QUESTIONS: The Chachamim instituted that a Yavam may not sell or give away
any of the possessions that he inherits from his deceased brother, because
those possessions are designated for the payment of the Yevamah's Kesuvah.
Even though, when the wife is not a Yevamah, there is a Shibud on all of a
husband's possessions for the collection of the Kesuvah and yet he is allowed
to sell his possessions, the Chachamim found it necessary to protect the
Kesuvah in the case of a Yevamah. This is because the Yavam's own
possessions, both present and future, do not become Meshubad towards the
payment of the Kesuvah. Since there is less available for the collection of
the Kesuvah, the Chachamim prohibited the Yavam from selling his brother's
possessions and causing the Yevamah extra trouble by having to collect it
from the buyers.
(If the dead brother left no possessions, or if nothing remains from them,
not even in the hands of a buyer, then the Chachamim instituted that the
woman may collect her Kesuvah from the Yavam's property. However, if anything
remains from the deceased husband's possessions -- even if she must collect
it from a buyer -- then she may not collect her Kesuvah from the Yavam's
property. This explains why the Yavam may not sell the brother's property --
so that the wife should not have to trouble herself to collect it from the
hands of the buyers.)
The Gemara discusses what happens if, b'Di'eved, the Yavam sold the property.
Rav Yosef says that since the Chachamim enacted that he not sell it, it is
clear that the sale should *not* take effect. The Gemara questions Rav
Yosef's opinion from the Mishnah (78a) that states that according to Beis
Hillel, an Arusah may not sell property that she inherits during Erusin, but
if, b'Di'eved, she sold it, then the sale is valid nonetheless. We see from
the Mishnah there that even though the Arusah went against the enactment of
the Chachamim, her sale still takes effect.
(a) Why does the Gemara not relate Rav Yosef's ruling to the well-known
Machlokes in Temurah (3b) regarding "Iy Avid Lo Mehani?" In that Gemara,
Abaye and Rava argue whether the Kinyan takes effect b'Di'eved or not in a
case where a person tries to make a Kinyan that the Torah prohibits. The same
Machlokes should apply when someone transgresses an enactment of the
Chachamim, trying to make a Kinyan that they prohibit. Thus the ruling of Rav
Yosef should depend on the Machlokes in Temurah! If there is an opinion that
"Iy Avid Mehani" (b'Di'eved the Kinyan is valid) where one went against the
Torah, then certainly where someone sells something against a Takanah
d'Rabanan, the Kinyan should be valid, unlike Rav Yosef states!
(b) How can the Gemara compare a Yavam who sells his deceased brother's
property, to an Arusah who sells what she inherited during Erusin? The Gemara
earlier (78a) says that an Arusah may not sell the property she receives
during Erusin because Erusin is considered a Safek Nesu'in (that is, it might
or might not have the status of Nesu'in), and therefore it is not clear
whether the right to sell the property belongs to her or to him (Rashi 78a,
DH Eimar). Since it is a Safek, it is obvious that l'Chatchilah she should
not sell it, and if she sold it anyway, then b'Di'eved the sale takes effect
(because "ha'Motzi me'Chaveiro Alav ha'Ra'ayah").
In our Gemara, in contrast, there is no Safek. Rather, the Rabanan enacted
that one is not permitted to sell the property of his Yevamah's husband.
Therefore, the sale should *not* take effect! (See PORAS YOSEF.)
(a) The HAGAHOS MORDECHAI in Shavuos (end of Perek 2) cited by RAV SHLOMO
EIGER (in Gilyon Maharsha) indeed relates Rav Yosef's ruling to the rule of
"Iy Avid Lo Mehani" -- a Kinyan is not valid if one transgressed the Torah in
order to effect it. It is possible that, according to the Mordechai, both
Rava and Abaye would agree that one cannot make a Kinyan which contradicts a
*Rabbinical* enactment. because the Chachamim are more stringent with their
enactments than they are with Mitzvos that are mid'Oraisa. This is because of
the principle that "the Chachamim made [enactments of] Chizuk for their words
more than for the [Mitzvos in the] Torah," as the Gemara says earlier (56a).
However, Rav Shlomo Eiger cites his father, REBBI AKIVA EIGER (Teshuvos
1:129, DH Gam), who in turn cites the PANIM ME'IROS who distinguishes between
our case and the cases in Temurah, in which we say Iy Avid Lo Mehani. This
Takanah was made for the benefit of the woman. If the sale would be valid,
then the woman for whom the enactment was made would lose as a result. Since
another person will be affected adversely, it is logical that the Chachamim
invalidated the sale even b'Di'eved. In contrast, the cases in Temurah are
discussing cases of Isur v'Heter that do not affect any other person.
(Although the Gemara in Temurah does discuss the case of separating Ma'aser
before separating Terumah, which does affect the Kohen's gift, there are
grounds for differentiating that case from other cases where a specific
person is affected).
(b) Even though the Gemara says that an Arusah is a Safek Nesu'ah, the Gemara
does not mean that we should consider her status to be in question, as TOSFOS
(DH Seifa) points out. If her status had been that of a Safek, then the
Arusah would certainly have been allowed to sell the property even
l'Chatchilah, since the land (the "Guf") itself belongs to her (even if she
is considered a Nesu'ah). The only question involves the Peros, but since
"Ein Safek Motzi Midei Vadai" (the Safek that she is a Nesu'ah cannot
override the certain fact ("Vadai") that she is in possession of the land
itself), she may also sell the Peros.
Rather, the Gemara means that because there is a possibility that the Erusin
will not lead to a full marriage, her husband therefore does not have full
rights to what she inherits while she is an Arusah. The Chachamim
*instituted* that she may not sell the property because the husband retains
some rights to the property which she inherits. (M. Kornfeld)