What’s the Truth about. . .Naming the First Son from Yibbum?

Misconception: The first son of a levirate1 marriage (yibbum) must be named after the deceased husband/brother.

Fact: There is no such requirement, although whether it is allowed, discouraged or encouraged is subject to debate. This misconception may have arisen due to a comment made by Rashi in Bereishit.

Background: Yibbum is the Biblical commandment that if a married man dies childless, his brother should marry the widow, and their first-born son will, according to the pasuk, “yakum al shem achiv hamet—succeed in the name of his dead brother” (Devarim 25:6). The literal translation of this Hebrew phrase is often understood as: “[he] will perpetuate the name of the dead brother.”

The objective of this mitzvah is stated explicitly at the end of the pasuk: “v’lo yimacheh shemo mi’Yisrael—his [the deceased brother’s] name will not be erased from Israel” (ibid.). This might lead one to interpret the earlier part of the pasuk as instructing that the son should be named for the deceased. This is such an obvious understanding that the Gemara (Yevamot 24a) quotes a Baraita2 that queries: if the deceased was named Yosef, should the son be named Yosef, and if the deceased was named Yochanan, should the son be called Yochanan? The Baraita rejects this possibility by invoking a gezeirah shavah (an interpretive methodology in which a known rule is applied to a new case based upon a similar word or phrase in both cases) from Bereishit 48:6. When Yaakov used the phrase “al shem achei’hem yi’kar’u—they will be called after the name of their brothers” regarding any future sons born to Yosef, the term shem (name) referred to inheritance; thus in the context of yibbum, the term shem in Devarim 25:6 indicates that the one performing yibbum3 receives his brother’s inheritance, not that the son is named after the deceased.

The gemara continues with Rava commenting that while in general the simple reading of a Biblical text (peshat) is never ignored, this instance is the sole exception. Although the peshat is that the son is named after his deceased uncle,4 the gezeirah shavah entirely removes the verse from its plain meaning.5 Rashi and Ramban to Devarim 25:6 explain the phrase as the Gemara does, as does Rabbi Samson Raphael Hirsch (d. 1888; Devarim 25:6), who does so at great length.

Even absent a requirement to name after the deceased, Rashi (Rut 3:9, 4:10) poignantly explains how the transfer of the inheritance serves to perpetuate the memory of the deceased. He says that every time the widow or the yavam (brother who performed yibbum) enters the deceased’s field or engages in commerce with his possessions, people will be reminded of the deceased and will mention his name in connection with the estate.

In the pseudo-yibbum in which Boaz married Rut, the widow of Machlon, their son was not named after the deceased. Rut 4:10 says “l’hakim shem hamet—to uphold the name of the deceased,” a phrase reminiscent of that in Devarim 25:6, and concludes with “that the name of the dead be not cut off from amongst his brothers,” again similar to yibbum of Devarim. The verse in Rut, unlike in Devarim, includes “al nachalato—upon his inheritance” between those phrases, similar to how Chazal understand the law regarding yibbum. The son was then named Oved (Rut 4:17), not Machlon.6

In explaining a different Biblical example of yibbum, Rashi can be seen as contradicting the universally agreed-upon halachah that there is no obligation to name the child after the deceased brother. In Bereishit 38:8, Yehudah’s son Er dies childless, and Yehudah instructs his next son, Onan, to do yibbum with Er’s widow, Tamar (“v’yabeim otah”) and bear a child, and thereby, “v’hakem zera l’achicha—you shall establish offspring for your brother.” Rashi explains this to mean that the son will be called by the name of the deceased. Some commentators, such as Gur Aryeh and Siftei Chachamim (quoting Nachalat Yaakov), see no problem with this comment of Rashi and understand Rashi to be saying that the child would be considered as if Er had fathered him.7 Others, such as the Ramban and Rabbi Eliyahu Mizrachi (the fifteenth-century commentator on Rashi, known as Re’em), think that Rashi was actually saying that the son would be named after Er. Regarding that claim, Ramban states: “This is not true.” The Re’em, quoted approvingly by Divrei David (Taz), defends Rashi and says that Rashi did not err. Rather, pre-Matan Torah yibbum differed from the Torah’s rules in two ways: the child was named after the deceased,8 and yibbum could be done by other relatives and not only the brother.9

The Shulchan Aruch rules like the Gemara that the yavam gains his deceased brother’s inheritance (EH 163:1) and that there is no need to name the son after the deceased (EH 166:5). “No need” might imply that it is permissible, although possibly not encouraged. The Sefer HaTashbetz (Rabbi Shimon ben Zemah Duran, d. 1444; 4:25), in an approving postscript to a responsa about whether to compel yibbum in a particular case, says that the couple eventually did yibbum (and lived happily ever after) and their first child was a son whom they named after the deceased. Similarly, Rabbi Rachamim Nissim Yitzchak Palagi (d. 1907), commenting on the Shulchan Aruch (Yafeh Lalev, 6:EH:166, p. 86a) and basing himself on the Zohar, says the pasuk should also be taken literally and the first son should be named after the first husband, “and that is what is done.” Rabbi David Zechut (d. 1865; Zecher David, ma’amar aleph, ch. 84 [p. 602-5 (modern edition) = 233b-4b (1837 edition)] also says that one may name the child after the deceased, but he suggests that they should also add another name so that it is not exactly the same name, and he testifies that he arranged such a naming for his granddaughter’s son. Rabbi Mordechai Forhand (d. 1945; Shu”t Be’er Mordechai, EH 41:8 [p. 412]) infers from Rashi that the Gemara was merely saying that one is not obligated to name the child after the deceased, but if they want to, they may. On the other hand, Rabbi Yitzchak Schmelkes (d. 1906; Shu”t Beit Yitzchak, YD 2:163:3) says that the reason Chazal did not suggest also fulfilling the peshat of the verse and naming the child after his mother’s deceased first husband was because he died childless and thus has a “bad mazal”; it is therefore not only “not required” to name after him, but not propitious and thus inadvisable. Rav Ovadia Yosef (Yabia Omer 5:YD:21) suggests that sources like the Zohar that insist on not naming after the deceased may be a reaction to the Tzedukim, who erroneously always followed the literal meaning of the text.

The simple reading of the pasuk in Devarim seems to treat yibbum as a means of preserving the name and memory of the deceased. The halachah, as understood from the Gemara, introduced the idea of inheritance, lending yibbum a financial aspect. A third approach to yibbum adds a mystical, kabbalistic element. The Ramban (Bereishit 38:8), after criticizing Rashi’s understanding of the pasuk, reveals that yibbum contains a great “secret” [kabbalistic aspect] of the Torah. Referring to gilgul, transmigration of souls,10 Ramban says that this aspect of yibbum was already known before the giving of the Torah11 and is efficacious even with other relatives, and that is why Yehudah and others practiced yibbum. Proponents of this approach, including Abarbanel (Devarim 25:5), who expounds on this idea at length, explain that yibbum is a method for the soul of the departed to return to this world in the child born from the union of the widow and the brother of the deceased (Rabbeinu Bachya, Devarim 25:6, 9). Rabbi Shlomo Alkabetz (author of Lecha Dodi, d. 1576; commentary to Rut, Shoresh Yishai 79b [Jerusalem, 1979]) explains the mechanism of how yibbum accomplishes this goal. In this view, the phrase “yakum al shem achiv hamet” refers to the actual return of the brother’s soul. Maharam Schiff (to Gittin 43b) quotes from the Zohar that the soul of the departed returns in the son, and uses this to explain a particular halachah.

If the widow and the brother of the deceased choose not to marry, they instead perform the chalitzah ceremony which involves several oral declarations, the widow removing a special shoe from the brother’s foot,12 and spitting on the floor. Until either yibbum or chalitzah is performed, the widow may not marry. Chalitzah thus seems to be purely utilitarian as a means of permitting the widow to remarry, and indeed that is how many authorities understand it. The Chatam Sofer (Shu”t 2:85; cited in Pitchei Teshuvah, EH 165:7), while conceding that there is no independent mitzvah to do chalitzah, suggests that it is a form of chesed to the deceased, similar to the recitation of Kaddish. And while the widow is not obligated to do this chesed, he says that when he had such a case and explained it that way to the widow, she acquiesced to do it. Others, such as the Rashash (Sanhedrin 19b) and Netziv (Ha’amek She’eilah, Ki Tetzei, 154), think it is an independent mitzvah, which, as a by-product, also frees the widow to marry.13 According to the gilgul approach to yibbum, doing chalitzah instead of yibbum delays the return to earth of the soul of the deceased, and Rabbeinu Bachya (Devarim 25:9) thus sees in the removal of the shoes in the chalitzah ceremony an echo of the mourning ritual.

It is clear that Biblically, yibbum is preferred over chalitzah, but already in the Talmudic period there is a debate (Yevamot 39b) about which course of action is the preferred one, and in Ashkenaz the custom developed to do chalitzah rather than yibbum. The Rema (EH 163:2, 165:4) records that some communities even legislated a financial incentive for the brother to perform chalitzah. Nonetheless, if need be, yibbum is done by Ashkenazim. Rabbi Hershel Schachter relates (Nefesh Harav, 1994, p. 265) that it once happened that a yavam was not able to do chalitzah because of an amputated leg and Rav Joseph Ber Soloveitchik instructed him to perform yibbum on the condition that they then divorce, and that is what they did. Among Sephardic communities, yibbum was more common, and this became a point of serious tension within the Chief Rabbinate in the early years of the State of Israel. In 1950, the Chief Rabbinate passed the “Jerusalem Ban” outlawing yibbum in Israel (Shu”t Heichal Yitzchak 1:EH:5, p. 51). The following year, Rabbi Ovadia Yosef, as chief rabbi of Tel Aviv, challenged the ban, asserting that for Sephardim it should remain an option (Yabia Omer 6:EH:14; 8:EH:26).14

The mitzvah of yibbum usually arises following a tragedy, the death of a childless married man. The Torah hereby provides a method to ensure that the widow is provided for and protected, and a means to perpetuate the memory, if not the name, of the deceased.15 The Tur (Perush HaTur Ha’Aruch, Devarim 25:6) suggests that the pasuk is not just a commandment, but also a promise from God that there will indeed be a continuation to the name of the deceased and that, despite the tragedy, there is a promise of a future. n

Notes

1. The English name for yibbum, levirate marriage, is derived from the Latin word levir which means “husband’s brother.”

2. Cf. Sifrei to Devarim 25:6. The Malbim offers several reasons why the Midrash’s conclusion is actually the only logical one.

3. Tosafot (Yevamot 24a, s.v. oh) assert that a literal reading of the text indicates it is the yavam (brother who performed yibbum), and not the son, who inherits. Prisha (EH 166:9) and Aruch Hashulchan (EH 163:1) explain how the entire verse is read based on the Gemara’s derashah and they similarly assert that the verse refers to the brother as inheriting. Rashbam and Ramban (Hasagot to Sefer Hamitzvot, shoresh 2; cf. Shadal) understand the literal reading of the pasuk as referring to the son inheriting.

4. The Septuagint omits the word “achiv—his brother” from the translation of the verse. Furthermore, in the Brenton English translation of the Septuagint it says that the child is named after the deceased. However, that is not clear in the original Greek.

Ibn Ezra (Devarim 25:6) says, “yikarei b’shem achiv—[the child] will be called in the name of his brother,” but he is likely not contradicting the Gemara. Rather, he was saying that the child will be attributed to the deceased (i.e. “Look, there’s the yibbum child of this deceased man.”) This is based on Ibn Ezra’s own comment to Bereishit 38:9 regarding Onan’s awareness that the child “lo yikarei b’shmo—would not be called in his [Onan’s] name”; meaning, the child would not be “known as his [Onan’s] son,” rather as the son of the deceased father.

5. Once the gezeirah shavah overrides the simple reading, the mention of “firstborn” at the beginning of the verse is taken to refer to the oldest brother as the one who should preferably do yibbum (Yevamot 24a).

Ramban (Hasagot to Sefer Hamitzvot, shoresh 2) asserts that in general when Chazal give derashot they still hew to a certain extent to the peshat; thus in this case, which Rava views as unique, it must be that the halachah is a total disconnect from peshat.

6. In an interesting comment, Rabbi Yosef Caspi (early fourteenth century; Kapot Kesef in Asarah Klei Kesef, p. 10 on Rut 4:17) notes that according to the verse, the name Oved was given by the neighbors, and thus he suggests that Boaz and Rut actually named the son Machlon “as commanded in the Torah.” He concedes that Ibn Ezra disagrees because in the subsequent genealogy (Rut 4:18-22), the name Oved is the name used for Boaz’s son.

Earlier in the story (Rut 1:11), Naomi references a pseudo-yibbum, as pointed out by the Midrash Rabbah and by Rashi, when she tells her widowed daughters-in-law that she has no more future sons to offer them.

7. That is similar to how Seforno (Devarim 25:6) understands the pasuk about the mitzvah of yibbum. He says that the child is attributed to the deceased in the heavenly ledger and it is as if the dead brother fulfilled the commandment to procreate.

8. Note that Yehudah (the father) later did “yibbum” with Tamar, but the resulting twins were not named after Er or Onan. It is intriguing that in the two Biblical pseudo-yibbum stories—Yehudah and Tamar and Boaz and Rut—both involve a prior refusal (Onan and Ploni Almoni), and that the Davidic line goes through the offspring of both of those unions as mentioned in King David’s genealogy (Rut 4:18-22).

9. The Bechor Shor (Bereishit 38:13) justifies Tamar’s actions vis-à-vis Yehudah by noting that pre-Matan Torah, yibbum was done by any relative, even the father of the deceased, and the Torah then limited it to paternal brothers. Nonetheless, he points out that it continued to be done by additional relatives who are allowed to marry the widow, as Boaz did with Rut.

There are those who want to derive from Boaz’s action that “brothers” in the yibbum command in Devarim 25 is not literal and means close relatives (as it does in other places in the Torah), but Ibn Ezra (Devarim 25:5) forcefully rejects that interpretation and maintains that both peshat and tradition agree that Biblical yibbum is only with a paternal brother.

10. See Rabbi Yitzchak Blau, “Body and Soul: Tehiyyat ha-Metim and Gilgulim in Medieval and Modern Philosophy,” The Torah U-Madda Journal 10 (2001): 1-19, in particular pp. 8-9.

11. It is interesting to note that forms of yibbum exist in many cultures, modern and ancient, including some ancient Near-Eastern societies. For example, the twelfth-century bce tablets excavated at Ashur containing the Middle Assyrian Laws mention variants of yibbum in sections 30, 33 and 43, and the Hittite Laws from around sixteenth-century-bce Turkey mention it in section 193 (see chapter 14 in Marten Stol, Women in the Ancient Near East [Germany, 2016], 296-299). Interestingly, while yibbum-type customs are widespread, I have not come across any parallels to chalitzah.

12. Note that the shoe removal in Rut 4:7-8 was not related to chalitzah (despite Boaz’s later pseudo-yibbum with Rut) but rather, as explained in the Yerushalmi (Kiddushin 1:5) and Rashi, this was how acquisitions were performed in those times, and thus it was a transaction and not chalitzah. Rashi says it is similar to our kinyan chalipin/sudar (a “barter-type” halachic mechanism of transferring ownership). See Bava Metziah 47a, where this pasuk is used to derive the rules of kinyan chalipin. The fact that the Targum translates “na’al” in Rut 4:7-8 as “nartek yad—a glove” further makes it clear that this was a transaction and not chalitzah. The Revid Hazahav (Rabbi Dov Ber ben Yehuda Leib Tribish, Shemot 3:5) notes that in three places in the Torah there are instructions to remove a na’al from feet. If na’al meant only shoe, “from feet” would be superfluous. Hence, he says, the Targum is correct that na’al can be on the hand or foot, referring to either a glove or a shoe.

13. For a summary of the various opinions regarding if it is a mitzvah or a matir, see Encyclopedia Talmudit, vol. 15, pp. 617-618.

14. For a full discussion of this fascinating halachic and historical/sociological topic, see: E. Westreich, “Levirate Marriage in the State of Israel: Ethnic Encounter and the Challenge of a Jewish State,” Israel Law Review 37 (2003): 427-500.

15. A famous case of yibbum is that of Rav Yose ben Chalafta, a student of Rabbi Akiva. He married the widow of his brother, and together they had five children, all luminaries of Torah: Yishmael, Eleazar, Menachem, Chalafta and Eudemus (Yerushalmi, Yevamot 1:1; see Shabbat 118b).

Rabbi Dr. Ari Z. Zivotofsky is a professor of neuroscience at Bar-Ilan University in Israel. 

5 1 vote
Article Rating
This article was featured in the Fall 2021 issue of Jewish Action.
1
0
Would love your thoughts, please comment.x
()
x