Pe'ah 035

1:
Torah law does not recognise the right of a person to dispose of his property during his lifetime when such a disposal will take effect only after his death. (In modern parlance: strictly speaking, halakhah does not permit the writing of a will which will dispose of a person's property in any manner other than that sanctioned by Torah law anyway.) Torah law, of course, does recognise a person's right to contractually dispose of their property in any way they choose during their lifetime – provided that disposition takes place before their death.

2:
Torah law requires that all of a man's property be inherited by his male children. The property is to be divided up in equal parts between his sons, with the eldest son receiving a portion twice as large as that of all the others [Deuteronomy 21:15-17]. From his double inheritance the eldest son must assume all the responsibilities for his father's women-folk (wives and daughters) that devolved on his father. One of those responsibilities is to pay out to his father's widow the sum agreed upon in her marriage deed – Ketubbah – at the time of their marriage, the sum being payable in the event of a divorce or his predeceasing his wife.

3:
We now have sufficient information to explain the two clauses of our present mishnah. If a person believes himself to be terminally ill he may wish to dispose of his property before he dies in order to obviate the division of his property according to Torah law after his death. (For instance, he may wish to leave property to his wife, his daughters, friends, other relatives etc.) Of course, there is always the possibility that such a person may, in fact, recover from the illness. If he does, indeed, recover he may, if he chooses, rescind the disposition of his property, the reasoning being that when he willed this property as he did he had the assumption that he would die. Our mishnah adds to this a proviso: if in the disposition of his property from his sick bed he left some property for himself (and did not dispose of all his property) he may not rescind these deeds in the event of his recovery. The fact that he left himself some property is seen as proof that he did not expect to die.

4:
The second clause of our mishnah is concerned with such a man disposing of his property and including in this disposition his wife. For instance, he gives part of his property to his sons and part to his wife. If his wife is aware of this and makes no protest she takes possession of her 'inheritance' and loses all the rights and financial allocations that she has by virtue of her marriage deed.

5:
Rabbi Yosé takes this a stage further. In his view once the wife agrees (simply by not objecting) to being included with her sons in this disposition of her husband's property she has lost all claim to her marriage deed even if, ultimately, her husband does not include her among the beneficiaries. Rabbi Yosé's reasoning is that her silence must be interpreted as acquiescence, that she willingly forfeits the sums of money and other rights that are inherent in her Ketubbah. Halakhah does not follow Rabbi Yosé.

Gregory Ashe writes:

Regarding how to observe pe'ah etc in a modern economy. My question is if, for some reason the farmer did not want the poor to come onto his field, could he simply redeem the pe'ah for money and then distribute the money to the poor. Another example, is that perhaps the farmer might be able to get a better price by selling the harvested produce of his entire field. Could he then just give 1/60 of the sales price to the poor to satisfy pe'ah? If so, this might be the solution to today's farmer – he simply donates 1/60 of his profits to the poor.

I respond:

We must distinguish here between lekhatchilah and bedi'avad. Lekhatchilah means the law as it should be properly carried out; bedi'avad means to indicate how the law should be nevertheless be applied, if a person did not carry out the law properly in the first place. So, ideally (lekhatchilah), the farmer must give the indigent access to his fields and orchards in order that they may exercise their right to collect pe'ah. If he did not do so we still require him to give pe'ah to the poor – bedi'avad – even if he has already processed the crop etc. We shall delve further into this matter when we reach chapter 4. I do not know of any law that would permit the farmer to distribute money instead of produce in order to fulfill the duty of pe'ah. But remember, that according to strict Torah law he only need give but one stalk as pe'ah.