Wednesday, December 30, 2009

We do not Start with a Punishment

By: Meoros HaDaf Hayomi

A Lesson in Composition

The Gemora had asked that the Mishna should first state that sons inherit their father, as we do not start off with punishments (sons dying in the lifetime of the father)!

It is noteworthy that the Rambam begins his Laws of Divorce with the statement: “A wife is never divorced except with a written document called a get”. Radvaz comments that Rambam chose that mode of expression, as opposed to saying “A wife is divorced with a written document…” since our sugya explains that we should never open a topic with punitive connotation. We should not want a wife to get divorced and Rambam therefore wrote that she “never” gets divorced except in certain conditions” (Responsa Radbaz [manuscript], 1).

A Niece Is a Granddaughter?

The Rashbam frequently refers to a niece as a granddaughter (neched - s.v. Velo manchilin), as also evidenced later (114b, s.v. HaIshah). HaGaon Rav Shemuel Shtrashun and other commentators tried to find a solution with no success while Mahari Ya’avetz attempts to correct the text. A certain rabbinical scholar told us that we have no need for any correction: The Rishonim in France sometimes called nephews grandchildren, such as in the Rosh’s responsa addressed to “my grandson” but signed “your uncle” (see, for instance, Kelal 12:3, 98:1, etc.). Apparently, the same word was used for nephew and grandson or niece and granddaughter in the Romance languages of that era.

How do Heirs Assume Ownership of their Inheritance?

The process of an heir’s acquisition of an estate from the deceased has no parallel in the realm of halachos relevant to the acquisition of property. The Acharonim explain that an inheritance involves no usual property-related kinyan as customary in other transfers of assets. When a father passes away, rather, his son takes his place and therefore assumes ownership of all the deceased’s assets. In other words, property usually moves or is taken into another’s ownership whereas in the instance of inheritance, the former owner departs and another takes his place while the property stays put (see Chidushei HaGaon Rav Naftali Trop, Bava Basra 126b; Nesivos HaMishpat 276, S.K. 4; Responsa Machaneh Chayim, II, C.M. 41). The method of this transfer of ownership has far-reaching implications as to the types of assets included in an inheritance. A person, for example, cannot acquire an item stolen from its owner and not on his, or the original owner’s, premises. A son, though, inherits all his father’s property, even if stolen, as he simply assumes his father’s place: just as his father would still own assets stolen from him, the same applies to the son.

Distributing Funds Earmarked for Charity Included in an Estate

One of the more frequent implications of the above halachah is expressed if the deceased set aside funds for the poor. An heir finds, for instance, that, aside from not having been distributed, the money had never been designated for any particular person or group. While the father was alive, only he, of course, had the right to choose to whom to give the funds (Remo, Y.D. 257:10). Do his heirs, however, inherit that right as well or should the money be distributed in some other fashion? Indeed, the topic is far from simple: After all, even the father could not sell or grant the right, known as tovas hanaah, to another as it “lacks substance” and cannot be transferred. Rav Hai Gaon defines the matter by comparing an article acquired or transferred to the owner’s body: just as our bodies have material substance, we can acquire property or transfer its ownership only if that property has physical dimensions (Sefer HaMikach, Sha’ar 2). The right, then, to choose to whom to distribute charitable funds cannot be transferred or sold. In the light of the above, though, that a son takes his father’s place, does he also inherit this apparently untransferrable right?

The Shach (C.M. 276, S.K. 5) and Nesivos HaMishpat (ibid, S.K. 4) hold that, based on this principal, a son also inherits the right of tovas hanaah. As far Rav Hai Gaon’s rule, they contend that the maxim refers to all property matters except inheritance since, as explained above, inheritance is an automatic change of ownership, not bound by the rules of other methods of acquisition. Still, Ketzos HaChoshen (ibid) maintains that tovas hanaah can’t be inherited as it is not, in itself, a property-related right in the usual sense. In his opinion, then, the son must give the funds to the first poor person he meets or who approaches him, or leave them where the poor can divide them among themselves (see ibid; Taba’as HaChoshen, ibid; and Beiur HaGera, S.K. 23, who holds that tovas hanaah is a weak property-related right that cannot be inherited).

A Wife Inherits from her Husband

Are Bank Accounts always Divided among all the Heirs?

A fascinating question was referred to HaGaon Rav Chayim Ozer Grodzhinski zt”l, the chief rabbi of Vilna. A local Jew passed away, leaving a huge sum in a bank account. According to halachah, his widow is entitled to the amount stipulated in her kesubah while the other heirs divide the rest of the estate. The bank, in conformity with local laws, regarded the widow as the sole heir and bestowed her with the entire sum in the account whereas the other heirs were denied access thereto. Being conscientious in her observance of mitzvos, she turned to Rav Shlomo Heiman, later famous as Rosh Yeshivah of Torah VaDaas in Brooklyn, and asked if the halachah obligated her to transfer the huge sum to the other heirs. This is apparently the halachic decision we would have reached.

Now, most people are accustomed to consider their bank accounts as “deposits.” They, and the bankers, say they “deposit” money in the bank and we are all familiar with “linked deposits,” CDs (certificates of deposit) and the like. Still, these so frequently used terms are basically wrong. A deposit – pikadon – as used in the Talmudic and halachic literature, is anything given to another to be kept or watched or used without exchanging it for an identical item or harming it. The money you give a bank clerk, then, is not a deposit as it, itself, will not be returned, but rather a loan. Funds put in a bank are not watched there but their value is accredited to your account. In our case, then, the deceased lent the bank money and, according to halachah, the latter must repay it to his heirs. The bank, however, accredited the widow with the whole amount. Has she received the deceased’s money? No! It belongs to the bank and was mistakenly accredited to her, such that she has no obligation towards the other heirs. (She is not even considered as having caused them a loss [gerama], as the laws of the country forbade their access to the funds). Rav Heiman sent this wonderfully simple decision to Rav Grodzhinski, who remarked that the issue had long been obvious to him (Chidushei Rabbi Shlomo, Kesavim Uteshuvos, 8).