Siman 168

Once the yevamah has undergone yibbum, she is like his wife in every regard, and he is permitted to divorce her and take her back. We do not say that since he has already fulfilled the mitzvah of yibbum, the prohibition of a brother's wife returns to its place; for the Torah said, "her yavam shall come upon her and take her to him as a wife"—once he has performed yibbum, she is his wife. It is necessary to say so, for if not, every yavam would be prohibited to his yevamah after the first cohabitation through which he fulfilled the mitzvah of yibbum. And so it is written regarding Ruth, whom Boaz married, "and she became his wife," and there it was a form of yibbum, as is explicit there.

And it has already been explained in siman 166, section 15, that she does not have a ketubah from the yavam, and her ketubah is upon the properties of her first husband; and only if there are no properties for the first did they institute for her from the second, so that she should not be light in his eyes to divorce her, see there. And just as one who divorces his wife and remarries her, he remarries her on the condition of her first ketubah, as written in siman 100, so too one who divorces his yevamah after she was taken in yibum and remarries her, he remarries her on the condition of her first ketubah. That is to say, upon the properties of his brother as before. And we do not say that since he now remarried her by his own will and not by the commandment of yibum, she should have a ketubah from him himself; for it is not so, as in this her law is like any woman who was divorced and remarried (Ketubot 82b). And the reason is that in this she is certainly not superior to a general woman such that she should have two ketubot, for by what right would she merit more than all women? And automatically, since she has only one ketubah, she remains upon her first ketubah (and see there in the Tosafot Yom Tov).

The Rishonim asked a great question regarding that which the Sages, of blessed memory, said, that the ketubah of a yevamah is upon the property of her first husband and not upon the property of the yavam; for behold, the yavam inherits the property of his deceased brother, and if so, what is gained by this? And we answered in siman 166 that it comes to teach us that she does not have two ketubot, see there. But for our teachers, this was not satisfactory, and their reason seems to me to be that if so, the Sages should have said that she has only one ketubah. And they asked what difference there is whether the ketubah is upon his own property or upon the property of the deceased, for both this and that are his, and when the deceased has none, they instituted for her from him.

And there are those who answered that there is a great practical difference in this, for if we were to say that the ketubah is upon his property, she would only take one hundred as is the law of a widow; but now that it is upon the first, she has the ketubah of a virgin, for the first married her as a virgin. And if the first did not leave property, they did not institute for her from the second more than one hundred (Rashba in Ketubot ibid., and see R' Ovadyah Bartenura and Tosafot Yom Tov chapter 4 of Yevamot, mishnah 4). And one must ask regarding this, for according to this, that which they said that her ketubah is upon the property of the first is only for her benefit; yet in the Gemara, where they gave the reason that she therefore does not have a ketubah from him because from Heaven they granted him a wife, it is proven that it is for his benefit as well.

And some have answered that this distinction is that regarding all women, when the husband sells his lands, she seizes her ketubah from the purchasers, but this woman does not seize from the purchasers who bought his properties from the yavam if there were properties belonging to the deceased, even if they were subsequently ruined (ibid. and Tosafot Yevamot 39a and Ran at the end of the eighth chapter of Ketubot). And likewise, if the properties of the deceased were sold, she can collect from the purchasers even if there are unencumbered properties with the yavam, and the purchasers cannot say, "We have left you unencumbered property," for his properties are not liened to her ketubah at all (Rashba ibid.). And it is obvious that if, while she was under the second, the properties of the first were ruined, the second must write her a ketubah so that she should not be light in his eyes to divorce her (Beit Shmuel, subsection 2). And likewise it is an obvious matter that regarding that which they said, that if the first did not leave properties she has them from the second, she has only the essential ketubah and not any additional amount, even though she brought a dowry to the first, when nothing remained from him (see Ran ibid. who wrote "even though he took out from that of his brother etc." and it is not understood at all, see there).

And there is a further practical difference, for in the Gemara (Ketubot 53b) it remained in doubt whether the daughter born to the yevama has maintenance from the brothers or not. And the doubt is: since her ketubah is upon the first [husband] and not upon the second, she also has no "conditions of the ketubah" from the second; and from the first she also has none, for they were not born from him. And granted that she herself certainly has maintenance—for if the first has [assets], she has from the first, as he wrote to her "you shall dwell in my house," and if the first has none, she has from the second, just as with the ketubah, which they enacted for her from the second when the first has none—nevertheless, regarding the daughter, since it is a legal doubt, she has none. And so ruled our teacher, the Rema, at the end of this siman. If so, there is a great practical difference in this: for if her ketubah is upon the first, his daughters have no "conditions of the ketubah," neither from the first nor from the yavam; but if the first has none, such that they enacted a ketubah for her from the second, it follows that his daughters also have "conditions of the ketubah" (and Tosafot there hold the opposite in the first version, see there).

Since her ketubah is on the property of her first husband, the sages therefore said that the yavam is not permitted to sell anything from his brother's property. Even if the property is worth a thousand times her ketubah, he cannot sell them, even a portion of them, without her permission. And even though with all other women the husband may sell, and when the time for the collection of the ketubah arrives, if she does not find unencumbered property she collects from the purchasers, nevertheless here they closed the path before him because she has no lien on his own property. If he sells a portion of his brother's property, perhaps the remaining property will be damaged and she will need to pursue the purchasers, and this is not pleasing to her (Tosafot Ketubot 81a, s.v. "HaRotzeh"). And so our sages, of blessed memory, said (ibid.): One who wishes to sell from his brother's property—if he is a kohen, who cannot divorce her and take her back, he must appease her so that she permits him to sell; and if he is a Yisrael, he divorces her with a get and takes her back and writes her a ketubah, and then she is like all other women. And if it is difficult: if so, why must he divorce her? Let him write her a ketubah on his own property. For it can be said that this is not pleasing to her, because when she is on the property of her first husband she is always secure since he cannot sell (Tosafot). But when he divorces her and takes her back, she is necessarily like all other women. Therefore, if he sold or gave a gift or divided the property of the deceased with his brothers, whether before the yibbum or after the yibbum, he has done nothing. So it is explained in the Shas there, that even ex post facto his sale is nothing. They were stringent in this for her benefit, so that she would be secure in her ketubah. And even if at the time of the yibbum he wishes to write her a ketubah on his own property, he does not have the power to do so without her consent (see Beit Shmuel subsection 3).

And know that regarding what we wrote, that one who wishes to sell from the property of his brother, if he is an Israelite, he divorces her and takes her back and may sell—one must ask regarding this: behold, in section 2 it was explained that when he divorces her and takes her back, he takes her back on the condition of her first ketubah, and consequently his status will be as before, so how can he sell? For certainly it is so, that when he divorced her and took her back before she collected her ketubah, it is on the condition of the first ketubah; but if she collected after the divorce and he took her back, she no longer has a connection to the first ketubah. And so it appears to me from the words of Rashi, of blessed memory (Ketubot 81a, s.v. "he divorces her"). Furthermore, this is when he takes her back without specification, she is on her first ketubah; but here we are dealing with a case where he stipulates with her that her ketubah shall be on his own property and her first ketubah shall be void (the Rosh there, chapter 8, siman 13). And so we learned in the Tosefta of Ketubot (chapter 9): he marries and divorces, and she writes him a receipt for her ketubah; see there.

And this is what our teacher, the Beit Yosef, wrote in section 7, and this is his wording: Even if he divorced her and subsequently remarried her without specification, he cannot sell from the properties of his brother unless he stipulates at the time he takes her back that her ketubah is upon all of his properties; and without divorce, if she consents to him on the condition that he writes for her the guarantee of her ketubah upon all of his properties, he may sell. Thus far his words. And one should not ask that if so, why must he divorce her, for it can be said that without divorce the choice is hers, but with divorce he can compel her to this, for he will not agree to take her back if she does not do so.

And ostensibly it is implied from the words of the Rosh and the Shulchan Aruch that without a condition that if he takes her back it will be on the condition of the first ketubah, even when she collected her ketubah after the divorce, and not as I wrote in section 8, for if it were not so, why would they need a condition? But this is not a proof, for one could say that it comes to teach us that even if she does not collect her ketubah, if he makes a condition with her, it is well. And so it is explicitly implied from the Yerushalmi Yevamot (Chapter 4, Halacha 4) which said regarding this Tosefta that it is to be understood alternatively, or she breaks her ketubah for him, thus far its words; meaning that if he divorces her, there is no need for the breaking of the ketubah. And one must say as I wrote, that he divorces her and has her collect her ketubah. But from the language of the Rosh it is not implied so, see there (for what was difficult for him regarding Rashi, and see the Gra, subsection 8, and it requires further study).

Our Sages, of blessed memory, closed the path before the yavam regarding the property of his deceased brother for the benefit of the yebama, so that not only is he unable to sell from his property as has been written, but even from everything that remains from the deceased in the form of movables, we see to it that the yavam shall sell them and land shall be purchased with them, and he consumes their usufruct; for the yavam can destroy movables, but in land she is secure. And thus the Sages taught in the Mishnah there (80b): If his brother left money, land shall be purchased with it and he consumes the usufruct; produce detached from the ground, land shall be purchased with it and he consumes the usufruct. And so too other movables. And regarding produce attached to the ground, our teacher, the Beit Yosef, also wrote in section 4, and this is his wording: If his brother left produce attached to the ground, it shall be sold and land shall be purchased with it, and he consumes the usufruct. Thus far his words. And it appears to me that he did not see fit to elaborate on this, for according to what is explained in the Mishnah there, they must appraise the value of the produce as it was worth at the time of death, for that which grew while in the possession of the yavam is not liened to her ketubah (and even the Sages do not disagree on this, as the Tosafot Yom Tov wrote).

And behold, this is the approach of the Rif, the Rosh, and the Tur, and so wrote the Ramban and the Rashba, of blessed memory (as the Maggid Mishneh wrote in chapter 22 of Ishut). However, the Rambam, of blessed memory, wrote there, and this is his wording: If one took his yevamah in marriage and his brother left produce attached to the ground, they shall be sold and land shall be purchased with them, and the yavam consumes their fruit. If he left produce detached from the ground, and similarly if he left money and movable property, all belongs to the yavam and he uses them as he wishes, and she cannot prevent it, for the ketubah is not collected from movable property except by the enactment of the Geonim, and there is no power in this enactment to prevent him from his brother's property and to forbid them to him under this lien so that he should not trade with them. Thus far his words. (And in the Gemara there they rejected this Mishnah from the halakhah because it follows the one who says movable property is encumbered for a ketubah, and we do not rule accordingly, see there; and therefore the Rambam holds that even though by the enactment of the Geonim it is collected from movable property, they do not have the power to prevent him, as he wrote):

And the opinion of all these authorities is that now, after the enactment of the Geonim, movable property is like land for all matters, and they treated the enactment of the Geonim as if they are encumbered by the law of the Gemara (the Maggid Mishneh). However, if it is written in the ketubah an encumbrance of movable property incidental to land, even the Rambam admits to this, for since it was written so, they are encumbered to her by law and not by virtue of an enactment (ibid.).

And according to the opinion of all these authorities, even if the yavam himself owed a maneh to his deceased brother, it is extracted from him and land is purchased with it, and he consumes the produce. He cannot say, "Behold, I am the heir and I am the possessor, I will hold onto what is in my hand." Rather, it is extracted from him, and he cannot say to her, "You are not my litigant," for she is certainly a litigant for this. Since all the assets of the deceased are liened to her and he is indebted to the deceased, it is extracted from him by way of the rule of Rabbi Nathan, as is written in Choshen Mishpat siman 86 (Ketubot 82a). However, the Ra'avad, of blessed memory, disagrees on this because in the Gemara there they rejected this from the halacha on the grounds that we do not apply two stringencies to a ketubah: one, to say that movable property is liened to a ketubah, and the other, the stringency of Rabbi Nathan, see there. But all these authorities hold that in the time of the Gemara it was a stringency that they collected from movable property, but nowadays movable property and real estate are equal in every respect, and there is only the stringency of Rabbi Nathan here. The Rif, the Rosh, the Tur, and the Shulchan Aruch explicitly ruled accordingly (see Beit Shmuel subsection 4, and his words require further study, for it clearly implies from the Shas and the poskim that they treated her lien like a complete debt).

And just as they remove all the assets from his hand to purchase land, so too if there are assets in the hand of the yevamah, they remove them from her hand and land is purchased with them, and he consumes the produce. For how could we leave them in her hand? Behold, the ketubah was not given to be collected during [the husband's] lifetime, and the yavam stands in the place of the husband, and she has only a lien. And this is the order: regarding the lands that remained, he consumes the produce; and all the movables, the money, and the produce are not placed in his hand as long as he has not performed the yibbum, but rather they are removed from his hand and from her hand and are handed over to the beit din or to an apotropos until he performs yibbum with her, and then they shall purchase land with them and he shall consume the produce (see the Beit Yosef in the name of the Responsa of the Rashba).

A yevamah who did not have a ketubah from her husband because he did not write one for her, or she sold it or waived it to him, he acquires the property of his brother and may sell or give as he pleases, for there is nothing to prevent him. However, when he brings her in, he must necessarily write a ketubah for her, for it is forbidden to remain with a woman for even one hour without a ketubah, and the deceased brother indeed committed a transgression. Therefore, he shall write her a ketubah of a maneh according to the law of a widow's ketubah. And even if he does not write it, she has it by the enactment of the sages like other women, and all his property shall be encumbered for her ketubah like all other women. (So wrote the Rambam and the Shulchan Aruch; and it must be said that what was written, "that she did not have a ketubah," refers to a case where even by the enactment of the sages she does not have one, such as if he married her in a place where they do not collect without a ketubah and the like, for if not so, she indeed has it by the enactment of the sages).

A yevama who did not have a ketubah from her husband because she was forbidden to him, such as when she was a sheniya to an ervah for him but is permitted to her yavam because she is not a sheniya to an ervah for the yavam, the Rambam wrote in the second chapter of Yibum, and this is his wording: If the yavam desired to perform yibum, he performs yibum and she has no ketubah from him, just as she did not have from her husband; and her law with her yavam regarding the tosefet is the same as it was with her husband. But if her husband did not write her a ketubah, or if she sold it to him or waived it to him, the yavam must write her a ketubah like all widows. Thus far his words. And so wrote the Tur and Shulchan Aruch, section 9. And from this language it is implied that the yavam does not need to write her a ketubah at all even though she is permitted to him, for since he performs yibum, she has no ketubah from himself as they have acquired a wife for him from Heaven, and she only has a claim from the assets of the deceased; and here, by law she has nothing from the assets of the deceased since she was forbidden to him, therefore she also has nothing from the yavam. And it is not similar to what was said, that if she has nothing from the first they instituted for her from the second, for that is when by law it is due to her from the first but he simply has no assets; but when by law she has no ketubah, why would the sages institute it from the second? And so it is implied from the language of the Shas (Yevamot 85a) which says: And if she was a sheniya to the husband, she has nothing even from the yavam, see there (and so wrote the Bach).

But some say that certainly if it is his desire to be with her, he is obligated to write her a ketubah, for it is forbidden to remain without a ketubah. And that which the sages, of blessed memory, said—that she has nothing from the yavam—this is when he performed yibum and he comes to divorce her before he wrote her a ketubah (the Maggid Mishneh in the name of the Ramban and the Rashba). And from the words of our teacher, the Rema, it is implied that also the Rambam does not disagree on this, and it requires further study (and see Be'er Sheva subsection 7). And it is a simple matter that if she was permitted to the husband and forbidden to the yavam, such as where she is a secondary relation to the yavam and not to the husband, that she has a ketubah from the assets of the husband (the Maggid Mishneh). However, when there are no assets belonging to the first, certainly they did not institute for her from the second, for the reason they instituted for her was so that she should not be light in his eyes to divorce her, and here, would that he should divorce her. The laws of yibum are completed with the help of Heaven.