Yevamot 37b:6יבמות ל״ז ב:ו
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37bל״ז ב

הלכתא אהלכתא

one halakha, i.e., that the halakha in this case is in accordance with the opinion of Rav, and another halakha, i.e., that the halakha is always decided in accordance with the opinion of Rabbi Eliezer ben Ya’akov.

אמר אביי מנא אמינא לה דכל ספיקא לר' אליעזר בן יעקב כודאי משוי ליה

Abaye said: From where do I say that concerning anyone whose status as a mamzer is uncertain, according to the opinion of Rabbi Eliezer ben Ya’akov they are treated equivalently to one who is definitely a mamzer?

דתניא ר' אליעזר בן יעקב אומר הרי שבא על נשים הרבה ואין יודע על איזהו מהן בא וכן היא שבאו עליה אנשים הרבה ואינה יודעת מאיזה מהן קבלה נמצא אב נושא את בתו ואח נושא את אחותו ונתמלא כל העולם כולו ממזרין ועל זה נאמר (ויקרא יט, כט) ומלאה הארץ זמה

As it is taught in a baraita that Rabbi Eliezer ben Ya’akov says: With regard to one who engaged in intercourse with and impregnated many women, but he does not know with which women he had intercourse, and similarly, with regard to a woman, if many men had intercourse with her and she became pregnant, but she does not know from which man she received the seed that caused her to become pregnant, since the identities of the parents of those children are not known, it could emerge that a father marries his daughter, and a brother marries his sister. And in this way, the entire world could become filled with mamzerim. And concerning this, it is stated: “And lest the land become full of lewdness” (Leviticus 19:29). Abaye demonstrates his claim from the fact that even though it is not certain that the children in this situation are mamzerim, nevertheless, Rabbi Eliezer ben Ya’akov labels them as mamzerim and not as those whose status as a mamzer is uncertain.

ורבא אמר לך הכי קאמר זו מה היא

And Rava could have said to you: This is what the verse is saying: The word “lewdness [zima]” can be understood as an acronym of the words: Zo ma hi, meaning: What is this. It is plausible to say that Rabbi Eliezer ben Ya’akov’s citation of this verse indicates that he regards their status to be uncertain.

יתר על כן אמר ר' אליעזר בן יעקב לא ישא אדם אשה במדינה זו וילך וישא אשה במדינה אחרת שמא יזדווגו זה לזה ונמצא אח נושא את אחותו

The Gemara cites the continuation of the baraita: Furthermore, Rabbi Eliezer ben Ya’akov said that even in marriage, one should be careful not to create a situation that could lead to the birth of mamzerim. Therefore, a man should not marry a woman in this country and then go and marry another woman in a different country, lest a son from one marriage and a daughter from the other, unaware that they are both children of the same father, unite with one another, and it could emerge that a brother marries his sister, the children of whom would be mamzerim.

איני והא רב כי איקלע לדרדשיר [מכריז] ואמר מאן הויא ליומא ורב נחמן כי איקלע לשכנציב [מכריז] ואמר מאן הויא ליומא

The Gemara asks: Is that so; is there really such a prohibition? But didn’t Rav, when he happened to come to Dardeshir, make a public announcement saying: Which woman will be my wife for the day, i.e., for the duration of his visit? Since his wife did not accompany him to Dardeshir, he wished to be married to another woman while he was there, in order to avoid a situation that could lead him to having forbidden thoughts. And also Rav Naḥman, when he happened to come to Shakhnetziv, made a public announcement saying: Which woman will be my wife for the day? It would appear, from the fact that both Sages married wives in two different places, that there is no prohibition in doing so.

שאני רבנן דפקיע שמייהו

The Gemara rejects the proof: Sages are different, as their names are renowned, and therefore their children are always identified by their connection to their father. Therefore, Rabbi Eliezer ben Ya’akov’s concern does not apply to them.

והאמר רבא תבעוה לינשא ונתפייסה צריכה לישב שבעה נקיים

The Gemara examines Rav and Rav Naḥman’s actions: But didn’t Rava say: With regard to a woman who had an offer of marriage and accepted, the emotional excitement may have caused her to have a flow of menstrual blood, which would making her ritually impure and prohibit her from engaging in intercourse. Even if she was unaware of any flow, she must consider the possibility that it occurred. To purify herself, she needs to wait seven consecutive days that are clean from any flow of menstrual blood and then immerse in a ritual bath. Only then may she marry. If so, how could Rav and Rav Naḥman marry women on the day they arrived?

רבנן שלוחייהו הוו משדרי ומודעי להו ואיבעית אימא לרבנן יחודי בעלמא הוא דמייחדי להו דאמר מר אינו דומה מי שיש לו פת בסלו למי שאין לו פת בסלו

The Gemara explains: These Sages would send messengers seven days ahead of their arrival and they would inform the women of the Sage’s arrival. In this way, the woman who agreed to marry the Sage would have time to count the seven clean days. And if you wish, say that the Sages’ intentions were merely to be in seclusion [meyaḥadi] with the woman but not to engage in intercourse with her. Therefore, it was permitted to marry her even if she became ritually impure. Being in seclusion with a woman was sufficient to help the Sages avoid any forbidden thoughts, as the Master said: One who has bread in his basket is incomparable to one who does not have bread in his basket, i.e., just as the knowledge that food is readily available is sufficient to psychologically alleviate one’s feelings of hunger, so too, the knowledge that one’s sexual desires could be met lessens the strength of the desire itself.

תנא רבי אליעזר בן יעקב אומר לא ישא אדם אשתו ודעתו לגרשה משום שנאמר (משלי ג, כט) אל תחרש על רעך רעה והוא יושב לבטח אתך:

The Gemara cites an additional statement of Rabbi Eliezer ben Ya’akov: It is taught in a baraita that Rabbi Eliezer ben Ya’akov says: A man should not marry his wife when at the same time his intention is to divorce her, because it is stated: “Do not devise evil against your neighbor, as he dwells securely with you” (Proverbs 3:29). It is wrong for one to intend to undermine the feelings of security that another has with him.

ספק ויבם שבאו לחלוק בנכסי מיתנא

§ The mishna raises a case in which a yavam consummated the levirate marriage with his yevama and seven months later she gave birth. With respect to that child, there is an uncertainty whether he is the child of the deceased brother or whether he is the child of the yavam. The Gemara discusses the ramifications of this uncertainty in a dispute concerning inheritance. The case concerns one whose identity as the son of the deceased is uncertain, and a yavam who consummated the levirate marriage with the yevama, who both came to divide up the possessions of the deceased brother and each one claims to be the sole heir.

ספק אמר אנא בר מיתנא הוא ונכסי דידי הוא ויבם אמר את בראי דידי את ולית לך ולא מידי בנכסי הוי ממון המוטל בספק וממון המוטל בספק חולקין

The one of uncertain descent said: I am the son of the deceased, and therefore, as the only heir, his possessions are mine. And the yavam said to him: You are my son, and you have absolutely no rights to the possessions; rather, by virtue of the fact that I consummated the levirate marriage with the widow of the deceased, I should inherit him. The Gemara rules on this case: This is a case of property of uncertain ownership, as there is no way to determine who is the rightful heir, and the halakha is that property of uncertain ownership the claimants divide up between them.

ספק ובני יבם שבאו לחלוק בנכסי מיתנא ספק אמר ההוא גברא בר מיתנא הוא ונכסי דידי הוא בני יבם אמרי את אחינו את ומנתא הוא דאית לך בהדן

The Gemara brings another case, that of one concerning whom there is uncertainty whether he is the son of the deceased or of the yavam and the sons of the yavam, who consummated the levirate marriage with the yevama and has since died, who came to divide up the possessions of the deceased, and each one makes claim to the inheritance. The one of uncertain descent said: That man, referring to himself, is the son of the deceased, and therefore, as his sole heir, his possessions are mine. And the sons of the yavam said to him: You are our brother, and our uncle, the deceased, was not survived by any offspring and so by virtue of our father’s levirate marriage he inherited our uncle’s possessions, and now that our father has died and we are dividing up his possessions you have a right to inherit only a portion of the inheritance together with us.

סבור רבנן קמיה דרב משרשיא למימר מתניתין היא דתנן הוא אינו יורש אותם והם יורשין אותו

The Rabbis who studied before Rav Mesharshiyya thought to say: This case is analogous to a case in a mishna, as we learned a similar case in a mishna (100a) in which a woman gave birth shortly after remarrying and there is uncertainty whether the child’s father is the first or second husband. The mishna considers a case in which the husbands died and were each survived by a set of sons: If a son from either set died, the other sons of that set will inherit from him because as brothers they have an uncontested claim to the inheritance. However, he, the son of uncertain descent, does not inherit from them because his claim as a brother is uncertain and is therefore not powerful enough to allow him to take part of the inheritance from the other sons. However, if the son of uncertain descent died, they, the sons of both husbands, will jointly inherit from him. The claims of each set of sons to be his brothers are equally uncertain; therefore, since there is no one who has a definite claim to his inheritance, his possessions are split between them.

והכא איפכא התם אמרי ליה אייתי ראיה ושקול

The Rabbis qualify their comparison of the cases: But here, the positions are in reverse, as follows: There, in the case of the mishna, when one of the sons dies, they, the other sons of that set, can say to him, the son of uncertain descent: Bring proof that you are actually a son of our father and only then can you take a portion. Since he cannot prove this, he will not receive any of the inheritance.

הכא אמר להו אייתו ראיה ושקולו

However, here, in the case where the son of uncertain descent is in dispute with the sons of the yavam, he, the son of uncertain descent, can say to them: Bring proof that I am not the son of the deceased, and only then can you take a portion together with me. The Rabbis claim that the principle in both cases is identical: When one party has an uncontested claim to the inheritance, and another party advances a claim to receive part of the inheritance that is based on an uncertainty, the uncertain claim is not accepted. In the mishna’s case, it is the son of uncertain descent who has an uncertain claim. The Rabbis suggest that the reverse is true in the Gemara’s case: The son of uncertain decent has an uncontested claim to the inheritance because whether he is the son of the first or second husband, he certainly has a right to some inheritance. It is the sons of the yavam who have an uncertain claim because they have a right to the inheritance only if the son of uncertain decent is actually their brother.

אמר להו רב משרשיא מי דמי התם אינהו ודאי ואיהו ספק הכא אידי ואידי ספק

Rav Mesharshiyya said to them: Is the case in the mishna really comparable? There, in the mishna’s case, when one of the sons dies, they, the other sons in that set, have a definite claim to the inheritance, since their claim is based on the fact that they are the dead son’s brothers, which is certainly true, and he, the son of uncertain descent, only has an uncertain claim. However, here, each party has only an uncertain claim. Although the son of uncertain descent claims that ultimately, whatever the nature of his relationship with the deceased is, he should have the right to inherit, nevertheless, since it is not actually known what that relationship is, his claim in reality is merely a composite of uncertain claims.

אלא אי דמיא למתני' [להא] דמיא לספק ובני יבם שבאו לחלוק בנכסי יבם גופיה דהתם אמרי ליה אייתי ראיה דאחונא את ושקול

Having rejected the analogy offered by the Rabbis, Rav Mesharshiyya offers his own analogy to the case in the mishna that the Rabbis cited: Rather, if there is a case that is analogous to the case in the mishna, then it is to this following case that it is analogous: It is comparable to a case in which following the levirate marriage a son was born, and there is uncertainty whether he is the son of the deceased or of the yavam, and that son of uncertain descent and the sons of the yavam come to divide up the possessions of the yavam himself. As there, those who are unquestionably the sons of the yavam have a definite claim; therefore, they can say to him, the son of uncertain descent: Bring proof that you are actually our brother and only then can you take a portion. Since he cannot prove this, he will not receive any of the inheritance.

ספק ובני יבם שבאו לחלוק בנכסי יבם לבתר דפלג יבם בנכסי מיתנא

The Gemara brings yet another case, that of one concerning whom there is an uncertainty whether he is the son of the deceased or of the yavam and the sons of the yavam, i.e., the sons of the man who consummated the levirate marriage with the yevama and has since died, who came to divide up the possessions of the yavam after the yavam had already divided up the possessions of the deceased brother between himself and the son of uncertain descent, as per the Gemara’s ruling in the first case above.

בני יבם אמרי אייתי ראיה דאחונא את ושקול אמר להו ספק מה נפשייכו אי אחוכון אנא הבו לי מנתא בהדייכו ואי בר מיתנא אנא הבו לי פלגא דפלג אבוכון בהדאי

The yavam then died and his sons and the son of uncertain descent each made a claim to the inheritance: The sons of the yavam say to the son of uncertain descent: Bring proof that you are our brother, and only then can you take a portion. The son of uncertain descent said to them: Whichever way you look at it, I should receive a portion of the inheritance. If you assume that I am your brother, then give me a portion of the inheritance together with all of you, and if you assume that I am the son of the deceased, then give me the half of the possessions that your father took when he divided up the possessions with me upon the deceased’s death, because if you assume I am his son, then I am his sole heir and your father never had any rights to his possessions.

ר' אבא אמר רב קם דינא ר' ירמיה אמר הדר דינא

The son of uncertain descent’s claim assumes that the original verdict to divide up the possessions of the deceased between the two sides may be reexamined in light of later developments. This assumption, however, is subject to a dispute: Rabbi Abba said that Rav said: The original verdict stands, i.e., the original division of the deceased’s possessions is considered a closed matter, and the new dispute concerning the possessions of the yavam is considered independently of it. Accordingly, the son of uncertain descent’s claim cannot succeed, and so he receives no portion of the inheritance of the yavam. Rabbi Yirmeya said: The original verdict is reconsidered in light of the new circumstances, and therefore in this case the son of uncertain descent can put forward his undeniable claim to some of the possessions of the yavam based on the original uncertainties that existed with regard to the division of the deceased’s possessions.

לימא בפלוגתא דאדמון ורבנן קמיפלגי דתנן מי שהלך למדינת הים ואבדה לו דרך שדהו אדמון אמר ילך בקצרה וחכ"א יקח לו דרך במאה מנה או יפרח באויר

Let us say that Rabbi Abba and Rabbi Yirmeya disagree over the dispute between Admon and the Rabbis. As we learned in a mishna (Ketubot 109b): With regard to one who owns a field and has the rights to a path that passes through land belonging to another, and he traveled to a country overseas, and when he returned the path to his field was lost, i.e., he forgot where the path was located, Admon says: He may go only on the shortest path to his field, as although it is not known where the path is, he definitely did have a path, and therefore at the very least he has a right to the shortest path. The Rabbis say: He must either purchase for himself a new path for whatever price is asked, even if it is one hundred dinars, or he will have to fly through the air to reach his field, i.e., as long as he cannot prove where the original path was, he has no rights to any other path.

והוינן בה לרבנן שפיר קאמר אדמון ואמר רב יהודה אמר רב הכא במאי עסקינן כגון שהקיפוה ארבעה בני אדם מארבע רוחות

And we discussed the mishna and thereby established the parameters of the dispute as follows: It is difficult for the Rabbis because Admon is saying well, i.e., the logic of his opinion would seem to be compelling. And in defense of the Rabbis’ opinion, Rav Yehuda said that Rav said: With what are we dealing here? It is with a case where his field was surrounded by four individuals who owned the land on each of its four sides. Therefore, he cannot demand a path from any one of the surrounding owners, since each one can deflect his claim by suggesting that the path might have passed through one of the other owners’ land.

א"ה מ"ט דאדמון ואמר רבא בארבעה דאתו מכח ארבעה וארבעה דאתו מכח חד כולי עלמא לא פליגי דמצו מדחי ליה

However, this creates a further difficulty: If so, that the surrounding land is owned by different people, what is Admon’s rationale for ruling that the owner of the field has a claim to the shortest path? And in order to justify Admon’s opinion, Rava said: With regard to a case in which there are four current owners who came to own their land on the basis of purchase from four previous owners, i.e., each of the current owners acquired their land from a different previous owner, and also in a case in which there are four current owners who came to own their land on the basis of purchase from one previous owner who originally owned all four pieces of land, everyone agrees that the current owners are able to deflect him and his claim to a path.

כי פליגי בחד דאתי מכח ארבעה אדמון סבר מצי א"ל מכל מקום דרכי גבך הוא ורבנן סברי דא"ל אי שתקת שתקת ואי לא מהדרנא שטרא למרייהו ולא מצית לאשתעויי דינא בהדייהו

When they disagree, it is in a case in which there is only one current owner of all four pieces of land, who came to own his land on the basis of purchase from four previous owners. Admon holds that the owner of the field can say to the current owner of the surrounding land: Whichever way you construe the case, my path to my field is somewhere with you in the surrounding land. And the Rabbis hold that the owner of the surrounding land can deflect this claim because he can say to him: If you do not press your claim and are silent, then be silent, and I will sell you a path at a reasonable price. But if not, and you insist on pressing your claim, then I will return the bills of purchase of the land to their previous owners, and then you will not be able to successfully engage in a legal dispute with them, as each one could claim that the path went through one of the other pieces of land not owned by them.

לימא ר' אבא דאמר כרבנן

Having established the parameters of the dispute, the Gemara suggests: Let us say that the statement of Rabbi Abba, who said that the original verdict stands, is in accordance with the opinion of the Rabbis. When the owner of the field forgot where his path was located, the surrounding land was owned by four different owners, and therefore at that time the verdict was that he had no ability to successfully claim his path. The Rabbis apparently assume that that verdict stands, and therefore the field owner is considered to have lost any rights to the path. Consequently, even if the surrounding pieces of land are later purchased by a single person, the owner of the field cannot make a claim for his path.

ור' ירמיה דאמר כאדמון

The Gemara continues: And the statement of Rabbi Yirmeya, who said that the original verdict is repealed, is in accordance with the opinion of Admon. Admon apparently assumes that although the original verdict was that the field owner has no ability to successfully claim his path, nevertheless, that does not mean he loses his rights to the path. Rather, once the situation changes and the surrounding pieces of land are purchased by a single person, the original uncertainty is revived to allow him to make a claim for at least the shortest path to his field.

אמר לך ר' אבא אנא דאמרי אפילו כאדמון עד כאן לא קאמר אדמון התם אלא משום דא"ל ממה נפשך

The Gemara rejects the comparison: Rabbi Abba could have said to you: When I stated my ruling, it was even in accordance with the opinion of Admon. Admon states his ruling only there, in the case of the lost path, because the field owner said to the owner of the surrounding land: Whichever way you look at it,