OUTLINES OF HALACHOS FROM THE DAF
Prepared by Rabbi P. Feldman
of Kollel Iyun Hadaf, Yerushalayim
BAVA BASRA 108 - Dedicated in memory of Irene Edelstein, by Josh R. Danziger of Cliffside Park, New Jersey.
1) HOW DOES INDIRECT INHERITANCE WORK?
1. (Beraisa): "She'ero (his close relative)" refers to
the father. It teaches that if Reuven dies, his
father inherits him before Reuven's brothers;
2. Suggestion: Perhaps Reuven's father inherits before
3. Rejection: "Ha'Karov" teaches that the closest
relative comes first.
4. 113b (Rav Shmuel bar Rav Yitzchak): "V'Yorash"
equates the second inheritance to the first
inheritance. Just like sons inherit before
daughters, also in the second inheritance (Tosfos -
sons of a child inherit before the child's
daughters; Rashbam - brothers inherit before
5. 115a (Beraisa) Question: Perhaps "u'Ven" teaches
only a son (that he inherits before a daughter)!
What is the source for a child or grandson of a son?
(E.g. if Dosan died before his father Eli'av, and
Dosan left a child or grandson, Dosan's descendant
inherits Eli'av, and Eli'av's daughters do not.)
6. Answer: "Ein Lo" - we read this 'Ayen'
7. Just like we look for descendants, we also look for
ancestors. (If Dosan left no descendants, and also
his father left none, we look for his father's
father (or his descendants)... even if we must go
until Reuven (ben Yakov Avinu).
8. 130a (Mishnah): If Reuven said 'Ploni (a stranger)
will inherit me', and Reuven has a daughter, or he
said 'my daughter will inherit me', and he has a
son, this does not take effect;
9. R. Yochanan ben Brokah says, it takes effect if he
gives to someone fitting to inherit him.
10. (Beraisa - R. Yishmael, son of R. Yochanan ben
Brokah): My father and Chachamim agree that if one
stipulated that a relative should inherit in place
of a daughter, or a daughter in place of sons, the
stipulation does not take effect. They argue when he
stipulates that one daughter will inherit in place
of all the daughters, or one son in place of all the
sons. My father says that it takes effect, and
Chachamim say that it does not.
11. 159a: If Reuven sold his father's property in
Yakov's lifetime, and Reuven died, and Yakov died,
Reuven's son (Chanoch) takes from the buyers. He can
say 'I inherit Yakov - "Tachas Avosecha Yihyu
12. 159b (Rav Acha bar Minyomi): A Mishnah teaches that
if a woman died after her son, he does not 'inherit'
her in the grave, i.e. to pass her property to his
1. Rif (59b): The Halachah follows R. Yochanan ben
Berokah. If a Shechiv Mera wrote all his property to
a son, he only made him an overseer. This is a
Halachah without a reason; we do not apply it to any
2. Rambam (Hilchos Nachalos 6:1): One cannot bequeath
to one who is not able to inherit him, nor to uproot
inheritance, even though it is money.
3. Rambam (2): If he had many heirs, e.g. sons,
brothers or daughters, and said when he was Shechiv
Mera 'Ploni my brother should inherit me out of my
brothers, or 'Plonis my daughter should inherit me
out of my daughters', his words are fulfilled.
4. Rambam (Hilchos Zechiyah 9:5): If a Shechiv Mera
wrote all his property to one who could inherit him,
he receives it like an inheritance, e.g. the heir
was one of his daughters, grandsons, brothers, or
i. Ohr Some'ach (Nachalos 2:14): Rishonim argue
about whether brothers inherit due to their own
power, or due to Mishmush. From this Rambam, we
see that he holds that it is due to Mishmush.
ii. Tosfos (Bava Basra 108b DH Yachol): Why did the
Torah need to write that uncles inherit? We
could learn from Mishmush (when there are no
descendants, ancestors inherit)! The Ri says
that had the Torah not written uncles, we would
not know that Mishmush goes back to ancestors.
Why did the Torah need to write that brothers
inherit? We could learn from Mishmush! It
taught about brothers to teach that a father
inherits before brothers, but not before a
1. Shulchan Aruch (CM 281:1): One cannot bequeath to
one who is not able to inherit him, nor to uproot
inheritance. However, if he had many heirs, e.g.
sons, brothers or daughters, and said when he was
Shechiv Mera '(only) Ploni my brother should inherit
me among my brothers, or '(only) Plonis my daughter
should inherit me among my daughters' (Rema - or he
gave more to one than to another), his words are
i. Beis Yosef (DH u'Mah she'Chosav Aval): The
Halachah follows R. Yochanan ben Berokah,
according to his son R. Yishmael, that one may
transfer inheritance only to inherit part.
ii. Question (Ketzos ha'Choshen 2): How can he
stipulate to bequeath to a particular brother?
A father (who already died) inherits before his
descendants, and his descendants receive
equally from him! Perhaps the Rambam (from whom
this Halachah is taken) learned from the
Tosefta (7:5), which says that giving to a
daughter among sons or to a brother among
daughters does not work. This implies that
giving to a brother among brothers works! Also
the Rif says so. Even though brothers inherit
due to the father, since the father inherits
due to his (the Shechiv Mera's) power, he (the
Shechiv Mera) can bequeath to whom he wants.
Similarly, if Eli'av's son Dosan died, Eli'av
can stipulate that one of Dosan's sons will
inherit everything. Even though Dosan's sons
inherit due to Dosan's rights, Dosan inherits
due to Eli'av, therefore, Eli'av can decide
that one of them receive everything.
iii. R. Akiva Eiger (1:132): Sefer ha'Terumos says
that if a Shechiv Mera (Shimon) gave his
property to one of his nephews, we do not say
that the nephew comes from his grandfather's
rights. The Poskim connote that R. Yochanan ben
Berokah's law applies in every case. We can
learn from Tosfos, who asked why the Torah
needed to write that brothers inherit; we could
learn from Mishmush. It makes a difference when
one said that one of his brothers will inherit!
Rather, we must say that Tosfos holds that even
if one inherits through MIshmush, the Shechiv
Mera can designate any partial heir to inherit
iv. Chazon Ish (ibid. DH ha'Gaon): Also the Rambam
(Hilchos Zechiyah 9:5) says so, but one could
say that the Rambam holds that a creditor would
not inherit, for the nephew can say I inherit
my uncle.' Sefer ha'Terumos says that only a
grandchild can say that he inherits directly.
R. Akiva Eiger proved that an heir who has
rights to inherit directly, also has rights to
inherit his dead relative in the grave.
v. Kovetz Shi'urim (Bava Basra 333): Regarding
Mishmush, does the second (dead) heir inherit
the first, and the third heir inherits from the
second? Or, a Mes cannot acquire, so the third
inherits the first, for he is in place of the
second. The latter is correct. A relative who
inherits is Pasul for testimony. Rashi
(Sanhedrin 27b) says that a nephew (Elazar)
cannot testify for his mother's brother
(Nachshon), for Elazar inherits Nachshon. If a
Mes inherits in the grave, Elazar inherits his
mother, and not Nachshon! Also, we equate the
second inheritance to the first. I.e. a man
died, and his sons and daughters inherit their
grandfather (Tosfos 113b DH Makish). If a Mes
inherits in the grave, this is first
inheritance, and no Hekesh is needed (to teach
that the sons alone inherit)! Tosfos says that
we learn that a grandchild exempts from Yibum
from inheritance, i.e. one inherits his
grandfather. If he inherits his father in the
grave, there is no proof to Yibum. The Ramah
says that a son who died does not inherit his
mother in the grave to bequeath to his paternal
brothers because the live brother is not a
relative of the mother. If he inherits his dead
brother, he need not be a relative of the
mother! All this shows that the third inherits
the first. This resolves the questions of the
Ketzos ha'Choshen and R. Akiva Eiger. Maharam
bar Baruch (928) says that R. Simchah said that
according to the Ge'onim who say that a Mumar
(apostate) does not inherit his father, the
Mumar's son inherits his grandfather
mid'Oraisa.- "Tachas Avosecha Yihyu Vanecha."
The Yerushalmi asks why a grandson cannot do
Yi'ud (marry his grandfather's Amah Ivriyah),
but a grandson is like a son for inheritance.
If a grandson inherits through his dead father,
we do not consider him a son of his
DOES ONE INHERIT IN THE GRAVE? (Bava Basra 114)
DOES A CREDITOR COLLECT FROM RA'UY? (Bava Basra 159)
Index to Halachah Outlines for Maseches Bava Basra