2019/5779
This week we conclude our discussion of the recalcitrant Ach Mumar, apostate brother-in-law who refuses to provide Chalitza for his sister in law (Yevama). Rav Yehudai Gaon argues that a Yevama does not require Chalitza for an Ach Mumar. Many have questioned the ruling of Rav Yehudai and we outline eight reasons offered to explain his approach. The first two parts of this discussion is archived at www.koltorah.org
Reason Number Five for Rav Yehuda’i Ga’on
Ohr Zaru’a offers another reason for excusing an Ach Mumar from Yibum and Chalitzah. The Pasuk (Devarim 25:5) states that Yibum and Chalitzah apply “Ki Yeishevu Achim Yachdav,” “when brothers reside together.” Ohr Zaru’a argues that if the husband remained a loyal Jew and the brother is a Mumar, then one can hardly describe this as “Ki Yeishevu Achim Yachdav.”
This approach is particularly shocking because post-Talmudic authorities usually do not enjoy the right to make original Halachic Derashot from a Pasuk and then apply it to be Halachah LeMa’aseh. Teshuvot Torat Chesed defends Ohr Zaru’a based on a Talmud Yerushalmi which uses the words “Ki Yeishevu Achim Yachdav” to exclude maternal brothers. The Gemara states that maternal brothers do not usually reside in the same house. Thus, the phrase “Ki Yeishevu Achim Yachdav” does not apply to them. The Torat Chesed reasons that the same applies to an observant brother and a Mumar brother - they hardly can reside in one home. The same concept related to Lot and Avraham Avinu that they very not able to reside together applies to these brothers living dramatically different lifestyles. Thus, the laws of Yibum and Chalitzah do not apply to them.
Our response is that it is extraordinarily surprising that a Rishon would create a Derashah that does not appear in the Gemara. Indeed, Netziv makes this argument against Rav Yehuda’i Ga’on. He asked how a Gadol who lives after the time of the Gemara could have the authority to permit something that one would have expected to appear in the Gemara were it to be true.
Reason Number Six for Rav Yehuda’i Ga’on
Avnei Miluim suggests an explanation that could justify Rav Yehuda’i Ga’on’s position. There is an opinion amongst the Rishonim (Teshuvot HaRosh Kelal 17 number 10) that a Mumar does not inherit his father’s property. His conclusion is derived from an episode in BeReishit where Hashem promises Avraham that (BeReishit 17:8) He will give the Land of Kena’an “Lecha ULeZaracha Acharecha” “to you and your descendants after you.” The Ge’onim interpret the term “descendants” to include only those of the Jewish faith, because it is written in the previous Pasuk (ibid. 17:7), “LeHiyot Lecha Le’Elokim ULeZaracha Acharecha,” “To be for you a God, and for your descendants after you.”
Only those who acknowledge that Hashem is God are considered descendants of Avraham, whereas those that deny Hashem are not considered Avraham’s children. This can also be seen from the promise Hashem made to Avraham that his descendants will be exiled to Egypt, and then develop into a great nation. Although Avraham had two children, Yishmael and Yitzchak, the promise was fulfilled exclusively through the ‘non-apostate,’ Yitzchak, as it is written, “Ki BeYitzchak YiKarei Lecha Zara,” “For Yitzchak shall be called after your name” (BeReishit 21:12). Similarly, although Yitzchak had two children, Hashem’s promise was fulfilled only through Yaakov (who went to Egypt), and not through Eisav.
Consequently, one can assert that since a Mumar does not inherit his father’s property he will also not bind the widow to Yibum. This connection between inheritance and Yibum is taught in Yevamot 17b. The Gemara rules that the Mitzvah of Yibum does not apply to a maternal brother because the Torah indicates that it applies only for those who “share” an inheritance. Rashi (s.v. HaMeyuchadim BeNachalah) explains that they inherit one property and bequeath one to the other. Rav Moshe Sofer, known as Chatam Sofer, (Teshuvot Even HaEzer Cheilek Bet Siman 74) expresses astonishment at the resolution of Avnei Miluim. Avnei Miluim’s explanation is built on his assertion that Rashi connects the issue of inheritance from the father and Yibum. In fact, Rashi did not mention inheriting from the father. The only issue Rashi addressed regarding inheritances is the ability for the brothers to inherit and bequeath to one another.
Hence, our Gemara cannot be cited as support for Rav Yehuda’i Ga’on. On the other hand, to defend Avnei Miluim we may note that the second Rashi does mention that the brothers share an inheritance from the father. Thus, if the brothers do not share a Nachalah from the father, the brother is not Zokeik LeYibum.
However, Rav Shlomo Kluger (Chochmat Shlomo Even HaEzer 157) rejects Avnei Milu’im noting that the Mumar is disqualified from inheritance only as long as he is an apostate. However, since the Mumar has the potential to return to the Jewish fold, he has the potential to inherit and thus, is not disqualified from Chalitzah1.
Reason Number Seven for Rav Yehuda’i Ga’on
The Gemara (Bava Kama 110b-111a) suggests that if a woman's husband dies without children and her brother-in-law is a Mukeh Shechin (a man afflicted with boils or leprosy), then she should not be required to perform Yibum or Chalitzah. She should be able to claim that "ADa'ata DeHachi Lo Kidshah Atzmah" - she did not marry her husband with the intent that if he dies she should have to marry the repulsive brother-in-law.
The Gemara rejects this suggestion, noting it is clear that it is worthwhile for her to do Yibum with her repulsive brother-in-law. (Note: this is Tosafot’s explanation of the Gemara.) This is because the Gemara explains that a woman prefers to be married to even a marginal rather than to live alone.
Maharam MiRutenberg suggests that the Gemara here provides proof for those Ge’onim who rule that if the husband's brother was a Mumar at the time of the wedding and the husband later dies, then the widow does not have to do Yibum with the Mumar and may remarry even without Chalitzah. This is because it is clear that the bride married the man only on the condition that she would not have to do Yibum with his brother who is a Mumar. This is because a Mukeh Shechin is at least a marginal husband. However, a Mumar does not even qualify as a marginal husband.
1 Rav Shlomo Kluger notes that if one argues that a Mumar is excluded from Yibum and Chalitzah, then if a deceased husband had only one child and that child is a Mumar, his widow should require Chalitzah! This argument is never advanced, argues Rav Shlomo Kluger, due to the Mumar’s potential to return. Accordingly, Rav Shlomo Kluger concludes that a Mumar is not excluded from Yibum and Chalitzah.
This proof does not fit, however, with Rashi’s explanation of the Gemara. Rashi explains the Gemara to be saying that it is worthwhile for her to marry the first brother even with the risk that later she may have to do Yibum or Chalitzah with her repulsive brother-in-law. Thus, one could argue that it is worthwhile for the wife to be married to her first husband even though she may fall into Chalitzah with an Ach Mumar. This could be yet another reason why Rashi rejected the lenient view of Rav Yehuda’i Ga’on2.
Reason Number Eight for Rav Yehuda’i Ga’on
The final explanation for Rav Yehuda’i Ga’on is that a Mumar has the status of a Goy. The Gemara (Chullin 4a) compares a Mumar to a Kuti3. The Gemara (Chullin 6a) also records that Chazal proclaimed that a Kuti is not Jewish, therefore, one could argue that the Mumar is not Jewish.
In addition, Melachim II recounts that the Assyrian king Shalmaneser V exiled the ten tribes of the Northern Kingdom of Israel in 722 B.C.E. (Melachim II 18:9-11). According to Rabbinic tradition, the ten tribes were scattered among the nations, but will one day return (Mishnah Sanhedrin 10:3). Rav Asi (Yevamot 16b) asks why we are not concerned that every gentile who marries a Jew is a descendant of the ten lost tribes, and therefore, every intermarriage is, in fact, a case of Safeik Kiddushin. Shmuel responds that the Rabbis of that time decreed that the ten tribes had the status of complete gentiles. There are two conflicting implications that arise from this source. The first is that Jewish status endures throughout the generations, even if one is not living as a Jew. Although the ten tribes had been fully assimilated more than a thousand years before the Talmud’s discussion took place, the implicit assumption is that without the special Rabbinic decree, their Jewish status would endure. The second implication of this source is that Jewish status is revocable – which is how the Rabbis were able to declare them gentiles. Thus, one could
2 In a surprising ruling, Rav Moshe Feinstein (Teshuvot Igrot Moshe Even HaEzer 4:121) applies Maharam MiRutenberg’s approach to permit a widow to marry in an extreme situation where a woman married a husband about to enter military combat and had only one brother who was an avowed atheist and communist party official. In such an extreme situation argues Rav Moshe, it is obvious that the woman entered the marriage with the implicit condition that the marriage is invalid if her husband dies without children. Rav Moshe (and Rav Ovadia Yosef) regards a militant atheist as the Halachic equivalent of an apostate.
3 Kutim is the rabbinic term for the non-Jewish people introduced by the Assyrians to Northern Israel (Melachim II Perek 17). They are referred to in Sefer Melachim as Shomeronim. These people underwent a conversion under questionable circumstances and their status as Jews is subject to a debate that rages throughout the Mishnah and Gemara.
conclude that just as Chazal was able to declare the Aseret HaShevatim to be non-Jewish, so too they can declare a Mumar to be non-Jewish.
On the other hand, one could argue that absent a specific Talmudic era decree regarding a specific group of apostate Jews, a Jew retains his status as a Jew despite his apostasy.
Conclusion
The arguments regarding the Ach Mumar have been raging for more than a millennium and appear to be unresolved. Each of the eight explanations for Rav Yehudai Ga’on’s bold ruling is subject to considerable debate. In practice, Rav Ovadia Yosef (Teshuvot Yabia Omer 9: Even HaEzer 36-37) rules that we may permit the widow to remarry only if there is another component to supplement the opinion that an Ach Mumar is not Zokeik LeYibum.
In the case in which Rav Ovadia permitted the widow to remarry, in addition to the brother being classified as an Ach Mumar, there was a significant flaw in the Halachic validity of the original wedding. In such a situation there exists a Sefeik Sefeika (double doubt) which permits one to rule leniently. Without a second Safeik, Rav Ovadia was unwilling to rely solely upon Rav Yehuda’i Ga’on’s lenient approach.