QUESTION: Abaye and Rava disagree about how to explain the difference between Beis Shamai's ruling in the first case of the Mishnah and his ruling in the second case. In the first case of the Mishnah, a Shomeres Yavam inherited property and is still alive. Beis Shamai and Beis Hillel agree that she has complete control over the property and may sell it l'Chatchilah. In the second case of the Mishnah, the Shomeres Yavam inherited property and then died. Beis Shamai rules that the property is divided between her family ("Yorshei ha'Av") and her Yavam's family ("Yorshei ha'Ba'al"). The Gemara asks why Beis Shamai considers the property to be completely in her hands only when she is alive but not after she dies (such that it would remain with her family). Why does Beis Shamai rule that there is a doubt about who has control over the property after her death?

Abaye explains that in the first case of the Mishnah, the property came to her after her husband died, when she was already a Yevamah. In the second case, the property came to her when she was still a Nesu'ah, fully married to her husband (before he died). While she is a Nesu'ah, her husband has control over her property and, according to both Beis Shamai and Beis Hillel, "his hand is like her hand" ("Yado k'Yadah") -- his hold on the property is as strong as hers. When the husband dies, according to Beis Hillel the hold of the husband becomes weaker and she is left with complete control over the property. According to Beis Shamai, his hold remains the same and thus they (the Yevamah and the family of her deceased husband) still have an equal hold on the property (and thus, when she dies, it is divided between her heirs and her husband's heirs).

Rava disagrees with Abaye and says that the difference between the two cases depends on other factors. In both cases in the Mishnah, the property came to her when she was a Shomeres Yavam, after the death of her husband. The difference between the cases is that in the first case the property came to her before she did Ma'amar, while in the second case it came to her after she did Ma'amar. Beis Shamai -- who maintains that Ma'amar is Koneh and gives her the status of a Safek Nesu'ah -- says that the property is divided among the two families because of the Safek. Beis Hillel, in contrast, maintains that Ma'amar does not effect any Kinyan with the woman and thus she retains full control over the property and may sell it. (See Chart.)

The Gemara questions Abaye's reasoning. According to Abaye, why does the second part of the Mishnah need to discuss a case in which the woman died? Beis Shamai would rule that the families divide the produce of the property even when the Shomeres Yavam is still alive (because "his hand is like her hand" even after the husband's death), while Beis Hillel would rule that the produce goes to the Yevamah (because "her hand is stronger" after her husband's death). Despite its question, the Gemara concludes that the Halachah follows Abaye.

Why does the Gemara ask its question specifically on the explanation of Abaye? The same question applies to Rava's explanation as well! Rava says that in the second case of the Mishnah, Beis Shamai rules that the woman's family and the Yavam's family divide the property because Ma'amar was done. According to Rava, however, the ruling of Beis Shamai applies regardless of whether or not the woman died. Ma'amar gives the Yavam a stronger hand according to Beis Shamai, even when the Yevamah is still alive. Why, then, does the Mishnah say specifically that if she died Beis Shamai says that they divide the property, when he would say that they divide the produce of the property even when she is still alive (since Ma'amar makes her a Safek Nesu'ah)? (TOSFOS)

ANSWER: TOSFOS (DH Af Al Gav) and other Rishonim explain as follows. According to Rava, Beis Shamai maintains that Ma'amar creates a situation of "Safek Nesu'ah." Therefore, when the woman is alive the case is decided in her favor because of the principle of "Ein Safek Motzi mi'Yedei Vadai" -- the definite ownership of the Yevamah (on the Guf of the property) overrides the doubtful claim of the Yavam (to the Peros).

If this principle is the basis for Rava's explanation, why does Rava not suggest that the first part of the Mishnah also refers to a case in which the Yavam performed Ma'amar, but since the Yevamah is still alive Beis Shamai agrees with Beis Hillel that the Yevamah is entitled to the property in question?

Tosfos explains that Rava does not suggest that Ma'amar was done in the first case of the Mishnah because Rava maintains that although the principle of "Ein Safek Motzi mi'Yedei Vadai" allows her to retain control of the property, it is not powerful enough to give her such total control over the property that she may sell it l'Chatchilah (as Beis Shamai rules). If Ma'amar would have been done and the woman would still be alive, she would have a hold on the property but she would not be permitted to sell it l'Chatchilah. Therefore, in the first case Ma'amar must have not been done, and that is why she may sell the property l'Chatchilah. (See previous Insight.)

However, if this is the reason why the Gemara does not ask its question on the view of Rava, why does the Gemara not consider this answer for Abaye? The Gemara should answer that when property fell to the woman when she was a Nesu'ah (the second case of the Mishnah according to Abaye) and then her husband died, Beis Shamai maintains that "his hand is like her hand" even after his death, but while the Yevamah is alive the principle of "Ein Safek Motzi mi'Yedei Vadai" applies (because she has a definite claim to the Guf of the property) and the Safek that perhaps her Yavam is now entitled to the produce of the property does not override her definite (Vadai) entitlement. Beis Shamai would therefore say that they do not split the property if she is still alive, and it remains in her possession (because of "Ein Safek Motzi mi'Yedei Vadai") with the restriction that she may not sell it l'Chatchilah (because that principle is not strong enough to give her total control).

The answer to this question is that according to Abaye, Beis Shamai does not consider the control of the property to be subject to doubt. He maintains that they both have equal possession of the produce, and thus it cannot be said that she has a claim of certainty while he has only a doubtful claim (see Rashi to 38b, DH Oseh Safek Nesu'ah). The phrase "his hand is like her hand" ("Yado k'Yadah") implies that they both have the rights to the Peros (produce), and since the Yavam has a Chazakah just as the Yevamah does, the rule of "Ein Safek Motzi mi'Yedei Vadai" cannot be applied -- there is no question about the ownership of the Peros in the first place. Consequently, Beis Shamai should still rule that they split the produce when the Yevamah is alive.

According to Rava, however, her hold is stronger ("Yadah Adifah") even after Ma'amar, even according to Beis Shamai. However, there is a doubt whether or not Zikah gives her the status of a Nesu'ah such that she loses her claim to the Peros. In the case of a doubt, the rule "Ein Safek Motzi mi'Yedei Vadai" applies (when the Yevamah is still alive), and thus Beis Shamai would rule that they do not split the property if she is still alive (even after Ma'amar).

(It is not clear that Rashi (end of 38b, DH Abaye) agrees with this argument. Rashi does not mention that Abaye and Rava disagree with Rabah as to whether or not the rule of "Ein Safek Motzi mi'Yedei Vadai" allows the Yevamah to sell the property l'Chatchilah.)

OPINIONS: The Gemara discusses which form of the fulfillment of the Mitzvah of Yibum is preferable: "Bi'as Katan" or "Chalitzas Gadol." RASHI explains that "Bi'as Katan" refers to an act of Yibum with a younger brother (above the age of thirteen) but not with an actual minor (under the age of thirteen). Rashi proves from the Gemara later that the Gemara here means only a younger brother and not an actual minor. The Gemara later says that in the Mishnah's case of "Talah b'Katan," the Yevamah is not required to wait until the minor reaches adulthood. Rather, she may perform Yibum with an older brother because "we do not delay the performance of a Mitzvah." The Gemara there implies that when the younger brother is a minor (and the Yevamah would have to wait for him to reach adulthood), all agree that it is more preferable for an adult to perform Chalitzah than for the minor to perform Yibum.

Rashi's consideration of the possibility that the Yibum of a minor may be preferable to the Chalitzah of an adult implies that he maintains that a minor may do Yibum, and the question is whether the Chalitzah of a Gadol is preferable or not. If this is true, however, the Gemara is difficult to understand. Why would performing Yibum with a minor delay the performance of the Mitzvah? According to Rashi, a minor may do Yibum, and thus there is no need for the Yevamah to wait until he reaches adulthood.

(a) Rashi apparently follows his own opinion as expressed in Kidushin (19a). Rashi maintains that mid'Oraisa a minor (over the age of nine) may perform Yibum and be Koneh the Yevamah (notwithstanding the fact that if a minor does Yibum with a Yevamah who then commits adultery, she is not Chayav Misah as an "Eshes Ish" since the Torah excludes the wife of a minor from the prohibition of "Eshes Ish). The Chachamim ruled, however, that relations with a minor between the ages of nine and thirteen is considered only like "Ma'amar," and therefore he must perform Yibum again when he reaches the age of thirteen (Yevamos 96b). (This is also the opinion of the RAMBAN to Yevamos 96a, and the MAGID MISHNEH, Hilchos Yibum 5:18.)

Rashi here considers the possibility that the Bi'ah of a minor (between the ages of nine and thirteen) may be preferable to the Chalitzah of a Gadol since mid'Oraisa his act is a valid Yibum. Rashi concludes that since the Chachamim instituted that the Bi'ah of an adult is necessary in order to complete the Yibum, everyone agrees that the Yevamah should avoid entering a situation in which she will need to wait until the minor grows up in order to finish the Mitzvah. Instead, she is instructed to do the Mitzvah now with an adult.

(b) The RITVA cites an opinion of TOSFOS who disagrees with Rashi and says that when the Gemara says "Bi'as Katan" is preferable, it indeed refers to a real minor (of nine years old) and not just to a "younger" brother. The Ritva agrees with this explanation.

This opinion obviously maintains that mid'Oraisa a minor may do Yibum and that his Yibum may even be more preferable than the Chalitzah of a Gadol (despite the fact that the Chachamim required him to perform Yibum a second time upon reaching adulthood). When the Gemara says that in the case of "Talah b'Katan" the Mitzvah is not delayed until the minor comes of age, it refers to a minor who is less than nine years old. A minor under nine certainly cannot be Koneh the Yevamah since his Bi'ah is not considered a Bi'ah, and he must wait until he reaches the age of nine to fulfill the Mitzvah. Since waiting for him would require delaying the Mitzvah, Chalitzah with an adult now is preferable to waiting for the minor to grow up to perform Yibum.

(c) However, TOSFOS later (57b, DH v'Chayavin, and in Kidushin 19a, DH umid'Oraisa) rules that the Bi'ah of a nine-year-old can be Koneh a woman only mid'Rabanan. According to his opinion, when the Gemara here considers that "Bi'as Katan" may be preferable to "Chalitzas Gadol," it clearly refers to a younger brother who is above the age of thirteen; an actual minor cannot fulfill the Mitzvah of Yibum at all. Even if the minor performs Yibum again when he reaches adulthood, the Mitzvah will have been delayed, and thus the Gemara says that Chalitzah is preferable to causing a delay in the fulfillment of the Mitzvah.

The RITVA later in Yevamos (68a) agrees that the Bi'ah of a minor under nine effects only a Kinyan d'Rabanan. However, the Ritva here implies that the Bi'ah of a minor effects a Kinyan mid'Oraisa! Similarly, Rashi in Kidushin (19a) writes that a minor's Yibum effects a Kinyan mid'Oraisa, while in Yevamos (96b, DH Harei Zu) he writes that the Bi'ah of a minor does not effect a Kinyan mid'Oraisa. How are these contradictions to be resolved?

One possibility is that Rashi and the Ritva maintain that even if the Bi'ah of a minor does not make a Kinyan mid'Oraisa, it still may be preferable to the Chalitzah of an adult, because it may be assumed that the Ma'amar (the act of Bi'ah of the minor) will be consummated with a proper Yibum when the child reaches adulthood. Although the Gemara says that the fulfillment of a Mitzvah should not be delayed, perhaps that principle applies only when there is a doubt about whether the delay in the Mitzvah will lead to Yibum or Chalitzah. If, however, it may be assumed beyond a doubt that waiting will lead to Yibum (such as in the case of a minor who performed "Ma'amar" with the Yevamah through the act of Bi'ah), waiting to fulfill the Mitzvah of Yibum is preferable to performing Chalitzah immediately.

Another possibility is that Rashi and the Ritva understand that this is exactly the question of the Gemara here. The opinion which gives priority to the Yibum of a minor over the Chalitzah of an adult maintains that the Yibum of a minor is valid mid'Oraisa, while the dissenting opinion maintains that it is valid only mid'Rabanan. Rashi and the Ritva rule in accordance with the dissenting opinion.