Bava Kamma 095

1:
Like the previous mishnahs, our present mishnah, too, is concerned with a situation in which someone possesses money to which he is not entitled and it must be removed from his possession.

2:
In the age of the sages an oath was taken very seriously. Unfortunately, quite often people would swear an oath in a moment of passion or excitement that perhaps they would not have done when cool-headed. But, generally speaking, the oath is valid and must stand. Thus, in the case described by our present mishnah, it makes no difference whether the oath is made in a moment of passion or after serious consideration: the oath stands.

3:
A father swears an oath that his son shall have no share in his fortune. Our mishnah distinguishes between two possible scenarios. In the first scenario the father simply denies the son any part of his possessions with no further clarification. In the second scenario the father denies his son any part of his possessions both during his (the father's) lifetime and after his death.

4:
It is axiomatic in halakhic jurisprudence that when a person dies he or she no longer possesses anything at all (except the ground in which they are buried) and the law stipulates what shall be done with their estate. Broadly speaking, a father's estate is divided equally between his sons, except that the eldest son shall receive twice as much as each of his brothers [Deuteronomy 21:17]. Thus, Re'uven has three sons: Shim'on (the eldest), Levi and Yehudah. Re'uven's estate totals 1000 dinars. Those 1000 dinars are divided into the number of sons plus one. Thus Shim'on gets 500 dinars and the other two get 250 each.

5:
The moment the father dies he no longer has any control over his estate and according to the first scenario his son may inherit his share of the estate, because the father's oath loses its application the moment he breathes his last breath because the implication of his oath is that the son shall have no part of his possessions during his (the father's) lifetime.

6:
However, if the father specifically stipulated that his son should have no part of his possessions neither during his (the father's) lifetime nor after his death the son cannot inherit. However, according to established law the moment his father dies he inherits at least some of his father's estate, as explained in paragraph 4 above.

7:
The way out of this legal mess is the same as was prescribed in the previous mishnah. In a moment of passion David swears that his eldest son, Micah, shall have no share in his estate during his lifetime and that after his death his two other sons, Abe and Jack, shall inherit everything. However, according to law the moment David dies Micah takes possession of his part in David's estate. He is now in possession of his father's property against his father's express disposition. If Micah has sons of his own he must transfer his share of the inheritence to them so that it no longer belongs to him. Alternatively, he can transfer it to Abe and Jack (or one of them).

8:
However, two other possibilities exist:

1. Micah has no sons of his own nor any brothers.
2. Micah does not want to forego his share of the estate because he has nothing to live on.

In either of these situations Micah must take a loan which is equal to the amount he has inherited. His creditors then can come and recover their loan from the estate of his deceased father; thus his father's oath is maintained and he has no share in his father's property.

9:
Of course, it may well have been that in many cases a legator does not want his estate to be bequeathed according to the disposition stipulated by the Torah (in explanation 4 above). His only resource is to make a gift of his property, according to his wishes, during his lifetime – even if the stipulation is that the actual transfer of the property shall take place only "one minute before my death". Thus, when he dies he will have had nothing to bequeath for the past 60 seconds because all his property belonged to the people to whom he transferred it. Obviously, the law of the Torah reflects a patriarchal and agricultural society; with increasing urbanization and the breakup of the tribal system it became necessary to find a way around the law of the Torah without actually changing it.