Parashat Vayeshev: Yibbum (Levirate Marriage) in Ancient Israel
The Weekly Mitzva
Yeshivat Har Etzion
PARASHAT
VAYESHEV
By Rav Binyamin
Tabory
Shiur #09: Yibbum (Levirate
Marriage) in Ancient Israel
After Yehuda's eldest son Er died without any children, Yehuda instructed
Onan to perform yibbum and establish offspring for his brother (Bereishit
38:8-9). Rashi (ad loc.) says that
the product of such a union should be named for his dead uncle. Ramban (ad loc.) disagrees with Rashi
and maintains even though the purpose of yibbum is to remember the deceased
brother, there is no mitzva to name the child for his uncle. When Boaz married Ruth, he said that he
intended that the deceased should be remembered, yet he named the child Oved and
not Machlon (the name of Ruth's late husband).
The Ramban goes on to explain that the ancient wise men knew that there
is a great benefit in levirate marriage.
Rav C.D. Chavel, in his commentary on the Ramban, cites mystical works
such as the Zohar which attempt to explain these benefits. Prior to the giving of the Torah, such a
levirate marriage was performed by a father, brother or any relative. When the Torah was given, a prohibition
of marrying a daughter-in-law was given.
However, due to the importance and value of yibbum, the Torah allowed a
brother to marry his sister-in-law, if her husband had left no
progeny.
According to the Ramban, there was no mitzva of yibbum before the Torah
was given. However, yibbum was
practiced by those who understood its value. Perhaps this custom predated the
incident of Er and Onan, but it was not recorded in the Torah. However, Bereishit Rabba (85:6) says
that Yehuda originated the mitzva of yibbum. If indeed this was an established
custom, perhaps the midrash means merely that Yehuda did this as a mitzva, not
just due to local custom. The
mishna (Kiddushin 82a) says that Avraham fulfilled all the mitzvot of the Torah
before they were given. Presumably,
his descendents were also taught to observe mitzvot even though they were not
commanded to do so.
On the other hand, another midrash says that Yehuda was commanded in the
mitzva of yibbum. The midrash (Shir
Ha-Shirim Rabba 1:16) traces the evolvement of the 613 mitzvot. Adam and Noach were commanded in the
Noachide laws, Avraham received the mitzva of mila, Yitzchak was obligated in
mila on the eighth day, Yaakov was prohibited to eat the displaced sinew on the
hip pocket (gid ha-nasheh) and Yehuda received the mitzva of
yibbum.
Tosafot Yeshanim (Yevamot 2a) ask why Yevamot was chosen as the first
tractate in the order of Nashim.
After all, Kiddushin and Ketuvot precede chronologically any application
of yibbum. One of the answers given
is that yibbum is the first mitzva fulfilled by women. This seems rather difficult, as the
mitzva of peru u-revu (procreation) had obviously been already fulfilled since
the very creation.
Perhaps Tosafot felt that not only is yibbum a mitzva that preceded the
giving of Torah, but women were commanded in this mitzva as well. Even though women certainly fulfill the
mitzva of peru u-revu (Ran, Kiddushin 41a), we follow the opinion that women are
not commanded in this mitzva (Yevamot 65b; see also The Weekly Mitzva, shiur
#1).
Apparently, the question of whether Yehuda was commanded in yibbum or
merely observed it as a custom is disputed by Rishonim. As we have seen, the Ramban, in his
commentary to the Torah, says that it was a custom. In his novellae (Yevamot 98a), Ramban
asserts that Noahcides are forbidden to have a relations with blood relatives
(such as mother or daughter), but are permitted to marry relatives through
marriage. He asserts that Yaakov
was permitted to marry two sisters (however, see Ramban's commentary to Vayikra
24:10 for another, seemingly contradictory, explanation). He therefore says that Yehuda was
allowed to marry his daughter-on-law.
He does not refer to yibbum as a mitzva at all.
However, the Rashba (ad loc.) refutes the proof brought from the incident
of Tamar and Yehuda. The Rashba
argues that even if all relatives (not just blood relatives) are forbidden to
Noachides, Tamar was permitted, since the MITZVA of yibbum would overcome any
prohibition. The mitzva was
incumbent upon all family members prior to giving the Torah, and was limited by
the Torah to brothers of the deceased.
Why, then, did Yehuda first instruct Er to perform yibbum, instead of
doing it himself? The Rashba
answers that Yehuda wished to have the mitzva fulfilled according to Torah
parameters, in a manner similar to the tradition that our ancestors fulfilled
the entire Torah before it was given.
Thus, the Ramban apparently feels that this act of yibbum was not
required, and the Rashba considers it a mitzva.
When Tamar was found to be pregnant, Yehuda proclaimed that she should be
given the death penalty. What was
the sin for which this punishment should be imposed? The Chizkuni (Bereishit 38) points out
that if a widow who is awaiting a levirate marriage has relations with someone,
it is punishable by stripes (malkot) but not by death. He explains that the reason for the more
stringent punishment is due to the severity of the Noachide laws. The Chizkuni adds that Tamar in fact not
sin at all. Since she intended to
fulfill the mitzva of yibbum, it was permissible for her to have relations with
Yehuda, her father-in-law. Had she
sinned, any transgression of the seven Noachide laws would incur a death penalty
(Rambam, Hilkhot Melakhim). Rav M.
Kasher, in his Torah Sheleima, cites a manuscript of Ba'alei Ha-Tosafot that
Tamar was thought to be guilty of a form of adultery, since she was awaiting
yibbum. This obviously implies that
the mitzva of yibbum applied to her.
We have learned that, according to the Ramban, there was no mitzva of
yibbum. Why, then, would Tamar be
punished? The Ramban himself
explains that Tamar was considered to be rebellious. He assumes that the household of Yehuda
was considered to be royalty, and anyone who rebels against the king or his
kingdom is punished by death (see Rambam Hilkhot Melakhim
9:14).
There is a dispute in the gemara (Yevamot 39b) whether it is preferable
to perform yibbum or chalitza (a ceremony which, when performed, frees the widow
to marry anyone of her choosing). She'elot U-teshuvot Beit Yosef (Even Ha-Ezer)
comments that yibbum is preferable, as historically it preceded chalitza. He feels that while Noachides practiced
yibbum, either as a mitzva or a custom, chalitza was an alternative given only
at matan Torah.
We have discussed the issue of yibbum prior to matan Torah. Today, the mitzva and obligation or
yibbum is certainly in force, yet the accepted custom is that only chalitza is
done (Yevamot 39b; Shulchan Arukh Even Ha-Ezer 165:1).