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Week 110 - Monday - 31 December 2001

BAVA BATRA: CHAPTER 9: MISHNAH 9

If a house fell on him and on his wife - the husband's heirs say: the wife died first, and afterwards the husband died. The wife's heirs say: the husband died first, and afterwards the wife died. The School of Shammai says: Let them share; but the School of Hillel says: The assets remain in their presumptive title; the ketubah - in the possession of the husband's heirs; assets which enter and leave with her - in the possession of the father's heirs.

Kehati

If a house fell on him and on his wife - who has no children from him (Rashbam), the husband's heirs - his father or his brothers, or his children from another wife - say: the wife died first, and afterwards the husband died - when she died her husband inherited her, and we, in turn, inherit from him, so that the wife's heirs have nothing. The wife's heirs - her relatives from her father's family - say: the husband died first, and afterwards the wife died - and we therefore should inherit all from the wife.

The School of Shammai says: Let them share - For money upon which there is a doubt is shared; but the School of Hillel says: The assets remain in their presumptive title - thus, those assets that the wife brought in as dowry (nikhsei tzon barzel), and for whose capital value the husband assumed responsibility are in the presumptive possession of both the husband's and wife's heirs, and are thus shared among these heirs, whereas the ketubah - the sum assigned by the husband to the wife in the ketubah (if he divorces her or pre-deceases her) remains in the possession of the husband's heirs - because the husband is responsible for the ketubah, and assets which enter and leave with her - those items the woman brought with her from her father's house for whose capital value the husband did not assume responsibility, but whose yield he may enjoy (nikhsei melug); since these assets remain the woman's responsibility, they are in the possession of the father's heirs - i.e., her heirs on her father's side (see Tosefot Yom Tov who explains that this mishnah uses the term "the father's heirs" to conform with the terminology of Yev. 4:3). It follows that the woman's heirs take all of her assets for which he did not assume responsibility (nikhsei melug) and half of her assets for which the husband assumed responsibility (nikhsei tzon barzel)

BAVA BATRA: CHAPTER 9: MISHNAH 10

If a house fell on him and on his mother, these and these agree that they share. R. Akiva said: I agree in this that the assets remain in their presumptive ownership. Ben Azzai said to him: We regret their disagreements, yet you come to cause a disagreement where they agree.

Kehati

If a house fell on him and on his mother - and he had no children, and it is not known who died first; his heirs, namely his paternal brothers, claim that the mother died first and then her son, so that when the son died he had already inherited his mother's estate so that they, in turn, should inherit all these assets from him. The mother's heirs, on the other hand, namely her paternal relatives, claim that the son died first and did not inherit his mother, for a son does not posthumously inherit his mother to pass the inheritance on to his paternal brothers, and, therefore, we, the mother's relatives, are her inheritors. These and these agree - both the School of Hillel and the School of Shammai agree, that they share - for both sides claim on the basis of inheritance, and in this they have equal claims. R. Akiva said: I agree - I hold (he uses the verb "to agree" to parallel the opening section of the mishnah) that in this - case, too, the Schools of Hillel and of Shammai disagree, and the School of Hillel holds that the assets remain in their presumptive ownership - the Gemara explains this means that the assets remain with the mother's heirs, for when she was widowed her assets were in her possession and the presumptive right to these assets remained within her father's tribe; therefore her relatives on her father's side inherit her.

Ben Azzai said to him: We regret their disagreements - We regret the disagreements between the School of Hillel and Shammai in the previous mishnayot, yet you come to cause a disagreement where they agree - yet you wish to add a disagreement where they do agree. Nonetheless, the halakhah follows R. Akiva. Rashbam explains that the mishnah refers to a case where the son was his mother's only child. If, however, she has another son alive from another husband, i.e., a maternal brother of her dead son, and the dead man also has a paternal brother, the paternal brother can claim: The mother died first and my paternal brother inherited half his mother's estate and the dead man's maternal brother the other half; and I inherit my paternal brother's share. The maternal brother, though, can claim: No, my brother died first, so that his inheritance passed to his mother and then, in turn, to me. In such a case, the law is that the maternal brother inherits all, because he is certainly heir to half the assets, while the paternal brother may or may not be an heir. The law is that one who has a doubtful claim to funds cannot take them away from one who has a definite claim to them. Based on this explanation of Rashbam, most commentators explain our mishnah as referring to a case where the deceased was an only son of the mother. Tosafot, though, disagrees, and write that Rashbam's conclusion is not logical, for why should the fact that the maternal brother definitely inherits half the assets entitle him to the other half as well? Moreover, Tosafot points out that this explanation is not in keeping with the Gemara's discussions. Hence, Tosafot says that the law of this mishnah applies even where the woman had other sons from another husband (see Tur, Hoshen Mishpat, 280; Bet Yosef ibid.).

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