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Yevamos, 39

1) THE CONTROL OF PROPERTY IN THE HANDS OF A YEVAMAH

QUESTION: Abaye and Rava argue about how to explain the difference between Beis Shamai's ruling in the first case of the Mishnah and his ruling in the second case of the Mishnah. In the first case of the Mishnah, where a Shomeres Yavam inherited property and she is still alive, Beis Shamai agrees with Beis Hillel that she has complete control over the property and may sell it l'Chatchilah. In the second case of the Mishnah, where the Shomeres Yavam inherited property and then she died, Beis Shamai says that the property is divided between her family ("Yorshei ha'Av") and her Yavam's family ("Yorshei ha'Ba'al"). The Gemara asks why, when she is alive, does Beis Shamai consider the property to be completely in her hands, while after she dies, Beis Shamai does not consider it to be completely in her hands (for otherwise, it would remain with her family), but rules that there is a doubt concerning who has control over the property?

Abaye says that the first case of the Mishnah is referring to when the property came to her when she was already a Yevamah, after her husband died. The second case is referring to when the property came to her when she was a Nesu'ah, fully married to her husband (before he died). While she is a Nesu'ah, her husband has a strong hold on her property, and according to both Beis Shamai and Beis Hillel, "his hand is like her hand" ("Yado k'Yadah") -- his hold on the property is just as strong as hers. When the husband dies, according to Beis Hillel the hold of the husband becomes weaker, and thus she is left with complete control over the property. According to Beis Shamai, his hold remains the same after he dies and thus they still have an equal hold on the property (hence it is divided between her heirs and her husband's heirs).

Rava says that it depends on entirely different factors. Both cases in the Mishnah are referring to when the property came to her when she was a Shomeres Yavam, after the death of her husband. The difference between the cases is that in the first case, the property came to her before she did Ma'amar, and in the second case, it came to her after she did Ma'amar. Beis Shamai -- who holds that Ma'amar is Koneh and gives her a status of a Safek Nesu'ah -- says that the property is divided among the two families because of the Safek. Beis Hillel, though, holds that Ma'amar does not effect any Kinyan with the woman, and therefore she retains full control over the property and may sell it. (See Chart #13)

The Gemara concludes that the Halachah follows Abaye, even though there is an unanswered question on Abaye's way of learning. The question is that according to Abaye, why does the second part of the Mishnah have to discuss a case where the woman died, in which case Beis Shamai says that the families divide the property? It should have discussed a case where the Shomeres Yavam is still alive. There, too, Beis Shamai would say that they divide the Peiros, i.e. the produce of the property (because "his hand is like her hand" even after the husband's death) and Beis Hillel would say that the Peiros go to the Yevamah (because "her hand is stronger," after her husband's death)! That is the Gemara's question on Abaye's way of learning the Mishnah.

Why does the Gemara ask this question only on Abaye? The same question can be asked according to Rava's way of learning as well! Rava says that the second case of the Mishnah is when Ma'amar was done, and that is why Beis Shamai says that the woman's family and the Yavam's family divide the property. According to Rava, though, this ruling of Beis Shamai is true regardless of whether or not the woman died! Ma'amar gives the Yavam a stronger hand according to Beis Shamai, even when the Yevamah is still alive. Why does the Mishnah say that *if she died* Beis Shamai says that they divide the property, when he would say that they divide the produce of the fields even when she is still alive, because Ma'amar makes her a Safek Nesu'ah! (TOSFOS)

ANSWER: TOSFOS (DH Af Al Gav) and the other Rishonim explain that according to Rava, who says that Ma'amar creates a situation of "Safek Nesu'ah" according to Beis Shamai, when the woman is alive we decide the case in her favor, because of the principle that "Ein Safek Motzi m'Ydei Vadai"; the definite ownership of the Yevamah (on the Guf) overrides the doubtful claim of the Yavam (to the Peiros).

If so, why didn't Rava suggest that the case discussed in the first part of the Mishnah is *also* a case where the Yavam performed Ma'amar, but since the Yevamah is still alive Beis Shamai agrees to Beis Hillel that the Yevamah can claim the property in question?

Tosfos explains that Rava did not suggest that the first case of the Mishnah was when Ma'amar was done, because Rava's opinion is that even though she keeps control of the property because of "Ein Safek Motzi m'Ydei Vadai," that principle is not strong enough to give her such total control over the property that she could sell the property l'Chatchilah (as Beis Shamai rules); if Ma'amar had been done and the woman is still alive, she would have a hold on the property, but she would *not* be permitted to sell it l'Chatchilah. Therefore, the first case must be when Ma'amar was not done, and that is why she may sell it l'Chatchilah. (See previous Insight.)

If this is true according to Rava, why can we not offer the same answer according to Abaye? The Gemara should answer that when property fell to the woman when she was a Nesu'ah (which is the second case of the Mishnah according to Abaye), and then her husband died, it is true that we say "his hand is like her hand" even after his death according to Beis Shamai, but while the Yevamah is alive we apply the principle of "Ein Safek Motzi m'Ydei Vadai," (because she has a definite claim to the Guf) and the Safek that her Yavam is now entitled to the (produce of the) property cannot override her Vadai claim! Beis Shamai would therefore say that they do not split the property if she is still alive, but it remains in her possession (because of "Ein Safek Motzi m'Ydei Vadai") with the restriction that she cannot sell it l'Chatchilah (because that principle is not strong enough to give her total control)!

The answer to this question is that according to Abaye, Beis Shamai does not consider the control of the property to be a Safek. He holds that they *both* have equal possession of the produce, and thus it cannot be said that she has a Vadai claim and his is only a Safek (see Rashi 38b, DH Oseh Safek Nesu'ah). Saying "his hand is like her hand" ("Yado k'Yadah") means that they *both* have a hold on the Peiros (produce), and since the Yavam has a Chazakah just like the Yevamah does, the rule of "Ein Safek Motzi m'Ydei Vadai" cannot be used: there is no question about the ownership of the Peiros in the first place. Consequently, Beis Shamai should still say, when the Yevamah is alive, that they split the produce.

According to Rava, though, *her* hold is *stronger* ("Yadah Adifah") even after Ma'amar, even according to Beis Shamai. However, there is a *Safek* whether Zikah makes her like a Nesu'ah, and she loses claim to the Peiros, or not. In the case of a Safek we apply the rule of "Ein Safek Motzi m'Ydei Vadai," if the Yevamah is still alive, and that is why Beis Shamai would say that they do not split the property if she was still alive (even after Ma'amar).

(It is not clear that Rashi, end of 38b DH Abaye, would agree to this argument, since he does not explain that Abaye and Rava argue with Rabah as to whether or not the rule of "Ein Safek Motzi m'Ydei Vadai" allows the Yevamah to sell the property l'Chatchilah.)

OPINIONS: The Gemara discusses whether it is preferable to fulfill the Mitzvah of Yibum with "Bi'as Katan" or with "Chalitzas Gadol." RASHI explains that "Bi'as Katan" refers to doing Yibum with a *younger* brother (who is nevertheless above the age of thirteen), but not with an actual minor. Rashi proves that the Gemara here is referring to a younger brother and not to a real minor from the Gemara later that says that in the Mishnah's case of "Talah b'Katan," we do not wait until the Katan grows up, but rather we have her do Yibum with an older brother, because "we do not delay the performance of a Mitzvah." From there we see that by an actual Katan (in which case the fulfillment of the Mitzvah will be delayed), all agree that it is preferable for a Gadol to perform Chalitzah than for the Katan to perform Yibum.

Since Rashi seems to entertain the possibility that the Yibum of an actual Katan could be preferable to the Chalitzah of a Gadol, this implies that he holds that a Katan *could do* Yibum, and the question is whether it is preferable to the Chalitzah of a Gadol or not. If so, why would the Yibum of a Katan cause delay in the performance of the Mitzvah? If, according to Rashi, a Katan *could do* Yibum, then why would we have to wait?

(a) Rashi seems to be following his opinion in Kidushin (19a) that mid'Oraisa, a Katan (over the age of nine) could do Yibum and be Koneh the Yevamah. (This is notwithstanding the fact that if a Katan does Yibum with a Yevamah and she commits adultery, she is *not* Chayav Misah as an "Eshes Ish" since the Torah excludes the wife of a Katan from the prohibition of "Eshes Ish). The Chachamim ruled, though, that having relations with a Katan over the age of nine and under the age of thirteen is considered only like "Ma'amar," and therefore he has to perform Yibum again after he turns thirteen in order to complete the Mitzvah of Yibum (Yevamos 96b). (This is also the opinion of the RAMBAN [Yevamos 96a, MAGID MISHNAH Hil. Yibum 5:18].)

This is what Rashi here means. Rashi considered the possibility that the Bi'ah of a minor (between the ages of nine and thirteen) might be better than the Chalitzah of a Gadol since mid'Oraisa his is a valid Yibum. Rashi concludes that since the Chachamim instituted that the Bi'ah of a Gadol is necessary in order to complete the Yibum, everyone agrees that we do not enter a situation where we will have to wait until the Katan grows up in order to finish the Mitzvah, but rather we have her do the Mitzvah now with a Gadol.

(b) The RITVA cites an opinion of TOSFOS who argues with Rashi and says that when the Gemara says "Bi'as Katan" is preferable, it indeed means a real Katan (of nine years old), and not just a "younger" brother. The Ritva agrees with this explanation.

This opinion obviously holds that a Katan can do Yibum mid'Oraisa, and that his Yibum might even be better than the Chalitzah of a Gadol (despite the fact that the Rabanan required him to perform Yibum a second time after he grows up). When the Gemara says that in the case of "Talah b'Katan" we do not delay the Mitzvah until the Katan comes of age, it is referring to a Katan who is *less* than nine years old. A Katan under nine is certainly not Koneh the Yevamah, since his Bi'ah is not considered a Bi'ah, and he must wait until he reaches the age of nine to fulfill the Mitzvah.. Since this delays the Mitzvah, we prefer the Chalitzah of a Gadol to the child's Yibum..

(c) However, TOSFOS in Kidushin (19a, DH u'mid'Oraisa, and Yevamos 57b, DH v'Chayavin) rules that the Bi'ah of a nine year old is only Koneh a woman mid'Rabanan. According to this opinion, it seems obvious that our Gemara that considers that a Bi'as Katan might be better than a Chalitzas Gadol must be talking about a younger brother who is older than thirteen, for if an actual Katan does an act of Yibum, the Mitzvah has not been fulfilled at all. Even if he performs Yibum again after coming of age, he will have delayed the Mitzvah, and the Gemara says that Chalitzah is preferable to causing a delay in the fulfillment of the Mitzvah.

The RITVA later in Yevamos (68a) agrees with this opinion, that the Bi'ah of a Katan who is nine years old only makes a Kinyan d'Rabanan. This is difficult, though, because the Ritva in our Sugya seems to have learned that the Bi'ah of a Katan is Koneh a woman mid'Oraisa! Similarly, although Rashi in Kidushin writes that a Katan can be Koneh through Yibum mid'Oraisa, later in Yevamos he writes (96b, DH Harei Zu) that the Bi'ah of a Katan is *not* Koneh mid'Oraisa! This would seem to be inconsistent with what he writes here, earlier in the same Maseches.

One possible answer is that Rashi and the Ritva hold that even if the Bi'ah of a Katan is *not* Koenh mid'Oraisa, it still might be better than the Chalitzah of a Gadol, since we assume that the Ma'amar (the act of Bi'ah of the Katan) will be consummated with a proper Yibum when the child grows up. Even though the Gemara says that we do not delay the fulfillment of a Mitzvah, that might only apply if we have *no idea* whether or not the delay will lead to a Yibum or a Chalitzah. If, however, we are confident that waiting will lead to Yibum -- for instance, in the case of a Katan who performed "Ma'amar" with the Yevamah (through the Bi'ah of a Katan), then we do wait to fulfill the Mitzvah of Yibum rather than have an immediate Chalitzah.

Another possibility is that they learned that this is exactly the point in question in our Sugya. The opinion that prefers the Yibum of a Katan to the Chalitzah of a Gadol holds the Yibum of a Katan is valid mid'Oraisa, and the dissenting opinion holds that it is mid'Rabanan. They rule like the dissenting opinion.

39b