Responsa for Bava Batra 125:1
ולא היא דאמר רב יימר בר שלמיה לדידי מפרשא לי מיניה דאביי בין מצר ארעא דמינה פלגא ובין מצר ארעא דמינה פסיקא אי א"ל אלין מצרנהא פלגא לא א"ל אלין מצרנהא תשעה קבין:
This, however, is not so, because R. Yemar b. Shelemiah has said: Abaye has himself explained to me that whether he writes, 'The boundary [of the field] is the field from which half has been cut off,' or 'The boundary [of the field] is the field from which a piece is cut off,' if he adds the words, 'these are its boundaries', [then he sells him] half,<span class="x" onmousemove="('comment',' The superfluous words being meant to place the purchaser in the most favourable position possible. ');"><sup>1</sup></span> and if he does not add the words 'these are its boundaries', [then he sells him] nine <i>kabs</i>.<span class="x" onmousemove="('comment',' The deed being interpreted in favour of the seller, ');"><sup>2</sup></span>
Teshuvot Maharam
Q. A drew up a legal document in which he used the following words: "Effective as of today, but to be executed after our (meaning himself and his wife, L) deaths, our daughter R shall inherit an equal share with her brothers, those already born and those that might be born, in whatever will remain of my estate." After A's death, his children and his widow, L, interpreted the document to mean that A had appointed L trustee over his estate. When L proved a very inefficient, careless, and wasteful trustee, A's sons reached an agreement with L, whereby she was to receive forty marks for turning over the estate to A's sons immediately. Before relinquishing her trusteeship, L and her youngest son B (who was eighteen years of age) agreed to allow R's husband to take his wife's share of the estate immediately, without having to wait for L's death. A's two other sons object to this latter agreement.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
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Teshuvot Maharam
Q. A drew up a legal document in which he used the following words: "Effective as of today, but to be executed after our (meaning himself and his wife, L) deaths, our daughter R shall inherit an equal share with her brothers, those already born and those that might be born, in whatever will remain of my estate." After A's death, his children and his widow, L, interpreted the document to mean that A had appointed L trustee over his estate. When L proved a very inefficient, careless, and wasteful trustee, A's sons reached an agreement with L, whereby she was to receive forty marks for turning over the estate to A's sons immediately. Before relinquishing her trusteeship, L and her youngest son B (who was eighteen years of age) agreed to allow R's husband to take his wife's share of the estate immediately, without having to wait for L's death. A's two other sons object to this latter agreement.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
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