Yibum - Vayeshev 5785

(6) Judah got a wife for Er his first-born; her name was Tamar. (7) But Er, Judah’s first-born, was displeasing to יהוה, and יהוה took his life. (8) Then Judah said to Onan, “Join with your brother’s wife and do your duty by her as a brother-in-law, and provide offspring for your brother.” (9) But Onan, knowing that the offspring would not count as his, let [the semen] go to waste whenever he joined with his brother’s wife, so as not to provide offspring for his brother. (10) What he did was displeasing to יהוה, who took his life also.

(5) When brothers dwell together and one of them dies and leaves no offspring, the wife of the deceased shall not become that of another party, outside the family. Her husband’s brother shall unite with her: he shall take her as his wife and perform the levir’s duty. (6) The first child that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel. (7) But if that party does not want to take his brother’s widow [to wife], his brother’s widow shall appear before the elders in the gate and declare, “My husband’s brother refuses to establish a name in Israel for his brother; he will not perform the duty of a levir.” (8) The elders of his town shall then summon him and talk to him. If he insists, saying, “I do not want to take her,” (9) his brother’s widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: Thus shall be done to the man who will not build up his brother’s house! (10) And he shall go in Israel by the name of “the family of the unsandaled one.”

AND PERFORM THE DUTY OF A HUSBAND’S BROTHER UNTO HER. This means, since you are her husband’s brother, show yourself to be a husband’s brother by going unto thy brother’s wife. I will expound a little on levirate marriage when I come to the portion, If brethren dwell together (Deut. 25:5), if God prolongs my life till then.

IF BRETHREN DWELL TOGETHER. The deniers also say that these brethren are not actual brothers, but are relatives. They brought proof from Boaz. However, they contribute nothing, for there is no mention of levirate marriage, only of redemption. Why mention the word together? Does it matter if they were in one state or in one courtyard, or if they loved each other? They say, look, the verse says ve-yibbemah (and shall perform the duty of a husband’s brother unto her). This shows that he is her brother-in-law in name only. It is like thy sister-in-law (yevimtekh) is gone back (Ruth 1:15). Now observe that they have become foolish and stupid, for Scripture states, with regard to the sons of Judah, and perform the duty of a husband’s brother (ve-yabbem) unto her (Gen. 38:8). Now he was her brother-in-law. Also, the term yevimtekh (thy sister-in-law) (Ruth 1:15) was used because they were married to two brothers. All intelligent people know that the negative commandments given to Moses were not previously prohibited. However, it would not have been evil in the eyes of God if someone abstained from them before the law was given to Moses. The fact that Scripture states, for all these abominations have the men of the land done, that were before you (Lev. 18:27), shows that this is certainly the case. We do not find a prophet who warned them. Look, Scripture says of Onan, who did not give seed to his brother, the thing which he did was evil in the sight of God (Gen. 38:10). We will therefore rely on the tradition that they are actual brothers.

There are descriptions in the Mussar literature, particularly the Rokeach and Sefer Chassidim, of numerous fasts and mortifications for excision and capital sins. The same is true of sins punished by death by divine agency, like wasteful emissions of semen, as the Torah recounts of Er and Onan. In this sense their judgment is identical. These fasts and mortifications are intended to avoid the punishment of suffering at the hand of Heaven, G–d forbid, and also to urge on and expedite the conclusion of his soul’s atonement. Also, perhaps he does not return to G–d with all his heart and soul out of love, but only out of fear.

§ Rav Kahana says: In a Sanhedrin where all the judges saw fit to convict the defendant in a case of capital law, they acquit him. The Gemara asks: What is the reasoning for this halakha? It is since it is learned as a tradition that suspension of the trial overnight is necessary in order to create a possibility of acquittal. The halakha is that they may not issue the guilty verdict on the same day the evidence was heard, as perhaps over the course of the night one of the judges will think of a reason to acquit the defendant. And as those judges all saw fit to convict him they will not see any further possibility to acquit him, because there will not be anyone arguing for such a verdict. Consequently, he cannot be convicted.