1) THE ENACTMENT MADE FOR SHEVET BINYAMIN
QUESTION: The Gemara relates that after the incident of Pilegesh b'Giv'ah (Shoftim 19-21; see Background to the Daf), when Shevet Binyamin was almost wiped out, a decree was established for Shevet Binyamin in order that its ancestral property remain in the ownership of the Shevet. The decree was that whenever there would be sons who are supposed to inherit from their father, along with a daughter of a deceased son, the daughter would not inherit. This decree was made despite the Torah's law that a deceased son inherits from his father, and his daughter (if he had no son) subsequently inherits that portion of her grandfather's estate.
The RASHBAM (DH she'Lo) explains that at that point, there were only 600 males left in the entire Shevet of Binyamin, which meant that if one person died, a lot of land would transfer ownership as an inheritance. To ensure that the land would remain in the ownership of the Shevet and would not be taken by other Shevatim (who would marry women from Binyamin who would inherit large tracts of land from their fathers), this decree was enacted.
The MAHARSHA asks an obvious question on the Gemara. If the concern was that land from Shevet Binyamin would be given to other Shevatim, why did the Chachamim not simply follow the Torah's own decree for the daughters of Tzelofchad? In order to prevent their father's share of the land from being transferred to another Shevet, the Torah required that the daughters of Tzelofchad marry only men in their own Shevet. Why did the Chachamim instead decree that a granddaughter (whose father is not alive) does not inherit her father's share of her grandfather's estate?
(a) The MAHARSHA answers that it is possible that since only 600 males were left in Shevet Binyamin at the time, it was not appropriate to decree that all of the women should marry only men from Shevet Binyamin, because of the pool of eligible men was extremely limited. The daughters of Tzelofchad, in contrast, had thousands of men from Shevet Menasheh to marry, and therefore the Torah required that they marry only within their Shevet.
The Maharsha quotes the Rashbam (DH she'Lo) who writes that this decree applied only when there were sons available to inherit their father. If a man died with no sons, and a granddaughter stood to inherit alongside her aunt, she would receive her the portion to which she was entitled. The Rashbam adds that in such a case, where a man died with no sons, the daughters and granddaughters presumably were careful to marry within the Shevet in order to ensure that the land they inherit would not become the portion of a different Shevet.
(b) The IYUN YAKOV writes that there was another reason behind this decree. The Chachamim wanted the males of Shevet Binyamin to have large properties through inheritance in order to entice the rest of the Jewish people to start allowing their daughters to marry into Shevet Binyamin after they had stopped doing so because of the war against Binyamin. This would make the men of Binyamin more attractive to potential fathers-in-law. (Y. MONTROSE)
2) TZELOFCHAD'S DOUBLE PORTION
QUESTION: The Mishnah states that the daughters of Tzelofchad inherited three different portions from their father, Tzelofchad. One portion was the portion that Tzelofchad received by virtue of being one of the people who left Mitzrayim. A second portion was the inheritance which Tzelofchad received from his father, Chefer, who also came out of Mitzrayim. A third portion was the double portion that Tzelofchad inherited from his father by virtue of his status as the Bechor, the firstborn son of Chefer.
An interesting question is raised by the Rishonim. Due to Tzelofchad's untimely death, he was outlived by his father, Chefer. The Gemara later (119a) teaches the rule that a Bechor receives a double portion only of property which is actually in his father's possession ("Muchzak") and not of property that will eventually come into his father's possession ("Ra'uy"). Accordingly, since Chefer did not yet receive his portion of Eretz Yisrael before Tzelofchad died, Tzelofchad should not inherit a double portion of that land as the Bechor.
(a) The RASHBAM (DH v'she'Hayah) quotes the Tosefta in Bechoros (6:5) which states clearly that the rule that a Bechor does not inherit a double portion of "Ra'uy" property does not apply in this case. The Tosefta states that if a man dies in the lifetime of his father, the man's Bechor receives a double portion of his property, but he does not receive a double portion of his grandfather's property. The Tosefta illustrates this point by using the case of Yitzchak, Yakov, and Reuven as an example. Assuming that Yakov is not a Bechor, and his son Reuven is a Bechor, when Yakov dies Reuven does not inherit a double portion from his grandfather, Yitzchak. The Rashbam explains that since Yakov himself would have inherited only a single portion from Yitzchak, since Yakov is a second-born son, certainly Yakov's son, Reuven, should not inherit a double portion from Yitzchak through Yakov. However, if Yakov would be a Bechor, then he clearly would receive a double portion from Yitzchak, which in turn would be passed to Reuven.
This Tosefta is proof that the fact that Tzelofchad was a Bechor entitled him to receive a double portion from Chefer, even though he died before Chefer. The Rashbam points out that the Tosefta teaches that a Bechor does not inherit a double portion from his grandfather only when his father died before his grandfather and was an ordinary son, but he does inherit a double portion from his father who died if his father was a Bechor.
The RAN takes issue with the Rashbam's interpretation of the Tosefta. According to the Rashbam's understanding, why does the Tosefta emphasize the fact that a grandson who is the son of a deceased, ordinary (non-Bechor) son does not inherit two portions from his grandfather? This is obvious! Why would he inherit two portions when his father would inherit only a single portion?
(b) The RAN therefore understands that the intent of the Tosefta is to teach a different lesson. The Tosefta teaches that although Yakov (in the example above) has a share in the estate of Yitzchak even if he dies before Yitzchak, Yakov's firstborn son, Reuven, does not inherit the possessions which Yakov "inherited" from Yitzchak any differently from his other brothers. This is because the portion of inheritance which was going to be passed to the deceased Yakov is considered "Ra'uy," since Yakov never actually owned the property in his lifetime. Since Reuven's portion of that inheritance comes from Yakov, and Reuven inherits a double portion only from what Yakov actually owned, Reuven does not receive a double portion in Yakov's share of the possessions of Yitzchak when Yitzchak dies. However, he does inherit an ordinary share. Similarly, the daughters of Tzelofchad inherited the double share that Tzelofchad received from Chefer. (Only if Tzelofchad would have had a Bechor and ordinary sons would the Halachah of the Tosefta have taught that the Bechor inherits an ordinary share of that inheritance and not a double share). (Y. MONTROSE)