Why not Chalitzah?

Yevamot (16:1) | Yisrael Bankier | 5 months ago

The Mishnah (16:1) discusses a case where a woman's husband and tzara (co-wife) went oversea. She later received word that her husband had passed away. The Mishnah teaches that the wife that remained would not be able to have yibum performed or remarry without chalitzah until it is determined whether the tzara was pregnant. We shall try to understand this Mishnah.

The wife would not be able to remarry since if the tzara did not have children, she would require yibum or chalitza. Yibum however cannot be performed out of concern that the tzara had a child, which would exempt her from yibum or chalitza, thereby ensuring that the brothers-in-law or yabam remains assur to her. The wife is therefore stuck until the tzara's status is determined.

The Gemara notes that one might think that she could rely on the rov; that most married women have children. Nonetheless there is a chazakah; her current assumed status is that she requires yibum. Consequently, the mi'ut (minority possibility) combines with the chazaka to counter the rov.

Interestingly the Gemara stresses that the mi'ut is that some women miscarry. There is another mi'ut that is not mention which is that some women do not fall pregnant. The Rashba explains that we only say that the mi'ut combines with a chazaka when the mi'ut detracts from the rov itself. In other words, there is a mi'ut within the rov that undermines the position. In other words, in this case, even though the majority fall pregnant, a minority of those women miscarry.

The Baretnura cites the following question from the Gemara, why do we not allow chalitzah to be performed? The Tosfot R' Akiva Eigar explains that if we allow her to have chalitzah after nine months, then either the tzara has a had a child and the woman would be able to marry without chalitzah, or the tzara did not have a child and chalitza would free the wife to remarry. The Gemara explains that that is not an option since if it was discovered later the chalitza was unnecessary then she would be able to marry a kohen. The concern is that even if it was announced that chalitza was unnecessary, if she then married a kohen, there could be people that were aware of the chalitza and not the announcement. If they later discover that she married a kohen, they would mistakenly conclude that a kohen is allowed to marry a chalutzah.

The Tosfot Chad Mikamai (Yevamot 36a) draws two conclusions from this Gemara. Firstly, if the woman was a divorcee and could not marry a kohen anyway, then performing chalitzah would be a solution. Furthermore, if chalitza was performed to this woman, even if she was not a divorcee, then (be'di'eved) she would be able to remarry. His proof comes from the case where chalitza was performed on a pregnant woman who then had a child. The chalitzah was meaningless, and the Mishnah explains that they would be able to marry the relatives of each other, who would have been prohibited had chalitzah been necessary.

The Ritva (36a), however, explains that our case is different. In the case of a chalitzah me'uberet, she has a child that is clear and present proof that the chalitzah was meaningless. In our case however, the child belongs to the tzara in a different country.

The Taz (156:8) however rules that if, be'di'eved, she received chalitza and then it was discovered that the tzara had a child she would even be able to marry a kohen. The Taz points to the debate between Beit Shamai and Beit Hillel regarding chalitzat tzarat erva. Recall that if one of the yevamot was an issur erva, then according to Beit Hillel the other yevama does not require yibum or chalitza. Even if chalitza was performed, they maintain that she would be able to marry a kohen since the chalitzah was meaningless. He notes that there is no mention of the concern discussed in our Mishnah. The Taz explains that the concern is only to prevent chalitzah from being performed. However once chalitzah is performed and it is proven that it is meaningless the concern falls away.

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