Sunday, January 31, 2010

Grandson vs. buyer

The Gemora rules: If a son sold the estate of his father (the portion which he was supposed to inherit) during the lifetime of the father, and he died (first the son and then the father), his son (the son of the son) may seize it from the purchasers (for it has now been clarified that it was never in the son’s possession to sell it, for he died before the father and never inherited it). The Gemora concludes that there is no clear proof to this halachah.

The Rashbam writes that the halachah is in fact that the grandson may take back the field, but it is difficult to understand (according to the Gemora’s discussion), since there is no conclusive proof.

Rambam (Hil. Mechira 22:7) rules explicitly in this very case that the grandson may take the field, and although the Shulchan Aruch (Choshen Mishpat 211:3) does not give this exact example, it is clear that the ruling would be the same.

The question is: Does the grandson need to repay the buyer?

A very important part to this is a concept that one cannot sell something that is not yet in this world, which is precisely what the son did, since the inheritance did not yet belong to him at the time of the sale (it should be as if it was not yet in existence). Therefore, the grandson has every right to take back the field. Tosfos and the Ra”n explain that the Gemora’s difficulty was not with this part of the halachah, but rather, it was with the ruling that the grandson may seize the field without compensating the buyer.

The Rashba further explains that we are forced to say that the grandson does not have to pay back the buyer because if the halachah were to be that the buyer must be reimbursed, then it should emerge that even the father should be able to take back the field.

The Baal Ha’itur and the Baal Haterumos both follow the opinion of the above Rishonim as well. The Shulchan Aruch (ibid) rules that the buyer is not reimbursed.