[ ]BrothersIt is the duty of the oldest [brother] to perform levirate marriage.
If he doesn’t want to, we go [in turn] to each of the brothers. If they
do not want to, we return to the oldest, and say to him, “The duty
is yours, release her or marry her.” If he wants to wait for a minor
brother to grow up, or for an older brother to return from abroad, or
for a deaf or mentally incapacitated brother [to recover], we pay no
attention, but say, “The duty is yours, release her or marry her.”The Bavli’s discussion of this mishna begins by considering which is
preferable, halitza by the older brother or intercourse (i.e., levirate mar-
riage) with a younger brother. For the Bavli, the question is: Do we privi-
lege levirate marriage or do we privilege an act by the oldest surviving
brother, even if that act is halitza? While focusing on the question of
whether levirate or halitza takes precedence, the Bavli imagines cases
in which none of the brothers are willing to respond to the levirate bond
and cases in which various brothers seek to evade their levirate obliga-
tion by passing it on to a brother who is not presently able to perform
it. In this discussion, the precedence assigned to the oldest surviving
brother is portrayed not as a privilege but as a responsibility to be en-
forced when no brother is willing to volunteer.
In other cases, the rabbis imagine brothers as spoilers whose acts of
intercourse with their sister-in-law may undermine the position of the
other brothers. Discussing a situation in which one brother is a minor,
Mishnah Yevamot : states:
A boy of nine years and a day [who has intercourse with his
widowed sister-in-law] invalidates her [for levirate] with the [other]
brothers, and the [other] brothers [may, through their actions]
invalidate her for him. But while he invalidates her [for the brothers
only when his act of intercourse comes] at the beginning {i.e. when
no adult brother has taken any action}, the brothers invalidate her
[through action] at the beginning or the end {before or after the
minor brother’s act}. How so? A boy of nine years and a day who
has intercourse with his widowed sister-in-law invalidates her
[for levirate] with the [other] brothers. If they [subsequently] have
intercourse with her, or make a declaration [of intent to perform
levirate marriage], or give her a bill of divorce or submit to halitza,
they invalidate her for him. {The minor, whose act of intercourse