Ask A Question about the Daf

Previous daf

Bava Basra, 131

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 Halachah?

(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)

131b

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?

ANSWERS:

(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)