Only three times the halakha follows Reish Lakish and not Rabbi Yoḥanan TB Yevamot 36

Yesterday we began the fourth chapter of our massekhet. We know that if a brother dies without children, his widow marries a surviving brother and the child of that union continues the legacy of the dead brother. We also know that if the widow is pregnant, the brother should wait until the birth of the baby to determine the course of action. If the baby lives and is viable, then the widow neither has to perform the levirate marriage, yibum, or halitza. If the baby isn’t viable and dies in childbirth, then the surviving brother must either do yibum or halitza. The Gemara kicked off a long debate between Rabbi Yoḥanan and Reish Lakish that starts on daf TB Yevamot 35a and continues through daf TB Yevamot 36. What should the surviving brother do if he takes the widow as a yevama, discovers that she is pregnant, and has a miscarriage?

“An amoraic dispute was stated with regard to one who performs ḥalitza with a pregnant woman and she later miscarried. Since she miscarried, she was certainly bound to the yavam by a levirate bond and may not marry anyone else; rather, she is obligated to consummate the levirate marriage or perform ḥalitza. The question is whether the ḥalitza that was performed while she was still pregnant is effective in releasing her from the levirate bond. Rabbi Yoḥanan said: She does not require another ḥalitza from the brothers. Reish Lakish said: She requires another ḥalitza from the brothers.

“The Gemara elaborates: Rabbi Yoḥanan said that she does not require another ḥalitza from the brothers because he holds: Ḥalitza performed with a pregnant woman who later miscarries is considered effective ḥalitza in order to release her from the levirate bond. And similarly, intercourse with a pregnant woman who later miscarries is considered a valid consummation of levirate marriage through intercourse, such that she and the yavam are considered to be married. And Reish Lakish said she requires another ḥalitza from the brothers because he holds: Ḥalitza performed with a pregnant woman is not considered effective ḥalitza, and intercourse with a pregnant woman is not considered a valid consummation of levirate marriage through intercourse. Therefore, after she miscarries, another ḥalitza must be performed in order to release her from the levirate bond.” (daf 35a, Sefaria.org translation)

Almost a full daf (both sides of the page) of trying to prove which side is the correct approach to this case, the Gemara on today’s daf TB Yevamot 36 decides in favor of Reish Lakish. “even if that mishna does not support Reish Lakish’s opinion, nevertheless it is taught in a baraita in accordance with the opinion of Reish Lakish: In the case of one who performs ḥalitza with a pregnant woman and she miscarries, she requires another ḥalitza with the brothers in order to release her from the levirate bond. The baraita assumes that the original ḥalitza is ineffective because it was done while she was still pregnant, which is accordance with the opinion of Reish Lakish.” (Sefaria.org translation)

What I find interesting is the fact that the Gemara points out our case is just one of three cases that follow Reish Lakish’s opinion over Rabbi Yoḥanan’s opinion. The daf continues to enumerate the other two cases for our benefit.

The second case differentiates between a gift and an inheritance. In the father’s lifetime he may give as much or as little as a gift to any child. Once the father dies, the Torah probate’s his estate and his wishes can’t contradict the Torah. What happens if the father writes an individual document to each child and sometimes he uses the word “gift” and sometimes he uses the word “inheritance?”

“Reish Lakish and Rabbi Yoḥanan dispute whether one must state that the receipt of the portions should be considered as a gift with regard to each recipient, or whether stating it with regard to one of them is enough to indicate that it is true for all. And Reish Lakish said: The inheritors will only ever acquire the portions as defined by the owner of the possessions once he says: So-and-so and so-and-so shall inherit such and such a field and such and such a field that I have given to them as a gift, and they shall inherit them, i.e., he must state explicitly for each recipient that their receipt of the portions should be considered a gift. Rava ruled that in this dispute as well, the halakha is in accordance with Reish Lakish.” (Sefaria.org translation) Once the father writes that it is an inheritance for one child, his whole estate goes to probate and none of the gifts are considered valid gifts.

The third case discusses the connection between the principal (גוּף) if and the production (פֵּירוֹת ). As an example, a father sells his son a factory with the stipulation that he still owns everything factory produces. Once he dies, his son will also own whatever the factory produces. In the course of ordinary events, the law makes sense. “In the case of one who writes a bill transferring ownership of all of his possessions to his son stating that the transfer should take effect immediately so that the son should gain the rights to use the possessions after his death, then although the father retained for himself the right to use the possessions until his death, he is unable to sell the possessions due to the fact that he gave them to the son, and the son is unable to sell the possessions due to the fact that they are still in the father’s possession. If the father sold the possessions, then they are sold to the extent that the purchaser may use them until the father dies. If the son sold the possessions during his father’s lifetime, the purchaser does not receive any rights to use the possessions until the father dies.” (Sefaria.org translation)

What happens when the son sells the factory, but predeceases his father?

“And an amoraic dispute was stated in the case in which the son sold the possessions during the father’s lifetime, and then the son died during the father’s lifetime, following which the father died as well. Rabbi Yoḥanan said: The purchaser does not acquire anything, and Reish Lakish said: The purchaser does acquire the possessions.

“The Gemara explains their reasoning: Rabbi Yoḥanan said that the purchaser does not acquire anything, because he holds that the ownership of the rights to an item and its produce is tantamount to the ownership of the item itself (קִנְיַן פֵּירוֹת כְּקִנְיַן הַגּוּף דָּמֵי), i.e., the actual title to it. Since the father retained the rights to use the possessions until his death, as long as he lives he is considered to hold the title to them. Therefore, the son’s sale can be effective only after the father’s death, at which point the son becomes the title owner. However, if the son dies first, then since he never gained the title to the items, his sale can never come to fruition.

“And Reish Lakish said: The purchaser does acquire the possessions, as Reish Lakish holds that the ownership of the rights to an item and its produce is not tantamount to the ownership of the item itself (קִנְיַן פֵּירוֹת לָאו כְּקִנְיַן הַגּוּף דָּמֵי), i.e., the actual title to it. Therefore, although the father is still alive, the son immediately gains the full title to the possessions, which he may sell to someone else. Nevertheless, since the father retains the rights to use the possessions, the purchaser may use the possessions he acquired only when the father dies.” (Sefaria org translation) This is the third and last time Reish Lakish’s opinion determines the halakha over Rabbi Yoḥanan opinion.