[38a - 31 lines; 38b - 39 lines]

1)[line 10]ואין ספק מוציא מידיV'EIN SAFEK MOTZI M'YDEI VADAI - A substantiated claim is given precedence over an unsubstantiated claim

(a)One of rules that a Beis Din follows when settling monetary disputes is "Ein Safek Motzi m'Ydei Vadai." According to this rule, if one party certainly has rights over part of a disputed object, and the other party cannot prove that it has rights over any part of that object, the first party wins the case.

(b)When saying "rights," we mean that the party not only owns an indisputable part of the object, but that the party knows why it owns that part of the object. For instance, if it is unclear which of two brothers (one live, and one dead) is the father of a certain child, and the father of the two brother dies, the live brother can claim title of the entire estate due to the rule of "Ein Safek Motzi m'Ydei Vadai." That is, he knows for certain that a portion of the inheritance is his (since he is clearly a son of the deceased), while the child is uncertain whether he gets half of the estate (as the son of the dead brother) or none of it (as the son of the live brother). On the other hand, if, after the father of the two brothers dies, the dubious child goes to court with the sons of one of the brothers (that is, both of the brothers have already passed away), the dubious child does not win the case. Even though he certainly inherits a portion of the estate (either half, as son of the brother who did not father the other children, or an equal portion to the other children, as son of their father), nevertheless he is not sure why he is inheriting the portion he inherits. He cannot say whether he received it through brother #1 or brother #2. (Rashi DH Hevei Yavam)

(c)Another case in which we apply the rule "Ein Safek Motzi m'Ydei Vadai" is when one claimant has undoubted ownership of the "Guf," or principal, and the only question is whether that claimant owns the "Peiros" (produce or earnings) as well. The one that owns the "Guf" wins the case and is given the "Peiros" as well, because that claimant can claim undoubted title to one aspect of the object under debate (Yevamos 39b).

2)[line 16]דנקאDANKA- a sixth

3)[line 21]ובנכסים הנכנסים ויוצאיןUV'NECHASIM HA'NICHNASIM V'YOTZ'IN IMAH (NICHSEI MILUG)

(a)A woman brings into her marriage two types of possessions, as follows:

1.Possessions that the wife owned before marriage, the values of which were estimated and written in the Kesuvah, to be returned to her in full upon divorce or the husband's death. These are called Nichsei Tzon Barzel ("Iron Flock Properties") because their value does not change between the time of marriage and the time of divorce or the husband's death.

2.Possessions that were not estimated and their values were not specified in the Kesuvah. Upon divorce or the husband's death, the property is returned as is, regardless of its appreciation or depreciation (or deterioration) over the years. These are referred to as Nichsei Milug ("Properties that are Plucked"), because for the duration of the marriage the husband may take ("pluck") the produce (Peiros) of these possessions (e.g. reaping the fruit of a field, or plowing with an ox). However, he may not "use up" the property itself (e.g. by digging trenches in the field or slaughtering the ox).

(b)When a woman marries a second husband based upon testimony that her first husband is dead, her first husband loses his rights to use the produce that grows from these Nichsei Milug. The second husband never becomes entitled to these Peiros. Even so, the Chachamim decreed that the woman does not have the right to collect from either husband the value of the Peiros that the husbands used. (The reason these husbands are not entitled to the products of the Nichsei Milug is because a person is not obligated to redeem his wife, if captured, unless he is permitted to be with her until she was captured. The products of Nichsei Milug were only given to a husband in return for accepting the obligation to redeem her if captured, so the products of these fields from the time of the second marriage do not belong to either husband.)

4)[line 23]עם יורשי האבIM YORSHEI HA'AV- that is, with the heirs of the Yevamah - who normally are her father and his family. (The reason the Mishnah does not say "the Yorshim of the woman is because from that terminology it would not be clear whether it refers to the woman's father or her Yavam. -NIMUKEI YOSEF)


5)[line 14]אדמפלגי בגופהAD'MIFLIGEI B'GUFAH- instead of arguing about the land itself

6)[line 26]שטר העומד לגבות כגבוי דמיSHTAR HA'OMED LIGAVOS K'GAVUY DAMI

(a)Ownership of a Shtar (a document of debt or deed) which gives a person title over property is equated to ownership of the property itself. Just as the person who owns and uses the property has a "Chazakah" over that property, so, too, the person who owns a document that gives him title to property has a "Chazakah" over that property.

(b)Even those who argue and do not consider a normal Shtar strong enough to give its owner a "Chazakah" over the property, admit that a Kesuvah (marriage contract) is stronger than a normal document and gives its bearer a "Chazakah" over the property promised her therein. The reason for this is "Mishum China" (see below #8).

7)[line 32]ואביי לותביה מהאV'ABAYE, LOSVEI ME'HA- Why did Abaye not ask Rabah his question from the Mishnah in Sotah, which is in the same order of Mishnayos (Nashim) as our Mishnah, as opposed to the question that he did ask from the Mishnah in Bava Basra, which is in the order of Nezikin?

8)[line 32]משום חינאMISHUM CHINA- (a) in order for men to find grace [in the eyes of women so that they will agree to marry them] (RASHI); (b) [the Rabanan decreed that women would collect their Kesuvos in all cases of doubt] in order for women to agree to serve their husbands and to find favor in the eyes of their husbands (ARUCH)

9)[line 32]ולותביה כתובה דמתניתיןV'LOSVEI KESUVAH D'MASNISIN- and let Abaye ask his question from the Kesuvah mentioned in the Mishnah (in which Beis Shamai appears to say that the Kesuvah is divided between the heirs of the Yavam and the heirs of the Shomeres Yavam, which is also a case of Safek Motzi m'Ydei Vadai)

10)[line 35]ושבקהV'SHAVKAH- and the Tana left it unanswered