Nachalot - Chapter 9

Although one person carries out the transaction, the profits are split evenly among all the heirs. That person does not even receive payment for his time and effort [Shulchan Aruch (Choshen Mishpat 287:1) according to the Rambam]. See Hilchot Sh’luchin V’Shutafim, the conclusion of Chapter 8, where this concept is also stated.

The Maggid Mishneh emphasizes that their statement need not be made in the presence of a court. It must, however, be made in the presence of witnesses. The Tur and the Ramah differ and maintain that if there are minors among the heirs, the statement must be made in the presence of a court.

Since they made a specific stipulation that the benefit would be theirs, it is granted to them. The rationale is that, by not objecting, the other heirs waive their right to make use of the property. Although a waiver made by minors is ordinarily not binding, an exception is made in this instance. The rationale is that, regardless, the minors would not have been able to make use of their share, since they would not know how to invest it. Hence, they are not losing anything by allowing their elder brothers the use of their share of the estate.
The above interpretation is advanced by the Maggid Mishneh. He also cites the interpretation of the Ramban, who maintains that, with regard to the younger brothers’ share, the elder brothers are considered sharecroppers. The profits they earn are divided among themselves and the younger brothers.

Alternatively, because of extensive exertion (Maggid Mishneh).

I.e., an increase that came about without effort - e.g., a river flooded and thus fertilized a property. The Maggid Mishneh states that even renting out the land to someone else is considered profit that comes on its own accord, and the rent should be divided among all the heirs.

As the Maggid Mishneh explains, the Rambam apparently had a different version of Bava Batra 143b from the standard printed text. For this reason, others - including the Ra’avad - protest and offer different rulings. The Shulchan Aruch (loc. cit.) states that the Rambam’s view is not shared by any other significant authorities. The other authorities rule that if the older brothers increase the value of the estate without effort or without using the capital of the estate, the increase is shared. If the increase in value resulted from their own investments or efforts, they receive that profit. If the minors could have performed the same activities, and the older brothers did not make a statement indicating that they are acting on their own initiative, the profits are shared. If they made such a statement, they are entitled to all the profits.

E. g., Reuven married Asenat, the daughter of Shimon, his only brother. Shimon had no other sons - only daughters. If both Reuven and Shimon die, Asenat, Reuven’s wife, and Shimon’s other daughters are Reuven’s heirs.

As mentioned, the other authorities differ with the Rambam on this issue; see the notes on the previous halachah.

Bava Metzia 39b gives an example of such a situation. A person’s father moved from one community to another without selling his holdings in the first community. In his second community, his wife bore him a son, who, when he came of age, moved back to his father’s first community and took control of his property. Several years later, he received word that his father died. Afterwards, a claimant appeared, asserting that he was that person’s brother.

I.e., the entire estate and the increase in value are divided equally. The brother who took care of the estate and increased its value does not receive anything, for improving his brother’s share. The rationale is that he is considered to be a person who took control of another person’s property unlawfully - in which instance, he is not given any portion of the property’s increase in value. For, as stated in Chapter 8, Halachah 1, a relative is not given control over a minor’s property. The fact that he did not know of the existence of the other brother is not significant.
Sefer Me’irat Einayim 287:14 explains that the brother who improved the property is not, however, held liable for any benefit he received from the property until his brother came. Instead, he is merely required to return the property as is. Sefer Me’irat Einayim 287:15 also explains that even the authorities who differ with the Rambam with regard to the previous halachot would agree with his decision in this instance.

The brother who improved the property is given a share in the increase in value of the other brother’s property. The rationale is that since the other brother is past majority, it would be appropriate for the court to give his property to his brother to care for, as can be inferred from Chapter 7, Halachah 4. Hence, retroactively, it is considered as if the court does so.
The above applies when the brother who improves the property does not know of the existence of his brother. If, however, he knows of his existence, he must explicitly state that he is working the property for his own benefit, as stated in Halachah 1 (Maggid Mishneh).
The Ra’avad differs with the latter statement. The Maggid Mishneh counters his objections, explaining that, as stated in Halachah 1, as long as an estate is not divided, the Rambam considers all the brothers as willing to work on their brother’s behalf.

This clause restates - and adds explanation for - the first clause of this halachah.

This halachah is based on a incident that occurred concerning Rav Safra, as related by Bava Batra 144a. Rav Safra took the money belonging to his father’s estate and invested it in a business endeavor. It would appear that according to the Rambam, he should be granted all the profits. The Ramban, as quoted by the Maggid Mishneh, differs and maintains that he was given all the profits from his own share and a portion of the profits from has brothers’ share, according to the local custom.

In his gloss on this passage, the Nimukei Yosef states that there are no Torah scholars of Rav Safra’s stature today, and even a Torah scholar is considered an ordinary person with regard to such matters. In his Beit Yosef, Rav Yosef Karo differs and maintains that the concept applies in the present age as well. For this reason, he quotes this law in his Shulchan Aruch (Choshen Mishpat 287:2). Significantly, in his Darchei Moshe, the Ramah differs and follows the Nimukei Yosef’s ruling. In his gloss on the Shulchan Aruch, however, he does not mention this matter.

I.e., it is as if he made a stipulation to the fact that he was acting for his benefit alone [Tur (Choshen Mishpat 287)].

For his own sake, however, it is permitted for a Torah scholar to take a temporary diversion from Torah study to earn his livelihood, as Avot 2:2 states: "It is desirable to combine Torah study with an occupation" (Sefer Me'irat Einayim 287:13).

In his Bedek HaBayit (Choshen Mishpat 177), Rav Yosef Karo states that this applies when the brothers have not yet divided their father’s estate. This is also alluded to in the wording of the source of the halachah, Bava Batra 144b, which speaks of “brothers who are partners.” The Ramah (Choshen Mishpat 177:1) cites this interpretation.

The Ramah (loc. cit.) cites the view of Rabbenu Yonah, who states that first the brother who performs the task is allowed to receive the wage that he would have earned for performing this task as an ordinary worker. Afterwards, the remainder - i.e., the extra amount he receives because he is working for the king - is shared.

Even if his father also served in this position.

The Ramah (Choshen Mishpat 62:1) states that this law applies even if the promissory note is in the possession of the defendant. Although the defendant could use the principle of miggo in his defense, his word is not accepted Siftei Cohen 62:1).

Thus, the suspicion arises that he used money belonging to the estate and not his own personal funds.

Whom he did not share with his other brothers, and thus they did not receive a share in that estate.

I.e., witnesses must testify to the truth of his statements.
This concept is the subject of a difference of opinion between Rav and Shmuel (Bava Batra 52a, b). Although in matters of financial law, the halachah generally follows Shmuel’s opinion, in this instance the Rambam follows Rav’s perspective, because it appears that there is a baraita that supports his view.

This law does not concern the laws of inheritance. Nevertheless, since it is derived from the same source (Bava Batra, loc. cit.) as the previous and subsequent laws, and operates on the same principles, it is cited here by the Rambam. Although the Rambam uses wording similar to the passage from Bava Batra, that passage refers to a widow who is found in the situation described in the following clause of this halachah.

The Tur and the Ramah (Choshen Mishpat 62:1) explain that an ordinary housekeeper is placed in this category. The intent is not necessarily that she is appointed as the manager of the entire estate, but that she manages the household expenses.

In Hilchot Ishut 22:30, the Rambam writes that when a married woman claims that she received money as a gift from others, her word is accepted; she is not obligated to verify her statements. Nevertheless, that ruling does not necessarily represent a contradiction to this halachah. In the instance described here, since the woman is carrying out transactions with household funds, there is reason to think that she used money belonging the household rather than her own personal resources.

She is not required to show that the money from her inheritance was used for this purpose. It is sufficient for her to prove that she inherited enough money to make a loan of this size [Shulchan Aruch (Choshen Mishpat 62:1)].

Bava Batra, loc. cit., explains that one might think that a woman would be so happy that the court has appointed her to have jurisdiction over at least a portion of the estate, that she would not think of doing anything to jeopardize her position. Hence, we might think that she would not even be required to take an oath. To this, our Sages reply that nevertheless there is reason for suspicion.

I.e., the property and utensils she brought to the household. After her husband's death, this property is returned to her.

But instead the widow and all the heirs share all their expenses together, eating from one kitchen.

The commentaries have questioned the Rambam’s statement, for it implies that if a widow saves money from her food allotment, she is entitled to keep it for herself. In Hilchotlshut 18:4, however, he rules that if she saves money, the heirs are entitled to it.

It must be plausible that the brother was able to save the amount mentioned in the promissory note from his food allowance (Rabbenu Chanan’el). The Maggid Mishneh and the Tur differ and maintain that it is possible to say that the brother saved a small amount from his food allowance, invested it at a profit, and used the profit to make the loan or buy the servants mentioned.
The Shulchan Aruch (Choshen Mishpat 62:1) states that even if the brother or the woman claims to have received the money from an inheritance, since they could have claimed that they saved the money from their food allotment, their word is accepted, based on the principle of miggo. Had they desired to lie, they could have claimed that the money came from their allotment.

The burden of proof cannot be placed on the orphans, because it is likely that they will not understand their father’s business matters and will not be able to find proof of ownership. Since we have only suppositions that the brother took money from the estate, we require the other brothers to support their claim. For suppositions are not a strong enough basis to expropriate money from orphans.
The Ramah (loc. cit.) emphasizes that if the question revolves around a specific article that was known to belong to the estate, the burden of proof falls on the orphans, for in this instance there is more than a supposition involved.

He claims that his father gave him the note (and the debt associated with it) as a present. He - and not the estate as a whole - is entitled to collect it.

This is one of the effective means of transferring ownership of a promissory note (Hilchot Kinyan 6:11).

In which instance, ownership of the promissory note is transferred as a result of this oral will.

The fact that one brother has physical possession is not at all significant.

Such a person must also have acquired the promissory note through an effective kinyan. Nevertheless, we assume that he did so. With regard to brothers, we do not make such an assumption, because there is a greater likelihood that they seized possession of the promissory note without just reason.

The Rambam’s words have attracted the attention of the commentaries, for they must be considered in light of previous rulings. In Hilchot Kinyan, loc. cit., the Rambam writes:
There is no need for witnesses with regard to the actual transfer. Witnesses are necessary, however, for [the debt] to be collected. The debtor can tell [the purchaser]: “Who is to say that my creditor did in fact write to you [that the debt is transferred] and give you [the promissory note]?”
Thus, based on the Rambam’s statements in Hilchot Kinyan, it appears that the purchaser’s license to collect the debt depends on the willingness of the debtor to pay. If the debtor consents, possession of the promissory note is sufficient. If the debtor objects, however, the purchaser must bring proof that he is entitled to collect the debt. This is in fact the explanation offered by Rav Yosef MiGash, the Rambam’s teacher.
The Maggid Mishneh and the Tur cite the views of many other Rishonim who differ with Rav Yosef MiGash and maintain that in all situations, the purchaser must bring proof that he purchased the promissory note. See also Hilchot Malveh V’Loveh 16:7, where these issues are discussed.
The Shulchan Aruch (Choshen Mishpat 66:11) quotes the Rambam’s approach as well as that of the other authorities, without stating which should be followed. The Ramah, however, favors the approach of the other authorities.

According to the understanding that the debtor may protest, the intent is that the creditor - the original owner of the promissory note - may not protest.

I.e., although a formal division of the estate was not made, the brothers consented to give him this money from his share. Their consent to that allocation did not, however, also carry with it consent to receive a full measure of his food expenses.

This is speaking about a situation in which the brothers have not divided the estate and are providing their living expenses from shared funds. Although the one brother moves away, they cannot withhold his living expenses entirely. They may, however, reduce them, so that he does not receive a greater share than the others.

In his commentary to Bava Batra 144b, the source for this halachah, the Rashba emphasizes that this law applies only when the brother goes to study for his own sake. If all the brothers will derive benefit from his study, the estate must bear all of his expenses.

Generally, older sons will require more expenses for clothes and the like.

Generally, younger children will eat more than older ones.

Once the estate is divided, each one will use his share as he sees fit.
The Maggid Mishneh quotes the Rashba as stating that the Rambam’s ruling applies when the brothers protest against each other’s use of the estate. If that is not the case, the fact that one’s clothes cost more and the other’s meals cost more is not significant, for brothers are willing to waive such minor differences in cost. The Shulchan Aruch (Choshen Mishpat 286:1) quotes this interpretation, but also mentions another Rabbinic view that dissents.

The bracketed addition is made based on the Tur (Choshen Mishpat 286).

Since the older brothers married using the funds of the estate, the younger brothers are given the same privilege.

Each of the brothers is given an equal share of the estate, and the younger brothers must pay for their weddings from their own resources.

See Hilchot Zechiyah UMatanah 7:1-2, where the Rambam explains that wedding gifts are given by friends as loans. Their intent is to alleviate the financial burden of the person making the wedding with the understanding that when the friends marry off their own sons, the person to whom they gave the gift will repay them by giving them an equivalent wedding gift.

And not by that individual son. The gift is considered to have been made to the father and therefore should be repaid by his estate.

And used the wedding gift for that purpose.

Since he received it individually, it is as if it had been loaned to him.

It is as if, when designating the gift, the father specified that it was a present for the son he associated with it.

I.e., they must all marry and invite this person to join in their wedding celebrations.

As explained in Hilchot Zechiyah UMatanah, the friend is not required to return the wedding gift unless he is given the opportunity to rejoice at his friend's celebration in the same manner in which his friend rejoiced at his celebration. Thus, since the gift was given in the name of all the sons, the recipient must have the opportunity to celebrate at all of their weddings. Significantly, in his Commentary on the Mishnah (Bava Batra 9:4), the Rambam interprets this situation slightly differently.

The Tur (Choshen Mishpat 286) and the Ra’avad object to this ruling, asking why the repayment is shared. Since each share is associated with one of the son’s weddings, when that son marries, he should receive his share of the present. (Significantly, this perspective is also shared by the Rambam’s teacher, Rav Yosef MiGash.)
The Maggid Mishneh justifies the Rambam’s view, explaining that wedding gifts are not entirely like loans, and there are situations when they need not be returned. Hence, since the money was given by the father and therefore belongs to the estate as a whole, when even a portion of it is returned, it is shared, because it is possible that the remainder will not be repaid.
The Shulchan Aruch (Choshen Mishpat 286:5) quotes the Rambam’s view. The Ramah does not object. It can, however, be argued that he does not necessarily agree, but that since the customs of wedding gifts are not practiced at present in the same manner as in Talmudic times, he did not care to comment concerning the matter.

I.e., he has license to do so. It is not only that he is not required to repay his brothers if they object after the fact.

The Tur and the Shulchan Aruch (Choshen Mishpat 286:2) quote this law in connection with the law stated in Halachah 12, which speaks of older brothers wearing more expensive garments. The Maggid Mishneh and the Shulchan Aruch state that if the younger brothers object to the older brother’s purchase of such garments, he may not continue to do so.