Talmud - Yevamot 39b יבמות ל״ט ב׳

There are those who say that the dispute is more limited: When there is the possibility of consummating the levirate marriage, everyone agrees that the consummation of the levirate marriage by a younger brother is preferable to the ḥalitza of the eldest brother. When they disagree it is with regard to the significance of the ḥalitza of a younger brother.

And this is how the dispute was stated: Rabbi Yoḥanan and Rabbi Yehoshua ben Levi disagree with regard to a case in which there is choice between the ḥalitza of a younger brother or the ḥalitza of the eldest brother. One said: The ḥalitza of the eldest brother is preferable. And the other one said: The two options are equivalent.

The Gemara explains: With regard to the one who said that the ḥalitza of the eldest brother is preferable, this is due to the fact that the mitzva of levirate marriage and ḥalitza is incumbent upon the eldest brother. And the other Sage would respond to this claim by saying that when we say that the mitzva is incumbent upon the eldest brother, that is only with regard to the consummation of the levirate marriage; however, with regard to performing ḥalitza, all the brothers are equivalent.

The Gemara suggests a proof for the first opinion: We learned in the mishna: If the younger brothers do not want to consummate the levirate marriage, the court returns to the eldest brother and demands that he at least perform ḥalitza. The Gemara suggests: What, is it not that the other brothers did not want to consummate the levirate marriage but are willing to perform ḥalitza? And yet the mishna teaches: The court returns to the eldest brother so that he can perform ḥalitza. If so, conclude from here that the ḥalitza of the eldest brother is preferable.

The Gemara rejects the proof: No, the mishna might concern a case where the other brothers did not want either to perform ḥalitza or to consummate the levirate marriage, and it is only because they are unwilling to do either that the court returns to the eldest brother. The Gemara asks: If this is so, then in the corresponding situation in which the mishna states: The eldest brother does not want to do so, the case must be that he does not want either to perform ḥalitza or to consummate the levirate marriage. But if so, when the younger brothers also refuse, why should the court invest the extra effort to return to the eldest brother to force him to fulfill his duty? Let the court force them, i.e., the younger brothers, to fulfill their duty. The Gemara responds: Since the mitzva is incumbent upon the eldest brother ab initio, it is he who is forced.

Come and hear another proof from the mishna: If a younger brother makes his decision dependent upon the eldest brother, who is currently unavailable, suggesting that the yevama wait until he comes from overseas, the court does not listen to him. And if it enters your mind to suggest that the ḥalitza of the eldest brother is preferable, why doesn’t the court listen to him? Let the court wait, as perhaps he will come and perform ḥalitza. Rather, it would appear that the mishna assumes that with regard to performing ḥalitza, all the brothers are equivalent.

The Gemara challenges this: But even according to your reasoning, you certainly agree that the possibility of consummating the levirate marriage is always preferable. If so, what about the previous case in the mishna, where the eldest brother asks to wait until his brother who is a minor will mature? In that case as well the mishna rules: The court does not listen to him; but why shouldn’t the court listen to him? Let the court wait, as perhaps he will come and consummate the levirate marriage. Alternatively, in the case where the eldest brother is overseas, let the court wait, as perhaps he will come and consummate the levirate marriage with her. Rather, it is clear that the reason for the mishna’s ruling is that we do not delay the performance of a mitzva. Therefore, if one of the brothers is currently unable to perform the mitzva, he is not considered at all. Consequently, no proof can be derived from the mishna.

§ We learned in a mishna there (Bekhorot 13a): The mitzva of consummating the levirate marriage takes precedence over the mitzva of performing ḥalitza; this applied initially, when yevamin would have intent for the sake of fulfilling the mitzva. Now, that they do not have intent for the sake of fulfilling the mitzva, the Sages say: The mitzva of performing ḥalitza takes precedence over the mitzva of consummating the levirate marriage.

Rav said: Nevertheless, the court does not force a yavam to perform ḥalitza, and if he wishes it is still permitted to consummate the levirate marriage. The Gemara relates: When a yavam and a yevama would come before Rav, he would say to them: If you want, perform ḥalitza, and if you want, consummate the levirate marriage, as the Merciful One makes the matter dependent upon your will, as it is stated: “And if the man does not wish to take his yevama” (Deuteronomy 25:7) then he should perform ḥalitza. This implies that the Torah requires him to perform ḥalitza only if he does not wish to consummate the levirate marriage, but if he wishes to do so, then the matter is dependent upon him, and if he wants, he performs ḥalitza, or if he wants, he consummates the levirate marriage.

The Gemara notes: And even Rav Yehuda holds that the court does not force a yavam to perform ḥalitza if he wishes to consummate the levirate marriage. This is apparent from the fact that Rav Yehuda enacted in his court that the following formulation should be used in the bill of ḥalitza: That so-and-so, daughter of so-and-so, brought so-and-so, her yavam, before the court; and we identified him, that he was indeed the paternal brother of the deceased, and we said to him: If you desire to consummate the levirate marriage, then consummate the levirate marriage, and if not, extend your right foot toward your yevama so that she may perform ḥalitza by removing your shoe.

The bill of ḥalitza would continue with the account of what transpired: And he extended [itla] his right foot toward her and she removed his shoe from upon his foot and she spat toward his face spittle, which was visible to the court, and which landed upon the ground.

And Rabbi Ḥiyya bar Avya in the name of Rav Yehuda would conclude the formulation of the bill of ḥalitza with an additional sentence: And we dictated to the yavam that which is written in the book of the Torah of Moses, i.e., those declarations that the yavam and the yevama are required to make.

The Gemara clarifies the intention of the phrase: And we identified him as the brother of the deceased. Rav Aḥa and Ravina disagree concerning this phrase: One said that this identification must be made through legally valid witnesses, and the other one said that even the testimony of a relative and even the testimony a woman is accepted in this case. The Gemara concludes: And the halakha is that the identification of the brother is considered to be merely revealing the facts of the matter, and therefore, even a relative and even a woman may tender this information.

The Gemara paraphrases the mishna from tractate Bekhorot: Initially, when yevamin would have intent for the sake of fulfilling the mitzva of consummating the levirate marriage, the mitzva of consummating the levirate marriage took precedence over the mitzva of performing ḥalitza. And now that they do not have intent for the sake of fulfilling the mitzva, the Sages say: The mitzva of performing ḥalitza takes precedence over the mitzva of consummating the levirate marriage.

Rami bar Ḥama said that Rabbi Yitzḥak said: In later generations they went back to once again saying that the mitzva of consummating the levirate marriage takes precedence over the mitzva of performing ḥalitza. Rav Naḥman bar Yitzḥak said to him in wonderment: Could it be that the later generations improved their spiritual level and now intend to consummate the levirate marriage solely for sake of fulfilling the mitzva?

The Gemara explains that this does not mean that the later generations improved themselves; rather, initially they held in accordance with the opinion of Abba Shaul, and so the mitzva of performing ḥalitza took precedence, and in the end they held in accordance with the opinion of the Rabbis, and so the mitzva of consummating the levirate marriage took precedence.

As it is taught in a baraita: Abba Shaul says that one who consummates a levirate marriage with his yevama for the sake of her beauty, or for the sake of marital relations, or for the sake of another matter, e.g., he wishes to inherit her husband’s estate, it is considered as though he encountered a forbidden relation, and I am inclined to view the offspring born from such a union as a mamzer. Since the prohibition against engaging in relations with one’s brother’s wife is overridden only for the sake of fulfilling the mitzva of consummating the levirate marriage, when one does not have the intention to fulfill that mitzva, the baseline prohibition applies, and so any offspring from the union will be mamzerim. The Rabbis say: The Torah states: “Her brother-in-law will have intercourse with her” (Deuteronomy 25:5), which indicates that he should do so in any case, even if his intentions are not solely for the sake of fulfilling the mitzva.

The Gemara asks: Who is the tanna who taught the following baraita that the Sages taught: The Torah states: “Her brother-in-law will have intercourse with her” (Deuteronomy 25:5); this is to be considered a mitzva, as initially, before she was married to his brother, she was among all other women who are permitted to him, and then when she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would revert to her original permitted status; therefore, the verse states: “Her brother-in-law will have intercourse with her” to teach that it is in fact a mitzva to do so.

Who is the tanna who taught this baraita? Rav Yitzḥak bar Avdimi said: It is Abba Shaul, and this is what the baraita is saying: “Her brother-in-law will have intercourse with her” teaches that it is permitted to engage in intercourse with her only when his intention is to fulfill a mitzva, as initially, before she was married to his brother, she was among all other women who are permitted to him, and so, if he wished, then even for the sake of her beauty he was permitted to marry her, or similarly, if he wished, then even for the sake of marital relations he was permitted to marry her.

When she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would fully revert to her original permitted status; therefore, the verse states: “Her brother-in-law will have intercourse with her” to teach that he is permitted to marry her only when his intention is for the mitzva.

Rava said: You can even say that the baraita is in accordance with the Rabbis, and this is what the baraita is saying: “Her brother-in-law will have intercourse with her” indicates that it is a mitzva to consummate the levirate marriage, as initially, before she was married to his brother, she was among all other women who are permitted to him, and so if he wished, he was permitted to marry her, or if he wished, he was permitted to choose not to marry her.

When she married his brother she became forbidden to him, and when his brother died without offspring she reverted from her forbidden status and became permitted to him. One might have thought that she would fully revert to her original permitted status, so that if he wishes, he may marry her, or if he wishes, he may choose not to marry her.

The Gemara interjects that the logic of this last statement seems implausible: Does he really have the option to do as he wishes? Isn’t she bound to him with a levirate bond? Could it be that she will be released from that bond without doing anything? Rather, emend the previous argument and instead say: One might think that if he wishes, he may marry her, or if he wishes not to do so, he performs ḥalitza with her. Therefore, the verse states: “Her brother-in-law will have intercourse with her,” to teach that it is now a mitzva to consummate the marriage, and doing so is preferable to performing ḥalitza.

The baraita under discussion also presents another case that follows a similar model of initially being permitted, then prohibited, and then once again permitted. The Gemara analyzes the explanations of Rav Yitzḥak and Rava based on that clause of the baraita: Say the first clause and try to explain it in a way consistent with the various explanations of the latter clause: The Torah states concerning the meal-offerings eaten by the priests: “It shall be eaten unleavened in a sacred place” (Leviticus 6:9); this indicates that doing so is a mitzva,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Yevamot 39b explores whether the eldest brother’s ḥalitza takes precedence over a younger brother’s, debating who bears primary responsibility for levirate duties.