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Unlawful Estates

Bava Batra (8:5) | Yisrael Bankier | 2 days ago

The eighth perek discusses the laws of inheritance. The Mishnah (8:5) teaches that if a father declares that his first born will not receive double share, or that one of the son's will not receive a share of the inheritance, it has no effect since it is an going against the Torah law. We shall try to understand this Mishnah.

The Gemara (126b) notes that the principle that one cannot stipulate against a Torah law is the subject of debate when the matter is financial. The example brought is in the case of kiddushin where the man stipulates that he will be exempt from providing for her. R' Meir argues that since it is a biblical obligation, the condition falls away, whereas R' Yehuda argues that the condition holds. Considering that our Mishnah is a financial matter, it would appear that it does not accord with the position of R' Yehuda. The Gemara however asserts that even R' Yehuda would agree with the ruling in our Mishnah. That is because in this case, he only maintains that such conditions can work, where both parties are aware and forgo their financial right. In this case, the rightful heir does not forgo his right. The Rashbam explains that even if the son was present and remained silent, it does not mean that he agreed. His silence is simply because he did not want to upset his father.

The Rashba understand that according to the Rashbam, if the son accepted the condition to part with his share of the inheritance, then it would indeed work. The Rashba however disagrees. He maintains that one cannot forgo something that will eventually be his (by way of inheritance) but is not his now. The example he brings is that one if one tries to sell property that he will eventually inherit, it does not work. When the Gemara states that R' Yehuda would agree with our Mishnah because he has not been mochel (given up his share) it is meant to be understood as follows. Even if you would think mechila could work, in this case the son has not been mochel.

The Ketzot (278:13) cites three different explanations. The first is the Tosfot (Ketubot 83a) who explains that it is only rabbinic enactments that one can stipulate to forgo. The second is the Ran (Ketubot 41a, Rif) who explains that one can even remove a biblical right. In the case of inheritance however, since he is fit to inherit at any moment, it as if the right has already be realized and it is already in his possession. Finally, he cites the Magid Mishneh he cites others who explain that there is a difference between the husband right to inherit, which can be forgiven and this case. The difference being that the right itself came about through his actions.

How then do we understand that Rashbam? The Ketzot explains that the Rashbam was only explaining the case of the bechor, where if he agreed to give up his double share then it would work. Importantly, the result would be that he is no different to his brothers. Why is the double-share any different? The Ketzot explains that the Torah refers to it is a matana. That being the case, even after the father dies, he would be able to refuse the "gift". Consequently, he would be able to stipulate against it even during his father's life.

This understanding works according to all three explanations above. According to Tosfot, even if it is biblical, it would not be problem, because, again, it is a gift. According to the Ran, since after death he can refuse that share, it means it is different to other inheritance where removing himself is not possible. Finally, according to those cited by the Magid Mishneh, since the gift is dependent on his receipt, it too is considered dependent on an action.

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