Yevamot 76

זיקת נשואה עושה ספק נשואה

and the levirate bond of a married woman renders her 'doubtfully married'.<span class="x" onmousemove="('comment',' Cf. supra n. 3. ');">¹</span> 'The levirate bond of a betrothed woman renders her doubtfully betrothed', for were we to assume that she is regarded as definitely betrothed, [how could both] BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY SELL IT OR GIVE IT AWAY AND THAT HER ACT IS LEGALLY VALID when we learned: If she came into the possession of property while she was betrothed, Beth Shammai said, she may sell it, and Beth Hillel said, she may not sell it, but both agree that if she had sold or had given it away her act is legally valid!<span class="x" onmousemove="('comment',' Keth. 78a., Sonc. ed. pp. 490ff q.v. ');">²</span>

זיקת ארוסה עושה ספק ארוסה דאי ס"ד ודאי ארוסה מודים ב"ה שמוכרת ונותנת וקיים

Consequently<span class="x" onmousemove="('comment',' Since in the case of a definite betrothal Beth Hillel, contrary to the opinion of Beth Shammai do not allow the widow the right of sale or gift, while in the first clause of our Mishnah they do. ');">³</span> it must be inferred that the levirate bond of a betrothed woman renders her 'doubtfully betrothed'.<span class="x" onmousemove="('comment',' Hence Beth Shammai, who concede to the widow the right to sell and to give away even where her betrothal was certain, with all the more reason concede such rights to the widow spoken of in the first clause of our Mishnah where her betrothal is only doubtful. Beth Hillel, too, since in the case of a definite betrothal they agree that a sale or gift that had already taken place is valid, may rightly concede to the widow in the case of doubtful betrothal the full rights of selling and giving away. ');">⁴</span>

והתנן נפלו לה נכסים משנתארסה ב"ש אומרים תמכור וב"ה אומרים לא תמכור אלו ואלו מודים שאם מכרה ונתנה קיים אלא ש"מ זיקת ארוסה עושה ספק ארוסה

'The levirate bond of a married woman renders her doubtfully married', for had it been possible to assume that she is regarded as definitely married, [how could] Beth Shammai state that THE HEIRS OF HER HUSBAND ARE TO SHARE IT WITH THE HEIRS OF HER FATHER when we learned: If she came into the possession of property while she was married, both<span class="x" onmousemove="('comment',' Beth Shammai and Beth Hillel. ');">⁵</span> agree that, if she had sold or given it away, her husband may seize it from the hand of the buyers!<span class="x" onmousemove="('comment',' Keth. loc. cit. ');">⁶</span>

זיקת נשואה עושה ספק נשואה דאי ס"ד ודאי נשואה ב"ש אומרים יחלוקו יורשי הבעל עם יורשי האב

Consequently it must be inferred that the levirate bond of a married woman renders her 'doubtfully married'.<span class="x" onmousemove="('comment',' And so both Beth Shammai and Beth Hillel, who in the case of a definite marriage recognize the husband's right to seize from the buyers even property that his wife had already sold, agree that in the case of our Mishnah, the status of marriage being a matter of doubt, the husband's rights are also a matter of doubt. Hence Beth Shammai might well maintain that the property which is of doubtful ownership should be equally divided between the rival claimants, while Beth Hillel may maintain that the widow's right of possession is to be given priority since she came into the possession of the property at a time when her married status was a matter of uncertainty. ');">⁷</span> Said Rabbah to him:<span class="x" onmousemove="('comment',' 'Ulla. ');">⁸</span>

והתנן נפלו לה נכסים משנישאת אלו ואלו מודים שאם מכרה ונתנה שהבעל מוציא מיד הלקוחות אלא שמע מינה זיקת נשואה עושה ספק נשואה

Why, then, do they<span class="x" onmousemove="('comment',' Beth Shammai and Beth Hillel. ');">⁹</span> dispute on [the question of the estate] itself after the death [of the widow]? Let them rather dispute on the question of the usufruct while she is alive! No, said Rabbah, both clauses deal with property which came into her possession while she was married; and the levirate bond of a married woman stamps her as doubtfully married. In the first clause, therefore, where she is alive, she is the certain possessor<span class="x" onmousemove="('comment',' Since the property is in any case hers. ');">¹⁰</span>

אמר ליה רבה אדמפלגי בגופה ולאחר מיתה לפלגו בחייה ולפירות

while they are only doubtful possessors, and doubt cannot override a certainty.<span class="x" onmousemove="('comment',' Hence Beth Shammai as well as Beth Hillel agree that she is fully entitled to sell the property or to give it away. ');">¹¹</span> In the final clause, however, where she is dead, both groups come equally as heirs<span class="x" onmousemove="('comment',' Lit., 'those come to inherit' (bis). Had the levirate bond borne the same force as marriage the estate would undoubtedly have become the property of the levir only. Had it not borne the same force as marriage the estate would have been given to her father's heirs only, and the levir would have had no claim whatsoever. The claims of either group are consequently evenly balanced. ');">¹²</span>

אלא אמר רבה אידי ואידי דנפלה כשהיא נשואה וזיקת נשואה עושה ספק נשואה רישא דאיהי קיימא הוה לה איהי ודאי ואינהו ספק ואין ספק מוציא מידי ודאי

and are, therefore,<span class="x" onmousemove="('comment',' Since the claim of either is equally doubtful. ');">¹³</span> to take equal shares.<span class="x" onmousemove="('comment',' According to Beth Shammai. Beth Hillel's view, on the other hand, may be justified on the ground that the widow's father's heirs are her certain relatives and are, therefore, entitled to inherit that which was in her possession. No such claim, however, could be advanced by the husband's relatives since the husband himself was never for one moment in definite and undisputed possession of the property in question. ');">¹⁴</span>

סיפא דמתה הללו באין לירש והללו באין לירש ויחלוקו

Abaye pointed out an objection against him:<span class="x" onmousemove="('comment',' Rabbah. ');">¹⁵</span> Cannot a doubt, in accordance with the view of Beth Shammai, override a certainty? Surely we learned: [In the case where] a<span class="x" onmousemove="('comment',' Lit., 'the'. ');">¹⁶</span>

איתיביה אביי ולב"ש אין ספק מוציא מידי ודאי והתנן נפל הבית עליו ועל אביו עליו ועל מורישיו והיו עליו כתובת אשה וב"ח

house collapsed upon a man<span class="x" onmousemove="('comment',' Lit., 'upon him'. ');">¹⁷</span> and his father or upon a man<span class="x" onmousemove="('comment',' Lit., 'upon him'. ');">¹⁷</span>

יורשי האב אומרים הבן מת ראשון ואחר כך מת האב וב"ח אומר האב מת ראשון ואח"כ מת הבן

and those whose heir he was,<span class="x" onmousemove="('comment',' Brothers, for instance, or other relatives, who had no other heirs but him. ');">¹⁸</span> and that man had against him the claim of his wife's <i>kethubah</i><span class="x" onmousemove="('comment',' V. Glos. ');">¹⁹</span>

ב"ש אומרים יחלוקו וב"ה אומרים נכסים בחזקתן

or that of a creditor,<span class="x" onmousemove="('comment',' And he left no other money or possessions wherewith to meet his obligations, while those whose heir he was did leave possessions. ');">²⁰</span> [and in the first case], the heirs of the father plead that the son died first and the father afterwards,<span class="x" onmousemove="('comment',' The son did not consequently inherit from his father whose estate would, therefore, belong to the surviving heirs. ');">²¹</span>

והא הכא יורשי האב ודאי וב"ח ספק וקאתי ספק ומוציא מידי ודאי

while the creditor pleads that the father died first and the son afterwards,<span class="x" onmousemove="('comment',' And the son had, therefore, inherited his father's estate which may consequently be seized in payment of the son's debts. ');">²²</span> Beth Shammai hold [that the amount in dispute is] to be divided,<span class="x" onmousemove="('comment',' Between the creditor and the heirs, their respective claims being regarded by Beth Shammai as of equal force. ');">²³</span>

קסברי ב"ש שטר העומד לגבות כגבוי דמי

and Beth Hillel hold that the estate is to remain in its former status.<span class="x" onmousemove="('comment',' B.B. 157a; With the heirs of the father. The claim of the heirs is regarded by Beth Hillel as a certainty, since they are in possession of the estate either as heirs of the father or as heirs of the son, while the claim of the creditor, being dependent on his being put into possession of the estate by the court, is of doubtful validity, and 'doubt cannot override a certainty'. ');">²⁴</span> Now here, surely, [the claim of] the heirs of the father is a certainty<span class="x" onmousemove="('comment',' v. supra n. 8. ');">²⁵</span>

ומנא תימרא דתנן מתו בעליהן עד שלא שתו ב"ש אומרים נוטלות כתובתן ואינן שותות וב"ה אומרים או שותות או לא נוטלות כתובתן

and that of the creditor is only a doubt<span class="x" onmousemove="('comment',' v. supra n. 8. ');">²⁵</span> and yet<span class="x" onmousemove="('comment',' According to Beth Shammai. ');">²⁶</span>

או שותות (במדבר ה, טו) והביא האיש את אשתו אמר רחמנא וליכא אלא מתוך שלא שותות לא נוטלות כתובתן

the doubtful claim overrides the certainty!<span class="x" onmousemove="('comment',' Lit., 'and doubt comes and takes away from the hands of certainty'. V. supra n. 8. ');">²⁷</span> — Beth Shammai are of the opinion that a bond of indebtedness which is due for repayment is regarded as [already] repaid!<span class="x" onmousemove="('comment',' Sot. 25a. The amount of the debt is deemed to be in the virtual possession of the creditor. The claims respectively of the heirs and the creditor are, consequently, of equal force. If the father died first his son inherited his estate and the creditor had immediately come into the legal possession of a share of the estate equal to the amount of his debt. If the son died first the heirs come into possession of the entire estate. As it is not known who died first the claims of the two parties are equally doubtful and of equal validity. ');">²⁸</span>

והא הכא דספק הוא ספק זנאי ספק לא זנאי וקאתי ספק ומוציא מידי ודאי אלא ש"מ שטר העומד לגבות כגבוי דמי

And whence do you derive this?<span class="x" onmousemove="('comment',' That Beth Shammai hold the opinion just attributed to them. ');">²⁹</span> — [From] what we learned: If their husbands<span class="x" onmousemove="('comment',' Of women suspected of illicit intercourse with strangers after they had been warned by their husbands. V. Glos. s.v. sotah. ');">³⁰</span>

ואביי לותביה מהא דלמא כתובת אשה שאני משום חינא

died before they drank,<span class="x" onmousemove="('comment',' The water of bitterness. V. Num. V, 24. ');">³¹</span> Beth Shammai rule that they are to receive their <i>kethuboth</i><span class="x" onmousemove="('comment',' Pl. of kethubah, v. Glos. ');">³²</span>

ולותביה כתובה דמתניתין

and that they need not drink,<span class="x" onmousemove="('comment',' The water of bitterness. V. Num. V, 24. ');">³³</span> and Beth Hillel rule that they either drink<span class="x" onmousemove="('comment',' The water of bitterness. V. Num. V, 24. ');">³³</span>

לא פליגי ולא והא קתני מתה מה יעשה בכתובתה ובנכסים הנכנסים ויוצאין עמה ב"ש אומרים יחלוקו יורשי הבעל עם יורשי האב וב"ה אומרים נכסים בחזקתן

or they do not receive their <i>kethuboth</i>.<span class="x" onmousemove="('comment',' Sot. 24a, Keth. 81a. ');">³⁴</span> [But how can it be ruled,] 'They either drink', when the All Merciful said, Then shall the man bring his wife<span class="x" onmousemove="('comment',' Num. V, 15; emphasis on man. ');">³⁵</span>

הכי קאמר מתה מה יעשה בכתובתה ושבקה נכסים הנכנסים והיוצאים עמה ב"ש אומרים יחלוקו יורשי הבעל עם יורשי האב וב"ה אומרים נכסים בחזקתן

and he is not there! Consequently [the meaning must be that] as they do not drink they are not to receive their <i>kethuboth</i>.<span class="x" onmousemove="('comment',' Pl. of kethubah, v. Glos. ');">³²</span> Now here, surely, it is a matter of doubt, it being uncertain whether she did play the harlot<span class="x" onmousemove="('comment',' And has, therefore, lost the right to her kethubah. ');">³⁶</span>

אמר רב אשי מתני' נמי דיקא דקתני יחלוקו יורשי הבעל עם יורשי האב ולא קתני יורשי האב עם יורשי הבעל ש"מ

or not,<span class="x" onmousemove="('comment',' And is consequently entitled to receive it. ');">³⁷</span> and yet the doubt overrides the certainty.<span class="x" onmousemove="('comment',' Cf. supra p. 243, n, 12. Despite the doubt as to whether she is entitled to her kethubah she receives it, according to Beth Shammai; and she thus takes away the amount of her kethubah from the heirs of her husband who are the undoubted successors to his property. ');">³⁸</span>

אביי אמר רישא דנפלו לה כשהיא שומרת יבם סיפא דנפלו לה כשהיא תחתיו דבעל

Consequently<span class="x" onmousemove="('comment',' Since the rule is that 'doubt cannot override certainty's ');">³⁹</span> it must be inferred that a bond of indebtedness which is due for repayment is regarded as already repaid.<span class="x" onmousemove="('comment',' The kethubah is, therefore, deemed to have been collected as soon as the husband died, and the widow is consequently deemed to be the virtual possessor of such a portion of his estate as would cover the amount of her kethubah. ');">⁴⁰</span> Abaye,<span class="x" onmousemove="('comment',' Whose objection to Rabbah, supra, was based on a Mishnah from Baba Bathra. ');">⁴¹</span> then,<span class="x" onmousemove="('comment',' Since the principle of virtual possession did not occur to him as the reason for allowing a doubtful claim in face of certain one. ');">⁴²</span> should have raised his objection from this!<span class="x" onmousemove="('comment',' The Mishnah just cited which is embodied in the Tractates of Sotah and Kethuboth both of which belong to the same order as our Tractate. Since the principles in both Mishnahs are identical, why did Abaye resort to a Mishnah in another order when one was available in our order of Nashim. ');">⁴³</span> — [The law of] a wife's <i>kethubah</i> might be different owing to considerations of courtesy.<span class="x" onmousemove="('comment',' [H] 'gracefulness', 'loveliness'. It is possible that in order that pleasant and cordial relations may exist between husband and wife the law has been enacted that, despite the general rule that 'doubt cannot override a certainty', a woman shall be privileged to collect her kethubah even when her own claim is of a doubtful character and that of her litigants is a certain one. No objection could, therefore, be put forward from such a special case; and Abaye had consequently to resort to a Mishnah in Nezikin. Other explanations of [H] (v. Jast.): 'In order to make her attractive', 'that women may be willing to marry'. ');">⁴⁴</span> Then let him<span class="x" onmousemove="('comment',' Abaye. ');">⁴⁵</span> raise his objection from the law of the <i>kethubah</i> in our Mishnah!<span class="x" onmousemove="('comment',' Where, according to Beth Shammai, the heirs of the father (by virtue of his being heir to his daughter, the widow), though their claim is of a doubtful nature, share the amount of the kethubah with the heirs of the husband whose rights to the amount of the kethubah (as the heirs of the husband) are certain. At the moment it is assumed that Beth Shammai's disagreement with Beth Hillel extends to the KETHUBAH as well as to the PROPERTY THAT COMES IN AND GOES OUT WITH HER; and 'considerations of courtesy' could not, of course, apply when the woman is dead and the claimants are her male heirs. Cf. Keth. 97b. ');">⁴⁶</span> They<span class="x" onmousemove="('comment',' Beth Shammai. ');">⁴⁷</span> do not dispute this point.<span class="x" onmousemove="('comment',' They agree with Beth Hillel that the KETHUBAH IS TO RETAIN IN THE POSSESSION OF THE HEIRS OF THE HUSBAND. V. supra p. 240, n. 8. ');">⁴⁸</span> But do they not? Surely we learned,<span class="x" onmousemove="('comment',' So MS.M. Cur. edd. 'it was taught'. ');">⁴⁹</span> IF SHE DIED, WHAT SHALL BE DONE WITH HER <i>KETHUBAH</i> AND WITH PROPERTY THAT COMES IN AND GOES OUT WITH HER? BETH SHAMMAI SAID: THE HEIRS OF HER HUSBAND ARE TO SHARE IT WITH THE HEIRS OF HER FATHER; BETH HILLEL SAID: THE PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS! — It is this that was meant: IF SHE DIED, WHAT SHALL BE DONE WITH HER <i>KETHUBAH</i>? and then [the enquiry] was abandoned. As to PROPERTY THAT COMES IN AND GOES OUT WITH HER, BETH SHAMMAI SAID: THE HEIRS OF HER HUSBAND ARE TO SHARE WITH THE HEIRS OF HER FATHER AND BETH HILLEL SAID: THE PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS. Said R. Ashi: The inference from the expressions in our Mishnah leads to the same conclusion;<span class="x" onmousemove="('comment',' That Beth Shammai's disagreement with Beth Hillel does not extend to the question of the kethubah. ');">⁵⁰</span> for it was stated, THE HEIRS OF HER HUSBAND ARE TO SHARE WITH THE HEIRS OF HER FATHER<span class="x" onmousemove="('comment',' I.e., the former take a share in that which is virtually in the possession of the latter, viz., the melog property which belongs to the heirs of the wife's father. ');">⁵¹</span> and it was not stated 'the heirs of the father [are to share it] with the heirs of the husband'.<span class="x" onmousemove="('comment',' Which would have referred to the kethubah which is in the virtual possession of the husband's heirs, ');">⁵²</span> This proves it. [Reverting to the previous question,]<span class="x" onmousemove="('comment',' Supra 38a, 'Whereby does the first clause etc. ');">⁵³</span> Abaye replied: The first clause [deals with property] that came into her possession while she was awaiting [the decision of] the levir,<span class="x" onmousemove="('comment',' As the levirate bond is not strong enough to give the levir any right over that property, it is generally agreed that she and, in case of her death, her heirs also are entitled to dispose of it in any manner they like. ');">⁵⁴</span> and the latter clause [with such] as came into her possession while she was still with her husband.