1 As opposed to an action by proxy in which the principal is regarded as performing the act through an agent.

2 On this issue see, Silberg, M., Principia Talmudica (1964, in Hebrew) 1–12Google Scholar; “Seder Kodoshim Keyetzirah Mishpatith”, in Inner Harmony (Magnes, 1982, in Hebrew) 160.

3 Israeli Law of Inheritance, 1965, sec. 1.

4 Gulak, A., Yesodei HaMishpat Haivri (Berlin, Part III, 1922, in Hebrew) 71.Google Scholar

5 See Kaser, M., Roman Private Law (London, 1968) 313Google Scholar; Tedeschi, G. “Hovoth Haizavon”, (1977) 5 Iyunei Mishpat 14–16.Google Scholar

6 Only at the time of Justinian was the rule formulated to limit the responsibility of the legatee by the value of the estate.

7 On the subject of mortgaging property see, Gulak, A., HaHiyuv Vesheeabudav (Jerusalem, 1939, in Hebrew) 31 ff.Google Scholar; Zuri, I., Torath HaMishpat Haivri Hahipotekai (1944, in Hebrew)Google Scholar; Elon, M., Heruth Haperat Bedarkei Geviath Hahov (Jerusalem, 1964, in Hebrew)Google Scholar; Elon, M., Jewish Law — History Sources Principles (Jerusalem, 1968, in Hebrew) 482 ff.Google Scholar; Poversky, H., Yesodoth Sheeabud Haguf Vesheeabud Nekhasim Behashivah Hilkhatith (PhD thesis, Tel-Aviv, 1986, in Hebrew)Google Scholar; Lifschitz, , Oved Vekablan — Ben Kinyan Leben Hithayvuth (Jerusalem, 1984, in Hebrew)Google Scholar; Herzog, I., The Main Institutions of Jewish Law (London, 1965) 345 ff.Google Scholar; Elon, M., The Principles of Jewish Law (Lien, Pledge, Jerusalem, 1975).Google Scholar

8 In spite of its wide incidence, the law of mortgaged property has many limitations. Not every debt incurs a charge, and not every asset is charged. For example, a loan before witnesses but without a written bond, does not create a charge on the property of the debtor, due to the lack of public knowledge of a debt of this kind, because prospective buyers could not ascertain the existence of such debts, and would be unaware that the property was mortgaged (cf. bBaba Bathra 175; and parallel versions). For the same reason, it was decided that only assets existing at the time of incurring the debt may be charged, as opposed to subsequently acquired property (cf. bBaba Bathra 44b) Furthermore, movables are not pledged. These limitations indicate that the institute of mortgaged property does not offer a full solution to collecting a debt of a deceased person. As I have shown elsewhere, this problem was extensively discussed in the Academies of the Amoraim who wanted to prevent a situation in which the inheritors enjoyed the legacy while the creditors were left empty-handed. (See Edrei, , “Sheeabood Nekhasim — Mah ben Nikhsei Halakoah Lenikhsei Hayoresh” (5785) 25 Mishpatim 291Google Scholar, where I demonstrate the distinction made by the Sages between the status of mortgaged property in the possession of the inheritors, and that of a buyer. The Talmud concludes: “Said Rav Papa: The law is that a verbal loan (without a bond) is recovered from the inheritors (of the debtor) but not from buyers”. (bBaba Bathra 176a, and parallels). It is possible that this law was derived from a different concept of inheritance which included the inheritance of debts. However, it is presented by the Talmud as ifit were developed from the laws of mortgages and pledges. As to movables — an enactment was made by the Geonim that a debt is collected from the movables of the inheritors (Levin, , ed., Iggereth Rav Sherira Gaon (French version) 105Google Scholar) but the origins of this enactment date from Talmudic times. See Schepansky, , Hatakkanoth Beisrael (Part III, 1983) 255 ff.Google Scholar; Elon, M., Jewish Law (1978) 531 ff.Google Scholar; Brody, J. “Kelum Hayu Hageonim Mehokekim” (1974–1976) Shenaton Ha-Mishpat Ha-Ivri 11–12Google Scholar Annual of the Institute for Research in Jewish Law 304 ff.

9 Tosefta Arakhin 3:14–16.

10 See Lifschitz, B. “Sheebuda Doraita — An Obligation or a Lien”, in Enker, A., Deutch, S. eds., Studies in Jewish Law (Bar-Ilan, 1998, in Hebrew) 218.Google Scholar

11 See A. Edrei, “Mizvah al Hayethomim Lefroa Hov Avihem — Al hakelal Hatalmudi Umashnmauto Hamishpatit” in Studies in Jewish Law, ibid., at 19.

12 bKethuboth 91b; bBaba Bathra 157a (the pericope is discussed supra in n. 14).

13 See Edrei, Mizvah al Hayethomim, supra n. 11, at 22–23; 26–27.

14 The Mishnah says (Baba Bathra 9:8 157a): “A house collapsed upon a man and his father or upon a man and those whose heir he is, and that person had against him the claim of a woman's marriage contract or of a creditor; and the heirs of the father plead that the son died first and the father afterwards, while the creditors plead that the father died first and the son afterwards …”

The son's creditors argue that the father died first, hence the son inherited his father's estate, and they, as the defunct son's creditors, are entitled to seize it for their debts. This argument appears to be baseless, for only those properties are mortgaged which existed at the time of the loan (see supra n. 8) while in this case the property was acquired a moment before his death. The Talmud, consistent to the principle that inheritance is restricted to the estate and does not involve personal obligation, explains that this Mishnah concerns a case in which the debtor explicitly included future acquisitions as a surety in his bond, and such a contractional liability was binding.

But R. Nahman objected and said to them: Our colleague Zera has explained this [as follows]: It is the moral duty of the orphans to repay the debt of their father.

It can hardly be said that he means that the claim of the creditors, in our Mishnah, based on moral considerations, because he is trying to explain the legal aspects of the Mishnah.

15 R. Meir of Rothenburg, Responsa (Part IV, Sect. 258, Prague ed.) (emphasis added).

16 bBaba Bathra 157, see supra n. 14.

17 See supra n. 8.

18 Sefer Meirath Enayim, Shulhan Arukh HM 107/1.

19 Gittin 3:7; also Tosefta Gittin 3:1.

20 The roots of this controversy originate from an additional Halakhah in the Tosefta (Gittin 3:1)… “if they have died, he has to obtain permission from the heirs. Who are the heirs? Rabbi says: Any one who inherited him”. The question is whether the permission of heirs who inherited nothing, is effective.

21 Kesef Mishneh commentary; The Code of Maimonides, Hilkhoth Maaser 7:7; also commentaries of Nahmanides, Ben Adret, R. Yom Tov of Seville, R. Meir b. Tordos to Gittin 30a.

22 See Tosafot Gittin 30b s. v. Tanya; also R. Zerahiah Halevi, R. Shlomo Lurie (Maharsha) and R. Shmuel Sztraszin (Rashash) ad loc.

23 It is a Scriptural precept to redeem the first-born, as it is written: “howbeit the firstborn of man thou shalt surely redeem” (Num. 18:15). The first-born to be redeemed, is the first male child of a woman. The significance of this precept, is in showing awareness that everything originates from God, and for this reason the first fruit has to be redeemed. Maimonides defines two stages in the performance of this duty, assignation, and redemption. It is a religious duty to separate and sanctify the firstborn (Precept 79), and it is an additional precept to redeem it from the Priest (Precept 80).

24 Mishnah Bekhoroth 8:3–4.

25 It is explicitly stated so by the Mishnah: “A condition of doubt concerning firstlings irrespective of whether they are firstborn of men or firstlings of cattle, whether the firstlings of an unclean beast or a clean one, for it is the man who advances the claim against his fellow that must produce the proof” (Taharoth 4:12), i.e., the onus of proving the state of firstling is on the Priest in order to receive the five shekel. This Mishnah is the basis for an extensive discussion in the Talmud (bBaba Mezia 6b).

26 Mekhilta of R. Simon b. Johai Ex. 13:13; Epstein-Melamed, ed., at 43, also Midrash Hagadol, ibid., M. Margalioth, ed., at 239. Meaning, after the death of the father. The same interpretation is given in the Jerusalem Talmud (see supra n. 27) which compares this law with the pilgrims' sacrifices. Also Albeck, H., Perush LaMishnah — Hashlamoth Vetosafoth LeSeder Kododshim (1959, in Hebrew) 396Google Scholar; also Kasher, M.M., Torah Shelemah (New York, Part 12, 1948) Appendix, 275–276.Google Scholar

27 jHagigah 1:1 (76a) also bBekhoroth 51b “Rav Dimi said in the name of R. Johanan: “and all your firstborn sons shall you redeem and do not see my face empty handed” — as the inheritors are obliged there (to offer the pilgrim sacrifice of the deceased) so they are obliged here (redemption).

28 The Mishnaic statement that there is a claim on the property might be a later explanation of the exegesis.

29 See Rashi on Bekhoroth, ibid., “Here the inheritors are obliged too: After the death of the father and the son, who died without discharging their obligation”.

30 The Talmud states this as commonplace, “and if his father had not redeemed him, he is obliged to redeem himself, for it is so written” (bKidushin 29a). Maimonides rules: “The father committed a transgression and did not redeem him — he has to redeem himself at his coming to age” (Hilkhoth Bekhorim 11:2).

31 This makes the difficult interpretation of bBekhoroth (48a-b) unnecessary. Cf. Tosefta Bekhoroth 6:8. The version of the Tosefta is surely inaccurate, also cf. S. Lieberman, Tosefet Rishonim, ad loc, at 273, Hasdei David, ad loc. According to their correction, the case in the Tosefta is identical with that of the Mishnah, and here too there is no need to adopt the contrived explanations of Hasdei David, who follows the Talmudic interpretation of the Mishnah.

32 The Talmud quotes it by the name of R. Papa, and apparently it was his innovation. See bBaba Bathra 175a-b, and supra n. 8.

33 The Talmudic Sages disagree on the legal status of inheritance before its division. Samuel and other Amoraim are of the opinion that winning the legacy is a discrete stage, and its division between the inheritors is a constitutive act of assigning the parts of the legacy by the acquisitional procedure of barter. After the division the relationship of the heirs is that of vendors and buyers. The Amora Rab disagrees, he regards the division of the estate as a declarative act, of choosing the appropriate items for each inheritor to which he is entitled. The different approaches have numerous implications, for example whether, as buyers, the inheritors have to return the estate to its original state in the Jubilee (bBezah 37b; bBaba Kama 69b etc.); or in the continuance of usage: “R. Nahman says in the name of Samuel, the inheritors who divided the estate do not inherit rights of access”, i.e., the way their father used to enter (Rashi) (bBaba Bathra 7b; 65a); while according to Rab, the inheritors are not purchasers, and could say, “I will live here as my father did”, and other issues. As to the ruling of Maimonides, who makes a connection between the two approaches and the obligations of the legator, see bBaba Kama 9a; bBaba Bathra 107a. Also “Tedeschi, G., “Halukath Ha-izavon hazharatith o Haavaratith”, 7 Iyunei Mishpat 438Google Scholar; Shilo, S., Comments on the Law of Inheritance, 1965 (Jerusalem, 1993, in Hebrew) 37–38Google Scholar and n. 38; Silberg, , Principia Talmudica (Jerusalem, 1962, in Hebrew) 270 ff.Google Scholar

34 An oral loan is a term for any debt without a written document; see supra n. 8.

35 See Albeck, , Hashlamoth Vetosafoth Lepirush Hamishnah, Seder Kodoshim 395–396Google Scholar; Kasher, M.M., Torah Shelemah (N.Y., vol. 13, 1948, in Hebrew) Appendix, 276–277.Google Scholar

36 According to this interpretation the reading of the Mishnah, “if they gave the redemption money before dividing the property, it is irrecoverable” means that the sons are free from any obligation, but if they had given, they discharged their father's obligation to redeem his firstborn, and obviously cannot ask for a refund. It is not so after the division of the inheritance, for even if they had given, they did not do it on behalf of their father.

37 Keritoth 6:7; Temurah 2:2; Meilah 3:1.

38 Mishnah Temurah 4:1.

39 “…it is left to die, because the dead need no atonement, because their death atones for them” (Rashi Meilah 10b); bZebahim 5a.

40 Maimonides, Code: Hilkhoth Mehuserei Kapparah 1:11.

41 Mishnah Kinnim 2:5.

42 This is the reading of the better extant versions of Sifra, and it was known to the Tosafists (bMenahoth 4b s.v. “lo”, and in order to harmonize it with the Mishnah amended it.) Cf. Torath Kohanim, Debura Dehova 18:3, Finkelstein, ed. (N.Y., vol. 2, 1983) 188. In this edition, some of the manuscripts are abbreviated, and the last section is missing, “And how do we know that one who brought his burnt-offering and died, that his inheritors have to bring his sin-offering? Scripture says One For A Sin-Offering and One For A Burnt-Offering”. See Finkelstein's comments ad loc; also Vol. 3 (alternate versions) 268. Apparently this was the original reading and the others were changed to harmonize them with the Mishnah. For a detailed discussion see Finkelstein, A., “Mitorato Shel R. Nehuniah b. Hakane”, Sefer Hayovel Lerabbi Hanokh Albeck, 354.Google Scholar

43 Finkelstein, Sefer Hayovel Le-Albeck, (supra n. 42).

44 Sifre Deu. 210, Finkelstein, ed. (N.Y., 1993) 243–244; Albeck, , Commentary to the Mishnah Supplements to Seder Kodoshim (in Hebrew) (Temurah 2:2) 210.Google Scholar

45 bKidushin 13a.

46 Lifschitz, B., “Sheebooda Doraita — Ben Hiyuv Lebetuhah”, Enker, A., Deutsch, S., eds., Iyunim Bamishpat Ivri Ubehalakhah (Bar-Ilan, 1999, in Hebrew) 205.Google Scholar

47 See Edrei, “Mizvah al Hayethomim”, supra n. 11.

48 jHagigah 1:1 (76a).

49 RIDBAZ commentary ad loc.

50 See supra text to n. 27.

51 Cf. Tosafot RID commentary.

52 Supra n. 10, at 222–223.

53 HAGRA on Shulhan Arukh HM 107/1.

54 Maimonides, as usual, adopts the view of the Babylonian Talmud, restricting the obligation of the inheritors to the charge on the estate: “The woman who presented her guilt-offering and died, the inheritors bring her burnt-offering even if she did not assign it in her lifetime, because her property had been charged, and this charge is Scriptural” (Hilkhoth Mehuserei Kapparah 1:13). But with regard to the pilgrim's sacrifice, Maimonides rules that it was only obligatory if it had been assigned in the pilgrim's lifetime: “One who assigned his pilgrim's sacrifice and died, the heir must present it” (Hilkhoth Hagigah 1:10). The commentators see this as an inconsistency. Why was pre-mortal assignation necessary in one case and not in the other? (Lehem Mishneh; Kesef Mishneh ad loc.). But in the light of our interpretation, Maimonides is consistent: The woman is obliged to bring her maternity sacrifices as soon as she gave birth, therefore her assets are pledged, and the heirs are required to discharge the obligation. Pilgrims, however, have no obligation before appearing at the Temple, therefore, if they did not appear, the obligation did not arise and there is no charge on their property. The obligation only arises if he had assigned an animal for the Temple, in which case it does not belong to him any more, and was not part of the inheritance.

55 Regarding the distinction between land and movables, see supra n. 8.

56 Lev. 27:2 ff.

57 Maimonides Code Arakhin Veharamim 1:2.

58 Rashi explains on the Mishnah: “The amount of a ‘;worth’ vow is determined by the court's assessment, and this was never done because the subject died”. Apparently the obligation comes into force by the assessment. Cf. Commentary attributed to Rabbenu Gershom “After his death it cannot be known how much he was worth when alive” — this implies that the obligation arises with the vow, while the assessment only defines the amount to be paid.

59 Mishnah Arakhin 5:2.

60 Ibid., 5:4.

61 bArakhin 20a.

62 Ibid. Maimonides also rules that the law of the Mishnah applied to a sub-judice case. (Code Arakhin Veharamim 1:21–22) In his opinion, the court action does not create a charge on the assets, but affirms the obligation. Without the court process, the vower himself is exempt. (Maimonides Commentary to the Mishnah ad loc.)

63 R.S. Sztraszin (Rashash) explains this Mishnah on the principle “a dedication to the Temple is like the delivery to a commoner” — meaning that unlike ordinary transactions where an act of acquisition is mandatory for ratification, in dealings with the Temple a verbal promise suffices to transfer ownership. (Cf. Mishnah Kidushin 1:6; Tosefta ibid., 1:9; Tosefta Baba Kama 4:3; Tosefta Arakhin 4:4). Here too, the vow itself created a transfer of ownership for the Temple. This interpretation presents some difficulties, because the rule applies only to the dedication of specific objects, which R.S. Sztraszin here extends to a floating charge. It is a matter of controversy among the Halakhic authorities whether this principle also applied to a vow involving a donation to charity, creating a charge on the vower's assets which could be collected even from his heirs. Cf. Alfasi Baba Kama 18a-b, Baal Hamaor, and Milhamoth Hashem ad loc. Also Maimonides, Code Hilkhoth Mekhirah 22:15–7. The Early Authorities discuss Maimonides at length. Also; Lifschitz, B., Asmakhta Hiyuv Vekinyan Bamishpat Haivri (Jerusalem, 1988, in Hebrew) 88 ffGoogle Scholar; 191 ff.

64 Lev. 6:13.

65 Mishnah Menahoth 4:5 [different nomenclature in Kaufmann Manuscript]. Cf. Tosefta Menahoth 7:12; Mishnah Shekalim 7:6 quotes it as an enactment, “Said R. Simon: Seven things were enacted by the court … that a High Priest who died, his meal offering is to be provided by public funds, R. Judah said, by his heirs…”

66 Maimonides rules that the heirs provide it (Hilkhoth Temidin Umusafin 3:22) “If the High Priest died after offering the first half, and they did not appoint another priest, his heirs must bring a whole tenth … if the High Priest died before the morning offering, and another priest was not appointed, they bring the same tenth …” But elsewhere (Hilkhoth Shekalim 4:4) he says: If the High Priest died and another was not appointed in his place, the griddle cakes are provided by a donation of the Sanctuary.” Apparently in the latter Halakhah Maimonides relates to the interim period between two High Priests, and not to the day of the High Priest's death, while the first ruling is explicitly for the day on which the High Priest died. (See Or Sameah Temidin Umusafin ad loc.) Why is there a distinction between the day of his death and another day? I think it is hard to say that the assets of the priest were charged for his obligation. On the other hand it is feasible that the Priest has an obligation every day to present his offerings, and since he did not do so, his heirs do it in his stead.

67 In other words, he does not follow the way of his fathers.

68 Sifra Zav Parsha 3.

69 It is clear that none of the sons were appointed to be High Priest. The Sages' opinion of hereditary succession to public office, and its pertinence to the present discussion is outside the scope of this paper. See, Sifre Devarim (Finkelstein, ed., 1993) 212Google Scholar; Lieberman, , Tosefta Kepeshuta (2nd ed., part IV, 1993) Shekalim, 694Google Scholar; Alon, G., Tarbiz 20, 84.Google Scholar

70 bZevahim 7b; bPesahim 61a.

71 Rashi bZebahim 7b s. v. yesh.

72 bZebahim 5a.

73 See also, Tosafot ad loc. s. v. HGH: “we find post-mortem sacrifices which are valid but do not propitiate”.

74 bZebahim 5b.

75 Ibid., 5b-6a.

76 Rashi, bJoma 50b s. v., “oh dilmah”.

77 There is a possible further Mishnaic example to affirm the view which regards an inherited sacrifice as an asset with a special status or purpose, which can be used on behalf of the inheritor. The case concerns a man who designated a sum of money for his Nazirite's sacrifices, but died before they were due. His son cannot present the sacrifices of his father, as the latter himself is unable to do so, but the son may use it for his own Nazirite's sacrifices. The Mishnah says as follows: “A man can poll (shave) with offerings due for his father's naziriteship. But a woman cannot do so. Where, for example, a man's father had been a Nazirite, and has set apart a lump sum of money for [the sacrifices of] his naziriteship and died and [the son then] said, I declare myself a Nazirite on condition that I may poll with my father's money. R. Jose said that these moneys are to be used for freewill-offerings and that such a man cannot poll at the expense of his father's naziriteship. Who can do so? He who was a Nazirite together with his father, and whose father had set apart a lump sum of money for his nazirite [sacrifices] and died. [Only] such a man can poll at the expense of his father's naziriteship” (Nazir 4:7).

This is the version in the Talmudim and in the Kaufmann manuscript. This version is supported by the Jerusalem Talmud which explains the reasons of R. Jose (see below) R. Jose's opinion appears also in the Tosefta (Nazir 3:18). But many manuscripts reverse these two examples, making R. Jose permit him to poll if he becomes a Nazirite afterwards, but not if he is a Nazirite together with his father. (See Tosafoth Nazir 30a s. v., haed; also Baraita bNazir 30b; Asheri and Hameiri commentaries ad loc.).

In the opinion of the first Tanna the inheritor may only use the money allocated by his father, if he made his Nazirite vow after the death of his father, thus making his vow continent upon the use of the legacy (interpretation of Hameiri). R. Jose rejects this view, but he permits the use of the money if the father and son were Nazarites at the same time. This is the interpretation of the Mishnah if we assume that the first Tanna and R. Jose held mutually exclusive opinions. The first Tanna says that use of the money is only permitted if the son vowed after the death of his father, while R. Jose permits if the vow had been made before the death of the father. The Jerusalem Talmud understood this Mishnah this way “the first does not agree with the other, and the other does not agree with the first” (jNazir 53c). bTalmud also aware of this dilemma and its conclusion is ambiguous (see, controversy Rashi and Tosafoth bNazir 30b).

78 Mishnah Menahoth 9:8; Maimonides Code Maaseh Hakorbanoth 3:8.

79 Menahoth 9:7.

80 bTemurah 2a; bMenahoth 93a; bArakhin 2a; Tosefta Menahoth 10:11.

81 Note that neither the Mishnah nor the Baratta specify whether the disagreement applies to a case where the legator actually designated an animal, or he merely entered an obligation before his death. Rashi (ad loc.) and Maimonides (Commentary on the Mishnah, Temurah ibid.) explain that it obtains only if the sacrificial animal had been designated, otherwise the heir cannot lay hands or effect a substitution. Sheetah Mekubezeth (Arakhin ad loc.) disagrees, and says that even if there was an obligation of the father without designation, the heir may lay hands on it and effect a substitution — in the opinion of R. Meir. Since the Mishnah itself made no distinction, the interpretation of Sheetah Mekubezeth is more preferable.

83 bMenahoth 93a.

84 Cf. Commentary of R.I.Z. Soloveitchik to Arakhin 2a, who leaves undecided whether the inheritor must lay hand on the sacrifice if the legator had performed the ceremony before his death: “Since the inheritor had become the owner of the sacrifice, he apparently has to perform the ceremony once again, and it makes no difference that the ceremony had been performed in the past, because laying hand by the owner is required”.

85 This interpretation of the controversy is accepted by Sofer, R. M.Responsa Hatham Sofer YD 321Google Scholar; and R.A. y. Herlitz, Hazon Ish Zebahim 1/6. Cf. Minhath Hinukh (115 s. v. ulekhorah) concludes that the inheritor lays hands even on the sacrifice of his mother, though women are excused this ceremony, because he is the present owner.

86 Cf. Sifra Behukotai 13:4 “and if He Shall at All Change Beast for Beast — including the inheritor”. R. Abraham b. David explains: “though a person cannot substitute a sacrifice which is not his … with regard of an inheritor, it belongs also to him and it also atones for him”.

87 Cf. Y.L. Perlman Or Gadol commentary to Mishnah, “It seems to me, that even if he had inherited nothing (beside the sacrifice), he nevertheless must bring the libations (at his own expense), because he is the owner and he lays hands, unlike an agent who does not lay hands. The inheritor is like the owner and he is atoned, therefore he can also substitute”. It is clear that the inheritor is regarded as the owner, and not an agent of the legator, therefore he brings libations at his own expense — if needed.

88 bNiddah 61b and parallels.

89 Urbach, E.E., Meolamam Shel Chachamim (Magnes, 1988, in Hebrew) 229–256Google Scholar (Hilkhoth Yerushah Vehaieh Olam).

90 This explanation does not necessarily exclude the validity of the first explanation. It is quite feasible that the monetary obligation has both a religious and a proprietary aspect: one due to the responsibility of the deceased to settle his debts, and the other is due to the pledge of his property. These alternatives are not mutually exclusive. There are two concurrent obligations here, a material one concerning the legacy due to the pledge, and a personal one, concerning, so to speak, the deceased as the religious precept of settlimg one's debts.