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Bava Basra, 144


OPINIONS: The Mishnah (143b) states that a woman who increases the value of the estate before it is divided among the heirs does not receive the increased value for herself, but rather it is shared by all of the heirs. If, however, she explicitly stated that she was ready to receive her portion and Beis Din tarried in dividing the estate, then she does receive the increase that she caused to her portion of the estate.

The Gemara asks what right does a woman have to any portion of the estate in the first place. A woman does not inherit any part of the estate of her deceased husband; she only receives her Kesuvah (or Mezonos (support) from the estate until she receives her Kesuvah, in which case all of her income is giving to the man's heirs who are supporting her from the estate).

The Gemara answers that the Mishnah is referring to a case in which the woman inherits. What case is this?

(a) The RASHBAM gives several possible situations in which a woman inherits property. Two simple cases are as follows. A man, Yakov, died leaving several sons (Reuven and Shimon), and one of the sons (Levi) died before Yakov, but he left a daughter. That daughter inherits the share that her father, Levi, was entitled to receive from Yakov's estate, together with Reuven and Shimon. Thus, it is that daughter whom the Mishnah is discussing. Alternatively, a man dies leaving only daughters, in which case the daughters inherit his property. The Mishnah is referring to a case when one of those daughters increases the value of the property.

The Rashbam gives another situation in which a woman inherits. Reuven and Shimon are brothers. Shimon has only one child, a daughter, who marries Reuven. Then, both Reuven and Shimon die, and afterwards their father, Yakov, dies. The offspring of Reuven and the offspring of Shimon take the place of their fathers to inherit the property of their grandfather, Yakov. Thus, the daughter of Shimon inherits the property together with the sons of Reuven.

There is a problem, though, with all of these explanations. The Mishnah says that if the woman states, "See what *my husband* left for me," then the increase that she causes to the value of the property belongs to her. This clearly implies that she is inheriting *her husband's* property. How, though, is it possible for a woman to inherit her husband's property?

It seems that the Rashbam is answering this question (see end of MAHARSHA to Tosfos here) when he says that the Mishnah there is not referring to its previous case of a woman who inherits, but rather it is referring to a different case altogether -- a case of a widow who has not yet collected her Kesuvah but who has demanded payment from her husband's estate. If she goes and increases the value of the property, then she keeps the increase in value.

The Rashbam gives one more explanation which answers this problem. The Rashbam says that the case is when the husband, before he died, specifically stated that his wife should receive a portion (as a gift) together with the sons. Thus, the woman indeed is receiving a portion of her husband's estate. However, this explanation has a different problem -- the Mishnah seems to be discussing cases of Yerushah, inheritance, and in this case the woman is receiving a portion of the property as a *gift*, and not as an inheritance.

(b) TOSFOS, in the name of the RI, gives an answer to support the case that the Rashbam describes (the case of the daughter of Shimon who marries Reuven). He explains that since the husband is entitled to all of the produce of any property that his wife inherits, and she may not use, sell, or consume that produce for herself, when her husband dies it is indeed relevant for her to say, "See what my husband left for me," because she had no rights to use the field while he was alive.

According to this explanation, though, Tosfos is learning that the property that the daughter of Shimon inherited from her grandfather, Yakov, was already in the hands of her husband at the time that her husband died, which is slightly different than the way the Rashbam explains it (he says that Reuven and Shimon died *before* Yakov died, and when Yakov died his property went directly to his grandchildren, the sons of Reuven and the daughter of Shimon). According to Tosfos, Shimon died first, and then Yakov died. Yakov's property was inherited by his son, Reuven, and by the daughter of his other son, Shimon, who died earlier. At the time that Shimon's daughter inherits her father's share of Yakov's property, she is married to Reuven and thus Reuven receives all of the rights to the produce of her newly inherited property. Then, her husband Reuven dies, leaving her with the rights to the produce of her property. That is why she says, "See what my husband left for me."

(c) Tosfos gives another explanation in the name of the RIVAM. The Rivam explains that Reuven, Shimon, Levi, and Yehudah were brothers (whose father had died long ago). The daughter (and only child) of Shimon marries Reuven. Shimon then dies, and afterwards Reuven dies with no children. Since Reuven has no children, his brother's inherit his property. Since his brother, Shimon, is not alive, Shimon's offspring -- in this case, his daughter who happens to be the widow of Reuven -- inherit the property of Reuven! Thus, it certainly is relevant to say, "See what my husband left for me." The RIF gives a similar explanation.

(The RI rejects this explanation, because the Gemara implies that the other heirs who inherit Reuven's property are the "Yesomim," the orphans, of Reuven, and not his brothers or his brothers' offspring. The RITVA, however, says that it is common for the Gemara to use the term "Yesomim" to refer to any heirs, and not just to the orphans left by the deceased. Alternatively, the other heirs where children, and thus the Gemara refers to them as Yesomim.)


QUESTION: The Mishnah states that -- in contrast to the practice of sending Shushvinus -- if a person sends to his friend a gift of wine or oil, he has no right to demand in court that his friend reciprocate the gift, because he has merely done an act of Gemilus Chasadim.

The RASHBAM gives two explanations for the case of the Mishnah. First, he says that the case is when a person sends a gift to his friend when his friend is not getting married or having any wedding feast (and thus the gift clearly is not a gift of Shushvinus). Second, he says that the case is when he sends a gift to the wedding feast of his friend, but he does not go there personally to partake in the feast and to rejoice with his friend. Since he does not go there to rejoice, the gift is not considered a gift of Shushvinu, but it is an ordinary present and thus the giver may not demand reciprocation in court.

Both of these explanations are problematic.

(a) The TORAS CHAIM asks on the Rashbam's first explanation that if the gift is being sent when there is no wedding whatsoever, what is the Mishnah teaching us that we would not have known? It is obvious that when a person sends an gift to his friend unconditionally, without stating that he is doing so only in order to receive a gift in return, it is a full-fledged gift and he cannot demand later that his friend send him a gift in return!

(b) The TORAS CHAIM asks on the Rashbam's second explanation that if the giver is sending the gifts to the wedding feast of the recipient, then the Mishnah should have mentioned that fact, since it is a great Chidush to say that just because he does not participate in the wedding feast, he does not have the right to receive gifts in return. Moreover, the Mishnah should not have said merely, "One who sends jugs of wine and jugs of oil...," but rather it should have said, "But one who sends *Shushvinus* and does not partake in the wedding feast...."

(a) The PNEI SHLOMO answers that the Rashbam's intention is to explain like the ALIYOS D'RABEINU YONAH explains in the name of "Yesh Mefaresh" (which is also the explanation of the RAV AVAD). They explain that the recipient of the gift is making a "Se'udas Mar'us," a feast for all of his beloved friends. In such a case, when the giver sends gifts to his friend who is making the feast, we certainly might think that he is doing so on condition that when he, too, makes such a feast for all of his friends, that this friend will send him gifts as well. Therefore, the Mishnah teaches that such a gift is only an act of generosity and reciprocation cannot be demanded in court.

(b) The PNEI SHLOMO answers the second question as well. The wording of the Mishnah indeed implies the case that the Rashbam explains. The word, "ha'Shole'ach" -- "one who sends," implies that the giver is only *sending* the gifts and is not coming personally. Only when he comes personally are his gifts considered to be Shushvinus. Thus, it is also not possible for the Mishnah to say, "One who *sends Shushvinus*...," because if he is sending the gifts, then they are not Shushvinus! (I. Alsheich)

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