by R. Gidon Rothstein
18 Sivan: R. Ovadya Yosef on Chalitzah Within Three Months When Necessary
[Click here for the audio version].
People do not always accommodate as we would hope. Shu”t Yabi’a Omer 8; Even HaEzer 28, which was written in late 1975, refers to a court decision R. Ovadya Yosef joined on 18 Sivan 5723 (1963).
A rabbinical judge in Haifa was faced with a widow whose husband passed away without children. The one surviving brother was not observant and only agreed to perform a chalitzah right away, since he had to travel for business and would not return for a long time. He was not willing to wait until three months passed from his brother’s death, whereas Rambam, Laws of Yibum 1;19 records the common rule to wait that long before we would have such a ceremony (to be sure she’s not pregnant, which would make it unnecessary).
When there’s so much pressure to have the chalitzah earlier, is there a way to do so?
The Link Between Yibum and Chalitzah
We might have denied the need to wait at all, since the couple is not getting married (marriage between the brother and the widow violates an arayot prohibition unless she needs yibum, so there we understand why we’d make them wait). Rambam instead records Yevamot 36a’s rule, only a woman eligible for yibum is eligible forchalitzah.
We still might have denied the rule’s relevance to our case, might have thought we could limit the idea of eligibility to issues other than timing (such as other questions around their ability to marry), but Yevamot 41b disabuses us of our notion. Eliyahu HaNavi himself could not assure us she was not pregnant in such a way as to allow her to have chalitzah early.
The Gemara takes the rule to be a legally required waiting period regardless of fertility. Minors, too, have to wait, for example. The rule is Rabbinic (which might explain why it applies even where its underlying logic does not, since the Rabbis often made blanket rules), as Tosafot point out on Yevamot 35b.
There, the Gemara forbids a man from marrying the relatives of a woman for whom he has performed chalitzah despite her later turning out to be pregnant. The pregnancy should have retroactively nullified the chalitzah, since she was not eligible for it, yet the Gemara rules the chalitzah creates a permanent connection, as if they had married and divorced.
Gathering Evidence that the Chalitzah Counts
To explain how a chalitzah happened when she was pregnant, Tosafot says they performed the ceremony within the three months after the first husband passed away. Ri offered two reasons the chalitzah prevents him from marrying her relatives despite our now knowing it was unnecessary.
First, by Torah law, it works; it’s a Rabbinic rule to wait. Second, Yevamot 41b obligates the woman to wait to remarry even if she did have her chalitzah early. The Rabbinic rule prescribed a time frame for chalitzah, but did not render early ones ineffective.
Rema to Even HaEzer 164;1 did codify the view of Hagahot Mordechai who declared such a chalitzah pesulah, invalid, which would mean she would need another chalitzah from each of the brothers (chalitzah pesulah dilutes her connection to the brothers; only a chalitzah from each will be enough to free her to marry someone else).
Taz disagreed, for three reasons: because Hagahot Mordechai relied on a view in the Yerushalmi which the Bavli disputed; because Hagahot Mordechai is a lone opinion on this issue; and because even Yerushalmi thinks if she ended up remarrying without redoing the chalitzah, we do not insist on another chalitzah. The Vilna Gaon agreed with Taz.
Inference suggests Tosafot would have agreed with Taz and the Vilna Gaon. Ri gave two answers, the first of which could have meant she needs to do the chalitzah again, just that her relatives are already prohibited to him because the first chalitzah worked according to Torah law. However, Piskei Tosafot records only the second view in Tosafot, which Shu”t Tzapichit bi-Devash (by R. Chiyya Pontrimoli, a 19th century Turkish rabbi, father of the more famous R. Binyamin Chayyim Pontrimoli) took as a general sign we should accept that view as authoritative. In our case, it means she does not need another chalitzah if she already remarried.
R. Ovadya Yosef thought Rema himself may have agreed. He reports Hagahot Mordechai’s view, without adding any of his common phrases of ratification, such asve-khen ikkar, that’s the correct way, or ve-hachi hilcheta, so is normative practice. Which is how Sha”ch and Peri Megadim seem to read Rema as well.
Definition of Bedi’avad
Until now, we have discussed bedi’avad situations, where the act has already occurred in the non-optimal way; R. Ovadya Yosef is being asked to allow a chalitzah proactively. He reminds us, however, of the halachic equation between she’at ha-dechak, a time of significant stress or pressure to act a certain way, and bedi’avad[this leads to misunderstandings; to count as if we are in an after the fact (the real meaning of bedi’avad) situation, she’at ha-dechak must mean there’s really no other viable option. But life’s slippery slope leads people to assume they can use such loopholes even for where a certain rule is inconvenient].
In fact, Shevut Ya’akov and others thought true she’at ha-dechak allowed for more leniencies than bedi’avad, such as relying on lone opinions to legitimize a certain course of action.
This woman’s case clearly qualifies, since she will otherwise be left unable to remarry until and unless the brother ever returns from his long-term business trip. Otheracharonim show their implicit agreement to R. Yosef’s view. R. Yosef Shteinhart, author of Shu”t Zichron Yosef and an important 18th century German rabbi, allowed a poor widow to re-do chalitzah with only the original brother-in-law, where Rema required finding all the brothers-in-law. He must have seen the requirement as a stringency only required when it is easily accomplished.
Similarly, Maharil Tzirelson had allowed an early chalitzah when the only brother in law had been drafted to the front of World War II. Since he might be in the army for years, and the war was so chaotic his fate might remain unknown for longer, Maharil Tzirelson in Shu”t Atzei HaLevanon treated it as she’at ha-dechak, and allowed an chalitzah within the first three months (as long as she then waited until three months passed before remarrying).
He offers other complex cases where early chalitzah was allowed, such as where we are sure the marriage was never consummated because the first husband fell ill too soon after the wedding; where one candidate for the brother to perform chalitzah was deathly ill, the other a young minor (so having her wait runs the risk of forcing her to wait years for the younger brother to grow up.
Examples aside, he reminds us he acted on his view back in 1963, where the complications of chalitzah make it plausible we will create permanent or long-term barriers for the woman, we do the chalitzaharly. Because she’at ha-dechak lets us act as if it’s already a fait accompli.