Yevamot 37b (לז:) — the Talmud in English

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the halakha

is in accordance with Rabbi Elazar;

the halakha

is in accordance with Rabbi Eliezer ben Yaakov.

Abaye said: From where do I say this?

What is my proof

that every uncertainty

concerning mamzer status

according to Rabbi Eliezer ben Yaakov

is treated as

a definite mamzer

by him?

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

upon

many women, and he does not know with which of them he had intercourse.

And similarly, if many men came upon her, and she does not know from which of them she conceived,

she became pregnant—

then

it will be found that a father may marry his daughter, and a brother may marry his sister.

And the entire world will become filled with mamzerim!

And concerning this it is stated: Leviticus 19]

“And the land shall be filled with lewdness.”

And it follows that even those whose mamzer status is uncertain are called mamzerim.

And Rava could say to you:

This is what Rabbi Eliezer ben Yaakov means:

concerning this it is stated,

“This”—

what is it!? That expression denotes uncertainty, meaning that they are of uncertain mamzer status.

And the beraita continues:

The beraita continues:

Furthermore,

even concerning a matter that becomes publicly known, having been brought about through marriage,

Rabbi Eliezer ben Yaakov said

that he decreed that it should not be done, since it could lead to mishap and to mamzerim:

A man may not marry a woman in one country and then go and marry a woman in another country—

lest they become paired with one another, and it will be found that a brother has married his sister.

And we raised a difficulty:

Is that so? But when Rav happened to arrive

when he came by chance

at

the place called

Dar-deshir,

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

when Rav Naḥman happened to arrive in Sikhnetziv, he would announce and say: “Who will be mine for the day?”

But surely there is concern lest a brother marry his sister!?

And we answered:

The Sages are different, as their

reputation is well known,

their names

being famous; and the children born to them are attributed to them, so they will not come to marry their sister.

The Gemara raises another difficulty: How could Rav and Rav Naḥman immediately announce that they were seeking marriage? A bride who has been proposed for marriage must wait seven clean days:

But Rava said: If a woman is asked

a woman who has become betrothed

to marry

her husband,

and she agrees,

she consents to it—

she must sit for seven clean days,

lest she saw blood due to her desire when she was asked to marry!

And we answered:

The Sages Rav and Rav Naḥman]

would send their agents

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

and inform them

that they were going to arrive.

And if you wish, say: For the Sages—

they merely designated women for them

for marriage, but they did not marry them immediately.

They did this because

the Master said: One who has bread in his basket is not like one who has no bread in his basket. And Tosafot wrote that since, if he wished, it would have sufficed for him to have intercourse with her. There is no blood of desire here, since she was not certain that he would have intercourse with her].

[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 a woman with the intention of divorcing her, because it is stated: Proverbs 3]

Proverbs 3,

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

The Gemara now discusses the inheritance laws concerning the son who is uncertain whether he is the first brother’s son or the second brother’s son.

A. The son who is

uncertain

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

and

the

yavam, who came to divide the estate of the deceased,

the deceased brother—

The uncertain son said: I

am the son of the deceased I am the deceased’s son].

And the property

of the deceased

is mine,

it belongs to me.

Since I am his son, I alone am his heir. But you are not a yavam, and your yibbum, by which you performed yibbum with my mother, did not take effect, since my father left offspring—me.

And the yavam said: You are my son,

you are my son,

and you have nothing, not even a little,

you have nothing

of the property

of my deceased brother, since he left no sons.

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

And therefore,

behold,

the property of the deceased is

money subject to uncertainty.

And money subject to uncertainty—

they divide it!

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

Therefore, there is no one here who is seeking to extract money from one who holds it as a definite heir, so that we could say concerning the one claiming the inheritance: “The one who seeks to take money from another bears the burden of proof.” B.

The uncertain son and the sons of the yavam the yavam, their father, died],

who came to divide the estate of the deceased,

the deceased brother.

The uncertain son said,

about himself:

That man that is, I]—

is the son of the deceased.

I am the deceased’s son,

and the property is mine.

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

The sons of the yavam 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,

that is all you have among us.

Here, the uncertain son has stronger presumptive possession than the sons of the yavam with regard to the property.

For he certainly has the rights of an heir to it. He is entitled to at least a portion of the inheritance, whichever way one looks at it: whether he is the first brother’s son or the second brother’s son, he is considered an heir to the property. The sons of the yavam, by contrast, are uncertain heirs.

If so, he can say to the sons of the yavam: Since I have definite presumptive possession of the property, as I am certainly an heir, while you are uncertain heirs, you must bring proof that you are heirs, for the one who seeks to take money from another bears the burden of proof.

And therefore,

the Sages who were before Rav Mesharsheya thought to say:

This law—

is a Mishna!

As we learned

below [100b]: A woman who did not wait three months after her husband’s death and married another man, and bore a son whose identity is uncertain, whether he is the first husband’s son or the second husband’s son, and she had additional sons, both from the first husband and from the second husband—

He,

the uncertain son,

does not inherit from them.

He inherits neither from his brothers of uncertain status from the first husband nor from his brothers of uncertain status from the second husband, since they send him away from one household to the other.

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

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

And since they are definite heirs while he is an uncertain heir, they can say to him: We have definite presumptive possession of the property as heirs, while you are an uncertain heir seeking to take it from us. The one who seeks to take money from another bears the burden of proof.

And they inherit from him,

since after his death there is no one other than them to inherit from him, and because of the uncertainty all the brothers, those from the first husband and those from the second husband, divide his property.

But here,

in the case of the uncertain son and the sons of the yavam 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 take property from a definite heir—we should say

the reverse:

Just as

there, they said to him

the sons of the first and the sons of the second, who were definite heirs, said to the uncertain son:

Bring proof

that you are an heir to our father’s portion,

and take

a share of his property—

so

here, he said to them

the uncertain son, who is a definite heir, said to the sons of the yavam, who are uncertain heirs:

Bring proof

that you too are heirs,

and take

from the property of the deceased.

Since the uncertain son has presumptive possession of the property, for whichever way one looks at it, he is a definite heir, while the sons of the yavam must bring proof, as they are the ones seeking to take it from him.

Rav Mesharsheya said to them: Are the cases comparable?

The two cases?

There, they are definite

heirs to their father, as they know who their father is and come to inherit by virtue of him; therefore, they are considered to have stronger presumptive possession of the money than he does,

while

he

is uncertain,

an heir who does not know whose son he is, and therefore cannot take the property from them unless he brings proof of his claim.

But

here, both this and that,

both the uncertain son and the sons of the yavam,

are uncertain

heirs!

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

Rather, he makes a claim based on whichever way one looks at it: whether he is the son of the deceased or the son of the yavam, he is entitled to at least a portion of the inheritance.

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

Rather, if

the case of the uncertain son and the sons of the yavam

resembles the Mishna

there,

it resembles this: the uncertain son and the sons of the yavam who came to divide the property of the yavam himself.

For there they say to him

the sons of the yavam say to the uncertain son:

Bring proof that you are our brother,

bring proof that you are our brother,

and take. C.

The uncertain son and the sons of the yavam who came to divide the property of the yavam, after the yavam had divided the property of the deceased

after the uncertain son had already divided the property of the deceased brother with the yavam, under the rule that money subject to uncertainty is divided. The yavam now died, and his property devolves upon his heirs.

The sons of the yavam said

to the uncertain son: You have nothing in our father’s property, because

bring proof that you are our brother,

that you are our brother,

and take.

The uncertain son 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 have already taken from your inheritance the half of the portion of the deceased brother, and that, if I am your brother, this portion should be divided equally among us, I am indeed prepared to return it and add it to the entire property of the yavam, so that it may be divided among us.

It is worthwhile for him to make such a claim in a case where the yavam’s property was substantial and the deceased brother’s property was small; consequently, his share in the division of all the yavam’s property, as an equal brother among all the brothers, would be greater than half the deceased brother’s property.

And if I am the son of the deceased—

give me half of the share of your father that he divided with me!

And if your claim is that I am not your brother, then I am the son of the deceased. If so, you possess half of my deceased father’s property, which your father acquired only because he claimed that I was his son and your brother. But according to your claim that I am the deceased’s son, all of the deceased’s property that is in your possession now belongs to me.

Rabbi Abba said that Rav said: The judgment stands!

The yavam’s acquisition of half of the deceased’s property is an absolute acquisition, since the judgment that the yavam has half of the deceased’s property has been established and remains in force, and it can no longer be challenged.

Therefore, the uncertain son cannot return and claim from them, the heirs of the yavam, by means of the claim of “whichever way one looks at it.”

And since he cannot prove that he is the yavam’s son, he has no share whatsoever in his property.

Rabbi Yirmeya said: The judgment reverts.

The judgment reverts, and the uncertain son can claim the deceased’s property from the heirs of the yavam by means of the claim of “whichever way one looks at it”:

If I am the deceased’s son, return to me the 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 a difficulty:

Let us say—

should we say that Rabbi Abba, who said that the judgment stands, and Rabbi Yirmeya, who disputed with him over whether the judgment stands or reverts,

disagree in accordance with the dispute between Admon and the Sages!?

As we learned

in tractate Ketubot [109b]:

One who went overseas,

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

and he lost the path to his field,

as he no longer knows where it is—

Admon said: Let him take the shortest route!

His neighbors are obligated to provide him with the shortest route, as will be explained below.

And the Sages say:

He cannot claim the path for himself.

Rather,

he should take

purchase

for himself

from his neighbors

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

The Gemara now assumes that the surrounding fields belonged to one neighbor.

And we raised a difficulty to the Sages:

Behold,

Admon has argued well,

for he certainly is entitled to the shortest path through his neighbor’s field!

And Rav Yehuda said that Rav said: 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; with regard to each one, he is considered one who seeks to take property from another because of uncertainty, and he bears the burden of proof.

And we ask:

If so,

if his field is surrounded by four neighbors,

what is the reason for Admon’s position?

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

And Rava said:

If the case is

four

neighbors who acquired their fields

who came

from

four

sellers, who had previously been his neighbors and sold them their fields—

And

likewise, if the case is even

four

neighbors

who came by virtue of one,

who purchased their fields from one person—

everyone agrees that they can reject him,

each one rejecting him and saying: Bring proof that your path lies within my field.

They disagree

Admon and the Sages

in the case of one who came by virtue of four.

The issue is one neighbor who acquired the fields on all four sides of his field: does the person who lost his path have the right to demand a path from him based on “whichever way one looks at it”?

Admon holds that he can say to him:

It is true that you derive your rights from 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 lies with you, within your fields.

And the Sages hold that the purchaser can say to him:

The purchaser can say to him:

If you remain silent, you remain silent;

I will sell you a path at its market price, and I will not demand an exorbitant sum from you for it.

But if not

you remain silent—

I will return the deed to its owners,

I will return the deed of sale to the four former owners,

and you will not be able to litigate with them,

and you will not be able to stand in judgment against them to claim the path, since each one will send you from himself to the other, and you will then be forced to purchase a path at a high price.

Let us say

should we say that

Rabbi Abba,

who says “the judgment stands,”

says this in accordance with the Sages,

whose position is that he is not entitled to a path, since the judgment has already stood: when he was surrounded by four neighbors, he had no right to claim a path, and at that point he lost his path. Therefore, when the situation changed and one purchaser came and acquired all the surrounding fields, the judgment does not revert 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 reverts,” holds

like Admon,

whose position is that the person did not lose his right merely because he was unable to bring proof; rather, his right still exists, and he can exercise it when the situation changes and one purchaser acquires all the surrounding fields.

The Gemara rejects this: Rabbi Abba and Rabbi Yirmeya’s dispute does not depend on the dispute between Admon and the Sages.

For

Rabbi Abba could say: I—

who say

that the judgment stands—can hold

even like Admon.

Since

Admon only said there

that the owner of the path may demand his path from the one who acquired all the fields surrounding his field—

rather, because he said to him,

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

Whichever way one looks at it: