16-5767 Mitzvah 45 & 46

Talmidav Shel Aharon
16-5767 Mitzvah 45 & 46
March 5, 2007

Mitzvah 45 – It is a positive commandment to marry the wife of one’s brother who has died without children.
Hafetz Hayyim: Scripture states: “If brother dwell together and one of them dies … her husband’s brother shall go in to her and take her to him for a wife (Deut. 25:5). In our time however, when there is no intention in this for the sake of the religious duty to establish a name for one’s dead brother, the law of levirate marriage is not in force but only Halizah described below.
Mitzvah 46 – It is a positive commandment that a yevamah (a childless widow) should remove the shoe of the yavam (her husband’s brother) if he does not want to take her in levirate marriage.
Hafetz Hayyim: Scripture states: “And if the man does not wish to take his brother’s widow … then she shall remove his shoe from his foot etc. (Deut. 25:7,9). This ritual of halitzah (removal of the shoe) is to be carried out only through learned rabbis who are expert in these matters. Whoever does not allow his brother’s widow halitzah disobeys this positive commandment. There are men who refuse to grant their brother’s widows halitzah, saying that through this there will be some danger for them But that is a great mistake. The ways of HaShem are right and no evil will befall them if they fulfill this religious duty. On the contrary: if they will not want to observe the positive commandment, their sinfulness is enormously great. It is in effect everywhere , at every time.

In the time of the Hafetz Hayyim, this was already on the wane and today, it is very rare that these laws would still apply. To understand what is happening, we need a bit of history.
Judaism has never had a “will” in the sense that we use it today. One is not allowed to divide up one’s possessions except as prescribed in Jewish Law. First, if the wife survives her husband, her Ketubah was paid first from his estate. If there were sons, the sons got an even split of the estate with the firstborn son getting a double portion. For example, if there were three children, the estate would be divided into four parts with two going to the firstborn and the rest evenly divided by the other two brothers. If there were also daughters, the sons were obligated to support them until they were married, even if they were reduced to begging door to door. Daughters could inherit directly only if there were no sons. If there were no children, then the next in line were the brothers of the deceased.
What this meant was that a portion of the deceased father’s estate was not to be re-divided by the surviving brothers. And it would be as if the dead brother never existed. What the Torah asked of the eldest brother was that he marry the widow of his brother and have a child so that the child that they would bear would inherit the estate of the deceased brother. That was the plan. The deceased brother’s line would thus be preserved.
If the brother refused to marry the widow and have a child, then there was a ceremony where the widow would remove a shoe from the eldest brother’s foot and declare that he was unwilling to fulfill this mitzvah so she was free to marry whoever she wanted and the estate would be lost to whatever future children may come. It was supposed to be enough of an embarrassment for the brother to encourage him to “do his duty”. That ceremony was called, Halitztah.
That was the plan, but there was a big flaw in it. With one brother dead, the others would then re-divide their father’s estate and it could be a rather big addition to their holdings. The monetary issue was so great that who would want to marry the widow and lose all that property? Eventually Halizah became the rule, not the exception and everyone would be able to move on with their lives. The widow would be paid for her ketubah and the brother would have the estate.
In the time of the Hafetz Hayyim Halitzah was still being done. I don’t know that it happens anymore today. Since both parties gain by doing it, Rabbis assume that this is what both sides want. The laws of inheritance now follow local laws (not Jewish law) so the money is no longer an issue and there is no more tie between the family and the widow. I can not say that it is NEVER done anymore, since there are always some who may be doing it. The law remains on the books that Halizah is required (one is not allowed to opt to marry the widow) but I have never seen it done. The Rabbis also note that if someone should marry a woman who needed Halizah and it was not done, it is a valid marriage (and if it should end, it requires a get). All this is another example of how laws grow and change, not just in Conservative Judaism, but in all of Jewish Law, and that Judaism has always made accommodations when the law does not turn out quite as it was expected to turn out.