning themselves only; from where is the law
concerning their rivals deduced? You must say: Just as a wife's sister is singled out in that she is a
forbidden relative, kares is incurred by intentional cohabitation with her and a chatas for unwitting
cohabitation, and she is forbidden to the yavam, and her rival is forbidden, so too in the case of
any woman who is a forbidden relative, and for intentional cohabitation with whom is incurred the
penalty of kares and for unwitting cohabitation a chatas, and who is forbidden to the yavam, her
rival is forbidden.

The braisa continues: From here, the Sages said (in the Mishna): Fifteen women exempt their co-
wives and the co-wives of their co-wives from chalitzah and from yibum, until the end of the

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world. The braisa notes: One might think that the six more stringently forbidden relatives (as they
are forbidden to a man’s paternal brother as well) are also included in the ruling, so that their rivals
also are forbidden, therefore it must be stated: Just as a wife's sister is singled out in that she is a
forbidden relative, kares is incurred by intentional cohabitation with her and a chatas for unwitting
cohabitation, and she is permitted to the other brothers, and she is forbidden to the yavam, and her
rival is forbidden, she may be married to the other brothers, but is forbidden to the yavam, and her
rival is forbidden, so too in the case of any woman who is a forbidden relative, and for intentional
cohabitation with whom is incurred the penalty of kares and for unwitting cohabitation a chatas,
and she is permitted to the other brothers, and is forbidden to the yavam, her rival is forbidden.
Excluded, however, are the six more rigidly forbidden relatives. This is because they may not be
married to the other brothers, and therefore, their rivals are permitted; for the law of ‘tzarah’ - ‘a
cowife’ is applicable only (where the forbidden relative aand her c-wife fall to a yavam) from a
brother. The braisa concludes: We have deduced the prohibition; from where, however, is the
penalty inferred? Scripture said: For whoever shall commit any of these abominations etc. [shall
be cut off from among their people.]

REB AKIVA EIGER’S VELTZ KASHA

Rabbi Akiva Eiger asks the following question: Why do we need a passuk of "litzror" mentioned
in the braisa, to derive the prohibition against marrying a tzaraas tzarah (co-wife’s co-wife)? Once
the Torah prohibits performing yibum with a tzarah (co-wife), she remains forbidden to her
(deceased) husband's brothers because of the prohibition of eishes ach (the wife of one's brother).
Accordingly, her status is the same as that of any other ervah, and her tzarah should be no different
from any tzarah of an ervah.

Although the prohibition against marrying ones brother’s wife is normally suspended in situations
of yibum, the Mishna teaches in another case (eishes achiv she'lo hayah b'olamo - the wife of his
brother who was not in his world (this brother and the yavam were not alive at the same time)) that
the prohibition of eishes ach has the capability to prohibit the woman to the brother with whom
she otherwise would have performed yibum with, and the Gemora does not find it necessary to
seek an extra source for this. In that case, a brother born after the death of his older (and childless)
brother may not perform yibum, because he was "not in the world at the same time" as his brother
and thus his brother's wife remains forbidden to him as an eishes ach. Similarly, her tzarah is also
forbidden to him because she is the tzarah of an ervah. Just as in this case, an extra source is not
required to teach us the prohibition of the tzarah of an ervah, a source should not be required to
teach us the prohibition of the tzarah of a tzarah. (Kollel Iyun HaDaf assisted us immensely in the
writing of this question.)

Reb Elchonon Wasserman (Kovetz Heoros 2:4) answers: The only time that the ervah of eishas
ach can exempt the tzorah from yibum is when the ervah became exempt herself on the account of
eishes ach; however, when the yevamah became exempt from yibum on the account of a different
reason, resulting in there being a prohibition of eishas ach; she will not exempt the tzorah from
yibum. In the case where the two brothers were not alive at the same time, the yevamah is exempt
from yibum on the account of being an eishes ach; she will exempt the tzorah, as well. A tzoras
ervah is not exempt because she is an eishes ach; she is only exempt because she is a co-wife of
an ervah; consequently, she becomes prohibited on the account of eishes ach, but she cannot

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exempt her tzorah. The Gemora requires a source to teach us that the tzorah has the ability to
exempt her tzorah, as well.

THE SOURCE FOR THE PROHIBITION AGAINST "YIBUM" WITH

THE "TZARAH" OF A "TZARAH"

Rav Mordechai Kornfeld writes:3

The Beraisa teaches the source for the prohibition against performing Yibum with the Tzarah of
"Achos Ishto" (the sister of one's wife). The Beraisa states that the prohibition is derived from the
extra phrase in the verse, "Lo Sikach li'Tzror" -- "[A woman and her sister] you shall not marry to
cause them to quarrel" (Vayikra 18:18). The additional phrase "li'Tzror" in the verse teaches that
one may not marry the Tzarah of a woman who is an Ervah to him even in a situation of Yibum
(as derived from the Gezeirah Shavah of "Aleha").

The Beraisa inquires about the source for the prohibition against marrying the Tzarah of a Tzarah
of an Ervah. The Beraisa answers that the source is the verse's usage of the word "li'Tzror" and not
"la'Tzur" (with one Reish).

Why does the Beraisa need to derive the prohibition against marrying the Tzarah of a Tzarah from
a verse? Once the Torah prohibits the Tzarah herself from doing Yibum (because she is the Tzarah
of an Ervah), she remains forbidden to her husband's brothers because of the prohibition of "Eshes
Ach" (the wife of one's brother). Accordingly, her status is the same as that of any other Ervah,
and her Tzarah should be no different from any Tzarah of an Ervah.

Although the Isur Ervah in this case is that of "Eshes Ach" which normally is suspended in a
situation of Yibum, the Mishnah teaches in another case ("Eshes Achiv she'Lo Hayah b'Olamo")
that the prohibition of "Eshes Ach" is able to prohibit the woman to the brother with whom she
otherwise would have performed Yibum, and the Gemara does not find it necessary to seek a
source for this. In that case, a brother born after the death of his older (and childless) brother
may not perform Yibum, because he was "not in the world at the same time" as his brother and
thus his brother's wife remains forbidden to him as an "Eshes Ach." Similarly, her Tzarah is also
forbidden to him because she is the Tzarah of an Ervah. Just as the Gemara needs no source for
the prohibition of the Tzarah of an Ervah in this case, it should need no source for the prohibition
of the Tzarah of a Tzarah. In fact, RASHI (DH v'Eshes Achiv) compares the exemption from
Yibum of the Tzarah of a Tzarah to the exemption of Tzaras "Eshes Achiv she'Lo Hayah b'Olamo."
Why, then, does the Gemara seek a scriptural source for this prohibition?

Moreover, when Rashi later (8b) discusses the opinion of Rebbi -- who finds another source for
the exemption of a Tzarah from Yibum but gives no source for the exemption of the Tzarah of a
Tzarah -- he says that Rebbi does not need a verse to teach that the Tzarah of a Tzarah does not
perform Yibum "because she is the Tzarah of an Eshes Ach" (DH Im Ken)! Why does the Gemara

3
https://www.dafyomi.co.il/yevamos/insites/ye-dt-003.htm

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here need to prove from a verse that the Tzarah of a Tzarah is exempt from Yibum? (REBBI
AKIVA EIGER)

(a) The Gemara itself cites an opinion which concurs with Rebbi Akiva Eiger's question and
maintains that no verse is needed to teach that the Tzarah of a Tzarah may not perform Yibum.
The Gemara (13a) asks, "How do we know [that the Tzarah of a Tzarah does not perform Yibum]?
Rav Yehudah says that we learn it from the word 'li'Tzror.' Rav Ashi says that it is logical [and no
verse is needed]." Rav Ashi clearly follows the logic which underlies Rebbi Akiva Eiger's question.
Why, though, does the Gemara there seek a source for the prohibition of Yibum with the Tzarah
of a Tzarah when the Beraisa here (3b) clearly states that the source is the verse "li'Tzror"?
Moreover, what permits Rav Ashi, an Amora, to argue with the Beraisa and suggest a different
source for the prohibition?

The VILNA GA'ON (Hagahos) points out that the text of the Gemara of many Rishonim does not
include the Beraisa's statement about the Tzarah of a Tzarah. According to their Girsa, there clearly
is no question on the Beraisa or on the words of Rav Ashi, since neither one says that a verse is
needed to teach the prohibition of Yibum with the Tzarah of a Tzarah. Rather, the question is on
the view of Rav Yehudah: why does he argue with Rav Ashi and suggest a scriptural source for
the prohibition?

The RITVA (13a) writes that Rav Yehudah agrees with Rav Ashi that no verse is needed to teach
this prohibition. He mentions the verse only as a scriptural support for the logic which prohibits
the Tzarah of a Tzarah (like an "Asmachta"). Rav Ashi merely explains what Rav Yehudah
actually means; he does not argue at all. Hence, Rebbi Akiva Eiger's question poses no difficulty,
even according to Rav Yehudah.

However, many other Rishonim do not agree with the Ritva's approach. Rashi here (3b, DH
li'Tzror, and 2b, DH Kach Tzaras Tzarasah) clearly understands that Rav Yehudah derives the
prohibition from the verse and not from logic.

In addition, TOSFOS (2a, DH Ad Sof) explains that the text of the Beraisa should include the
words about the Tzarah of a Tzarah, and that both Rav Yehudah and Rav Ashi agree that the source
for the prohibition of Yibum with the Tzarah of a Tzarah is the verse of "li'Tzror." The dispute
later (13a) is only whether or not the prohibition of the secondary Tzaros applies ad infinitum ("Ad
Sof ha'Olam"); the prohibition of Yibum with those additional Tzaros is derived from logic (Rav
Ashi) or from a verse (Rav Yehudah). According to Tosfos, Rebbi Akiva Eiger's question applies
to both Rav Yehudah and Rav Ashi. Why do the Amora'im require a verse to teach the prohibition
of Yibum with the Tzarah of a Tzarah?

(b) The verse does not teach that the Tzarah of the Ervah does not fall to Yibum at all and has no
"Zikas Yibum" whatsoever. Rather, it teaches only that the brother may not do Yibum with the
Tzarah, and that she is prohibited to him with a punishment of Kares (8a). Whenever an Isur Kares
stands in the way of performing Yibum, Chalitzah is also prohibited, as the Gemara later (20a)
mentions (see also Rashi 2b, DH v'Eshes Achiv). Hence, the brother may perform neither Yibum
nor Chalitzah with the Tzarah of the Ervah.

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If he is the only surviving brother, there is no Zikah of Yibum whatsoever (for, otherwise, the
Tzarah would never be able to remarry, because she is Zekukah to Yibum but cannot do Yibum or
Chalitzah). Rather, since the brother is unable to perform either act, there is no Zikah and the
woman may remarry.

However, when there are other surviving brothers, perhaps the Zikah takes effect on the entire
household as a whole; once she is Zekukah to some of the brothers, she is also Zekukah to all of
them. One brother -- the one to whom this woman is an Ervah or the Tzarah of an Ervah -- is
unable to remove the Zikah by performing Yibum or Chalitzah. Any of the other brothers,
however, may perform Yibum or Chalitzah and thereby remove the Zikah from the entire
household -- and also remove the prohibition of "Eshes Ach" for all of the brothers. Just as he
removes the Zikah from the other brothers, he also removes the Zikah from the brother who could
not do Yibum. Since the Tzarah of the Ervah was Zekukah to that brother, she will not become
prohibited to him with the Isur of "Eshes Ach." She will be like any other woman who is able to
fall to Yibum more than once (such as when the first brother who married her died childless, and
then the second brother who married her through Yibum died childless, and so on). (In other words,
this woman is considered to be an "Eshes Ach b'Makom Mitzvah," in which case the Isur of "Eshes
Ach" does not stand in the way of doing Yibum.)

Accordingly, the verse is needed to teach that the Tzarah of a Tzarah is prohibited and that there
is no Zikah whatsoever (for the Ervah or for the Tzarah) to the brother who is related to them as
an Ervah.

This differs from the case of "Eshes Achiv she'Lo Hayah b'Olamo." In that case, no verse is needed
to teach that there is no Zikah to the brother who is born after his older brother died. No verse is
needed because the verses of Yibum in the Torah refer only to when the brothers were in the world
together, and not to when one brother was born after the first brother died. It is obvious that the
younger brother is not included in the Zikah of Yibum.

In contrast, in the case of the Tzarah of an Ervah, the verses of Yibum make no mention of any
exclusion of the Tzarah from Yibum. Instead, a different verse ("li'Tzror," which is not in the
Parshah of Yibum) teaches that the Tzarah is excluded from Yibum. Since her exclusion is derived
from a different source, there are grounds to doubt whether the verse of "li'Tzror" teaches that she
is entirely excluded from the Parshah of Yibum (and thus she is excluded from Zikah), or whether
it teaches that although she is included in the Parshah of Yibum, she is not able to perform Yibum
or Chalitzah (but she nevertheless has Zikah for Yibum).

The same explanation may be suggested according to Rebbi (8b). Rebbi maintains that the verse
which teaches that the Tzarah of an Ervah may not do Yibum is in the Parshah of Yibum itself.
Since the verse excludes her from the Mitzvah of Yibum, it clearly excludes her from any Zikah
as well, and thus, according to Rebbi, no other verse is necessary to exempt the Tzarah of a Tzarah
from Yibum.

16
 "YIBUM" FOR A NIDAH

The Beraisa derives from the verse which teaches the prohibition (Azharah) against marrying
"Achos Ishto" (the sister of one's wife) that one is also prohibited from performing Yibum with
the Tzarah of an Ervah, and one who performs Yibum with her is punished with Kares. Just as one
may not perform Yibum with the Ervah of "Achos Ishto" (and doing so carries the punishment of
Kares), so, too, one may not perform Yibum with the Tzarah of "Achos Ishto."

The Gemara says that the Azharah against Yibum with an Ervah or with the Tzarah of an Ervah is
derived through a Binyan Av from the Azharah against Yibum with "Achos Ishto" and her Tzarah.
This Binyan Av also teaches that the prohibition is punishable with Malkus and with Kares.

How, though, can the Gemara derive a punishment through a Binyan Av? There is a rule that "Ein
Onshin Min ha'Din" -- a punishment for a transgression cannot be administered on the basis of an
exegetical derivation of a "Kal v'Chomer" (Makos 5b) or "Binyan Av" (see RAN to Nedarim 4b,
DH Teisi). (MELO HA'RO'IM)

TOSFOS (DH me'Achos Ishah) points out that the Gemara does not rely on the Binyan Av when
it says that the Azharah against Yibum with the other Arayos and their Tzaros is derived from the
Azharah of "Achos Ishto," because there are refutations (Pirchos) which prevent deriving some of
them from the Binyan Av. Rather, the Beraisa means that there is a Hekesh which links all of the
Arayos with each other, as the Gemara later (8a) concludes, and thus all are derived through a
Hekesh from "Achos Ishto." A Hekesh is not subject to the restriction of "Ein Onshin Min ha'Din."

The MELO HA'RO'IM challenges this answer. If there is a Hekesh which compares all of the
Arayos with each other, then why is the prohibition of the Tzarah of an Ervah limited to the fifteen
Arayos mentioned in the Mishnah? The Hekesh should extend the prohibition of Tzarah to the
other six, more severe, forms of Arayos! Indeed, the Gemara later (54b) clearly maintains that the
Hekesh applies to all of the Arayos. Accordingly, any Halachah which applies to the fifteen
Arayos mentioned in the Mishnah should also apply to the six severe Arayos.

Moreover, the Hekesh should teach that Yibum does not apply to a woman who is a Nidah. Since
a Nidah is an Ervah (the transgression of living with a Nidah is punishable with Kares), she should
be included in the Hekesh (as the Gemara itself says later with regard to other laws). Even if there
are reasons to say that a Nidah is more lenient than the other Arayos, "Ein Meshivin Al ha'Hekesh"
-- the Hekesh should apply nevertheless. (For example, TOSFOS (2a, DH v'Achos) writes that the
Isur of Nidah is less severe than the Arayos mentioned in the Mishnah because the Isur of Nidah
is not specific to the husband's brother (the Yavam), but it is a general Isur which applies to every
man in the world. In this sense she cannot be called an Ervah (see also TOSFOS
HA'ROSH there).

RABEINU TAM in SEFER HA'YASHAR (Teshuvos 80:1) writes that the Isur of Nidah is not
called an Ervah because it has no permanence; it passes once a certain number of days has gone
by and an act of Tevilah has been performed. This explains why the Gemara does not derive a
prohibition against performing Yibum with a Nidah through a Binyan Av from Achos Ishto,

17
which is an Ervah. If, however, there is a Hekesh between Nidah and the other Arayos, these
"Pirchos" should not be grounds to exclude Nidah from the Hekesh. Why, then, is a woman who
was a Nidah at the time her husband died obligated to perform Yibum (when she becomes Tahor)?)

The question from the six severe forms of Arayos may be answered as follows. The Gemara
understands from the verse that in a situation of Yibum, a Tzarah of an Ervah is forbidden because
the prohibition of "Eshes Ach" remains and prohibits her from marrying her brother-in-law. This
is learned from the fact that the Torah teaches the prohibition of "Eshes Ach" specifically in a
situation of Yibum. Therefore, in the case of the six severe forms of Arayos -- whom one's brother
may never marry (and thus one will never have an obligation to do Yibum with them), there is
nothing to which to apply the Hekesh. Just as the Tzaros of the fifteen Arayos are not prohibited
when there is no Yibum (for example, when the sister of Shimon's wife was married to an unrelated
man, when that man dies Shimon is permitted to marry that man's other wife, the Tzarah of his
sister-in-law), so, too, the Tzaros of the six severe forms of Arayos are not prohibited in a normal
situation where there is no Yibum.

To answer the question from the case of a Nidah, it may be suggested that the principle of "Ein
Meshivin Al ha'Hekesh" means that one may not ask a question (Pircha) on a Hekesh just because
one item is more lenient or more severe than the other items included in the Hekesh (even though
such a Pircha does remove the item from a Binyan Av or from a Kal v'Chomer). However, if the
Pircha involves not merely a leniency or stringency but a logical argument for why one of the
items should not be included in the Hekesh, then that logical argument is able to remove the item
from the Hekesh and prevent the Halachah from being applied to that item through the Hekesh.

(The SEFER KERISUS, in Beis Midos 2:11, makes such a distinction between a Pircha and a
logical argument with regard to deriving a Halachah through a Gezeirah Shavah. Although a
Hekesh is considered stronger than a Gezeirah Shavah in some matters of Pircha (ibid. 2:14),
the SEFER HA'MIKNAH (to Kidushin 15a, DH Mihu) writes that a logical difference can refute
a Hekesh as well.) In the case of a Nidah, there is a logical argument which challenges the
comparison to the other Arayos, and thus she is removed from the Hekesh. It is not merely a
leniency or stringency which exists in the case of a Nidah; there is an essential difference between
a Nidah and the other Arayos. This difference is the reason why Kidushin takes effect with a Nidah
but not with the other Arayos. Therefore, Nidah is excluded from the Hekesh.

Rabeinu Tam (ibid.) presents a different argument. If the Torah would have intended to include
Nidah among the list of women who exempt their Tzaros from Yibum, it would have written the
word "li'Tzror" in a verse that discusses Nidah, the most lenient of all of the prohibited women (as
she is the only Ervah who becomes permitted after some time passes). The fact that the Torah
writes "li'Tzror" in the verse that discusses "Achos Ishto" implies that Nidah is not to be compared
to the other Arayos as far as this Halachah is concerned.

(Rabeinu Tam's logic in this matter is not clear. Normally, when there is a Hekesh we do not ask
why the Torah reveals a particular law in a particular situation; we compare all of the items in the
Hekesh to each other without asking questions. Perhaps Rabeinu Tam means that in this case,
another Halachah was already derived through a Hekesh to "Achos Ishto" -- the Halachah that
Kidushin cannot take effect with an Ervah (Kidushin 68a). The Torah specifically excludes a Nidah

18
from that Halachah (ibid.). Since one Halachah derived from "Achos Ishto" does not apply to
Nidah, it may be assumed that the other Halachos written in the same verse also do not apply to
Nidah.)

Steinzaltz (OBM) writes:4

As is clear from the Mishna (2a), even though the commandment of yibum (levirate marriage)
overrides the prohibition of a man marrying his sister-in-law, it would not permit him to marry her
if she is an immediate relative who he cannot marry (e.g. his daughter, niece or mother-in-law). In
searching for a source for this halakha, the Gemara quotes a baraita that highlights the
word aleha – “upon her” – which appears in both the list of forbidden relatives (Vayikra 18:18)
and the commandment of yibum (Devarim 25:5). The Torah‘s use of the same word in both places
is understood to teach that even in the presence of a potential mitzvah, the prohibition remains in
place.

It is interesting to note that the Rambam suggests an alternative source for this rule. He points to
the first pasuk that discusses the mitzvah of yibum (Devarim 25:5), which concludes by saying that
the surviving brother should take the widow as his wife, thus fulfilling the commandment of yibum.
The Rambam understands this to mean that the only time a person can perform yibum is if,
theoretically, there was a possibility of his taking her for a wife independently. Therefore, an
immediate relative who the yavam could not possibly marry cannot become his wife
through yibum.

The commentaries have noted that when the Rambam offers textual sources that differ from those
presented by the Gemara, it is not because he disagrees with the Gemara’s source; rather it is
because he believes that the alternative pesukim are simpler to understand.
The Maharshal discusses this point at some length in his famous work of halakhah called Yam shel
Shlomo. There, he points out that in this case the Gemara later on in the perek (see 6a) appears to
reject our Gemara’s source with the argument that there is no real need for a source to prove that
a yavam cannot marry an immediate relative who is forbidden to him.

The co-wife of a woman who is prohibited due to being an ‫ערוה‬is herself now released from the
law of yibum, and from chalitza as well (‫)ערוה צרת‬.5

The lesson, as presented here on 3b, teaches that not only is this woman released from this law,
but any future co-wife will also be released from yibum and chalitza (‫)צרה צרת‬.

4
https://www.ou.org/life/torah/masechet_yevamot_27/
5
https://www.dafdigest.org/masechtos/Yevamos%20003.pdf

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This is fascinating to note, for this exact question is raised on 13a, where it is the subject of a
dispute between Amoraim. Rav Yehuda says that this is derived from the verse (as our Gemara
reports) ‫ לצרר‬,while Rav Ashi teaches that the ‫ צרה צרת‬is known strictly based upon logic. He
argues that if a co-wife of an ‫ ערוה‬is given the same status of the herself, the same argument would
automatically result in the ‫ צרה צרת‬being released, just as the ‫ צרה‬herself.

The question is obvious—how is it that these Amoraim on 13a argue regarding a lesson which is
taught in an explicit Beraisa here on 3b? This is the question of Tosafos 2a. Tosafos explains that
the Amoraim on 13b certainly knew that a co-wife of a ‫ ערוה צרת‬is released due to the Beraisa and
the verse ‫ לצרר‬.

Yet, their discussion revolves about the fact that this phenomenon continues, and
every subsequent co-wife of a woman who herself was a co-wife is also permitted. Rav Yehuda
reports that this extended lesson is also learned from the verse ‫ לצרר‬itself.

Rav Ashi understands that the ‫ צרה צרת‬is the only one derived from the verse itself, while all
subsequent cowives are released based upon the logic. Rashi, on 13b, explains that the discussion
between Rav Yehuda and Rav Ashi is in reference to the ‫ צרה צרת‬herself. This is problematic, as
we stated earlier.
However, the Vilna Gaon here removes this lesson of the ‫ צרה צרת‬from the Bersaisa altogether.
His text leaves us only with the law of ‫ ערוה צרת‬,with no hint of ‫ צרה צרת‬.This leaves that issue
unresolved, and this is what Rav Yehuda and Rav Ashi discuss later on 13b.

Rabbi Akiva Eiger on the Mishna questions why a verse would be needed to teach the law to
release a ‫ צרה צרת‬. The very fact that a co-wife of an ‫ ערוה‬is released from yibum and chalitza
indicates that she is the same as the ‫ ערוה‬.This would immediately lead us to realize that a ‫צרה צרת‬
should also be the same. She is the same as the, so why should we need an additional verse to teach
this lesson? 6

The reason yibum is not done with one of the arayos is that the Torah used the word ‫עליה‬...the
reason one could think that yibum would override the prohibition is because we say that positive
mitzvos override prohibitions

There is a debate amongst Poskim (1) whether chalitza is an obligation or is it merely the step a
woman must take if she wishes to get remarried. For example, if the yavam and yevama are elderly
and have no interest in getting married to one another or anyone else is it permitted for them to
forgo the chalitza ceremony or is there a mitzvah for chalitza to be performed regardless whether
the yevama intends to remarry?

6
See Kehilas Yaakov, of the Steipler, #3, for his resolution to this question.

20
Some Poskim (2) infer from Rashi’s comments to the Gemara in Sanhedrin3 that chalitza is merely
a means to allow the yevama to remarry, and in the event that she does not intend on marrying,
chalitza does not have to be performed. The Gemara there states that chalitza is not done for the
wife of the king. Rashi4 explains that the reason chalitza is not done is that she is prohibited to
remarry. This implies that although chalitza is a mitzvah, nonetheless, it is not an obligatory
mitzvah which must be fulfilled; rather it is a mitzvah that is performed to allow the yevama to
remarry.

Other Poskim (5) disagree and maintain that chalitza is an obligation and must be performed even
if the yevama does not intend to remarry. Concerning Rashi’s comment, it could be explained that
Rashi is teaching that whenever the mitzvah of yibum could be fulfilled there is a mitzvah to
perform chalitza but in the event the mitzvah of yibum cannot be fulfilled, e.g. the wife of the king,
there is no mitzvah of chalitza either.

Rav Mordechai Benet (6) ruled that chalitza is obligatory even when the yevama does not intend
to remarry and cites our Gemara as one of his proofs. The Gemara comments that were it not for
the exposition of the word ‫ עליה‬one would have thought that the mitzvah of yibum could override
the prohibition against marrying a sister-in-law because of the principle that positive commands
override prohibitions.
Based on a Gemara in Kesubos (7), Rav Benet notes that only obligatory mitzvos have the strength
to override prohibitions but mitzvos that are optional cannot override prohibitions. Consequently,
the entire premise of the Gemara assumes that the mitzvah of chalitza is obligatory and thus must
be performed even if the yevama has no intention on remarrying.

During World War II, Rav Aharon Kotler’s Yeshiva, along with many others, relocated to Vilna.
For a short while, the capital of Lithuania served as an independent haven for Polish Jews fleeing
the Nazi onslaught.

During this period, Rav Aharon, zt”l, engaged another refugee, Rav Shach, zt”l, to deliver shiurim
to his students. Soon afterward, the Soviets overran Lithuania and the Yeshiva moved again to
Yanova. Not much time passed before a shocking telegram arrived. Rav Chaim Ozer Grodzensky,
zt”l, the Gadol HaDor, had passed away.

21
The Yeshiva hired a truck to drive the students to Vilna so that they could attend the funeral, and
when they returned, Rav Aharon asked Rav Shach to give a shmuess. Rav Shach began with a
rhetorical question. “What is worse—one who transgresses a prohibition, or one who disregards a
positive command?” After a pregnant pause, Rav Shach continued, “The answer is obvious.
Although we find in Yevamos 3b that a positive command supersedes a prohibition, it is still more
serious to violate a prohibition. How do we know that this is so? We see in the fact that a person
who neglected a mitzvas asei can immediately repent, while atonement for an actual prohibition
demands both repentance and Yom Kippur. (Yoma 86a) Why, then, should the punishment for a
prohibition be thirty-nine lashes, yet the person who refuses to fulfill an asei is beaten until he
fulfills it or dies?

Rav Shach went on, “The answer is straightforward: such a person is only given one lash. If he
still refuses to act, he gets another. This goes on and on until he either fulfills the mitzvah or dies.
Rav Shach thundered, “Rabbosai, we are that person, and the mitzvah we have neglected is
teshuvah! The first ‘lash’ was the rise of the evil ruler of Germany, ‫ ! שמו ימח‬When we didn’t wake
up, they delivered the second potch and declared World War II.

When we were stubborn and refused to change our ways, the Russians conquered Lithuania. Now
we have been given yet another potch. Our beloved Rav Chaim Ozer, the Rabban Shel Yisroel,
has been taken from us. What else will it take before we finally fulfill the asei of teshuvah!”

Rabbi Elliot Goldberg writes:7

Yesterday’s head-spinning description of the 15 categories of womenwhose co-wives (and the co-
wives of their co-wives) are exempt from the mitzvot of halitzah and yibbum made me reach for a
hot cup of tea. If you are learning Yevamot for the first time, you too may want to stock up on
your favorite relaxing beverage. (I find it’s also helpful to have a commentary with diagrams. My
go-to is the ArtScroll Mishnah Series.)

Yibbum (or levirate marriage), as we saw yesterday, is the obligation of a brother to marry his
deceased brother’s wife if no children were born of the union. Halitzah is the ritual performed if
the brother refuses. After investigating the logic behind the 15 categories listed in the mishnah, the
Gemara on today’s daf asks a seemingly prosaic question.

And why does the mishnah specifically teach “exempt from halitzah and from yibbum”? Let it
teach “from yibbum and from halitzah” instead!

This is a great talmudic question for several reasons. First, yibbum is the primary obligation, so it
deserves first mention. Second, it appears first in the Torah (see Deuteronomy 25:5-10), so it
makes sense for the mishnah to follow that order. And third, the Gemara will spend far more time
discussing yibbum than halitzah, so it would seem fitting for it to have first mention in the opening
mishnah.

7
Myjewishlearning.com

22
The Gemara’s response?

This mishnah is in accordance with the opinion of Abba Shaul, who said: The mitzvah of
halitzah takes precedence over the mitzvah of yibbum.

While the Torah provides halitzah as an option for a man who does not want to wed his brother’s
widow, Abba Shaul believes that halitzah is actually the preferred option. Why? As we’ll learn on
Yevamot 39 (spoiler alert):

Abba Shaul says: One who consummates a levirate marriage with his yevama for the sake of
her beauty, or for the sake of marital relations, or for the sake of another matter, it is
considered as though he encountered a forbidden relation, and I am inclined to view the
offspring as a mamzer.

It’s generally understood that the purpose of yibbum is the continuation of a deceased brother’s
family line. Abba Shaul suggests that if the brother pursues yibbum for ulterior motives, the
resulting offspring are illegitimate. Since illegitimate children are no small matter — according to
Jewish law a mamzer can marry only another mamzer — Abba Shaul considers halitzah the
preferable option. And his thinking is reflected in our mishnah.

Over the next few months, we’ll take a deep dive into the particulars of the biblical mitzvah of
levirate marriage. Keeping the details straight will be important to making sense of the text. So too
will humanizing the people who find themselves in a position to make use of these rituals. Those
to whom the mitzvot of halitzah and yibbum fall have suffered the loss of a husband or brother,
one who died before he could have children of his own. It is astute of Abba Shaul to take human
feelings and motivations into account when determining how to best put this into practice. Much
of the time, Tractate Yevamot is deaf to the emotional dimension of these issues. And that too
sends me running for a cup of tea.

Rabbi Johnny Solomon writes:8

Having been taught that if a co-wife of a woman whose husband has died without children is
forbidden to marry her prospective Yavam (levir) that she is then exempt from Yibbum (levirate
marriage) and Halitzah (the ceremony performed to reject a prospective Yavam), our daf
(Yevamot 3b) cites a Beraita which teaches us the biblical verses that explain how we know this
rule - and in doing so, also teaches us a major lesson about Yibbum specifically, and marriage in
general.

The Beraita begins by citing a verse from the list of forbidden relationships in Vayikra 18:18 which
states: ‫‘ – ְוִאָשּׁה ֶאל ֲאֹחָתהּ ל ֹא ִתָקּח ִלְצֹרר ְלַגלּוֹת ֶﬠ ְרָוָתהּ ָﬠֶליָה ְבַּחֶיּיָה‬Do not marry a woman to be a rival to
her sister [to whom you are already married, thereby] revealing the nakedness UPON HER
while her sister is alive’. What this tells us is that a man may not be married to two sisters at the
same time. It then cites a verse from Devarim 25:5 speaking about the law of Yibbum which states:
‫ִכּי ֵיְשׁבוּ ַאִחים ַיְחָדּו וֵּמת ַאַחד ֵמֶהם וֵּבן ֵאין לוֹ ל ֹא ִתְהֶיה ֵאֶשׁת ַהֵמּת ַהחוָּצה ְלִאישׁ ָזר ְיָבָמהּ ָיב ֹא ָﬠֶליָה וְּלָקָחהּ לוֹ ְלִאָשּׁה ְו ִיְבָּמהּ‬

8
www.rabbijohnnysolomon.com

23
– ‘when brothers live together, and one of them dies without a son, his widow shall not be
married to a stranger outsider the family. [Instead], her Yavam (i.e. husband’s brother) shall
come UPON HER and take her in marriage, fulfilling the duty of Yibbum’, and based on the
fact that both verses use of the word ‫‘ – ָﬠֶליָה‬upon her’ – we come to learn that the law of Yibbum
does not override the prohibition of a man marrying two sisters.

And moreover, by Vayikra 18:18 employing the word ‫ִלְצֹרר‬, meaning ‘to be a rival’, we understand
that the word sister not only speaks about biological sisters, but also the co-wife of a woman who
is considered to be like a sister to her.

Yet it should also be noted that the word ‫‘ – ָﬠֶליָה‬upon her’ – is an indelicate expression, which
suggests that the realm of Yibbum is fraught with moral and ethical challenges (nb. on this point
see the Meshech Chochmah on Devarim 25:5). In fact, we are taught by Abba Shaul (see Yevamot
39b, as briefly referenced in Yevamot 3a) that the only instance where Yibbum is not considered
to be a transgression of a forbidden relationship is where Yibbum is performed ‫( לשם שמים‬for the
sake of heaven) - which is why Abba Shaul (and many later authorities) rules that Halitzah should
be the preferred path over Yibbum in almost every case.

Overall, what we see from here is that while there are ways in which a regular marriage can be
compromised by inappropriate behaviour, the Torah – by using the word ‫ ָﬠֶליָה‬in both verses –
deliberately emphasizes the overlap between Yibbum and forbidden relationships, and in doing so,
offers us a stern warning that while Yibbum may be permitted, it is a risky moral business and
should only even be considered (in times and places where permitted) if performed for the right
reasons.

24
Rav Chaim Navon writes:9

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

9
https://www.etzion.org.il/en/talmud/seder-nashim/massekhet-yevamot/mitzva-yibbum-and-mitzva-chalitza

25
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

26
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

27
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:

28
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.

Yibum Or Chalitzah

Raphael Grunfeld writes:10

Actions are often more powerful than words. Through the mitzvah of yibum, the Yizkor prayer can
be translated into action. If a man dies childless, the Torah commands the deceased’s brother to
marry his brother’s widow in order to perpetuate his brother’s memory. This marriage is known

10
https://www.jewishpress.com/judaism/halacha-hashkafa/yibum-or-chalitzah/2014/10/31/

29
as yibum. The Torah is so concerned that the deceased should be remembered that in these sad
circumstances it permits the otherwise forbidden union between a man and his sister-in-law.

Maintaining its sensitivity to all concerned in these circumstances, the Torah does not
compel yibum. If either party to the proposed yibum marriage is unwilling, the Torah mandates a
special form of divorce ceremony known as chalitzah. Chalitzah severs the marital attachment that
the death of the childless brother automatically created between the brother-in-law and the widow.
In the same way as a married woman is precluded from marrying another man without a get, so
too is this widow prohibited from marrying another man without chalitzah. In the absence of
a get or chalitzah, the widow is trapped in the miserable position of an agunah.

The chalitzah ceremony takes place before a Jewish court of law. Both widow and brother tell the
judges that the brother does not want to enter into the yibum marriage. The widow then approaches
the brother, takes off his right shoe, spits toward his face and declares “This is what shall be done
to the man who will not build up a family for his brother.”

What is preferable today, yibum or chalitzah? This question is discussed at length in the Talmud
and among the Rishonim. According to the opinion of Abba Shaul, chalitzah is preferable
to yibum. Unless the brother’s motive in entering into the yibum marriage is purely and simply to
rebuild his brother’s family, the underlying prohibition of marrying one’s sister-in-law resurfaces.
And since today most people are unable to exclude other motives, chalitzah should be performed
rather than yibum. The rabbis disagree. According to them it is the action and not the motive that
counts. Accordingly, they are of the opinion that even today, yibum is preferable.

Rishonim of Sephardi origin, among them the Rambam and the Rif, agree with the rabbis that even
today, yibum is preferable to chalitzah. Rishonim of Ashkenazi origin, among
them Rabbeinu Tam, Rashi, and the Smag, agree with Abba Shaul that today, chalitzah is

30
preferable to yibum. Some Sephardi communities practice yibum today, whereas Ashkenazi
communities follow the opinion of Abba Shaul and perform chalitzah.

Nevertheless, there are rare situations in which even the Ashkenazi poskim agree
that yibum should be performed. Such situations arise where the ceremony of chalitzah, as
described above, cannot be performed. This can happen where one of the parties is unable to
articulate to the judge the required statement that the surviving brother does not want yibum or
where the surviving brother has a crippled right leg or no right leg. The impossible result of these
circumstances is that unless yibum can be performed, the widow will remain an agunah and be
unable to ever remarry. Accordingly, in these circumstances many
Ashkenazi poskim permit yibum.

Since the primary purpose of yibum in these circumstances is to release the widow from
the yibum attachment, some poskim permit the brother to divorce the widow even against her will,
immediately following yibum. Yet other poskim permit the brother to enter into
the yibum marriage in these circumstances even if he already has a wife and will now have two.
They explain that theban of Rabbeinu Gershom against divorcing one’s wife contrary to her will
or against living with two wives is overridden to avoid an agunah situation. Some poskim require
the brother to immediately divorce the widow after yibum so as not to perpetuate the situation of
living with two wives.

31
 Levirate - Yibum
Rabbi Yoel Lieberman writes:11

When was yibum stopped from ashkenazi tradition and why? Until when it was practiced among
the sephardic jews? If a brother in law marries wants to marry his widowed sister in law, because
he loves her and not for the sake of "perpetuating the name of the dead", is such a marriage
acceptable by halacha?

The Mishna in Bechorot 13a (See also Ketuvot 64a) discusses the preference of Yibum or Chalitza
and already in their time brought up the issue of intentions "leshem Shamayim" or ulterior motives
for Yibum in which case Chalitza should be preferrred. The reason for forbidding Yibum other
than the intention dictated by the Torah is because it removes the special permission of marrying
a brother's wife which under normal circumstances would be considered "erva" and be forbidden.
(See Yebamoth 39b)

11
https://www.yeshiva.co/rabbi/662

32
The issue of preference of Yibum or Chalitza is a lengthy debate among the Geonim and Rishonim.
(See Talmudic Encyclopedia Vol. 21 under entry of Yibum for a summary. )

The Shulchan Aruch (Even Haezer 165: a) follows the opinion of the Rif and Rambam who say
thar Yibum is preferred over Chalitza while the Rema seems to say otherwise.

The Aruch Hashulchan (Even Ha'ezer 165:15 ) says that the minhag among Ashkenzim has been
to prefer Chalitza over Yibum while the Sefardi custom has been the opposite. The Chief Rabbinate
of Israel , under the leadership of Rabbi Hertzog zt"l and Rav Uziel in 1950, made an ordinance
of uniformity for Askenzim and Sfardim that chalitza is to be preferred.

Royal 6 E VI f. 204v Booz (Boaz) Description: Detail of a historiated initial

‘B'(ooz) of the marriage of Boaz and Ruth. Origin: England, S. E. (London)

33
 Megillat Ruth and Levirate Marriage

Dr. Yael Ziegler writes:12

The most pressing halakhic question lurking in the background of Megillat Ruth is that
regarding the relationship between marriage to Ruth and the mitzvot of levirate marriage (yibbum)
and its alternative, chalitza.[1]

Rabbinic sources do not appear to regard the narrative in Megillat Ruth as a fulfillment of
the mitzva of yibbum. The gemara states quite simply: “Boaz was a widower who married a
widow.”[2] Ibn Ezra also makes this point, declaring that, “Geula is not yibbum.”[3] After all,
neither Boaz nor the go’el was a brother to Machlon, Ruth’s deceased husband. Therefore,
according to the laws of yibbum (Devarim 25:5), this cannot be the fulfillment of that mitzva. More
significantly, nowhere does the text ever state that this narrative involves a fulfillment of the mitzva
of yibbum.

Nevertheless, linguistic and thematic allusions to this mitzva abound

throughout Megillat Ruth. Consider the following linguistic connections:

• In Ruth 3:13, Boaz notes that the go’el may not desire to marry Ruth (“im lo yachpotz”).
This echoes the description of the yavam who refuses to perform the marriage and
chooses instead the alternate option of chalitza (“ve-im lo yachpotz ha-
ish…”) (Devarim 25:7).

• Marriage to Ruth is twice described as having the goal of establishing the name of the
deceased (“le-hakim shem ha-met”) (Ruth 4:5, 10). These statements
evoke Devarim 25:4-5 (“yakum al shem achiv ha-met,” “le-hakim le-achiv shem bi-
Yisrael”).

12
https://torah.etzion.org.il/en/levirate-marriage-megillat-ruth

34
 • Boaz pronounces that the result of the marriage is that the name of the dead shall not be
cut off from his brothers (“ve-lo yikaret shem ha-met mei’im echav”) (Ruth 4:10). This
statement recalls Devarim 25:6, in which the stated purpose of yibbum is that the name
of the deceased not be erased from Israel (“ve-lo yimacheh shemo bi-Yisrael”).

• The word “yavam” appears twice in the book of Ruth (Ruth 1:15).[4] This is especially
significant because it appears only in two other places in the entire Tanakh: the story of
Yehuda and his sons (Bereishit 38:8) and the actual mitzva of yibbum in Devarim 25.

• The phrase “eshet ha-met” (“wife of the deceased”) appears only in Devarim 25:5 and
in Ruth 4:5.

• The phrase “kara shem be-Yisrael” appears only in Devarim 25:10 and in Ruth 4:14.

• The go’el’s panicked words at the prospect of marrying Ruth, “Lest I destroy (ashchit) my
own inheritance,” bring to mind Onan’s resistance to fulfilling the levirate marriage
commanded by Yehuda, his father. His defiance results in his attempt to obstruct the
birth of an heir: “And he destroyed it (ve-shichet) on the ground” (Bereishit 38:9).

A link is also suggested by some compelling thematic similarities. The ascent toward the elders
in the gate (Ruth 4:1-2), compounded by the role of the shoe in relieving the go’el of his
duty (Ruth 4:8), recall the ceremony of chalitza (Devarim 25:7,9). Moreover, in Ruth 4:10,
Machlon is finally named as Ruth’s husband, thereby suggesting that Ruth’s deceased husband is
a factor in this ceremony.[5]

Indeed, the mitzva of yibbum reverberates strongly throughout the book of Ruth. This
generated the position of the Karaites, who maintained that this is evidence that the mitzva
of yibbum is to be performed by a relative and not by a literal brother. Ibn Ezra presents the Karaite
position (in order to reject it):

35
 The Karaites waged a campaign against the fulfillment of levirate marriage by the brother
of the deceased, and adduced Megillat Ruth as evidence for their position.[6] The problem of a
brother performing the mitzva of yibbum and marrying his deceased brother’s wife is well-known;
after all, one’s brother’s wife is explicitly forbidden to him (Vayikra 18:16, 20:21).[7] The Karaites
resolve the problem by understanding the word “ach” to mean a kinsman, a relative who is not
necessarily a brother.[8]

Nevertheless, there is little doubt that a traditional reading of Megillat Ruth cannot regard
the marriage to Ruth as the fulfillment of yibbum.[9] This is not merely because the marriage is not
consummated by an actual brother. None of the particulars of
the mitzvot of yibbum and chalitza are properly observed in the Megilla.[10]

The go’el’s shoe is not removed by Ruth (the wife of the deceased). In fact, it is not even
clear whose shoe is actually removed in Ruth 4:10.[11] Ruth does not approach the elders at the
gate, does not proclaim that the go’el has refused to perform the levirate marriage, and does not
spit in front of him.[12] It is not even clear that Ruth is present at the ceremony.[13]

One intriguing textual piece of evidence is the verse that carefully explains the purpose of
the shoe:

36
This verse, which explains that the shoe is employed in certain types of legal transactions, without
mentioning chalitza, seems designed to quell the lingering suspicion that behind the ceremony
lurks the biblical act of chalitza.

Other clues that Megillat Ruth does not contain an act of yibbum emerge from the behavior
of some of the key characters in the narrative. Boaz’s praise of Ruth that she did not seek a younger
man “whether poor or rich” (Ruth 3:10) suggests that Ruth was free to choose her own husband.
Had the requirement of yibbum been present, Ruth would have been obliged to either
accept yibbum or undergo chalitza with the levir before seeking a husband. Similar confirmation
may be adduced from Naomi’s behavior. If there is a requirement of yibbum as a result of the death
of Naomi’s sons, then how could Naomi send her daughters-in-law back to Moav to marry?

Someone who is meant to perform yibbum has the status of a married woman, and she
cannot marry until she performs the chalitza ceremony with a brother of the deceased. Moreover,
if there is a compulsory mitzva of yibbum, it is unlikely that Naomi would have sent Ruth in a
surreptitious manner to seduce Boaz. She could have openly demanded yibbum as a legal
imperative. The go’el’s response may also be taken as evidence. Boaz’s announcement that
the go’el is required to marry Ruth takes the go’el completely by surprise. Is it possible that
the go’el would have responded in this manner if he had an obligation of yibbum? Finally, several
times, the narrative links the product of the new union to Boaz, rather than to the deceased. The
witnesses bless Boaz that God will give him a child from Ruth: “From the seed which God shall
give you from this young woman” (Ruth 4:12). Furthermore, the genealogy in Ruth 4:21 traces the
dynasty of Peretz through Boaz and Oved, omitting Machlon completely.

We could, of course, claim that one of the above characters is ignorant of the obligation,
or offer an alternative explanation to account for some of the behaviors mentioned above.
However, taken together, the picture that emerges suggests compellingly that marriage to Ruth is
not the fulfillment of the mitzva of yibbum. It is, however, certainly yibbum-like, and it shares
many of the objectives of yibbum. Megillat Ruth draws heavily from the mitzva of yibbum in order
to emphasize and draw attention to their similarities. Nevertheless, based on the overwhelming
evidence, we must conclude that Ruth’s marriage is most certainly not yibbum.

The Purpose of Levirate Marriage

37
 Levirate marriage serves an important function in society – it perpetuates a man whose
childless passing threatens his posterity and his name. It also protects the widowed, childless
woman, whose prospects for marriage in ancient societies are bleak. It is not surprising that
Ancient Near Eastern law codes record a similar custom:

In his comment on the story of Yehuda’s sons, the Ramban recognizes that yibbum existed
prior to the giving of the Torah (namely, in ancient society).

He deduces from the story of Yehuda and Tamar that this practice was formerly
consummated by relatives of the deceased other than the brother:[15]

With this background, Ramban explains the events of Megillat Ruth:

38
Ramban’s explanation accounts for the use of the word geula, which appears frequently
in Megillat Ruth. According to Ramban, this word alludes to an ancient custom which is yibbum-
like both in terms of its origin and its objectives. We will shortly return to the Ramban’s idea.

Chessed and the Levirate Marriage

Why does Megillat Ruth draw from the mitzva of yibbum? In what way does this mitzva
provide an ideological backdrop to the events of the Megilla?

Yibbum appears to be a particularly difficult mitzva to discharge, as evidenced by the

Torah’s providing an escape clause. Even though the Torah conveys that yibbum is the preferred
option by creating a humiliating ceremony for one who opts out of his obligation, an alternative
course of action (chalitza) is built into the legal system.[18] Moreover, in both biblical narratives
that have a yibbum or yibbum-like scenario, there is fierce resistance. Onan prefers to spill his seed
rather than to give it to his deceased brother’s wife, while the go’el’s panicked refusal illustrates
his inclination to relinquish the land rather than marry Ruth.

The difficulty with this mitzva may be explained in several ways. One is that which we
noted above: yibbum involves the violation of another biblical command.[19] This may have been
enough to have caused instinctive recoil from it, in spite of the explicit biblical law that overrides
the prohibition. Additionally, as noted in the previous shiur, yibbum is difficult because it is not
an economically advantageous decision and may even involve a financial loss.
Finally, yibbum requires that man overcome the baser part of human nature, that which induces
man to desire the erasure of his brother, the instinct for fratricide.

Nevertheless, there is little doubt that the Bible frowns on chalitza, even if it is
allowed.[20] One who refuses to discharge the duty towards his sister-in-law is publically called to
account. He appears before the elders of the city (presumably at the gate), who speak to him. If he
persists in his refusal, he must pronounce this publically, at which point his sister-in-law removes

39
his shoe, spits in front of him,[21] and says, “So shall be done to the man who does not build his
brother’s house!” At the conclusion of the ceremony his name is called in Israel: “The House of
the One who Removed His Shoe,” an ignominious name indeed. This entire ceremony seems
designed to shame one who refuses yibbum. The public, degrading ceremony, as well as the words
hurled at the erstwhile levir, act both as potential deterrents and strong expressions of censure.

Yibbum and its derivative, the yibbum-like custom of marrying a close relative (geula), are
both commendable and challenging tasks. These acts require a sense of moral obligation toward
one’s brother, as well as the willingness to do chessed that is unrequited, kindness from which the
benefactor has nothing to gain. Boaz’s unwavering willingness to perform this act illustrates his
selfless willingness to help another. The extraordinary nature of Boaz’s act may be measured by
noting the go’el’s fearful reaction to the possibility of marrying Ruth:

We have offered several reasons that this sort of marriage is difficult. Nevertheless, the key
to understanding the go’el may lie in the words, “Lest I will destroy my inheritance.” What does
he mean? One possibility is that he is overcome by his fear of the religious and social consequences
of marrying a Moavite. Note that Boaz explicitly refers to Ruth as a Moavite prior to the go’el’s
reaction (Ruth 4:5). The go’el may be fearful that a marriage to a Moavite would cast a blight upon
his family purity, particularly if he were to have children with Ruth.[22]

A second possibility is that the go’el means to say that this proposal has potentially
disastrous economic consequences. Ibn Ezra suggests that this go’el has a large estate already,
perhaps meaning that the go’el feels that he does not have the means to care for a combined estate.
If this is the go’el’s intent, this seems a flimsy excuse, given that he had previously so eagerly
agreed to assume responsibility for the field. That agreement, of course, was before he knew that
marriage to Ruth was linked to the acquisition of the field. Once the go’el assumes responsibility
for the welfare of Ruth, all children born to them, and perhaps Naomi as well, the expense may
truly have seemed prohibitive.[23]

40
 Ibn Ezra raises another possible explanation to explain the go’el’s intent. He notes that
the go’el may be concerned about his wife’s reaction to this marriage. This approach is also found
in the Targum:

Whatever the reasons the go’el has for refusing to marry Ruth, be they social, economic,
religious, or some combination of the above, the go’el’s refusal seems to emerge from his regard
for his own needs, rather than the needs of Ruth or the deceased Elimelekh. The Malbim focuses
on the go’el’s use of the word “for myself (li):”

The go’el’s public rejection could have been disastrous for Ruth. Until this moment, the
only public statement with regard to Ruth has been Boaz’s sweeping endorsement of her actions
in Ruth 2:11-12. The effect of that speech upon the townspeople likely meant significant
improvement of Ruth’s social status. However, the act of marrying Ruth is far more personal than
merely blessing her. The go’el’s distraught, public refusal to marry Ruth can profoundly affect her
social position and future prospects.

Boaz makes a different decision than the go’el. Just as Orpah’s normative behavior
highlighted Ruth’s extraordinary nature, the go’el’s self-centered concerns act as a foil for the
reader to apprehend Boaz’s remarkable selflessness. In contrast to the go’el, Boaz’s noble decision
to perform this yibbum-like act and marry Ruth stems from a deep sense of responsibility.[24] This
is the idea underlying the yibbum-like nature of Boaz’s marriage to Ruth. It highlights Boaz’s
altruistic behavior when faced with this difficult task.

Boaz’s remarkable selflessness mirrors Ruth’s selflessness. Like Ruth, Boaz is willing to
pay a high price, sacrificing his reputation, and perhaps his economic situation, to perform the

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requisite kindness for the wife of his deceased kinsman. As noted in our very first shiur, this union
of two uncommonly altruistic and generous individuals is designed to produce a dynasty of kings
devoted to their constituents, without regard for their own personal needs.

[1]
Devarim 25:5-10 presents the two options of yibbum and chalitza.
[2]
Ketuvot 7a.
[3]
Ibn Ezra, Ruth 2:20. Following this succinct comment, the Ibn Ezra adds, “But it is another way.” While this comment is a bit

obscure, presumably Ibn Ezra intends to suggest that geula is another means of achieving similar objectives to yibbum.
[4]
Ibn Ezra (Devarim 25:5) notes that the word “yavam” does not appear as a verb in this narrative (and certainly not to describe

the act of marriage to Ruth), but rather as a reference to Orpah. He regards this as further evidence that, unlike the story of Onan

and Tamar (where the word appears as a verb), Ruth’s marriage is not a fulfillment of the mitzva of yibbum.
[5]
Until this moment, the text did not specify whether Ruth’s husband was Machlon or Khilyon. Moreover, Boaz previously seems

concerned only with Elimelekh (Ruth 4:3), rather than with the actual husband of Ruth.
[6]
This view was propounded by the eighth-century founder of the Karaite movement, Anan ben David, in his book, Sefer Ha-

Mitzvot.
[7]
Chazal are, of course, attentive to this problem. See e.g. Yerushalmi Nedarim 3:2; Sifrei, Devarim 133; Mechilta De-

Rav Yishmael, Yitro 7.

[8]
This is undoubtedly one common usage for this word in Tanakh. See e.g. Bereishit 13:8,

29:12; Bamidbar 16:10; Shemot 4:18; Devarim 15:12. See also Brown, Driver, and Briggs, A Hebrew and English Lexicon of the

Old Testament (1951), p. 26.

[9]
An intriguing passage in the Targum of Ruth 4:5 may imply that this was indeed a form of yibbum. The passage reads: “And

Boaz said, ‘On the day that you purchase the portion from the hands of Naomi and from the hands of Ruth the Moavite, the wife

of the deceased, you are obligated to redeem and you must do yibbum with her (le-yabama) and take her as a wife in order to

establish the name of the deceased upon his inheritance.” Nevertheless, this seems to be an anomalous position.
[10]
See the Abravanel’s twentieth question on Devarim 25 and his answer there.
[11]
We will examine this question in an upcoming shiur.
[12]
In his Antiquities of the Jews (Book V, Chapter IX), Josephus adjusts the ceremony in Megillat Ruth so as to reflect

the yibbum ceremony. The following verse illustrates Josephus’ intent: “So Boaz called the senate to witness, and bid the woman

to loose his shoe and spit in his face, according to the law.”
[13]
Ruth does not have any role at the ceremony. Nevertheless, the witnesses refer to her as “ha-na’ara ha-zot,” “this young

woman.” The word “zot” or “zeh” often designates someone or something that is present, often by pointing a finger at the subject.

See e.g. Rashi, Shemot 12:2.

[14]
See also Hittite Law 193, which stipulates that the responsibility to marry the widow of the deceased devolves first on his

brother, then on his father, and finally on his paternal nephew. One of the Nuzi tablets records a man’s acquisition of a bride for

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his son with the stipulation that if his son dies, the woman should be given to another son. This seems to be another indication of

levirate marriage in Ancient Near Eastern culture. For more information on this topic, see Millar Burrows, “The Ancient Oriental

Background of Hebrew Levirate Marriages,” Bulletin of the American Schools of Oriental Research (1940), pp. 2-15.
[15]
This is, of course, because Tamar’s plan appears to involve a form of yibbum with her father-in-law Yehuda.
[16]
This is most likely an allusion to the kabbalistic idea of gilgul neshamot (transmigration of souls).
[17]
Although the Ramban here does not use his common expression, “al derekh ha-emet,” when the Ramban uses the

expression, “ve-hamaskil yavin” (especially when it follows his allusion to some secret), he is generally referring to a kabbalistic

idea. In this case, it seems that he is referring to the kabbalistic assumption that the mitzva of yibbum is related to the idea of

reincarnation. See also Rabbeinu Bechayei, Devarim 25:6; Zohar, Mishpatim 480; Shelah (R. Yeshayahu Halevi Horovitz), end

of Ki Teitzei; Malbim, Ruth 3:4; 4:14, 15. The Zohar in Parashat Vayeshev develops at length the importance of bearing children

and the consequences of dying childless. In explaining the impact of yibbum, which permits the soul of the deceased to be

perpetuated, the Zohar explicitly references the marriage of Ruth and Boaz.
[18]
While yibbum is a common ancient practice, chalitza seems to be an innovation of the Torah. Not only is nothing like it known

from Ancient Near Eastern society, it seems that Yehuda was also unaware of the possibility of chalitza.
[19]
This idea cannot explain either of the narratives mentioned above. Onan’s resistance occurs prior to the biblical law and

the go’el does not seem to be a forbidden relation (although he may perceive Ruth’s Moavite background to be similarly

problematic). In any case, I am searching for general reasons that yibbum is considered to be a difficult mitzva, one which explains

the need for chalitza.

[20]
This attitude underwent a change during rabbinic times. Rabbinic sources acknowledge that originally the commandment

of yibbum took precedence over the commandment of chalitza (e.g. Bekhorot 1:7; Yevamot 39b; Ketuvot 64a). Nevertheless, these

same sources explain that because it is no longer certain that one’s intent is to properly fulfill the commandment, the precept

of chalitza is now preferable to that of yibbum. See especially Abba Shaul’s opinion in the above-cited gemarot (and

see Yevamot 3a). This has long been the accepted ruling in the Ashkenazi world, though in the Sefaradi world yibbum was often

practiced in previous generations.

[21]
For spitting as an expression of contempt, see Bamidbar 12:14; Yeshayahu 50:6; Iyov 30:10.
[22]
Ruth Rabba 7:7, 10; Rashi, Ruth 4:6.
[23]
Robert L. Hubbard, The Book of Ruth (1988), p. 245; Edward F. Campbell Jr., Ruth (Anchor Bible, 1975), p. 159.
[24]
We have noted several times that Boaz marries Ruth due to his sense of responsibility. For more on this idea, see R. Yaakov

Medan, Hope from the Depths: A Study in Megillat Ruth [Heb.] (2007), p. 89.

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 A Writ of Release from Levirate Marriage (Shtar Halitzah) in 1807
Charleston

Jonathan D. Sarna and Dvora E. Weisberg write:13

13
https://www.brandeis.edu/hornstein/sarna/americanjewishcultureandscholarship/awritofrelease.pdf

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A Woman Who Left Judaism and Returned

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R. Gidon Rothstein writes:14

22 Kislev: Noda BiYehuda on Yibum for a Woman Who Left Judaism and
Returned
We assume, mostly correctly, that the 19th century was when a largely traditional community, in
which almost all Jews identified with the observant community, shifted to one where many or most
were no longer observant. But the winds of change began brewing in the 18th century (Moses
Mendelssohn, an early figure of the Jewish Enlightenment, died in 1786), and R. Yehezkel Landau,
in Noda BiYehuda Tinyana Even HaEzer 150, shows us that by 22 Kislev 5546 (1785) a Jew who
had left and then returned returned raised complicated issues.

This was a woman who left observance (he uses the Hebrew word hemirah, which implies that she
took on another religion, but it’s not clarified in the responsum), then her husband passed away.
She married a non-Jew, lived with him for twenty years, then decided to return to Judaism. She
moved far away to do so, and there married another man.
At that point, married to a Jew, she remembered her deceased first husband had a brother, and that
his having passed away without children meant she was obligated to marry that brother—yibum,
generally not practiced anymore—or have a chalitzah ceremony [where the brother declares his
unwillingness to do his deceased brother the kindness of yibum; since the Mishnah and Gemara
decided chalitzah is preferable to yibum in our times, the ceremony is much more of a ritual now
than an accurate depiction of the brother].

Unfortunately for her, it was too dangerous to travel to where the brother is, and if he came to her,
he couldn’t go back. She wants to know if she can stay married without a chalitzah.

A Pause for Some Rabbinic Indignation About Qualifications

Before he addresses the issue at hand, R Landau speaks of how upset he is with the person asking
the question. The questioner and his colleagues thought of their own approaches, and mentioned
some ideas in their query. R. Landau is angry [he uses the Hebrew phrase charah li, it burned me
up; note that he’s comfortable discussing this despite the general Jewish opposition to ka’as, anger.
I believe he was differentiating between ka’as, an egotistical anger, and charon af, righteous
indignation or wrath, the appropriate response to wrongs committed by others. I note it because
today it is common to hear people deny there is any place for such wrath—Noda
BiYehuda disagrees].

Complicated questions like these, he says, should be left to the Torah leaders of the generation.
Young men like the questioner, no matter how sharp or bright, would be better off spending their
time reviewing Talmud and Codes, which this young man has not mastered, making sure to learn
that which hasn’t yet been seen.

14
https://www.torahmusings.com/2015/12/a-woman-who-left-judaism-and-returned/

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His annoyance, he says, is why he has yet to respond to previous queries on this case. It’s only for
fear of seeming too unyielding that he’s answering this time, and he has not, until now, looked at
the letters to see what was written.

He saw that the young rabbi had his own thoughts about what to do, decided that he did not dserve
an answer, and ignored the letters. I found this remarkable because of its’ relevance to continuing
questions of who has the expertise to weigh in on what. I know of great Torah scholars today who
feel the problem has only gotten worse, that those not nearly qualified express opinions on matters
of great moment, to the detriment of Torah and the community.

The Questioner’s Bad Idea

The questioner had suggested the following logical progression to allow her to stay married to her
current husband, without chalitzah: 1) The Torah does not obligate endangering ourselves to fulfill
positive obligations, 2) to bring the two together for a chalitzah would endanger one, 3) When the
Torah said the widow cannot marry anyone else, that’s only where there’s the obligation
of yibum or chalitzah. Since there’s no obligation here (see 1 and 2), she must be allowed to marry
someone else (in this case, stay married).

This is so ridiculous Noda BiYehuda refuses to address it [I believe that’s because when we say
the prohibition against marrying someone else is only where there’s a mitzvah, we mean there’s
a theoretical obligation; while it’s true that danger means right now she need not try to fulfill
the mitzvah, that’s bowing to the force of circumstance. To see that as negating the prohibition
against her marrying someone else misunderstands what we mean by the prohibition only existing
when the mitzvah exists]. Noda BiYehuda says that reading this added greatly to his charon af, his
righteous wrath, was further evidence that this man’s interest in demonstrating his ability to rule
on halachic questions had pushed him beyond his level of competence.

He closes this rebuke by assuring the recipient he’s doing it for his own good, to help him find his
way back to a better path. This, too, is a lost element in many Jewish conversations, the awareness
that harsh words are sometimes the best or only way to show people where they need to change.
Perhaps only a Noda BiYehuda could do it, but he clearly felt the right to do it.

Substantive Issues: Can We Assume She Had an Affair?

Another illuminating aspect of the responsum is Noda BiYehuda’s interest in finding a way to
allow her to stay married. I could have easily imagined his having little or no concern with helping
a woman who left religion, married a non-Jew, came back twenty years later, and then married
when she shouldn’t have.

That’s not his approach at all. Throughout this discussion, his interest is in seeing whether we can
find a way to leave her where she is. His first attempt is to wonder whether we can
assume, halachically, that she had an affair during her first husband’s lifetime. If, for example, she
had married the non-Jew before her husband’s death, she would be an adulteress, and that would
be a major opening to leniency.

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She didn’t marry him until after, though; there is some thought that we are allowed to assume that
any woman who leaves observance will violate everything, including the prohibition of adultery.
However, that’s only as a chumra, as a stringency, he points out [so, for example, if her first
husband were alive and she wanted to return to him, we might have to worry that she’d had an
affair, which makes her permanently prohibited to him]. Rema Even HaEzer 173;11 speaks of the
certainty that she has had sexual relations, but that’s where she married a non-Jew.

It is true that in cases of such apostasy, halachah allows the husband to be mezakeh a get to her,
to deliver it to someone on her behalf [a concept that some today have tried to apply in
controversial ways; Noda BiYehuda is speaking of the well-accepted way, that we do this for a
woman who has apostasized]. We assume she would prefer that, because it lessens the severity of
her infraction should she have an affair (note, again, our seeking to help minimize her
transgressions even as she has abandoned the Jewish community and religious observance).

That doesn’t help with this case, because we can’t be sure she met someone with whom she wanted
to have an affair before the first husband passed away. Not to mention that Ravad and others held
that even if she had an affair, that would not be enough to exempt her from yibum or chalitzah (a
view Noda BiYehuda tends to assume is the more correct one).

Second Substantive Attempt: Relating This to Where the Yabam Was an

Apostate

An old question in halachah addressed the reverse situation, where the brother of the deceased
husband had left the religion (and was unwilling to perform either yibum or chalitzah). In some
such cases, halachah allowed her to remarry without waiting for a chalitzah.

Noda BiYehuda points out, however, that Rema only allowed her to stay married, not to go out
and get married. Too, in those cases the brother was an apostate before the now-widow married.
That opened two avenues of leniency: 1) she never meant to expose herself to being reliant on this
apostate for her freedom to marry, leaving us to infer an implicit condition in the marriage that she
would not need yibum. 2) The Torah speaks of the husband’s brother, a term halachah often
understands to include only those who share a commitment to observance. This apostate is no
longer a brother in that sense.

Neither of those applies to our case. Nor is it clear that we accept the lenient view in the case of
the brother apostate. No help there, then.

A Failed Attempt of His Own

Skipping a few digressions that similarly do not yield any avenues of leniency for our question,
let’s see Noda BiYehuda’s own suggestion. The Gemara discusses a case of a man who has
performed kiddushin, the ring ceremony, with the sister of his sister in law (remember that in
Talmudic times, that part of marriage was separated from the completion of it by up to a year), and
then his brother passes away without children.

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His arusah, the woman he’s begun to marry, is now achot zekukato, the sister of a woman with
whom he’s supposed to perform yibum or chalitzah. If he deals with the widow in either of those
ways, though, his intended becomes permanently prohibited to him.

The Gemara says that we tell him to wait until one of his brothers does yibum or chalitzah, since
he can then go on with his life as planned. If he didn’t wait, we say that the widow’s now being
his sister-in-law (and therefore prohibited to him), means he can ignore their
previous yibum connection and stay married to his new wife.

That might lead us to think the subject of our question, who had married another man, should also
be permanently prohibited to the brother (since she’s a married woman, and can no longer
do yibum) and therefore allow her to stay with her new husband. However, that runs afoul of the
unresolved question of whether marriage with a non-brother takes effect with a woman who
needs yibum, so it’s not clear she is in fact prohibited to this brother.

Leaving aside a few more digressions (the most interesting, to me, being Noda BiYehuda’s claim
that the fact that an apostate can repent at any moment should mean that even when the brother’s
an apostate, she can’t use that to ignore the need for chalitzah), that’s where the discussion rests.
We cannot verify she was an adulteress in her husband’s lifetime, so his death obligated her to
secure a chalitzah. Her ignoring that and marrying a non-Jew, and then a Jew, has no bearing on
that, leaving her prohibited from marrying (or staying married) to anyone else until she receives
the chalitzah. While the danger involved means she need not do this immediately, it doesn’t change
the underlying obligation.

Sometimes, there’s no way to help people avoid the consequences of their previous poor choices.

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 Judah and Tamar by Arent de Gelder cir. 1681

The Ancient Oriental Background of Hebrew Levirate Marriage

Millar Burrows writes:15

15
Bulletin of the American Schools of Oriental Research , Feb., 1940, No. 77 (Feb., 1940)

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