Kesubos - Daf 81
- שומרת יבם שמתה מי קוברה
The Gemara asked on the bottom of Daf 80b: שומרת יבם שמתה מי קוברה – A shomeres yavam that dies, who buries her? Meaning, who is responsible to pay for her burial? Do the husband’s heirs (i.e. the yavam) bury her, because they inherit the kesubah, or perhaps the father’s heirs bury her, because they inherit the properties that enter and leave with her, referring to the נכסי מלוג? Rav Amram said that the answer can be found in a Baraisa that taught that if a shomeres yavam dies, יורשיה יורשי כתובתה חייבין בקבורתה – her heirs, those who inherit her kesubah, are chayav to bury her. We learn from here that it is the yavam who buries her. When Abaye brings a Mishnah supporting this ruling, Rava challenges him, by suggesting that the yavam could say, “I am inheriting a brother; I have no obligation to bury his wife.” Rashi explains that he can claim that he is not directly inheriting the kesubah amount from her. Rather, it is his brother’s estate that retains that amount of money in light of her death, and he is inheriting the monies from his brother’s estate. The Gemara continues with an extensive exchange between Abaye and Rava.
- בית שמאי – שטר העומד לגבות כגבוי דמי
As part of the exchange between Abaye and Rava, the Gemara mentions Beis Shammai’s position that שטר העומד לגבות כגבוי דמי – a shtar that awaits collections is considered as if it has already been collected. Rashi explains that the one who holds a shtar which gives him a lien on the debtor’s property, is considered more מוחזק in the property than the debtor himself. The Gemara brings a source to demonstrate Beis Shammai’s position, from a Mishnah in Sotah: מתו בעליהן עד שלא שתו – If their husbands died before they drank the bitter waters, Beis Shammai say: נוטלות כתובה ולא שותות – they collect the kesubah from their husband’s estate and do not drink, but Beis Hillel say, they either drink or do not collect the kesubah. Why, according to Beis Shammai do they collect the kesubah? It is a safek if they are entitled to a kesubah, because ספק זנאי ספק לא זנאי – it is a safek whether they committed adultery or not. וקאתי ספק ומוציא מידי ודאי –Yet the safek claim of the wife comes and removes the kesubah payment from the vadai claim of the husband’s estate! We see from here that Beis Shammai hold, שטר העומד לגבות כגבוי דמ - that a shtar that awaits collection is considered as if it is already collected, and the burden of proof is on the husband’s estate to take it from her.
- Can a yavam split the deceased brother’s estate with another brother?
The Gemara brings an incident where a yevamah fell to a man in Pumbedisa, and his younger brother wanted to give her a get to passul her to him, so that his older brother would not inherit the entire estate of the deceased brother. The older brother said he should not give her the get, אנא בנכסי פליגנא לך – “And I will divide the estate with you.” Rav Yosef said: Since the Rabbanon said regarding a shomeres yavam that the yavam cannot sell the property of the deceased brother’s estate, even though he did sell, it is not a valid sale. Therefore, the yavam’s promise to share the estate is not valid, even though he had made a kinyan at the time of the declaration to share the estate. Abaye challenges Rav Yosef from the Mishnah that taught that if a woman inherited properties after becoming an arusah, even though Beis Hillel say she may not sell or give them away, they agree with Beis Shammai that if she did, the transfer stands. They ended up sending this question to numerous authorities, and when Rav Yosef found another Baraisa supporting him, they were told that Rav Yosef bar Manyumi said in the name of Rav Nachman that this Baraisa was not taught and could not be used as a support.
