Resources for Yevamos daf 37

1.      תוספות in ד"ה רוב asks why it’s enough to have 3 months of הבחנה  to verify that the child wasn’t from the first husband when in truth it’s possible that the זרע wasn’t נקלט in the woman until three days after the original husband died in which case we should require three months and three days in order to say the child is not a ספק. He answers (according to the מהר"ם ‘s explanation) that if it became הוכר עוברה within two months of the second husband then it is for sure from the first husband but if it wasn’t הוכר עוברה until two months after the second husband then it’s for sure from the second husband because it would never take that long to be הוכר עוברה. The נודע ביהודה in אבן העזר סימן ס"ט brings a seemingly glaring question from the אב"ד of טרטקוב: what תוספות answered could explain why there is no issue of הבחנה by a regular lady. However, we are talking about יבום. So why do we allow the יבם to do יבום after three months and not make him wait an additional three days lest he violate an ערוה of אשת איש? The נודע ביהודה’s answer is astounding. He says that the פּסוק says “ומת אחד מהם ובין אין לו”. Therefore, if when he died his wife wasn’t even pregnant because the זרע wasn’t נקלט, then even though his wife has his child later there would still be a חיוב יבום since he died without a child or עובר! This is despite the fact that the child is considered the dead man’s child for all הלכות. The נודע ביהודה admits that it is a big חידוש which is not found in any other פּוסק so he wouldn’t rely on it למעשה. Most אחרונים who came later disagreed with the נודע ביהודה. As to his question on תוספות, the מהרש"א in the מהדורה בתרא changes the גירסא in תוספות to say she won’t go three days into the second husband (not a third into the second husband) because the three days of קליטת הזרע are included in the calculation of the three months of הוכר עוברה. The תוספות הרא"ש however has our גירסא in תוספות. The נודע ביהודה’s חידוש is very relevant nowadays where we have artificial insemination and people can have children after they die. רב שלמה זלמן זצ"ל  in שו"ת מנחת שלמה סימן קכ"ד אות ב suggests that even if you disagree with the נודע ביהודה, that’s only because in our תוספות nothing else needed to be done to complete the pregnancy. However, if a man died without children but he was מוציא זרע into a כלי before he died and it was implanted through artificial insemination into the woman after his death, the child would be considered his but there would still be a חיוב יבום since at the time of death he had no children.

2.      The גמרא says that a יבם וספק split the ירושה of the dead brother. The רא"ש in סימן ח׳ asks why the יבם can’t get everything since he is ואדי יורש as a brother? He answers that we must be talking about a case where the grandfather is still alive and a brother is not a יורש while the father is alive. The מהרש"א asks on the רא"ש that the גמרא on דף ל"ח says that the דין by a grandfather and ספק who want to be חולק the property of a יבם is יחלוקו, so you see the fact that the grandfather himself is a ואדי יורש doesn’t change the הלכה and it’s still חולקין. The קובץ הערות in סימן מ אות י"א answers that in our case of a יבם וספק, the ספק may not have a דין יורש since he may be the son of the יבם in which case he isn’t a יורש on his own and his only connection to the מת’s property is through his father who is still alive. However, by the case of the grandfather and ספק, there the ספק is also a ואדי יורש since he is either the son of the guy who died first or the son of the יבם. In either case he is for sure a יורש—the only question is if the grandfather is קודם בירושה.