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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Yevamos 38



(a) When the property of the father falls before ...
1. ... the Safek and the Yavam - the former claims that he is the son of the dead man (and half the property belongs to him); whereas the latter argues that he is *his* son (and he therefore inherits nothing, whilst he [the Yavam] is the sole heir).
2. ... the Safek and the Yavam's two sons - the former claims that he is the son of the first brother (and therefore inherits half his property); whereas the latter argue that he is their brother, and as such, he only receives one portion the same size as each of them receives.
(b) The Din ...
1. ... in the former case is - that the Yavam is a Vaday and the Safek, a Safek, so we will apply the principle 'Ein Safek Motzi mi'Yedei Vaday'.
2. .. in the latter case - the half that the Safek concedes to the sons of the Yavam, *they* take. The remaining third that the two sons of the Yavam concede, *he* takes. As for the remaining sixth, we will apply the principle 'Mamon ha'Mutal be'Safek, Cholkin'.
(c) The Yavam in the former case is more of a Vaday than the Safek in Rav Mesharshaya's case on the previous Amud, where he is an heir mi'Mah Nafshach (either of the dead brother or of the Yavam) - because here the Yavam knows exactly whose heir he is, whereas there the Safek does not.

(d) If the Safek dies, and the Yavam's father and the Yavam each claim to be the father of the Safek, or if the Yavam dies, and the father claims that the Safek is *his* son, and not eligible to receive the inheritance of the Yavam, whereas the Safek claims that he is the Yavam's son (and therefore the sole heir) - we will apply the principle 'Mamon ha'Mutal be'Safek, Cholkin'.

(a) The Tana says that - if a Shomeres Yavam received property from her father, both Beis Shamai and Beis Hillel agree that she is permitted to sell it or to give it away.

(b) 'Nechasim ha'Nichnasim ve'ha'Yotzin Imah' - is synonymous with Nechsei mi'Lug (property that she brings into the marriage, for which her husband takes no responsibility). It is called by this name - because it enters the marriage with her, and provided it is still in existence, it goes out with her.

(c) According to Beis Shamai, if a Shomeres Yavam dies, her father and the Yavam divide her Nechsei mi'Lug - because she is a Safek Nesu'ah, in which case, the Yavam receives half mi'Safek (This point will be discussed extensively in the Gemara).

(d) Her Kesubah remains in the Chazakah of her husband, and her father's heirs receive nothing.

(a) Beis Hillel say 'Nechasim be'Chezkasan', which means, that they remain, with regard to ...
1. ... her Kesubah - in the Chazakah of her husband's heirs.
2. ... her Nechsei mi'Lug - in the Chazakah of her father's heirs.
(b) Once the Yavam has performed Yibum - she is his wife in every respect.

(c) Her Kesubah is paid out of the Yevamah's estate.

(a) Ula establishes the Reisha of our Mishnah, where Beis Shamai agrees that the property that she inherits from her father belong to her - when she fell to Yibum as an Arusah; whereas the Seifa, where, after she dies, Beis Shamai does not place her property in the possession of her heirs - speaks when she fell to him as a Nesu'ah.

(b) According to Beis Shamai, a betrothed girl is permitted to sell her inheritance; according to Beis Hillel - she is not permitted to sell Lechatchilah, but Bedi'eved, if she did sell, her sale is valid..

(c) They both agree - that as far as property that she inherited after she gets married, even Bedieved, her sale is not valid.

(a) Ula considers the Zikah of ...
1. ... an Arusah - like a Safek Arusah.
2. ... a Nesu'ah - like a Safek Nesu'ah.
(b) According to ...
1. ... Beis Shamai - since a Vaday Arusah is permitted to sell her property, how much more so a Shomeres Yavam, who is only a Safek Arusah.
2. ... Beis Hillel - seeing as the sale of a Vaday Arusah is valid Bedieved, by a Safek Arusah, Chazal permitted it even Lechatchilah.
(c) According to Beis Shamai - since, according to Ula, a Shomeres Yavam is a Safek Nesu'ah, we apply the principle 'Mamon ha'Mutal be'Safek, Cholkin'. Beis Hillel maintains that the respective Chazakos over-ride the Safek.

(d) According to Beis Shamai, the father's heirs do not have a Chazakah on the Nechsei mi'Lug - because of the principle 'Yado ke'Yadah' (meaning that Chazal gave the husband the same rights in her property as she has). According to Ula, Beis Hillel hold 'Ein Yado ke'Yadah'.




(a) Rabah rejects Ula's explanation - because Beis Shamai and Beis Hillel should then have held their dispute over who receives the fruits of her property, and even in her lifetime? Why do they confine their argument to the property itself and only after her death?

(b) So he establishes even the Reisha by a Yevamah who was married when she fell to Yibum. He holds (in this point like Ula) - that Zikas Nesu'ah makes her a Safek Nesu'ah.

(c) The difference between the Reisha and the Seifa, in his opinion, is that in the Reisha, she is alive, whereas in the Seifa, she is not. The reason that ...

1. ... in the Reisha, she is permitted to sell is - because since she is alive, and the property itself is certainly hers, she has a Chazakah on it.
2. ... in the Seifa, Beis Shamai say 'Yachloku' is - because, since Yevamah is no longer alive, and both the Yavam and her father's heirs claim to be the sole heirs, each one is a Safek, and therefore they divide the property.
3. ... Beis Hillel say 'Nechasim be'Chezkasan' is - because the property was in their family first, and the husband has no claim on it.
(a) According to Beis Hillel in a Mishnah in Bava Basra, if a house fell on a man and his father (or on a man and someone whose heir he is), and the wife claims her Kesubah, or his creditors, their debt, the property retains its Chazakah. The counter-claimant here - is the father's heirs, who claim that it was the son who died first, and that *they* are the heirs, in which case, the son's wife or creditors will receive nothing; whereas *they* claim that the father died first, and that the son therefore inherited him, and they have the right to take their debt from his property, all of which is mortgaged to the creditor.

(b) The claimant cannot just take from the son's property - because the Mishnah speaks in a case when the son owned no property; and that is the problem.

(c) Beis Shamai say - 'Yachloku'.

(d) Despite the fact that the claimant only has a Sh'tar - Beis Shamai considers him to be as much a Vaday as the father's heirs - because he holds 'Sh'tar ha'Omed li'Gavos, ke'Gavuy Dami' (a debt that is covered by a valid document is considered as if it has already been claimed).

(a) We prove that Beis Shamai holds 'Sh'tar ha'Omed li'Gavos, ke'Gavuy Dami' from the Mishnah in Sotah, where Beis Shamai say - that a Sotah whose husband died before she drank the water, receives her Kesubah, and does not drink. This can only be because of Sh'tar ha'Omed li'Gavos ke'Gavuy Dami', making her a Vaday and the husband's heirs, a Safek (perhaps she is guilty, perhaps she is not). Because otherwise, the Din would have to be 'Yachloku' (because even if we were to say 'Safek Motzi mi'Yedei Vaday', that would not be a reason for Safek to be better than Vaday - only equal to it).

(b) Beis Hillel say 'O Shosos O Lo Notlos Kesubah'. 'O Shosos' cannot be correct - because the Torah writes in Naso "ve'Heivi ha'Ish es Ishto", from which we learn that the woman only drinks when the husband is there.

(c) We amend it to - 'Mi'toch she'Lo Shosos, Lo Notlos Kesubah'.

(d) Abaye, who asked the initial contradiction in Beis Shamai (from the Mishnah in Bava Basra - see 6d.), did not ask from the Mishnah in Sotah - because he knew that Beis Shamai holds 'ke'Gavuy Dami' by Kesubah, in order to give the 'Chein' (the knowledge that her rights have been reinforced will encourage her to want to get married). And his Kashya from the Mishnah in Bava Basra was from the claim of the creditor, and not from that of the woman.

(a) We ask why Abaye did not pose the same Kashya from our Mishnah, where Beis Shamai says 'Yachloku', in spite of the fact that (if not for 'Sh'tar ha'Omed li'Gavos ... '), it would be a case of 'Safek Motzi mi'Yedei Vaday' (the heirs of her father from the Yavam). True, we just explained that Abaye concedes that Kesubah is different - but that was in a case when the woman herself was claiming her Kesubah, whereas our Mishnah speaks when she is no longer alive, and it is her father's heirs who are claiming, in which case the reason of 'China' is not applicable.

(b) Rav Ashi proves from the Lashon of the Mishnah ('Yachloku Yorshei ha'Ba'al im Yorshei ha'Av') - that Beis Shamai only argues by Nechsei mi'Lug, but agrees that the Kesubah remains in the Chazakah of the husband's heirs (because otherwise, he should have added 'Yachloku Yorshei ha'Av im Yorshei ha'Ba'al').

(c) Although we just said that, in the opinion of Beis Shamai, 'Sh'tar ha'Omed li'Gavos, ke'Gavuy Dami' - that is only as long as she is alive, but here, seeing as she is dead, her heirs cannot take away from the Yavam, who stands in place of the husband.

(a) Abaye disagrees with Rabah's interpretation of our Mishnah. According to him, there is no difference whether the Yevamah is alive or dead; as long as she inherited it whilst she is a Yevamah, the property is in her Chazakah whilst she is alive, and in her father's heirs Chazakah after she dies. The reason that Beis Shamai say 'Yachloku' in the Seifa is - because it speaks when she inherited the property when she was still married to her first husband, and Beis Shamai holds that the husband's hand is stronger than her own (and the Yavam's, equal to it).

(b) And Beis Hillel's reason for saying 'Nechasim be'Chezkasan' - is because they hold that the husband's hand is as strong as her's (and the Yavam's, equal to it).

(c) The Din in the Reisha, according to Abaye, if the Shomeres Yavam were to die - would be no different than when she is alive; that it remains in the Chazakah of her heirs, because the Zikah is not strong enough to place her property in the Yavam's possession.

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