Yevamot 37b — the Talmud in English

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the halakha

is according to Rabbi Elazar,

the halakha

is according to Rabbi Eliezer ben Yaakov.

Abaye said: From where do I say it,

from where do I have proof,

that every uncertainty

of mamzer-status

according to Rabbi Eliezer ben Yaakov—

as a definite

mamzer

does he make it?

For it was taught in a beraita: Rabbi Eliezer ben Yaakov says: If a man came

upon

many women, and he does not know upon which of them he came.

And likewise she, upon whom many men came, and she does not know from which of them she received

and became pregnant—

behold,

it is found that a father marries his daughter, and a brother marries his sister.

And the entire world becomes filled with mamzerim!

And concerning this it is said:

Leviticus 19,

“And the land shall be filled with licentiousness.”

And it follows that even those of uncertain mamzer-status are called mamzerim.

And Rava could say to you:

This is what

Rabbi Eliezer ben Yaakov said: concerning this it is said,

“This—

what is it!?”,

which is an expression of uncertainty, that they are of uncertain mamzer-status.

And the beraita continues:

Furthermore,

even concerning a matter publicized, which is brought about through marriage,

Rabbi Eliezer ben Yaakov said,

he decreed that it should not be done, since it can bring about a stumbling-block and mamzerim:

A man should not marry a woman in this province and go and marry a woman in another province—

perhaps these will pair with those, and it will be found that a brother marries his sister.

And we raised an objection:

Is this so? But when Rav happened to come

when he happened to be present

to

a place called

Dardeshir,

he would

announce and say: Who will be mine for the day?

Who is willing to be my wife for the few days that I am here?

And

likewise

Rav Naḥman, when he happened to come to Shakhenziv, would announce and say: Who will be mine for the day?

But one must be concerned lest a brother marry his sister!?

And we answer:

The Sages are different, for their

name is publicized,

their name,

and the children born from them are affiliated with them, and they will not come to marry a brother their sister.

And the Gemara is astonished: How did Rav and Rav Naḥman announce marriage immediately, when one must wait seven clean days for a bride who was proposed to for marriage:

But Rava said: If they proposed to her

to a woman who had been betrothed,

to marry

her husband,

and she agreed,

she consented to it—

she must sit [and count] seven clean days,

lest she saw blood on account of desire when they proposed marriage to her!

And we answer:

The Sages

Rav and Rav Naḥman

would send their messengers

they would send to those places in advance, at least a week earlier,

and inform them

that they were going to come.

And if you wish, say: For the Sages—

they merely designated them for themselves

women for marriage, but they would not marry them immediately.

And they did this because

the master said: The one who has bread in his basket is not like the one who does not have bread in his basket.

[And Tosafot wrote: Since, if he wished, he would come upon her, that alone would suffice for him. And there is no blood of desire here, since she was not certain that he would come upon her.]

It was taught: Rabbi Eliezer ben Yaakov says: A man should not marry his wife with the intention of divorcing her, because it is said:

Proverbs 3,

“Do not plow evil against your fellow, while he dwells securely with you.”

And now the Gemara discusses the laws of inheritance of the son who is uncertain whether he is the first one’s son or the second one’s son. A. The son who is

a

doubt

whether he is the son of the deceased brother or the son of the brother who performed yibbum,

and

the

brother who performed yibbum, came to divide the estate of the deceased,

the deceased brother.

The uncertain one said: I—

I am the son of the deceased

I am the son of the deceased.

And the property

of the deceased—

it is mine,

it belongs to me.

Since I am his son, and I alone am the heir. But you are not the brother who performs yibbum, and your yibbum—that you performed yibbum with my mother—did not take effect, since my father left seed after him: me.

And the brother who performed yibbum said: You are my son,

you are my son,

and you have nothing, not even anything from me,

you have nothing

of the property

of my deceased brother, for he left no sons after him.

And I am his heir, since I performed yibbum with his wife, your mother.

And therefore,

behold,

the property of the deceased is

property placed in uncertainty.

And property placed in uncertainty—

they divide it!

Since neither of them has possession of the property more than the other, for there is no one here who is a definite heir.

And therefore, there is no one here who comes to extract property from one who possesses it as a definite heir, so that we could say concerning one who claims the inheritance: “The one who extracts from his fellow—the burden of proof is upon him.” B.

The

uncertain one and the sons of the brother who performed yibbum

the brother who performed yibbum, their father, died,

who came to divide the estate of the deceased,

the deceased brother.

The uncertain one said

about himself:

That man

that is, I—

is the son of the deceased.

I am the son of the deceased,

and the property is mine.

Since I am his son and his sole heir, this property is mine.

The sons of the brother who performed yibbum said: You are our brother,

and our father is the heir.

And a portion,

your share, as it is divided among all the brothers,

is what you have with us,

this is what you have among us.

And here the uncertain one has stronger possession than the sons of the brother who performed yibbum over the property.

For he certainly has the right of an heir in it. For he is entitled to [at least a share] of the inheritance, whichever way you look at it: whether he is the first one’s son or whether he is the second one’s son, he is considered an heir in the property. But the sons of the brother who performed yibbum are uncertain heirs.

And if so, he can say to the sons of the brother who performed yibbum: Since I certainly possess the property, since I am certainly an heir, while you are uncertain heirs, bring proof that you are heirs, for the one who extracts from his fellow—the burden of proof is upon him.

And therefore,

the Sages before Rav Mesharsheya thought to say:

this law—

is a Mishna!

For we learned

below [100a]: A woman who did not remain [unmarried] for three months after the death of her husband, and married another man, and a son was born to her, and it is not known whether he is the son of the first one or the son of the second one, and she had other sons, whether from the first husband or from the second husband—

he,

the uncertain one,

does not inherit them.

Not his brothers who are uncertain [as to his status] from the first husband, nor his brothers who are uncertain [as to his status] from the second husband, since they send him away from one house to another.

The brothers from the first husband claim that he is not their brother from their father, but that he is her son from the second husband, and he is not entitled to the inheritance of their father.

And the brothers from the second husband claim that he is not their brother from their father, but that he was born from the first husband, and he has no share in the property of the second one.

And since they are definite heirs while he is an uncertain heir, they can say to him: We certainly possess the property as heirs, while you are an uncertain heir, and you come to extract from us. And the one who extracts from his fellow—the burden of proof is upon him.

And they inherit him,

for after his death there is no one who will inherit him other than they, and because of the uncertainty all the brothers, from the first husband and from the second husband, divide his property.

But here,

in the case of the uncertain one and the sons of the brother who performed yibbum, who came to inherit the property of the deceased brother, according to that same principle—that an uncertain heir must bring proof in order to extract from a definite heir—it should be said

the reverse:

Just as

there, they say to him

the sons of the first one and the sons of the second one, who are definite heirs, to the uncertain one:

Bring proof

that you are an heir to a share of our father’s property,

and take

a share of his property.

So

here, he says to them

the uncertain one, who is a definite heir, to the sons of the brother who performed yibbum, who are uncertain heirs:

Bring proof

that you too are heirs,

and take

from the property of the deceased.

Since the uncertain one possesses the property, for he is a definite heir, whichever way you look at it, and the sons of the brother who performed yibbum must bring proof, since they are the ones extracting from him.

Rav Mesharsheya said to them: Are the cases comparable

the two cases?

There, they are definite

heirs of their father, for they know who their father is, and they come to inherit by his power; therefore they are considered to possess the property more than he does,

while

he

is uncertain,

an heir who does not know whose son he is, and therefore he cannot extract from them unless he brings proof for his words.

But

here, both this and that,

both the uncertain one and the sons of the brother who performed yibbum, are

uncertain

heirs!

For the uncertain one does not know by whose power he is an heir, and he cannot make a definite claim that he is a definite heir to all the property.

Rather, he comes with a claim of “whichever way you look at it”: whether he is the son of the deceased or whether he is the son of the brother who performed yibbum, he is entitled to at least a share of the inheritance.

And the share that he is entitled to, whichever way you look at it, he indeed receives. For they concede to him that he is entitled to a share of the deceased’s property, like one of the brothers. And the remainder they divide, half for him and half for them [Rashi].

Rather, if

the case of the uncertain one and the sons of the brother who performed yibbum

resembles the Mishna

there,

it resembles this: the uncertain one and the sons of the brother who performed yibbum, who came to divide the property of the brother who performed yibbum himself.

For there they say to him

the sons of the brother who performed yibbum say to the uncertain one:

Bring proof that you are our brother,

bring proof that you are our brother,

and take. C.

The

uncertain one and the sons of the brother who performed yibbum, who came to divide the property of the brother who performed yibbum, after the brother who performed yibbum divided the property of the deceased,

after the uncertain one had already divided with the brother who performed yibbum the property of the deceased brother, by the law that property placed in uncertainty is divided. And now the brother who performed yibbum died, and his property falls before his heirs.

The sons of the brother who performed yibbum said

to the uncertain one: You have nothing in our father’s property, for

bring proof that you are our brother

that you are our brother,

and take.

The uncertain one said to them: Whichever way you look at it?

If I am your brother,

your brother,

I—

give me a portion with you.

Give me a share among you like one of the brothers.

And if you claim that I already took from the property of your inheritance half of the share of the deceased brother—and if I am your brother, this share must be divided equally among us—I am indeed prepared to return it and add it to the entire property of the brother who performed yibbum, so that it will be divided among us.

And it is worthwhile for him to make such a claim in a case where the property of the brother who performed yibbum was extensive and the property of the deceased brother was small, and it is found that his share in the division of all the property of the brother who performed yibbum, as an equal brother among all the brothers, will be larger than half the property of the deceased brother.

And if I am the son of the deceased—

give me half of what your father divided with me!

And if it is as you claim, that I am not your brother, then I am the son of the deceased, and if so, you have in your possession half of my deceased father’s property, which your father acquired only by virtue of his claim that I am his son and your brother. But according to your claim that I am the son of the deceased, all the property of the deceased that is in your possession now belongs to me.

Rabbi Abba said in the name of Rav: The judgment stands!

The brother who performed yibbum’s acquisition of half the property of the deceased is an absolute acquisition, since the judgment that was decided—that the brother who performed yibbum has half of the deceased’s property—stands and remains, and it is no longer possible to challenge it.

And therefore, the uncertain one cannot return and claim from them, the heirs of the brother who performed yibbum, by means of the claim “whichever way you look at it.”

And since he does not prove that he is the son of the brother who performed yibbum, he has nothing of his property.

Rabbi Yirmeya said: The judgment returns.

The judgment returns, and the uncertain one can claim the deceased’s property from the heirs of the brother who performed yibbum, by means of the claim “whichever way you look at it”:

If I am the son of the deceased, return to me half of the deceased’s property that your father took.

And if I am your brother, give me a share of your father’s property, like one of you.

And we raised an objection:

Let us say,

should we say that Rabbi Abba in the name of Rav and Rabbi Yirmeya, who disagreed over whether the judgment stands or whether the judgment returns,

disagree in the dispute between Admon and the Sages!?

For we learned

in tractate Ketubot [109b]:

One who went to an overseas country,

and his field was surrounded by the fields of other people, and he had a path leading to his field between the fields of the other people,

and he lost the path to his field,

for he does not recognize where it is.

Admon said: He should go by the shortest route!

His neighbors must provide him a short route, as will be explained below.

And the Sages say:

He cannot claim the path for himself.

Rather,

he should take

buy

for himself

from his neighbors

a path for one hundred maneh, or “let him fly through the air.”

And the Gemara now assumes that the fields around him belonged to one neighbor.

And we raised a difficulty against the Sages:

Behold,

Admon has spoken well,

for surely he is entitled to a short path within his neighbor’s field!

And Rav Yehuda said in the name of Rav: With what are we dealing here—

for example, four people surrounded him from the four directions,

and each one claims that the path is not in his field, and from each one he is considered an extractor because of uncertainty, and the burden of proof is upon him.

And we wonder:

If so,

his field is surrounded by four neighbors,

what is Admon’s reason?

From where does he have the right to take a path for himself!?

And Rava said: If the matter were

a case of

four

neighbors who purchased their fields,

who come

who are coming

by virtue of four

sellers, who had formerly been his neighbors and sold them their fields.

And

likewise, if the matter were even a case of

four

neighbors

who come by virtue of one,

who purchased their fields from one person—

everyone agrees that they can send him away,

each one sending him away and saying to him: Bring proof that your path is found within my field.

They disagree

Admon and the Sages

over one who comes by virtue of four.

Over one neighbor who acquired the fields on the four sides of his field: does the one who lost his path have the right to demand his path from him by virtue of “whichever way you look at it”?

Admon holds: He can say to him:

It is true that you come by virtue of four sellers, from whom I could not claim my path, since each one would send me to the other; but now that you have acquired all the fields, I claim against you, for

in any event, my path—

is behind you!

It is in your possession, within your fields.

And the Sages hold that he says to him

the purchaser:

If you remain silent, you remain silent,

and I will sell you a path at the market price, and I will not demand an expensive amount from you for it.

And if not,

you remain silent—

I will return the document to its owners,

I will return the bill of sale to the four previous owners,

and you will not be able to litigate with them,

and you will not be able to stand in judgment with them to claim the path, since each one will send you from him to the other, and then you will be forced to purchase a path for yourself with expensive money.

Let us say,

should we say that

Rabbi Abba,

who says “the judgment stands,”

says in accordance with the Sages,

whose view is that he is not entitled to a path, since the judgment already “stands”: for he had no right to claim a path when four neighbors surrounded him, and then he lost his path. Therefore, when a new situation arose, in which one purchaser came and purchased all the fields around him, the judgment does not return so that he can now claim his path, since he had already lost the right to it.

While

if

Rabbi Yirmeya, who says “the judgment returns,” holds

that he agrees

with Admon,

whose view is that this person did not lose his right because he was unable to bring proof; rather, his right still exists, and he can exercise it when a new situation arises, in which one purchaser acquires all the fields around him.

And the Gemara rejects that the dispute of Rabbi Abba and Rabbi Yirmeya depends upon the dispute of Admon and the Sages.

For

Rabbi Abba could say: I—

who say that the judgment stands—can hold

that I can maintain

even in accordance with Admon.

Since

Admon said this only there,

that the owner of the path has the right to demand his path from the one who purchased all the fields surrounding his field—

rather because he says to him,

for the owner of the path claims against the purchaser of the surrounding properties with a definite claim:

Whichever way you look at it: