Rambam - 1 Chapter a Day

Although generally, a person can make stipulations regarding his own property as he desires, an exception is made in this instance as the Rambam continues to explain.

As stated in the concluding chapters of Hilchot Zechiyah UMatanah, a person may bequeath his estate to others. These concepts are also mentioned in Halachah 5. If, however, he does not speak of giving a present, but instead seeks to make another person his heir, his statements are of no consequence. For he cannot change the laws of inheritance.
One might think that since stipulations may be made with regard to all financial transactions, it would also be possible to make a stipulation with regard to inheritance. Hence, it is necessary to emphasize that this is not so.

The Rambam’s wording in this halachah appears to indicate that this principle is Scriptural in origin. Trying to make changes in the order of inheritance represents a stipulation made against the Torah itself.

I.e., with his statements, to change the laws of inheritance.

I.e., with his statements, to introduce a new heir, who is not given the right of inheritance by the Torah.

Rabbi Akiva Eiger uses this law to derive insight into an abstract concept: Do brothers have the status of direct heirs of a deceased brother? Or is their father the heir, and they receive their portion because they are heirs of his estate?
The fact that the dying person has the potential to select one of the brothers indicates that they are considered direct heirs. For if their connection was only by virtue of their father, he could not do so. The Ketzot HaChoshen 281:2 does not accept this conception. He maintains that even though the brothers receive their inheritance by virtue of their father, the dying man has the right to apportion his estate as he desires.

Bava Batra 130a derives this concept from Deuteronomy 21:16: “On the day when he will give his inheritance to his sons.” Implied is that the father has the power to apportion his estate to his heirs as he desires.

The Rambam makes a distinction between the laws applying to a son and those applying to other heirs. This conception is not accepted by all authorities.

In his gloss on Hilchot Zechiyah UMatanah, the Maggid Mishneh explains that mentioning the son as the guardian in a written document is an honor that compels his brothers to respect him. Hence, we can assume that his intent was merely to make him a guardian. When, by contrast, the father merely makes these statements orally, this principle does not apply.

See Hilchot Zechiyah UMatanah 6:2. There the Rambam states:
When a person assigns all of his property to one of his sons.... He receives the same share as the other sons in his estate. It can be presumed that [the father’s] intent was merely that the other brothers should listen to this son. [This assumption is followed] even if the son in question is an infant, lying in cradle.
The Tur and the Ramah follow the interpretation of the Rashbam (Bava Batra 130a) and state that if a dying man uses the expression “inherit,” the son is not considered to be merely a guardian. Instead, the entire estate is given to him. The Rambam’s perception is based on the interpretation of the Sephardic teachers who preceded him, Rabbenu Chanan’el and Rabbenu Yitzchak Alfasi, and is perpetuated in the Shulchan Aruch (Choshen Mishpat 246:4).

On his deathbed, as reflected in the following halachah. Alternatively, when giving a present, as reflected by Halachah 5.

For, as stated in the previous law, he may apportion his estate as he desires.

The Ramah (Choshen Mishpat 281:4) writes that even if the local custom is not to give a firstborn a double share, that custom should not be followed because it runs contrary to Torah law.

Implied is that although the father can give any one of his sons whatever share in his estate he desires, he cannot do this by reducing the firstborn’s share. The Maggid Mishneh quotes Rav Yosef Migash as explaining that the first clause of this halachah, which enables a father to give an ordinary son as large a share as he desires applies only when there is no firstborn son (e.g., the oldest child was a daughter or was born by Cesarean section). Rabbenu Asher and the Tur (Choshen Mishpat 281) differ and maintain that when one son is given more than the others, the firstborn’s share remains unchanged and the shares of the other sons are reduced proportionately. While the Rambam’s words do not give us a clear-cut picture of which perspective he follows, from the subsequent halachot it would appear that he follows that of Rav Yosef MiGash, his teacher. The Shulchan Aruch (Choshen Mishpat 281:6) mentions both opinions without indicating which one should be given precedence.

Bava Batra 131a leaves the question unresolved of whether statements made by a healthy person are effective or not. Hence, the Rambam rules that no deviation should be made from the rules of inheritance. This law is also stated in Hilchot Zechiyah UMatanah 12:2.

I.e., all the laws in this chapter where it was stated that a person's statements are of no consequence.

For in this instance, he would be making a stipulation that contradicts the Torah’s principles.

For he is entitled to give presents to whomever he desires.

Using wording that indicates that he is giving presents.

Moreover, when a person is on his deathbed, a kinyan (act of contract) is not necessary to affirm his statements, as stated in Hilchot Zechiyah UMatanah 8:2. When, by contrast, a person gives a present when healthy, he must affirm it with an act of contract (Maggid Mishneh).

As indicated in the notes above, the Torah defined the order of inheritance. It did not place any restrictions on how a person could apportion his estate by giving presents.

For by saying so, he minimizes the portion of the firstborn. The Maggid Mishneh and other commentaries maintain that this clause indicates that the Rambam follows the perspective of Rav Yosef MiGash mentioned in the notes on Halachah 3.

By mentioning the concept of a present with regard to one recipient, the person making the requests causes those gifts that he made using wording that implies an inheritance to be considered as acceptable.

The term used by the Rambam toch k'dei dibbur has a specific meaning, the time it takes for a person to say: shalom alecha rabbi umori (greetings, my teacher and master).

In such an instance, the three points are all considered to be a single statement.

For each of the points he mentioned is considered individually.
The Tur and the Ramah (Choshen Mishpat 281:7) emphasize that the distinction made by a pause applies only when a gift is being given to three individuals. If it is being given to one person, the three statements are considered connected even if the person making the bequest pauses in the middle.

In this and the subsequent clauses, the standard printed text of the Mishneh Torah mentions only two individuals (so-and-so and so-and-so). This has attracted the attention of the commentaries, because the previous halachah spoke of three individuals being involved. Our translation is based on authoritative manuscripts and early printings of the Mishneh Torah.

As indicated by Halachah 1.

According to Jewish law, marriage is a two-stage process. In the Talmudic era, a couple would wait approximately one year between the two stages. In the first stage, kiddushin or erusin, a woman is designated as a husband's wife. From that time onward, she is forbidden to other men. Nevertheless, the couple do not live together as husband and wife, and they do not have any financial responsibilities to each other. The second stage, nisu'in, begins when the couple enter the chuppah. After this time, they live together as husband and wife and their financial holdings are interrelated.
As stated in this halachah, once married (i.e., after nisu'in), a husband cannot stipulate that he is waiving his rights to his wife's estate, because of our Sages' decree. And before he consecrates a woman (even if they have been engaged), his statements are of no consequence, because the two share no connection to each other. In the interim between erusin and nisu'in, a connection between the two has been established, but financial responsibility to each other still has not been established. Hence, the husband's stipulation can be effective.

See Hilchot Ishut 23:2,5-7.

Kiddushin 18a derives this concept from Deuteronomy 2:9: “I gave Er as an inheritance to the descendants of Lot.” Others differ and derive it from the exegesis of Leviticus 25:50.

For the order of inheritance mentioned in Chapter 1 applies only with regard to the Jewish people (Maggid Mishneh).
As stated in Hilchot Melachim 10:11-12, the Jews are responsible for establishing a court system for gentiles. In certain contexts, we follow the Torah’s standards. In others, the gentiles’ laws are allowed to stand.

For conversion establishes a person as a new entity, with no connection to his past.

See Hilchot Avodat Kochavim 9:7, which explain the laws that apply when a convert and his gentile brother inherit their father’s estate.

I.e., our Sages feared that he would abandon Judaism if denied his inheritance.

I.e., if, before converting, a gentile stipulated that he waives his rights to his father’s estate, his stipulation is binding and he is not entitled to receive anything.

I.e., if both a father and a son convert, although the father dies without conceiving other children after his conversion, the son does not have the right to inherit his father’s estate. This law applies even if the son was conceived before a couple’s conversion and born afterwards (Hilchot Zechiyah UMatanah 9:7). Similar laws apply if two brothers convert.

For by doing so, the person uproots the Torah’s laws of inheritance [Rashbam (Bava Batra 133b)].

For it is possible that the children who descend from him will conduct themselves properly (ibid.).

There is a question if the phrase “toward him” should be included or not. It is found in some early printings and authoritative manuscripts, but is lacking in others. If the phrase is included, the focus would be on the interpersonal relations between the individuals involved. If it is omitted, the focus would be on the heir’s level of adherence to the Torah and its mitzvot. From the concluding clause in the halachah, this would appear to be the intent. The Tur omits the phrase, while the Shulchan Aruch (Choshen Mishpat 282:1) includes it.

Kiddushin 18a derives this concept from Deuteronomy 2:5: “I gave Mount Se’ir to Esau as an inheritance.”

As stated in Hilchot Sanhedrin 24:6, the Jewish court has the right to expropriate property as it sees fit.

Or a father or other heirs (Sefer Me ‘irat Einayim 283:9).

I.e., among the Jewish communities in Spain, Morocco and Western Europe.
The Tur and the Ramah (Choshen Mishpat 283:2) quote Rabbenu Asher, who states that the inheritance should be entrusted to the court for safekeeping. If the apostate corrects his conduct, it should be given to him.

Giving one more and another less.

Whose envy was aroused because Jacob gave Joseph a striped garment (Genesis, Chapter 37).