Vayeshev – Yibum or chalitza?
I have a personal connection to the mitzvah of yibum and chalitza; my father and aunt performed the chalitza ritual.[1] The ceremony itself deserves to be studied in its own right, but it also begs the question – why are we more likely to know people who performed chalitza (albeit not many), but not people who fulfilled yibum? In the story of Yehuda and Tamar there doesn’t seem to be an option for release from the obligation of yibum, through chalitza or a similar ritual. And when studying the verses in Tanakh that discuss yibum there is a clear preference for the mitzvah of yibum over chalitza. But in our time the reverse is generally true. Has there been a change in halakhic preference? If so, why?
The mitzvah of yibum appears in Devarim (24:5-10), but based on our parsha (Chapter 38) it’s clear there was a preliminary form of yibum. In Megillat Ruth we also see a similar practice although there are a few differences between that account and the Torah mitzvah.
There are two main approaches to understanding the goal of yibum. One approach sees it as an early form of sperm donation to continue the deceased’s line. From the stories of Sarah and Hagar and Rachel and Bilha it seems that women who could not have their own children would use their handmaiden as a type of surrogate (who provided both the egg and womb). Similarly, if a man did not have a child, we “look” for a donation from a blood relation. Such a thing is prohibited due to arayot, and is only permitted if the husband has died and did not have children. In this case the brother donates his seed to his deceased brother, and the child that is born is considered to be the son of the deceased.[2] This appears to be the case in the story of Yehuda and Tamar.
According to the other approach, which is reflected by the quasi-yibum story in Megillat Ruth, yibum is meant to uphold the name of the deceased on his nachala – inherited portion of land. In the Torah, from the time of Avraham, the blessing of the children is tied to the blessing of the land. A man’s name and reputation are tied to his nachala, which is passed down through his children and gives the land meaning. Hence we are told “the Torah made yibum contingent on the portion.”[3]
This is the main approach that appears in Chazal. It is supported by similarities between the verses that describe the mitzvah of yibum and the request of the daughters of Tzelofchad (Bamidbar 27), who wanted a “name” for their father. They were essentially asking to stand in for a son, so that the land would stay in the family through the father’s progeny – in this case his daughters. Indeed, Chazal insert an alternative solution into Tzelofchad’s daughters’ request to preserve their father’s name on his nachala; if they are ineligible to inherit the land then their mother should be eligible for yibum.[4]
While the main approach reflected in Masechet Yevamot seems to be that yibum is connected to the land, it seems that at least one Tanna – Rabbi Yehuda – does not link the two. The Mishna (4:7) brings a dispute: “One who married his yevama receives his brother’s possessions. Rabbi Yehuda said: In any event, if the father is present, the property belongs to him.” Scholars and commentaries argue whether Rabbi Yehuda rules that the father takes precedence in the rules of inheritance, but the brother who performs yibum still inherits after he passes, or if Rabbi Yehudahcompletely disconnects yibum from inheritance and property. And so, even though the gemara normally expresses “the Torah made yibum contingent on the land” as a declarative statement, in another case it appears as a question: “Did the Torah make yibum contingent on the land?”[5]
In addition to Rav Yehuda’s opinion, there is another allusion to the idea that yibum is at least partially intended to give the deceased progeny – the Talmud discusses the laws related to peru u’revu (be fruitful and multiply – the mitzvah to have children) specifically in Masechet Yevamot (end of Chapter 6). Furthermore, in the wake of the Zohar, some commentaries and poskim maintain that there is also an element of gilgul neshamot – reincarnation.[6]
It’s possible that these two approaches can explain an important dispute. The Mishna (Bechorot 1:7) states: “The mitzvah of yibum was preferable to the mitzvah of chalitza – at first, when the intention was for the mitzvah.[7] And now that the intention is not for the mitzvah, the mitzvah of chalitza is preferable to the mitzvah of yibum.”
The gemara relates this statement in connection to an additional dispute (Yevamot 39b): “Abba Shaul said: One who consummates with his yevama for the sake of beauty, for the sake of marital relations, or for anything else, it is as if he has been with a forbidden relation, and I am close to considering the resulting offspring a mamzer. The sages said: “He may consummate with a yevama no matter the circumstances.” This is further related to the debate of whether yibum or chalitza should take precedence.
This dispute seems strange, since it questions whether one should prioritize the Torah mitzvah, or the solution the Torah offers – as a humiliating alternative – if the brother does not want to fulfill the mitzvah. How is it possible that it is preferable not to fulfill the Torah mitzvah?
It seems that if the reason for the mitzvah of yibum is to maintain the name of the deceased in connection to his portion of land, then the mitzvah loses much of its substance when the People of Israel are not settled on the Land of Israel according to tribes and familial portions. If yibum is no longer practiced “for the sake of the mitzvah” – since it no longer serves its original purpose – all that is left is a marriage between two people who are generally prohibited to marry. The issue does not seem to be one of puritanism, but rather an understanding that the original mitzvah cannot be fulfilled.
On the other hand, since there are those who maintain that the mitzvah is partially, if not primarily, a fulfillment of peru u’revu on behalf of the deceased, nowadays they assert that there is still an aspect of the mitzvah that can be fulfilled, even if there is no nachala.
In practice, it seems that those poskim that gravitate toward kabbalah (which raised the possibility of gilgul neshamot) are more supportive of yibum, while other poskim tend to prefer chalitza.
[1] Background on the mitzvah – When a married man dies without children, if he has at least one brother his wife is obligated to either marry the brother (yibum) or undergo chalitza, a ritual to sever the connection between them. Due to this connection a man’s sister-in-law is called his yevama. In any other case any intimate relationship between a man and yevama is prohibited by laws of arayot (forbidden unions).
[2] Chazal took this idea to its extreme by raising the possibility that the child must actually be named after the father, “Yosef, he is called Yosef,” but my understanding is that it is a type of fulfillment of “be fruitful and multiply” for the deceased.
[3] TB Yevamot 17b
[4] TB Bava Batra 119b
[5] TB Yevamot 40a
[6] This is not necessarily a full reincarnation of the soul, but a preservation of certain aspects. Zohar Mishpatim II, 106a; Korach III 177a; Ki Tetze III 281a. And see Ramban on the story of Yehuda and Tamar. Rav Yosef Karo expands on the idea. Responsa Beit Yosef, Teshuvot Rav Yosef Karo 1.
[7] There are differences between manuscripts that may be influenced by the phrasing that follows in the gemara, brought in the following paragraph.
