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Shabbat Parashat Vayeitzei | 5767

Moreshet Shaul



A Law to Force Chalitza – part 2

(based on Amud Hay’mini, siman 20)

 

[The Israeli Knesset proposed a law in 5713 to make it a criminal offense, punishable by imprisonment, to try to obtain money for agreeing to do chalitza for one’s sister-in-law. We saw last time that Rav Herzog did not feel that the law would create a situation whereby doing chalitza to get out of jail for that offense would be considered a forced chalitza. Rav Yisraeli posited that if the brother had a right to demand compensation for foregoing inheriting his brother and was imprisoned for asking for it, such a chalitza would be a forced chalitza. However, we saw the beginning of his thesis that if, for whatever reason, yibum is not possible, chalitza may be forced.]

 

In our situation, where the Chief Rabbinate’s regulation and Israeli law rule out yibum, a brother cannot claim that he wants to do yibum. This is no worse than a case where yibum is prevented by fear of non-Jewish authorities. There is thus no alternative but chalitza. If the brother then refuses to do chalitza, he can be even physically coerced to perform it, even according to the Rif and Rambam who generally prefer yibum to chalitza. As the Rosh says, mitzvot are not given so that we should receive worldly benefit from them, so he cannot demand monetary compensation.

There is another factor because of which the proposed law does not disqualify chalitzot it facilitates. The gemara does equate between a forced get and a forced chalitza (Yevamot 106a). However, the two are different. Regarding a get, it is possible that a husband is obligated to give a get and yet if he is coerced to do so, the get is invalid. In contrast, regarding chalitza, the only way the coercion can invalidate the chalitza is if there is not an obligation to do chalitza. We will explain the distinction.

If a non-Jew is the one who forced a get, the get is invalid even if halacha sanctions coercion in that case. Elsewhere, we discussed the question why a get is invalid just because the coercion is unwarranted. After all, if one illegitimately forces his friend to sell something, the sale stands because he received payment for it and, under the circumstances of severe pressure, it was worthwhile for him. The case where he is required to give a get should be equivalent. We answered that the entire basis for the obligation to give a get under those circumstances is the obligation to listen to the commands of the Rabbis who so decreed. Part of the formulation of those instructions is that it is mandated only when the process of coercion is carried out properly. Otherwise, it is considered as if he agreed without receiving compensation (i.e. the mitzva to listen to the Rabbis), in which case even a transfer of property sale is invalid.

In contrast, whenever one performs chalitza, he is performing a mitzva. Thus, even if he was forced improperly, he is still receiving the mitzva in return, which is itself the compensation, and therefore the agreement is valid. Only when he can fulfill the corresponding, arguably greater mitzva of yibum would we say that being forced to do chalitza is getting nothing in return and the chalitza is invalid. Since, nowadays, yibum is never an option, even coerced chalitza is always valid after the fact.

In summary, a law that punishes a brother-in-law who refuse to perform chalitza is valid according to all halachic opinions of the Rishonim. Even if we were to assume that the coercion is wrong, the chalitza would be valid. To remove any possible doubt we suggest the following steps. When one is imprisoned for refusal to give chalitza and then gives in, we should require him to perform chalitza twice. According to at least many authorities, the first, forced chalitza will be valid, and he will be forbidden to do yibum to his sister-in-law because of the good chance those Rishomin are correct. At that point, yibum is certainly not an option, and the second chalitza will be valid according to all opinions.

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