Daf Yomi - Yevamos 38 - Highlights

The Gemora discusses another case of inheritance: The uncertain child and the yavam come to inherit the possessions of the grandfather (the father of the deceased and the yavam). The uncertain one says: “I am the son of the deceased, and I am entitled to half of the estate.” (The deceased son inherits “while in the grave,” and he passes it on to his son, the uncertain one.) The yavam counters: “You are my son, and you have no claim on my father’s estate.”

The Gemora rules that the yavam receives the entire estate, for he is a definite inheritor of the grandfather (his father), and the uncertain one is only a possible heir, and the principle is that an uncertain claim cannot take away from a definite claim. (38a)

The Gemora discusses another case: The uncertain child and the sons of the yavam come to inherit the possessions of the grandfather (the father of the deceased and the yavam). The uncertain one says: “I am the son of the deceased, and I am entitled to half of the estate.” The sons of the yavam counter: “you are our brother, and you should receive an equal share together with us.

The Gemora rules: They should take half of the estate. A third of the estate he should take. The remaining sixth should be divided among them. (38a)


The Mishna states: If while a woman was awaiting yibum, she inherited property from her father, and subsequently sold it or gave it away, Beis Shamai and Beis Hillel agree that it is valid. (Although Beis Hillel rules that a woman who is an arusah may not sell property in which she inherited, the yevamah is permitted to do so.)

The Mishna asks: If she died, what shall they do with her kesuvah and with the property which comes in and goes out with her? (Does the yavam inherit her in the same manner that a husband inherits his wife?) Beis Shamai says: The husband’s heirs divide it with the father’s heirs (the woman’s inheritors). Beis Hillel disagrees: The property remains with those that presently possess it. The kesuvah goes to the husband’s heirs. The property which comes in and goes out with her goes to the father’s heirs.

The Mishna concludes: If the yavam marries her, she is regarded as his wife in every respect, except that the obligations stemming from the kesuvah rests upon the property of her first husband. (38a)

The Gemora asks: Why do Beis Shamai and Beis Hillel agree in the first part of the Mishna and argue in the latter part?

Ula answers: The first part of the Mishna is referring to a case where she fell for yibum as an arusah (her first husband died while they were only betrothed), and the latter part of the Mishna is referring to a case where she fell for yibum as a nesuah.

The Gemora explains: The zikah-attachment of an arusah to a yavam makes her like a possible arusah, and the zikah-attachment of a nesuah makes her a possible nesuah. (38a – 38b)

Rabbah asked: If Ula’s explanation is correct, why does the Mishna have to state a case in which she died, let Beis Shamai and Beis Hillel argue while she is alive in respect to the distribution of the produce? (Beis Shamai would rule that she and the yavam would divide the produce because she is a possible nesuah and Beis Hillel would rule that we apply the principle of chazakah and the produce would remain in her family, and she would have exclusive rights to the produce.)

Rabbah offers a different explanation of the Mishna: Both parts of the Mishna are discussing cases where she fell for yibum as a nesuah, and the zikah-attachment of a nesuah makes her a possible nesuah. The first part of the Mishna is discussing a case where she is alive (and the principle of the property certainly belongs to her); she has a definite claim and there claim is an uncertain one (since she is only possibly a nesuah). The principle is that an uncertain claim cannot take away from a definite claim. The latter part of the Mishna is discussing a case where she died, and the husband’s heirs and her father’s heirs are coming to inherit her inherited properties. (If she would be regarded as a nesuah, the husband’s heirs would inherit her properties; if she is not a nesuah, the father’s heirs would inherit her properties.) Since both claims are uncertain, they divide the property. (38b)

The Gemora asks on Rabbah: Is it true that Beis Shamai holds that an uncertain claim cannot take away from a definite claim; didn’t we learn in a Mishna in Bava Basra (157a) otherwise? The Mishna stated: If a house fell down on a person and his father, killing both of them, and we are uncertain which one of them died first. The son owed money for a wife’s kesuvah or to another creditor (and he died without any personal assets). The father’s heirs claimed that the son died first (and he doesn’t inherit anything from the father) and afterwards the father died. The creditor claims that the father died first (and the son inherits a share of the father’s assets) and afterwards the son died. Beis Shamai maintains that the father’s heirs and the creditors divide the money. The Gemora concludes its question: The father’s heirs have a definite claim and the creditors claim is an uncertain one; and nevertheless, Beis Shamai rules that an uncertain claim can take away money from a definite claim?

The Gemora answers: Beis Shamai maintains that a debt from a document which awaits collection is considered as if it has already been collected (and the creditors also have a definite claim). (38b)

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