Yevamos - Daf 39
- Abaye’s and Rava’s explanations of the reisha and the seifa according to Beis Shammai.
The Gemara brings two more explanations as to why Beis Shammai ruled differently in the reisha and seifa of the Mishnah. Abaye says that the reisha refers to when she inherited the property when she was already a shomeres yavam, whereas the seifa refers to when she inherited the property while her first husband was alive, and that ידו כידה – the husband’s rights to the נכסי מלוג is equal to hers. Rashi explains that Abaye holds according to Beis Hillel, that their rights are equal, and therefore, when the husband passes away, her rights become stronger than the yavam’s rights and she keeps the property based on chazakah. Beis Shammai hold that the husband’s rights are stronger than his wife’s. Therefore, when the husband passes away, the bond weakens one degree, and the wife’s rights are now equal to the yavam’s. If she dies, the inheritance is divided by both sides. Rava says both the reisha and the seifa deal with when she was a shomeres yavam. In the reisha, the yavam did not do maamar and in the seifa, he did. Rava holds that according to Beis Shammai, maamar makes the yevamah a ודאי ארוסה וספק נשואה. It makes her a certain arusah in terms of being docheh her tzarah from yibum, but it only makes her a safek nesuah. Therefore, her heirs split the inheritance with the yavam.
- Why the kesubah is paid from the first husband’s estate
The Mishnah had stated that if the yavam married the yevamah, she is considered like his full wife, ובלבד שתהא כתובה על נכסי בעלה הראשון – except that the chiyuv to pay the kesubah is upon her first husband’s estate. The Gemara explains the reason for this is אשה הקנו לו מן השמים – They bestowed a wife upon the yavam from Shomayim. Rashi explains that the yavam did not obligate himself in the kesubah in terms of creating a shibud (lien) on any of his property. Therefore, the yavam is permitted to sell his property whenever he wants. The Gemara clarifies that if the first husband did not leave her any property to collect her kesubah, the Rabbanon were metaken that she collect her kesubah from the yavam, כדי שלא תהא קלה בעיניו להוציאה – in order that she should not be easy in his eyes to divorce.
- מצות יבום קודמת למצות חליצה
The Gemara brings a Mishnah from Bechoros, which states: מצות יבום קודמת למצות חליצה – The mitzvah of yibum is preferable to the mitzvah of chalitzah. בראשונה שהיו מתכוונין לשם מצוה – This was originally when they only had kavanah for the mitzvah, but now that they do not have pure intent, but have an ulterior motive, the Rabbanon said that the mitzvah of chalitzah is preferable to yibum. Rami bar Chama said that later the Rabbanon went back, by saying that the mitzvah of yibum is preferable. This is not because their motives improved, rather, originally the Rabbanon agreed with the following opinion of Abba Shaul who held that yibum is not preferred if there are ulterior motives, for it was taught in a Baraisa that Abba Shaul said: “If the yavam takes the yevamah for the sake of beauty, or for marriage or for any ulterior motive, כאילו פוגע בערוה – it is though he has engaged with an ervah, and in my eyes the child that is born is close to being a mamzer.” Later the Rabbanon came to agree with the Chochomim who held that when the passuk states, "יבמה יבא עליה" – the yevamah shall have relations with her, it implies מכל מקום – however he has relations with her, regardless of intent.
