כ׳ במרחשון ה׳תשע״ה (November 13, 2014)

Yevamot 40a-b: Inheriting the Brother Who Died

We have already learned that when a man dies with no offspring, and his brother performs yibum with the widow, the yavam effectively steps into the position of the brother who has passed away. One example of this idea is that the yavam does not need to have a new marriage ceremony, as we see this marriage as a continuation of the original relationship.

The Mishna on today’s daf adds another element to this. According to the , when a person performs yibum, he takes possession of all of the dead brother’s property. Rabbi Yehuda disagrees, arguing that when someone passes away with no children, it is his father who is first in line to receive his inheritance, and that rule remains in force even in the case of yibum.

This discussion revolves specifically around the possessions of the brother who died. If we are to take the position of the Hakahmim to its logical conclusion, the yavam – who now represents his dead brother as well as himself – should also get his brother’s share in any inheritance that is to be divided between the brothers when their father passes away. This is, in fact, the conclusion of the majority of the rishonim. Both the Rambam and the Ramban, however, suggest that only the possessions that are actually owned by the brother when he dies are taken over by the yavam. They derive this from the passage that is used as the source for this law, that the yavam will stand in his brother’s stead – yakum al shem ahiv ha-met ( 25:6) – which does not offer him to stand in his father’s stead, only his brother’s. Those who disagree point out that only Rabbi Yehuda makes use of this pasuk in this context.

This is all if the brother performs yibum. Were he to do halitza, the Mishna teaches that he receives only the same share in the inheritance that all of the other brothers do. Although this appears to be obvious, the Gemara explains that we may have thought that someone who performs halitza removes himself from anything having to do with this brother, and might lose his share.