Yevamot 72

ואמר ר"ל לעולם לא קנה עד שיאמר פלוני ופלוני ירשו שדה פלונית ופלונית שנתתים להם במתנה וירשום

And [in connection with this] Resh Lakish stated: No possession is ever acquired,<span class="x" onmousemove="('comment',' Where two fields were given to two persons and the expression of 'inheritance was used together with that of 'gift'. ');">¹</span> unless the testator had said, 'Let X and Y inherit this and that particular field which I have assigned to them as a gift, so that they may inherit them'.<span class="x" onmousemove="('comment',' Both acquire possession of the respective fields because the testator had used the expression, 'which I have assigned to them as a gift', implying that the gift was made before it was assigned as an 'inheritance' (v. R. Gershom, B.B. 129a). ');">²</span> And the third<span class="x" onmousemove="('comment',' Lit., 'and the other', the third ruling of Resh Lakish, which is an accepted halachah. ');">³</span>

ואידך דתנן הכותב כל נכסיו לבנו לאחר מותו האב אינו יכול למכור מפני שנתנן לבן והבן אינו יכול למכור מפני שהן ברשות האב מכר האב מכורין עד שימות הוא מכר הבן אין ללוקח כלום עד שימות האב

is his ruling in connection with the following Mishnah:<span class="x" onmousemove="('comment',' Lit., 'because we learned'. ');">⁴</span> If a man assigned all his estate, in writing, to his son<span class="x" onmousemove="('comment',' Inserting the formula 'From this day and after my death'. The law that follows applies also to a gift made by any other person. ');">⁵</span> [to be his]<span class="x" onmousemove="('comment',' The sons. ');">⁶</span>

ואיתמר מכר הבן בחיי האב ומת הבן בחיי האב ר' יוחנן אמר לא קנה לוקח וריש לקיש אמר קנה לוקח

after his<span class="x" onmousemove="('comment',' The testator's. ');">⁷</span> death, the father may not sell it<span class="x" onmousemove="('comment',' Either the land or its produce. ');">⁸</span> because it is assigned to the son, and the son may not sell it because it is in the possession of the father. If the father sold the estate, the sale is valid until his death.<span class="x" onmousemove="('comment',' Lit., 'sold until he dies'. Until then only may the buyer enjoy its usufruct. ');">⁹</span>

ר' יוחנן אמר לא קנה לוקח קנין פירות כקנין הגוף דמי

If the son sold it, the buyer has no claim whatsoever upon it until the father's death.<span class="x" onmousemove="('comment',' B.K. 88b, B.B. 1362. ');">¹⁰</span> And it was stated: If the son sold the estate<span class="x" onmousemove="('comment',' Assigned to him by his father for possession after his death. ');">¹¹</span> during the lifetime of his father, and died while his father was still alive, R. Johanan said: The buyer does not acquire ownership;<span class="x" onmousemove="('comment',' Even after the father's death, since the estate has never come into the son's possession. ');">¹²</span>

ור"ל אמר קנה לוקח קנין פירות לאו כקנין הגוף דמי:

and Resh Lakish said: The buyer does acquire ownership.<span class="x" onmousemove="('comment',' After the death of the father, as the representative of the son, who, were he alive, would have been entitled to the inheritance. ');">¹³</span> R. Johanan said that 'the buyer does not acquire ownership', because possession of usufruct is like possession of the capital;<span class="x" onmousemove="('comment',' Since the usufruct was in the ownership of the father, the capital, i.e., the soil, is also regarded as being in his possession, and the son, therefore, during the lifetime of his father is not entitled to transfer it to the buyer. ');">¹⁴</span> and Resh Lakish said that 'the buyer does acquire ownership', because possession of usufruct is not like possession of the capital.<span class="x" onmousemove="('comment',' B.K. l.c., B.B. 136af. The soil, therefore, was the undisputed property of the son who, consequently. was fully entitled to transfer it to the buyer. ');">¹⁵</span>

אין הולד של קיימא כו': תנא משום רבי אליעזר אמרו יוציא בגט

BUT IF THE CHILD IS NOT VIABLE etc. A Tanna taught: It has been said in the name of R. Eliezer that<span class="x" onmousemove="('comment',' Contrary to the law of our Mishnah which allows the levir to continue his connubial association with his sister-in-law wherever the child is not viable. ');">¹⁶</span> he must put her out by means of a letter of divorce.<span class="x" onmousemove="('comment',' Though the death of the child has proved retrospectively that the levirate marriage was lawful, divorce is imposed upon such a union as a penalty for contracting it at a time when, owing to the uncertainty of the result of the pregnancy, it was of doubtful legality. ');">¹⁷</span> Said Raba: R. Meir and R. Eliezer taught the same law.<span class="x" onmousemove="('comment',' Lit., 'said one word', that the penalty of divorce is imposed upon any union the legality of which was doubtful at the time the marriage was contracted. ');">¹⁸</span>

אמר רבא ר' מאיר ור' אליעזר אמרו דבר אחד רבי אליעזר הא דאמרן

R. Eliezer, in the ruling just mentioned, R. Meir [in the following Baraitha] wherein it was taught: A man shall not marry the pregnant, or nursing wife of another;<span class="x" onmousemove="('comment',' Though she is now a widow or divorced. ');">¹⁹</span> and if he married, he must put her out and never remarry her; so R. Meir. But the Sages said: He shall let her go.<span class="x" onmousemove="('comment',' V. infra for meaning. ');">²⁰</span> and at the proper time<span class="x" onmousemove="('comment',' Lit., 'and when his time to marry arrives', i.e. at the end of the period of twenty-four months allowed for the nursing of a child. ');">²¹</span>

ר"מ דתניא לא ישא אדם מעוברת חבירו ומינקת חבירו ואם נשא יוציא ולא יחזיר עולמית דברי ר' מאיר וחכמים אומרים יוציא ולכשיגיע זמנו לכנוס יכנוס

he may marry her again.<span class="x" onmousemove="('comment',' Sot. 262. ');">²²</span> Abaye said to him:<span class="x" onmousemove="('comment',' Raba. ');">²³</span> How do you arrive at such a conclusion which may possibly be wrong?<span class="x" onmousemove="('comment',' Lit., 'from what? perhaps it is not (so)'. ');">²⁴</span>

א"ל אביי ממאי דלמא לא היא עד כאן לא קאמר ר' אליעזר הכא אלא משום דקפגע באיסור אשת אח דאורייתא אבל התם דרבנן כרבנן סבירא ליה

R. Eliezer's ruling might extend to the present case<span class="x" onmousemove="('comment',' Lit., 'R. Eliezer did not so far say (his ruling) here'. ');">²⁵</span> only because the levir is encroaching<span class="x" onmousemove="('comment',' It being possible that the child would be viable. ');">²⁶</span> upon the prohibition of 'brother's wife', which is Pentateuchal,<span class="x" onmousemove="('comment',' For such a serious offence a penalty is rightly imposed. ');">²⁷</span>

אי נמי עד כאן לא קאמר רבי מאיר התם אלא משום דרבנן וחכמים עשו חיזוק לדבריהם יותר משל תורה אבל הכא מדאורייתא מפרש פרשי מינה

but there,<span class="x" onmousemove="('comment',' Marriage with an expectant. or nursing mother. ');">²⁸</span> where the prohibition is only Rabbinical,<span class="x" onmousemove="('comment',' Biblically one need not wait twenty-four months before marrying her. ');">²⁹</span> he may hold the same view as the Rabbis. Alternatively, it is possible that R. Meir's ruling extends only to that case because the prohibition is Rabbinical,<span class="x" onmousemove="('comment',' Biblically one need not wait twenty-four months before marrying her. ');">²⁹</span>

אמר רבא ולדברי חכמים יוציאה בגט אמר מר זוטרא דיקא נמי דקתני יוציא ולא קתני יפריש ש"מ

and the Sages have given more force to their provisions than to those which are Pentateuchal,<span class="x" onmousemove="('comment',' As people might be lax in the observance of a Rabbinical law it was necessary to impose a penalty for its non-observance. ');">³⁰</span> but not to the case here,<span class="x" onmousemove="('comment',' Marriage with an expectant yebamah. ');">³¹</span> where the prohibition is Pentateuchal,<span class="x" onmousemove="('comment',' It being possible that the child would be viable. ');">²⁶</span>

א"ל רב אשי לרב הושעיא בריה דרב אידי התם תנן רשב"ג אומר כל ששהא באדם ל' יום אינו נפל הא לא שהא ספיקא הוי

and people as a rule keep away from it.<span class="x" onmousemove="('comment',' Or 'her', i.e., from marrying an expectant yebamah. No penalty. therefore, need be imposed upon an occasional offender. ');">³²</span> Raba said: Even according to the ruling of the Rabbis<span class="x" onmousemove="('comment',' Who permit marriage after the period of twenty-four months had elapsed. ');">³³</span> he must let her go from him by means of a letter of divorce.<span class="x" onmousemove="('comment',' Mere separation is not enough. ');">³⁴</span>

ואיתמר מת בתוך ל' יום ועמדה ונתקדשה

Said Mar Zutra: This may also be deduced, since the expression used was 'he shall put her out'<span class="x" onmousemove="('comment',' [H] Hif. of [H] 'to go out'. ');">³⁵</span> and not 'he shall let her part'.<span class="x" onmousemove="('comment',' [H] Hif. of [H] 'to separate'. ');">³⁶</span> This proves it.

רבינא משמיה דרבא אמר אם אשת ישראל היא חולצת ואם אשת כהן היא אינה חולצת

R. Ashi said to R. Hoshaia son of R. Idi: 'Elsewhere it was taught.<span class="x" onmousemove="('comment',' Cf. Tosaf. Hul. 87b, s.v. ib, and Bek. 49a s.v. [H]. Cur. edd., 'we learned'. ');">³⁷</span> "R. Simeon b. Gamaliel said: Any human child<span class="x" onmousemove="('comment',' Of doubtful premature birth. Lit., 'among man', opp. to cattle mentioned in the final clause. ');">³⁸</span> that survived for thirty days cannot be regarded as a miscarriage".<span class="x" onmousemove="('comment',' Tosef. Shab. XVI, Shab. 135b, Nid. 44b, infra 80b; and consequently exempts his mother from levirate marriage and halizah. In the case of a mature birth (cf. prev. note) the child exempts his mother on the first day of his birth. (V. Nid. 43b). ');">³⁹</span>

רב משרשיא משמיה דרבא אמר אחת זו ואחת זו חולצת

Had he not lived so long,<span class="x" onmousemove="('comment',' [Rashi: By dying a natural death; Tosaf. If he was killed; for if he died a natural death within thirty days even the Rabbis would regard him as a miscarriage, v. Tosaf, s.v. [H]. ');">⁴⁰</span> however, he would have been a doubtful case.<span class="x" onmousemove="('comment',' And his mother would have had to perform halizah only, but would not have been allowed to contract the levirate marriage. ');">⁴¹</span> But it was also stated: Where he<span class="x" onmousemove="('comment',' The child of a sister-in-law whose husband had died without having left any other issue. ');">⁴²</span>

אמר ליה רבינא לרב משרשיא

died within thirty days<span class="x" onmousemove="('comment',' Of his birth. ');">⁴³</span> and she<span class="x" onmousemove="('comment',' His mother, the widow of his deceased father. ');">⁴⁴</span> was subsequently<span class="x" onmousemove="('comment',' Lit., 'stood up.' ');">⁴⁵</span> betrothed,<span class="x" onmousemove="('comment',' To a stranger; believing that the birth of the child was sufficient to exempt her from the obligations of the levirate marriage and the halizah. ');">⁴⁶</span> Rabina said in the name of Raba that if she<span class="x" onmousemove="('comment',' His mother, the widow of his deceased father. ');">⁴⁴</span> was the wife of an Israelite<span class="x" onmousemove="('comment',' I.e., if the man who betrothed her was an Israelite who may marry a haluzah. ');">⁴⁷</span> she must perform the <i>halizah</i><span class="x" onmousemove="('comment',' With the levir. ');">⁴⁸</span> and if she was the wife of a priest<span class="x" onmousemove="('comment',' Cf. supra 8. A priest may not marry a haluzah. ');">⁴⁹</span> she must not perform the <i>halizah</i>.<span class="x" onmousemove="('comment',' Were she to perform it. her husband could not subsequently be allowed to live with her. Hence she is granted exemption from halizah by virtue of the child's birth alone. ');">⁵⁰</span> R. Mesharsheya<span class="x" onmousemove="('comment',' Var. lec. 'Sherabya', v. Shab. 136b. ');">⁵¹</span> said in the name of Raba: The one as well as the other must perform the <i>halizah</i>. Said Rabina to R. Mesharsheya:<span class="x" onmousemove="('comment',' Var. lec. 'Sherabya', v. Shab. 136b. ');">⁵¹</span>