Tuesday, June 12, 2007

ELDERLY YAVAM AND YEVAMAH AND OTHER CASES - Yevamos 40 - Daf Yomi

What is the halacha if the yavam and the yevamah do not want to perform a chalitzah? If she is agreeing to remain an agunah her entire life, do we compel the yavam to perform a chalitzah?

Chacham Tzvi (1) writes regarding a woman who is a katlanis, she was married a few times previously and her husband’s died; she will not be able to get married anyway. He rules that since she is not going to get married anyway, we do not force the yavam to perform a chalitzah. The only reason that we normally force him to perform a chalitzah is for the benefit of the yevamah that she should be able to get married; if it will make no difference to her, we do not get involved.

The Chasam Sofer (E”H II, 85) rules in the same manner regarding an elderly yavam and yevamah that do not intend on marrying anyone else anyway; we do not compel the yavam to perform a chalitzah.

Reb Yitzchak Elchonon (E”H 17) explains that chalitzah is not a mitzvah by itself; rather, it is an action that allows her to get married. If there is no need to permit her to marry anyone else, Beis Din does not get involved, and a chalitzah is not necessary.

The Oneg Yom Tov (176) disagrees and maintains that chalitzah is a mitzvah, and even if both parties are not interested, we force the yavam to perform a chalitzah.

The Maharshal in Yam shel Shlomo (4:18) concludes: We compel the yevamah to partake in the chalitzah because chalitzah is a Biblical obligation, and we would even use bodily force to ensure that this mitzvah will be fulfilled. Even if she wants a yibum, and the yavam wants to do a chalitzah, we force her to accept the chalitzah.

7 comments:

Rav Chaim said...

What do those that hold it's not a Mitzva do with the Gemara 21a. There it states that Chalitza in the place of Yibum is not a Mitzvah. This infers that where Yibum is not an option that Chalitza is a Mitzva. This also seems to be the inference of the peek of "Mitzvas Chalitza" that its' a Mitzva (and not Chiyuv Chalitza that it's only an obligation to the woman)

Rav Chaim said...

Another proof can be found in the Sugya on 39a-39b if it's better for the big brother to do Chalitza or the little brother to do Yibum (since the Mitzva is upon him to do) or if we try to get the bigger brother to do Chalitza over the little brother. If Chalitza is only a means to let the woman marry others and not a Mitzva in itself, L'Chorah, it shouldn't make a difference who does the Chalitza or that the big brother's Chalitza should supersede the younger brothers Yibum, since the older brothers Chalitza is nothing but allowing the woman to marry.

Avromi said...

Your second proof is the reason I posted this discussion here.

In truth, there seems to be a bigger question on the Chasam Sofer and Chacham Tzvi: What happened to the mitzvah of yibum; this is certainly not dependent on her. It would seem from the C"S that even if they are elderly, and are disinterested, we don't get involved. Why not? There is a mitzvah of yibum.

The Minchas Chinuch discusses the C"T's opinion and concludes that there is a mitzvah of yibum even if she says that she doesn't want.

The Reshash 39b proves that this is true (in shitah, but unlike the C"T) for otherwise, how would the mitzvah of yibum override a lo saa'aseh.

Rav Chaim said...

Quote "In truth, there seems to be a bigger question on the Chasam Sofer and Chacham Tzvi: What happened to the mitzvah of yibum; this is certainly not dependent on her. It would seem from the C"S that even if they are elderly, and are disinterested, we don't get involved. Why not? There is a mitzvah of yibum."

But here the brother has no interest in Yibum, which in that case he doesn't need too do Yibum (and that's why the Torah have an option of Chalitza and it's not considered as Mivatel the Mitzva of Yibum) So we never force Yibum on the brother when there is an option of Chalitza. So the whole Kasha really should be why doesn't he need to do the Mitzva of Chalitza since he's anyhow he's opting not to do the Mitzva of Yibum.


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Rav Chaim said...

Another proof is the Gemara in Sanhedrin 19b that Rav Yehuda says that a Melech can do Chalitza, even if it's a Bizayon, and a Melech cannot be Moichel on his Kovod, still, for a Mitzva is different. See Tosfos there that says that he cannot do a Mitzva that's for someone else's Kovod, since the Kovod of the king is greater, rather Yibum and Chalitza must be regular Mitzvos.

The Ran says that the Rabanan argue just because it's too big of a Bizayon, implies that they too hold it to be a Mitzva.

Avromi said...

Once were in that Gemora, lets bring a proof from there the other way.

We do not perform chalitzah on the melech's wife. Rashi says that it's because she can't get married to anyone else anyway.

Reshash asks that what's with the mitzvah of chalitzah?

Ohr Gadol in Mishnayos and Reb Yitzchak Elchonon prove from Rashi that chalitzah is primarily a matir, and not a mitzvah.

Rav Chaim said...

Quote "We do not perform chalitzah on the melech's wife. Rashi says that it's because she can't get married to anyone else anyway.

Reshash asks that what's with the mitzvah of chalitzah?

Ohr Gadol in Mishnayos and Reb Yitzchak Elchonon prove from Rashi that chalitzah is primarily a matir, and not a mitzvah."


I would answer that even though it's mainly a Mitzva, it still needs to be Matir something. If it doesn't, then it's not a Chalos of Chalitza. It's like Kol Harouya L'Bila Ein Bila M'Akeves. Kol Shein Roye L'Bila, Bila Maakaves.