Yevamot 38b (לח:) — the Talmud in English

And the Gemara proves Ulla’s opinion: a.

The bond of an betrothed woman creates

only

“a case of uncertainty regarding betrothal,”

and not a case of definite betrothal.

And the proof is:

If it enters your mind

that it creates

“definite betrothal,”—

would

Beit Hillel concede that she may sell and give away her property, and the transaction stands?

But didn’t we learn:

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:

At the outset,

she may not sell it.

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

the transaction stands!

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

Rather,

it must follow from the fact that Beit Hillel said that a woman awaiting levirate marriage from betrothal may sell her property ab initio,

learn from it

that

the bond of a betrothed woman creates

only

uncertain betrothal.

Therefore, she may sell it.

b.

The bond of a married woman creates “uncertain marriage.”

And Beit Shammai and Beit Hillel disagree as to what is preferable to do in such a situation of uncertain marriage, when ownership of the property is now uncertain, since if she had certainly been married and she sold it, the husband could take it from the purchasers.

According to Beit Shammai, the levir’s hand is like the yevama’s hand, and neither of them has a stronger presumption of ownership than the other; therefore, they divide the property.

Whereas Beit Hillel hold that the levir’s hand is not like the yevama’s hand, since the property did not come into her possession while she was married to him. Therefore, they leave it in the possession of the woman and her heirs.

And the Gemara proves Ulla’s statement, that the bond creates only uncertain marriage.

If it enters your mind

that the bond creates

definite marriage—

would

Beit Shammai say that the husband’s heirs and the father’s heirs should divide the property?

But didn’t we learn: If a woman acquired

property

after she married—

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

the husband takes it from the purchasers!

This proves that from the time of marriage the property is presumed to belong to the husband!

Rather, learn from it: The bond of a married woman creates uncertain marriage.

Therefore, Beit Shammai hold that the husband’s heirs and the father’s heirs divide the property.

Rabba said to Ulla:

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

When they disagreed,

when Beit Hillel and Beit Shammai debated

the substance

of the land

after the death

of the yevama, whether the property should be divided or not—

let them divide it during her lifetime

of the yevama,

and the produce

—who is entitled to consume the produce?

For according to Beit Hillel, the property is in her possession and he has no right to consume its produce, whereas according to Beit Shammai, his hand is like hers with regard to the property, and he is entitled to consume half the produce.

Because of this objection of Rabba to Ulla, Rabba interprets the Mishna differently:

Rather, Rabba said: Both this and that—

whether she is alive or whether she has died—concern a case

where she fell

for levirate marriage

while she was married.

And the bond of a married woman—

creates “uncertain marriage.”

The first clause—

where she is alive,

as she is alive:

She herself is

herself

certainly

presumed to possess her property, since the principal belongs to her; therefore, “her presumption is stronger” [Rashi].

And

if

they,

her husband’s heirs, the levir’s heirs, are

uncertain

heirs with regard to the property, since the bond of marriage creates only uncertain marriage, and not definite marriage.

And an uncertain claim cannot remove property from the possession of one who certainly possesses it

!

The final clause—

where she has died,

as she has died,

these,

the father’s heirs,

come to inherit

on the side that the yevama’s bond to the levir is not considered her having entered his household as his married wife.

And these,

the husband’s heirs,

come to inherit

on the side that the bond considers her to have entered his household, as though she had been his married wife.

And since there is uncertainty as to who is the heir, Beit Shammai hold that neither heir has a stronger presumption of ownership than the other.

This is property of uncertain ownership,

and they divide it,

the father’s heirs and the husband’s heirs.

Whereas Beit Hillel hold that since during her lifetime the property was presumed to belong to her, from now on it is presumed to belong to the woman’s family.

And since the woman’s relatives are certainly her relatives, and the woman’s family has a definite presumption of ownership of the property, the husband’s heirs, who are only uncertain heirs [since the bond of marriage creates only uncertain marriage], cannot remove it from the father’s heirs, since the property is left in their possession, in the hands of the woman’s family.

But during the yevama’s lifetime, when there is no question as to who the heir is, but only whether the husband has the right to consume the produce of the woman’s property, Beit Shammai concede to Beit Hillel that the husband cannot take half the produce from the woman, since she certainly possesses the property, whereas he is the uncertain claimant who seeks to remove it from her, and he must bring proof.

Abaye raised an objection

to Rabba:

And

why,

according to Beit Shammai, does an uncertain claimant not remove property from one who certainly possesses it,

as you explained—that the levir does not take the produce from her during her lifetime, since he is uncertain and she certainly possesses it?

But didn’t we learn

in tractate Bava Batra [157a]:

One who

had a house collapse upon him and upon his father,

or a house collapsed

upon him and upon

the rest of

his heirs.

And he had

obligations, both for

his wife’s marriage contract and

for payment to a

creditor.

And his father or the rest of his heirs had property, while he had no property.

Consequently, if his heirs died first, he inherits them, and he must pay his debts from the property of his heirs.

But if he died first, he does not inherit his heirs’ property, and his creditors cannot collect their debts from his heirs’ property.

If

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

so the son did not inherit the father,

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

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

Beit Shammai say:

This property is of uncertain ownership, and

they divide it,

the father’s heirs and the creditor.

And Beit Hillel say: The property remains in its presumed possession

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

But here, the father’s heirs are certain

possessors of the property.

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

And

if

the creditor

is

uncertain,

seeking to remove the property from them,

since he does not possess the property as they do: as long as the court has not placed it in his possession, when they collect his debt from the property, the creditor has no presumption of ownership of it; only they possess it by virtue of their inheritance.

And

it follows that according to Beit Shammai,

an uncertain claimant does come and remove property from one who certainly possesses it,

and they divide it!

And we answer: Here it is different, since the creditor holds a document recording the debt.

And Beit Shammai hold

that

a document that stands to be collected—

is considered as though it had already been collected.

The matter is considered as though the property were in the possession of the document-holder and not in the possession of the heirs.

Therefore, possession of the property is uncertain.

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

But if the son died first and did not acquire his father’s property, the heirs possess the property.

And since neither party possesses it more strongly than the other, they divide it, as is the law with regard to property of uncertain ownership.

And from where do you say this,

from where do we know that this is Beit Shammai’s opinion?

As we learned

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

And the Mishna says there:

If

their husbands died,

the husbands of the sotot,

before they drank

the sota water—

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

For a woman drinks only if her husband is alive.

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

And we considered this:

“Either they drink”?

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

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

when the husband has died,

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 collect

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 case of uncertainty

whether she is entitled to a marriage contract, since

perhaps she committed adultery,

and she is not entitled to a marriage contract, or

perhaps she did not commit adultery,

and she is entitled to it.

And

nevertheless Beit Shammai say that

the woman comes,

who is

uncertainly

entitled to her marriage contract,

and removes it from

the husband’s heirs, who

certainly

possess the property!

For she receives the entire value of her marriage contract from the property of her deceased husband, despite being uncertain—perhaps she committed adultery and is entitled to nothing—whereas the husband’s heirs certainly possess the property.

Rather, learn from it

that Beit Shammai hold

a document that stands to be collected is considered as though it had already been collected.

And since she has a marriage-contract document, she is considered the definite possessor of the property by virtue of the marriage-contract document in her possession. In contrast, the husband’s heirs are uncertain, and they seek to remove the property from her on the basis of uncertainty, in case she committed adultery.

And since an uncertain claimant does not come and remove property from one who certainly possesses it, she receives the entire value of her marriage contract; the ruling here is not that they divide it due to the uncertainty.

For if Beit Shammai did not hold that a document that stands to be collected is considered as though it had already been collected, but only as Abaye wished to explain their reasoning—that an uncertain claimant can remove property from one who certainly possesses it—the woman would not receive the entire value of her marriage contract, but at most half of it. For we never find anyone who says: An uncertain claimant comes and removes the entire property from one who certainly possesses it!

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

And since there are two possibilities, creating uncertainty as to who possesses the property, they divide it between them, as is the law with regard to property of uncertain ownership when neither party possesses it.

But now the Gemara asks Abaye, who had not considered that the reason Beit Shammai say that the women collect their marriage contracts is that a document that stands to be collected is considered as though it had already been collected, but rather because an uncertain claimant can remove property from one who certainly possesses it—

And Abaye, let him raise an objection to him from this!

Why did he not raise an objection from this Mishna, which implies, according to his view, that an uncertain claimant can remove property from one who certainly possesses it!?

And we answer: Abaye did not raise an objection from this Mishna, because it could be said:

Perhaps a woman’s marriage contract is different,

as the Sages instituted that she may collect it even when she is not entitled to it according to the fundamental law,

because of graciousness.

This was instituted so that men would find favor in the eyes of women and women would wish to marry them, and would not refrain from marrying because of concern that perhaps their husbands would unjustly warn them, creating a situation in which they would lose their marriage contracts despite not having committed adultery.

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

Let Abaye raise an objection to Rabba

from

the marriage contract mentioned in the Mishna!

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

But here the husband’s heirs certainly possess the property as his heirs, whereas the woman’s heirs are uncertain, since perhaps the levirate bond is not considered marriage and she has no right to a marriage contract from him; nevertheless, an uncertain claimant comes and removes property from one who certainly possesses it, to divide the marriage contract!

And it is not possible to explain that the Sages instituted that her heirs should receive her marriage contract because of graciousness, since the reason of graciousness 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 raise an objection from our Mishna because he holds that Beit Shammai

did not disagree

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

The reason is that a marriage contract is given for collection only when the husband dies before his wife.

Here, however, she died before the levir, who stands in the place of her husband, and it is therefore as though she died before her husband; consequently, she is not entitled to a marriage contract at all.

The Gemara is astonished at this answer:

And

why,

did

Beit Shammai not disagree with regard to her marriage contract as well, and hold that the woman’s heirs are entitled to half the marriage contract!?

But didn’t it teach

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 and the father’s heirs divide it.

And Beit Hillel say: The property remains in its presumed possession!

It is explicit in our Mishna that Beit Shammai hold that the woman’s heirs are entitled to half of her marriage contract!

And we answer:

This is what

the tanna of our Mishna said:

a.

If she died—

what is to be done with her marriage contract?

And he left it,

the tanna left his first question unanswered and did not explain Beit Shammai’s opinion 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 and the father’s heirs divide it.

And Beit Hillel say: The property remains in its presumed possession.

It follows that the tanna said nothing concerning Beit Shammai’s opinion with regard to the marriage contract.

Rav Ashi said: The Mishna also indicates this,

that it can be precisely inferred from it as Abaye says: Beit Shammai did not disagree in our Mishna with regard to 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 though it had already been collected.

Rather, a marriage contract is not given for collection during the husband’s lifetime, and here the woman died before the levir, who stands in the place of her husband, so she is not entitled to a marriage contract at all:

As it teaches

in our Mishna, Beit Shammai say:

The husband’s heirs and the father’s heirs divide it.

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 possessed it.

For usufruct property remains in the woman’s possession, and only its produce belongs to the husband. Here the uncertainty is whether the levir inherits the yevama who died, as a husband inherits his married wife’s property when she dies.

But until the time of her death, the woman [or her father’s family] was the one who possessed the property.

And it did not teach:

Beit Shammai say: They divide

the father’s heirs and 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 possessed by the husband [or the husband’s family].

Learn from it

that Beit Shammai say they divide only the usufruct property, and not her marriage contract, which remains entirely in the possession of the husband’s heirs, since a marriage contract is not given for collection during the husband’s lifetime.

And now the Gemara returns to its earlier question: What is different in the first clause, where Beit Hillel and Beit Shammai did not disagree with regard to a woman awaiting levirate marriage who acquired property, and all concede that she may sell and give it away and that the transaction stands,

whereas in the final clause, when she died, they disagreed as to whether the usufruct property should be divided or whether it should be left in the possession of the father’s heirs?

On the preceding page, the Gemara cited Ulla’s answer, which distinguishes between whether she acquired the property while awaiting levirate marriage from betrothal and whether she acquired it while awaiting levirate marriage from marriage.

Whereas Rabba distinguished between whether she is alive—in which case she certainly possesses the property and he is uncertain [since the bond of marriage creates uncertain marriage], and an uncertain claimant cannot remove property from one who certainly possesses it—and whether she died, in which case both parties come to inherit on the basis of uncertainty, and Beit Shammai and Beit Hillel disagree.

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 has died; rather, there is another distinction between the first and final clauses:

The first clause—

it concerns a case

where she acquired

the property from her father

while she was awaiting levirate marriage.

All concede that while she is awaiting levirate marriage, she alone acquires the property, and not the levir or his heirs, since the bond has no power to grant inheritance rights to the levir and his heirs!

The final clause—

it concerns a case

where she acquired it while she was

she had been

under the husband’s authority.

The Gemara will now explain the reason for the disagreement between Beit Shammai and Beit Hillel, whether they divide the property or leave it in its presumed possession. And Abaye holds that the final clause must specifically concern a case where she did not acquire the property while awaiting levirate marriage, since in that case Beit Shammai would concede that the property is presumed to belong solely to her!

Abaye maintains that the final clause must specifically concern a case in which she did not acquire the property while she was awaiting levirate marriage, because if she had, the House of Shammai would agree that the property is solely in her possession!