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Kesuvos, 81

KESUVOS 81 - dedicated by S. Teichman, l'Zecher Nishmas his father, Reb Avrohom ben Reb Shmuel Teichman.


QUESTIONS: The Chachamim instituted that a Yavam may not sell or give away any of the possessions that he inherits from his deceased brother, because those possessions are designated for the payment of the Yevamah's Kesuvah.

Even though, when the wife is not a Yevamah, there is a Shibud on all of a husband's possessions for the collection of the Kesuvah and yet he is allowed to sell his possessions, the Chachamim found it necessary to protect the Kesuvah in the case of a Yevamah. This is because the Yavam's own possessions, both present and future, do not become Meshubad towards the payment of the Kesuvah. Since there is less available for the collection of the Kesuvah, the Chachamim prohibited the Yavam from selling his brother's possessions and causing the Yevamah extra trouble by having to collect it from the buyers.

(If the dead brother left no possessions, or if nothing remains from them, not even in the hands of a buyer, then the Chachamim instituted that the woman may collect her Kesuvah from the Yavam's property. However, if anything remains from the deceased husband's possessions -- even if she must collect it from a buyer -- then she may not collect her Kesuvah from the Yavam's property. This explains why the Yavam may not sell the brother's property -- so that the wife should not have to trouble herself to collect it from the hands of the buyers.)

The Gemara discusses what happens if, b'Di'eved, the Yavam sold the property. Rav Yosef says that since the Chachamim enacted that he not sell it, it is clear that the sale should *not* take effect. The Gemara questions Rav Yosef's opinion from the Mishnah (78a) that states that according to Beis Hillel, an Arusah may not sell property that she inherits during Erusin, but if, b'Di'eved, she sold it, then the sale is valid nonetheless. We see from the Mishnah there that even though the Arusah went against the enactment of the Chachamim, her sale still takes effect.

(a) Why does the Gemara not relate Rav Yosef's ruling to the well-known Machlokes in Temurah (3b) regarding "Iy Avid Lo Mehani?" In that Gemara, Abaye and Rava argue whether the Kinyan takes effect b'Di'eved or not in a case where a person tries to make a Kinyan that the Torah prohibits. The same Machlokes should apply when someone transgresses an enactment of the Chachamim, trying to make a Kinyan that they prohibit. Thus the ruling of Rav Yosef should depend on the Machlokes in Temurah! If there is an opinion that "Iy Avid Mehani" (b'Di'eved the Kinyan is valid) where one went against the Torah, then certainly where someone sells something against a Takanah d'Rabanan, the Kinyan should be valid, unlike Rav Yosef states!

(b) How can the Gemara compare a Yavam who sells his deceased brother's property, to an Arusah who sells what she inherited during Erusin? The Gemara earlier (78a) says that an Arusah may not sell the property she receives during Erusin because Erusin is considered a Safek Nesu'in (that is, it might or might not have the status of Nesu'in), and therefore it is not clear whether the right to sell the property belongs to her or to him (Rashi 78a, DH Eimar). Since it is a Safek, it is obvious that l'Chatchilah she should not sell it, and if she sold it anyway, then b'Di'eved the sale takes effect (because "ha'Motzi me'Chaveiro Alav ha'Ra'ayah").

In our Gemara, in contrast, there is no Safek. Rather, the Rabanan enacted that one is not permitted to sell the property of his Yevamah's husband. Therefore, the sale should *not* take effect! (See PORAS YOSEF.)


(a) The HAGAHOS MORDECHAI in Shavuos (end of Perek 2) cited by RAV SHLOMO EIGER (in Gilyon Maharsha) indeed relates Rav Yosef's ruling to the rule of "Iy Avid Lo Mehani" -- a Kinyan is not valid if one transgressed the Torah in order to effect it. It is possible that, according to the Mordechai, both Rava and Abaye would agree that one cannot make a Kinyan which contradicts a *Rabbinical* enactment. because the Chachamim are more stringent with their enactments than they are with Mitzvos that are mid'Oraisa. This is because of the principle that "the Chachamim made [enactments of] Chizuk for their words more than for the [Mitzvos in the] Torah," as the Gemara says earlier (56a).

However, Rav Shlomo Eiger cites his father, REBBI AKIVA EIGER (Teshuvos 1:129, DH Gam), who in turn cites the PANIM ME'IROS who distinguishes between our case and the cases in Temurah, in which we say Iy Avid Lo Mehani. This Takanah was made for the benefit of the woman. If the sale would be valid, then the woman for whom the enactment was made would lose as a result. Since another person will be affected adversely, it is logical that the Chachamim invalidated the sale even b'Di'eved. In contrast, the cases in Temurah are discussing cases of Isur v'Heter that do not affect any other person. (Although the Gemara in Temurah does discuss the case of separating Ma'aser before separating Terumah, which does affect the Kohen's gift, there are grounds for differentiating that case from other cases where a specific person is affected).

(b) Even though the Gemara says that an Arusah is a Safek Nesu'ah, the Gemara does not mean that we should consider her status to be in question, as TOSFOS (DH Seifa) points out. If her status had been that of a Safek, then the Arusah would certainly have been allowed to sell the property even l'Chatchilah, since the land (the "Guf") itself belongs to her (even if she is considered a Nesu'ah). The only question involves the Peros, but since "Ein Safek Motzi Midei Vadai" (the Safek that she is a Nesu'ah cannot override the certain fact ("Vadai") that she is in possession of the land itself), she may also sell the Peros.

Rather, the Gemara means that because there is a possibility that the Erusin will not lead to a full marriage, her husband therefore does not have full rights to what she inherits while she is an Arusah. The Chachamim *instituted* that she may not sell the property because the husband retains some rights to the property which she inherits. (M. Kornfeld)

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