BAVA BASRA 108 (14 Iyar) - Dedicated by HaGaon HaRav Yosef Pearlman of London, England, l'Iluy Nishmas his father, ha'Rabbani Reb Rephael David ben Yosef Yitzchak Pearlman, who passed away on Pesach Sheni 5758

[108a - 18 lines; 108b - 12 lines]

1a)[line 2]איידי דרווחAIDI D'RAVACH- since it is [six Tefachim] wide

b)[line 2]קיימא בגויה וקפצהKAIMA B'GAVEI V'KAFTZAH- [an animal] can stand inside of it [and have enough room to get a bit of momentum] and jump [over the fence]

2)[line 4]דקטיןKATIN- narrow

3)[line 4]אשפתיהA'SEFASEI- on its [far] edge

PEREK #8 YESH NOCHALIN

4)[line 7]יש נוחלין ומנחיליןYESH NOCHALIN U'MANCHILIN (SEDER NACHALAH - The Torah-Mandated Order of Inheritance)

(a)The Torah describes the order in which one's heirs inherit him after his death. If he has no sons, then his daughter inherits him. If he has no daughters, then his brothers inherit him. If he has no brothers, then his father's brothers inherit him. If his father had no brothers - or if none are alive at the time of his death - then his next closest living relative inherits his estate (Bamidbar 27:8-11).

(b)There are numerous details applicable to Halachos of inheritance that are not clearly spelled out in these verses. One of these, for example, is that one's father inherits him if he has no children. The father of the deceased takes precedence over the brothers of the deceased. Tana'im disagree over how this is derived from these verses (108b-109). Another example of a detail that requires derivation is the fact that one inherits from his mother.

(c)Our Mishnah places one's relationship with his various relatives vis-?-vis his ability to inherit them or bequeath his inheritance to them into four categories:

1.Those whom one both inherits (Nochalin) and bequeaths to (Manchilin);

2.Those whom one inherits but does not bequeath to;

3.Those whom one bequeaths to but does not inherit;

4.Those whom one neither bequeaths to nor inherits.

5a)[line 10]האב את הבניםHA'AV ES HA'BANIM- a father [inherits his sons if they leave behind no living children of their own, and bequeaths his inheritance] to his sons [under all circumstances]

b)[line 10]והבנים את האבV'HABANIM ES HA'AV- sons [inherit their father under all circumstances, and bequeaths their inheritance] to their father [if they leave behind no living children of their own]. This second listing seems to add nothing to the first; see Insights.

6)[line 11]והאחין מן האבACHIN MIN HA'AV- brothers on the father's side (this includes full brothers as well)

7)[line 12]ובני אחיותBNEI ACHAYOS (MISHMUSH - One's Limited Ability to Inherit After Death)

(a)One's estate is inherited by his relatives in a specific order following his death (see above, entry #4). Under certain circumstances, certain relatives have the ability to "inherit" the estate of a relative even after their death. This serves the purpose of immediately transferring the estate to their next closest relative. This process is referred to as "Mishmush."

(b)The process of Mishmush works as follows. When a person who has no living children dies, his estate passes on to his father. This is true, in a limited sense, even if his father is no longer alive. Such an "inheritance" manifests itself in that the estate then immediately passes on to his father's other sons. If they are not alive, then it passes on to their children. If his father has no other living descendants, then the estate passes on to his father (i.e., the paternal grandfather of the deceased). If he is alive, then the estate belongs to him. If he is deceased as well, then Mishmush dictates that his sons - the uncles of the original owner - inherit the estate. If there are no such people alive, then the estate passes on to their descendants. If no such people are alive, then the estate continues on to the paternal great-grandfather of the original owner, and then to his descendants, and so on and so forth.

(c)Our Mishnah here refers to a case of Mishmush. The case is Bnei Achayos - sons of sisters. This means that one is able to inherit his mother's sister's estate if she dies husbandless, childless, fatherless, and brotherless. Her estate first shifts to the domain of her father. Since he is not alive, the estate then goes on to his children. Since he has no sons, it belongs to his other daughter(s). Assuming that this daughter is not alive, Mishmush further dictates that the estate passes on to the descendants of those daughters - namely, the nephew of the deceased.

(d)The RASHBAM prefers the Girsa that reads "Bnei Achos" - "sons of brothers". This case is identical with the one described above, except that it describes the case of a deceased uncle instead of a deceased aunt. The reason why the Rashbam prefers this Girsa is that it more accurately mirrors the next case of "Achei ha'Em" in the next listing of the Mishnah, and it is clear from the Gemara (114b) that the two listings are mirror images of each other.

8)[line 16]מאי שנא...?MAI SHENA...?- lit. what is the difference...?; in this context - what is the reason for the distinction...?

9)[last line]חדא, דאתחולי בפורענותא לא מתחלינןCHADA, D'ASCHULEI B'FUR'ANUSA LO MASCHELINAN- firstly, [it is logical to suggest] that we do not [wish to] begin with [a case of] tribulations [which are implied in this case, since a father inherits his children only if they die with no children of their own, and in their father's lifetime]

108b----------------------------------------108b

10)[line 1]"... אִישׁ כִּי יָמוּת וּבֵן אֵין לוֹ, [וְהַעֲבַרְתֶּם אֶת נַחֲלָתוֹ לְבִתּוֹ]""... ISH KI YAMUS U'VEN EIN LO, [VEHA'AVARTEM ES NACHALASO L'VITO]"- "If a man should die and he has no son, [then you shall pass his inheritance on to his daughter]" (Bamidbar 27:8). The implication of this verse is that a son inherits his father. Since the Torah begins its discussion on inheritance with this case, so too should our Mishnah.

11)[line 1]ותנא איידי דאתיא ליה מדרשא חביבא ליהV'TANA AIDI D'ASYA LEI MI'DERASHA CHAVIVA LEI- (the Gemara answers) and the Tana [taught this case first] since it is beloved to him, as it is only known through a derivation (i.e., it is not clearly written in the Torah)

12a)[line 3]"[וְאִם אֵין אַחִים לְאָבִיו, וּנְתַתֶּם אֶת נַחֲלָתוֹ לִ]שְׁאֵרוֹ [הַקָּרֹב אֵלָיו מִמִּשְׁפַּחְתּוֹ, וְיָרַשׁ אֹתָהּ...]""[V'IM EIN ACHIM L'AVIV, U'NESATEM ES NACHALASO LI']SHE'ERO [HA'KAROV EILAV MI'MISHPACHTO, V'YARASH OSAH...]"- "[And if his father has no brothers, then you should give his estate to] his relative [who is closest to him from his family, and he shall inherit it...]" (Bamidbar 27:11).

b)[line 3]זה האבZEH HA'AV- this refers to his father. A father is described as "She'er" - "a relative" (see Vayikra 18:12, which the Gemara cites on 109b, and Vayikra 21:2, which the RASHBAM here cites in addition).

13)[line 3]מלמד שהאב קודם לאחיןMELAMED SHEHA'AV KODEM L'ACHIN- This teaches [us] that one's father [should inherit his estate] before one's brothers. The reasoning behind this Derashah is that (a) it is dependent upon that which the Gemara will continue to explain; namely, that the verses are written out of order, and ought to be rearranged logically according to order of kinship. The Gemara will explain why it is logical to place one's father after one's children and before one's brother (RASHBAM); (b) the word "She'ero" is seemingly extraneous, and therefore teaches us that one's father should inherit his estate earlier in the line of relatives than we would have otherwise assumed (see the two differing explanations offered in first TOSFOS DH Yachol).

14)[line 4]יכול יהא קודם לבןYACHOL YEHEI KODEM L'VEN- I might have [then] thought [that one's father should inherit his estate] before his son [does (such that the order of inheritance would be (a) father, son, brother) (RASHBAM); (b) brother, father, son) (see first TOSFOS DH Yachol, where two differing opinions are expressed in support of this explanation)]

15)[line 5]"הקרוב""HA'KAROV"- see above, entry #12a

16)[line 5][ה]קרוב קרוב קודם[HA']KAROV KAROV KODEM- [the letter "Hei" in the word] "ha'Karov" [implies that] the closest [relative] should first [inherit one's estate] (see HAGAHOS HA'BACH #1, who cites the RASHBAM to 110b DH ha'Karov)

17)[line 6]ומה ראית לרבות את הבן ולהוציא את האח?MAH RA'IS L'RABOS ES HA'BEN UL'HOTZI ES HA'ACH?- (a) why do you see fit to include the son [such that he inherits before the father] and to exclude the brother [such that he inherits after both]? [Perhaps we should rather include the brother to inherit before the son, and the father should inherit after both!] (RASHBAM); (b) why do you see fit to include the son [such that he inherits before the father] and to exclude the brother [such that he inherits after the father]? [Perhaps we should rather include the brother to inherit before the father, and the son should inherit after the father!] (see first TOSFOS DH Yachol, where two differing opinions are expressed in support of this explanation); (c) why do you see fit to include the son [such that he inherits before the father] and to exclude the brother [such that he inherits after both]? [Perhaps we should rather say that the father is the closest relative and that he inherits first, followed by the brother, and only then the son!] (see RAMBAN, RASHBA); (d) why do you see fit to include the son [such that he inherits before the father] and to exclude the brother [such that he inherits after the father]? [Perhaps we should rather include the brother to inherit after the son but before the father!] (RA'AVAD, RITVA)

18)[line 7]קם תחת אביוKAM TACHAS AVIV- he stands in place of his father

19)[line 7]ליעדהL'YA'ADAH (YI'UD AMAH HA'IVRIYAH- The Marriage of a Jewish Maidservant)

(a) A destitute father may sell his daughter into the servitude of a Jewish master when she is younger than twelve years of age. Her servitude lasts for either a period of six years, until she reaches Gadlus (the point at which she has grown two pubic hairs after turning twelve), or until the Yovel year (see Background to Gitin 48:1) - whichever comes first. During this period she is termed an "Amah ha'Ivriyah."

(b) The master of an Amah ha'Ivriyah has the option of marrying her at any point of her servitude through the money that he originally purchased her with (see Kidushin 19a). His son may also marry her in this manner. Such a marriage is termed "Yi'ud". If neither her master nor his son wishes to marry her in this manner, no one else may marry her until she is released from servitude.

20)[line 8]ולשדה אחוזהSEDEI ACHUZAH - An Ancestral Field

(a)After the conquest and division of Eretz Yisrael, Yehoshua bin Nun divided Eretz Yisrael amongst all Jews (other than those belonging to Shevet Levi) alive at that time. The lot of each Jew in Eretz Yisrael was passed down to his male descendants, as per Dinei Yerushah (laws of inheritance; see above, entry #4). Such a field is referred to as a Sedei Achuzah as long as it remains in the possession of he who received it as an inheritance.

(b)If one is Makdish (consecrates) his Sedei Achuzah, then its value is assessed by a Kohen (see below). Anyone may then redeem it from Hekdesh. If the owner redeems it himself, he must an additional fifth of the ensuing total - equal to a quarter of the original value - onto the value of the item. For example, if the field is worth one thousand Sela'im, he may redeem it for one thousand, two hundred and fifty Sela'im. The field then returns immediately to its owner. If another redeems it, he need only pay its actual value. In such a case, the field does not return to the original owner, even when Yom ha'Kipurim of the Yovel year arrives; rather, the field is divided amongst the Mishmar (watch) of Kohanim who are on duty at that time. The exception to this rule is when the son of he who was Makdish the field redeems it. In such a case, it returns to his father at Yom ha'Kipurim of the following Yovel year. If it is not redeemed at all by Yom ha'Kipurim of the Yovel year, then Rebbi Yehudah maintains that the Kohanim may redeem it. Rebbi Shimon rules that it belongs to the Kohanim and they do not need to redeem it. Rebbi Eliezer disagrees; he says that it is termed an "abandoned field", and it remains ownerless until someone redeems it. It then enters the possession of the Kohanim when the following Yovel arrives (Vayikra 27:14-21; Mishnah, Erchin 25b).

(c)The value of a Sedei Achuzah is determined according to a set formula. The formula states that every land area normally sown with a Chomer (also known as a Kor) of barley seed is worth fifty silver Shekalim. This area is termed a Beis Kor, and it is equal to 75,000 square Amos (approximately 3.87 acres). This value holds true only at the very beginning of a Yovel cycle. Since the hold of Hekdesh lasts only until the next Yovel, the field decreases in value proportionately yearly as Yovel approaches. Once two years before Yovel arrives, however, the field must once again be redeemed for a full fifty Shekalim per Beis Kor (Vayikra 27:16; Mishnah, Erchin 25a).

21)[line 9]ליבוםYIBUM - Levirate Marriage

(a)Should a married man die without children, his widow is not then free to marry whomever she pleases. The brothers of her deceased husband have a Mitzvah to perform Yibum (levirate marriage); that is, they are obligated to marry her (Devarim 25:5-10). If the deceased has more than one brother, the oldest brother is offered the Mitzvah of Yibum first (Yevamos 24a).

22a)[line 9]כלום יש יבום אלא במקום שאין בן?KLUM YESH YIBUM ELA B'MAKOM SHE'EIN BEN? - (the Gemara responds) is Yibum not applicable only when there is no son [of the deceased]?

b) [line 10] הא במקום שיש בן אין יבום! HA B'MAKOM SHE'YESH BEN, EIN YIBUM! - when there is a son [of the deceased], Yibum is not applicable! From this we see that the opposite is true - a son is closer to his father than a brother is to his brother. This is apparent from that which Yibum is unnecessary when the deceased had a son, as the son himself carries on the lineage of his father. When there is no son, however, it is necessary for the brother to marry his widowed sister-in-law in order to produce an heir for his brother.

23) [line 11] טעמא דאיכא האי פירכא TAIMA D'IKA HAI PIRCHA - (the Gemara asks) the [only] reason [why there is no proof from Yibum that a brother is closer to his brother than that brother's son is] is that disproof (namely, that Yibum is not even necessary when a son exists)

24)[last line]תיפוק ליהTEIPOK LEI- lit. and bring it out from; i.e., why not disprove it more simply using the following reasoning

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