Monday, July 21, 2008

Parshas Pinchas:Yerushas HaBas

Bloggong has been slow this summer due to vacations and the heta but I didn't want a whole month to go by without writing something

I discussed an interetsing shailah that is found in many poskim. According to the torah a daughter has no rights to the yerusha. The question is, what happens if her brothers come to her and ask her to sign a waiver relinquishing her claims to the yerusha. Al pi torah she has no rights so by signing she does not lose anything. The brothers might want her to sign for a couple of reasons. Either they want to make sure she won't cause trouble in the future or perhaps the secular law won't allow them to take possession of the property until those who are not getting anything will give up their claim. The shailah discussed is does the daughter have a right to ask for money in order to sign the waiver or is she obligated to do it for free.

Among the poskim that discuss this are the Shoeil U'meishiv, the Divrei Chaim, Maharsham, and the Minchas Yitzchak. The first to discuss this shailah was the Pnei Moshe who says it is a machlokes between the Maharit and Mahri Besson.

The poskim bring rayas from various gemaras for their opinion. For example, the Shoeil U'Meishiv (mahadura basra chelek 1 siman 1) brings a rayah from a Ran in Gittin (Perek 4) that she doesn't have to sign for free. The gemara says that if an eved runs away to EY the master can't take him back. However, the Ran says we don't force the master to write a shtar shichrur. The Shoeil U'Meishiv says from here we see you can't force the daughter to sign.

The tzad to say that she must sign is based on 2 reasons. The first reason is that it is midas s'dom not to sign. It is zeh nehneh v'zeh lochaseir. The only question is do we force someone to do a midas s'dom. The Divrei Chaim and Nachlas Tzvi (Shulchan Aruch Siman 276) write that if the daughter will not lose anything by signing we force her to sign. They bring a rayah from a sugyah in Baba Kama 102b. (ayin sham). The Mahatsham writes that if we know she could stand to lose we don't force her to sign. For example, it night be beneficial for her to make people think she has property coming to her. Teh second reason to make her sign is m'din hashavas aveida. If in secular law the brothers can't collect the property until she signs off then by signing off she is m'kayeim hashavas aveida. Again the Maharsham points out that you are not obligated to lose money for hashavas aveida so if she will lose out by signing she doesn't have to sign.

L'ma'aseh the Minchas Yitzchak writes there are 3 possible situations

1) if secular law requires one to make a claim otherwise they lose out, so we force her to keep quiet and m'meilah she loses the rights (al pi secular law). If she already put in a claim we make her take her claim back.

2) If secular law requires that she sign a waiver and by doing so she will realize some sort of loss, we verify if this is true and if it is she is not required to sign a waiver.

3) If she will not realize a loss by signing the waiver then it is a machlokes haposkim if she can demand money for her signature. The Maharsham writes she can ta'ana ""kim li"-I hold like the poskim that say I can ask for money and she can ask for money. (The Minchas Yitzchak himself feels she can't ask for money based on a Chasam Sofer).

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