Kiddushin, Daf Samekh Daled, Part 3

 

 

מתני׳ מי שאמר בשעת מיתתו יש לי בנים נאמן יש לי אחים אינו נאמן

 

If a man declares at the time of his death I have sons, he is believed;

I have brothers, he is not believed.

 

This mishnah discusses a man who offers testimony which will impact his wife s subjectivity to the laws of yibbum. By stating that he has sons he is exempting her from yibbum. He is believed because if all he wanted to do was exempt her from yibbum he could divorce her. However, he is not believed to state that he has brothers, thereby obligating her for yibbum. Unless we know that he has brothers, he (or others) would have to bring evidence to make his wife subject to yibbum.

 

גמ׳ אלמא נאמן להתיר ואין נאמן לאסור

נימא מתניתין דלא כר’ נתן דתניא בשעת קידושין אמר יש לו בנים בשעת מיתה אמר אין לו בנים בשעת קידושין אמר אין לו אחים בשעת מיתה אמר יש לו אחים נאמן להתיר ואין נאמן לאסור דברי רבי

ר’ נתן אומר אף נאמן לאסור

 

GEMARA. Thus he is believed to permit, but not to prohibit.

Shall we say [then] that our Mishnah does not agree with R. Nathan? For it was taught: If at the time of betrothal one declares that he has sons, but at the time of his death he says that he has no sons; If at the time of betrothal he declares that he has brothers, but at the time of his death he declares that he has no brothers: he is believed to permit, but not to prohibit, the words of Rabbi. R. Nathan said: He is believed to prohibit too!

 

The mishnah seems to accord with Rabbi. A husband is believed to make a statement that would permit his wife to remarry without having to undergo yibbum or halitzah (either I have sons or I have no brothers). But he is not permitted to prohibit her, such that she would require yibbum or halitzah (I have no sons, or I have brothers). R. Nathan says he is believed in either case.

 

אמר רבא שאני התם כיון דבשעת מיתה קא הדר ביה אימא קושטא קאמר

 

Rava said: There it is different: since he retracts at the time of his death, I says that he may be speaking the truth.

 

Rava said that R. Natan believes him in the baraita because he is retracting a statement at the time of his death. However, in other cases, such as that in the mishnah, where he simply makes a statement, R. Natan would not believe him.

 

אמר ליה אביי ולאו כל דכן הוא השתא ומה התם דקא מרע ליה לדבוריה אמרת קושטא קאמר מתני’ דלא קא מרע ליה לדבוריה לא כ"ש

 

Abaye said to him: Is this not an all the more so situation: If there, though he contradicts his [former] words, you say that he may be speaking truth; surely it is all the more so in our Mishnah, where he does not contradict his [former] words!

 

Abaye points out that Rava s statement does not make sense. If he is believed in the case of the baraita where he contradicts his previous words, all the more so he should be believed in the case of the mishnah, where is not contradicting any previous statement.

 

אלא אמר אביי מתני’ דלא מוחזק לן באחי ולא מוחזק לן בבני דאמרינן כיון דלא מוחזק לן בבני ולא באחי אמר יש לי בנים נאמן יש לי אחים אינו נאמן לאו כל כמיניה דאסר לה אכולי עלמא

 

Rather Abaye said our Mishnah refers to one who is not presumed to have brothers or sons: hence we rule, since he is not presumed to possess either brothers or sons. If he says, I have sons, he is believed; but if he says, I have brothers, he is disbelieved, [because] he does not have the sole power to forbid her to the whole world.

 

Abaye tries to harmonize the mishnah with the baraita by contextualizing both. The mishnah refers to a case where the husband is not presumed to have brothers or sons. He can make a statement such as I have sons because that will not make her liable for yibbum. But he cannot change the presumption to make her liable for yibbum by saying I have brothers.

 

ברייתא דמוחזק לן באחי ולא מוחזק לן בבני דאמרינן מה לי לשקר מאי קאמר למיפטרה מיבם מצי אמר פטרנא לך בגיטא רבי סבר מה לי לשקר כי עדים דמי ואתו עדים עקרי חזקה ורבי נתן סבר מה לי לשקר כי חזקה דמי לא אתי חזקה ועקרה חזקה לגמרי

 

[Whereas] the baraita refers to one who is presumed to have brothers but not sons.

So we argue: Why should he lie? Why might he have said it? To exempt her from the yavam! Then he could say, I could have exempted her by a divorce [just before my death].

Now, Rabbi holds that [the argument,] why should I lie is as [strong as] witnesses, so that the witnesses come and cancel the presumption.

But R. Nathan holds, [The argument,] why should I lie is [only] as [strong as] a presumption, and one presumption cannot come and completely cancel out another.

 

The baraita refers to a situation where we thought he had brothers but not sons (making her liable for yibbum). If he is lying in order to exempt her from yibbum, we could ask why he would tell such a lie. He could, after all, just divorce her right before his death and thereby exempt her. Therefore, he is believed to exempt her from yibbum.

Rabbi [Judah Hanasi] would hold that when he said he has no brothers at the time of his kiddushin, he is totally believed, because why would he lie. This overrides the presumption that he had no sons, and now exempts her from yibbum. He will then not be believed later to contradict his words by saying that he does have brothers.

Rabbi Natan says that why would I lie is considered like a presumption and one presumption cannot cancel out another. So he was not believed to say he had no brothers at the time of his kiddushin. At the time of kiddushin we maintain that he has brothers and no sons and he cannot later contradict himself at the time of his death by saying either that he has no brothers or that he has sons.