Yevamot 36b — the Talmud in English

One who writes in a deed of testament all his possessions to two people who are not his heirs: to one he writes that he gives him a particular field as a gift, and to the other he writes that he bequeaths to him a particular field as an inheritance.

Rabbi Yohanan said: Since he mentioned in the deed of testament the matter of a gift to one of them, the entire deed is a deed of gift, and also this one to whom he wrote in the language of inheritance acquires it by virtue of 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 one must distinguish between the two: for this one to whom he wrote in the language of gift, it is considered a gift; and for this one to whom he wrote in the language of inheritance, it is considered an inheritance. And since he is not fit to inherit from him, that person did not acquire the possessions.

Until he says,

that he write in his deed of testament:

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

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

And also in this dispute, 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:

For we learned: One who writes all his possessions to his son

as a gift, from today and

after his death.

For with this language he transferred to his son from now only the substance of the possessions, but retained for himself the right to consume the produce from today until the day of his death.

And it is found that now the father has usufructual acquisition in the possessions, while the son has in them acquisition of the substance.

The father cannot sell

the substance of the possessions—

because he gave them

the acquisition of the substance of the possessions

to the son,

and there remained for him in them only the right to consume the produce during his lifetime.

And the son cannot sell

the possessions—

because they are in the father’s possession

for the consumption of their produce.

And the Mishna explains:

If

the father sold

the possessions—they are

sold

only for the consumption of the produce,

until he dies.

For the purchaser acquired through his purchase the right that the father had to consume produce from the possessions.

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.

And if

the son sold

the possessions—

the purchaser has

in them

nothing,

since he cannot consume their produce, which belongs to the father,

until the father dies.

And when the father dies, the purchaser acquires the possessions and their produce.

And it was stated

concerning this Mishna: If

the son sold 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 possessions, and is entitled to consume the produce when the father dies.

For the son had acquisition of the substance of the possessions even during the father’s lifetime, and the son could sell the acquisition of the substance that he had.

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 what the Mishna said—that the purchaser has nothing in them until the father dies, but once the father dies the purchaser acquires them—refers to a case in which the father died first, and at the moment of his death the gift that he gave to his son took effect; then, too, the sale of the field that the son sold during his father’s lifetime can take effect.

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

But if the right does not come into the possession of the seller—for example, the son who was the seller died 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 the reason of Rabbi Yohanan, that the father can sell but the son cannot, is that

“usufructual acquisition”

is considered like acquisition of the substance.

That is, wherever ownership of possessions is divided between two people, when one has usufructual acquisition in the possessions and the other has acquisition of the substance of the possessions, as happened here—

only the one who has the usufructual acquisition in his possession is considered the owner of the possessions!

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

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

And Rabbi Yohanan’s wording, “usufructual acquisition is considered like acquisition of the substance,” does not mean that usufructual acquisition gives him ownership like that of one who has acquisition of the substance; rather, the ownership of one who has usufructual acquisition is the exclusive ownership of the substance of the possessions.

And if, nevertheless, the son sold the possessions during the father’s lifetime, he did not sell them as their owner, but only as one possessing “rights” in them.

For his father transferred to him a right from today in the substance of the possessions, and after his death he would have complete ownership of them. And the son sold this right to the purchaser during the father’s lifetime.

And Rabbi Yohanan holds that only if this right was realized—namely, the father died while the son remained alive, and the son also acquired the usufructual acquisition—only then does the son’s sale to the purchaser take effect.

For this right indeed came into his possession, and by virtue of it he became the owner of the possessions. And only by virtue of the son’s acquisition did the sale of the right that he sold to the purchaser during his father’s lifetime take effect.

But if the son died during the father’s lifetime, it is found 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: He acquired

the

purchaser.

For in his view

usufructual acquisition—

is not considered like acquisition of the substance.

And in his view, the one who has acquisition of the substance is the owner of the possessions.

Therefore the son, who has acquisition of the substance, is the owner of the possessions.

And for that reason the purchaser acquired them even if the son died during the father’s lifetime, since even during the father’s lifetime the son is considered the owner, and the father has in the possessions only the right to consume the produce until his death.

And the father can sell this right.

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

the offspring is not viable—

he shall retain her!

A tanna

in a beraita

said in the name of Rabbi Eliezer:

Even though according to Torah law he acquired her, for once she miscarried it became retroactively revealed that his intercourse was levirate intercourse, and she leaves only with a bill of divorce and does not require halitza, nevertheless he may not retain her as his wife, because the Sages decreed to prohibit him from retaining her, since he entered into a possible prohibition punishable by karet of a brother’s wife, in the event that she would have given birth to a viable child.

Therefore the Sages said that he

shall take her out

with her

bill of divorce.

Rava said: Rabbi Meir and Rabbi Eliezer—

said one and the same thing.

For we find that Rabbi Eliezer penalizes anyone who marries a pregnant woman, that if he took her in, he must take her out!

And Rava explains:

Rabbi Eliezer—

this is what we said,

that he must take her out if he performed levirate marriage with a pregnant woman.

Rabbi Meir—

this is

as it is taught: A person may not marry his fellow’s pregnant woman or his fellow’s nursing woman,

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

And if he married her—

he must take her out, and he may never remarry her, the words of Rabbi Meir.

And the Sages say: He must take her out

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

And when the time arrives for him to take her in—

he shall take her in.

Abaye said to Rava,

to

what

do we know? From where do we know that Rabbi Meir and Rabbi Eliezer said one and the same thing?

Perhaps,

perhaps

it is not so!

For it is possible that

Rabbi Eliezer said only this here,

concerning a yevama whom he took in while pregnant, that they decreed that he must take her out from under him,

but only because he encountered,

that he took her in with the possibility that he would stumble

in the prohibition of a brother’s wife, by Torah law.

For since he did not wait to have intercourse until it would become clear whether his deceased brother had children, in which case she would be forbidden 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 take her out, even if in the end it became clear that his brother had no children.

But there,

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

of the Sages,

who instituted that one must wait before marrying her, it is possible that Rabbi Eliezer too

holds like the Rabbis,

who did not penalize him by requiring him to take her out without being able to remarry her.

Rather, he must take her out for as long as she is pregnant or nursing. And once the time passes, he is permitted to remarry her.

Alternatively,

it is also possible to say the opposite:

Rabbi Meir said only there,

that they penalized one who married a pregnant or nursing woman by requiring him to take her out,

but only because

he treated lightly the prohibition

of the Sages

of taking a pregnant or nursing woman.

And the Sages made their words more stringent than those of the Torah,

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

But here,

one who takes his yevama in levirate marriage while she is pregnant, thereby treating lightly the prohibition of a brother’s wife, which is a prohibition

from the Torah—

people certainly withdraw from it

on their own!

There is no concern that other people will come to treat lightly and be lenient regarding a prohibition from the Torah, because people withdraw from exposing themselves to the transgression of a prohibition from the Torah; therefore it is unnecessary to decree that he take her out.

Rava said: And according to the words of the Sages,

who said that one who marries a pregnant or nursing woman must take her out and afterward bring her in, for the duration of the period during which he takes her out, he must actually divorce her, for he

must take her out with a bill of divorce.

He may not suffice by merely withdrawing from her.

Mar Zutra said: This too is precise

from the wording of the beraita,

as it teaches, “He must take her out”,

whose meaning is with a bill of divorce,

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

And we conclude: Indeed,

infer from it

this from the wording of the beraita.

And now the Gemara comes to discuss the matter of one’s fellow’s pregnant or nursing woman, whether they were lenient with regard to the wife of a koen, not to divorce her so as not thereby to prohibit her to her husband.

And for this purpose the Gemara brings the matter of the wife of a koen: whether they were lenient with regard to her concerning halitza, in order to discuss what her law is 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 emerging into the air of the world—

if the matter concerns

a

human

offspring—

then remaining alive after emerging into the air of the world for

thirty days

after birth proves that this offspring

is not a stillbirth,

but is viable.

And if the matter concerns the offspring of an animal, then any offspring that remains alive for eight days is not a stillbirth.

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

And the Gemara infers:

This—

if

it did not remain

alive for thirty days after its birth, but died because a lion ate it or it fell from the roof, and from now on we 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 doubt,

whether it was a stillbirth or not.

And according to Rabbi Shimon ben Gamliel, its mother requires halitza because of the doubt.

But the Sages dispute him, and hold that an ordinary offspring is presumed viable, since most women give birth to viable offspring.

And it was stated:

if a viable offspring was born to a yevama who had become pregnant from the deceased brother.

And

the

offspring

died within thirty days

of its birth.

And she stood

the yevama

and became betrothed

to the outside world without halitza, because on the basis of the offspring that she bore we established her as the wife of a brother who had children, who is exempt from halitza.

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

Ravina said in the name of Rava:

Since according to Rabbi Shimon ben Gamliel it is doubtful whether this offspring was a stillbirth or viable—

then

if

this yevama

is now the wife of an Israelite,

so that even if the yavam performs halitza for her now she will not be disqualified from her husband—she

performs halitza

and is permitted to her husband.

But

however,

if she is the wife of a koen,

who became betrothed to a koen, and if we obligate her to perform halitza she will become forbidden to him, by rabbinic law, because of the status of “a woman who has undergone halitza”

she does not perform halitza!

For with regard to the wife of a koen, we rely on the Rabbis, according to whose words we must leave her with her presumption that she is permitted to the outside world, since this is how we initially established her, on account of the offspring, as the wife of a brother who had children. Since most women give birth to viable offspring and not stillbirths, she is permitted to the outside world.

And we do not perform halitza for her in order to remove her initially from the doubt of Rabbi Shimon ben Gamliel, so that we should not thereby prohibit her to her koen husband because of the doubt.

For if they perform halitza for her, she becomes forbidden to her husband because of the prohibition of a woman who has undergone halitza to a koen, 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 koen—

perform halitza!

And if she became betrothed to a koen, she becomes forbidden to her koen husband, since one must be concerned for the words of Rabbi Shimon ben Gamliel, who said: Any human offspring that did not remain alive for thirty days is a possible stillbirth.

Ravina said to Rav Mesharsheya,

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