Yevamot 38a — the Talmud in English

One path -

is yours!

I have clearly one path within your fields, surrounding my field. Therefore, according to Addmon, he acquires it.

But here,

in the case of the doubtful claimant and the sons of the levir who came to divide the levir’s property, after the levir had divided the property of the deceased brother with the doubtful claimant,

can one say this,

that the doubtful claimant has a claim of “certainly” regarding a particular portion of the inheritance?

But he certainly does not know whether he is the son of the deceased brother or the son of the levir. Rather, he comes by virtue of two doubtful claims, for in either event he is entitled to a portion of the inheritance: either they must return to him the half of the deceased’s property that their father took, or they must give him an equal portion, like all the brothers, of their father’s property.

Therefore, only here do we say, “the law stands.” Since he has only doubtful claims, and by virtue of his first doubtful claim he already divided with the levir and received half of the deceased brother’s property by virtue of the law of division that “property subject to doubt is divided” -

he can no longer advance an additional doubtful claim, that he is entitled to a portion of the levir’s property, and by virtue of the two doubtful claims, past and present, now acquire [by the claim of “in either event”] the second half of the deceased brother’s property.

And Rabbi Jeremiah could say to you: I am the one who says

that the law reverts; I can say this

even according to the Rabbis.

For

the Rabbis said there only this far,

that he is not entitled to a path,

only because he [the purchaser] said to him,

the purchaser:

If you remain silent, you remain silent.

And if not -

I shall return the document to its owners, and you will not be able to conduct a legal proceeding with them.

And by virtue of this he loses his path.

But here,

in the case of the doubtful claimant and the sons of the levir who come to divide the levir’s property -

can one say this

[“If you remain silent, you remain silent”]!

d.

A doubtful claimant and a levir who came to divide the property of the grandfather,

the father of the brothers.

The doubtful claimant said

about himself:

This man

[I myself]

is the son of the deceased, and half

of the grandfather’s property -

is mine

mine

.

But the

levir said: You are my son’s son, you are,

you are my son,

and you have nothing, not even anything,

and you have no right to take anything from the grandfather’s property! -

The levir is -

certainly

an heir,

and the

whereas

doubtful claimant -

only

a doubtful claimant

is an heir.

And a doubtful claimant

an heir

does not remove from the possession of a certain

heir.

e.

A doubtful claimant and the sons of a levir who came to divide the property of the grandfather,

The doubtful claimant said

about himself:

That man is the son of the deceased, and half,

and half of the grandfather’s property -

is mine!

And

whereas

the sons of the levir said

to him: You

are our brother, and you have a portion with us,

and you must divide with us and receive your portion as though you were our brother.

It follows that, together with his claim regarding half the property, the doubtful claimant admits that he has no share in the other half of the property; rather, it belongs entirely to the sons of the levir.

And conversely, if the sons of the levir were two, they admit to the doubtful claimant that he is entitled to one-third of the property [for according to their claim, the property must be divided among the three of them].

Therefore,

half

of the property

that he admits to them

the doubtful claimant admits to the sons of the levir belongs to them -

they take it,

the sons of the levir take it for themselves.

A third

of the property

that they admit to him

the sons of the levir admit to the doubtful claimant is due to him,

he takes,

the doubtful claimant takes it.

And after they divided the property in accordance with their admission [half plus one-third, which is five-sixths],

a sixth remains for them,

a sixth of the property remained undivided, and regarding it they divide over to whom it belongs.

And this portion of the property

is property subject to doubt, and they divide it

between them: to them together one-half of the sixth, and to him one-half of the sixth.

And if the doubtful claimant died, and the

grandfather and the

the

levir

disputed who is the heir

of the doubtful claimant’s property.

The “grandfather” of the doubtful claimant claims that the grandson who died was the son of the son who died, and that he precedes the levir in the inheritance, because when one of the brothers dies, or one of the grandchildren dies without sons and there is no levirate marriage [and his father does not exist] - the father or the grandfather inherits all the property, and not the brothers.

But if there is levirate marriage, the brother who performs levirate marriage acquires all the property, and not the father or the grandfather.

Whereas the levir claims that the doubtful claimant who died was his son, and that he precedes the grandfather in inheriting him.

Or

the

grandfather and the

the

doubtful claimant

disputed who is the heir

of the levir’s property,

when he has no other son -

The grandfather claims that the doubtful claimant was the son of the first brother who died, and therefore the grandfather is fit to inherit the property of his levir son.

Whereas the doubtful claimant claims that he is the son of the levir, and that he precedes the grandfather in inheriting him.

It is property subject to doubt, and they divide it.

Mishna:

A woman awaiting levirate marriage,

who requires a levir and awaits his performing levirate marriage with her,

to whom property fell

from her father’s inheritance -

The Schools of Shammai and Hillel agree [

who will dispute below in the Mishna regarding the inheritance of a woman awaiting levirate marriage],

that her

right -

is to

sell

them and

give

them as a gift.

And

if she did so, the sale [or the gift] -

is valid!

And if the woman awaiting levirate marriage

died,

the woman awaiting levirate marriage -

what shall be done with her marriage settlement,

which is owed to her from her husband’s property, since he died before her, and she is entitled to collect her marriage settlement from his property?

And

likewise - what shall be done with the property that fell to her from her father, whose definition is

“property entering

with her to her husband

and leaving with her

from him”?

That is, what shall be done with nichsei melog, such as land, slaves, or livestock, that the woman brings to her husband as nichsei melog, whose principal belongs to her and whose produce belongs to her husband?

Do only the heirs of the woman’s paternal household inherit them, as is the law regarding every woman who dies without a husband and without sons, for the heirs of her paternal household inherit her and not the heirs of her husband?

Or, since she is a woman awaiting levirate marriage [who awaited him, but he did not perform levirate marriage with her], does the levir also have a share in her inheritance?

And regarding nichsei tzon barzel - see Tosafot. And in the book She’elat David, in Even HaEzer, this sugya and the matter of nichsei tzon barzel are explained at length.

The School of Shammai says: Regarding “nichsei melog

,”

they shall divide

them

the heirs of the husband

that is, the levir, who is the heir of the deceased brother,

with the heirs of the father

of the woman.

For according to the definition of the School of Shammai, a woman awaiting levirate marriage has the status of “a doubtful married woman.”

And since the husband inherits his wife who is married to him, and here the situation is doubtful whether she has the status of being married to the levir or not, therefore the levir acquires half of this property, whereas the heirs of the father of the levirate woman acquire the other portion, because of the doubt.

But regarding her marriage settlement, the School of Shammai agrees with the School of Hillel that it remains in the possession of the husband’s heirs, and the heirs of her father have no share in it, for the reason that will be explained in the Gemara.

And the School of Hillel says: Property -

in its presumptive ownership

it stands. Therefore:

a. The right to collect the

marriage settlement

owed to her from the property of her deceased husband remains

in the possession of the husband’s heirs.

That is, the heirs of her paternal household are not entitled to collect her marriage settlement from the property of her deceased husband, because this property is now found in the possession of the husband’s heirs.

b.

Property entering and leaving with her -

in the possession of the heirs of the father.

Since even if she had already entered levirate marriage, the levir would have had only the right to consume the produce, while the body of the property would have belonged to her, therefore now, when she died without entering levirate marriage, it is in the presumptive possession of her paternal household.

But if he had already

taken her into his household,

the levir,

she is like his wife in every respect,

and he is her sole heir.

Provided that the marriage settlement is -

on the property of her first husband.

And the levir does not undertake a marriage settlement for her, since “a woman is assigned to him by Heaven.”

Gemara:

The Gemara assumed that the first clause of the Mishna, which says, “A woman awaiting levirate marriage to whom property fell,” is speaking of a case in which the property fell to her from the inheritance of her father while she was awaiting levirate marriage.

And therefore we inquire:

What is different in the first clause,

when property fell to her while she was a woman awaiting levirate marriage, and she is alive,

that they do not dispute,

the School of Shammai does not dispute the School of Hillel, and agrees with them that the property is in her possession alone, and she is not considered a doubtful married woman, for she may sell and give it, and her sale and gift are valid.

And what is different in the latter clause,

if she died,

that they dispute,

the School of Shammai disputes the School of Hillel, and holds that her status is that of a doubtful married woman, and her heirs divide with the levir her marriage settlement and her nichsei melog?

And we answer:

Ulla said: The first clause

of our Mishna is speaking of a case

in which the levirate obligation fell

upon the levirate woman

when she was betrothed,

and while she was awaiting levirate marriage from betrothal, the inheritance fell to her from her father’s household.

And

whereas

the latter clause

of our Mishna is speaking of a case

in which the levirate obligation fell

upon her

when she was married,

and her father’s property came to her while she was awaiting levirate marriage from marriage.

And the Gemara explains Ulla’s distinction and its reason.

Below, on the next page, the Gemara cites the words of the Mishna in tractate Ketubot, where the School of Shammai and the School of Hillel dispute regarding a betrothed woman to whom property fell from her father: the School of Shammai permit her to sell it from the outset, while the School of Hillel say that she should not sell it from the outset, but if she sold it, her sale is valid.

And Ulla holds,

that

the levirate bond of a betrothed woman -

makes her “a doubtful betrothed woman.”

Therefore, in the first clause of the Mishna, which speaks of a woman awaiting levirate marriage to whom property fell from her father while she was betrothed, when she was betrothed under her husband she could sell it [from the outset according to the School of Shammai, and after the fact her sale is valid according to the School of Hillel] -

when her husband died and she did not marry him, and she became a woman awaiting levirate marriage from betrothal, she may continue to sell her father’s property from the outset, as she had done from the outset while she was under her husband, according to the School of Shammai.

And she does so by a kal va-chomer, for now she is not actually the levir’s wife, but is merely subject to him, and she is “a doubtful betrothed woman” to him.

Whereas the School of Hillel holds that only an actual betrothed woman should not sell from the outset the property of her father that came to her while she was betrothed.

But regarding a woman awaiting levirate marriage, who is only “a doubtful betrothed woman,” they agree with the School of Shammai that she is permitted to sell from the outset the property that fell to her while she was awaiting levirate marriage from betrothal.

And in the latter clause, which speaks of a married woman whose husband died, and the property fell to her from her father while she was awaiting levirate marriage from marriage - and

the levirate bond of a married woman makes her “a doubtful married woman.”

And since when a married woman sells property that fell to her, the husband removes it from the purchasers, here too, since the levirate bond of a married woman makes her a doubtful married woman, the property is subject to doubt.

And according to the School of Shammai, dividing the property is preferable.

Whereas according to the School of Hillel, leaving the property in its presumptive ownership is preferable.