The Weekly Mitzva
Yeshivat Har Etzion
By Rav Binyamin Tabory
The last mitzva in the Rambam's list of mitzvot asei is the mitzva of inheritance. At first glance, this mitzva appears to belong to the group of procedural laws that the Rambam counts as mitzvot even though there is no actual "mitzva" involved. In previous shiurim we have encountered examples of these mitzvot, such as the "mitzva" of shomerim (Sefer Ha-Mitzvot mitzvat asei 242-245) and the "mitzva" of tahara and tum'a (ibid. 96-108).
Whether or not inheritance indeed belongs to this group would seem to depend on the Rambam's two different formulations in defining this mitzva. In Sefer Ha-Mitzvot and the introduction to Hilkhot Nachalot, the Rambam defines the "mitzva" as "the law of the order of inheritance." This would suggest that we have here not an actual "mitzva," but rather a statement of fact, clarifying who owns a person's estate after his death. However, in the abbreviated list of mitzvot printed in the beginning of the Mishneh Torah, the Rambam says that the mitzva is "to adjudicate the laws of inheritance." This formulation seems to refer to an obligation incumbent upon the courts to judge these laws according to the Torah's laws. Indeed, Rabbeinu Sa'adya Gaon enumerated inheritance in his list of mitzvot that are incumbent upon the community and Beit-Din (rabbinical court). By contrast, the Sefer Ha-Chinukh (400) held that there is a mitzva incumbent upon every person, male and female, to adhere to the laws of inheritance as specified by the Torah. If a person stipulated that someone other than his legal heir should inherit, he has violated this mitzva. While it is true that such a stipulation has no legal validity, the statement itself constitutes a transgression of this mitzva.
The Chinukh emphasizes that the Torah did not intend to forbid disposing of one's possessions any way he sees fit. In truth, one may give away all his assets to anyone. The only limitation imposed by the Torah is that no one else may be designated as heir.
We read in Parashat Pinchas that the daughters of Tzelofchad claimed the inheritance of their father, since he had died without leaving sons. Apparently, it was self-understood and practiced that a son inherits his father's estate. Moshe brought their case before God who then detailed all the laws of inheritance: "If a man should die and have no sons, his inheritance should be transferred to his daughter" (Bamidbar 17:8). The Ramban (ad loc.) pointed out that fathers are not included at all in this list of inheritors. The Ramban explains that all relationships are reciprocal, and it is therefore understood that if a son inherits his father, then a father would likewise inherit his son.
It is interesting to note that the Torah never explicitly states that a son inherits. The fact that a daughter inherits when there are no sons naturally implies that the son is the primary heir. This led the Gaon of Rogatschov, Rav Yosef Rozen, and others, to propose a theory that a son is not merely an heir. He actually fills his father's shoes and takes over in his stead. In his characteristic, succinct style, Rav Rozen cites many sources to prove his point (see She'elot U-teshuvot Tzofnat Pa'aneach 313). One of his proofs comes from the laws concerning the eved ivri (Jewish servant). The Gemara (Kidushin 17b) explains that if the owner dies, ownership over the eved is not transferred to his heirs. If, however, the owner leaves behind a son, the eved continues to work as the son's servant. This clearly demonstrates a fundamental distinction between a son and other heirs, namely, that the son somehow assumes his father's status.
The Rogatschover uses this theory to explain the difference between the Jewish laws of inheritance and those that apply to non-Jews. The Gemara (Yevamot 62a) says that inheritance laws do not apply to non-Jews. Rashi (ad loc.) explains that there is indeed a biblical law of inheritance for non-Jews, but the specific laws of inheritance given in our parasha do not apply to non-Jews. Therefore, there is no distinction between sons and daughters with respect to the inheritance of a gentile's estate, and they inherit equally. Rav Rozen explained that the concept of the father and son merging into one soul-kindred spirit, so-to-speak, can apply only to Jews, and not to non-Jews. A Jew's relationship or identity with his father can never be changed. As we explained, a son is not merely a relative; he takes over in place of his father. A non-Jew, by contrast, is only related to his father. The fact is that this relationship can cease. If a non-Jew converts to Judaism, biological father and son are no longer related. And in terms of relationship, sons and daughters are equal, and they therefore inherit their non-Jewish father equally.
The laws of inheritance extend beyond the issue of finance and estates. The Rambam ruled (Hilkhot Kelei Ha-Mikdash 4:20) that if a king or kohen gadol dies, his heirs take his place if they are suitable for the position. This process follows the normal order of precedence, so naturally the son comes first. In the case of kingship, however, we find an unusual law, which may relate to the theory advanced by Rav Rozen. A king of Davidic lineage need not be anointed, as the original appointment and anointing of David Ha-melekh continues forever from father to son (Rambam, Hilkhot Melakhim 1:7). The Rambam adds (ibid. 1:12) that in situations of political contention or war, we do anoint the son of a king in order to settle the dispute. Thus, Shelomo was anointed due to the dispute that arose with Adoniya's attempt to claim the throne. The Brisker Rav, Rav Y.Z. Soloveitchik, deduced from this that Shelomo really did not need anointing, as he was David's heir and natural inheritor of the kingship. Since he received rights to the throne through the laws of inheritance, no anointing would have been necessary had it not been for Adoniya's challenge. Seemingly, however, Shelomo's appointment as David's successor was not a normal case of inheritance, given that Shelomo took over the kingdom while David was still alive. How could we apply to this situation the laws of inheritance, which obviously cannot take effect until after the relative's death? We might suggest that the laws of kingship are unique and not actually based on the laws of inheritance. However, the Rashba (responsa, vol. 1, #300) ruled that an aging chazan may appoint his son to replace him, even if the community objects. Inasmuch as the laws of inheritance cannot be applied until death, the Rashba's ruling may be understood as a unique provision that a son fills his father's place even before the father's death, when he becomes incapacitated. Since, as we have seen, a son differs from other relatives and inherits by virtue of his assuming his father's position, this particular form of inheritance may, indeed, take effect even before the father's death. (This reading of the Rashba assumes that he applied this law only in the case of sons, and not in a situation of other heirs.)
After the laws
of inheritance were given, the Torah relates that God told Moshe that he may
see but not enter the
The Chatam Sofer (responsa, O.C. 12) derived from this Midrash that the Rabbinate is not automatically transferred from father to son. He assumed that Moshe's children were worthy and could succeed Moshe, but "keter Torah" (the crown of Torah) is not passed onto one's children. Rav Meir Dan Plotzki (Keli Chemda Parashat Pinchas), however, held that Moshe's children could not take their father's place since they were born as non-Jews and then converted to Judaism. We have already seen that according to the Rogatchover, this special father-son relationship applies only in the case of Jews, and not to non-Jews or converts. Therefore, the fact that Moshe's children did not inherit his leadership does not prove that a son born to a Jewish father and mother does not automatically succeed his father's pulpit if he is worthy of that position. Many disputes and much literature have arisen in regards to this issue.