Yevamot 36b (לו:) — the Talmud in English

One who writes in a deed of bequest that he is giving his property to two people who are not his heirs: to one he writes that he is giving him a certain field as a gift, and to the other he writes that he is bequeathing to him a certain field as an inheritance.

Rabbi Yohanan said: Since he mentioned in the deed of bequest the matter of a gift to one of them, the entire deed is a deed of gift, and this one as well, to whom he wrote in the language of inheritance, acquires it as a gift.

And Reish Lakish said: He never acquired it

—this one to whom it was written in the language of inheritance, since he is not his heir!

For we say that a distinction must be made between the two: for the one to whom he wrote in the language of a gift, it is considered a gift; and for the one to whom he wrote in the language of inheritance, it is considered an inheritance. Since the latter is not fit to inherit from him, that person did not acquire the property.

Unless he says

, meaning that he writes in his deed of bequest:

“So-and-so and so-and-so shall inherit such-and-such field and such-and-such field, which I have given them as a gift, and they shall inherit them.”

That is, since he wrote for each of them language of gift in the middle of the statement, each one acquired his portion.

And in this dispute as well, the halakha is in accordance with Reish Lakish.

And the other one,

the third dispute in which the halakha is in accordance with Reish Lakish, is:

As we learned in the Mishna: One who writes all his property to his son

as a gift, from today and

after his death.

For by means of this language he transferred to his son from now only ownership of the substance of the property, but retained for himself the right to consume its produce from now until the day of his death.

It follows that at present the father has usufructual ownership of the property, while the son has ownership of its substance.

The father cannot sell

the substance of the property—

because he gave

ownership of the substance of the property

to his son,

and there remained in his possession only the right to consume its produce during his lifetime.

And the son cannot sell

the property—

because it is in the father’s possession

for the consumption of its produce.

And the Mishna explains:

If

the father sold

the property, it is

sold

only with regard to the consumption of its produce,

until he dies.

For the purchaser acquired through his purchase the right that the father had to consume the produce of the property.

And when the father dies, the purchaser’s right to consume the produce ends, and from that point onward the son is entitled to consume it.

But if

the son sold

the property,

the purchaser has

no

rights whatsoever

in it, since he cannot consume its produce, which belongs to the father,

until the father dies.

And once the father dies, the purchaser acquires the property and its produce.

And it was stated

with regard to this Mishna: If

the son sold the property during the father’s lifetime, and the son died during the father’s lifetime—

Rabbi Yohanan said: The purchaser did not acquire

anything at all, even when the father dies, as will be explained below.

And Reish Lakish said: The purchaser acquired

the substance of the property and is entitled to consume its produce when the father dies.

For the son had ownership of the substance of the property even during the father’s lifetime, and the son could sell the ownership of the substance that he possessed.

And the Gemara explains the reason for their dispute:

Rabbi Yohanan said,

since the son died during the father’s lifetime,

he did not acquire

the

purchaser

anything at all.

And that which the Mishna said, that the purchaser has no rights in the property until the father dies, but once the father dies the purchaser acquires it, refers to a case in which the father died first. At the moment of his death, the gift that he gave his son took effect, and at that point the sale of the field that the son had made during his father’s lifetime could also take effect.

For a person can sell to another any right that will come into his possession with regard to a particular property, and the sale takes effect when that right comes into the possession of the seller.

But if the right does not come into the seller’s possession—for example, if the son who made the sale dies during his father’s lifetime—the sale cannot take effect, since the seller did not acquire the right that he sold to the purchaser.

And Rabbi Yohanan’s reason for saying that the father can sell but the son cannot is that

“usufructual ownership”

is considered ownership of the substance.”

That is, wherever ownership of property is divided between two people, with one possessing usufructual ownership of the property and the other possessing ownership of its substance, as occurred here—

only the one who possesses usufructual ownership is considered the owner of the property!

For according to Rabbi Yohanan, the right to consume the produce is what defines ownership of the property, and not ownership of the substance itself.

Therefore, here only the father is considered the owner of the property, and not the son.

And Rabbi Yohanan’s expression, “usufructual ownership is considered ownership of the substance,” does not mean that usufructual ownership grants a person ownership comparable to that of one who possesses ownership of the substance. Rather, the ownership of one who possesses usufructual ownership is exclusive ownership of the substance of the property.

And if, nevertheless, the son sold the property during the father’s lifetime, he did not sell it as its owner, but only as one who possessed “rights” in it.

For his father transferred to him a right in the substance of the property from now, and after his death the son would have complete ownership of it. The son sold this right to the purchaser during his father’s lifetime.

And Rabbi Yohanan maintains that the son’s sale to the purchaser takes effect only if this right was realized—namely, if the father died while the son was alive, and the son acquired usufructual ownership as well. Only then does the son’s sale to the purchaser take effect.

For that right did indeed come into his possession, and by virtue of it he became the owner of the property. It is only by virtue of the son’s acquisition that the sale of the right that he sold to the purchaser during his father’s lifetime takes effect.

But if the son died during his father’s lifetime, it follows that the son did not acquire the right to consume the produce.

And since he did not acquire it, his sale to the purchaser did not take effect, since he himself did not acquire it!

And Reish Lakish said: The purchaser acquired

the

property.

For in his view,

usufructual ownership

is not considered ownership of the substance.

And according to him, the one who possesses ownership of the substance is the owner of the property.

Therefore, the son, who possesses ownership of the substance, is the owner of the property.

And for this reason the purchaser acquired it even if the son died during the father’s lifetime, because even during the father’s lifetime the son is considered the owner, while the father has nothing in the property except the right to consume its produce until his death.

And the father can sell this right.

We learned in the Mishna: One who marries his yevama, and she is found to be pregnant and gives birth, if

the offspring is not viable

he may remain married to her!

A tanna

in a beraita

said in the name of Rabbi Eliezer:

Even though by Torah law he acquired her, since she miscarried it was revealed retroactively that his intercourse was yibbum, and she leaves him only by means of a bill of divorce and does not require halitza, nevertheless he may not remain married to her. The Sages decreed that she is prohibited to him, since he entered into a possible violation of the karet prohibition of a brother’s wife, in the event that she would have given birth to a viable child.

Therefore, the Sages said that he must

send

her away

with a bill of divorce.

Rava said: Rabbi Meir and Rabbi Eliezer

stated the same position.

For we find that Rabbi Eliezer penalizes anyone who marries a pregnant woman, such that if he married her, he must send her away!

And Rava explains:

Rabbi Eliezer—

this is what we said,

that he must send her away if he performed yibbum with a pregnant woman.

Rabbi Meir—

this is

that which was taught: A person may not marry another man’s pregnant wife or another man’s nursing wife,

who was divorced or widowed, for as long as she is fit to nurse the baby—that is, for twenty-four months.

And if he married her—

he must send her away, and may never remarry her; these are the words of Rabbi Meir.

And the Sages say: He must send her away

and may not keep her as his wife for as long as she is pregnant or nursing.

And when the time arrives for him to marry her—

he may marry her.

Abaye said

to Rava:

From where?

From where do we know that Rabbi Meir and Rabbi Eliezer stated the same position?

Perhaps,

maybe

that is not so!

For it is possible that

Rabbi Eliezer stated his ruling here only,

with regard to a yavam who married a pregnant yevama, whom they decreed he must send away,

because he encountered

a situation in which he could stumble

into a Torah prohibition of a brother’s wife.

For since he did not wait to have intercourse until it became clear whether his deceased brother had children, in which case she would be prohibited to him, or had no children, in which case she would be permitted to him, he treated lightly the severity of the prohibition of the nakedness of a brother’s wife who has children. Therefore, the Sages penalized him by requiring him to send her away, even if it was ultimately determined that his brother had no children.

But there,

in the case of one who married a pregnant or nursing woman, who thereby violated only a

rabbinic

prohibition, which required waiting before marrying her, it is possible that Rabbi Eliezer as well

holds in accordance with the Sages,

who did not penalize him by requiring him to send her away without the possibility of remarrying her.

Rather, he must send her away for as long as she is pregnant or nursing, and once that period passes, he is permitted to remarry her.

Alternatively,

it is also possible to say the opposite:

Rabbi Meir stated his ruling there only,

that one who marries a pregnant or nursing woman is penalized and must send her away,

because

he treated lightly the

rabbinic

prohibition against marrying a pregnant or nursing woman.

And the Sages reinforced their words more than those of the Torah,

so that other people would not come to treat them lightly because they are less severe, being rabbinic prohibitions.

But here,

where one marries his yevama while she is pregnant, thereby treating lightly the prohibition of a brother’s wife, which is a prohibition

from the Torah—

people will certainly withdraw from it

on their own!

There is no concern that others will come to treat a Torah prohibition lightly and be lenient with regard to it, because people refrain from risking the violation of a Torah prohibition. Therefore, there is no need to decree that he must send her away.

Rava said: And according to the Sages,

who said that one who marries a pregnant or nursing woman must send her away and afterward may marry her, during the period for which he must send her away he must actually divorce her, as

he must send her away with a bill of divorce.

He may not suffice with merely separating from her.

Mar Zutra said: This too is precise

from the language of the beraita,

as it teaches, “he must send her away,”

whose meaning is that it is by means of a bill of divorce,

and it does not teach, “he must separate from her.”

And we conclude: Indeed,

learn from it

that this is implied by the language of the beraita.

The Gemara now discusses the case of another man’s pregnant or nursing wife, asking whether leniency is applied in the case of a kohen’s wife, so that he need not divorce her and thereby prohibit her to her husband.

For this purpose, the Gemara cites the matter of a kohen’s wife and asks whether leniency was applied with regard to halitza, in order to determine her status here:

Rav Ashi said to Rav Hoshaya, son of Rav Idi:

There,

in tractate Shabbat 135b,

we learned: Rabban Shimon ben Gamliel says:

Every

offspring

that remains alive

after birth—

if the reference is

to a

human

offspring, then remaining alive

after birth for

thirty days

proves that this offspring

is not a stillbirth,

but is viable.

And if the reference is to an animal’s offspring, if the offspring remains alive for eight days, it is not a stillbirth.

Such an offspring in the case of a human being exempts its mother from halitza.

And the Gemara infers:

This implies that

if

it did not remain alive

for thirty days after its birth, but died because a lion ate it or because it fell from a roof, and we now do not know what would have happened had it not been killed—whether it would have lived for thirty days and not been a stillbirth, or whether it would have died on its own and was a stillbirth—

it is a matter of uncertainty,

whether it was a stillbirth or not.

And according to Rabban Shimon ben Gamliel, its mother requires halitza due to the uncertainty.

The Sages, however, disagree with him and maintain that an ordinary offspring is presumed viable, since most women give birth to viable offspring.

And it was stated:

If a child was born to a yevama who had become pregnant by her deceased brother-in-law,

and

the child died

within

thirty days

of its birth.

And

the yevama

stood and became betrothed

to someone outside the levirate bond without halitza, because on the basis of the child she had borne, we had established her status as the wife of a brother who had children, who is exempt from halitza.

The amoraim disputed what Rava’s position was concerning the law of this yevama:

Ravina said in the name of Rava:

Since according to Rabban Shimon ben Gamliel it is uncertain whether this child was a stillbirth or viable,

then

if

this yevama

is currently the wife of an Israelite,

so that even if the yavam performs halitza with her now she will not thereby be disqualified from her husband, then

she performs halitza

and is permitted to her husband.

But

if, however,

she is the wife of a kohen,

having become betrothed to a kohen, and if we require her to perform halitza she will become prohibited to him by rabbinic law, under the prohibition that a woman who has undergone halitza may not marry a kohen—

she does not perform halitza!

For with regard to the wife of a kohen, we rely on the Sages, according to whom she is to be maintained in her presumption that she is permitted to marry outside the levirate bond, since this was how we initially established her status, on the basis of the child, as the wife of a brother who had children. Since most women give birth to viable offspring rather than stillbirths, she is permitted to marry outside the levirate bond.

And we do not perform halitza with her in order to remove her initially from Rabban Shimon ben Gamliel’s uncertainty, so as not to prohibit her thereby to her kohen husband due to the uncertainty.

For if she performs halitza, she becomes prohibited to her husband by the prohibition against a woman who has undergone halitza marrying a kohen, which is a rabbinic prohibition.

But

Rav Mesharsheya said in the name of Rava: Both this one and that one,

both the wife of an Israelite and the wife of a kohen,

perform halitza!

And if she became betrothed to a kohen, she becomes prohibited to her kohen husband, because we must be concerned for the view of Rabban Shimon ben Gamliel, who said: Any human offspring that did not remain alive for thirty days is considered a possible stillbirth.

Ravina said to Rav Mesharsheya,

who had said in the name of Rava that even the wife of a kohen performs halitza, despite the fact that she thereby becomes prohibited to her kohen husband: