The Road to Monogamy Part II

5Should brothers dwell together and one of them die and have no son, the wife of the dead man shall not become wife outside to a stranger. Her brother-in-law shall come to bed with her and take her to him as wife, and carry out a brother-in-law’s duty toward her. 6And it shall be, the firstborn whom she bears shall be established in the name of his dead brother, that his name be not wiped out from Israel. 7And if the man does not want to wed his sister-in-law, his sister-in-law shall go up to the gate to the elders and say, “My brother-in-law has refused to establish a name for his brother, a name in Israel. He did not want to carry out a brother-in-law’s duty toward me.” 8And the elders of his town shall call to him and speak to him, and if he stands and says, “I do not want to wed her,” 9his sister-in-law shall approach him before the eyes of the elders and slip his sandal from his foot and spit in his face and speak out and say, “So shall be done to the man who will not build his brother’s house.”

The mitzva of levirate marriage takes precedence over the mitzva of ḥalitza, which dissolves the levirate bond, as it is stated: “And if the man does not wish to take his brother’s wife” (Deuteronomy 25:7). The mishna adds: This was the case initially, when people would intend that their performance of levirate marriage be for the sake of the mitzva. But now that they do not intend that their performance of levirate marriage be for the sake of the mitzva, but rather for reasons such as the beauty of the yevama or for financial gain, the Sages said that the mitzva of ḥalitza takes precedence over the mitzva of levirate marriage.

Rami bar Ḥama said that Rabbi Yitzḥak said: In later generations they went back to once again saying that the mitzva of consummating the levirate marriage takes precedence over the mitzva of performing ḥalitza. Rav Naḥman bar Yitzḥak said to him in wonderment: Could it be that the later generations improved their spiritual level and now intend to consummate the levirate marriage solely for sake of fulfilling the mitzva? The Gemara explains that this does not mean that the later generations improved themselves; rather, initially they held in accordance with the opinion of Abba Shaul, and so the mitzva of performing ḥalitza took precedence, and in the end they held in accordance with the opinion of the Rabbis, and so the mitzva of consummating the levirate marriage took precedence. As it is taught in a baraita: Abba Shaul says that one who consummates a levirate marriage with his yevama for the sake of her beauty, or for the sake of marital relations, or for the sake of another matter, e.g., he wishes to inherit her husband’s estate, it is considered as though he encountered a forbidden relation, and I am inclined to view the offspring born from such a union as a mamzer. Since the prohibition against engaging in relations with one’s brother’s wife is overridden only for the sake of fulfilling the mitzva of consummating the levirate marriage, when one does not have the intention to fulfill that mitzva, the baseline prohibition applies, and so any offspring from the union will be mamzerim. The Rabbis say: The Torah states: “Her brother-in-law will have intercourse with her” (Deuteronomy 25:5), which indicates that he should do so in any case, even if his intentions are not solely for the sake of fulfilling the mitzva.

(5) The mitzva of levirate marriage is for the eldest of the brothers to consummate the levirate marriage. If the eldest does not want to do so, the court goes to each of the other brothers and requires them to do so. If they do not want to do so, the court returns to the eldest brother and says to him: The mitzva is incumbent upon you; either perform ḥalitza or consummate the levirate marriage.

MISHNAH: If four brothers were married to four women and died, if their oldest [brother] wants to marry all of them in levirate, he is permitted to do so....

HALAKHAH: “Four of the brothers,” etc. Explanation: There were thirteen brothers, of whom twelve died childless. They [the widows] came and wanted to be married in levirate before Rebbi. He said to him, go and take in levirate. He said to him, it overtaxes my means. But each one of them said, I will support during my month. He said, and who will support during that intercalary month? Rebbi said, I shall support during that intercalary month. He prayed for them and they went from him. After three years they came, carrying 36 toddlers. They came and stood in front of Rebbi’s dwelling. [People] went in and told [Rebbi], outside are rural toddlers who want to greet you. Rebbi looked down from the window and saw them. He asked them, for what are you here? They said to him, we beg that you give us [support for] that intercalary month; he gave them [support for] that intercalary month.

It is related further that Rabbi Yehuda HaNasi arranged for his son to marry a daughter of the household of Rabbi Ḥiyya. When he came to write the marriage contract, the girl died. Rabbi Yehuda HaNasi said: Is there, Heaven forbid, some disqualification in these families, as it appears that God prevented this match from taking place? They sat and looked into the families’ ancestry and found that Rabbi Yehuda HaNasi was descended from Shefatya ben Avital, the wife of David, whereas Rabbi Ḥiyya was descended from Shimi, David’s brother. He went and arranged for his son to marry a daughter of the household of Rabbi Yosei ben Zimra. They agreed for him that they would support him for twelve years to go to study in the study hall. It was assumed that he would first go to study and afterward get married. They passed the girl in front of the groom and when he saw her he said: Let it be just six years. They passed her in front of him again and he said to them: I will marry her now and then go to study. He was then ashamed to see his father, as he thought he would reprimand him because when he saw the girl he desired her and could not wait. His father placated him and said to him: My son, you have your Maker’s perception, meaning you acted the same way that God does. The proof for this is that initially it is written: “You bring them and plant them in the mountain of Your inheritance, the place that You, O Lord, have made for You to dwell in” (Exodus 15:17), which indicates that God’s original intention was to build a Temple for the Jewish people after they had entered Eretz Yisrael. And ultimately it is written: “And let them make Me a Sanctuary, that I may dwell among them” (Exodus 25:8), i.e., even while they were still in the desert, which indicates that due to their closeness to God, they enjoyed greater affection and He therefore advanced what would originally have come later. After his wedding he went and sat for twelve years in the study hall. By the time he came back his wife had become infertile, as a consequence of spending many years without her husband. Rabbi Yehuda HaNasi said: What should we do? If he will divorce her, people will say: This poor woman waited and hoped for naught. If he will marry another woman to beget children, people will say: This one, who bears him children, is his wife and that one, who lives with him, is his mistress. Therefore, her husband pleaded with God to have mercy on her and she was cured.

If he says: I will go and marry a different woman and examine myself to see if I am indeed the cause, Rabbi Ami said: Even in this case he must divorce his first wife and give her the payment for her marriage contract, as I say that whoever marries a woman in addition to his first wife must divorce his first wife and give her the payment for her marriage contract.

Conversely, Rava said that a man may marry several women in addition to his first wife, and there is nothing wrong with this practice as long as he has enough to support them all.