Yevamos - Daf 38
- שומרת יבם שנפלו לה נכסים
The next Mishnah states: שומרת יבם שנפלו לה נכסים – If a shomeres yavam inherited property from her father, both Beis Shammai and Beis Hillel agree שמוכרת ונותנת וקיים – that she may sell it or give it away, and the transfer stands. מתה – If she dies before yibum is done, what is done with her kesubah and ובנכסים הנכנסים ויוצאין עמה - with the properties that enter and leave with her, referring to נכסי מלוג – property which the husband has the right to use during the marriage and keep whatever crops or income it produces? Beis Shammai say: יחלוקו יורשי הבעל עם יורשי האב – The husband’s heirs divide them with the father’s heirs, but Beis Hillel say: נכסים בחזקתן – The property stays with the one who possesses them. The kesubah is in the possession of the husband’s heirs and the נכסי מלוג are in the possession of the father’s heirs. כנסה כאשתו לכל דבר– If the yavam married the yevamah, she is like his wife in all matters, ובלבד שתהא כתובה על נכסי בעלה הראשון – except that the chiyuv to pay the kesubah rests upon the first husband’s estate.
- Ulla holds זיקת ארוסה עושה ספק ארוסה זיקת נשואה עושה ספק נשואה
The Gemara asks what is difference in the reisha and the seifa of the Mishnah, in that Beis Shammai agree with Beis Hillel in the reisha, that the woman has full possession of the property she inherits, and Beis Shammai disagree in the seifa, that the husband gets part of the property? Ulla said: In the reisha she fell to yibum when she was an arusah, meaning her first husband died after he was mekadesh her, and in the seifa she fell for yibum as a nesuah. And Ulla holds: זיקת ארוסה עושה ספק ארוסה זיקת נשואה עושה ספק נשואה – The zikah of an arusah makes her like a safek arusah, and the zikah of a nesuah makes her like a safek nesuah. The Gemara explains that Ulla holds a זיקת ארוסה עושה ספק ארוסה, for if it made her like a ודאי ארוסה, it was taught in Mishnah in Kesubos that when property falls to an arusah, Beis Hillel holds she is not allowed to sell it l’chatchilah, and in our Mishnah here Beis Hillel does permit her to sell it. And Ullah holds that a זיקת נשואה כספק נשואה, for if the zikah made her like a nesuah, then how could Beis Shammai say if she dies, the property is split between her heirs and the husband’s heirs? For the Mishnah in Kesubos teaches that if a woman tries to sell property she inherited after she became a nesuah, the husband has the right to take them back from the buyers. We see from here that a zikas nesuah only makes her like a safek nesuah, and that is why the property is split.
- Rabbah explains both the reisha and the seifa are when she fell to yibum as a nesuah
Rabbah challenges Ulla and holds that both the reisha and the seifa deal with where she fell for yibum as a nesuah, and agrees with Ulla that זיקת נשואה כספק נשואה. In the reisha where she is alive, she has a vadai claim to the property and the yavam has a safek claim, since she is only a safek nesuah, ואין ספק מוציא מידי ודאי – and a safek claim cannot take money from the hands of one with a certain claim. In the seifa, where she died, הללו באין לירש והללו באין לירש – both the heirs of the father come to inherit and the inheritors of the husband come to inherit, and both have safek claims, therefore, יחלוקו – they divide the money. Rashi explains that according to Beis Shammai, as a safek nesuah, she is either like a nesuah, and the yavam inherits, or she is not a nesuah at all, and the father inherits. Therefore, the property is divided. Beis Hillel hold that since the father’s heirs are definitely in line to inherit the property, and that property is already in the hands of the family before the yavam will come to make a claim after her death, the property remains with those who already have a chazakah in it.
