The Ban Of The Communities
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 chalitza.
The Oldest Is Obligated
The Mishna and Gemara (supra 24a-b) tell us that although all the brothers are eligible for yibum, the mitzvah le’chatchila falls to the eldest brother. He is approached and asked to do yibum. If he refuses, his younger brothers are asked (in order or age). If they all refuse, then the mitzvah returns to the eldest, and he is commanded to do either chalitza or yibum. Whether yibum or chalitza is performed, the obligation rests le’chatchila on the eldest. In this case, the eldest brother, R’ Elazar, was already married. Therefore, the question was raised that perhaps one of the other brothers should perform chalitza instead.
Our Gemara discusses a case in which one of the brothers is forbidden to marry the yavama, and gives her chalitza instead. The Gemara cites an opinion that since he was forbidden to do yibum, his chalitza is also invalid, and she requires chalitza from a different, eligible brother.
Some maintain that in addition to the examples listed in the Gemara, whenever yibum is forbidden, even if only by Rabbinic law, the chalitza is invalid (see Encyclopedia Talmudis 15, pp. 809-814).
Rabbeinu Gershom’s Ban
In the eleventh century, Rabbeinu Gershom Me’or HaGolah pronounced a thousand-year ban on polygamy. As such, a married brother may not perform yibum to take on a second wife. Although this is not technically a Rabbinic prohibition, since it was not decreed by the Sages of the Talmud, perhaps it is enough to render a chalitza from a married brother invalid, since he may not take a second wife. However, the Rishonim debate whether Rabbeinu Gershom extended his ban to include yibum. Some permit a married brother to take a yavama as a second wife (Sefer HaTeruma 133; Ritva 44a; Shulchan Aruch E.H. 1:10). Others claim that this too is included in the ban, and a married brother may only perform chalitza, not yibum (Tur 165; Rema 1:10).
According to the stringent opinion, if all the brothers are married, then this mirrors the case described in our Mishnah, in which all the brothers must perform chalitza, since each one’s chalitza does not exempt the others. Some Rishonim espouse this view (Mordechai 12:57 suggests that in such a case Beis Din should lift the ban, allowing one of the brothers to do yibum. His chalitza would then be valid, and no other brother would be required to do chalitza. See Mahari Vayil 188).
The Beis Shmuel (Seder Chalitza 46) writes that this is unnecessary. However, if there is an unmarried brother, even if he is not the oldest, he should preferably do the chalitza 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 yavama as a second wife refer only to a case where there is no unmarried brother. If there is an unmarried brother, then all agree that Rabbeinu Gershom’s ban applies. Since the married brother may not do yibum, his chalitza is invalid (according to the opinions stated above), and would not exempt the other brothers.
Although the Torah generally requires the eldest brother to do chalitza, in this case his chalitza is questionable. Therefore, it is better to bypass him, and have it done by a younger brother, whose chalitza is valid according to all opinions.
Breaking an Engagement
In our instance, the third brother, R’ Moshe, was already engaged to be married. A “Ban of the Communities” was then observed, which forbade breaking off an engagement without the consent of both sides. R’ Moshe could not perform yibum without breaking his engagement, and therefore perhaps he was also invalidated in performing chalitza. However, the Divrei Chaim presented several arguments against this. Among them, he noted that the Ban of the Communities does not apply to such a case (see Sho’eil U’Meishiv 1:1:69; Admorei Belz 1:p. 92).