1) THE PROPERTY OF A MAN WHO DIES CHILDLESS AND LEAVES HIS WIFE AS A YEVAMAH
QUESTION: The Mishnah discusses the status of the property of a man who dies childless, leaving his wife as a Shomeres Yavam who must perform either Yibum or Chalitzah. Rebbi Meir maintains that the Peiros (produce) that have been harvested from the deceased man's fields are sold and land is purchased with the profits. That land is set aside for the Yevamah's Kesuvah. When Peiros are still attached to the field, Beis Din evaluates the difference in the value of the field with Peiros and the value of the field without Peiros, and land is purchased with the amount of the difference. The Yavam keeps the Peiros of the land, and the land itself is set aside for the Yevamah's Kesuvah.
The Chachamim disagree with Rebbi Meir's ruling in the case of Peiros that are no longer attached. Since the Peiros are Metaltelin (mobile property), they are not designated for the Kesuvah unless the woman was in possession of them during her husband's lifetime. The Chachamim rule that Peiros that are attached to the ground "belong to him" ("Shelo"), implying that the Peiros are given to the Yavam and are not designated for the Yevamah's Kesuvah.
The Gemara is perplexed by this ruling. Any land left by the deceased brother is designated for the Yevamah's Kesuvah. The Yavam may not sell it (see Insights to 81b). Why do the Chachamim say that it belongs to the Yavam?
Reish Lakish answers that the Mishnah should read "Shelah" -- the Peiros "belong to her" and not to him. RASHI explains that according to Reish Lakish, Rebbi Meir and the Chachamim do not argue about Peiros that are attached to the land.
If the Chachamim in the Mishnah maintain that the Peiros "belong to her" and they do not disagree with Rebbi Meir in the matter, why do they discuss Peiros that are attached to the ground in the first place?
Moreover, if they are discussing the matter of attached Peiros and they agree with Rebbi Meir, why do they word their ruling differently than Rebbi Meir? Instead of saying "Shelah," the Peiros "belong to her," they should say that the Peiros are sold in order to purchase land from which the Yavam may keep the Peiros. (TOSFOS YOM TOV)
(a) The TOSFOS YOM TOV explains that the wording of the Chachamim and Rebbi Meir (until the point at which the Chachamim discuss detached Peiros) is based on the Mishnah earlier (79a). There, the Chachamim do argue with Rebbi Meir in the case of Peiros that are attached when they say that they "belong to him" ("Shelo"), and they do not say that the Peiros are used to purchase land. The Tana of the Mishnah here uses a parallel wording, as is commonly found in Mishnayos. The Tana wants the style of the Mishnayos to conform, even though it is not necessary to record the view of the Chachamim here with regard to attached Peiros since they do not disagree with Rebbi Meir. The only difference in this Mishnah is that the Chachamim here rule that the Peiros "belong to her" ("Shelah") and not to him ("Shelo"). This difference caused the Tana to mistakenly write "Shelo" in place of "Shelah."
(b) The MAHARSHA answers that had it not been for Rashi's explanation, he would have suggested that the Chachamim indeed disagree with Rebbi Meir in the case of attached Peiros. Rebbi Meir maintains that immediately upon the death of the husband Beis Din evaluates how much more the field is worth with the Peiros than without them. The fruit that grows after that time is not evaluated for the woman and given to her, but rather it is given to the Yavam.
The Chachamim disagree and say simply "Shelah," the Peiros "belong to her," referring to all of the fully-grown fruit. They maintain that even the fruit that ripens after the death of the husband is also designated for the Kesuvah.
While this approach explains the wording of the Mishnah, the logic of this approach is not clear. Since the Peiros grew after the death of the husband, why should it be designated for the Kesuvah?
The TOSFOS RID explains the Mishnah in a manner similar to the Maharsha, but instead of saying that the Chachamim give the woman the Peiros that ripen after the husband's death he says that the Chachamim give only the fruit on the tree as they are at the time of the husband's death. The Chachamim differ with Rebbi Meir with regard to how the Peiros are evaluated. Rebbi Meir says that Beis Din evaluates them by appraising the difference in value of the field as a whole with Peiros and without Peiros. The Chachamim say that Beis Din evaluates the value of the Peiros themselves (if they were to be sold in their semi-ripe condition). Although this sum will be slightly greater than Rebbi Meir's sum (see Rashi to Bava Kama 55b, DH Shamin), the Chachamim are not concerned that they are giving the woman slightly more than the fruit might actually be worth, since land is purchased with that money and the husband eats the Peiros of that land in any case.
(c) RAV ELAZAR MOSHE HA'LEVI HOROWITZ suggests the opposite approach of the Maharsha. The Gemara in Bechoros (52a) explains that although, in the case of an ordinary loan, the lender may collect from the increase ("Shevach") which accrued to the borrower's field (which was designated as security for the loan) even after the borrower sold the field, a Kesuvah, on the other hand, may be collected only from the property as it was worth at the time the husband died, before the heirs inherited it. The reason is that the Chachamim exercised leniency with the family of the husband with regard to the collection of the Kesuvah. This implies that if the Halachah of Kesuvah would be mid'Oraisa, the Kesuvah could be collected from the Shevach of the property as well.
Rebbi Meir, who indeed maintains that the Kesuvah is d'Oraisa (Kesuvos 56b), rules that Beis Din evaluates the fully grown fruits including what grew after the death of the husband. The Chachamim, however, maintain that the Kesuvah is d'Rabanan, and therefore they rule that the Peiros are designated to the Kesuvah only in the state in which they were at when the husband died.
According to this explanation, both expressions -- "Shelo" and "Shelah" -- are correct. The Peiros, after they are grown, belong in part to the Yavam and in part to the Yevamah. Hence, the Tana is justified in saying "Shelo" -- part of the fruit (that which ripened after the husband's death) belongs to the Yavam. When Reish Lakish says that the Chachamim mean "Shelah," he refers to the other part of the Peiros (that which grew before the husband's death), which belongs to the Yevamah. Reish Lakish is explaining, and not changing, the wording of the Mishnah. (The word "Teni" does not necessarily mean that the Mishnah should be emended, but rather it means that this is the way the Mishnah should be explained. See Tosfos to Kesuvos 4b, DH u'Mi; Yoma 40a, DH Ha; Bava Kama 49b, DH v'Teni.)
(d) Another explanation may be suggested that conforms with Rashi's explanation that Rebbi Meir and the Chachamim do not argue. When Reish Lakish says "Teni," he does not mean to change the wording of the Mishnah. If the Mishnah's wording, "Shelo," is in error, why does the Gemara preserve the mistake and then change it? Rather, the Mishnah might mean as follows.
When the Chachamim say that the attached Peiros are "Shelo" ("his"), they do not mean that they belong to the Yavam. They mean that they belong to his deceased brother. Since they are part of the deceased brother's property, they are designated for the Kesuvah (to her, as Reish Lakish says)!
The Chachamim state that the Peiros belonged to the deceased brother in order to explain the reasoning behind their argument with Rebbi Meir in the case of detached Peiros. Why is it that the Chachamim do not allow the woman to collect her Kesuvah from the Metaltelin which the Yavam inherits? The reason is that the obligation to pay the Kesuvah rests on the woman's husband and not on those who inherit his property. Whatever they inherit becomes their property and no longer belongs to the deceased husband, and it is not designated for the payment of the Kesuvah. Only when there is a Shibud on the property does the property remain reserved for the payment of the Kesuvah (or repayment of the loan) even after the man's death. Since there is a Shibud on it from the time that the husband was alive, it is as if the woman is collecting it from her deceased husband and not from the heirs. Metaltelin, mobile property, on the other hand, can have no Shibud upon them, and therefore she cannot collect her Kesuvah from them since such property would be coming from the heirs and not from the husband.
This is what the Chachamim mean when they say that the attached Peiros are "Shelo," they belong to him -- the Peiros that are attached to the land are coming from the deceased husband and therefore they may be collected for the Kesuvah. In contrast, the detached Peiros do not come from the deceased husband but from his heirs, and thus they are not reserved for the Kesuvah.
This explains the reason for why the woman may collect even from detached Peiros if she took possession of them before the Yavam, as the Chachamim in the Mishnah rule. Rashi (80b, DH Kol ha'Kodem) explains that the Yevamah receives the Peiros only if she took them before her husband died. Since she took possession of the Peiros while her husband was alive, the payment of the Kesuvah comes from the husband and not from his heirs, and therefore they are considered to have been set aside for her Kesuvah. (M. KORNFELD)