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Yevamos, 38


QUESTION: In the Mishnah, Beis Shamai and Beis Hillel agree that a Shomeres Yavam who inherited property is in full control of that property, and she may sell the property as she pleases. They argue concerning who gets control of the property if the Shomeres Yavam dies.

Rabah explains that the Mishnah is discussing a case where she inherited the property when she was a Nesu'ah (fully married). When her husband died childless and she became a Yevamah, in her state of Shomeres Yavam her status is a Safek whether she is considered a Nesu'ah or an Arusah. If she is a Nesu'ah, then she gets control of only the Guf (principle, or actual land) of the property, while if she is an Arusah, then she gets control of the Peiros (the produce, or fruits) of the property as well. The reason she gets control of the Guf and the Peiros is because she definitely owns the Guf of the property (even if she is considered a Nesu'ah), and thus she has a Chazakah on the Guf. That Chazakah also tells us that she should get control of the Peiros as well, because of the principle of "Ein Safek Yotzei Midei Vadai" (which, when used here, means that the Safek ownership of the Peiros does not override the Vadai ownership of the Guf, and thus she gets control of the Peiros since she has definite control of the Guf). Therefore the Safek to whom the Peiros belong is decided in her favor.

However, why -- when she is a Shomeres Yavam whose status is in doubt -- is she given control of the property? Even if the case is decided in her favor and we deem that she has the status of an Arusah, she is still not able to sell any of the property, according to Beis Hillel! The Gemara earlier quoted the Mishnah in Kesuvos (78a) that states that when a woman inherits property when she is an Arusah, l'Chatchilah she may not sell the Guf according to Beis Hillel (see Chart)! Why, then, does the Mishnah here state that she definitely has control over the Guf and may even sell it l'Chatchilah?

ANSWER: The BACH (#5) explains that the Safek is not that the woman might be a Nesu'ah, or she might be an Arusah. Rather, the Safek is that she might be a Nesu'ah, or she might be even *less* than an Arusah. If she is not considered even to be an Arusah with the man, then she certainly may sell the property because he has no hold on it, due to the lack of any significant bond between them. When the Gemara decides in her favor, it is not ruling that she is considered like an Arusah, but that she does not even have the status of an Arusah, and thus the Guf and Peiros are certainly hers.

A deeper understanding of why she might be "less than an Arusah" would seem to be as follows. The Gemara in Kesuvos (78a) explains the reason why Beis Hillel rules that an Arusah cannot sell her property l'Chatchilah. The Gemara says that Beis Hillel is in doubt whether or not the rights of the husband during Erusin are the same as his rights during Nesu'in. On one hand, it is likely that the Erusin is going to culminate in Nesu'in, at which time he will have the rights to her property, so perhaps he should be entitled to the property now, during Erusin. On the other hand, perhaps the Erusin will not end up with Nesu'in, and since the bond of Erusin is not as strong as that of Nesu'in, perhaps he does not yet have the same rights to her property as he will have after Nesu'in. Since there is a doubt whether Nesu'in will occur or not, out of doubt we do not give him the rights to the property. That is why, if she sells the property, the sale is valid, but she may not sell it l'Chatchilah because of the possibility that the husband is really entitled to the property. The reason she may not sell l'Chatchilah is not because an Arusah has no control over the property, but because of the *Safek* who has control during Erusin.

There is, however, an obvious question on the Gemara in Kesuvos. If the only reason she may not sell l'Chatchilah is because of a Safek, then why do we not decide the Safek in her favor and give her complete control over the property -- because she has a Chazakah on the Guf. The Safek should be decided in her favor just like in our Sugya, where we say that her claim to the Guf is Vadai while the husband's claim to it is only a Safek, and "Ein Safek Motzi Midei Vadai" -- a claim of a Safek cannot take something away from someone who has a Vadai, definite, claim! We should consider her a definite Arusah and she should even have the rights to sell the property l'Chatchilah! (TOSFOS Kesuvos 78a, DH Seifa)

TOSFOS there answers that it is not a real Safek whether the Erusin will commence with Nesu'in. Rather, we consider that the Erusin is *certainly* going to culminate with Nesu'in. This gives the husband certain rights in the properties of his Arusah, and prevents her from selling it l'Chatchilah, even though she has a Chazakah on the property. That is, we are not really in *doubt*, but rather since the chances are so strong that the Erusin will end with Nesu'in, we give the rights to the husband to prevent her from selling the property l'Chatchilah.

Our Gemara, though, is not discussing a normal Arusah. Our Gemara is discussing a Yevamah. In the case of a Yevamah, it is not certain, nor even likely, that the Zikah will end with marriage (Yibum) and Nesu'in. There is an equal chance that it will end with Chalitzah. Therefore, the husband (Yavam) does not have any rights to the property based on the fact that he will likely be married to her, because that fact is not true in the case of a Yevamah. The status of the Yevamah is, instead, a normal Safek (is she considered an Arusah or a Nesu'ah), and the Safek is resolved by the fact that she has a Chazakah on the property. That is why she may sell the property l'Chatchilah in this case. Even if she is considered like an Arusah, then she is an Arusah who is *not* certainly going to get married, since she might be exempted from Yibum through Chalitzah. This might be what the Bach means when he says that she is not considered even an Arusah -- that she is not considered a normal Arusah, whom we assume will definitely become a Nesu'ah.

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