Yevamot 38b — the Talmud in English

And the Gemara proves Ulla’s position: a.

The bond of a betrothed woman creates

only

“a doubtful betrothed woman,”

and not a certainly betrothed woman.

And the proof is:

If it enters your mind

that it creates

“a certainly betrothed woman,”—

then do

Beit Hillel agree that she may sell and give away, and the transaction stands?

But we learned: If

a woman who had become betrothed

acquired property after she became betrothed—

Beit Shammai say: She may sell it.

She is entitled to sell it, since she has not yet married and her husband has no rights to it.

And Beit Hillel say:

ab initio,

she may not sell it.

Both these and those agree that if she sold or gave it away—

the transaction stands!

And since Beit Hillel hold that a betrothed woman may not sell ab initio, if the bond of betrothal created a certainly betrothed woman, Beit Hillel would not have agreed that the yevama could sell ab initio.

Rather,

necessarily, from the fact that Beit Hillel said that a widow awaiting levirate marriage from betrothal may sell ab initio,

infer from it

that

the bond of a betrothed woman creates

only

a doubtful betrothed woman.

And therefore she can sell.

b.

The bond of a married woman creates “a doubtful married woman.”

And Beit Shammai and Beit Hillel disagreed about what is preferable to do in such a situation of doubtful marriage, when the property is now doubtful, since if she was certainly married, if she sold it, the husband would take it from the purchasers.

According to Beit Shammai, the hand of the yavam is like the hand of the yevama, and neither of them has a stronger claim than the other; therefore, they divide.

Whereas Beit Hillel hold that the hand of the yavam is not like the hand of the yevama, since the property did not come to her while she was married to him; therefore, they leave her in the presumptive ownership of the woman and her heirs.

And the Gemara proves in accordance with Ulla’s words, that the bond creates only a doubtful married woman.

If it enters your mind

that the bond creates

a certainly married woman—

then do

Beit Shammai say that the husband’s heirs divide with the father’s heirs?

But we learned: If

a woman

acquired property after she married—

both these and those agree that if she sold or gave it away—

the husband takes it from the purchasers!

And it is proven that from the time of the marriage the property is in the husband’s presumptive ownership!

Rather, infer from it: The bond of a married woman creates a doubtful married woman.

And therefore Beit Shammai hold that the husband’s heirs divide with the father’s heirs.

Rabba said to him

to Ulla: If the reason of Beit Shammai is that they hold that division is preferable, this is difficult:

While they were dividing,

before Beit Hillel and Beit Shammai disagreed

about the body

of the land

after the death

of the yevama, whether they divide the property or not—

let them divide during her lifetime

of the yevama

and the produce,

who is entitled to eat the produce?

For according to Beit Hillel, the property is in her presumptive ownership, and he has no right to eat the produce, whereas according to Beit Shammai, his hand is like her hand regarding the property, and he is entitled to eat half the produce.

And as a result of this objection of Rabba to Ulla, Rabba establishes the Mishna differently:

Rather, Rabba said: Both this and that,

whether she is alive or whether she died, refer to a case

in which she fell

for levirate marriage

when she was married.

And the bond of a married woman—

creates “a doubtful married woman.”

The first clause—

that she is alive,

that she exists:

she has become

herself

certainly

established in possession of her property, for the principal belongs to her, and therefore “her presumption is stronger” [Rashi].

But

if

they

her husband’s heirs, the yavam, are

doubtful

heirs regarding the property, for the bond of marriage creates only a doubtful marriage, and not a certain one.

And a doubt does not remove from the possession of a certainty

that is established!

The final clause—

that she died,

that she is dead,

these

the father’s heirs

come to inherit,

on the possibility that the yevama’s bond to the yavam is not considered her having entered into his possession as his married wife.

And these

the husband’s heirs

come to inherit,

on the possibility that the bond considers her as having entered into his possession, as though she had been his married wife.

And since there is here a doubt as to who is the heir, Beit Shammai hold that there is no heir here who is more firmly established in possession of the property than his fellow.

And it is property over which there is a doubt,

and they divide

the father’s heirs with the husband’s heirs.

Whereas Beit Hillel hold that since during her lifetime the property was in her presumptive ownership, from now on the property is in the presumptive ownership of the woman’s family.

And since the woman’s relatives are certainly her relatives, and the family’s presumption regarding the woman’s property is certain, the husband’s heirs, who are only doubtful heirs [for the bond of marriage creates only a doubtful marriage], cannot take it from the father’s heirs, since the property is left in their presumptive ownership, in the hands of the woman’s family.

But during the yevama’s lifetime, when there is no question of who the heir is, but rather whether the husband has the right to eat the produce of the woman’s property, Beit Shammai agree with Beit Hillel that the husband does not take half the produce from the woman, since she is certainly established in possession of the property, while he is the doubt who comes to take it, and he must bring proof.

Abaye challenged him

Rabba:

But

since

according to Beit Shammai a doubt does not remove from a certainty,

as you explained, that the yavam does not take produce from her during her lifetime because he is doubtful and she is certainly established in possession—

but we learned

in tractate Bava Batra [157a]:

One who

had the house collapse upon him and upon his father,

or the house collapsed

upon him and upon

the rest of

his inheritors.

And upon him were

obligations both for

a woman’s marriage contract and

for payment to

a creditor.

And his father or his other inheritors had property, while he had no property.

And it emerges that if his inheritors died first, he inherits them, and he must pay his debts from the property of his inheritors.

But if he died first, he does not inherit the property of his inheritors, and his creditors cannot collect their debts from the property of his inheritors.

If

the father’s heirs say: The son died first, and afterward the father died,

and the son did not inherit the father,

and the creditor says: The father died first, and afterward the son died,

and the son inherited the father, and I have the right to collect my debt from the property that he inherited—

Beit Shammai say:

This property is property over which there is a doubt, and

they divide

the father’s heirs with the creditor.

And Beit Hillel say: Property remains in its presumptive ownership

of the father’s family, and the creditor comes to take money from them, and he must bring proof of his claim.

But here, the father’s heirs are certainly

established in possession of the property.

For even if the father died first and the son inherited him, once the son died, they certainly inherit him.

But

if

the creditor

is

a doubt,

who comes to take it from them.

For he is not established in possession of the property like them, since as long as the court has not established him in possession of it, when they collect the debt for him from the property, the creditor has no possession of the property; only they do, by virtue of their inheritance.

And

it follows that according to Beit Shammai

a doubt comes and removes from a certainty,

and they divide!

And we answer: Here it is different, for the creditor has a document for the debt. And

Beit Shammai hold

that

a document that stands to be collected—

is considered as collected.

And the matter is considered as though the property were in the presumptive ownership of the holder of the document and not in the presumptive ownership of the heirs.

And therefore possession of the property is doubtful.

For if the father died first and the son inherited the property, the creditor acquired the property, and he is considered established in possession of it by virtue of his document.

But if the son died first and did not acquire the father’s property, the heirs are established in possession of the property.

And since neither one has greater possession than the other, they divide, as is the law regarding property over which there is a doubt.

And from where do you say it?

From where do we have to say that Beit Shammai hold this?

For we learned

in tractate Sotah [24a], concerning a sotah, whose husband warned her and admonished her not to seclude herself with a certain man, and she went and secluded herself with him, that the law is that her husband is obligated to bring her to the Temple and have her drink the sotah water in order to examine whether she committed adultery or not.

And the Mishna says there:

If

their husbands died

of the sotot

before they drank

the sotah water—

Beit Shammai say: They receive their marriage contracts, but they do not drink.

For a woman drinks only when her husband is alive.

And Beit Hillel say: Either they drink, or they do not receive their marriage contracts!

And we raised the question:

“Either they drink?”—

But it is explicitly stated in the verse [Numbers 5]:

“And the man shall bring his wife,” the Merciful One said, and

when the husband dies,

there is no

bringing by him to have her drink!?

Rather,

this is what Beit Hillel said:

Since they do not drink,

because their husbands died—

they do not receive

their marriage contracts,

because there is concern that perhaps they committed adultery while married, in which case they have no marriage contract.

But here it is a doubt

whether she is entitled to a marriage contract, for

perhaps she committed adultery

and is not entitled to a marriage contract,

perhaps she did not commit adultery

and is entitled to it.

And

nevertheless Beit Shammai say that

the woman comes,

who is

doubtfully

entitled to her marriage contract,

and removes from

the husband’s heirs, who are

certainly

established in possession of the property!

For she receives her entire marriage contract from the property of her deceased husband, despite being doubtful—since it is possible that she committed adultery and is entitled to nothing—whereas the husband’s heirs are certainly established in possession of the property.

Rather, infer from it that

Beit Shammai hold

a document that stands to be collected is considered as collected.

And since she has a marriage-contract document, it is she who is considered certainly established in possession of the property, by virtue of the marriage-contract document in her possession. Opposite her, the husband’s heirs are doubtful. They come to take from her, doubtfully, since perhaps she committed adultery.

And since a doubt does not come and remove from a certainty, she acquires her entire marriage contract, and they do not rule here that they divide because of the doubt.

For if Beit Shammai did not hold that a document that stands to be collected is considered as collected, but only as Abaye wished to say regarding their reason—that a doubt removes from a certainty—this woman would not be entitled to her entire marriage contract, but at most to half of it. For we do not find anyone who says: A doubt comes and removes from a certainty all of it!

But in the case of the house that collapsed upon him and upon his father, the holder of the document does not acquire all the property; rather, he must divide with the son’s heirs, because there his possession by virtue of the document exists only on the possibility that the father died first and the son inherited him. Then the holder of the document is considered certainly established in possession of the property.

But there is also the other possibility: that the son died before his father and did not inherit his father at all. In that case, his document against the son grants him no right whatsoever to the father’s property; only the father’s heirs are established in possession.

And since there are two possibilities before us, creating doubt as to who is established in possession, they divide between them, as is the law regarding property over which there is a doubt, when no one is established in possession.

But now the Gemara asks Abaye, who had not considered that the reason of Beit Shammai, who say that they receive the marriage contract, is that a document that stands to be collected is considered as collected, but rather because a doubt comes and removes from a certainty—

And Abaye, let him challenge him from this!

Why did he not challenge him from this Mishna, from which it appears, according to his view, that a doubt removes from a certainty!?

And we answer: Abaye did not challenge him from this Mishna, because it could be said,

perhaps a woman’s marriage contract is different,

for the Sages enacted that she should collect it even though she is not entitled to it according to strict law,

because of favor.

So that men would find favor in the eyes of women and wish to marry them, and would not refrain from marrying because of the concern that perhaps the husband would unjustly warn them, creating a situation in which they would lose their marriage contracts even though they had not committed adultery.

But the Gemara still asks Abaye, according to his position, since he had not considered that the reason of Beit Shammai is that a document that stands to be collected is considered as collected:

let Abaye challenge him

from

the marriage contract of the Mishna!

That is, the Gemara assumed that the words of Beit Shammai in the Mishna also apply to her marriage contract, and according to them, because of the doubt, the husband’s heirs divide with the woman’s heirs [who are called the father’s heirs] her marriage contract.

But here the husband’s heirs are certainly established in possession of the property, as his heirs, whereas the woman’s heirs are doubtful, since it is possible that the levirate bond is not in the category of marriage and she has no right to a marriage contract from him; nevertheless, a doubt comes and removes from a certainty, to divide her marriage contract!

And here it is impossible to answer that they enacted, because of favor, that her heirs should acquire her marriage contract, since the reason of favor applies only where she herself receives the marriage contract, and not where her heirs are destined to receive it.

And we answer: Abaye did not challenge him from our Mishna, because he holds that Beit Shammai

did not disagree

at all regarding the marriage contract; rather, they agree that the woman’s heirs do not divide her marriage contract with the husband’s heirs.

And the reason for this is that the marriage contract is given to be collected only when her husband dies before her.

But here she died before the yavam, and he stands in the place of her husband; it is therefore as though she died before her husband, and she is not entitled to a marriage contract at all.

And the Gemara is astonished at this answer:

But

if

not,

did Beit Shammai not also disagree regarding her marriage contract, and hold that the woman’s heirs are entitled to half the marriage contract!?

But it is taught

in our Mishna:

If she died,

the yevama—

what

is to be done with her marriage contract and with the property that enters and leaves with her?

Beit Shammai say: The husband’s heirs divide with the father’s heirs.

And Beit Hillel say: The property remains in its presumptive ownership!

It is explicitly stated in our Mishna that Beit Shammai hold that the woman’s heirs have a right to half her marriage contract!

And we answer:

This is what

the tan­nnay of our Mishna

said:

If she died—

what is to be done with her marriage contract?

And he left it aside,

and the tan­nnay left his first question unanswered and did not explain what the opinion of Beit Shammai is concerning the marriage contract; rather, he proceeded to the second question:

b. What is to be done with

the property that enters and leaves with her?

Beit Shammai say: The husband’s heirs divide with the father’s heirs.

And Beit Hillel say: The property remains in its presumptive ownership.

And it follows that the tan­nnay said nothing regarding their opinion about the marriage contract.

Rav Ashi said: Our Mishna also indicates this,

it can be precisely inferred from it in accordance with Abaye, who holds that Beit Shammai did not disagree in our Mishna regarding the law of her marriage contract, and did not say that the woman’s heirs should divide her marriage contract with the husband’s heirs because a document that stands to be collected is considered as collected.

Rather, a marriage contract is not given to be collected during life, and here the woman died before the yavam, who stands in the place of her husband, and she is not entitled to a marriage contract at all:

for it teaches

in our Mishna: Beit Shammai say:

The husband’s heirs divide with the father’s heirs.

And the meaning of this wording is that the husband’s heirs take their share of her usufruct property from the father’s heirs, since the father’s heirs [of the woman] had until now been established in possession of it.

For the usufruct property remains in the woman’s presumptive ownership, and only the produce belongs to the husband. And here the doubt is whether the yavam inherits the deceased yevama, as a husband inherits the property of his married wife when she dies.

But until the time of death, the woman [or her father’s family] is the one established in possession of it.

And it does not teach:

Beit Shammai say: They divide

the father’s heirs with the husband’s heirs.

For then the meaning would have been that the father’s heirs come to take their share of the inheritance of the marriage contract from the husband’s property, which until now had been in the possession of the husband [or the husband’s family].

Infer from it

that Beit Shammai say they divide only regarding the usufruct property, and not regarding her marriage contract, which remains entirely in the presumptive ownership of the husband’s heirs, since a marriage contract is not given to be collected during life.

And now the Gemara returns to its previous question: What is different in the first clause, in which Beit Shammai and Beit Hillel did not disagree regarding a widow awaiting levirate marriage who acquired property, and everyone agrees that she may sell and give it away and the transaction stands,

whereas in the final clause, when she died, they disagreed whether they divide her usufruct property or leave the property in the presumptive ownership of the father’s heirs?

And on the previous page the Gemara brought Ulla’s answer, which distinguishes between whether she acquired the property while she was a widow awaiting levirate marriage from betrothal and whether she acquired it while she was a widow awaiting levirate marriage from marriage.

Whereas Rabba distinguished between whether she is alive—she is certain and he is doubtful [since the bond of marriage creates a doubtful marriage], and a doubt does not remove from a certainty—and whether she died, when both come to inherit because of doubt, and in this Beit Shammai and Beit Hillel disagreed.

Whereas

Abaye said

that the distinction does not arise from the fact that in the first clause she is alive and in the final clause she died; rather, there is another distinction between the first clause and the final clause:

The first clause—

it refers to a case

in which she acquired

the property from her father

when she was a widow awaiting levirate marriage.

And everyone agrees that while she is a widow awaiting levirate marriage, only she acquires the property, and not the yavam and his heirs, since the bond does not have the power to grant an inheritance right to the yavam and his heirs!

The final clause—

it refers to a case

in which she acquired it when she was

she had been

under him, the husband.

And the Gemara will now explain the reason for the disagreement between Beit Shammai and Beit Hillel, whether they divide or whether we leave the property in its presumptive ownership.

And Abaye holds that the final clause must specifically be established as a case in which she did not acquire it while she was a widow awaiting levirate marriage, for then Beit Shammai would agree that the property belongs only to her!