Ketubot, Chapter Eight, Mishnah Seven

 

Introduction

Our mishnah continues to teach laws regarding the potential yavam’s rights with his shomeret yavam’s (the woman whose husband has died) property.  The yavam cannot make free use of this property because the woman has a lien on it from her ketubah.

 

Mishnah Seven

1)                     If his brother left money, land shall be bought with it and he enjoys the usufruct.

2)                     [If the his brother left] produce that was detached from the ground, land shall be bought [out of the proceeds] and he enjoys the usufruct.

3)                     [If it was] produce attached to the ground:

1)                                             Rabbi Meir says, the land is to be valued as to how much it is worth with the produce and how much without the produce, and with the difference land should be bought and the husband is entitled to the usufruct.

2)                                             The Sages say: produce attached to the ground belongs to the husband but that which is detached from the ground belongs to the first person who takes it:

(a)                                                        If he [seized it] first he acquires ownership; and if she [seized it] first land shall be bought with it and he enjoys the usufruct.

4)                     If he married her she is his wife in every respect save that her ketubah remains a debt on her first husband’s estate.

 

Explanation

Section one:  The shomeret yavam has a lien on all of her dead husband’s property, meaning it is collateral for her ketubah.  Therefore, the yavam does not have a right to sell, give away or otherwise use up this property.  If this property was land, the yavam has a right to the usufruct but not to the principle.  If the property was money, the money is used to buy land and then the yavam can use the usufruct.

Section two:  Produce that is detached from the ground is treated like money; it too is sold and the proceeds are used to buy land, from which the yavam benefits from the usufruct.

Section three: If the produce was attached to the ground, Rabbi Meir says this produce is also part of the original husband’s property which had on it a lien from her ketubah.  Therefore, it is evaluated and in essence sold to buy more land.  This is the same method that Rabbi Meir stated above in mishnah three.

According to the Sages the produce which is attached to the ground belongs to the husband.  The Talmud emends this to read “to her”, meaning that since this produce grew while owned by her original husband, it to is liable for her ketubah.  There is no debate between the Sages and Rabbi Meir on this issue.

The Sages dispute, however, with regard to the produce which is detached from the ground.  In their opinion, this produce does not have on it a lien from her ketubah, for Ketubot are not collectable from movable property (a category that includes most things that are not land).  Therefore, if the yavam takes this produce it is totally his.  If the woman takes the property, it now belongs to her and it is sold, the husband receiving the usufruct and the woman the principle.  According to most commentators, the Sages hold that the same is true for money; there is no lien on it from her ketubah and therefore it is “up for grabs”.

Section four:  Once he marries her, she is his full wife in all matters, except that she collects her ketubah from her first husband’s property.  The Talmud relates that if the first husband did not have any property, the yavam must give her a ketubah.

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