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Week 109 - Wednesday - 26 December 2001

BAVA BATRA: CHAPTER 8: MISHNAH 7

One who writes assigning his assets to his sons, must write, "from today and after death;" so R. Yehudah. R. Yose says, He need not. One who writes assigning his assets to his son for after his death, the father cannot sell because they are assigned to the son, and the son cannot sell because they are in the father's possession. If the father sold, they are sold until he dies; if the son sold, the purchaser has nothing in them until the father dies. The father plucks and feeds whomever he wishes; and whatever he left plucked, belongs to the heirs. If he left adult and minor sons, the adults are not supported by the minors, and the minors are not supported by the adults, but they divide equally. If the adults married, the minors may marry. And if the minors say, We will marry as you married - one does not listen to them, but whatever their father gave them he gave.

Kehati

One who writes assigning his assets to his sons - The commentators explain that this refers to a healthy person who wrote a deed of gift to his children granting them his assets. For example, if he was about to marry and wanted to be sure that his assets were not mortgaged to his wife, for if they were mortgaged to her his children might suffer loss after his death. Instead, he wrote in the deed that his assets were to become his children's after his death, whereas as long as he was alive he was to continue to enjoy the usufruct of these assets (Rashbam; Tiferet Yisrael), must write, "from today and after death" - this phrasing implies that the principal belongs to the children from the time of writing, but they are entitled to the yield from the principal only after their father's death. If, however, he left out the phrase, "from today," the implication would be that the children should have nothing until after his death, but when a person dies he loses all rights to his assets, so that he would then be unable to transfer such rights to another; so R. Yehudah. R. Yose says, He need not - write "from today." The Gemara explains that R. Yose holds that the fact that the deed is dated indicates that the transfer of the principal was effective immediately, for otherwise there would be no need to indicate a date. The halakhah follows R. Yose.

One who writes assigning his assets to his son for after his death - From today and after his death, the father cannot sell - the assets totally, because they are assigned to the son - because the capital belongs to the son, and the father is only entitled to the yield from it, and the son cannot sell - the assets during his father's lifetime because they are in the father's possession - he is entitled to the yield.

If the father sold - the assets without specifying any terms (Rashbam), they are sold - i.e., the yield belongs to the buyer, until he - the father - dies. If at the time that he bought the assets the buyer was not aware that he would only receive the yield until the father's death, he has the right to annul the contract, for it is an erroneous sale (Nimukei Yosef); if the son sold - the goods during the father's lifetime, the purchaser has nothing in them until the father dies - Nonetheless, after the father's death the buyer acquires title to the assets, and even if the son died before the father, the purchaser acquires the goods after the father's death, for the father only had the right to the yield, and possession of the yield is not the same as possession of the asset itself (according to Resh Lakish in the Gemara, and the halakhah follows him).

The father plucks - If a father wrote assigning his assets to his children "from today and after death," he may gather all the produce of these assets, and feeds whomever he wishes - during his lifetime; and whatever he left plucked - after he died, belongs to the heirs - all his heirs, and not only to the one to whom the principal was given as a gift during the father's life. Whatever was still attached to the ground at the time of his death belongs to his son who received the gift. (As to produce which was ready for harvesting at the time of the father's death, there is a dispute among the commentators and poskim - see Bartenura and Tosefot Yom Tov.) This is only true, though, if the beneficiary was his son, for a father feels close to his son. If the beneficiary was another person, whatever was still growing in the field at the time of the person's death belongs to his heirs (Gemara).

If he left adult and minor sons - This case does not refer to one who transferred possession of his assets during his life to one of his sons, but to one where a person died and left adult and minor sons as heirs. In such a case, the adult ones have greater expenses for clothing, but the minors require more for food - young children eat more frequently and even waste food; the adults are not supported - in buying clothes, by the minors - at the expense of the minors; and the minors are not supported by the adults - the minors do not receive food at the expense of the adults, but they divide - the assets equally and each one is sustained from his own portion. If the adults married - after their father had died, and took the costs of the wedding from their father's estate before it had been distributed, the minors may marry - i.e., the minors, too, may take their wedding expenses from the common inheritance. And if the minors say, We will marry as you married - i.e., if the adult sons were married during their father's lifetime and the minor sons come after the father's death demanding their wedding expenses from the estate, just as the older ones received their wedding expenses from the father during his lifetime (Gemara),one does not listen to them - to give them these expenses from the common estate, but whatever their father gave them - his older sons during his lifetime, he gave - as a gift, and it is not considered to be part of the estate.

BAVA BATRA: CHAPTER 8: MISHNAH 8

If he left adult and minor daughters, the adults are not supported by the minors, and the minors are not supported by the adults, but they divide equally. If the adults married, the minors may marry. And if the minors say, We will marry as you married - one does not listen to them. This is a stringency with daughters over sons, that daughters are supported by the sons, and are not supported by the daughters.

Kehati

This is a continuation of the previous mishnah, and deals with daughters, both adult and minor, who inherit an estate.

If he left adult and minor daughters - but left no sons, so that the daughters are the ones who inherit, even then, the adults are not supported - in buying clothes, by the minors - at the expense of the minors; and the minors are not supported by the adults - the minors do not receive food at the expense of the adults, but they divide equally - instead, the assets are divided equally among all. If the adults married - after their father had died, and took the costs of the wedding from their father's estate before it had been distributed among the heirs, the minors may marry - the minors, too, may take the costs of their weddings from the common inheritance. And if the minors say, - to the adults, We will marry - taking our costs out of the common estate, as you married - while our father was alive, one does not listen to them - as in the case of the sons in the previous mishnah.

This is a stringency with daughters over sons - There is one area in which the laws governing inheriting daughters are more stringent than those governing inheriting sons, that daughters are supported by the sons - if the sons inherit an estate and there are also minor daughters, the daughters are supported from the estate under the terms of the ketubah, until they either become adult or are betrothed (Ket.4:11); and are not supported by the daughters - if a person left only daughters, the minors are not supported out of the common estate, but instead the estate is divided up equally among all the daughters, and each one is maintained out of her own portion.

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