פירוש על כתובות 8:7

ילקח בהן קרקע – because her Ketubah is based upon the property of her first husband; therefore, the property of the dead is surety for her Ketubah but the levir eats from the usufruct and if he performs levirate marriage with her, and [and holds] that movable possessions are mortgaged to the Ketubah.

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.

שמין אותם – all that grew in the domain of the dead [brother] is surety to the Ketubah.

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

וחכמים אומרים פירות המחוברים לקרקע שלו – In the Gemara (Tractate Ketubot 82a) it raises the question: but aren’t all his landed property a surety and a pledge for her Ketubah? And it answers (in the words of Resh Lakish): Read, “belongs to her” (the Sages’ dispute is limited to detached produce and money which, they maintain, as movables and not pledged to the Ketubah).

[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.
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: 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.

כל הקודם זכה – for they hold that movables are not mortgaged to the Ketubah other than if she took hold of them and we require from the lifetime of the husband is the taking hold/possession and the same law applies regarding money, for is the difference of money from detached produce, and the Halakha is according to the Sages.

[If it was] produce attached to the ground: ( 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. 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 ketuboth 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”.

הרי היא כאשתו – for when he divorces her with a Jewish bill of divorce and restores her [as his wife], and we don’t speak about (Deuteronomy 25:5): “and perform the levir’s duty,” the All-Merciful said, and still the first levirate marriages are upon her and a Jewish bill of divorce is not sufficient for her, and that is so, that she was divorced, we would say that it a Mitzvah that the All-Merciful cast upon her that when she performs it and established upon her the prohibition of the wife of a brother , and he cannot bring her back, this comes to teach us that the All-Merciful stated (Deuteronomy 25:5): “he shall take her as his wife and perform the levir’s duty.” Since he took her, she is like his wife.

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