The Ban Of The Communities
‘Impaired Chalitzah’
(Yevamos 26b)
A tragedy occurred in the court of the Belzer Rebbe. The Sar Shalom of Belz zt”l had four sons: R’ Elazar (the firstborn), R’ Shmuel Shmelka, R’ Moshe, and R’ Yehoshua. His second son, R’ Shmuel Shmelka, died childless, leaving his widow in need of chalitzah.
The Oldest Is Obligated
The Gemara (supra 24a-b) informs us that although all brothers are eligible for yibum, the mitzvah le’chatchila falls on the eldest brother. He is approached and asked to do yibum. If he refuses, his younger brothers are asked (in order of age). If they all refuse, the mitzvah returns to the eldest, and he is commanded to do either chalitzah or yibum.
Defective Chalitzah
Our Gemara discusses a case in which one of the brothers is forbidden to marry the yavamah and so does chalitzah instead. The Gemara cites an opinion that since he was forbidden to do yibum, his chalitzah is invalid. The yevamah therefore requires chalitzah from a different brother.
Some authorities maintain that whenever a brother may not do yibum – even if only by Rabbinic law – his chalitzah is invalid if he performs it (see Encyclopedia Talmudis 15, pp. 809-814).
Rabbeinu Gershom’s Ban
In the eleventh century, Rabbeinu Gershom Me’or HaGolah pronounced a 1,000-year ban on polygamy. Therefore, a married brother may not perform yibum (even though Rabbeinu Gershom’s ban is not even technically a rabbinic law). However, some Rishonim maintain that Rabbeinu Gershom never extended his ban to include marrying a yibum. Rather, a married man may marry a yevamah as a second wife. (Sefer HaTeruma 133, Ritva 44a, Shulchan Aruch, Even Ha’ezer 1:10).
According to the stringent opinion that a married man may not marry a yevamah (Tur 165; Rema 1:10), then every brother must perform chalitzah – if they are all married – since the chalitzah of one does not exempt the other brothers. Some Rishonim espouse this view. The Mordechai (12:57) suggests that if every brother is married, beis din should temporarily lift Rabbeinu Gershom’s ban and allow one of the brothers to do yibum. Once he is allowed to do yibum,he can perform a valid chalitzah which would exempt all his brothers from having to do so. (See Mahari Vayil 188.)
The Beis Shmuel (Seder Chalitza 46) writes that doing this is unnecessary. He writes though, that if there is an unmarried brother, even if he is not the oldest, he should do chalitzah instead of the oldest who is married (Beis Shmuel E.H. 161:7).
The Divrei Chaim of Tzanz agrees with this ruling and explains that even the Rishonim who permit taking a yavamah as a second wife do so only if there is no unmarried brother. If there is an unmarried brother, then all agree that Rabbeinu Gershom’s ban applies. And since the married brother may not do yibum, his chalitzah is invalid and would not exempt the other brothers from having to do chalitzah.
Although the Torah generally requires the eldest brother to do chalitzah, in this case his chalitzah is questionable. Therefore, it is better to bypass him, and have it done by a younger brother, whose chalitzah is valid according to all opinions.
Breaking an Engagement
In the case of the Belzer Rebbe’s family, the oldest brother couldn’t do chalitzah because he was already married and the third brother, R’ Moshe, was engaged to be married. A “Ban of the Communities” forbade breaking off an engagement without the consent of both sides. R’ Moshe could not perform yibum, therefore, without breaking off his engagement. Perhaps, then, his chalitzah would also be invalid.
