Chalitza or Yibum

Yevamot (4:10) | Yisrael Bankier | 13 years ago

The Mishnah teaches that neither chalitza nor yibum can be performed in the first three months after the death of the yevama’s husband. The Gemara explains that the three-month break is important since the yevama might be pregnant. This would mean that she is exempt from yibum and would be prohibited to the brothers. Why however can chalitza not be performed during this period?

The Gemara explains that the pasuk that discusses chalitza begins as follows: “But if the man will not wish to marry his sister-in-law…” The implication is that if he did want to you could. The Gemara understands therefore that chalitza only applies when yibum applies. How strong is this rule?

The Tosfot Yom Tov notes we have learnt many mishnayot where the ruling is that chalitza is performed but not yibum. In some instances this is because the Chachamim have only allowed chalitza. One recent example (4:8) is the case of achot chalutzato (the sister of the woman to whom he had performed chalitza). The relationship is prohibited on a rabbinic level. Had the Chachamim applied the above principle to their decree, since the yevama would require yibum on a biblical level, she would be left with no option and never be allowed to remarry. In this case, even though the obligation to wait is rabbinic, after waiting those three months we have options.

The Gemara (41b) raises another example where due to a doubt only chalitza is allowed. One case is where a man marries one of two sisters and then passes away. We learnt (2:6) that if there was only one surviving brother, he must perform chalitza to both sisters. Yibum to one of the sisters is not an option since he might be engaging in a forbidden relationship (achot zekukato). The Gemara explains that that case is different to ours. That case involves a safek (doubt). If Eliyahu would come and reveal who the true yevama was, then either yibumor chalitza could be performed. In our case however, even if we could determine with certainty that the yevama was not pregnant, it would make no difference. The takana to wait three months applies in all cases, even if the woman was a ketana.

Another instance is where the relationship between the yabam and the yavama is prohibited by a lav (negative prohitition) and only chalitzashould be performed (2:3). Those cases are also cases where yibum is being prohibited by way of rabbinic decree. The reason is that on a biblical level, yibum is permitted since the positive commandment to perform yibum overrides the negative prohibition. The Chachamim however were considered about further relationships after the positive mitzvah had been fulfilled. 

The final case the Tosfot Yom Tov addresses involves a kohen gadol and a widow. Such a relationship would involve the transgression of both a positive and negative mitzvah. Consequently, it would not override the positive mitzvah of performing yibum. Nevertheless, the Mishnah teaches that only chalitza can be performed. What has happened the above stated rule?

The Gemara (20a) deals with this special case. The above quoted pasuk continues as follows: “But if the man will not wish to marry his sister-in-law, then his sister-in-law shall ascend to the gate…”. The Gemara learns from the superfluous repetition of “his sister-in-law” (yevimto) that the Torah is teaching that there is one yevama who on a biblical level only has the option of yibum and not chalitza. In other words, the same pasuk that taught that chalitza was dependant on the capacity for yibum, also taught that the case of a widow and kohen gadol is an exception to that rule.   

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