Shabbat Parashat Ki Tetzei| 5765
Requiring Chalitza Before Monetary Matters are Settled - Based on Piskei Din Rabbaniim - vol. XIII, pp. 150-153
Case: A yavam (brother of one who died, leaving behind a widow and no children) does not want to perform chalitza, whichisneeded to enablethe yevama (widow) to remarry, until he has the opportunity to search for property his brother may have had in a manner that the yavam would inherit it. The yevama is willing to sign an arbitration agreement with guarantees to adjudicate any future monetary issues but wants the chalitza taken care of promptly so that she can be free to marry should the opportunity present itself.
Ruling: In this case, there are several reasons to require the yavam to do chalitza. He has a mitzva to do chalitza, whether or not the yevama wishes to remarry or is capable of having children, and he certainly may not put the yevama in a situation of an agunah (see Chacham Tzvi 1). To delay the matter because of an unsubstantiated possibility that he might find a financial claim, especially in a situation that she is willing to give assurances that she will address such claims responsibly, is unthinkable. It is also beit din’s responsibility to expedite the matter, and we must determine what options beit din has.
The Rama (Even Haezer 165:1) rules that one should not coerce the yavam to do chalitza unless he shows no interest in doing yibum and she has a specific claim why she needs chalitza. (One must remember that chalitza is, according to many opinions, the less preferred option, compared to yibum.) Although there are those who argue, it is difficult to coerce when the Rama rules that it is improper to do so.
However, there is another, indirect form of coercion that can be employed. That is by obligating the yavam to pay her for support as if they were married. This is based on the concept of m’ukevet l’hinasei, that if a man is responsible for a woman’s inability to remarry and refuses to rectify the situation, he has to pay for her support (see Ketubot 97b). The Ein Yitachak (62) says that this is not comparable to actual, direct coercion, and he proves that even the Rama agrees that this is a step that is not problematic for beit din to employ to encourage the yavam to perform his obligation of chalitza. He concludes, furthermore, that if the yavam has money then he can be forced to pay her, and if he is unable to pay, then beit din can force him to perform chalitza.
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