[Avodah] Halitzah (or is it better for one person to do a vadai mitzva...)

[saul mashbaum]

RCLunz wrote about the fact that judges in a case of zika may advise the yavam to do chalitza if yibum is deemed inappropriate:
>> 
In fact the authority of the court to pursuade the yavam could be argued to be proof in the
opposite direction. [ie, that chlitza in the face of yibum is not a mitzva at all SM]
If it were true that yibum and chalitza are
alternative mitvos, with yibum merely being the more preferable, then
why is there a need for a specific posuk to tell the judges to tell him
not to bring strife into his home - obviously shalom bayis should take
precedence and the judges would logically of their own accord tell him
that if he couldn't work it out himself.  Only if you say that in the
face of yibum chalitza aino mitzvah does it seem absolutely necessary
that the Torah brings a pasuk specifically telling the judges that they
have authority to, and should, counsel the yavam that if there is a risk
that he is going to bring strife into his home, because on the face of
it the couple do not seem compatible, he should not do yibum.  Otherwise
everybody's inclination, in the face of a vadai mitzva aseh with no real
alternative, would be to take the risk.

>>
WADR, I find the above arguments unconvincing. "v'dibru elav" indicates that the judges are not essentially passive in a case of chalitza, merely enabling a process which is mandated by the Torah, but are required to take an active role in charting an appropriate course of action. Thus the role of dayanim in chalitza is distinct from that in gerushim. I do not agree that  "v'dibru elav" is a special heter,  because of extenuating  circumstances, to prescribe an alternative that is normally unacceptable, and indeed is not a mitzva.  I believe it is a directive to the judges to properly advise the yavam which of two acceptable procedures, both of which are mitzvot, should be followed in a specific case. The judges are to give the yavam "eitza hahogenet lo", guide him to use good judgement in choosing the appropriate alternative, which may in fact be chalitza, which is a mitzva.
RCL:
>>So the gemora comes riding to the rescue of Reish Lakish's principle by explaining that in the face of >>yibum, chalitza cannot be considered a mitzvah.There appears to be no disagreement proposed to this >>statement, and this is where the sugya concludes. 
All true, but even if we take, based on this sugya , the statement "chalitza b'makom yibum lav mitzva hi" as unrefuted and definitive, one must still determine the strength and literalness of the statement. I still believe it reasonable to maintain that it means to say that the preference for yibum is so strong that it RL's general principle does not apply in this case. This does not require us to say that chalitza in the face of  the possibility of yibum, chalitza is *no mitzva at all*; it's just not enough of a mitzva to apply RL's principle (avoid the lav if at all possible) to yibum shel chayyvei lavim.
Saul Mashbaum
  
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