BECHOROS 52 (5 Sivan) - Dedicated l'Zecher Nishmas Reb Chaim Aryeh ben Aharon Stern Z'L by Shmuel Gut of Brooklyn, N.Y.
1) COLLECTING A DEBT FROM IMPROVEMENTS MADE TO LAND BY THE DEBTOR'S HEIRS
QUESTION: The Mishnah teaches that a woman whose husband has died may not collect her Mezonos or Kesuvah from improvements ("Shevach") made to her husband's land by the orphans, because, as the Gemara explains, the Chachamim placed limitations on what she may collect. The Gemara implies that only a widow who wants to collect her Kesuvah may not collect from the Shevach, but an ordinary creditor is entitled to collect from the Shevach which the orphans made to a collateralized field that belonged to their father.
This inference, however, seems to contradict the Gemara in Bava Metzia (110a; see also Insights there). The Gemara discusses a case in which a creditor wants to collect, as repayment for his loan, a field from the orphaned heirs of the debtor. Improvements were made to the field, though, which increased its value. The orphans claim that they made the improvements and therefore the creditor is not entitled to collect the value of the improvements. The creditor, who is entitled to confiscate the land itself as repayment for his loan, claims that he is also entitled to collect the improvements, because their father, the debtor, made the improvements to the land. The Gemara clearly implies that a creditor is not entitled to collect his loan from improvements made by the orphans themselves after their father's death.
How is the Gemara here to be reconciled with the Gemara in Bava Metzia?
(a) The ROSH (Bava Metzia 1:39) answers that a creditor is not entitled to collect from the Shevach which the orphans made to the land, as the Gemara in Bava Metzia implies. When the Mishnah here says that a widow may not collect her Mezonos or her Kesuvah from the Shevach because the Chachamim limited her rights, it does not mean that any other creditor may collect from the Shevach. Rather, the Mishnah singles out a widow because one might have thought that the obligation to pay the Mezonos of a widow is a debt which always falls upon the orphans and, therefore, a widow is more entitled than any other creditor to collect the Shevach from the orphans. Therefore, the Mishnah must teach that even the debt of Mezonos of a widow may not be collected from the Shevach of the orphans.
(b) TOSFOS here (DH veha'Amar) and in Bava Metzia (15a, DH Ba'al Chov) disagrees with the Rosh and maintains that a creditor may collect the Shevach from the orphans. When the Gemara in Bava Metzia says that he may not collect from the Shevach, it is discussing a case of an "Apotiki." In the case of an "Apotiki," the debtor designates a specific field that will be collected for the debt if he fails to pay. In such a case, when the orphans were the ones who made the improvements to the land, they are entitled to collect from the creditor (when he confiscates the land and its improvements) the expenses that they incurred in making those improvements. That is the claim of the orphans in the case of the Gemara in Bava Metzia.
The reason why they are entitled to their expenses if they made the improvements to the field after their father's death is that an "Apotiki" is considered to be completely in the creditor's possession (after the borrower dies or sells it), thereby giving the orphans who improved it the status of one who improves his friend's field, in which case the Halachah is that he is entitled to receive his expenses. (Y. MARCUS)
2) DIVIDING AN INHERITED ESTATE AT EVERY "YOVEL" YEAR
QUESTION: Rebbi Asi says in the name of Rebbi Yochanan that when brothers receive land as an inheritance from their father and divide it between them, it is considered as though they purchased from each other the respective properties that each one took as his portion ("Achin she'Chalku, Lekuchos Hen"). Rebbi Yochanan maintains "Ein Bereirah" (the status of an object cannot be designated retroactively, based on an event that will happen in the future. In this case, the future event -- the brothers' division and selection of the respective portions of their father's property -- cannot determine retroactively that each brother received the portion that was truly intended for him). Since they are considered as though they purchased their portions, they must return them to each other when the Yovel year arrives (and re-divide the property among themselves).
Since the Halachah is that "Ein Bereirah" for matters that are mid'Oraisa, brothers who inherit their father's estate should have to re-divide the property at every Yovel year. Is this indeed the Halachah in practice?
(a) TOSFOS (DH Amar) suggests two reasons for why, in practice, brothers do not need to exchange their inherited properties at the Yovel year, even though the Halachah is "Ein Bereirah."
The first reason is that it is only Rebbi Yochanan who requires brothers to re-divide the estate at Yovel. The other Amora'im, who agree that "Ein Bereirah," do not require a re-division at Yovel. Yovel is effective for the return of purchased property, but not for property obtained through the division of an estate or received as a gift (as the Gemara earlier quotes in the name of Rebbi Meir). Even though an estate that was split is considered a purchase as far as certain laws are concerned, it is not considered a purchase with regard to Yovel, and thus Yovel does not affect it since it is not a true purchase but an inheritance.
(b) In his second reason, Tosfos suggests that we learn from Yehoshua's division of the land that the division of an estate is not returned every Yovel. The first division of estates took place when Yehoshua divided Eretz Yisrael among the Shevatim through the prophecy of the Urim v'Tumim. It is clear that such a division is not terminated at every Yovel, since it was a Divine decree. From that original division of property we learn that all property that is inherited is not returned at Yovel to the other heir, even when the division of the estate is accomplished in a manner similar to a purchase.
(c) The MISHNAS YA'AVETZ (RAV BETZALEL ZOLTI, Hilchos Shemitah v'Yovel 11:20) explains that a buyer returns the purchased land to the seller in the Yovel year because the original sale did not give him complete ownership of the field. Although he owns the produce of the field ("Peros"), the original owner still owns the body ("Guf") of the field, which returns to him at Yovel. In contrast, prior to the division of an inherited estate (when the property is in the state of "Tefusas ha'Bayis"), each brother is considered to be the full owner of all of the property (the Guf and the Peros). While a normal purchase takes the ownership from one person and grants it to another, dividing an estate simply removes one brother's ownership from the portion that the other brother receives. Since each brother's ownership is complete (Guf and Peros), he is not required to return it at Yovel.
3) HOW THE SECOND DIVISION IS MADE
OPINIONS: The Mishnah states that the double portion of the inheritance that a Bechor receives does not return to the family estate in the Yovel year. In the Gemara, Rebbi Asi says in the name of Rebbi Yochanan that when brothers receive land as an inheritance from their father and divide it between them, it is considered as though they purchased from each other the respective properties that each one took as his portion ("Achin she'Chalku, Lekuchos Hen"). Since it is considered as though they purchased their respective portions, they must return them to each other when the Yovel year arrives (and re-divide the property among themselves). Rav Hoshiya challenges Rebbi Asi from the Mishnah that says that the double portion of the Bechor does not return to the estate at Yovel. Rebbi Elazar answers that the Mishnah means that the Bechor's portion does not return "l'Batalah" at Yovel.
What is the meaning of Rebbi Elazar's answer?
(a) RASHI (DH u'Machzirin) explains that after the brothers return their portions at Yovel, they make a new division of the estate. Rav Hoshiya asks that it is clear from the Mishnah that the brothers do not return their portions at Yovel. Rebbi Elazar answers, as Rashi (DH Ein) explains, that the portion of the Bechor indeed returns at Yovel, and when the Mishnah says that it "is not returned" it means that the Bechor's right to receive a double portion is not terminated; he receives a double
portion from the new division of the estate, just as he received at the first division.
It is clear from Rashi's explanation that at Yovel, a new division of the estate is made, but the Bechor does not lose his right to receive a double portion in the second division.
(b) The RAMBAM (Hilchos Shemitah v'Yovel 11:20), however, writes: "Brothers who divided the estate are considered as though they bought from each other, and they must return [their portions] to each other at Yovel. However, their division should not change from what it was. Similarly, a Bechor returns his double portion at Yovel, and takes instead a corresponding portion." The KESEF MISHNEH writes that the Rambam understands Rebbi Elazar's statement that the portion of the Bechor "does not return l'Batalah" at Yovel to mean that when the property is returned, the original division is not annulled. This refers not only to the right of the Bechor to receive a double portion, but to the portions that all of the brothers received. The division of the estate into clearly delineated fields and boundaries remains exactly the same. However, the owners of the particular fields and houses exchange and move to a different portion. The Bechor receives a different property, but of exactly the same value as the property he received at the original division.
The MAHARI KURKUS asserts that the words of the Gemara, "[the brothers] return to each other at Yovel," are more consistent with the Rambam's interpretation that the properties remain intact and the owners change -- the brothers literally "return" their properties to each other. According to Rashi, a totally new division is made and one brother does not "return" anything to another brother.
The Mahari Kurkus and the Kesef Mishneh question Rashi's explanation further. According to Rashi, why would one have thought that the Bechor should lose his right to receive a double portion at the second division, such that the Mishnah (according to Rebbi Elazar) needs to teach that he does not lose that right?
Perhaps one may answer based on the explanation of the BARTENURA in the Mishnah. The Bartenura explains that the reason why the Bechor's double portion is not terminated at the second division is that the Torah says that the father must "give him a double portion" (Devarim 21:17), comparing the two portions that he receives to each other. Just as the right to receive a basic portion is not terminated at Yovel, the Bechor's right to receive the extra portion is not terminated. However, if not for this "Hekesh," one would not have known that the extra portion is not terminated at Yovel. Therefore, it is necessary for the Mishnah to teach that the Bechor does not lose his double portion at Yovel.
to SHAI LA'MORA
cites Rashi in Gitin (25a, DH Lekuchos) who writes that "the brothers return their properties at Yovel to the original status, to fulfill the Mitzvah of Yovel, and then they retake them again as they did originally." He suggests that this proves that Rashi's interpretation indeed is the same as the Rambam's -- the original division is not annulled (unlike the Kesef Mishneh's understanding that Rashi and the Rambam argue). However, this proof from Rashi in Gitin is refutable. When Rashi there says that they retake the property as they originally did, he does not mean that they take according to the same division made the first time; rather, just as the properties were mixed up and then divided at the first division, an entirely new division is made the second time. (See Insights to Gitin 48:1