THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Basra, 131
BAVA BASRA 131 - sponsored by Mr. and Mrs. Avi Berger of Queens, NY.
Despite the passage of time, let us not forget the tragic deaths of
Mordechai Refael and Tzirel Schivschuurder and their three youngest
children, Hashem Yikom Damam, in the Sbarro bombing last year. May the
father of all orphans give strength to the remaining children to continue in
their parents ways. Mazel Tov to the two sons who have since found spouses.
May Hashem protect them from all harm as well as the third brother, who
insisted on joining an active combat unit in the army, and the younger
1) A HEALTHY MAN REDIRECTING HIS INHERITANCE
OPINIONS: Rava asks whether Rebbi Yochanan ben Berokah's principle -- that a
person may bequeath as much of his estate as he wants, as an inheritance, to
one of his heirs (who is fit to inherit him) -- applies only to a Shechiv
Mera, or whether it also applies to a Bari, a healthy person. Perhaps only a
Shechiv Mera is able to redirect the inheritance, because he is preparing to
die and the verse, "On the day that he bequeaths to his sons" (Devarim
21:16), applies, as he is expressing his final will concerning his estate.
The verse does not apply to a Bari, though, and thus perhaps a Bari is not
able to redirect the inheritance. The Gemara cites proof from an exchange
between Rebbi Nasan and Rebbi that shows that a Bari *is* able to redirect
inheritance among his sons. From the fact that the Chachamim instituted that
Kesuvas Benin Dichrin (see Background to the Daf) be written in the Kesuvah
as an inheritance, thereby redirecting part of the Bari's estate to
particular sons (such that the sons cannot collect the additional money from
Nechasim Meshu'abadim, like a Ba'al Chov, but only from Nechasim Benei
Chorin, like an inheritance), we see that a Bari is also able to redirect
the inheritance of his estate, according to Rebbi Yochanan ben Berokah.
The Gemara seems to conclude that a Bari may instruct who shall inherit what
parts of his estate as an inheritance and not merely as a gift. Is this the
(a) The RASHBAM (DH u'Shema Minah, and 131b, DH l'Olam) explains that the
Gemara resolved this question conclusively, and a Bari *may* dictate the
terms of the inheritance. This is also the view of the RI (cited by Tosfos)
and the BA'AL HA'ME'OR.
(b) Other Rishonim, including TOSFOS, the RIF, ROSH, RAMBAN, and TUR,
maintain that the Gemara did *not* resolve this question. Accordingly, a
Bari may *not* dictate the terms of the inheritance. This is the Halachah as
recorded by the Shulchan Aruch (CM 381:5).
Tosfos explains that when the Gemara concludes, from the exchange between
Rebbi Nasan and Rebbi with regard to Kesuvas Benin Dichrin, that a Bari may
redirect the inheritance of his heirs, this applies only to the case of
Kesuvas Benin Dichrin. The Chachamim enacted that a man is able to redirect
part of his estate to his sons (from one mother) as Kesuvas Benin Dichrin,
for the benefit of those sons and their mother. In general, though, a Bari
cannot dictate the terms of his sons' inheritance. (See Tosfos' explanation
of the flow of the Gemara.)
The NIMUKEI YOSEF maintains that not only do we rule that a Bari cannot
dictate the terms of the inheritance, but even if he attempted to do so, and
the beneficiary of his terms seized the portion that the Bari had designated
for him, we take it away from him.
The HAGAHOS ASHIRI cites the opinion of the OR ZARU'A who maintains that
even though the Gemara did not resolve its question, as Tosfos explains,
nevertheless if the beneficiary of the terms seized the portion designated
for him, we do *not* take it away from him. Since the matter is in doubt, he
is able to argue that he is certain that a Bari *is* empowered to dictate
the terms of the inheritance. This is also the opinion of the RA'AVYAH.
The SHACH (in TAKFO KOHEN #72) asks that the Ra'avyah elsewhere maintains
that, in general, when the Gemara leaves a question unresolved, one who
seizes the item in question on the grounds that he is certain that he
Halachah is in his favor is *not* entitled to keep the item, and we take it
away from him. Why, then, in this case, does the Ra'avyah allow the person
who seized the property to keep what he seized?
The Shach suggests that the Ra'avyah is of the same opinion expressed by the
MAHARSHAL, who writes that only when the Gemara leaves its question
unresolved with the word, "Teiku," is seizing the object ineffective. Where,
however, the Gemara does not end with "Teiku" but rather it merely does not
answer its question, one who seizes the item in question and argues that he
is certain that the Halachah is in his favor may keep the object.
The TUMIM notes that the Shach himself maintains that whenever there is a
dispute among the Poskim regarding what the Halachah is, if one of the
litigants seizes the item in question, claiming that he is certain that the
Halachah follows the opinion of those Poskim who rule in his favor, he may
keep the item. According to this, in the case of our Gemara in which there
are some Rishonim (the Rashbam and the Ri) who maintain that the Gemara's
question was resolved and a Bari indeed may alter the inheritance, if the
beneficiary of the Bari's terms seizes his portion, he may keep it and we
cannot take it away from him. (Y. Marcus)
2) MAKING ONE'S SON A CARETAKER OF THE ESTATE
QUESTION: The Mishnah (130a) teaches the ruling of Rebbi Yochanan ben
Berokah, who says that one may redirect his estate to any one of his heirs
as he chooses. The Gemara here assumes that one who gives all of his
property to one of his sons is merely making his son an Apotropos, a manager
to take care of the estate, so that his other sons will respect. He does not
intend to give the son actual possession of the property.
What determines whether the beneficiary actually receives possession of the
property, or whether he is merely a caretaker of the property?
(a) The RASHBAM (130a, DH Halachah) maintains that whenever the father
stipulates that the son should "inherit" him, the son actually becomes the
owner of the property. By saying that he wants his son to "inherit" the
property, he implies that he wants the son to own it in the same way that he
himself owns it. It is only when the father stipulates that he wants to give
his son a "gift" that we assume that he does *not* intend to grant his
property to the son, but rather he intends only to appoint his son as the
caretaker over the property. It is likely that when he expressed his will to
give the property to his son, he intended that the property should be under
his son's control, but not in his ownership. (Accordingly, it does not
matter whether the father communicated his will in writing or orally, nor
whether he included all of the estate or part of the estate.)
(b) RABEINU CHANANEL (cited by the ROSH 8:31) maintains that only when one
*orally* dictates his will does the son take possession of the estate, but
when one puts his will in *writing*, then he only makes his son a caretaker
of the property. The ROSH disputes this view, because he does not agree that
the son should lost just because the will was written (a written statement
of intent is usually *stronger* than a verbal one). He suggests that perhaps
Rabeinu Chananel meant that since it can be assumed that the written word
becomes more well-known than the spoken word, when the father wrote his will
it is likely that he meant merely to publicize his high regard for his son
so that others will honor him as well.
(c) The Rosh cites another explanation in the name of Rabeinu Chananel. When
only part of the estate was given to one son, we assume that the father
intended for him to actually own what he gave him, but when the entire
estate was given, he intended to make the son a caretaker over the estate.
(d) The ROSH explains simply that we always assume that the father wants to
make his son a caretaker of the estate unless he specified that he intends
for the son to actually own the estate.
(e) The BA'AL HA'ME'OR maintains that we assume that the father intended to
make his son a caretaker of the estate only when the other sons are minors,
or when they are overseas. In such a case there is a practical need for a
caretaker. In all other cases, the son actually becomes the owner of the
estate. (Y. Marcus)