Bava Batra 135a (קלה.) — the Talmud in English

The Gemara presents an additional case, concerning the husband's reliability in permitting his wife to remarry without requiring yibbum.

A case involving

a certain man who was on the verge of death,

and was dying without children, while he had brothers who were eligible to perform yibbum with his wife.

They said to him: What will become of his wife?

That is, does your wife require yibbum, or is she permitted to remarry?

He said to them: She is fit for a High Priest

[fit to marry a kohen gadol]. That is, she does not require yibbum, but is permitted to marry anyone.

Rava said: What concern is there regarding her?

That is, for what reason should she be forbidden to remarry,

since Rabbi Hiyya bar Abba said that Rabbi Yohanan said: If a husband says,

“I divorced my wife,” he is believed!

In the case under discussion as well, his intention was certainly to say, “I divorced her,” and he is believed.

Abaye said to him: But when Rabbi Yitzhak bar Yosef came, he said that Rabbi Yohanan said: If a husband says, “I divorced my wife,” he is not believed,

It follows that the amoraim disagreed regarding Rabbi Yohanan’s position, and we must be concerned for the more stringent opinion, and forbid her to remarry.

Rava said to him

Abaye:

Did we not distinguish between them,

and resolve this objection above,

here referring to retroactively and here

to the future?!

If so, the amoraim did not disagree regarding Rabbi Yohanan’s position, and according to everyone it is possible to permit her to marry from this point forward.

Abaye then raised an objection against him:

Should we rely on a mere resolution

and conclude that the amoraim did not disagree regarding Rabbi Yohanan’s position? Perhaps they did disagree regarding his words, and some forbid her even from this point forward?

As a result of this objection, Rava retracted his statement and

said to Rav Natan bar Ami: Be concerned for it,

like Abaye, and forbid her to the general public.

Another case concerning the same matter:

A certain

man

who was established for us as having no brothers,

and he also had no children.

And at the time of his death he said that he had no brothers.

In straightforward terms, his wife is permitted to remarry, since he has no brothers eligible for yibbum.

Rav Yosef said: What concern is there regarding her?

There are two reasons to permit her:

First, it is established for us that he has no brothers.

And furthermore, he said at the time of his death that he had no

brothers, and he is believed because he has the ability to divorce her now.

Abaye said to him: But the people

of the city

say that there are witnesses overseas who know that he has brothers.

We must be concerned for their testimony and wait until we hear what the witnesses have to say.

The Gemara rejects this:

At present, they are not here before us,

the witnesses are not currently before us, and she should not be forbidden because of witnesses who may come in the future. For a judge has only what his eyes see! And there is proof of this:

Is this not comparable to the case of Rabbi Hanina?!

Is this case not like the case that came before Rabbi Hanina, involving the daughter of Shmuel who was captured, whom her captors brought to the Land of Israel, where she was redeemed, and who then claimed before Rabbi Hanina, “I am pure,” and he permitted her to marry into the priesthood, even though there were witnesses overseas who testified that she had been defiled,

and his reason was

as Rabbi Hanina said: “Witnesses are beside the northern wind, and she should be forbidden”

should we forbid her merely because of witnesses who are in the north and have never been questioned] ?!

If so, in the case under discussion as well, there is no need to be concerned for witnesses who have not come to the court, and she is permitted to remarry.

Abaye said to him: If we were lenient with a captive woman,

and maintained her presumed status of permissibility, that she had not engaged in illicit relations,

should we be lenient with a married woman ?!

On the basis of this argument,

Rava said to Rav Natan bar Ami: Be concerned for it.

That is, do not permit her to remarry until she performs halitza, or until those witnesses come to court and the matter is clarified.

We learned in the Mishna: “One who says, ‘This is my son,’ is believed;

‘This is my brother,’ he is not believed.”

He does not inherit together with his brothers, but receives a share only together with that brother. Nevertheless, if that brother inherited property from another source and then died without children, all the brothers inherit from him equally.

We raise a question concerning this:

And the other one

[the other brothers]

what are they saying?

If they are saying, “He is our brother,” why should he receive together with him in his share and no more,

when he should have divided the inheritance equally with all his brothers?

Rather,

it is certainly referring to a case

where they say, “He is not our brother”,

and therefore he shares only with the brother who acknowledged that he was his brother.

If so, this is difficult:

Let us say the latter clause: “If property

fell to him from another source, his brothers shall inherit it with him.”

If they do not acknowledge that he is their brother, why should they inherit his property?

They said to him, “He is not our brother”!

The Gemara answers:

No, it is necessary to state this in a case where they say, “We do not know.”

Therefore, he does not receive a share together with them, since he must bring proof that he is their brother.

But if he dies, his brothers receive a share of his property together with their brother, since he acknowledged that he was their brother.

Rava said: This proves

from this law that one who says,

“I have a hundred dinars in your possession,” and the other says, “I do not know,” is exempt.

We do not extract money from him in a case of uncertainty, even though the claimant makes a definite claim while the defendant makes a claim of uncertainty, for we say: “The burden of proof rests upon the one who seeks to take property from his fellow.”

This provides proof against Rav Huna and Rav Yehuda, mentioned in tractate Bava Kamma (118a), who maintain that when one makes a definite claim and the other makes a claim of uncertainty, the definite claim prevails.