Levirate Marriage and the Family[ ]tion by halitza requires a decision on the part of the deceased’s brother.
When there is only one surviving brother, the responsibility for levirate
clearly rests on him. The situation becomes more complicated when
there are several surviving brothers. Rabbinic discussions of the pos-
sible outcomes of such a scenario underscore the possibility that deci-
sions made by one brother could have a positive or a negative impact
on the others. Furthermore, the discussions make the reader aware that
the opportunity presented by a levirate situation could lead to conflict
among the surviving brothers. In doing one’s “duty” to the deceased or
in refusing to do so and opting for halitza, a man may also be protecting
his own interests. As the rabbis are clearly aware, the interests of one
brother do not necessarily serve the interests of the others.
While acknowledging that any brother who meets the requirements
described above can, in theory, perform levirate marriage or submit
to halitza, the Mishnah and the Tosefta put a special obligation on the
oldest surviving brother. He bears the primary responsibility to per-
form levirate marriage. If he refuses, the other brothers are given the
option, but should they too refuse, the burden rests on the oldest “to
do levirate marriage or halitza.”^29 This emphasis on the responsibility
of the oldest brother is apparently a rabbinic innovation; Judah turns to
the older of his two surviving sons to marry Tamar, but there is no in-
dication that the oldest surviving son was the one required to perform
levirate.^30
Although the oldest surviving brother takes precedence, levirate mar-
riage or halitza is valid if performed by any brother. Mishnah Yevamot
: states, “It is the duty of the oldest [brother] to perform levirate mar-
riage, but if the younger [brother] acts first, he has acquired [his sister-
in-law as his w ife].” The use of t he verb “to act first” (qadam) rat her t han
“to per for m lev i rate ma r r iage” (yibem), the verb used to speak of the old-
est brother’s duty, suggests that the younger brother has preempted his
older sibling. Rather than imagining the brothers conferring to deter-
mine who might be best positioned to assume the duties of a levir, our
text hints that the brothers might act independently of one another and
without consultation.
Mishnah Yevamot : reiterates the primacy of the oldest brother. It
a lso i nsists t hat t here shou ld be no delay i n reg u la r i zi ng t he stat us of t he
levirate widow, through either marriage or halitza: