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Week 109 - Friday - 28 December 2001

BAVA BATRA: CHAPTER 9: MISHNAH 3

If one left adult and minor sons, if the adults improved the estate - they improved for the middle. If they said: See what father left us, we will do and eat - they improved for themselves. And so, too, a wife who improved the assets has improved them for the middle. If she said: See what my husband left me, I will do and eat - she improved for herself.

Kehati

If one left adult and minor sons - If a person died, leaving both adult and minor sons, if the adults improved the estate - if, before the inheritance was divided up, the adult children increased its value, they improved for the middle - i.e., as a partnership for all the brothers and each receives an equal portion of the improvement. ("For the middle" implies an equal division among all.) The Gemara explains that the mishnah here speaks of a case where the money used to gain this increase came from the estate itself, where, for example, the estate money was used by the adult sons to hire laborers to work a field, in which case we say that the adult heirs are willing to forego any payment from the minor heirs for the work put into producing this added revenue. If, on the other hand, the adult sons did the work themselves rather than hiring laborers, or hired laborers and paid for them out of their own pockets, any added revenue belongs to the adult sons.

If they - the adults - said - before a Bet Din or before witnesses: See what father left us, we will do and eat - the improvement - they improved for themselves - Since the Bet Din ignored their warning that the assets were about to be divided and that their improvements would belong to them, then since the Bet Din did not take account of their warning and permitted them to do so, the Bet Din must have seen some benefit for the remainder of the brothers, and waived the minors' rights to the improvement (Rosh; Tiferet Yisrael). Some explain that they are permitted to retain the improvement because they revealed that they did not donate their work, and thus the improvements belong to them (Ramah).

And so, too, a wife who improved the assets - after the death of her husband, has improved them for the middle - i.e., for the benefit of all the heirs. The Gemara explains that the mishnah here refers to a widow who inherited her husband's assets. For example, if Reuven married the daughter of his brother Shimon and Reuven died childless, and Shimon also died leaving only daughters who inherit Reuven. If she now improves the estate she shares equally with her sisters. If, on the other hand, Reuven's widow had not been one of the heirs, any improvement would be divided amongst the orphans.

If she said: See what my husband left me, I will do and eat - she improved for herself - since she announced this publicly, the improvement belongs to her, as we explained in the previous halakhah.

BAVA BATRA: CHAPTER 9: MISHNAH 4

Brothers who are partners, and one gained a trade, it falls to the middle. If he became ill and was cured, he was cured of his own. Brothers, some of whom acted as groomsmen during the father's lifetime, when the groomsman's gift was reciprocated - it returns to the middle, for groomsman's gifts are actionable in the Bet Din. But if one sends jars of oil or jars of wine to his friend, they are not actionable in the Bet Din, because they are acts of kindness.

Kehati

Brothers who are partners - in earning their living from a common inheritance, and one gained a trade - in the service of the king (Gemara), i.e., he was appointed to a state office, it falls to the middle - the wage he receives is owned jointly by all the brothers. This is so only if he received the position because of their father, who might have been close to the government - there is no need to say so if he received it because of his brothers, and even if he was more fitting than the others to receive that particular position. If, however, they told him that they appointed him on his own merits, such as his perspicacity or his wisdom, his wages are his own (baraita in the Gemara).

If he became ill and was cured - If one of the brothers became ill, and he laid out monies for medical treatment, he was cured of his own - his medical expenses are at his own account. The Gemara explains that he is only required to pay for his own medical expenses where he became ill due to his own negligence, as, for example, if he did not take precautions against the heat or cold, for R. Hanina said: Everything is in the hands of heaven except for colds and fevers, as it states (Prov. 22:5), "Colds and fevers are in the way of the forward; he who guards his soul keeps far away from them." If, however, he became ill through no fault of his own, his medical expenses are covered by the partnership.

Brothers, some of whom acted as groomsmen during the father's lifetime - They had the custom in those days that when a man married, his friends and acquaintances sent him gifts to cover the expenses of the days of feasting, and during those seven days of feasting those who sent gifts ate with the groom. These gifts were known as groomsman's gifts (shushbinut) and those who sent them were known as groomsmen (shushbinim). Groomsmen's gifts were not outright gifts but were more like loans, for when a person sent the presents he expected the groom to reciprocate when he, in turn, married. Therefore, if such gifts were not reciprocated, one had the right to sue for the recovery of one's outlay (Rambam, Hil. Zekhiyah u-Matanah 7:1-2). This mishnah, then, teaches on the face of it, that if some of the brothers were made groomsmen while their father was still alive, i.e., they sent the gifts from their father's funds, when the groomsman's gift was reciprocated - if the groom reciprocated and sent a gift to the brothers who married after the death of their father, it returns to the middle - to the joint funds of the partners, for groomsman's gifts are actionable in the Bet Din - as explained before, because these groomsman's gifts are like a loan that their father left them, and the one who received the groomsman's gifts was obliged to return similar ones to the sender.

The Gemara, though, quotes a baraita which states that if a father sent a gift in the name of a particular son, when it is repaid, it is repaid to that son in whose name the father sent the gift. From that baraita arises a question against our mishnah. For from the baraita we can deduce that if the son receives the reciprocated gift, if the father originally sent it on behalf of the son, this should be all the more so true where the son himself sent the gift, even if he sent it from his father's assets. The Gemara therefore explains that the mishnah refers to a case where the father sent the gift on behalf of one of his sons, but did not specify which one. So all are included, so if a gift is reciprocated after the father's death, it returns to the middle, i.e., to all the brothers. And that is indeed the halakhah (Gemara).

But if one sends jars of oil or jars of wine to his friend - not when he was getting married, or even on the day of the wedding, but the sender did not go to eat and rejoice with the groom, they are not actionable in the Bet Din, because they are acts of kindness - these are not considered groomsman's gifts, but simply gifts and acts of kindness, and one cannot sue for their return. We have explained this mishnah in accordance with Rashbam and Bartenura, but Rambam explains that this mishnah teaches that the law of groomsman's gifts only applies to money gifts, but not to jars of wine or oil. (Rambam, Hil. Zekhiyah u-Matanah 7:15) Others explain that the law of groomsman's gifts applies to silver, gold, clothes, or similar items, but not to food and drink (Ramah).

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