A fiancée and an woman waiting for levirate marriage do not drink and do not collect their Ketubah, for it is said, "when a wife, being under her husband, goes astray": this excludes a fiancée and an woman waiting for levirate marriage. A widow married to a High Priest, a divorcee or Ĥalutzah married to an ordinary priest, an illegitimate Israelite woman married to an Israelite, and an Israelite woman married to an illegitimate man – none of these drink nor do they collect their Ketubah.
6:
Since the terms '
levirate marriage' and '
Ĥalitzah' both appear in our mishnah and since these terms are interdependent for their understanding I shall explain and discuss both terms at the same time.
7:
The Torah places a duty on a surviving brother to marry his deceased brother's childless widow. Such a union is termed levirate marriage [Yibbum]. ('Levir' is the Latin word for a brother-in-law.) Just as the ceremony of divorce terminates an ordinary marriage, so the ceremony of ĥalitzah terminates a levirate marriage. An ordinary marriage is created by the mutual consent of the two contracting parties; a levirate union automatically exists between a childless widow and her brother-in-law from the moment her husband dies [omedet uzekukah lo], and this automatic connection can only be terminated by ĥalitzah. Thus we have an anomalous situation: the union of this woman and this man was absolutely forbidden during the lifetime of the woman's husband; it would still be forbidden if she had a child by her late husband; and unlike any other marital connection, this one is not created by mutual consent. In order to understand how such an anomalous situation has arisen we must try to make a historical reconstruction.
8:
There are three main texts in the Bible that must be considered as regards Yibbum (and its termination, ĥalitzah): Genesis 38, Deuteronomy 25:5-10, and Ruth 4. According to modern Biblical criticism the order of historical development is Ruth, Genesis, Deuteronomy.
9:
According to the story as told in the Bible, Ruth was the childless widow of Maĥlon, who had ancestral holdings in the town of Bethlehem. Ruth is destitute and is befriended by a distant relative, Boaz, and very soon their friendship deepens into love. Boaz would like to play the role of Ruth's 'Go'el' and extricate her from her financial plight by taking over her late husband's holdings (which would have gone to her sons if she had any by Maĥlon before his death, and such sons would have had to take care of their mother). A further duty of the Go'el would be to take Ruth in levirate marriage. However, Boaz recognizes that there is another man who has a prior claim (a closer relative of Maĥlon's). While this man is most anxious to take over the holdings he refuses to take Ruth in levirate marriage. Boaz gets this man to formally cede to him, Boaz, his rights as a Go'el. It is very important that we quote the details of the transaction that now takes place [Ruth 4:7-10]:-
In earlier times any exchange of property was formalized in Israel by one party taking off his shoe and giving it to the other party as evidence [of the transaction]. The Go'el said to Boaz, "You acquire [the property]" – and he took off his shoe. Boaz now said to the elders and all the bystanders, "You are witnesses today that I have acquired from Naomi everything that belonged to Elimelekh, Khilion and Maĥlon. Also, that I have taken as my wife Ruth the Moabitess, the wife [i.e. widow] of Maĥlon, in order to establish the deceased's rights over his property, and so that the deceased's title shall not be cut off from his brethren and locality. You are witnesses [to all this] this day".
We should note here three salient points: the duty of acting as Go'el did not devolve on one sole relative, but there was a kind of "line of succession", and if the first in line did not fulfill his duty it could [should?] be transferred to the next in line. Secondly, Yibbum was an integral part of this economic process. Thirdly, the removal of the shoe was a testamentary act to formalize a business transaction (rather like a handshake nowadays, or a formal signature on a contract).
10:
Before we move on to the next text, we should perhaps clarify the reason for all this activity. In an agricultural economy a person's most precious possession was his land: without land a person was absolutely destitute. After one's death the holdings went to the next of kin, who also took over responsibility for the upkeep of the deceased's dependents. Since the next of kin was usually a son, this just meant that the son would take care of his widowed mother. (That the woman herself should take over the property was unthinkable, because she might then marry again, and if she married someone who was not of the same tribe as her late husband and had children by this second husband, the holding would eventually leave the possession of the tribe.) Thus originally, the institution of levirate marriage was not only a measure of kindness for a woman who would otherwise be destitute, but even more so was it an economic transaction.
11:
The second text (in presumed order composition) that we must consider is Genesis Chapter 38. This chapter presents the story of Tamar. Judah (the same one who was instrumental in getting Joseph sold into Egyptian slavery) marries off his eldest son, Er, to Tamar, but she is soon left a childless widow. Judah now marries Tamar to Er's brother, Onan. Onan is so displeased at this match that he refrains from impregnating Tamar, thus frustrating the whole purpose of the marriage. (The reason for Er's behaviour may be guessed at. It was probably caused for the same reasons as the Go'el in the story of Ruth refused to marry her: economic reasons. At any rate, it was certainly not because of any aversion to Tamar herself, since Onan prevented her from becoming pregnant not by refraining from sexual relations but by practicing coitus interruptus (verse 9) – or as Rashi puts it more delicately, by "threshing inside but sowing outside". (We may thus note parenthetically that the Victorian term "Onanism" is a complete misnomer!) Onan also dies, leaving Tamar a childless widow for the second time.
12:
Tamar is determined to have a child from this family, in order to keep herself from destitution. (This reason is obfuscated in the previous story by the fact of Boaz's attraction to Ruth.) Judah, having lost two sons "to this woman" is very reluctant to marry Tamar off to his third son, Shelah, and fobs her off with the excuse that Shelah is still too young. Tamar, not to be done out of her child, poses as a prostitute, and as such is impregnated by the unsuspecting Judah himself. From this union were born twins, one of them being the progenitor of the Davidic royal line. (Thus David is the scion of a line in which there were at least two incidences of levirate marriage – Tamar and Ruth.)
13:
We note that in this second story the wide scope caused by leaving the marriage to the Go'el has been narrowed to marriage within the deceased husband's immediate family – but not necessarily a brother: Tamar plans her impregnation by Judah; it was not fortuitous.
To be continued.
