Transferring Inheritance Away From Yishmael

Shmuel said to Rav Yehudah (Kesuvos 53a): “Smart one! Do not be present when an inheritance is being transferred (away from the rightful heir) even when it is from a bad son to a good son, because one never knows what offspring will come forth from him (the bad son) and certainly when the transfer is from a son to a daughter (even though the transfer is valid, it should not be condoned).”

It is written in Parshas Chaye Sarah [24:10]: And the servant took ten camels of his master's camels, and he went, and all the best of his master was in his hand. Rashi comments that Avraham wrote a gift deed to Yitzchak for everything he owned, so that they would hasten to send him their daughter.

The Daas Zkeinim asks: The Gemora in Eruvin states that Avraham fulfilled the entire Torah including the Rabbinical obligations, such as eruv tavshilin. How could Avraham transgress this prohibition of transferring the inheritance away from the rightful heir; Yishmael and the sons of Keturah should have been the inheritors?

The Mizrachi answers: Avraham was permitted to do this because he was told by Hashem [Breishis, 21:12]: For in Yitzchak will be called your offspring.

The Maharal in Gur Aryeh answers: It was permitted because Sarah had told Avraham [ibid, v. 10]: For the son of this handmaid shall not inherit with my son, with Yitzchak. Sdei Chemed explains: Would Avraham heed Sarah’s words and violate a Rabbinical prohibition? Rather, the explanation is as follows: Since Hashem agreed with Sarah and He told Avraham [ibid, v. 12]: Whatever Sarah tells you, hearken to her voice, Avraham was given permission to transfer all his possessions to Yitzchak.

The Yefeh Toar answers that there is no transgression whatsoever when a father gives his possessions away during his lifetime; the prohibition is only when he transfers his property immediately prior to his death.

Maharsha (Sanhedrin 91a) answers: Yishmael and the children of Keturah were not fit to inherit Avraham. This is because Yishmael was the son of a slavewoman and Keturah was a pilegesh, and not an ordinary wife.

Rav Elyashiv challenges this explanation: Yishmael is referred to in the Torah as Avraham’s son; how can the Maharsha say that he was not an actual son?

The Oholei Yitzchak answers the original question: Our Gemora explains the rationale for this prohibition. One should not transfer an inheritance away from the rightful heir even when it is from a bad son to a good son, because one never knows what offspring will come forth from him (the bad son). Avraham knew through ruach hakodesh that no good offspring will ever come out from Yishmael, and therefore, there is no prohibition to give all his possessions to Yitzchak.

Similarly, the Chasam Sofer explains the verse in this week’s parsha. It is written [ibid, 21:11]: But the matter greatly displeased Abraham, concerning his son. Rashi explains literally: Avraham was displeased because Sarah told him to send Yishmael away. The Chasam Sofer explains: Avraham didn’t want to send him away because he was concerned on the account of this prohibition. How could he chase Yishmael away and give all his possessions to Yitzchak if Yishmael is the rightful heir, and perhaps, Yishmael will have some good offspring. Sarah saw through ruach hakodesh that there will be no good offspring coming from Yishmael, and Hashem told Avraham to listen to the words of Sarah.

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PILEGESH - Yevamos 37 - Daf Yomi

Rabbi Eliezer ben Yaakov ruled that one should not marry a woman in one place and marry another somewhere else. This might result in the children from these two marriages to encounter one another, and a brother could end up marrying a sister (since they are unaware that they are related).

The Gemora asks: But Rav, when he would arrive in the city of Dardeshir, he would announce, “Who wants to marry me for one day?” (This was done in order to protect him from sinning.) Rav Nachman, when he would arrive in the city of Shechantziv, he would announce, “Who wants to marry me for one day?”

The Gemora answers: The Rabbis are different because their names are famous (and the children will know who their father was).

The Gemora asks: But didn’t Rava say: If one proposed to marry a woman and she has consented, she is required to wait seven clean days prior to the consummation of the marriage?

The Gemora answers: The Rabbis informed them before by sending their emissaries seven days prior to their arrival.

Alternatively, you can answer that they would only seclude themselves with the women. This protected them from sin because of the saying, “You cannot compare one who has bread in his basket with one who doesn’t have bread in his basket.”

Rabbi Yaakov Emden in Shailos Ya’avetz (2:15) cites this Gemora as support for his opinion that it is permitted for a man to have a pilegesh (a woman designated for this man, but without a kesuvah or kiddushin).

The Rambam in Hilchos Melochim (4:4) and in Hilchos Isus (1:4) rules that only a king is permitted to have a pilegesh, but a common person would be prohibited from taking a pilegesh. In Sefer HaMitzvos (213), he writes that every man is commanded to marry a woman with a kesuvah and kiddushin, and one is forbidden from cohabitating with a woman without a kesuvah and kiddushin.

The Rashba in a teshuva (4:314) and Rabbeinu Yonah in Shaarei Teshuva (3: 94,95) concur with the Rambam that a pilegesh is Biblically forbidden on account of the passuk: lo sihye kedeisha.

The Ra’avad, Ramban and the Ran disagree and maintain that it is permitted to take a pilegesh. They cite proof from Calev and Gideon and many others throughout Tanach, who had pilagshim.

The Peri Chadash says that the Rambam would concede that a pilegesh is indeed permitted if his intent is to designate her to be exclusively for him.

Reb Yaakov Emden concludes his teshuva that although he holds that one is permitted to take a pilegesh, one should only do so if it is endorsed by other scholars of his generation and they should arrange the relationship that it should be done in a manner which is permissible. He then lists the guidelines and restrictions regarding this relationship. (The teshuva goes on to say how having a pilegesh will rectify many social problems. It is quoted in the name of Reb Chaim Brisker that this is an example of a novol b’rshus haftorah, one who is vile, but nevertheless, it is within the confines of halacha.)

The Rema rules that it is forbidden to take a pilegesh nowadays.

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