Wednesday, December 30, 2009

The Masculine Gender Used for an Heiress

By: Meorod Hadaf HaYomi

According to Rabbeinu Tam in Tosfos (s.v. Melamed), Anah mentioned in the verse “and these are the children of Tzivon: Ayah and Anah” was a daughter, though later referred to in the masculine gender: “…he is Anah”. The reason, he asserts, is that her brother Ayah died before Tzivon’s demise and she therefore inherited Tzivon’s estate.

Rebbe Heshel of Krakow zt”l supported the view that heiresses are referred to in the masculine from the story of Tzelofchod’s daughters: Hashem tells Moshe to give them (lachem, in the masculine) a portion of their father’s estate (Bemidbar 27:7) as they inherited it like any sons (Chanukas HaTorah, Pinchas).

The commentator Pardes Yosef adds that Yaakov said to Rachel and Leah: “Hashem saved your father’s (avichem, in the masculine) livestock and gave it to me” (Bereishis 31:9). Lavan had no sons till Yaakov came to Charan (see Rashi on Bereishis 30:27) and his estate would have fallen to Rachel and Leah. Hashem saved the property destined for Rachel and Leah from Lavan’s sons and gave it to Yaakov.

The Torah’s Viewpoint on the
Rights of Inheritance

The Torah says in Bemidbar 27:8 that “if a man dies without a son, pass his estate to his daughter.” Now, had we been asked to formulate the verse, we would probably write “if a man dies, pass his estate to his son and if he has no son, to his daughter.”

In his Torah Temimah (ibid), Rabbi Baruch Epstein explains that the Torah thus hints that a son is his father’s natural heir and that there is no need to state this detail. The Torah starts to dictate the order of inheritance from the point where a father has no son.

The Torah Temimah is just one of the commentators who elucidate that the Torah’s order of inheritance may be understood by ordinary intelligence. For many reasons, a son is his father’s natural heir. Even his name, ben, is related to the word boneh – “builder” – as a son builds and perpetuates his father’s family. Nachalah – “inheritance” – comes from nachal, a “stream,” in the sense that it forms a continuity, and, in contrast, the Torah calls passing an estate to a daughter ha’avarah – “transfer” (HaGaon Rav Binyamin Tsvi Rabinovitz-Teomim zt”l in Be’inyan Yerushas HaBas).

In his Dinei Mamonos, HaGaon Rav Yechezkel Abramsky zt”l asserts that a son’s inheritance is not a statute beyond our understanding – a chok – as our sugya in 119b quotes Tzlofchod’s daughters as saying “had he a son, we would not have spoken”; i.e., they themselves understood that a son would have been the natural heir (see Tosfos, s.v. Ilu).

A Person Wants his Relatives to Inherit his Estate

In his aforesaid work, Rav Abramsky explains that the inner logic of the Torah’s property-related statutes conforms to human understanding since the Torah sees deeply into human nature. The first rule of inheritance, for example, determines that the closest relative takes precedence in inheriting the estate if there are no children. We understand this rule quite well as any person who has toiled his whole life to amass an estate wants the person closest to him, of all his family, to inherit it. The Torah also explains the firstborn’s double portion of the estate as his due because of his being the first of his father’s “strength” (Devarim 21:17). A firstborn is beloved to his father like an only child before he has more children, with a love unshared with others. Moreover, a firstborn usually helps his father in his business to increase his wealth and therefore earns a double portion.

“And it will be to you…a statute of judgment”

What about twin boys born within minutes of each other or other instances where the above characteristics of a firstborn do not actually apply? Rav Abramsky therefore explains the following important point: The laws of inheritance express the deceased’s intention and conform to human understanding. Once the Torah rules them, however, their observance does not depend on our understanding, as the final verse in the chapter on inheritance concludes: “…and it will be to you…a statute of judgment” (Bemidbar 27:11). A general rule of the Torah is that many halachos are based on logical estimation, such as that a wife only makes a vow that her husband would approve, etc., but once the Torah determines them, they cannot be changed.

Should Daughters Sign that they Relinquish any Inheritance Rights?

A daughter inherits no part of her father’s estate if she has brothers but over the generations various people have tried to uproot the halachah and match it to gentile custom. The first were the Tzedokim (Sadducees), as mentioned by our Gemora, who were strongly repressed by our sages.

Rabbi Shlomo ben Aderes, known as the Rashba, reacted vociferously to those claiming that “the law of the government is the law” and that daughters should be given inheritance rights equal to those of sons (Responsa Rashba, VI, 254, cited in Beis Yosef, C.M. 26): “There will never be such a custom in Israel lest the Torah be girded in sackcloth because of them” (regarding “the law of the government”, see Vol. 5 of the bound series Meoros HaDaf HaYomi, p. 124).

A Signature has a Price

Still, the laws of various countries caused a disagreement among halachic authorities. In some places the law ruled that no estate should be divided till all the heirs sign that they consent to the planned division and daughters sometimes refused to sign till their brothers paid them a considerable fee or, say, compensation. Is such a demand legitimate? In his Responsa Penei Moshe (II, 15), HaGaon Moshe Benbeneshti remarks that some believe that a daughter does not have to sign any document without receiving a fair price – some say 10% of the worth of the estate and some say even more (see Responsa Shoel Umeshiv, 2nd edition, I, 1 and III, 110; Chukos HaChayim by HaGaon Rav Chayim Falaji, 184; etc.) while others say that the fee should be ruled by a beis din according to the exigencies of each circumstance (Responsa Rav Pe‟alim, II, 15).

A Sister’s Signature is like Returning a Lost Article

Nonetheless, Maharit and other halachic authorities hold that a sister must sign such a declaration out of her simple obligation to return a lost article – the estate – to her brothers as without her signature, they would be losing it. The Chasam Sofer even describes any attempt to extract a fee for such as outright robbery (Responsa, C.M. 142). In his Responsa Tzitz Eli‟ezer (XVI, 52), HaGaon Rav E.Y. Waldenberg cites Responsa Divrei Chayim (C.M., II, 3) that the poskim tend to be lenient toward the sisters and grant them a fee for their declaration and signature.

Though, strictly speaking, daughters do not inherit their father’s estate if they have brothers, our sages instituted regulations for the welfare of those daughters who are still minors, as explained in Kesubos 52b: The brothers must support their minor, unmarried sisters and give them funds to enable their marriage. We shall even learn further in Chapter 9 of our tractate that when funds from the estate are limited, daughters are given precedence over the sons for their basic needs. A custom began about 700 years ago for a father to give his daughters a document for “half of a male’s inheritance” (shtar chatzi zachar) at their marriage. Moreover, some families have a custom for the sons to voluntarily grant a considerable portion of their inheritance to their sisters though the latter are not allowed to demand such.

We conclude with Rav B. Rabinovitz-Teomim’s clarification that the above regulations are not meant to rectify the Torah, as some Reformers charged, but to rectify our lives (Kuntres Be’inyan Yerushas HaBas). The regulations serve to apply the light of the Torah to all situations and for all times, providing support and building protective fences in all facets of life.

The Tradition that no Tribe ever becomes Extinct

What Is a Tribe?

The above quote from our Gemora condenses the entire subject of the twelve tribes of Israel. We understand that our nation is eternal, with no possibility of ever disappearing, but there is also a vital need for the perpetuation of the twelve tribes. Our division into twelve tribes stems from our very essence as a people and cannot be canceled and there will always be at least one person surviving from each tribe to enable their perpetuation. As a source for this principle, the Rishonim cite the verse in Malachi (3:6) that “I, Hashem, have not changed and you, the sons of Yaakov, have not become extinct” (Rashbam, s.v. Amar Abayei in the name of Rabeinu Chananel; Yad Ramah on Sanhedrin 69b).

Israel’s division into twelve tribes is hinted in Hashem’s promise to Yaakov in Bereishis (35:11): “A nation and a community of nations will come from you”, a double expression that needs clarification.

HaGaon Rav Y.Z. Soloveichik of Brisk zt”l points out Onkelos’translation: “a nation and a collection of tribes” (Chidushei HaGriz al HaTorah, Vayechi). In other words, aside from the promise that the Jewish nation will arise from Yaakov’s offspring, Hashem promised that that nation will be comprised of tribes.

With the understanding that the twelve tribes are like the vital members of one body, Rav Soloveichik explains the verses in Bereishis 48 concerning the selection of Menasheh and Efrayim as distinct tribes. Yaakov informs Yosef that Hashem told him: “I shall make you fruitful and plentiful and shall allow you to be a community of nations” (again translated by Onkelos as “a collection of tribes”) and then adds that Efrayim and Menasheh “will be to me like Reuven and Shimon”, blessing them with “the redeeming angel will bless the boys and my name will be called in their midst.” Ramban and Rashbam comment on this passage that Yaakov’s name being called in their midst refers to the perpetuation of their offspring. Yaakov made Efrayim and Menasheh into tribes making them inseparable from the whole nation, essential members of the same body and, consequently, eternal (see more illuminating expansions on the topic, ibid).

Now, remarks Rav Soloveichik, we can better understand the meaning of Rabeinu Gershom Meor HaGolah in his Selichos prayer “Remember the covenant of Avraham and the binding of Yitzchak,” said on the eve of Rosh HaShanah and, with expansions, on the Fast of Gedaliah (Mateh Efrayim, 603). We ask Hashem to remember “the covenant of the fathers, the mothers and the tribes.” We know about the covenant with the fathers and mothers but what covenant was made with the tribes? Indeed, says Rav Soloveichik, this refers to the tradition recorded in our sugya that no tribe ever becomes extinct and we therefore plead: “The covenant of the fathers, the mothers and the tribes, Your mercy and kindnesses with the passage of time, Hashem, remember the stricken and afflicted who are slaughtered for you all the day long.”