The Life That Frees Her

About This Talk

A new treatise opens, and its first chapter spends itself almost entirely on who is bound and who counts, not on the rite itself. It is a positive commandment for a man to marry the widow of his paternal brother who died childless, whether she was fully married or only consecrated; no kiddushin is needed, since she is the wife heaven acquired for him, and her marriage contract is paid by the first husband's estate. If the yavam does not want her, or if she does not consent, he performs chalitzah, itself a positive commandment from the verse that she shall remove his shoe, and the Rambam rules that yibbum takes precedence over it. Childless is then read as widely as the word allows: a son, a daughter, a child of either, from this wife or any other woman, frees her, and so does a surviving descendant who is illegitimate or who worships idols, since the law asks only whether a life exists. The one boundary is lineage, so a child born to him from a maidservant or a non-Jewish woman does not free her, because her offspring follow her status, and neither emancipation nor conversion afterwards changes that, even where he freed the son and married his mother. A widow left pregnant who miscarries is bound, while a child that emerges into the world alive frees her even if it dies at once; where the pregnancy is not known to have run nine full months the child must live thirty days, and if it dies within them, even on the thirtieth, from illness or a fall or an animal, she performs chalitzah by rabbinic law and may not perform yibbum. On the other side, any brother obligates her once his head and the greater part of his body emerged before the death, even a minor, even one illegitimate or idolatrous, though she should seek release rather than marriage from that one, while a brother born after the death never enters the obligation and a brother through a maidservant or a non-Jewish mother is no brother at all, since what counts is her status at conception. Maternal brothers are brothers for mourning and testimony alone and are treated as nonexistent for inheritance, yibbum and chalitzah, because fraternity is derived from the father alone; and converts have no fraternity whatever, even twins, unless both conceived and born after the conversion. The second half of the chapter reads as limits on the man. Where his brother left several wives, one rite with any of them frees the rest and he may not take two, from the verse that he did not build his brother's house, read as one house and not two; several deceased brothers allow one widow from each household and only where he can actually provide food, clothing and conjugal rights. If some widows may still marry into the priesthood and some may not, chalitzah must be performed with one already disqualified, and a court enforces it. After yibbum the remaining widows are forbidden to all the brothers by a prohibition stemming from a positive commandment, and after chalitzah by rabbinic decree as sh'niyot, so a consecration would still be binding; the chalutzah's close relatives become forbidden to him and her status is like that of a divorced wife, as are the relatives of a yevamah who dies while still bound, and no brother may marry a relative of a woman still waiting until one of them has freed her. A man who marries his yevamah and divorces her may remarry her with no trace of the prohibition left. A yavam over nine years and one day holds the bond by relations but may not perform chalitzah until he attains manhood and is inspected, since the Torah says ish, and his relations do not acquire her entirely; a minor yevamah may be married but not released until majority and inspection; where both are minors, they should grow up together. Neither rite is performed within ninety days of the death, chalitzah included, not for paternity but because the Torah set the two rites equal, so that whoever is unfit for one is unfit for the other. Finally, chalitzah with a pregnant woman is no chalitzah and relations with her are no yibbum, since a child removes nothing until it emerges: bear a viable child and the rite is as though it never happened and she may marry into the priesthood, miscarry or lose the child within thirty days and it must be done again, and another widow of that household may not remarry until she gives birth. A yavam who married her and then found her pregnant separates at once; if the child dies he gives a bill of divorce and performs chalitzah, if it lives thirty days no divorce is needed, and a viable child born six months after the yibbum leaves paternity in doubt, so he divorces her, though the child himself is not illegitimate.