The Laws of Judges
The Laws of Judges: Lesson 1
Dear Everyone, Hello. It’s good to be back. Today we started the discussion of how the Halacha relates to wills drawn up according to non-Jewish parameters.
We started by looking at the general prohibition of turning to non-Jewish courts, and the commentators write that by turning to Gentile (or even secular Jews, as we shall see bli neder ) courts we are saying that the Torah’s system of resolving monetary issues is invalid and does not provide true and just verdicts.
Then we saw that the Halacha is flexible in some areas of commercial law. For example, the Halacha says that the only way to transfer ownership of moveable items is by having the purchaser physically move the property into his possession. Nevertheless, the Gemara recognizes modes of transaction that are initiated by local merchants (e.g. writing “Sold” on merchandise is a final sale, even without moving the item in question). The rashba writes on this issue, “Custom abrogates law.”
Then we saw two truly landmark decisions from the leading Sephardic poskim of the 14th century.These two rabbis were the the Rivash (Rav Issac bar Sheshet) and the Tashbetz (Rav Shimon bar Tzemach Duran) were asked about a will written by a member of the apostate community of Majorca. A convert to Catholocism left property to his wife. The will was contested by someone who pointed out that according to Halacha a wife cannot be an heiress of her husband’s property.
The Rivash answered that the custom of apostate Jews is to follow Catholic/Spanish law, and that custom dictates how commercial disputes are resolved. Even though Halacha supports the one contesting the will, he cannot impose Halacha in an area where no one adheres to Halacha.
The Tashbetz took extreme exception to the ruling of the Rivash. The Tashbetz points out that Judaism has no recognition of apostasy as providing “an exit” from Judaism. Even if the apostates refuse to ackowledge their Judaism, the Jewish laws of inheritance are binding on the apostate community. Therefore, the Halachic heir is the true owner of the estate and the wife who contests this fact is commiting robbery by turning to the Spanish courts to enforce the will.
Next week, bli neder, we will continue with this discussion.
Once again I thank everyone who waited patiently for me to return. Bye, Stuart FIschman.
PS- I am adjusting my clock now.
The Laws of Judges: Lesson 3
Hello. Today we studied a teshuvah of the Minchat Yitzchak (Rav Yitzchak Weiss zt”l who was the Rav of the Eidah haChareidit ). He rejects totally the validity of secular wills. In the course of his discussion he acknowledges the view of the Aruch HaShulchan who mentions an opinion that would recognize the validity of such wills on the bais of dinah d’malchutah dinah. However, Rav Weiss says dinah d’malchutah dinah only applies when the state (or king) has a financial interest in the transaction and can profit from the application of a particular secular law. Rav Weiss says that in the case of contemporary estate law the state does indeed collect estate taxes, but the Halachic heirs would pay the same taxes as would the secular heirs, so the state has no real interest in the identity of the heirs. Therefore dinah d’malchutah dinah is not relevant.
So we saw three views on secular wills: (a) Rav Moshe Feinstein zt”l said the wills are valid as kinyanim (b) The Aruch HaShulchan says some authorities would grant them validity based on dinah d’malchutah dinah (though conceivably this view of dinah d’malchutah dinah might have been valid in Czarist Russia but not in a democracy) and (c) Rav Weiss zt”l who denies their validity .
We then saw that several Rishonim mention the idea of Rav Weiss, that dinah d’malchutah dinah only applies when the king (or state) has a financial interest in seeing that secular law (as opposed to Halachah) is applied, but these Rishonim reject this idea. These Rishonim (among them the Rashbah and Ran) apparently hold that dinah d’malchutah dinah is absolute.
Why then does Rav Weiss ( and the Chatam Sofer as well) quote this view? It may be that Rav Weiss is tremendously opposed to the idea of Jews writing secular wills ( and it’s worth noting that he does not mention the view of Rav Moshe Feinstein on this subject) and brings as many arguments against secular wills as he can. Why would he be so opposed?
In the Halacha there is a concept of .mumar l’hachis – a spiteful sinner. One type of sin is to indulge in a prohibited item because of a craving. For example, a person may be overcome by a craving for shrimp. If he eats shrimp that is certainly bad. But if a person has two equally well cooked steaks in front of him; and one is kosher and one is treif and he eats the treif steak he is a “spiteful sinner.” By ignoring the kosher steak and eating the treif steak the person shows his contempt for the Torah.
A similar situation exists in the case of estate law. A person may wish for whatever reason to leave most of his property to his wife and daughters as opposed to his sons. There is a perfectly valid Halchic way to do this- to write a Halachic will. The other way is to go to a secular lawyer. In either case the person needs to go to an expert, either a rav or a lawyer. By choosing to go a lawyer the person is deliberately ignoring the Halchically accepted option for no apparent reason. This sort of choice is l’hach’is– spiteful- and neither the Chatam Sofer nor Rav Weiss could be a party to this at all and they brought to bear as many arguments as they could to attack this option.
The Laws of Judges: Lesson 4
Hello everyone. Today we completed our seies of shiurim on the laws of inheritance.
We started with a teshuvah from Rav Ovadiah Yosef shlitah. Rav Ovadiah Yosef was asked if the daughters who were named as beneficiaries of the estate along with their brothers must go to court to waive their share in the estate. The brothers who made this claim against their sisters argue that since according to the Halacha the sisters are not entitled to a share in the estate their refusal to waive their share is a violation of:
(a) Midat S’dom- the prohibition against spiteful behavior, and
(b) Hashavat Aveidah– the obligation to return lost property to its lawful owner.
Rav Ovadiah Yosef notes that the claim of the brothers is well-founded but he noted as well that several authorities rule that the sisters are under no obligation to travel to court in order to sign a waiver for free.These authorities said that the brothers need to negotiate with their sisters the payment for taking the trouble to sign the waiver (early authorities suggested a a payment equal to 10% of the share in the estate).
Rav Ovadiah Yosef’s conclusion is that the sisters are not required to sign the waiver for free, however if they would agree to sign the waiver for free they are worthy of a blessing.
We then saw two questions that were posed to Rav Weiss zt”l. The first question regarded interpreting a will in which “the grandchildren” of a Chassidc leader were left a large sum of money. The question revolved around the meaning of “grandchildren” in this context. Did the person mean to leave money to all the granchildren, or only to the rabbis in the family?
The second question was about the inheritance of silver Shabbat candlesticks. In this case a man’s first wife (by whom he had children) passed away and he remarried. He had no children by the second wife. After his death the heirs of the second wife ( who had possession of the candlesticks) were sued for the candlesticks by the children of the first wife. Rav Weiss ruled that since the heirs of the second wife do not have a strong sentimental attachment to the candlesticks per se, the candlesticks should be returned to the children of the first wife and the heirs of the second wife should be paid 1/3 the value of the candlesticks.
Today’s shiur was given in memory of Rav Menachem Froman zt”l of Tekoa.
I want to thank everyone who attended the shiurim and wish you all a chag kasher v’sameiach.
Rabbi Dr. Stuart Fischman graduated from Yeshiva University in 1980 and the dental school of Columbia University in 1985. In 1989 he began studying and teaching at Yeshivat Hamivtar and now studies and teaches at Yeshivat Machanaim in Efrat. He has rabbinic ordination from Rav Zalman Nechemia Goldberg.