Chalitza of a Cheresh

Yevamot (12:4) | Yisrael Bankier | 13 years ago

The Mishnah (12:4) teaches that if a yavama performs chalitza to a cheresh (deaf-mute), then the chalitza is invalid. We shall investigate this law.

The Gemara (104b) explains that it is invalid because of the yabam’s inability to recite the required sections outlined in the Torah. Now even though we have learnt that omitting reciting these pesukim does not invalidate chalitza, the Gemara explains that that Mishnah is according to R’ Zeira who maintains that the lack of recital is not essential provided that the yabam (or yavama) has the capacity to recite it. In this case since yabam is not able to recite it, the chalitza is invalid (kol ha’rayui l’bila…). 

The Tosfot asks that a cheresh should have been considered invalid because, just like a shoteh and katan, he is not a ben daat– they lack legal understanding. The Tosfot answers that if that were the only issue then since chalitza is performed in front of, and under the instruction of Beit Din, then it could be valid. We find that a cheresh can write a get if guided by an adult. Consequently the pasuk’s explicit exclusion is broader than the regular issue that is address with respect to a cheresh.¹

When the Mishnah teaches that chalitza involving a cheresh is invalid, Rashi comments that it is invalid and does not release the yavama when there is another kosher brother. The Tosfot Yom Tov finds this comment difficult as it implies that if the cheresh was the only surviving brother then the chalitza would be affective in releasing the yavama. Such an implication however contradicts a later Mishnah (14:4) that teaches that the only option in the case where the only yabam is a cheresh is *yibum.*How then can we explain Rashi’s comment?

The Aruch La’Ner explains as follows. The Gemara in Gittin (24b) explains that anywhere the Mishnah teaches about a chalitza pesula (invalid), while it is indeed ineffective in releasing the yevama, it however does prevent any further possibility of yibum. The Aruch La’Ner explains that the same would be true in this case; the invalid chalitza of a cheresh prevent further yibum from taking place. This is despite the fact the chalitza is meaningless on a biblical level (as learnt above). This is because there is a concern that people might see that yibum followed (what looked like) chalitza and wrongly think that yibum is permitted after chalitza. If however the cheresh were the only brother and then there would not be any concern with the cheresh following his chalitza with yibum. People understand that a cheresh is not a bar daat and would not derive anything from his circumstance. 

If however there was another brother, the chalitza of the cheresh would be pesula, i.e. invalidate the kasher brother from performing yibum. In other words, according to Rashi, whether or not the cheresh is the only brother, the chalitza of the cheresh would not release the yavama. If however there was another brother, that chalitza would prevent him from performing yibum.

¹ Note that there is also an explicit pasuk excluding a katan. With respect to a shota however, the Tosfot explains that since they have no daat at all, being guided by Beit Dinwould not help for chalitza. 

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