Siman 174

Brothers or partners who came to divide and appraised the portions one against the other and came to cast lots, and one of them said, "I do not desire a lot, and my will is for this portion," and he bids up this portion and says, "I will give for it such-and-such more than what they appraised it," or "You take it at this price," they listen to him, for this is like the claim of gud o igud. And if they do not want that bidding up, he shall take it without a lot. And this is the opinion of the Ra'avad, Rabbeinu Yonah, the Rosh, and the Tur. However, Rabbi Yitzchak he-Chasid, the Ramban, the Ra'ah, the Ritva, and the Nimukei Yosef [at the end of the first chapter of Bava Batra] disagree with this and hold that the claim of bidding up is only for something that does not have enough for division, where one can say gud o igud as written in siman 171. But for something that has enough for division, the claim of bidding up was not instituted, but rather a lot, for the lot is an absolute law just as it was in the division of the Land of Israel. And the opinion of the Rambam appears to be like the first opinion, since he did not mention at all in the twelfth chapter of Shechenim regarding the laws of division the law of a lot. And since there is no lot by necessity, one may rise through bidding up, for if not so, each one would desire only this portion and there would be no end to the matter [and since he wrote there in the second chapter regarding a lot the reason "for that benefit etc." and so it is in the Gemara, and if it were the law, this is not a favor; and it is possible that he explains thus what Rav Yosef said in Bava Batra 12b: "we bid it up for him." And so our teacher, the Beit Yosef, intended. And as for what he questioned, why he did not write it explicitly, it can be said that since he wrote the reason of "the trait of Sodom," and with bidding up there is no trait of Sodom here, and all the more so that the first one can bid it up. And it is well what they questioned him, why he did not rule like Rav Yosef, for in truth he did rule so. And see the Maggid Mishneh that his version was "Rav Yosef said: we compel etc." and according to this there is no difficulty at all, and delve into it].

And if he does not claim a claim of overvaluation, but rather requests that they give him one specific portion of these portions because this portion is adjacent to his field and a benefit will reach him by having the two fields together, it is the opinion of the Rambam, of blessed memory, that he may say so. For he wrote in the twelfth chapter of Neighbors: Brothers or partners who came to divide a field and each take his portion—if it was all completely equal, such that one part has no advantage of quality over its fellow, they divide by measurement alone. And if one said, "Give me my portion on this side so that it will be adjacent to another field of mine and it will all be one field," we listen to him and compel [the other] regarding this, for the obstruction in this matter is the conduct of Sodom. Thus far his words. For this one benefits and this one loses nothing. And there are those who disagree on this and hold that this is not the conduct of Sodom, and the second can obstruct him because he can say, "Behold, if the lot falls to me for this portion and I am between your two fields, you will not be able to force me to exchange with you; therefore, even now I do not wish to nullify this right, for perhaps the lot will fall to me for this portion." Furthermore, that which we compel regarding the conduct of Sodom is after the fact, such as one who dwells in his fellow's courtyard that is not for rent without the owner's knowledge, as will be explained in siman 363; but initially, to prevent this, he certainly has the power, as is written there. And some say that this law is a legal doubt, and initially they shall cast lots, and if the portion of this one falls adjacent to his field, it is well; and if not, the second has not yet acquired the portion that is near the field of this one, and we rule "whoever is stronger prevails" [Mordechai there]. However, if he is clever, he is able to achieve his desire easily according to what is explained in section 1 according to the first opinion—that he shall value it slightly more than its appraisal and say, "Either I will take it at this price or you," and the second will not agree, and automatically it will remain his at that sum [Tur]. But according to the latter opinion, he cannot say so. [And know that the Rosh in a responsum agreed with the commentary of Rashi in the explanation of "we overvalue," and regarding the law he is almost like the Rambam, and so he wrote in the name of Maharam of Rothenburg; and in his rulings, he rules like Rabbeinu Tam; see Beit Yosef].

And all this is when the portions are equal, but if a portion of it is better than the rest of the portions, or close to a river or to a road, and they appraised the superior against the inferior, and he said, "Give me my portion on this side because I have a field [there]," we do not listen to him; rather, he takes by lot. And even a claim of overvaluation he is unable to say, even according to the first opinion in section 1, for if not so, the wealthy person would always choose the superior portion. And specifically regarding equal portions we do not care about a claim of overvaluation, for let him overvalue and overvalue, but regarding inferior and superior [portions] there is no reason to say so [it appears to me]. And if he said, "Give me my portion on the inferior side so that I will be adjacent to my field, and you take the superior [portion]," certainly we listen to him, for even regarding equal portions he can say so according to the first opinion, and all the more so when he leaves for his fellow the superior portion; even the latter opinion admits to this, for you have no claim more upright than this. And so it is implied from the Tur, who did not bring any who disagree on this, and so is the primary halacha.

If there were two fields here and one says to divide each and every field and the other says to divide field against field, we listen to the one who speaks according to the law and according to equity, for why should we divide each field into halves? And this is specifically when they are both equal; but if one is better in some respect for one of them—for example, if he has a field next to one of them and a benefit will reach him from this, that in any event he will certainly have a half-field adjacent to his field—he can say that they should divide each field into two. And according to the first opinion in section 2, he can take the entire field that is next to his field; and similarly according to the first opinion in section 1, he can receive it by means of a claim of overvaluation when they are equal.

A square plot of land that a river surrounds on the east and north, and the road is on the south and west, they divide it diagonally so that this one will have a river and a road and that one will have a river and a road. And so too if it has certain specific advantages at its edges, they divide it in a manner that the good and the bad will reach all of them. And so too if there are two fields and one has a certain advantage in part of it, it is necessary to divide each and every field into parts. And the Rambam, of blessed memory, wrote: if he said, "Give me the half that is on this side because it is adjacent to my field," we listen to him. The general principle of the matter: in any matter that is good for this one and there is no loss to his fellow, we compel him to act. And it was explained in section 2; see there.

The בכור takes his two portions as one, for the Torah called the portion of the בכור "double portion" [pi shenayim] and not "two portions" [piyot shenayim]. And just as it is not possible to give a simple son his portion in two places, so too for the בכור, the Torah equated his two portions as one portion. Therefore, a בכור and a simple son who inherited a field divide it into three portions, and the middle one is necessarily the בכור's, and the simple son cannot say, "Let us cast lots on all three portions, and perhaps the middle portion will reach me." Rather, they cast lots only on the outer portions. And according to the first opinion in section 2, this is so even if the middle portion is better, for if it were not so, even without the verse we would give him his portions together, as in such a case we compel against the conduct of Sodom. And according to the latter opinion, this is specifically when the portions are equal; and even when equal, if the simple son has some claim, such as if two fields fell to them and one is double the size of the other, and the simple son is a neighbor to the large one, he can say, "I will divide within it so that my portion falls near my field," even though the בכור will not take all his portion together.

But one who performs yibbum with the wife of his brother, who takes the portion of his brother, does not take them in one location; rather, he takes his portion and the portion of his brother by lot. If they came up in one location, they came up, and if they came up in two locations, they came up, for he has only the right of his deceased brother. Just as two brothers do not have the ability to request their two portions in one location, so too the yavam. And even though the Torah called him a firstborn, as it is written: "And it shall be that the firstborn whom she bears shall succeed in the name of his deceased brother," this is regarding the matter of taking two portions, but his power is not so great as to take in one location like a firstborn, since he comes only by the power of his brother. And this is specifically when one portion is better than the other, for if not so, even without this he could take adjacent to his field according to the first opinion; and according to the latter opinion, he does not take as one even in equal portions.

From what has been explained, we have learned that regarding two people who bought a field in partnership, one a third and one two-thirds, when they divide it, the owner of the two-thirds takes his portion together, since they bought it as one, and it is no worse than a firstborn. However, if three people bought a field in partnership and then one bought his fellow's portion, when they come to divide it, he cannot compel his fellow to give him the two portions together, since the two portions come from two different powers and it is like a yabam. And all that we have written regarding a firstborn and a yabam according to the two opinions explained in section 2, so too in this law: that according to the first opinion it is when the portions are not equal, and according to the latter opinion it is when the portions are equal [the Gra].

And so too regarding two brothers who died, and each one had two sons, and they come to divide their inherited field, and two wish to be partners and the other two wish to divide, they divide the field into four parts and give those two their portion together since they come from a single power, and to the other two, each one alone. But if four brothers inherited, they do not give them their portion together. And this law is also equal regarding a firstborn and a yavam, even in equal portions according to the latter opinion in section 2. And there are those who say that even in such a case they give to them together, for one may compel against the conduct of Sodom when the portions are equal, according to the first opinion there [ibid.].

If all the brothers did not come to the place of the inheritance and this one who is before us requests to divide, and it is not according to the law that he should wait for them a long time, he divides before three who are trustworthy and expert in assessment, even if they are laymen who have neither learned nor have legal reasoning. For there is no legal judgment here, only a division that must be done with trustworthiness, without cunning or deceit, and with knowledge of the assessment. And if he divided before fewer than three, he has done nothing; for although expert beit din is not required, nevertheless a beit din of laymen is required, for a matter that requires assessment requires an act of beit din for this. Therefore, if there is no assessment in the division, such as money where all are of one currency and there is no difference between them in high or low value, three are not required, but rather two who shall be witnesses to the matter. And so too if the assets were deposited in the hand of another and some of the brothers came to request their portion, we give to them in the aforementioned manner: that a matter which requires assessment requires three, and that which does not require assessment, two are sufficient. And even though it was explained in siman 77, section 11, that regarding two who deposited we do not hand over to one, this is when they themselves deposited, and not when their father deposited, as is written there; and it was also explained there that sometimes even when they deposited, we hand over to one his portion, see there.

And if after this one divided not in the presence of the brothers, the brothers came and said that the portion he took is worth more and we are adding money to the appraisal, we listen to them to cancel the division. This is even according to the "there are those who disagree" in section 1 who hold that we do not accept a claim of overvaluation after the appraisal, for that is specifically when they were all present at the time of the appraisal and afterwards when they wished to cast lots he claims a claim of overvaluation, for why did he not raise the value at the time of the appraisal? But when they appraised not in their presence, certainly he can add to the appraisal since he says that he will give more [and the difficulty of the Shach at the beginning of siman 175 is settled, and this is the intent of the Sma in subsection 3].

Two brothers who divided and did not know that there was another brother, and afterwards a third brother came, the division is void. And even if they had three fields and each of them took a field and a half, and when the third brother came and they cast lots, the lot of the third fell upon the field that they had divided between them, we do not say that each one shall remain with his complete field without a lot; rather, whichever of them wishes may void the entire previous division, and they shall cast another lot for all of them. For any division or any lot that was not performed properly due to a lack of knowledge or some error—such as if they forgot to cast toward one and the like—the division and the lot are void as if they never were. And even if the third brother consented to take from this one and from that one without a lot, nevertheless, one of them may void it since it was in error. And so too regarding any lot, if they forgot to place one in the urn, the entire lot is void. And even if the one whom they forgot to place in the urn wishes to waive this, or if the one who won the lot wishes to compromise with him, this is nothing, and each of the owners of the lots may void it entirely and cast another lot. And see in siman 288, section 4.

And even if the division was proper, if a creditor of their father came and collected his debt from the portion of one of them—for example, if their father made this field an apoteiki for him, or for example, if his debt was equal to the value of this field such that they cannot push him away to take a bit from this one and a bit from that one, as has been written in siman 107, or for example, if this one took his portion of the inheritance here and the rest took properties that their father had in another place and he collected from this place, as has been written in siman 111—the division is void and requires another division. But if the creditor collects from each of the brothers a portion of his debt, the division is not void. And two who purchased from one person, and a creditor of the seller came and took the portion of one, he has nothing against the second. And specifically regarding heirs is the law so, because it is incumbent upon them to pay the debt of their father [Taz], and as has been written there, section 16.

In siman 289 it will be explained regarding one who left behind adult and minor orphans, and the adults wish to divide [the estate], the beit din appoints an apotropas for the minors to perform the division. And if liquid funds remain, they give the adults their portion, and the portion of the minors remains in the hand of the beit din until they grow up, and the beit din shall see to it that their money produces fruit. And sometimes there are cases where the adults receive their portion and not the minors, such as where money remained from their father that is not clearly known to be their father's, and whether the judge ruled that it belonged to their father or ruled that it did not belong to their father, his judgment is not reversed. As it is found in the Yerushalmi [at the end of chapter HaKones] regarding a certain wealthy man who had a sharecropper, and the sharecropper deposited a litra of gold with someone, and both of them died—the wealthy man and the sharecropper—and it was not known to whom the gold belonged. And the wealthy man left behind adult and minor orphans. Rabbi Yishmael son of Rabbi Yose ruled that the gold belonged to the wealthy man and commanded to give the adults their portion, and the portion of the minors should be set aside until they grow up. And Rabbi Hiyya ruled that the gold is in the presumptive possession of the sharecropper, but that which they already gave to the adults by authority of the beit din, he is unable to reverse the judgment since it is a matter that depends on reasoning [as in Sanhedrin 29b]. And it says there: What if the minors say to the adults, "Let us divide with you"? They can say to them, "We found a find." Rabbi Yitzchak said: There is nothing between the minors and the adults except like one to whom a gift was given. Thus far his words. And from this Yerushalmi they ruled that the adults do not need to give a portion to the minors [Maharshal]. And they explain that the Yerushalmi states two answers as to why they do not need to give to them: because this is for the adults like a find or like a gift. And there is one who disagrees on this and holds that the adults must give a portion to the minors, and he explains the Yerushalmi such that Rabbi Yitzchak disagrees and holds that this is like a gift given to their father, in which everyone has a portion [Shach siman 175, subsection 2]. And it appears like the first opinion, and the explanation of the Yerushalmi in my humble opinion is as follows: "What if they say, 'Let us divide with you'"—can the adults say "We found a find" in wonderment? And why should it reach them alone? And to this Rabbi Yitzchak answers that this is like a gift, for since it was given to them alone by authority of the beit din, the minors have no portion in it. And the latter opinion holds that if the minors seized their portion from the adults, we do not remove it from their hand.