For weeks now, we’ve been discussing the particulars of levirate marriage and the ceremony, known as halitzah, that is performed in situations where the brother of a deceased childless man declines to take his brother’s widow as his wife. The Torah describes how the halitzah ritual is done.
“His brother’s widow shall appear before the elders in the gate and declare: ‘My husband’s brother refuses to establish a name in Israel for his brother; he will not perform the duty of a levir.’ The elders of his town shall then summon him and talk to him. If he insists, saying, ‘I do not want to take her,’ his brother’s widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: ‘Thus shall be done to the man who will not build up his brother’s house! And he shall go in Israel by the name of the family of the unsandaled one.’” (Deuteronomy 25:7-10)
Given the public rebuke and humiliation embedded into this ritual, it is not a stretch to conclude that halitzah is not the Torah’s preferred option. On today’s daf, however, the Talmud suggests that this preference is not absolute and that there are cases when halitzah is the preferred option. But how can the rabbis justify recommending halitzah when the Torah doesn’t?
The discussion begins with a mishnah from the bottom of yesterday’s daf:
Four brothers married four women and died childless. If the eldest surviving brother wishes to consummate the levirate marriage with all of his yevamot, he has permission to do so.
The Gemara, a bit taken aback that a man could enter into four levirate marriages at once, is quick to challenge:
Do they really allow him to do so?
In support of the idea that he isn’t, the Gemara cites a beraita:
The Torah states: “The elders of his town shall then summon him and talk to him.” This teaches that they offer him advice that is appropriate for him. This means that if he was a young man and she an elderly woman, or if he was an elderly man and she a young woman, they say to him: What do you want with a young woman when you are elderly? Or: What do you want with an elderly woman when you are young? Go after your own kind and do not place discord in your household.
Just as the elders discourage a man from entering into a levirate marriage to prevent problems that may arise from a significant age gap, the Gemara reasons they should intervene in the mishnah’s case too. Why? To prevent him from taking on the financial burden that may result from entering into multiple marriages at the same time.
The beraita’s teaching is based on a midrashic reading of the phrase “the elders of his town shall then summon him and talk to him.” Because the verse does not specifically say what they talk to him about, the rabbis find an opening to put other words in the mouths of the elders, including ones that seek to talk the man out of a levirate marriage — the precise opposite of what the biblical context implies.
In the end, the Gemara moderates its objection to a man who wants to marry all four of his brothers’ widows. If he has the means to do so, the Gemara concludes, he may marry them all. If he doesn’t, the elders should step in and discourage him. In the latter situation, the surviving brother will suffer the public humiliation of halitzah, but he will also avoid the greater suffering that would result from adding mouths to his household that he can’t afford to feed.
Although yibbum may be the Torah’s preferred option, the rabbis are aware that this preference is not absolute. By flexing their midrashic muscles, they are able to carve out exceptions to biblical norms and limit the power of mishnaic legislation. And by encouraging a yavam to opt for halitzah when marriage creates certain social or financial challenges, they find a way to protect those that the rules may have overlooked.
Read all of Yevamot 44 on Sefaria.