Rambam - 3 Chapters a Day

Although generally, a person can make stipulations regarding his own property as he desires, an exception is made in this instance as the Rambam continues to explain.

As stated in the concluding chapters of Hilchot Zechiyah UMatanah, a person may bequeath his estate to others. These concepts are also mentioned in Halachah 5. If, however, he does not speak of giving a present, but instead seeks to make another person his heir, his statements are of no consequence. For he cannot change the laws of inheritance.
One might think that since stipulations may be made with regard to all financial transactions, it would also be possible to make a stipulation with regard to inheritance. Hence, it is necessary to emphasize that this is not so.

The Rambam’s wording in this halachah appears to indicate that this principle is Scriptural in origin. Trying to make changes in the order of inheritance represents a stipulation made against the Torah itself.

I.e., with his statements, to change the laws of inheritance.

I.e., with his statements, to introduce a new heir, who is not given the right of inheritance by the Torah.

Rabbi Akiva Eiger uses this law to derive insight into an abstract concept: Do brothers have the status of direct heirs of a deceased brother? Or is their father the heir, and they receive their portion because they are heirs of his estate?
The fact that the dying person has the potential to select one of the brothers indicates that they are considered direct heirs. For if their connection was only by virtue of their father, he could not do so. The Ketzot HaChoshen 281:2 does not accept this conception. He maintains that even though the brothers receive their inheritance by virtue of their father, the dying man has the right to apportion his estate as he desires.

Bava Batra 130a derives this concept from Deuteronomy 21:16: “On the day when he will give his inheritance to his sons.” Implied is that the father has the power to apportion his estate to his heirs as he desires.

The Rambam makes a distinction between the laws applying to a son and those applying to other heirs. This conception is not accepted by all authorities.

In his gloss on Hilchot Zechiyah UMatanah, the Maggid Mishneh explains that mentioning the son as the guardian in a written document is an honor that compels his brothers to respect him. Hence, we can assume that his intent was merely to make him a guardian. When, by contrast, the father merely makes these statements orally, this principle does not apply.

See Hilchot Zechiyah UMatanah 6:2. There the Rambam states:
When a person assigns all of his property to one of his sons.... He receives the same share as the other sons in his estate. It can be presumed that [the father’s] intent was merely that the other brothers should listen to this son. [This assumption is followed] even if the son in question is an infant, lying in cradle.
The Tur and the Ramah follow the interpretation of the Rashbam (Bava Batra 130a) and state that if a dying man uses the expression “inherit,” the son is not considered to be merely a guardian. Instead, the entire estate is given to him. The Rambam’s perception is based on the interpretation of the Sephardic teachers who preceded him, Rabbenu Chanan’el and Rabbenu Yitzchak Alfasi, and is perpetuated in the Shulchan Aruch (Choshen Mishpat 246:4).

On his deathbed, as reflected in the following halachah. Alternatively, when giving a present, as reflected by Halachah 5.

For, as stated in the previous law, he may apportion his estate as he desires.

The Ramah (Choshen Mishpat 281:4) writes that even if the local custom is not to give a firstborn a double share, that custom should not be followed because it runs contrary to Torah law.

Implied is that although the father can give any one of his sons whatever share in his estate he desires, he cannot do this by reducing the firstborn’s share. The Maggid Mishneh quotes Rav Yosef Migash as explaining that the first clause of this halachah, which enables a father to give an ordinary son as large a share as he desires applies only when there is no firstborn son (e.g., the oldest child was a daughter or was born by Cesarean section). Rabbenu Asher and the Tur (Choshen Mishpat 281) differ and maintain that when one son is given more than the others, the firstborn’s share remains unchanged and the shares of the other sons are reduced proportionately. While the Rambam’s words do not give us a clear-cut picture of which perspective he follows, from the subsequent halachot it would appear that he follows that of Rav Yosef MiGash, his teacher. The Shulchan Aruch (Choshen Mishpat 281:6) mentions both opinions without indicating which one should be given precedence.

Bava Batra 131a leaves the question unresolved of whether statements made by a healthy person are effective or not. Hence, the Rambam rules that no deviation should be made from the rules of inheritance. This law is also stated in Hilchot Zechiyah UMatanah 12:2.

I.e., all the laws in this chapter where it was stated that a person's statements are of no consequence.

For in this instance, he would be making a stipulation that contradicts the Torah’s principles.

For he is entitled to give presents to whomever he desires.

Using wording that indicates that he is giving presents.

Moreover, when a person is on his deathbed, a kinyan (act of contract) is not necessary to affirm his statements, as stated in Hilchot Zechiyah UMatanah 8:2. When, by contrast, a person gives a present when healthy, he must affirm it with an act of contract (Maggid Mishneh).

As indicated in the notes above, the Torah defined the order of inheritance. It did not place any restrictions on how a person could apportion his estate by giving presents.

For by saying so, he minimizes the portion of the firstborn. The Maggid Mishneh and other commentaries maintain that this clause indicates that the Rambam follows the perspective of Rav Yosef MiGash mentioned in the notes on Halachah 3.

By mentioning the concept of a present with regard to one recipient, the person making the requests causes those gifts that he made using wording that implies an inheritance to be considered as acceptable.

The term used by the Rambam toch k'dei dibbur has a specific meaning, the time it takes for a person to say: shalom alecha rabbi umori (greetings, my teacher and master).

In such an instance, the three points are all considered to be a single statement.

For each of the points he mentioned is considered individually.
The Tur and the Ramah (Choshen Mishpat 281:7) emphasize that the distinction made by a pause applies only when a gift is being given to three individuals. If it is being given to one person, the three statements are considered connected even if the person making the bequest pauses in the middle.

In this and the subsequent clauses, the standard printed text of the Mishneh Torah mentions only two individuals (so-and-so and so-and-so). This has attracted the attention of the commentaries, because the previous halachah spoke of three individuals being involved. Our translation is based on authoritative manuscripts and early printings of the Mishneh Torah.

As indicated by Halachah 1.

According to Jewish law, marriage is a two-stage process. In the Talmudic era, a couple would wait approximately one year between the two stages. In the first stage, kiddushin or erusin, a woman is designated as a husband's wife. From that time onward, she is forbidden to other men. Nevertheless, the couple do not live together as husband and wife, and they do not have any financial responsibilities to each other. The second stage, nisu'in, begins when the couple enter the chuppah. After this time, they live together as husband and wife and their financial holdings are interrelated.
As stated in this halachah, once married (i.e., after nisu'in), a husband cannot stipulate that he is waiving his rights to his wife's estate, because of our Sages' decree. And before he consecrates a woman (even if they have been engaged), his statements are of no consequence, because the two share no connection to each other. In the interim between erusin and nisu'in, a connection between the two has been established, but financial responsibility to each other still has not been established. Hence, the husband's stipulation can be effective.

See Hilchot Ishut 23:2,5-7.

Kiddushin 18a derives this concept from Deuteronomy 2:9: “I gave Er as an inheritance to the descendants of Lot.” Others differ and derive it from the exegesis of Leviticus 25:50.

For the order of inheritance mentioned in Chapter 1 applies only with regard to the Jewish people (Maggid Mishneh).
As stated in Hilchot Melachim 10:11-12, the Jews are responsible for establishing a court system for gentiles. In certain contexts, we follow the Torah’s standards. In others, the gentiles’ laws are allowed to stand.

For conversion establishes a person as a new entity, with no connection to his past.

See Hilchot Avodat Kochavim 9:7, which explain the laws that apply when a convert and his gentile brother inherit their father’s estate.

I.e., our Sages feared that he would abandon Judaism if denied his inheritance.

I.e., if, before converting, a gentile stipulated that he waives his rights to his father’s estate, his stipulation is binding and he is not entitled to receive anything.

I.e., if both a father and a son convert, although the father dies without conceiving other children after his conversion, the son does not have the right to inherit his father’s estate. This law applies even if the son was conceived before a couple’s conversion and born afterwards (Hilchot Zechiyah UMatanah 9:7). Similar laws apply if two brothers convert.

For by doing so, the person uproots the Torah’s laws of inheritance [Rashbam (Bava Batra 133b)].

For it is possible that the children who descend from him will conduct themselves properly (ibid.).

There is a question if the phrase “toward him” should be included or not. It is found in some early printings and authoritative manuscripts, but is lacking in others. If the phrase is included, the focus would be on the interpersonal relations between the individuals involved. If it is omitted, the focus would be on the heir’s level of adherence to the Torah and its mitzvot. From the concluding clause in the halachah, this would appear to be the intent. The Tur omits the phrase, while the Shulchan Aruch (Choshen Mishpat 282:1) includes it.

Kiddushin 18a derives this concept from Deuteronomy 2:5: “I gave Mount Se’ir to Esau as an inheritance.”

As stated in Hilchot Sanhedrin 24:6, the Jewish court has the right to expropriate property as it sees fit.

Or a father or other heirs (Sefer Me ‘irat Einayim 283:9).

I.e., among the Jewish communities in Spain, Morocco and Western Europe.
The Tur and the Ramah (Choshen Mishpat 283:2) quote Rabbenu Asher, who states that the inheritance should be entrusted to the court for safekeeping. If the apostate corrects his conduct, it should be given to him.

Giving one more and another less.

Whose envy was aroused because Jacob gave Joseph a striped garment (Genesis, Chapter 37).

A non-Jew’s testimony is not acceptable evidence in court. Nevertheless, statements that he made in the course of conversation - i.e., when he does not know that this information is significant to Jews - are accepted in certain situations. Nevertheless, such leniency is not granted in the situation at hand.

Leniency was granted in these situations to allow a woman the possibility of remarrying, because it is likely that sooner or later the details of the matter will come to light. Hence, at the outset, a person would not make statements concerning such matters if they were not true (Hilchot Gerushin 13:29).

Although this is also a financial matter, the gentile’s word is never~heless accepted. For the standard text of a ketubah states: “You may collect the amount here when you marry someone else” (Yevamot 116b).

The rationale is that since there are severe penalties if a woman remarries and then her first husband is discovered to be alive, we assume that the woman would not remarry unless she thoroughly investigated the matter. With regard to financial matters, however, we fear that the heirs will not take that much caution before reporting a person's death (Sefer Me'irat Einayim 284:2).

For she is not an acceptable witness. As mentioned above, leniency was granted in allowing her to remarry, but not in dividing her husband’s estate.

As is required to fulfill the mitzvah of yibbum.

We have translated the verse in the spirit of Yevamot 24a, which uses it as a proof-text to demonstrate that the brother who marries the widow inherits the deceased’s estate. Yevamot 117a states that as a result, even in a situation where the testimony regarding the deceased’s death would not be acceptable, since the brother marries the widow, he is granted the estate.

I.e., an ocean, lake or river where it is impossible to see the shore. (See Yevamot 121a.)

I.e., they watched for a period sufficient for him to have drowned without seeing him emerge from the water, and his body was not discovered afterwards.

After the fact, even in such a situation, if the woman did remarry, she is permitted to remain married to her second husband (Hilchot Gerushin 13:19).

As the Rambam explains in the latter portion of the halachah, in this situation, since the probability is high that the person did in fact die, our Sages feared that a woman would not make a thorough enough investigation and would remarry before receiving definitive proof. Because of the seriousness of the prohibitions involved, our Sages did not give her license. With regard to financial matters, however, they were willing to rely on the statistical probability.
The Ra’avad mentions that a wife is not allowed to collect the money due her by virtue of her ketubah in this situation. For in her case, the financial settlement cannot be separated from the license for her to remarry. See Hilchot Ishut, the conclusion of Chapter 16, Hilchot Gerushin 12:15-16 and 13:17-21, where the Rambam discusses these issues.

See Hilchot Gerushin, Chapter 13, where the Rambam describes these and similar situations.

I.e., the prohibition against adultery. If the woman's first husband is not dead, her relations with her second husband are adulterous.

Implied is that we would not give them these privileges, but since they took them, we will not remove them. Unlike the situation described in the following halachah, where the relatives are merely sharecroppers keeping the land as a trust for the owner, this halachah is talking about a situation where they asserted their ownership over it as if it were their property. For example, they built or destroyed structures.
The above explanation is offered by the Maggid Mishneh in resolution of the Ra’avad’s objections to the Rambam’s rulings. The Maggid Mishneh does, however, question the source for the Rambam’s statements. He cites a baraita from Bava Metzia 38b, which could possibly have led to such a conclusion.

In both these instances, there is a likelihood that the person died. Hence, we do not expropriate the property from the heirs.

Although the Rambam states in Halachah 10 that if we hear that a person who left his city died - even if he left voluntarily - we entrust his property to a relative, but in that instance, he is given the property to use as a sharecropper. Here, as explained above, we are talking about a situation where a person asserts ownership over the property as if it were his own.
If we do not hear a report that the person died, we do not entrust the property to a relative. The rationale is that since the person left voluntarily without entrusting his property to anyone, we assume that this was his desire. When, by contrast, he fled or was taken captive, we assume that had he had the time to organize his affairs, he would have entrusted his property to someone [Rashi (Bava Metzia, loc. cit.)]. See Halachah 10 and notes.

For the mitzvah of returning a lost object also involves taking preparatory steps to make sure a person’s property is not destroyed. (See Hilchot Gezelah Va’Avedah 11:20.) The court, as agents of the community at large, is therefore responsible for protecting the property of any fellow-Jew.

In this situation, unlike the situation mentioned in the previous halachah, we have not heard a rumor that the person who fled or who was taken captive died. Since the person was taken away by force or fled hurriedly, we assume that he did not have the time to organize his affairs. Had he had the time, he most surely would have entrusted his property to someone for safekeeping. Hence, to protect his interests, the court acts on his behalf.

The Maggid Mishneh notes that the Rambam does not say that the movable property is entrusted to a relative.

The Tur and the Ramah (Choshen Mishpat 285:2) state that if some of the relatives are trained farmers and others are not, the land should be entrusted to those with agricultural experience.

We give the land to relatives rather than sharecroppers, because we fear that sharecroppers will take advantage of the fact that the owner is not present and will plant crops that will sap the power of the land and damage its long-term value. An heir will be less likely to do that, for the possibility exists that the owner will not return and the property will become his (Sefer Me’irat Einayim 285:4).

According to a simple reading of the Rambam’s words, the intent is that both the produce that the land yielded and the property’s increase in value are evaluated. The Tur and the Ramah (loc. cit.), however, maintain that all the produce is given to the person who cared for the land.

The Tur and the Ra’avad differ and maintain that the person who was entrusted with the property is never required to account for the benefit he derived from the property. He is given a share of the profits without any liabilities. The Shulchan Aruch (loc. cit.) quotes the Rambam’s view, while the Ramah quotes the other perspective.

A person who cares for the property without receiving a wage.

Rashi (Bava Metzia 39a) explains that people will be willing to accept a position as a guardian for the estate of a minor because of the great mitzvah involved. They would not be willing to undertake such a responsibility, with all the effort it entails, to care for the landed property of adults. They will, however, accept responsibility for guarding movable property, because there is little effort involved, and being chosen by the court for such responsibility is an honor.
The Ramah (loc. cit.) discusses the possibility of a person’s volunteering to serve as a guardian for property. He maintains that it is the most desirable course of action. Nevertheless, he cites a difference of opinion among the Rabbis whether or not the relatives have the right to protest this step.

The Rambam uses different Hebrew terms to refer to the harvesting of these different species of fruit.

Since we are speaking of a very short-term arrangement, it is probable that the court will be able to find a person who will volunteer to carry out this task.

Thus, if the owner returns, he will not receive this sum.

In these instances, there is little chance of substantial capital depreciation, and the profits are easily attainable through renting the property. Hence, this is the course of action that is taken.

The Rambam appears to be saying that the relative always receives the portion given a sharecropper. Even if he maintains possession of the property for a number of years, when his relative ultimately returns, he must make a reckoning for all of the years he held the property as if he was a sharecropper.
The Ra’avad differs and maintains that although the relative is given the portion allocated to a sharecropper with regard to the produce growing in the field at the time his relative returns. He is, however, allowed to keep all the produce which he harvested in previous years. The Shulchan Aruch (Choshen Mishpat 285:3) quotes the Rambam’s wording verbatim. See also Halachah 5 and notes.

In his Beit Yosef, Rav Yosef Karo maintains that a printing error crept into the text, and the word “not” should be eliminated. Since it appears that the owner desired that his field should not be tended to, we do his will and remove his relative from it. This interpretation is borne out by the Rambam’s source, Bava Metzia 38b, and is substantiated by authoritative manuscripts and early printings of the Mishneh Torah. Rav Yosef Karo quotes this corrected version in his Shulchan Aruch (Choshen Mishpat 285:4).

Had he desired that someone tend to it, he would have made such arrangements before he left. Since he was not pressured by danger or taken away against his will, we assume that he took all the measures that he desired to care for his property.

Even if this will cause the land to deteriorate.

Hilchot Gezelah Va’Avedah 11:11.

In which instance, he is no longer capable of caring for his property and the responsibility to do so then becomes the court. Hence, the same principles stated in Halachah 5 apply.

But not to a relative. Note, however, the Ramah (Choshen Mishpat 285:5), who states that if a relative is trustworthy, the movable property can be entrusted to him, just as it could be entrusted to anyone else.

The Maggid Mishneh states that there is no clear Talmudic source for the Rambam’s opinion. Moreover, he cites the views of the Ramban and the Rashba, who differ and maintain that the fact that it is rumored that a person has died does not change the halachic status of his property. Until it is known that he certainly died, the property is not given to the heirs - even as sharecroppers. If the heirs consent, however, the property may be given to a third party to care for as a sharecropper. The Shulchan Aruch (Choshen Mishpat 285:5) quotes the Rambam’s view.

I.e., even a minor who is a relative; certainly this applies with regard to a minor who is not a relative (Sefer Me’irat Einayim 285:23).

If the owner’s only relative is a minor, we appoint a guardian who in tum finds a sharecropper [Tur (Choshen Mishpat 285)].

Because of the family connection, people at large may not be aware who the rightful owner of the property is.

He may not know that the property is rightfully his and hence be unaware that he should lodge a protest (Sefer Me’irat Einayim 285:25).

I.e., issue a false and dishonest claim.

The Hagahot Maimoniot and the Lechem Mishneh note that Bava Metzia 39a, the source for this halachah, does not mention the example cited by the Rambam in this halachah, but instead mentions a maternal brother. Although there is no difference in actual practice between the two views (the Rambam mentions the maternal brother in the following halachah), these authorities question why the Rambam deviates from his source. See also Sefer Me’irat Einayim 285:24.

The Kessef Mishneh notes that this applies with regard to landed property. With regard to money, even a relative can be appointed as a guardian of a minor, as stated in Chapter 10, Halachah 6.

As stated in Chapter 1, Halachah 6, maternal relatives are not significant with regard to inheritance.

The Ramah (Choshen Mishpat 285:7) quotes the opinion of the Nimukei Yosef, who maintains that the restriction against giving the property of a minor to relatives for safekeeping applies only when the other heirs divide the property they receive into separate portions. If, however, they care for the property as a single unit, they may also care for the minor’s share as well.

There is an opinion in Bava Metzia 39a that states that the ownership of homes is more clearly known then that of fields. The Rambam, however, does not accept that view. At present, when property is registered in the deeds office, it is a question whether the entire halachah should be applied. For once the property is registered in the minor’s name, he will be able to claim it.

Tosafot explain that in other instances (e.g., Gittin 28a), we suppose that the status quo will continue and it is presumed that a person who is alive will remain alive. In this instance, however, we rule more stringently, because
a) extra care is given with regard to the property of orphans;
b) there is a greater likelihood that a person in captivity will die.

I.e., the third that his mother would inherit and the half of the third owned by the other daughter in captivity.

For we suspect that the other daughter in captivity also might die.

More precisely, his mother’s, which becomes his.

Based on the same logic employed above.