The One Thing a Court Will Force

About This Talk

Chapter 2 runs on one asymmetry, that a court does not compel yibbum and does compel chalitzah, and every ruling in it is calibrated against the reason, which is that until one of the two is performed the yevamah may not remarry. It opens with a Rabbinic restraint rather than a ceremony: the yavam may not enter marital relations until he first consecrates her before two witnesses with a perutah or an article worth one, an act called ma'amar, which does not by itself complete the acquisition and accomplishes nothing at all if done without her knowledge, since a woman is consecrated only willingly, with a father's consent required where she was widowed as a consecrated minor. He recites the marriage blessings before ten men and writes her a ketubah as any man marrying a woman must, and if he performs yibbum with no ma'amar the acquisition binds anyway, since disobeying the Sages does not void a Scriptural act, though he takes stripes for rebellious conduct and writes the contract regardless; relations acquire her whether done knowingly or in ignorance, under duress or willingly, by either party, but not where there was no intention of a marital act at all, so a man asleep or insensible with drink acquires nothing. If within thirty days of taking her home she says the marriage was never consummated and he has already divorced her, chalitzah is compelled; after thirty days relations are presumed and he is only asked, unless he admits it; and if she says it was consummated and he denies it she needs no chalitzah, because his word is not accepted where its effect is to forbid her to every other man. The mitzvah falls on the eldest surviving brother, learned from the firstborn son whom she bears, which the Oral Tradition reads as the eldest of the brothers with the bearing referring to their own mother, and if he declines the option passes to the others and then returns to him; no respite is granted until a minor matures, a traveler returns, or a brother who lost speech and hearing recovers, and where the eldest is in another country the brother present must act and may not defer to him, all because she is not to be subjected to an unnecessary delay. A yevamah fit for yibbum who refuses is judged like a rebellious wife, so her yavam is compelled to release her and she forfeits her marriage contract, and where several wives survive only the one he asked and who refused forfeits; if the eldest asks her, her preference for another brother is not considered, but once the eldest demurs all the brothers are equal, so a woman who tells a younger brother she would rather wait for a brother abroad is not a refuser and he is told to release her with her contract or let her wait, until the awaited brother returns and declines, at which point she must accept the willing brother or leave without the money. If the yavam is a leper or carries defects for which a husband must divorce, he is compelled to release her with her contract in full, and a blemish that arose while she waited is called the yavam's lack of fortune, because the bond began the moment her first husband died; a vow she took in her first husband's lifetime for unrelated reasons compels the release with her contract while one taken after his death draws only a request, and if the vow was aimed at escaping yibbum she stands as a refuser. She may not insist on remaining unreleased in her husband's house, even offering to support herself for life, since he may answer that while she is bound to him no other woman will marry him. A yevamah who had no contract rights against her husband has none against the yavam, who assumes the additional sum the husband promised, while a husband who wrote none at all leaves the yavam to write one as for any widow. Before release she is forbidden to another man by a negative commandment, and if she marries and they live together both are liable to lashes and he must give a get even after children, and she is forbidden to him and to her yavam until the yavam's chalitzah frees her; mere consecration by another does not forbid her, the second man divorces her so that a sinner not profit even where the yavam is a priest barred from a divorcee, and where the obligation itself rests on a Rabbinic doubt, as with a child born of a pregnancy not carried to term who died within thirty days, a priest's wife is left in her marriage and no chalitzah is performed, since a man's wife is not forbidden to him on account of a decree built on doubt.