While he recognized the continuing theoretical validity of a Converso. i.e., a coerced Jewish convert to Christianity, to function as a yavam, the decisions of Rabbi David Ben Solomon Ibn Avi Zimra reflect a propensity to release the widow from this obligation. Rabbi David Ben Solomon Ibn Avi Zimra had left the Iberian Peninsula in the wake of the Expulsion decree. According to his view, if a Converso remained in Christian territory, this released his brother’s widow from the obligation of levirate marriage to him. He adopted the same position towards Portuguese Conversos who had just undergone forced conversion but sought the agreement of other rabbis to buttress this position.
Rabbi David Ben Solomon Ibn Avi Zimra encountered a number of queries related to the subject of levirate marriage. In one case (Radbaz Responsa, 1, 69) a widow who had two brothers in law who could potentially fulfill their obligation. One was a Jew living in the vicinity of the widow in question; the other was a convert who lived in another country. In this case, there are no details regarding whether the convert was a Christian or Muslim, but the applicability to Conversos is clear. She refused to marry the Jewish levir. Instead, she wished to wait for the other brother. This was despite the fact that he was a convert who had not returned openly to Judaism.
Rabbi David Ben Solomon Ibn Avi Zimra referenced the opinion of those authorities who argued that a widow was not obligated to enter into a levirate marriage when the yavam was a convert. Consequently, the woman should not wait for the return of the converted brother. He also disclosed the view of other authorities who may have held the opinion that actual levirate marriage was preferable to the act of releasing the widow from this obligation by halitsah. Nevertheless, in the case of a convert, the obligation of levirate marriage could only be cancelled by the act of halitsah. Since however, the Jewish brother was willing to marry the woman, she could not wait for the reversion of the convert brother to Judaism, in which case he could also marry her.[1]
In another case (Radbaz Responsa 4, 93), he was once again approached with a question regarding levirate marriage. The responsum relates that shortly after the death of her husband, a woman gave birth to a child. The child, however, died within thirty days. The husband’s brother had converted long before they were married and the wife had been unaware of his existence. She was informed about his existence shortly before she wanted to marry again.
In what appears to be a very different direction taken that his other responsum, Ibn Avi Zimra acknowledged that the woman may not have been exempt from the obligation of levirate marriage. This was because the majority of the later halakhic authorities concurred on the view that the obligation of levirate marriage between a wife her converted brother in law the husband existed even if his conversion had taken place before the marriage. The timing of the brother’s conversion with respect to the marriage of the other brother was a critical factor in the estimation of various authorities. The basis for the differing opinions was a dispute between Rabbi Sherira Gaon and Rabbi Yehudai Gaon recorded by Rabbi Jacob Ben Asher:
“R. Sherira Gaon wrote: the widow, whose yavam is a voluntary convert, since [the yavam] was conceived and born in holiness, the obligation of the levirate marriage exists, and the widow cannot remarry as long as she is not released [from the obligation of levirate marriage] by halitsah. But R. Yehudah wrote: if at the time of the marriage, the yavam has already converted, there is no obligation of halitsah. (Even ha-‘Ezer, 157:4)”[2]
This position was held by Maimonides[3] according to the interpretation of the Magid Mishne, as well as Rabbi Jacob Ben Asher,[4] and Rabbi Solomon Ben Aderet.[5] Their position, Rabbi David Ben Solomon ibn Avi Zimra explicated, was founded on their interpretation of the Mishnah Yevamot 2:5 which stated:
“He who has a brother of any kind, [the brother] obligates the wife to levirate marriage […]; except for the [brother] born from a slave girl or a Gentile mother.”[6]
Rabbi David Ben Solomon ibn Avi Zimra continued by relating the position of Hananel ben Chushiel, an eleventh-century Tunisian Talmudist and a student of one of the last Geonim, and Rabbi Yom Tov ben Abraham Ishbili of Seville, known for his commentary on the Talmud, who also concurred with the position that the widow was obligated to undergo levirate marriage with a convert, even according to Biblical law.[7]
Despite the weight of these authorities, others had argued that the time of the conversion was critical in determining the continuing obligation of levirate marriage. If at the time of the marriage the brother was had already converted, they argued that the widow was not obligated to marry him. To resolve this specific case, Rabbi David Ben Solomon ibn Avi Zimra argued that even the most scrupulous rabbis would have exempted the woman, for a number of reasons. Firstly, though the baby had died, it was mature and hence counted as a child. On this basis alone, the woman was not obligated to a levirate marriage. Secondly, were some to argue that the baby did not count as a child, since the brother had converted before the marriage had occurred, several rabbinic authorities would have exempted the woman in such a scenario. Lastly, Maimonides’ position regarding a conversion which occurred before a marriage took place was not clear-cut.[8]
The case for imposing the obligation of levirate marriage was therefore doubtful, he argued. In addition, since the convert had long ago disappeared, and no one knew whether he was still alive at all this only added further doubt to the applicability of levirate marriage. Consequently, a more lenient position was justified in this situation. The last argument seems rather problematic as this line of argument does not seem to be have been used in cases where the husband’s life was also in doubt.
[1] In Ibn Avi Zimra’s Responsa, 1, 175, as a secondary support to a case in which an “associate” wife of an unfaithful wife was regarded exempt from levirate marriage, Ibn Zimra also added that it was is questionable in itself whether the woman was obligated to levirate marriage to a converted levir. Dora Zsom, “Converts in the Responsa of R. David Ibn Avi Zimra: An Analysis of the Texts,” Hispania Judaica 6 (2008): 282.
[2] Dora Zsom, “Converts in the Responsa of R. David Ibn Avi Zimra: An Analysis of the Texts,” Hispania Judaica 6 (2008): 283.
[3] Mishne Tora, Hilkhot Yibum ve-Halitsah 1:6: “He who has a brother of any kind, whether a bastard (mamzer) or an idolater […], the widow is obliged to marry the brother.”
[4] Rabbi Jacob Ben Asher, Even ha-‘Ezer 157: 4-5.
[5] Rabbi Solomon Ben Aderet, Novellae, Yevamot 22a.
[6] Dora Zsom, “Converts in the Responsa of R. David Ibn Avi Zimra: An Analysis of the Texts” Hispania Judaica 6 (2008): 283.
[7] Dora Zsom, “Converts in the Responsa of R. David Ibn Avi Zimra: An Analysis of the Texts” Hispania Judaica 6 (2008): 283.
[8] In opposition to the interpretation of the Magid Mishne in Trumat ha-Deshen no. 223 that Maimonides would have agreed to the validity of the convert to serve as a levir under all circumstances, the opinion of an anonymous scholar cited by Rabbi Israel Isserlein was that Maimonides did not hold such a position. Dora Zsom, “Converts in the Responsa of Rabbi David Ibn Avi Zimra: An Analysis of the Texts,” Hispania Judaica 6 (2008):284.
Posted by Rabbi Dr. Juan Marcos Bejarano Gutierrez the director of the B’nei Anusim Center for Education. For a more complete review of Iberian Jewish history and the Crypto- Jewish Experience see The Rise of the Inquisition and Secret Jews: The Complex Identity of Crypto-Jews and Crypto-Judaism
B'nei Anusim Center for Education 