SALT - Tuesday, 10 Elul 5776 - September 13, 2016

  • Rav David Silverberg

            Yesterday, we noted the Rambam’s comment in Hilkhot Melakhim (7:14) concerning the case of a ben sorer u-moreh (the “wayward son” who is killed for his dangerous and corrupt behavior): “A ben sorer u-moreh is like all those executed by Beit Din, in that their money is given to their inheritors.  For although his father caused him to be stoned, he inherits all his possessions.”  The Rambam here establishes that the standard rule awarding a bereaved father rights to his son’s estate applies even in the case of a ben sorer u-moreh, despite the fact that the father is responsible for the child’s death, as he brought him to the court, which then sentenced him to execution.  As we saw, later writers sought to explain why the Rambam found it necessary to emphasize that the father receives the estate despite the fact that he had caused the son’s death.

            Rav Yitzchak Zilberstein, in Chashukei Chemed (Bava Metzia 38b), cites his father-in-law, Rav Yosef Shalom Elyashiv, as explaining the Rambam’s comments by noting the Rambam’s emphasis that the ben sorer u-moreh resembles other cases of court-administered execution.  The Rambam here makes reference to the general rule that in the rare cases when Beit Din convicts and executes a violator of a capital offense, the standard rules of inheritance apply, and the violator’s possessions are inherited by his heirs.  This is in contrast to the case of harugei malkhut – people put to death by special order of the government.  Halakha grants the government the authority, under rare and exceptional circumstances, to execute criminals and traitors who pose danger to public safety and cannot, for technical reasons, be prosecuted and punished through the standard due process of law.  When this happens, the executed person’s estate is not inherited by his or her heirs, and is instead seized by the government.  Rav Elyashiv thus suggests that the Rambam made this comment – “A ben sorer u-moreh is like all those executed by Beit Din, in that their money is given to their inheritors” – to dispel the possible misconception that a ben sorer u-moreh should be classified under the category of harugei malkhut.  Unlike all other convicted offenders, whom Beit Din punishes for wrongs which they have committed, a ben sorer u-moreh, as Chazal explain, is executed due to the concern of what he would likely do in the future.  His sentence is not, by nature, punitive, but rather a measure taken by the Torah which foresees that one who qualifies as a ben sorer u-moreh will undoubtedly grow to be a dangerous criminal.  As such, one might have thought that the case of a ben sorer u-moreh resembles that of harugei malkhut – extraordinary cases of execution to protect the public – and should not treated as a standard case of execution by Beit Din.  For this reason, Rav Elyashiv explained, the Rambam found it necessary to clarify that the ben sorer u-moreh’s property is inherited by his father, as we do not consider this a case of harugei malkhut.

            Rav Asher Weiss dismisses this argument, noting that the case of a ben sorer u-moreh is handled start-to-finish by Beit Din, and not by the government.  The parents bring the youngster to the court, which conducts a trial, issues a verdict, and carries out the sentencing.  There is no reason why anyone would consider treating this case as one of harugei malkhut.  Hence, as we discussed yesterday, Rav Weiss explains the Rambam’s comments to mean that ordinarily, an inheritor should not be awarded the estate of a family member for whose death he bears responsibility.  One would have therefore questioned whether the father of a ben sorer u-moreh is entitled to the child’s possessions after his execution, and the Rambam clarifies that he is, presumably because the Torah authorizes the father to bring the wayward child to Beit Din under these exceptional circumstances, and thus the father did not act wrongly in causing his son’s death in this situation.