[ ]Levirate from the Hebrew Bible Through the Mishnahship between a man and a woman who have undergone halitza; t hey a re
treated like a divorced couple in that they may not marry each other’s
close relatives.^72
A childless man may leave several wives and several brothers. The
Mishnah treats the surviving wives as a unit; if one is forbidden to en-
ter into levirate marriage or perform halitza because of her close rela-
tionship to the levir, all the other wives are likewise exempt. If one wife
marries her husband’s brother or performs halitza, the status of all her
co-wives is resolved and they are free to remarry. Any definitive act in-
volving one brother and one yevama is conclusive, unless the individu-
als involved were not eligible for levirate marriage or halitza or were le-
gally incapacitated.
According to the Mishnah, levirate marriage can be concluded
through an act of intercourse, even if that act is nonconsensual or not
undertaken for the purpose of formalizing the marriage.^73 Both the
Mishnah and the Tosefta assume that intercourse should be preceded
by a declaration of intent by the levir.^74 This declaration is similar to be-
trothal and requires the consent of the woman. While the act of declara-
t ion is ment ioned repeated ly, t he Tosef ta ack nowledges t hat i ntercou rse
effects levirate even when no declaration was made.^75
The twelfth chapter of Mishnah Yevamot details the proper pro-
cedure for carrying out halitza. Part of the procedure involves giving
the man advice as to whether he should perform levirate marriage or
halitza. The Mishnah refers to such counseling as “advice that is fitting
for him” (eitza hahogenet lo). The chapter focuses on various aspects of
the halitza rite, including removal of the levir’s sandal, the widow’s spit-
ting at the levir, and her declaration that the levir refuses to perform
levirate marriage.
What emerges from Mishnah Yevamot is a focus different from that
of Deuteronomy . The goal of levirate marriage, as described in Deu-
teronomy, is the birth of an heir for a man who dies without offspring.
The Mishnah’s focus is on clarifying the status of that man’s widow. Or-
dinarily, a widow is a “free” woman, that is, she is free to remarry, and
no man has the right to control her sexuality or her property. She has a
legal claim on her husband’s estate and is treated like a creditor with re-
gard to her marriage settlement.^76 Until she collects her settlement, she
is entitled to support from her husband’s estate.^77 A lev irate w idow is un-