March 18, 2022

Yevamot 8

Towards the end of today’s daf (Yevamot 8b) is a brief statement which should agitate anyone with a moral compass. As you may recall, and as explained in my remarks on Yevamot 3b (see, we learn from Devarim 25:5 that when a husband dies without children then an automatic partial ‘marriage’ is established between this brother and his sister-in-law, at which stage we are taught, יְבָמָהּ יָבֹא עָלֶיהָ וּלְקָחָהּ לוֹ לְאִשָּׁה וְיִבְּמָהּ – ‘her Yavam (i.e. husband’s brother) shall come upon her and take her in marriage, fulfilling the duty of Yibbum’.

I wish to stress the word עָלֶיהָ (‘upon her’) because, as pointed out by the Malbim (in his commentary to Devarim 25:5), throughout the Tanach we find that wherever reference is made to a consensual physical union between a man and woman, the word used is אל (‘to [her]’) in its varied forms is used (eg. וַיָּבֹא אֵלֶיהָ, וָאֶקְרַב אֵלֶיהָ), whereas in contrast, the word עָלֶיהָ is used with reference to Yibbum. And what is the significance of this? It is, as we are taught in today’s daf, that a Yevama may be ‘married’ בעל כרחה – against her will.

In case you may think that this is a poor translation of this phrase, it is worthwhile referencing the Beraita quoted in Yevamot 54a which teaches, on the basis of this same word עָלֶיהָ (‘upon her’), that Yibbum can be fulfilled בין באונס בין ברצון – ‘whether under coercion or willingly’, and this is the law as codified by the Rambam (Hilchot Yibum V’Halitzah 2:3).

Significantly, this contrast is also emphasized in other areas whereby, while in relation to ‘regular’ marriages the Rabbis (see Kiddushin 12b) interpret Devarim 24:1- כִּי יִקַּח אִישׁ אִשָּׁה וּבְעָלָהּ (‘If a man takes [i.e. through some form of intentional ceremony] a wife and becomes her husband [through sexual union]’) to teach us that a formal ceremony (what we nowadays call a wedding) is necessary to sanctify the sexual union for the purpose of marriage , in terms of Yibbum we are taught from Devarim 25:5 – יְבָמָהּ יָבֹא עָלֶיהָ וּלְקָחָהּ לוֹ לְאִשָּׁה (‘If a Yavam comes upon her [through sexual union] and takes her in marriage’) that Yibbum is a ‘marriage’ that operates differently to all others (see Kiddushin 14a) where the sexual union, and nothing else, is demanded and becomes the foundation of the marriage.

For those like the Meshech Chochmah (see his commentary Devarim 25:5), all this grates with the general ethical demands of Jewish law. Yet, as he then explains, it is worthwhile noting how Rav Huna instituted (see Yevamot 52a) that even in the case of Yibbum an intentional ceremony is required, and often after such a ceremony may the Yavam and Yevama come together in sexual union.

As should be clear, and as explained in my comments to Yevamot 3b, yibbum is fraught with moral and ethical challenges. Yet, it is precisely because this is the case, and precisely because the law can be interpreted and applied to allow actions that do not fit with our moral sense, that our Sages added safeguards to prevent such behaviour and the possibility of this mitzvah being abused.

Ultimately, in every generation certain mitzvot can sadly be misinterpreted, and certain religious practices can unfortunately be harnessed in ways that can lead to various forms of abuse. And what we see from the above is that it is the duty of our Sages to be cognizant of this fact and, where necessary, add safeguards to prevent and and to – what may be described as ‘halachically criminalize’ – such behaviour.

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