פירוש על בבא בתרא 8:5

לא אמר כלום – and he is not able to remove hm from the inheritance, other that via that he would give his property to the rest of his sons through a gift.

Introduction Mishnah five deals with a father’s ability to decide which of his inheritors will inherit.

על פיו – because it is a Mitzvah in the consequence of a death and a person on his deathbed, his words are like they were written and transmitted and they don’t require an [act of] acquisition, and because of this it is taught “by his mouth”/על פיו.

Our mishnah deals with a father who does not want to simply let the inheritance fall in its proper order (as learned in the first two mishnayoth of the chapter) but rather wants to divide his property in another fashion.

והשוה להן את הבכור – in the language of a gift.

If a man says, “So and so, my firstborn son, shall not receive a double portion”, or “So and so, my son, shall not inherit with his brothers”, he has said nothing, for he has made a condition contrary to what is written in the Torah. The Torah demands that the eldest son receive a double portion and each of the other sons divide the money equally. A father’s attempt to lessen the portion of the eldest son or increase the portion of the other sons would be, therefore, a condition that goes against Torah law, and such a condition is invalid.

דבריו קיימין – and we don’t have here [the case] of a person making a condition against what is written in the Torah because it is within the power of an individual to give his money as a gift to whomever he desires.

If a man apportioned his property to his sons by word of mouth, and gave much to one and little to another, or made them equal to the firstborn, his words are valid. But if he had said [that it should be so] “by inheritance”, he has said nothing. If he had written down, whether at the beginning or in the middle or at the end [of his will] that it should be as a gift, his words are valid. However, the fact that a man cannot make a change in the inheritance law does not mean that he cannot apportion his money as a present to his children while he is still alive. As long as the document or his verbal contract states that the money is being passed to his children as a present while he is still alive and not as an inheritance after his death, the transaction is valid. The Torah’s laws govern inheritance, the transfer of money after death and not presents given during life.

ואם אמר משום ירושה – and if he increased [the monies] to one and lessened them to another in the designation of inheritance as he said: “So-and-so my son will a field that is an area requiring a Khor of seed, and so-and-so my son will inherit a field that is in an area requiring a one-half Khor of seed. But regarding his first-born son he said that he would inherit like that of his fellow, he did not say anything, for he made a condition that is against what is written in the Torah.

If a man said, “So and so a man shall inherit from me” and he has a daughter; or “My daughter shall inherit from me”, and he has a son, he has said nothing, for he has made a condition contrary to what is written in the Torah. Rabbi Johanan ben Baroka says: “If he said [that so and so shall inherit from me] of one that was qualified to inherit from him, his words are valid, but if of one that was not qualified to inherit from him his words do not remain valid.” Similar to the law in section one, here too a person attempts to change the laws of inheritance from the Torah, by saying that a stranger will inherit when he has a daughter or that his daughter will inherit when he has a son. Again, we learn that such a stipulation, contrary to the laws of the Torah, is invalid. Rabbi Johanan ben Baroka disagrees. He says that as long as the intended inheritor is a legal inheritor, meaning one of those on the list in mishnah one and two, then a person can bypass the primary inheritor and give to the secondary one. In other words Jacob could state that instead of his sons inheriting his property his daughter Dina could inherit, since she is on the lines of inheritance. He could not however, state that a stranger to the family would inherit in place of his sons.

כתב בין בתחלה וכ' – “You will give such-and-such a field to son-and-so, and he will inherit it.” This is at the beginning. “He will inherit it and you will give it to him.” This is at the at the end. “He will inherit such-and-such a field and you will give it to him and he will inherit it. This is a gift in the middle.

If a man wrote away his property to others and passed over his sons, what he has done is done, but the Sages are not comfortable with it. Rabban Shimon ben Gamaliel says: “If has sons did not behave properly, it should be counted to his credit.” Finally, the mishnah states that although a person can give away his property to strangers before he dies, thereby leaving no inheritance for his sons, the Rabbis were not happy with such an action. The laws of inheritance in the Torah are not just guidelines for inheriting should the situation arise, they are the proper way in which property would be transferred from generation to generation. Rabban Shimon ben Gamaliel lastly notes, that if the sons were engaged in improper behavior, it is meritorious for the father to ensure that they receive no inheritance.

אם אמר על מי שראוי ליורשו – as for example, regarding a son among the sons, or regarding a daughter among the daughters, so-and-so will inherit me, his words are fulfilled, as it is written (Deuteronomy 21:16):”When he wills his property to his sons [he may not treat as first-born the son of the loved one in disregard of the son of the unloved one who is older].” The Torah gave permission to the father to bequeath to the sons to whomever he desires. And Rabbi Yohanan [Ben Beroka] agrees regarding a brother in place of a daughter, and regarding a daughter in place of a son, he has not said anything for the daughter is not worthy of inheriting in place of a son nor is the brother [worthy of inheriting] in place of a daughter. And similarly, Rabbi Yohanan [ben Beroka] agrees that if he made the first born equivalent to the [other] sons, he has not said anything, as it is written (Deuteronomy 21:16): “he may not treat as first-born the son of the loved one.” And the Halakha is according to Rabbi Yohanan ben Beroka.

אין רוח חכמים נוחה הימנו – The Sages have no pleasure from his actions, and even if his sons did not conduct themselves appropriately. Perhaps, there will arise from them a higher-level seed. But the Halakha is not according to Rabbi Shimon ben Gamaliel.