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How does the obligation of yibum and chalitza apply today?
If in a case where it applies today, the brother insists on yibum rather than chalitza and stands by that decision, how or do we force him to perform chalitza?
What if the brother isn’t religious and refuses to do it, where does that leave the widow?
do we force him to perform chalitza?
If at all possible. Yibum is not done nowadays (except if the yovom is a cheresh).
What if the brother isn’t religious and refuses to do it, where does that leave the widow?
An agunah, lo aleinu. Obviously, everything possible is done to convince him to do it.
I can’t speak for all cases, but in cases where the irreligious brother refuses to do chalitza, poskim have some very inventive ways of being matir the woman to remarry. They try to pasul the first marriage, relying on numerous sfekos, and some more radical poskim might advocate being mafkia the original kiddushin based on the fiction that she would never agree to marry the first husband if she knew how things would turn out (the latter is a very slippery slope). Money, of course is always used to entice the brother to cooperate.
If I recall correctly, in Ashkenazic communities, and many sfardi ones as well, a brother cannot opt for yibum over chalitza – yibum is simply not an option, and the bais din will exert proper pressure (similar to a mesareiv get) to get him to perform chalitza.
They try to pasul the first marriage, relying on numerous sfekos, and some more radical reshaim (sic) might advocate being mafkia the original kiddushin based on the fiction
I fixed it.
So a cheresh *must* do yibum today (since he cannot do chalitza)?
What if the cheresh is married (and Ashkenaz thus under Cherem D’Rabbeinu Gershom)?
I would venture a guess that the cherem was not instituted for such a case. Even if he’s not married, he immediately gives a get.
Why not?
Because he’ll have the wrong kavana.
popa: Calling everyone who advocates hafka’as kiddushin a rasha is a slippery slope. Saul Lieberman wasn’t the only one.
RSRH: Given the state of the success rate of American batei din in that area, what is the halacha if both the yavam and yevama want it and he opts for yibum? Do ashkenazi poskim consider it chal at all?
Itche:
You’re kidding right? Being open minded is nice and all, but when you take it to this, you’re crossing a line.
Do ashkenazi poskim consider it chal at all?
It’s chal, just not allowed.
amongst Sefardim, yibum is still an option today?
Not as far as I know.
popa: While I would agree with you about everyone who advocates it today, it was done in by some amoraim, no?
Then we agree.
Found this on the web:
There are two opinions in the Gemara (Yevamos 39b) about whether or not we should perform Yibum. The Rabanan hold that we should and Aba Shaul holds that we should not. The Rambam explains in a Teshuvah (Yerushalayim, 5694, #170) that according to the Rabanan the Isur of Eishes Ach b’Makom Mitzvas Yibum is completely nullified (Hutrah), whereas Aba Shaul holds that it is only removed if the Yibum is performed l’Shem Mitzvas Yibum (Dechuyah). According to the Rabanan even if one does not perform Yibum l’Shem Mitzvah there is no Isur.
The Rambam (Hilchos Yibum, 1:2) says the Halachah follows the opinion of the Rabanan. Rabeinu Tam holds the Halachah is like Aba Shaul. The Beis Yosef (Shulchan Aruch, EH 165:1) decides in favor of the Rambam and the Rema (op cit.) brings the opinion of Rabeinu Tam. According to this, the Sefardim who follow the Psak of the Beis Yosef, should be able to perform Yibum even today. The Ashkenazim who follow the Psak of the Rema do not practice Yibum at all.
A decree was issued by the Chief Rabbinate of Israel in 1950 and signed by both the Ashkenazi and Sephardi Chief Rabbis, that Yibum should not be practiced in Eretz Yisrael by anyone including the Sefardim, and that anyone that refuses to perform Chalitzah on his Shomeres Yavam is obligated to support her financially.
Rav Ovadia Yosef wrote a Teshuvah (Yabia Omer, E”H 6:14) stating that this decree has no Halachic basis and that the Psak of the Beis Yosef cannot be overturned (and he added that if they extract money from the Yavam to support the Shomeres Yavam, that it is Gezel). Nonetheless, the fact is that as a result of this decree, Yibum is illegal today in Israel, so it is not practiced by anyone here. It seems (from Teshuvos written by Rav Moshe Feinstein and other Poskim) that it has been performed in Chutz la’Aretz by Sefardim.
Over Yom Tov, I read a sefer on the halachic positions of the Rav. One of the cases involved a young widow whose yavam was missing his right foot, preventing her from performing chalitza.
The Rav investigated the matter and ruled that due to the circumstances (i.e. the alternative being that she remain an agunah), yibum could be performed with the proviso that the couple divorce immediately afterward.
The Wolf
As far as I know, a true cheresh cannot give a Get either. This will mean unfortunately that the yevama either remains an aguna as a shomeres yovom unable to marry, or marries the cheresh with Yibum. Tragic both ways.
The Rav investigated the matter and ruled that due to the circumstances (i.e. the alternative being that she remain an agunah), yibum could be performed with the proviso that the couple divorce immediately afterward.
It’s the same reasoning as with a cheresh.
on the ball: I don’t see any “tragedy” if the yevama stays married to the cheresh.
on the ball: I don’t see any “tragedy” if the yevama stays married to the cheresh.
Chazal do. Every Biyah that is without the correct Kavannah is like being Boel an Issur Kares, and the child is like a Mamzer (Abba Shaul, Yevamos 39B, which is how we Pasken).
Lets see, Chazal vs. Joseph, who is right?
Just maybe Chazal?
Maybe?
If I didn’t see something and you showed it to me, how is that a me “vs.”? It isn’t. I didn’t dismiss it, I said quote “I don’t see”. Apology accepted.
That being said, who said that the kavanah must be lacking in a given situation?
Joe:
It is your fault for assuming not like Chazal! If you are ignorant regarding something, just say so, or say “I don’t know the Halacha, but….”.
(at least that is what you would say to others. Personally, I know you don’t know, but others here assume since you are the “Machmir”, you might actually know something. The harshness is really for them, not you or me.)
P.S. If this is too harsh, I apologize, but “Lo Am Ha’aretz Chassid”
No assumptions were made. And you still have utterly failed to cite where CHAZAL, as you falsely claimed, say that it is impossible for a yibum today to have the “correct Kavannah”, which is the entire basis for of your incorrect criticism to be erroneously based upon Chazal. (There are other more contemporary sources that say the proper Kavana cannot be had, but not Chazal as you mistakenly and implicitly asserted.)
Joe:
That is the whole shitta of Abba Shaul. Look it up.
Many Sefardim still accept Yibum today, per the Beis Yosef in Shulchan Aruch, EH 165:1. See MDG above for that and other sources.
“Many Sefardim still accept Yibum today”
has there been an actual case in the past century?
Many Sefardim still accept Yibum today, per the Beis Yosef in Shulchan Aruch, EH 165:1. See MDG above for that and other sources.
Joe:
100% correct. There is a Machlokes Rishonim as per who we Pasken like. Ashkinazim hold like Abba Shaul, and Sephardim hold like the Chachamim.
In fact, HaGaon Rav Yosef Shlita was insistent (IIRC) in allowing Yibbum for Sephardim, even while the Ashkinazic Rabbonim in Eretz Yisroel were trying to disallow it for everyone.
Gavra: And where do you gather I’ve been a “machmir” on this issue? Au contraire, I’ve been taking the “meikel” position (like the Shulchan Aruch) in looking favorably at permitting yibum rather that assuring it.
And surely, gavra, you are not c”v pitting the Mechaber (and the Sefardish Rabbonim like Rav Ovadia Yosef shlit”a) “vs. Chazal” when they pasken in favor of yibum b’zman hazeh. There is no basis to such an accusation.
Joseph: Bechoros 1:7.
gavra: Are you saying that we accept abba shaul’s svara or only that we pasken this din according to him for other reasons? I’m asking because it seems somewhat strange. Where else does lack of kavanna passul a child? Following that logic, all kohanim would be at the very least safek chalal.
“HaGaon Rav Yosef Shlita was insistent (IIRC) in allowing Yibbum for Sephardim”
But has there been an actual case of yibum in recent decades?
One of the cases involved a young widow whose yavam was missing his right foot, preventing her from performing chalitza.
Pischei Teshuvah (165 – 3) brings several sources which deal with such a case.
Most hold to do yibum. Beis Meir ads that cherem d’Rabeinu Gershom does not apply in such a case. The cherem not to give a get without her consent also does not apply, says Bais Meir, because he only married her for the mitzvah. It is implied that they may remain married if they wish.
As far as I know, a true cheresh cannot give a Get either.
True, if he is an eino m’daber v’aino shomeia. The cheresh for whom only yibum (followed by a get) is an option (but not chalitzah) is a m’daber v’aino shomeia (or vice versa, an eeleim)
Beis Meir ads that cherem d’Rabeinu Gershom does not apply in such a case. The cherem not to give a get without her consent also does not apply, says Bais Meir, because he only married her for the mitzvah. It is implied that they may remain married if they wish.
They may remain married even if he is married to someone else? You wrote that he paskened that cherem d’Rabeinu Gershom does not apply in such a case.
True, if he is an eino m’daber v’aino shomeia.
So in a case where an eino m’daber v’aino shomeia is the only brother, the almana remains an agunah for the rest of her life?
But has there been an actual case of yibum in recent decades?
MDG wrote above that Rav Moshe and other poskim wrote teshuvos for Sefardim who practice yibum today.
There are different levels of Cheresh. If someone can consent or object to a get, they probably arent a true cheresh.
They may remain married even if he is married to someone else? You wrote that he paskened that cherem d’Rabeinu Gershom does not apply in such a case.
From the little I saw, it seems so. This obviously would not be practical in a country which prohibits polygamy.
So in a case where an eino m’daber v’aino shomeia is the only brother, the almana remains an agunah for the rest of her life?
I believe so (obviously, you’re assuming that the brother outlives her).
There are different levels of Cheresh.
That’s true.
If someone can consent or object to a get, they probably arent a true cheresh.
He could still be a cheresh and not be able to give a get to someone he’s married to mid’oraisa, such as a case of yibum.
I know of a situation where before a wedding, the chosson’s brother was carrying the ring, and walking around the hall, and wandered into the room where the kalla was doing pictures.
So he held out the ring to the kalla and jokingly asked, “do you want this?” She said yes, so he gave it to her.
The Rav was in the room, and paskened it was kiddushin, since he gave her a wedding ring, and she was wearing a wedding dress, in a wedding hall. So she needed a get.
The problem was that even he gives a get, she will be an issur eishes ach to her chosson.
So the chosson killed his brother and did yibum.
It was in the NY times: http://tinyurl.com/43lq3pc
PBA – I knew your post coudn’t be true, but I was curious what type of link you found. So I did it -very clever. You must know computers well.
Hey! Mods, who changed my link?
I linked to the real story. It was in on page B7 on August 13, 1947.
I know someone who did a sort-of reverse yibum. A young woman who was expecting her first child had some kind of complication which left her comatose for a few months until she was niftar. The baby was delivered safely via C-section. After the woman was niftar, her sister married the widower.
To: Mother in Israel. Marrying your (former) brother-in-law is quite common and 100% Halachicly permissible.
Just this past shabbos, in learning Gemora Yevomas, the Magid Shiur spoke about a case he was involved in. A young man died childless – and the only brother was 4 years old. In order to do Chalitza, you need a godol. Not just bar-mitzvah, but a bona fide godol. The poor widow now has to wait 10 years before she can remarry.
Not just bar-mitzvah, but a bona fide godol.
What’s the difference?
To: Mother in Israel. Marrying your (former) brother-in-law is quite common and 100% Halachicly permissible.
I didn’t know it was common, but I had no doubt that it was halachically permissible.
dy: No Chazaka D’Rava
Mother in Israel-
A former prime minister of yours, Ariel Sharon, married his sister-in-law after his first wife (her older sister) was killed in a car accident.
But I’ll agree with you that it’s not that common.
DY- Saairos. Thus, at least 13 years of age and possibly more.
dy: No Chazaka D’Rava
DY- Saairos. Thus, at least 13 years of age and possibly more.
Well, then, they’re not “bar mitzvah”.
DY: But normally, you don’t have to check, so as far as we are concerned, he is “Bar Mitzva”, due to the Chazaka, and we have no chiyuv to check.
Here, as with other dinei D’Oraysah (such as Laining Zachor), the individual must be checked.
I fail to see the need to wait beyond the thirteenth birthday (assuming the hairs are present). It can easily be determined via medical exam if the hairs are present (if the boy himself is not believed).
The Wolf
Wolf, no need to wait. As you state, if hair is present a simple exam proves it.
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