Dear Kollel
In a case where the Yavam wants to do Yibum, but she doesn't want to, ... Chalitza would still be required to release her from Zikah and to permit her to marry another.
But the required statements that must be said as part of the Chalitza doesn't reflect the situation at all. Such as where she says that ... he refuses to do Yibum and establish a name for his deceased brother.
In fact she is the one who is refusing, not him.
Similarly she says, ... so should be done to the man who refuses. But in fact he is willing, she is the one refusing.
And omitting the statements in such a case would not be an option if we hold that the statements are Me'Akev the Chalitza.
Thank you very much.
N Z
This question was posed to the Rashba, in the Teshuvos ascribed to the Ramban but in fact written by the Rashba (Teshuvos ha'Meyuchasos l'Ramban #123).
The Rashba cites the Gemara (101b) where we learn that the Beis Din gives advice to the Yavam. If there is a significant age difference between him and the Yevamah we tell him that it is not a good idea to do Yibum, because this is likely to make a quarrelsome marriage. It would be much better for him to marry a woman closer to his own age.
However, after the Yavam listens to our advice and wisely decides not to go ahead with Yibum, in the final analysis it is his decision. It follows that he can truthfully say "I do not wish to marry her" and she can say "my husband's brother refuses to raise for his brother a name in Yisrael."
Whatever the original wishes of the couple, it was, in the end, the free choice of the Yavam not to do Yibum.
Kol Tuv,
Dovid Bloom