1) THE SALE OF AN ESTATE OF "NECHASIM MU'ATIM"
OPINIONS: Rav Asi in the name of Rebbi Yochanan rules that when the heirs of a deceased person sell "Nechasim Mu'atim" (an estate which does 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 does this sale take place? Does it take place before Beis Din issues its ruling to allocate a lump sum of support for the daughters, or after Beis Din issues its ruling?
(a) The RASHBAM writes that Rav Asi's ruling applies only if the estate is sold before the daughters and sons appear in Beis Din. Once Beis Din has made its ruling that the daughters must receive a lump sum, the sons do not have the right to sell the property, and if they do attempt to sell it, the sale is not valid. This is also the view of RASHI in Kesuvos (103a).
(b) TOSFOS (DH Yesomim) proves at length from several sources that even if the sons sell the estate after the daughters have already taken possession of their share, or after Beis Din has collected it for them, the sale is still valid.
The view of Tosfos is difficult to understand. In general, when Beis Din allows a creditor to collect what is owed to him, the creditor becomes the owner of the property that he collects, and the debtor and his family may not sell it. If they do attempt to sell it, the sale is not valid. How does the daughters' claim to the property differ from that of any other creditor? (KOVETZ SHI'URIM)
1. The SHITAH MEKUBETZES (139b) explains the reasoning of Tosfos that the share that the daughters receive for their support is given to them from Karka (land) and not from Metaltelin. The land, however, is owned by 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 gives the daughters the right to sell the land that belongs to the sons and thereby 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 daughters do not obtain rights to the property because they do not have an immediate claim to the full sum required for their support throughout the coming years. The sons do not become obligated at the moment of inheritance to provide the daughters with full support until they reach adulthood. Rather, the sons incur a new obligation each day to provide the daughters with their needs for that day, but each day's obligation is limited to that day alone. Therefore, the daughters' claim to the property extends only to the amount needed for their support for that particular day. (According to this explanation, if the sons sell 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 needed for that day's support. The Kovetz Shi'urim's approach is unlike that of the Shitah Mekubetzes, who says that the daughters do not acquire any ownership over the property. The Kovetz Shi'urim understands that they do acquire ownership over the property but only for the amount of that day's support.) (I. Alsheich)
2) WHY ARE MALES BETTER
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 leftover after the daughters are given their support). Admon says, "Because I am a male, I lose out?" The Gemara asks why Admon reasons that a male should take 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 a man should take precedence because he learns Torah, then if a deceased man has two sons, one of whom learns Torah and one of whom does not, the one who learns Torah should inherit the entire estate, and the one who does not learn Torah should receive nothing.
What is Rava's question? Perhaps it is true that in such a case, the son who learns Torah inherits the entire estate, and the son who does not learn Torah does not receive anything. 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 va'Chomer) to support his sons, because they learn Torah. Why does Rava assume that a son who does not learn Torah inherits equally with a son who does learn Torah? (TOSFOS DH Ela)
(a) TOSFOS answers that the case of the Beraisa later is different. That Beraisa discusses the Mitzvah for a man to support his children. The Mitzvah to support children is only a proper deed and not an obligation. The fact that sons learn Torah can be used to prove that there it is proper to support them before other sons. With regard to a Torah obligation such as inheritance, however, the fact that certain sons learn Torah cannot be grounds to give them precedence over other 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 says that it is a Mitzvah to support one's daughters and certainly to support one's sons, it refers to young sons (Ketanim) who are all potentially fit to toil in Torah. There is no reason 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 the case of the Beraisa, they are all considered like sons who learn Torah. The case of the Gemara here, however, refers to adult sons. Rava asks that according to Abaye, Admon's dispute should apply only in the case of sons who learn Torah. Admon would agree that sons who do not learn Torah have no advantage over daughters (on the contrary, he would maintain that the daughters should precede the sons in such a case). Rava maintains that it is not logical to understand that Admon's question applies only to sons who learn Torah, because Admon's words do not imply such a distinction.
(c) The SHITAH MEKUBETZES in Kesuvos (108b) explains that Rava questions 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 a Mitzvah to support them. He argues, however, that it is not a reason to completely deprive the sons who do not learn Torah of their share of the inheritance. (I. Alsheich)