Shabbat Parashat Balak 5771

P'ninat Mishpat: Allowing Yibum for Sephardim in Israel

Case: A childless widow and her brother-in-law, who were also cousins and came from the Iranian Jewish community, approached beit din with the request to do yibum. In 5710, the two Chief Rabbis instituted that in Israel, even Sephardim, who traditionally did yibum, would not do so, “so that it not look like there are two Torahs.” Only in special cases where the Chief Rabbis give special permission would it be permitted.

Ruling: The classical machloket between Jewish communities over yibum stems from the machloket between Rabbanan and Abba Shaul (Yevamot 39b). Abba Shaul says that chalitza has precedence over yibum because if the brother-in-law intends for worldly interests, as opposed to the mitzva of yibum, it is as if there is a violation of incest. Rabbanan say that even with improper intentions, yibum is permitted. The Rif, Rambam, and Shulchan Aruch (Even Haezer 165) rule like Rabbanan that yibum has precedence, whereas Rabbeinu Tam and the Rama rule like Abba Shaul.

The Nimukei Yosef says that even according to Abba Shaul, the prohibition of improper intentions is only rabbinic. The Noda B’Yehuda (II, EH 54) says that there is not a need for a positive intention for a mitzva, just that it should not be specifically for an ulterior motive, such as the woman’s beauty. Regarding a case of one who has in mind both for the mitzva and for her beauty, there is a machloket. The stronger opinion is that of the Aruch Hashulchan (EH 164:8) and Shvut Yaakov (III, 135), who say it is permitted when one has intention for both. For that reason, it is a somewhat distant concern that one will have in mind only for ulterior motives. Acharonim make comparisons to various parallel topics, including that of one who does a brit mila in a manner that removes tzara’at (which is usually forbidden to remove) along with the mitzva, and the gemara (Shabbat 133) permits it.

In any case, Sephardim follow the Shulchan Aruch that yibum is permitted regardless of the intention. Even though some Sephardi poskim allow being stringent against the Shulchan Aruch, that is only when there is not a clear minhag to follow the specific halacha. In this case, though, there was a clear practice to do yibum (including in many Ashkenazi communities).

It is therefore strange that Sephardi rabbanim accepted the injunction against yibum in Israel. The claim that otherwise it would look like there are two Torahs is difficult because in many areas of halacha (including shechita) there are two different practices. There is not a problem of lo titgodedu because there are two separate communities in Israel.

Therefore, beit din ruled by majority to approve the proposed yibum. Chief Rabbi Mordechai Eliyahu signed the permission. [We do not know whether Chief Rabbi Shapira was also required to sign and whether he did.]

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