Babylonian Talmud: Tractate Yebamoth

Folio 38a

my only path lies in your fields', but could such a plea be advanced here! And R. Jeremiah can tell you: I may uphold even the view of the Rabbis, for the Rabbis made their ruling there only because he can tell him, 'If you keep silence, well and good, and if not I will return the deeds to their original owners and you will have no chance to call them to law', but could such a plea be advanced here!

Where a 'doubtful son'¹  and a levir came to claim their shares²  in the estate of the grandfather,³  the former⁴  pleading, 'I am⁵  the son of the deceased and half of the estate belongs, therefore, to me', while the levir pleads, 'You are my own son and you have, therefore, no share whatsoever', the levir's claim being a certainty⁶  and that of the 'doubtful son' a doubtful one,⁷  doubt may not supersede⁸  a certainty.

Where the 'doubtful son'¹  and the sons of the levir came to claim their shares²  in the estate of their grandfather,⁹  the former⁴  pleading. 'I am⁵  the son of the deceased and half of the estate is, therefore, mine'¹⁰  while the sons of the levir plead, 'You are our brother and you have a share like one of us',¹¹  they receive the half which he concedes to them while he receives the third¹²  which they concede to him, and thus a sixth¹³  remains,¹⁴  which, being property¹⁵  of uncertain ownership, is to be equally divided.¹⁶

Where the grandfather¹⁷  and the levir [claim their shares] in the estate of the 'doubtful son' or where the grandfather¹⁷  and the 'doubtful son' [claim their shares] in the estate of the levir, the estate is to be regarded as money of uncertain ownership and is to be equally divided.¹⁶

MISHNAH. IF A WOMAN AWAITING [THE DECISION OF] THE LEVIR¹⁸  CAME INTO THE POSSESSION OF¹⁹  PROPERTY,²⁰  BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY SELL IT OR GIVE IT AWAY, AND THAT HER ACT IS LEGALLY VALID. IF SHE²¹  DIED, WHAT SHALL BE DONE WITH HER KETHUBAH²²  AND WITH PROPERTY THAT COMES IN AND GOES OUT WITH HER?²³  BETH SHAMMAI SAID: THE HEIRS OF HER HUSBAND²⁴  ARE TO SHARE IT²⁵  WITH THE HEIRS OF HER FATHER;²⁶  AND BETH HILLEL SAID: THE PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS, [HENCE] THE KETHUBAH IS TO REMAIN IN THE POSSESSION OF THE HEIRS OF THE HUSBAND WHILE THE PROPERTY WHICH COMES IN AND GOES OUT WITH HER²³  REMAINS IN THE POSSESSION OF THE HEIRS OF HER FATHER.²⁷  WHERE HE MARRIED HER,¹⁸  SHE IS DEEMED TO BE HIS WIFE IN EVERY RESPECT SAVE THAT HER KETHUBAH REMAINS A CHARGE ON HER FIRST HUSBAND'S ESTATE.

GEMARA. Wherein does the first clause²⁸  in which there is no dispute between them²⁹  differ from the final clause³⁰  in which they²⁹  do dispute?³¹  'Ulla replied: The first clause deals with a woman who became subject to the levirate marriage³²  while betrothed, and the final clause with one who became subject to the levirate marriage³²  while married. And 'Ulla is of the opinion that the levirate bond³³  of a betrothed woman renders her 'doubtfully betrothed'³⁴

1. V. supra p. 236, n. 2.
2. V. loc. cit. n. 3.
3. Of the 'doubtful son', the father of the levir and the deceased.
4. Lit., 'the doubtful'.
5. Lit., 'that man'.
6. He knows exactly by virtue of whose, and by virtue of what rights he advances his claim, and he may consequently be regarded as being in actual possession of the estate.
7. He cannot in any way be sure whose son he is and by virtue of whose rights his claim is advanced.
8. Lit., 'take out'.
9. Cf. supra note 3.
10. Since it is to be divided into two equal shares between the two sons of the deceased.
11. If for instance, the total number of brothers was three, he is entitled, they claim, to a third of the estate only, and not to a half,
12. V. note 13 supra.
13. [H], a sixth of a denar, hence a 'sixth' generally.
14. 1 — (1/2 + 1/3) = 1/6.
15. Lit., 'money'.
16. Between the claimants.
17. V. supra note 3.
18. [H] the widow of a deceased brother during the period intervening between the death of her husband and the halizah or marriage with the levir.
19. Lit., 'there fell to her'. The assumption now is that this occurred during her 'waiting period'. v. supra n. 1,
20. Bequeathed to her by her father or presented to her as a gifts
21. V. supra note 1.
22. V. Glos.
23. Her melog property. v. Glos.
24. Who is heir to his wife. Husband in this context _ levir.
25. In the Gemara it is explained that this refers to the melog property only. In respect to the kethubah Beth Shammai agree with Beth Hillel.
26. It being a matter of doubt whether the levirate bond with the levir constitutes such a close relationship as that of an actual marriage, the right of heirship as between her husband's heirs and hers cannot be definitely determined and the property must, therefore, be equally divided between them.
27. For further notes v. Keth., Sonc. ed. pp. 507 ff.
28. The case where the widow is alive.
29. Beth Shammai and Beth Hillel.
30. Where the widow had died.
31. Why is the widow in the first case regarded as the confirmed possessor of the property and allowed to dispose of it in any manner she desires, while in the second case her right of possession is in dispute, her rightful heirs not being regarded as the lawful and undisputed successors to her property?
32. Lit., 'when she fell'.
33. Between the widow and the levir, due to the obligations of the levirate.
34. The levirate bond not carrying the same force as actual betrothal.

and the levirate bond of a married woman renders her 'doubtfully married'.¹  'The levirate bond of a betrothed woman renders her doubtfully betrothed', for were we to assume that she is regarded as definitely betrothed, [how could both] BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY SELL IT OR GIVE IT AWAY AND THAT HER ACT IS LEGALLY VALID when we learned: If she came into the possession of property while she was betrothed, Beth Shammai said, she may sell it, and Beth Hillel said, she may not sell it, but both agree that if she had sold or had given it away her act is legally valid!²  Consequently³  it must be inferred that the levirate bond of a betrothed woman renders her 'doubtfully betrothed'.⁴  'The levirate bond of a married woman renders her doubtfully married', for had it been possible to assume that she is regarded as definitely married, [how could] Beth Shammai state that THE HEIRS OF HER HUSBAND ARE TO SHARE IT WITH THE HEIRS OF HER FATHER when we learned: If she came into the possession of property while she was married, both⁵  agree that, if she had sold or given it away, her husband may seize it from the hand of the buyers!⁶  Consequently it must be inferred that the levirate bond of a married woman renders her 'doubtfully married'.⁷

Said Rabbah to him:⁸  Why, then, do they⁹  dispute on [the question of the estate] itself after the death [of the widow]? Let them rather dispute on the question of the usufruct while she is alive! No, said Rabbah, both clauses deal with property which came into her possession while she was married; and the levirate bond of a married woman stamps her as doubtfully married. In the first clause, therefore, where she is alive, she is the certain possessor¹⁰  while they are only doubtful possessors, and doubt cannot override a certainty.¹¹  In the final clause, however, where she is dead, both groups come equally as heirs¹²  and are, therefore,¹³  to take equal shares.¹⁴

Abaye pointed out an objection against him:¹⁵  Cannot a doubt, in accordance with the view of Beth Shammai, override a certainty? Surely we learned: [In the case where] a¹⁶  house collapsed upon a man¹⁷  and his father or upon a man¹⁷  and those whose heir he was,¹⁸  and that man had against him the claim of his wife's kethubah¹⁹  or that of a creditor,²⁰  [and in the first case], the heirs of the father plead that the son died first and the father afterwards,²¹  while the creditor pleads that the father died first and the son afterwards,²²  Beth Shammai hold [that the amount in dispute is] to be divided,²³  and Beth Hillel hold that the estate is to remain in its former status.²⁴  Now here, surely, [the claim of] the heirs of the father is a certainty²⁵  and that of the creditor is only a doubt²⁵  and yet²⁶  the doubtful claim overrides the certainty!²⁷  — Beth Shammai are of the opinion that a bond of indebtedness which is due for repayment is regarded as [already] repaid!²⁸

And whence do you derive this?²⁹  — [From] what we learned: If their husbands³⁰  died before they drank,³¹  Beth Shammai rule that they are to receive their kethuboth³²  and that they need not drink,³³  and Beth Hillel rule that they either drink³³  or they do not receive their kethuboth.³⁴  [But how can it be ruled,] 'They either drink', when the All Merciful said, Then shall the man bring his wife³⁵  and he is not there! Consequently [the meaning must be that] as they do not drink they are not to receive their kethuboth.³²  Now here, surely, it is a matter of doubt, it being uncertain whether she did play the harlot³⁶  or not,³⁷  and yet the doubt overrides the certainty.³⁸  Consequently³⁹  it must be inferred that a bond of indebtedness which is due for repayment is regarded as already repaid.⁴⁰

Abaye,⁴¹  then,⁴²  should have raised his objection from this!⁴³  — [The law of] a wife's kethubah might be different owing to considerations of courtesy.⁴⁴

Then let him⁴⁵  raise his objection from the law of the kethubah in our Mishnah!⁴⁶  They⁴⁷  do not dispute this point.⁴⁸

But do they not? Surely we learned,⁴⁹  IF SHE DIED, WHAT SHALL BE DONE WITH HER KETHUBAH AND WITH PROPERTY THAT COMES IN AND GOES OUT WITH HER? BETH SHAMMAI SAID: THE HEIRS OF HER HUSBAND ARE TO SHARE IT WITH THE HEIRS OF HER FATHER; BETH HILLEL SAID: THE PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS! — It is this that was meant: IF SHE DIED, WHAT SHALL BE DONE WITH HER KETHUBAH? and then [the enquiry] was abandoned. As to PROPERTY THAT COMES IN AND GOES OUT WITH HER, BETH SHAMMAI SAID: THE HEIRS OF HER HUSBAND ARE TO SHARE WITH THE HEIRS OF HER FATHER AND BETH HILLEL SAID: THE PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS.

Said R. Ashi: The inference from the expressions in our Mishnah leads to the same conclusion;⁵⁰  for it was stated, THE HEIRS OF HER HUSBAND ARE TO SHARE WITH THE HEIRS OF HER FATHER⁵¹  and it was not stated 'the heirs of the father [are to share it] with the heirs of the husband'.⁵²  This proves it.

[Reverting to the previous question,]⁵³  Abaye replied: The first clause [deals with property] that came into her possession while she was awaiting [the decision of] the levir,⁵⁴  and the latter clause [with such] as came into her possession while she was still with her husband.

1. Cf. supra n. 3.
2. Keth. 78a., Sonc. ed. pp. 490ff q.v.
3. Since in the case of a definite betrothal Beth Hillel, contrary to the opinion of Beth Shammai do not allow the widow the right of sale or gift, while in the first clause of our Mishnah they do.
4. Hence Beth Shammai, who concede to the widow the right to sell and to give away even where her betrothal was certain, with all the more reason concede such rights to the widow spoken of in the first clause of our Mishnah where her betrothal is only doubtful. Beth Hillel, too, since in the case of a definite betrothal they agree that a sale or gift that had already taken place is valid, may rightly concede to the widow in the case of doubtful betrothal the full rights of selling and giving away.
5. Beth Shammai and Beth Hillel.
6. Keth. loc. cit.
7. And so both Beth Shammai and Beth Hillel, who in the case of a definite marriage recognize the husband's right to seize from the buyers even property that his wife had already sold, agree that in the case of our Mishnah, the status of marriage being a matter of doubt, the husband's rights are also a matter of doubt. Hence Beth Shammai might well maintain that the property which is of doubtful ownership should be equally divided between the rival claimants, while Beth Hillel may maintain that the widow's right of possession is to be given priority since she came into the possession of the property at a time when her married status was a matter of uncertainty.
8. 'Ulla.
9. Beth Shammai and Beth Hillel.
10. Since the property is in any case hers.
11. Hence Beth Shammai as well as Beth Hillel agree that she is fully entitled to sell the property or to give it away.
12. Lit., 'those come to inherit' (bis). Had the levirate bond borne the same force as marriage the estate would undoubtedly have become the property of the levir only. Had it not borne the same force as marriage the estate would have been given to her father's heirs only, and the levir would have had no claim whatsoever. The claims of either group are consequently evenly balanced.
13. Since the claim of either is equally doubtful.
14. According to Beth Shammai. Beth Hillel's view, on the other hand, may be justified on the ground that the widow's father's heirs are her certain relatives and are, therefore, entitled to inherit that which was in her possession. No such claim, however, could be advanced by the husband's relatives since the husband himself was never for one moment in definite and undisputed possession of the property in question.
15. Rabbah.
16. Lit., 'the'.
17. Lit., 'upon him'.
18. Brothers, for instance, or other relatives, who had no other heirs but him.
19. V. Glos.
20. And he left no other money or possessions wherewith to meet his obligations, while those whose heir he was did leave possessions.
21. The son did not consequently inherit from his father whose estate would, therefore, belong to the surviving heirs.
22. And the son had, therefore, inherited his father's estate which may consequently be seized in payment of the son's debts.
23. Between the creditor and the heirs, their respective claims being regarded by Beth Shammai as of equal force.
24. B.B. 157a; With the heirs of the father. The claim of the heirs is regarded by Beth Hillel as a certainty, since they are in possession of the estate either as heirs of the father or as heirs of the son, while the claim of the creditor, being dependent on his being put into possession of the estate by the court, is of doubtful validity, and 'doubt cannot override a certainty'.
25. v. supra n. 8.
26. According to Beth Shammai.
27. Lit., 'and doubt comes and takes away from the hands of certainty'. V. supra n. 8.
28. Sot. 25a. The amount of the debt is deemed to be in the virtual possession of the creditor. The claims respectively of the heirs and the creditor are, consequently, of equal force. If the father died first his son inherited his estate and the creditor had immediately come into the legal possession of a share of the estate equal to the amount of his debt. If the son died first the heirs come into possession of the entire estate. As it is not known who died first the claims of the two parties are equally doubtful and of equal validity.
29. That Beth Shammai hold the opinion just attributed to them.
30. Of women suspected of illicit intercourse with strangers after they had been warned by their husbands. V. Glos. s.v. sotah.
31. The water of bitterness. V. Num. V, 24.
32. Pl. of kethubah, v. Glos.
33. The water of bitterness. V. Num. V, 24.
34. Sot. 24a, Keth. 81a.
35. Num. V, 15; emphasis on man.
36. And has, therefore, lost the right to her kethubah.
37. And is consequently entitled to receive it.
38. Cf. supra p. 243, n, 12. Despite the doubt as to whether she is entitled to her kethubah she receives it, according to Beth Shammai; and she thus takes away the amount of her kethubah from the heirs of her husband who are the undoubted successors to his property.
39. Since the rule is that 'doubt cannot override certainty's
40. The kethubah is, therefore, deemed to have been collected as soon as the husband died, and the widow is consequently deemed to be the virtual possessor of such a portion of his estate as would cover the amount of her kethubah.
41. Whose objection to Rabbah, supra, was based on a Mishnah from Baba Bathra.
42. Since the principle of virtual possession did not occur to him as the reason for allowing a doubtful claim in face of certain one.
43. The Mishnah just cited which is embodied in the Tractates of Sotah and Kethuboth both of which belong to the same order as our Tractate. Since the principles in both Mishnahs are identical, why did Abaye resort to a Mishnah in another order when one was available in our order of Nashim.
44. [H] 'gracefulness', 'loveliness'. It is possible that in order that pleasant and cordial relations may exist between husband and wife the law has been enacted that, despite the general rule that 'doubt cannot override a certainty', a woman shall be privileged to collect her kethubah even when her own claim is of a doubtful character and that of her litigants is a certain one. No objection could, therefore, be put forward from such a special case; and Abaye had consequently to resort to a Mishnah in Nezikin. Other explanations of [H] (v. Jast.): 'In order to make her attractive', 'that women may be willing to marry'.
45. Abaye.
46. Where, according to Beth Shammai, the heirs of the father (by virtue of his being heir to his daughter, the widow), though their claim is of a doubtful nature, share the amount of the kethubah with the heirs of the husband whose rights to the amount of the kethubah (as the heirs of the husband) are certain. At the moment it is assumed that Beth Shammai's disagreement with Beth Hillel extends to the KETHUBAH as well as to the PROPERTY THAT COMES IN AND GOES OUT WITH HER; and 'considerations of courtesy' could not, of course, apply when the woman is dead and the claimants are her male heirs. Cf. Keth. 97b.
47. Beth Shammai.
48. They agree with Beth Hillel that the KETHUBAH IS TO RETAIN IN THE POSSESSION OF THE HEIRS OF THE HUSBAND. V. supra p. 240, n. 8.
49. So MS.M. Cur. edd. 'it was taught'.
50. That Beth Shammai's disagreement with Beth Hillel does not extend to the question of the kethubah.
51. I.e., the former take a share in that which is virtually in the possession of the latter, viz., the melog property which belongs to the heirs of the wife's father.
52. Which would have referred to the kethubah which is in the virtual possession of the husband's heirs,
53. Supra 38a, 'Whereby does the first clause etc.
54. As the levirate bond is not strong enough to give the levir any right over that property, it is generally agreed that she and, in case of her death, her heirs also are entitled to dispose of it in any manner they like.