Blog Yomi – Kesubos #80/Daf 82

We did a double dose yesterday, in advance of Rosh Hashanah, so the numbering systems is off slightly. Hope you all had a good one, and best wishes for a כְּתִיבָה וַחתִימָה טוֹבָה to everyone. We begin this installment on דף פ״ב עמוּד א, driving toward the end of the perek which we’ll finish today. This is a good time to summarize what we’ve covered in the perek, with an assist from Rabbi Steinsaltz’s translation and commentary.

The Gemara concluded that according to all opinions, a widow who inherits property while waiting for her יָבָם may use the property as she chooses before the marriage, and the husband (her brother-in-law who has not yet made יִבּוּם) cannot protest. The same principle applies to a (non-widowed) woman who inherited property before אֵירוּסִין. On the other hand, if she inherited it after אֵירוּסִין but before נִישׂוּאִין (what we call these days the engagement period), she should not sell the property lechatchila, but if she does the transaction is valid. The term for the property that a woman owns before marriage, and brings into the marriage as part of her dowry is called נִכְסֵי מְלוֹג.

The English term that Steinsaltz uses for נִכְסֵי מְלוֹג, and with which I wasn’t familiar until learning this Gemara is:

See the source image

As defined at investopedia, usufruct is a legal right accorded to a person or party that confers the temporary ability to use and derive income or benefit from someone else’s property. A usufruct combines the two property rights of usus and fructusUsus refers to the right to use something directly without damaging or altering it, and fructus refers to the right to enjoy the fruits of the property being used—that is, to profit from the property by leasing it, selling crops produced by it, charging admission to it, or a similar use.

That brings us to the differences between property mortgaged as a lien to the כְּתוּבָּה of a “regular” wife in contrast to the נִכְסֵי מְלוֹג of the יְבָמָה. In the former case, the חַכָמִים instituted an ordinance that the husband may not designative specific movable items (מְטַלְטְלִין) to serve as payment for the כְּתוּבָּה. (If you’re looking for a catchy phrase, you can’t use מְטַלְטְלִין as a lien.) Rather, all of the husband’s property should be mortgaged for this purpose. That way the husband can still sell his property while the wife retains the mortgage on her קֶרֶן. However, in the case of the כְּתוּבָּה of the יְבָמָה, all of the assets belong to the deceased husband are mortgaged, and the יָבָם may never sell them.

With that background, our Gemara begins by sharing an incident involving יִבּוּם, mindful of where we left off in yesterday’s Daf:

הָהוּא גַּבְרָא דִּנְפַלָה לֵיהּ יְבָמָה בְּמָתָא מַחְסֵיָא. בְּעָא אֲחוּהּ לְמִיפְסְלַהּ בְּגִיטָּא מִינֵּיהּ. אֲמַר לֵיהּ: מַאי דַּעְתָּיךְ, אִי מִשּׁוּם נִכְסֵי — אֲנָא בְּנִכְסֵי פָּלֵיגְנָא לָךְ. אֲמַר לֵיהּ: מִסְתְּפֵינָא דְּעָבְדַתְּ לִי כְּדַעֲבַיד פּוּמְבְּדִיתָאָה רַמָּאָה. אֲמַר לֵיהּ: אִי בָּעֵית — פְּלוֹג לָךְ מֵהַשְׁתָּא

There was a certain man who had a יְבָמָה fall before him for יִבּוּם in the town of Masa Mecḥasya, and his brother wanted to disqualify her from any of the brothers by influencing the יָבָם to serve her with divorce papers (a גֶט). The man said to his brother: Why are you lobbying with me to divorce rather than do יִבּוּם with our brother’s widow? If it’s because you’re jealous that I’m getting the property that comes along with the deal, then I’ll divide the property with you. The brother said to him: I don’t trust you, and am afraid you’re going to swindle me like one of those connivers from Pumbedisa. As Rashi writes:

פומבדיתאה רמאה – שאחרי כן חזר בו פומבדיתא קרי להו רמאה כדאמרי’ בעלמא (חולין דף קכז.) נרשאה נשקיך מני ככיך פומבדיתאה לוייך שני אושפיזיך [ובחזקת הבתים (ב”ב מו.) כמו כן תא ואחוי לך רמאי דפומבדיתא]

See the source image

To give this a little more context, Pumbedisa was an ancient city that is now known as Fallujah in Iraq. In the old days it was a wild area with ornate properties, known for fostering alot of schemes. In contrast, the area of Masa Mechasya was known for its scholars rather than scoundrels. The Pumbedisa Academy, the scholars of whom gave rise to the תַּלְמוּד בַּבְלִי, was actually located in Masa Mechasya.

So the יָבָם in this case, who was probably taken aback by his brother’s characterization of him as a potential swindler from Pumbedisa, said to him: If you wish, let’s divide the property right away. I’m so trustworthy that I’m prepared to give it to you now, even though the acquisition will take effect only after I marry our deceased brother’s wife (the יְבָמָה). As Rashi notes:

פלוג מהשתא – החזק בחלקך מעכשיו ואע”פ שאינה עכשיו קנויה לך עד שאכנוס או שאחלוק לכשאכנוס ואזכה בכולן זכה אתה בחלקך על פי שהחזקתיך מעכשיו

Is there any evidence that one can make such a transfer of ownership of property before it has actually come into your possession? The Gemara tried to bring proof of this from what מָר בַּר רַב אָשֵׁי related:

אָמַר מָר בַּר רַב אָשֵׁי: אַף עַל גַּב דְּכִי אֲתָא רַב דִּימִי, אָמַר רַבִּי יוֹחָנָן: הָאוֹמֵר לַחֲבֵירוֹ ״לֵךְ וּמְשׁוֹךְ פָּרָה זוֹ וְלֹא תִּהְיֶה קְנוּיָה לְךָ אֶלָּא לְאַחַר שְׁלֹשִׁים יוֹם״, לְאַחַר שְׁלֹשִׁים יוֹם קָנָה, וַאֲפִילּוּ עוֹמֶדֶת בַּאֲגַם

Mar bar Rav Ashi related that Rav Dimi said in the name of R’ Yocḥanan: In the case of one who says to another: Go and pull this cow and it will be acquired for you only after thirty days, he has acquired it through the act of מְשִׁיכָה, and this is the halacha even if at the end of the thirty days the cow was standing in a distant place that does not belong to the one acquiring the cow. This indicates that the present act of מְשִׁיכָה is effective for later. Despite this halacha, Mar bar Rav Ashi claims that a difference exists between this case and ours, which involved The Yavam Brothers looking for a loophole in dividing the yevama’s property. How so?

הָתָם — בְּיָדוֹ, הָכָא — לָאו בְּיָדוֹ – Regarding מְשִׁיכָה, the cow is in the seller’s position to be able to transfer ownership. Regarding our case, the יָבָם doesn’t have the property in hand in order to divide it with his brother because he has not yet done יִבּוּם. And while we’re on the subject, there seems to be a matter of disagreement about what R’ Yochanan actually said regarding the case of מְשִׁיכָה.

וְהָא כִּי אֲתָא רָבִין, אָמַר רַבִּי יוֹחָנָן: לָא קָנֵי! לָא קַשְׁיָא: הָא דַּאֲמַר לֵיהּ ״קְנֵי מֵעַכְשָׁיו״, הָא דְּלָא אֲמַר לֵיהּ ״קְנֵי מֵעַכְשָׁיו״

In contrast with what Mar bar Rav Ashi related that Rav Dimi said above, Ravin came from Eretz Yisrael and said in the name of R’ Yocḥanan: If one is instructed to do מְשִׁיכָה on a cow, but the acquisition will take effect only after thirty days, he has not acquired it. The Gemara answers: No problem! The case when one acquires the cow is referring to a situation when the seller says: Acquire it from now, so that once thirty days have passed it should belong to him retroactively. But in the case when one does not acquire it, is when he did not say to him: Acquire it from now. If the acquisition does not take effect now, it cannot take effect later. Putting antics in semantics, ay?

עוּלָּא said, you guys are giving me a headache.

בְּעוֹ מִינֵּיהּ מֵעוּלָּא: יִבֵּם וְאַחַר כָּךְ חִילֵּק, מַהוּ? לֹא עָשָׂה וְלֹא כְלוּם. חִילֵּק וְאַחַר כָּךְ יִבֵּם, מַהוּ? לֹא עָשָׂה וְלֹא כְלוּם. They inquired of Ulla: If the יָבָם performed יִבּוּם with the woman and afterward divided the property he promised to share with his brother, what is the halacha? He replied: He has done nothing. They further asked: If he divided the property and afterward performed יִבּוּם, what is the halacha? He once again responded: He has done nothing. So there is no loophole, and I sense a Netflix series of The Yavam Brothers in the works.

Netflix

Think about the plot here. There are four brothers, and one of them is married but without children. Because there are no kids to drain his wallet, he has made the most of his opportunity to invest in real estate. But before he has time to fully enjoy the fruits of his labor, he dies leaving his gorgeous wife ample real estate. The three younger brothers have always been envious of Big Brother, and now young brother #1 (let’s call him Hoss) is looking forward to making יִבּוּם with his deceased brother’s widow (let’s call her Libby). After all, he not only gets to climb into bed with Libby to perpetuate his brother’s name (a former prohibition sanctioned by the Torah, no less), but is the beneficiary of the real estate that he has always coveted. But the brother-in-law who is next in line (let’s call him Little Joe) starts to pressure Hoss not to make יִבּוּם, because if he doesn’t marry Libby and they all do chalitza instead, all of the brothers divide up the real estate equally. The problem is that Hoss is really attracted to Libby, and covets her more than he does the real estate. So to get Little Joe off his back he offers to make a side deal in which they agree to split the real estate. When did they make the deal, is it binding, and how effective will it be in Little Joe keeping the other brothers at bay? Oh, the drama …

(Spoiler alert: וְהִלְכְתָא: לֹא עָשָׂה וְלֹא כְלוּם – the halacha is, no side deals allowed.)

As the Gemara turns to דף פ״ח עמוּד ב, Rabbi Stern points out a fundamental חִדוּשׁ about this dispensation of of being able to marry your sister-in-law. There are instances in which we see that the prohibition of an act is set aside by circumstances of the moment. But if those circumstances change, then the original prohibition remains. Let’s take our case of יְבָמָה. The only reason that the Torah is allowing the brother to have conjugal relations with his sister-in-law is to perpetuate his brother’s name. But, I might think, it’s only a one-shot deal. Meaning, in other words, that if things didn’t work out and he decides to divorce her, that’s it. She is now forbidden to him again because her original status of the sister-in-law relationship returns. Comes along our Gemara and says: מַהוּ דְּתֵימָא: מִצְוָה דִּרְמָא רַחֲמָנָא עֲלֵיהּ עַבְדַּהּ, וְהַשְׁתָּא תֵּיקוּם עֲלֵיהּ בְּאִיסּוּר אֵשֶׁת אָח, קָא מַשְׁמַע לַן – once he marries his sister-in-law, she is a wife in every sense of the word, and the original prohibition is severed. What is the practical application of this? (It actually might make for another good episode in The Yavam Brothers Netflix Series.)

If the couple gets divorced, and the original prohibition against relations with your brother’s wife returns, then they can’t reconcile and re-marry. If however that forbidden relationship dissolved entirely through יִבּוּם (which the Gemara is telling us is the case), they they are free to reconcile and re-marry.

By the way, Rabbi Stern also points out a concept from יְבָמוֹת that is reiterated in our Daf, and may get lost in all of the melodrama. We’re presuming that a יָבָם has some attraction to his יְבָמָה, but that is not always the case. This isn’t a deal he necessarily bargained for. Literally, overnight, because his brother’s life was ended, his sister-in-law “falls to him”. There is always the possibility that this would present a burden to him on many levels, not the least of which is financial. That is why the provision is made that he takes over the terms of his deceased brother’s כְּתוּבָּה, rather than having to provide his sister-in-law with financial obligations of his own (i.e. that would have had to be provided in a כְּתוּבָּה of his own making).

Well there’s more ground to cover, largely focusing on further inferences inherent in the כְּתוּבָּה, but I have to finish working on the Netflix script so I’ll leave the balance of the perek to Rabbi Stern.

הֲדַרַן עֲלָךְ הָאִשָּׁה

About Leonard J. Press, O.D., FAAO, FCOVD

Developmental Optometry is my passion as well as occupation. Blogging allows me to share thoughts in a unique visual style.
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2 Responses to Blog Yomi – Kesubos #80/Daf 82

  1. Deborah Friedman says:

    This was a really interesting one. And i loved the illustrations. You had fun with this right?

    Sent from my iPhone

    >

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