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Bava Basra, 140

1) THE SALE OF AN ESTATE OF "NECHASIM MU'ATIM"

OPINIONS: Rav Asi in the name of Rebbi Yochanan rules that when heirs went and sold "Nechasim Mu'atim" (an estate which did not have enough property to support the daughters and sons until the daughters reach adulthood), the sale is valid even though they are prohibited from selling it l'Chatchilah.

When did this sale take place? Did it take place before Beis Din issued its ruling to allocate a lump sum of support for the daughters, or after Beis Din issued its ruling?

(a) The RASHBAM writes that this ruling applies only before the daughters and sons appeared in Beis Din. After Beis Din has made their ruling that the daughters must receive a lump sum, the sons have no right to sell the property and if they do, the sale is not valid. This is also the view of RASHI in Kesuvos (103a).

(b) TOSFOS (DH Yesomim) writes at length to prove from several places that even if the daughters have already taken possession of their share of the estate for their support, or Beis Din has collected it for them, if the sons sell it the sale is still valid.

The view of Tosfos is difficult to understand. In a normal case of a creditor who collects what is owed to him from the debtor at the order of Beis Din, the property that he collects becomes his and the debtor or his family may not sell it, and if they do attempt to sell it the sale is not valid! (KOVETZ SHI'URIM)

1. The SHITAH MEKUBETZES (139b) explains that the reasoning of Tosfos is that the share that the daughters' receive for their support is given to them from Karka, land, and not Metaltelin. The land, though, is in the ownership of the heirs (the sons) as long as the daughters have not sold it (in order to buy food with the proceeds). Beis Din does not actually appropriate the land and give it to the daughters (unlike the explanation of the Rashbam); rather, Beis Din merely gives the daughters the right to sell *the sons' land* and obtain money for their support. Therefore, as long as the daughters have not sold the property, it is still in the possession of the sons (and thus if they sell it, the sale is valid, even though they are prohibited from selling it l'Chatchilah).

2. The KOVETZ SHI'URIM explains the reasoning of Tosfos as follows. The obligation upon the sons to provide the daughters with support applies every day anew; each day brings a new obligation to support the daughters. It is not a single obligation that applies right now, requiring the sons to support the daughters until they reach adulthood. Therefore, it cannot be said that the property is in the possession of the daughters, because they have no rights to the property, even for their support, except that each day they may take that day's worth of support. (According to this explanation, if the sons sold the property of "Nechasim Mu'atim," then they are obligated to pay to the daughters the support for the day on which Beis Din ruled that they must give support, because the daughters already acquired the property for that day's support. The Kovetz Shi'urim does not learn like the Shitah Mekubetzes, who says that the daughters do not acquire any ownership of the property, but rather he learns that they do acquire ownership of the property but only in the amount of that day's support.) (I. Alsheich)

140b

QUESTION: In the Mishnah (139b), Admon disputes the ruling of the Tana Kama who says that in a case of "Nechasim Mu'atim," the daughters receive support and the sons receive nothing (if there is nothing left over after the daughters receipt support). Admon says, "Because I am a male, I lose out?!" The Gemara asks what Admon's reasoning is for why a male has any precedence over a female. Abaye suggests that a male should take precedence because he is fit to toil in Torah, while a woman is not commanded to learn Torah. Rava challenges this and says that if this is true, that a man takes precedence because he learns Torah, then in a case where a man dies leaving two sons, one of whom learns Torah and one of whom does not, the one who learns Torah should inherit the entire estate and not the one who does not learn Torah!

What is Rava's question? Perhaps it is true that in such a case, the son who learns Torah should inherit the estate and not the son who does not learn Torah! Indeed, the Gemara itself (141a) cites a Beraisa that says that it is a Mitzvah for a father to support his daughters and certainly (Kal v'Chomer) to support his sons, because they learn Torah! (TOSFOS DH Ela)

ANSWERS:

(a) TOSFOS answers that the case in the Beraisa later is different. There, the Beraisa is discussing the Mitzvah for a man to support his children. The Mitzvah to support his children is only a Mitzvah and *not* an obligation. Accordingly, the fact that sons learn Torah can be used to prove that there is a Mitzvah to support them. In contrast, for a Torah obligation like inheritance, the fact that the sons learn Torah *cannot* be used as a reason to give them precedence over sons who do not learn Torah.

(b) TOSFOS in Kesuvos (108b, DH Amar Rava; see MAHARSHAL and MAHARSHA there) answers further that when the Beraisa later says that it is a Mitzvah to support one's daughters and certainly to support one's sons, it is referring to young sons (Ketanim) who are all potentially fit to toil in Torah, and thus there is no grounds to differentiate between sons who learn Torah and sons who do not, since they all might grow up to learn Torah. Accordingly, there indeed is a difference between sons who learn Torah and sons who do not, but in that case they are all considered like sons who learn Torah. The case of our Gemara is referring to adult sons. Rava is asking that according to Abaye, Admon's dispute is only with regard to sons who learn Torah. Admon will agree that sons who do not learn Torah have no advantage over daughters (on the contrary, he would agree that the daughters should precede them). Rava maintains that it is not logical to say that Admon's question applies only to sons who learn Torah, because Admon's words do not imply such a differentiation.

(c) The SHITAH MEKUBETZES in Kesuvos (108b) explains that Rava's question was on Abaye's implication that sons who do not learn Torah should not inherit any of their father's estate. Rava agrees that a son who learns Torah is *preferable* to a son who does not learn Torah (or to a daughter) with regard to inferring that there is a Mitzvah to support them. He argues, though, that it is *not* a reason to completely remove them from their share of the inheritance. (I. Alsheich)