Yibbum

Devarim 25:4-11 teaches when two brothers live at the same time, and one dies without children, the wife is not allowed to remarry anyone other than one of her deceased husband’s brothers.  This process is referred to as Yibbum.  Yibbum is a shocking Mitzvah since the Torah (VaYikra 18:16) includes Eishet Ach (a brother’s wife) on the Arayot/ forbidden relations list.  

The Seforno (to Pasuk 6) explains that with Bi’ah (relations), the Yavam (brother) is picking up where his deceased brother left off.  The offspring from this relationship is viewed, according to the Seforno, as children of the late husband.  We add that Yibbum is not only a Chessed on behalf of his departed brother (as emphasized by Rabbeinu Bachya) but also a Chessed for the widow, for she is given a substitute for her lost husband.

Chalitzah

If the couple does not wish to do Yibbum, they go to the Beit Din and perform a ceremony known as Chalitzah, where she removes his shoe and spits in front of him.

Which is Preferred? 

The straightforward reading of Devarim indicates that Yibbum is the preferred option.  This is the opinion of the Chachamim (Yevamot 39b), Rambam (Hilchot Yibbum Ve’Halitza 1:2), and Shulchan Aruch (Even Ha’Ezer 165:1).  However, Abba Shaul (Yevamot 39b) believes that Chalitzah is prioritized.  Rabbeinu Tam (cited in Tosafot Yevamot 39b s.v. Amar Rav) and the Rama follow Abba Shaul.  

The Sephardic tradition follows the Chachamim, Rambam, and Shulchan Aruch and prefers Yibbum when appropriate (Teshuvot Yabia Omer 6 Even HaEzer 14). On the other hand, the Ashkenazic tradition strongly favors Chalitzah (see, for example, Teshuvot Heichal Yitzchak 1 EH 5 page 51 in the 1960 edition) [1] .  

Abba Shaul, Rabbeinu Tam, and the Rama are animated by the concern that one violates the severe prohibition of Eishet Ach unless one does Yibbum purely for the sake of the Mitzvah (Yevamot 39b) [2] .  

Explaining Chalitzah - Chizkuni

Chalitzah seems to degrade the Yavam for failing to fulfill the Mitzvah of Yibbum (as noted by the Chizkuni to Pasuk 9).  Embarrassing the Yavam is reasonable when he shirks his responsibility to do Yibbum.  However, why does the brother deserve degradation according to the Ashkenazic tradition that does not permit him to perform Yibbum?  Moreover, even according to the Sephardic tradition, there are times when it is not appropriate to do Yibbum (see Yevamot 4a), and yet Chalitzah is nonetheless performed in such a situation.  For such circumstances, there must be a different explanation for the Mitzvah of Chalitzah.  

Alternative Explanations – Rabbeinu Bachya and Chizkuni

According to Rabbeinu Bachya, removing the shoe is an expression of Aveilut, mourning the lost brother (just as an Avel removes his shoes).  

The Chizkuni presents an intriguing idea.  He writes that the Chalitzah ceremony is intended to soothe the widow’s emotions.  

Let us try to develop Chizkuni’s approach.    A widow often feels outraged at her husband for abandoning her.  These feelings could be exceptionally sharp if he left her alone without children.  We suggest that Chalitzah is a controlled expression of a widow’s anger at her husband for leaving her.  The brother-in-law is the recipient of the anger since he represents the husband. Chalitzah gives the widow a safe outlet to express her anger and helps her achieve closure.

Conclusion – Humbly Searching for Reasons for Mitzvot

Many years ago, I raised these questions and suggestions regarding the Mitzvah of Chalitzah.  A young student remarked that he was unsatisfied with my explanation and disturbed by the Torah’s Mitzvah of Chalitzah.  I told the student that it was fine not to accept my approach, but we do not (Chas VeChalilah) devalue a Mitzvah if we do not understand it.  I told the young man that if he did not like my explanation, he should search for and develop a different approach he found compelling. 

While trying to find reasons for Mitzvot, we are not, Chalilah, placing Hashem’s holy Torah on trial. On the contrary, we are being tested to see if we articulate a convincing explanation.  If we do not find a persuasive rationale, we can intensify our search for alternative answers from traditional and contemporary sources or try to develop a new approach. Therefore, failure to discover an explanation for Hashem’s Mitzvot does not reflect a shortcoming in the Torah but rather our deficiencies in understanding His holy Mitzvot.  

When trying to explain a Mitzvah, a heaping helping of humility is sine qua non.  

[1] In 1950, the Sephardic and Ashkenazic Chief Rabbis, Rav Ben Zion Uzziel and Rav Yitzchak Herzog made a number of Takanot (enactments) to unify the Jewish People, such the acceptance of Chereim DeRabbeinu Gershon forbidding polygamy.  Included in the Takanot was an agreement that all Jews would eschew Yibbum in all circumstances and opt for Chalitzah instead.  

Hacham Ovadia notes, however, that Sephardic Jews have accepted the rulings of Rambam and Shulchan Aruch that Yibbum is preferred and to be encouraged.  In 1951, at the age of 31, Rav Yosef courageously upheld Sephardic tradition and ruled that the Takanah of the Chief Rabbis is invalid!  He argued that we are forbidden to abandon our traditional customs and practices for the sake of national unity.  

Rav Yosef did not make this ruling in a vacuum – he issued it acting as a Dayan on the Beit Din of Petach Tikvah in an actual case.  The Sephardic Chief Rabbi of Jerusalem, Rav Shalom Messas (Teshuvot Shemesh UMagein 1 EH 8), supported Rav Yosef’s bold ruling and followed it in practice in actual Beit Din situations.  The approach of Rav Ovadia and Rav Messas has emerged as the accepted view by Israel’s Chief Rabbinate, as noted by Rav Eli Mansour.  Indeed, Rav Mordechai Lebhar (Magen Avot, Even HaEzer 165) writes that the universal practice among Sephardic Jews in Israel and outside Israel is to do Yibbum. 

[2] The dispute between the Chachamim and Abba Shaul hinges on whether one believes that the Yavam’s intentions define his actions.  The Chachamim argue that the Yavam does not violate the prohibition of Eishet Ach since he is performing a Mitzvah.  According to this approach, the Yavam’s intentions are irrelevant.  Abba Shaul, on the other hand, believes that in the case of Yibbum, one’s intention determines whether one is doing the great Mitzvah of Yibbum or the terrible Aveira of Eishet Ach.