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In Levirate marriage, the Torah text gives the option for the brother in law to refuse when it says: Devorim 25 (7)

But if the man does not wish to take his brother's wife, the brother's wife shall go up to the gate, to the elders, and say, "My husband's brother has refused to perpetuate his brother's name in Israel he does not wish to perform the obligation of a husband's brother with me."

and then the chalitzah ceremony is needed.

Question 1: Does the widow (sister-in-law, yovomoh) have the right to refuse the deceased husband's brother (yovom)?

Question 2: If the yevomoh can refuse the yovom, is there chalitzah?

Question 3: If there is chalitzah, will the yevomoh:

“approach him before the eyes of the elders and remove his shoe from his foot. And she shall spit before his face and answer [him] and say, "Thus shall be done to the man who will not build up his brother's household!"

(Devorim 25(9))?

  • 1
    Yibum works בעל כרחה, but she can refuse him if he is מוכה שחין (and בית דין will either force חליצה or trick the יבם into doing חליצה) .....no sources offhand, but these things are in יבמות, if that helps you – MTL Sep 7 '14 at 13:01
  • What is מוכה שחין? – andrewmh20 Sep 16 '14 at 3:20
  • @andrewmh20 I expanded that comment into an answer, see below. ( also, if you want to get a commenter's attention, you can put the username into the comment prefaced by the @ sign, like I did for you, to make sure the message gets where it needs to go ) – MTL Sep 16 '14 at 4:19
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The Rambam deals with this situation as with many others Yibbum vChalitzah - Chapter Two The quoted sections below should answer your questions. It appears that the choice is completely with the brother(s). Also note that if a brother jumps in and performs chalitzah (or yibum) the other brothers cannot do anything about that. The Rambam also deals with cases in which two brothers cause problems for each other, forcing chalitzah. Chapter six deals with cases in which the brother can do either chalitzah or yibum, can do neither chalitzah or yibum, can do yibum but not chalitzah, or can do chalitzah but not yibum. The Rambam brings up a number of complicated cases.

In chapter 1 the Rambam says

Halacha 2
If the yavam does not want to perform the rite of yibbum, or if the woman does not consent,4 he should [free her from this obligation through the rite of] chalitzah. [Only] afterwards is she permitted to marry another man.

It is a positive commandment5 of Scriptural law for [a brother] to perform chalitzah for [the deceased's widow], if he does not want to perform the rite of yibbum, as [Deuteronomy 25:9] states: "She shall... remove his shoe."6

The mitzvah of yibbum takes precedence over the mitzvah of chalitzah.7

This means that if the woman refuses, the man should perform chalitza, but he is able to insist on yibum even if the woman does not want to. Note that if the woman insists, halacha 10 below states that she loses her kesuvah. This is similar to the halacha of a "rebellious wife". It does appear that if the woman does not want to perform yibum and the brother is willing to let her go, that would be preferable. Note that in Chapter 2, Halacha 10,we say that we "compel" him to perform chalitzah. This means that like a get, he must still make the decision.

However, the quotes from Chapter 2 should give the basic halacha. I am not posting the footnotes, but you can see them at the site. I left the footnote number in the quotes.

Halacha 3
When [a yavam] engages in marital relations with his yevamah, he acquires her [as his wife]. [This applies] regardless of whether he entered into these relations unintentionally10 or with a licentious intent,11 under duress or willingly, whether he acted with a licentious intent and she acted unintentionally or under duress, or she acted with a licentious intent and he acted unintentionally or under duress, whether she was asleep12 or awake, whether he performed vaginal or anal intercourse,13 whether he inserted merely the head of his penis or the entire organ.14

Halacha 10
The laws pertaining to a yevamah who is fit to perform yibbum30 and refuses to do so are the same as those governing a woman who rebels against her husband.31 We compel her yavam to perform chalitzah with her,32 and she forfeits [the money due her by virtue of her] marriage contract.

When the deceased is survived by many wives, the one that the yavam asks to perform yibbum and refuses is considered to have "rebelled." He should perform chalitzah with her, and she forfeits [the money due her by virtue of her] marriage contract.33The other wives who were not asked [to perform yibbum] receive [the money due them by virtue of their] marriage contracts, as other widows do.

Halacha 11
If [the deceased was survived by] many [brothers], and the eldest brother states that he wants to perform yibbum with [one of the deceased's wives], [she is under obligation to him].34 Even if she does not desire [to marry] him, but is willing to marry one of his brothers, her desire is not considered. For the mitzvah is that the eldest brother perform yibbum.

Halacha 12 [The following rules apply when] the eldest brother says: "I do not want to perform either yibbum or chalitzah. Behold, my brother is present." If one of the brothers asks her to perform yibbum, and she does not desire [to marry] him, but she does desire [to marry] another brother, and he desires [to marry] her, she is not considered to have "rebelled." Once the eldest brother upon whom the mitzvah is incumbent demurs, all the brothers are equal.35 Since she desires [to marry] one of [the brothers], and he desires [to marry] her, she is not considered to have "rebelled."36

Moreover, if one of the brothers was in another country, and the woman says: "I would prefer to wait for him to come and perform yibbum with me. I do not want [to marry] this one," she is not considered to have "rebelled." [Since] the brother who asks [to marry her] is not the eldest, we tell him: "If you desire to perform chalitzah and pay her [the money due her by virtue of her] marriage contract, you may.37 If not, she wants to wait until your brother comes. Since you do not have a prior claim, [she is granted that prerogative].38

Halacha 13
If the brother [whom the yevamah desired to marry] returned and did not desire [to marry] her, we turn again to the brother who desired to perform yibbum, but was not desired by the woman. We tell the woman: "There is no one who desires to perform yibbum with you except this one, and the mitzvah of yibbum is given priority. Either perform yibbum with this one, or leave without receiving [the money due because of your] marriage contract, as is the law with regard to all women who rebel."

  • A friends of mine gave a potential explanation of this. I do not recall if it was sourced. Essentially, when a woman marries a man, she is also agreeing to potentially marry his current or future brothers, in the event that levirate marriage arises. – Baby Seal Sep 7 '14 at 14:22
  • Have you looked at perek 1 halocho 2?: "If the yavam does not want to perform the rite of yibbum, or if the woman does not consent,4 he should [free her from this obligation through the rite of] chalitzah. [Only] afterwards is she permitted to marry another man." – Avrohom Yitzchok Sep 7 '14 at 16:33
  • @AvrohomYitzchok he *should that means that even though he should free her, he can still insist on performing yibum. I will add this to the post. Note that the ramban in Halacha 10 says that if she refuses absolutely to go ahead with the yibum, she loses her kesuvah like a "rebellious woman" who is divorced without a kesuvah. – sabbahillel Sep 7 '14 at 16:43
  • @sabbahillel Aaaah. Sorry, Hebrew text reads, "לא רצה לייבם או שלא רצתה היא. ה"ז חולץ לה" and the note 4 says clearly: According to the Rambam's conception, the woman cannot be compelled to marry her brother-in-law against her will. See Chapter 2, Halachah 10 and notes! – Avrohom Yitzchok Sep 7 '14 at 20:16
  • @AvrohomYitzchok I added halacha 10 and pointed out that she is treated as a "rebellious wife" losing her kesuvah (the monetary settlement). Also, even though she can refuse, he must state that he wants chalitzah. This is similar to the halachah of a get. Even if bais din must coerce him, it is still his decision. – sabbahillel Sep 7 '14 at 21:34
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Question 1: Does the widow (sister-in-law, yovomoh) have the right to refuse the deceased husband's brother (yovom)?

Before yibbum, yes:

ואמר רב ששת אמר ר' אלעזר משום רבי אלעזר בן עזריה מנין ליבמה שנפלה לפני מוכה שחין שאין חוסמין אותה שנאמר לא תחסום שור בדישו וסמיך ליה כי ישבו אחים יחדיו

Rav Sheshes said in the name of Rabbi Elazar in the name of Rabbi Elazar ben Azarya -- how do we know that a yevama who "fell in front of" (became a yevama to) a מוכה שחין, someone who is afflicted by boils, that we do not "muzzle" her [see Rashi], as it says (Devarim 25:4) "do not muzzle an ox while it is threshing," which is followed by the parsha of yibbum (ibid. 5).

Rashi there:
שאין חוסמין. אין [סותמין] טענותיה לכופה להתייבם לו אלא כופין אותו וחולץ....‏
"We do not muzzle her" -- this means that we do not "shut down" her arguments, to force her to marry him in yibbum, rather we force him to do חליצה....

( Yevamos 4a, translation mine )

After yibbum, no:

הבא על יבמתו בין בשוגג בין במזיד בין באונס בין ברצון אפילו....היא אנוסה והוא לא אנוס....קנה.‏

Someone who had relations with his yevama, whether by accident or on purpose, forced or willingly even....if she was forced and he was not....they are married.

( Yevamos 53b, translation mine )

Question 2: If the yevomoh can refuse the yovom, is there chalitzah?

Yes, there is chalitzah.

See the Rashi quoted above (4a, sv שאין חוסמין), as well as Yevamos 106a:

תנו רבנן חליצה מוטעת כשרה אי זו היא חליצה מוטעת אמר ר''ל כל שאומרים לו חלוץ ובכך אתה כונסה אמר ליה רבי יוחנן....אלא כל שאומרים לו חלוץ לה ע''מ שתתן לך מאתים זוז.....ומעשה באשה אחת שנפלה לפני יבם שאין הגון לה ואמרו לו חלוץ לה על מנת שתתן לך מאתים זוז ובא מעשה לפני רבי חייא והכשירה.‏

It was taught in a braysa; חליצה מוטעת is כשר. What is חליצה מוטעת? Where the yavam is told "Do chalitza, this is the way to marry a yevama." Rabbi Yochanan says....[חליצה מוטעת] is when the yavam is told to do חליצה in order to receive 200 zuz. ....A story happened, where a yevama "fell in front of" (became a yevama to) someone who was not a nice person, and they told him to do chalitza in order to receive 200 zuz, and Rabbi Chiya said that it was good.

( Translation mine )

So we see that when the yevama doesn't want to marry the yavam, chalitza is still required.

Question 3: If there is chalitzah, will the yevomoh [perform chalitza]?

According to the above, yes, the yevama needs to undergo the chalitza process.

If the specific part of it that was bothering you was the קריאה, the fact that she says that he did not want to build his brothers house, which in this case may not be true; see the mishna Yevamos 12:3 -- if חליצה was done without קריאה, it is כשרה.

  • Re 1: Is that true in all cases or just those? – Double AA Sep 16 '14 at 4:22
  • @DoubleAA I believe it is a machlokes rishonim, but I don't have my notes on Yevamos with me at the moment. The gemara I quote in 2 appears to apply it to "אינו הגון," which sounds like it's any case the יבמה doesn't want (possibly only where she gives good reason), but IINM the other צד (=only מוכה שחין) deals with that somehow (maybe אינו הגון = a מוכה שחין?). – MTL Sep 16 '14 at 4:27
  • @DoubleAA Moments like these make me regret not typing up my notes on Yevamos..... – MTL Sep 16 '14 at 17:10

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