As we know, when a man dies childless, his brother becomes obligated to enter into a levirate marriage with his widow with the goal of producing a child through whom the deceased brother’s lineage can live on. But what happens when the man has more than one brother? Does the obligation for yibbum fall equally to them all or is there a system by which a particular brother is selected for the role?
The Torah verse from which levirate marriage is derived makes no distinction among the surviving brothers. Deuteronomy 25:5-6 states: “If brothers dwell together and one of them dies, and he has no child … the wife’s brother-in-law will have intercourse with her and take her to him to be his wife and consummate the levirate marriage. And it shall be that the firstborn that she bears shall be established in the name of his dead brother and his name will not be blotted out of Israel.”
On today’s daf, we have a mishnah that says differently:
It is a mitzvah for the eldest to consummate the levirate marriage, but if a younger brother consummated the levirate marriage first, he acquires (the yevama as his wife).
According to the mishnah, the obligation of yibbum falls to the eldest brother. But if another brother acts first, his actions fulfill the requirements for yibbum.
How does the mishnah get here from the Torah verse, which says nothing about the elder brother taking priority? The Gemara brings a beraita that explains it:
The sages taught: “And it shall be that the firstborn,” from here they derive that the mitzvah to consummate the levirate marriage is upon the eldest brother.
Instead of reading the reference to “the firstborn” in Deuteronomy as referring to the child, the beraita connects it to the previous verse, which mentions the widow’s brother-in-law. Who shall be the yavam? The one that is firstborn — i.e. the eldest brother. The biblical verse thus becomes a prooftext for the statement in the mishnah.
The beraita continues reading the verse this way:
“He shall be established in the name of his dead brother” — to inheritance.
The beraita goes on to read the phrase “he shall be established” as referring not to the child who will carry on the name of the dead brother, but to the surviving brother who becomes the yavam and inherits the estate of his dead sibling. But if the purpose of a levirate marriage is to establish a legacy for a man who dies childless, wouldn’t it make more sense for the child to inherit the property of the deceased? Why would it be assigned to the brother?
There may be a practical reason for this: At the moment when the man dies, there is no child to take ownership of his property. If yibbum were not a factor — for example, if the dead brother’s children predeceased him — the brother’s estate would be divided equally amongst his siblings. But when yibbum is a factor, as the beraita indicates, the estate is inherited by the yavam.
The yavam might also be given the brother’s inheritance because by engaging in levirate marriage, he now has the obligation to support his new wife and the children they bear. Further, if the levirate marriage does produce a child, the father can choose to pass along the inherited property to the child who bears his brother’s name. So if a particular brother is assigned to be the yavam, it makes some sense to assign him his brother’s assets as well.
Although the beraita’s reading of the biblical text may seem forced, the system it establishes provides clarity and direction for a situation not clearly addressed by the biblical verses.