Zechiyah uMattanah - Chapter 11

The term banai can be interpreted as meaning “sons” or “children.” Although according to the latter meaning the man’s daughters would also be included, we assume that the dying man meant to transfer his property to his sons alone.
As reflected by the contrast to Chapter 6, Halachah 14, this concept applies only with regard to a dying man and not. to a gift given by a healthy person. Our Sages explain the di tinction between the two as follows: According to Scriptural Law, an inheritance is given only to the sons. Therefore, we assume that the dying man desired to uphold this canon, even though doing so would exclude his daughters.
One might therefore ask: Since the estate will be given to the dying man’s sons anyway, because of the laws of inheritance, why was it necessary for him to make this statement? It is possible to explain that this refers to a situation in which the dying ma n had already apportioned his property to others, o it was necessary for him to say that he was giving it to his sons to retract his previous gift (Sefer Me’irat Einayim 247:6).
Rabbi Akiva Eiger emphasizes that the daughters are not excluded from the division of the estate entirely. Instead, they are each given the traditional gift of a tenth of the estate at the time they marry. (See Hilchot Ishut, Chapter 20.)

We do not say that the use of the plural term indicates that he intended to include his daughter or his grandson among the recipients.

With regard to the daughter, the rationale mentioned in note 1 applies. With regard to the grandson, it is explained that it is not common for a person to refer to his grandson as his son.
See also the Hagahot Maimoniot, which cite Numbers 26:8 and I Chronicles 2:8 as Scriptural precedents for referring to one son as “sons.”

This applies even if there is another person in the locale named Tovia and who we might think was the intended recipient. As long as that person does not claim the estate, we assume that the person who does claim it is in fact the intended recipient.
Moreover, we do not delay settling the claim [Tur; Ramah (Choshen Mishpat 253:29)]. Should another claimant come, he can expropriate the property through legal process (Sefer Me’irat Einayim 253:63).

I.e., he serves as a halachic authority who renders decisions and is referred to by others in a manner that reflects their appreciation of his position.

For we can assume that the dying man would also have referred to him by his title.

Although the sh’chiv me’ra was making a formal legal statement, we assume that he referred to his friend in his usual manner, and not as he would be called by others.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 253:29) state that these laws apply when the sh’chiv me’ra states that his estate should be given to a person whose identity is a matter of question. If, however, the dying man says that he owes a person an amount of money, and two people claim to be the person intended, the debt should be divided between them. The Siftei Cohen 253:39 does not accept that ruling.

And the estate should be given to him. The rationale is that we assume that the dying man desired the merit of providing assistance to a Torah scholar (Rashi, Ketubot 34b).
The Tur and the Ramah (Choshen Mishpat 253:29) state that if it is known that the dying man had a closer relationship with the other claimant, he is awarded the estate despite the scholar’s virtue.

The Tur and the Ramah (Ibid.) explain that the term shachen refers to a business associate, and not a person with whom one lives in geographic proximity.

For we assume that he is being granted the property because of the closeness they shared.

To this situation our Sages applied the verse (Proverbs 27:10): “A close neighbor is preferable to a distant relative.”
The Tur and the Siftei Cohen 253:38 state that if the relative would be the heir of the estate, he is given precedence.

This is the Rambam’s interpretation of the Halachic concept shuda d’dayanei. See the notes on Hilchot Mechirah 21:15 for a discussion of this concept.

The fact that one person is mentioned first is not significant.

I.e., he does not mention his sons by name. If he did so, each would receive an individual share (Maggid Mishneh).

Bava Batra 143a derives this from the description of the division of the showbread (Leviticus 34:9): “It will be for Aaron and his sons,” which is interpreted to mean “half for Aaron, and half for his sons.”

The Rambam maintains that when a collective entity (“the sons of so and so”) are mentioned, they always receive half the estate. Although there are other authorities (the Ramban and the Ra’avad) who differ and maintain that the collective entity should be considered no greater than any of the individuals mentioned, the Rambam’s opinion is accepted by the Shulchan Aruch (Choshen Mishpat 253:24).

This is the opinion of Rabbenu Yitzchak Alfasi, who maintains that “a portion” must refer to a significant entity – at least one fourth. The Tur and the Ramah (Choshen Mishpat 253:24) mention a third opinion: that the person named receives a share of the estate equal to that given to one of the deceased’s sons.

Our translation is taken from the Rambam’s Commentary on the Mishnah (Shabbat 17:6, 24:5).

The Tur and the Ramah (Choshen Mishpat 253:25) maintain that the designated person should be given only an extremely small portion of the wine in all the above instances.

For we are not certain why our Sages made these distinctions (Rabbenu Yitzchak Alfasi).

This applies even if the sons are born after the sh’chiv me’ra dies.

The converse is also true. If one the sons of the sh’chiv me’ra dies, and thus each of the remaining sons receives a greater portion, the widow also receives a greater portion (Rashbam, as quoted by the Maggid Mishneh).

I.e., we do not say that she should be given a fourth (as would have been given her at the time the will was made). Instead, the size of her portion is dependent on the size of the portion of the deceased’s sons.

See Hilchot Mechirah 22:5, which explains this principle.
Since the property that the deceased acquired afterwards was not in his possession at the time he made his will, he cannot transfer ownership of it to his wife.

For although produce is technically considered to be movable property, when most people use that term they do not have produce in mind.

For by adding the word “all,” the sh’chiv me’ra obviously desired to include something additional.

The Maggid Mishneh explains that this halachah is based on the final clause of the previous halachah and applies only when a person states “All of my movable property.”
See Hilchot Mechirah 5:5 and notes, which explains that although in certain contexts servants are governed by the laws that apply to landed property, when categorizing them, they are defined as movable property.

Thus, it is not common to transport it. Eve n when it is cleaned, it is not usually moved from its place. Hence it would not be referred to as “movable property.” An upper millstone, by contrast, is moved more often and hence would be considered in that category (Sefer Me’irat Einayim 248:38).

For the dying man obviously intended to broaden the scope of his gift by using this expression.

The Lechem Mishneh and others ask: Why does the Rambam not mention money and promissory notes? These are also specifically mentioned in his source, Bava Batra 150b, 151a. And seemingly, the status of these matters requires at least the same degree of clarification as the others that he does mention explicitly.

Since a Torah scroll should never be sold or given away, it is questionable if it is placed in the same category as other property.

Since the heirs cannot prove that the Torah scroll is rightfully theirs, they cannot expropriate it from the claimant.

Since the words “as appropriate for him” are extra, we assume that they were spoken to give the firstborn the money in addition to his share (Sefer Me’irat Einayim 253:14).

I.e., the double portion that he receives.

The father cannot detract from the firstborn’s portion. Therefore, if his portion is more than 200 zuz, he may claim it. If his portion is less than 200 zuz, he may claim the gift his father gave him.

I.e., she may claim the money due her by virtue of her ketubah, or she may claim the 200 zuz.

I.e., if the debt is less than 200 zuz, he should not be given the additional sum. The rationale is that it appears as if the sh’chiv me’ra were paying the creditor interest (Maggid Mishneh). If, however, he says “as is fitting for him,” his expression indicates that he is giving the creditor a gift for the favor he performed for him (Sefer Me’irat Einayim 253:16).

The daughter and the money.

Because one was not made conditional on the other.

Had such statements been made by a healthy person, the condition would not be binding, for it does not conform to the laws of conditional agreements, as specified in Hilchot Ishut, Chapter 6. Nevertheless, leniency was granted to a dying man, and his statements are binding even if he did not follow all the legal technicalities (Ramban, Siftei Cohen 253:16).

I.e., the appraisal is doubled as a token of respect for the bride (see Hilchot Ishut 23:11).

I.e., the daughter must be given the garments and the articles her father specified. Nevertheless, rather than buy her the amount that she could purchase with the money that would have been required to purchase these articles at the time her father made his statement, she is given only the amount of garments and articles he mentioned.
Conversely, if the price of garments and articles increases, the heirs must buy her what her father specified, even though it costs more (Maggid Mishneh).

This reflects the version of Ketubot 54a, the source for this halachah, possessed by the Rambam. The standard text of that Talmudic passage differs, and hence there are different interpretations offered by other authorities.

See the Shulchan Aruch (Choshen Mishpat 253:13), which explains what should be done if the wine spoils.

To his execution.

Had the dying man not said that, the heirs could claim that the intent was that the recipient should be given from wine that is buried somewhere. Although the court would not accept this claim, by specifying the place of the wine, the dying man insured that his heirs would not even contemplate issuing such a claim.

I.e., he was a partner in the ownership of two date palms. According to the Rambam’s interpretation of this passage (Ketubot 109b), if Lhe sh’chiv me’ra possessed another whole date palm, this should be given to his daughter rather than the two halves. Rashi and others interpret the passage differently. Their opinion is reflected in the rulings of the Tur and the Ramah (Choshen Mishpat 253:22).

Note the statements of the Bayit Chadash, who explains that if the building is larger and can contain more than 120 korim, it is not given to the intended recipient. For we say that a person will not make such a large error. This view is not accepted by all authorities. See Siftei Cohen 253:18.

And he did not have a smaller building.

Therefore, he is given the entire building. We do not say that he intended to give the recipient only an area for 100 korim, and the remainder of the building should be given to the heirs.

Double the value of a shekel.

Compare to Chapter 12, Halachah 6.

Sefer Me’irat Einayim 253:69 states that in such an instance we are forbidden to eulogize him, because “It is a mitzvah to carry out a dying man’s words.”

There is a debate among the Sages whether a eulogy is an expression of honor for the deceased (in which case he is able to forgo it) or an expression of honor for his heirs (in which instance his statement would have no consequence). Sanhedrin 47a rules that it is an expression of honor for the deceased. Hence, the Rambam’s ruling.

Who would have to pay for his burial.

It is a mitzvah to bury a Jewish corpse, and the failure to do so violates a negative commandment (Hilchot Eivel 12:1). If there is no money in the estate, however, communal funds should be used to bury the corpse.