R. Yochanan Ben Brokah's Novel Idea of Yerusha
IN LOVING MEMORY OF
Jeffrey Paul Friedman
August 15, 1968 – July 29, 2012
יהודה פנחס בן הרב שרגא פייוועל
כ"ב אב תשכ"ח – י' אב תשע"ב
Unlike transfer of items through kinyan, inheritance transfer occurs automatically and independent of the person who has passed away. The Torah establishes an elaborate system of inheritance, and the “flow” or transfer of the deceased person's estate occurs automatically; the person is powerless to affect the distribution. A person CAN preempt the inheritance flow by executing standard kinyanim, which can distribute his estate and circumvent the flow of inheritance. If these kinyanim are scheduled to obtain just prior to death, they can "mimic" inheritance. In fact, “Halakhic wills” are premised upon standard kinyan-based distribution of estate scheduled to take effect just prior to death. In this manner, daughters are typically awarded equal portions even though their position in the inheritance hierarchy would often preclude them from inheritance entirely. Similarly, non-first born are allocated equal amounts to their oldest bechor brother. Inheritance has not been altered; it has merely been preempted.
R. Yochanan ben Brokah (Bava Batra 130) poses a radical idea – that a person can refashion inheritance patterns themselves. He derives this from the employment of the phrase, "Ve-haya bayom hanchilo," (Devarim 21:16) which describes the day on which the father “inherits” his children – implying that a person is ACTIVE in delivering inheritance. There are different opinions as to the scope of this ability, but without question, according to R. Yochanan be Brokah, the dying person is empowered to affect inheritance patterns. How does this mechanism operate?
The simple approach – articulated by many Rishonim – would be to empower the father to ASSIGN supreme inheritors. The Torah creates a default inheritance hierarchy, but a person is authorized to re-landscape that list. Once he has re-assigned the primary inheritors, the inheritance transfers automatically, as in standard inheritance. He does not DIRECTLY power the inheritance process, but rather redefines the recipients of the standard halakhic process.
The Rosh clearly disagrees and offers a different model for R. Yochanan ben Brokah. The gemara (141b) initially suggests that a person can assign primary inheritor status to an unborn child. However, it ultimately rejects this theory and disallows assignment of an unborn inheritor. The Rosh viewed this disqualification as affirming that R. Yochanan ben Brokah's mechanism is similar to classic kinyan. The special dispensation based on the pasuk allows the kinyan to be executed even without an ACT of kinyan. However, the PROCESS is still fashioned upon classic kinyan transfer powered by the makneh (the current possessor who is actively transferring the item). Since the process is modeled upon classic kinyan, only recipients who can receive actual kinyan can benefit from this process. Since an unborn baby cannot acquire items through kinyan, he cannot be assigned the kinyan through R. Yochanan ben Brokah's apparatus.
This question – whether the mechanism of Rebbi Yochanan ben Brokah works by assigning inheritors or by actively transferring through kinyan – may lead to some very interesting questions. Which people can be the beneficiaries of this assignment? It is clear that non-relatives are not candidates for R. Yochanan ben Brokah benefits. What about "secondary" relatives, relatives who typically receive inheritance through mishmush (see shiur #13). May they be upgraded through R. Yochanan ben Brokah's declaration?
Many Rishonim allow brothers to be assigned inheritance priority (see, for example, the Rambam, Nachalot 6:2, and the
Without question, if R. Yochanan ben Brokah's process were similar to classic kinyan (without an act of kinyan), it would be open to ALL inheritors, primary and secondary. To be sure this process would not apply to non-inheritors, who would require a conventional kinyan process, including an act of kinyan. However, any inheritors – even those who receive only indirectly through mishmash – should be included, as the process is not affecting inheritance hierarchies. Since mishmush candidates are potential destinations for inheritance – although indirectly – they can receive this special kinyan transfer. However, if the process assigns inheritance priorities, perhaps mishmush candidates cannot be affected. Since they are not truly inheritors, but rather inheritors of inheritors, their status cannot be altered by a person reshaping his inheritance lineage. Of course, this also depends upon the definition of mishmush and whether a mishmush candidate is truly considered part of the inheritance lineage of the dead person.
A striking discussion in the Ritva (Bava Batra 136b) highlights a different outcome of comparing R. Yochanan ben Brokah to typical inheritance. Even R. Yochanan ben Brokah disallowed tampering with the double inheritance of the first born. The Torah specifically protects such activity, issuing the prohibition "Lo yevaker" (Devarim 21:16, against altering this allocation. What would happen if a father assigns a double portion of the remaining estate (not including the actual bekhor's double portion) to a particular son? Would his inheritance simulate the inheritance of a firstborn? A bekhor cannot receive a double portion from assets that entered the possession of the estate posthumously? (“ein ha-bekhor notel be-ra'uy ki-be-muchzak”). Can a regular son who has been rewarded a double volume of inheritance, through mishmush, receive his allocation from assets acquired by the estate posthumously? The RItva cites two opinions and ultimately concurs that the son CAN receive a double portion even from posthumous assets. The opinion which limited his rights to bekhor limitations clearly fashioned R. Yochanan ben Brokah upon inheritance. If the mechanism delivers classic kinyan, there should be no residual limitations upon the rights of the lucky brother who received a double kinyan. Clearly, this position that does limit his benefits to bekhor like assets assumes that R. Yochanan ben Brokah's rule allows re-designation of inheritors. A brother who receives double has been redefined as a bekhor, and his portion is therefore limited by the classic limitations of bekhor.
Of course, if R. Yochanan ben Brokah described a classic kinyan, the process would be shaped in kinyan terms. No ACT of kinyan would be necessary, but other elements of a classic kinyan process may be required. For example, can a recipient waive the privileges intended for him? This question was raised by R. Elchanan Wasserman and presumably revolves around the nature of R. Yochanan ben Brokah. If the recipient has been assigned “alpha” inheritor status, he cannot reject that assignment (similar to the inability of a classic inheritor to reject their status). Of course, ONCE they inherit, they can dispossess the inheritance, but they cannot prevent the initial inheritance. If the process is driven by classic kinyan, perhaps the standard parameters would apply and an unwilling recipient would not acquire the item. Of course, the counter argument would suggest that even though the process is modeled upon kinyan, the execution is quite different. The very fact that an ACT of kinyan is unnecessary underscores the difference in the execution. Perhaps just as an act of kinyan is not necessary, acquiescence of the recipient is similarly not necessary.
A more compelling question – and one hotly debated by Rishonim and Acharonim – concerns the ability to acquire davar she-lo bah le-olam items through R. Yochanan ben Brokah's process. Would the process affect items which at the point of declaration had not yet materialized but emerge prior to the actual death? The Rashba (Kiddushin 61b) claims that R. Yochanan ben Brokah's process is ineffective, while others, including the Maharit Algazi (late 18th century) in his comments to the Ramban's Hilkhot Bekhorot, claim that it does impact davar she-lo bah le-olam. Presumably, they are discussing the structural question as to how R. Yochanan's process operates. If it assigns PEOPLE as supreme inheritors, it should affect any assets. Once assigned as an inheritor, the person should receive all available assets – even those which were not material at the point of declaration. If, however, the process is similar to an actual kinyan, it cannot apply to items upon which classic kinyan is inoperative. The absence of an ACT of kinyan notwithstanding, the process cannot affect items which cannot be affected by kinyan dynamics.
Having inspected several issues raised by the Rishonim which may stem from this question, we may be better able to appreciate two questions which already appear in the gemara proper. First, the gemara in Bava Batra (130a) cites a debate about the scope of R. Yochanan ben Brokah. Can a person upgrade a latter inheritor prior to a prior one? For example, can a person determine that a daughter should inherit prior to sons or a father prior to a daughter? Or is the authorization limited only to restructuring equal inheritors – that is, highlighting a particular son to receive prior to other sons or a particular daughter to receive prior to other daughters? R. Yishmael claims that his father never intended the broader application of upgrading inferior inheritors above superior ones. One reading of the mishna (130a), however, suggests that indeed R. Yochanan did intend a broader application. Without question, a kinyan-based apparatus would be more extensively applied. As stated earlier, a kinyan is a common convention which can be executed between ANY two parties. Indeed, THIS kinyan of R. Yochanan ben Brokah is exceptional in that no ACT of kinyan is required and is therefore limited only to potential inheritor candidates. However, all inheritors can receive this gift – be they mishmush candidates (as discussed earlier) or later inheritors being given a gift which will preempt earlier inheritors. If, however, R. Yochanan allowed inheritor re-assignment, perhaps he only allowed prioritization among equals, highlighting a particular son or a particular daughter. He may not have allowed upgrading a later inheritor above an earlier one.
Rava (Bava Batra 131a) raises a different question, but one which evolves from the aforementioned discussion. Would a healthy person be able to employ this process, or only a shechiv meira, a person nearing his death? Presumably, a kinyan based apparatus would be available to a healthy person as well. Alternatively, if the process assigns inheritors, it may be limited only to someone who is at the STAGE of determining inheritance- a shechiv meira!!
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