Whether There Is a Prohibition of Diverting an Inheritance by Giving Charity from Inheritance Funds

There are circumstances in which it is forbidden and improper to divert an inheritance away from one’s children and heirs, such as:

One may not consecrate all of one’s money and assets and leave nothing at all for the heirs, even as an inter vivos gift. (Even the author of Yabia Omer, who maintains that there is no objection to an inter vivos gift, means where one leaves the heirs a substantial gift, or divides everything among sons and daughters; this is what the Rosh addressed, from whom he cited proof to permit it.)

It is forbidden to divert part of the inheritance when a person is approaching death.

Circumstances in which this is permitted, with no objection at all:

It is permitted to consecrate part of one’s money while leaving the heirs a substantial gift, and certainly this is so during one’s lifetime as an inter vivos gift.

Our master Rabbi Ovadia Yosef, of blessed memory, rules in his responsa Yabia Omer that it is permitted even to give an inter vivos gift to a stranger, not for charity, provided that one leaves every heir a substantial gift. (His words may imply that he came to permit giving away even all one’s money as an inter vivos gift, although in practice his proofs appear to indicate as stated above.) Certainly, if one consecrates or donates to charity while leaving every heir a substantial gift, this is permitted ab initio, as stated above. This was likewise the ruling of our master Rabbi Ovadia Yosef, of blessed and saintly memory, in his responsa Yabia Omer, and this is also how he himself acted in his will toward his heirs, in actual practice.

One who has no sons or daughters and consecrates his home or the like, so that he and his wife will have a name, continuity, and merit in the World to Come, and his intention is not to remove the inheritance from the heirs but solely for his own benefit, has authorities upon whom to rely. This is how holy Jews have acted for generations.

Therefore, in your case, where you wish to donate one million dollars as an inter vivos gift, while also leaving substantial assets and money for all the heirs, there is no objection whatsoever. On the contrary, this is highly commendable. Know that Rabbi Meir Baal HaNes, of blessed memory, also dedicated one-third of his money to charity for supporting those who toil in Torah study (see the sources). Therefore, if your intention is carried out, your merit will be immeasurable. Through your donation, you become a full partner in the mitzvah of Torah study, and you are destined to sit in the heavenly academy in the shade of the sages, benefiting and delighting in the radiance of the Divine Presence.
Sources:

A remarkable account is recorded in Kohelet Rabbah (chapter 2, section 17) on the verse, “And I hated all my labor which I had labored under the sun.” Rabbi Meir was an excellent and distinguished Torah scribe, and each week he earned three selaim. One sela he spent on food and drink, one sela on clothing, and one sela he used to support Torah scholars. His students said to him: What will become of your children, since you leave them nothing? He replied: If they are righteous, King David, peace be upon him, already said, “I have not seen the righteous forsaken.” And if not, should I leave what is mine to the enemies of G-d, Heaven forbid?

This requires examination: how did Rabbi Meir divert his inheritance from his sons? It is stated explicitly in the Talmud in several places, and by the halachic authorities, that even during one’s lifetime it is forbidden to divert one’s inheritance to others, even to consecrate it for Heaven, and even if one’s sons do not conduct themselves properly.

For the Gemara in Bava Batra (133b) teaches: One who writes over his assets to others and leaves out his sons—what he has done is legally effective, but the Sages are displeased with him. [It causes Divine wrath, for he uproots a Torah inheritance, Rashbam.] Rabban Shimon ben Gamliel says: If his sons did not conduct themselves properly, he is remembered favorably. The Gemara explains that one should not even consecrate his assets, so as not to divert the inheritance from his sons, even if they do not conduct themselves properly, and certainly if they do conduct themselves properly. The first Tanna disagrees with Rabban Shimon ben Gamliel, for this is what Shmuel instructed Rav Yehudah: Even if his son does not conduct himself properly, it is forbidden to divert his inheritance to another son who conducts himself properly, and certainly if his sons conduct themselves properly. All the early authorities wrote that the halachah follows the first Tanna. This is likewise ruled by Rambam (Laws of Inheritances 6:11) and in the Shulchan Aruch (Choshen Mishpat 282). The Gemara in Ketubot (52b) also states explicitly that even one who gives away his money during his lifetime violates the prohibition of diverting an inheritance.

The early authorities explain that diverting an inheritance is not merely a matter of piety; rather, it is prohibited. This is stated in the responsum of the Rosh cited by the Tur (Choshen Mishpat 282), and likewise in the Abridged Rulings of the Rosh (chapter 8 of Bava Batra). In his rulings there, the Rosh cites the Jerusalem Talmud (Bava Batra, chapter 8, halachah 6): Rabbi Abba bar Mamal said, concerning one who writes his assets over to others and leaves out his sons, the verse states of him, “And their iniquities shall be upon their bones.” The Tosafists likewise wrote (at the end of Parashat Chayei Sarah) that diverting an inheritance is a prohibition, not merely a matter of piety. The Shach (Choshen Mishpat 282) refers to the responsa of Maharanach (part 1, no. 118), which elaborates that this is forbidden and that one may call such a person a transgressor, because he violates the words of the Sages, although a rabbinical court does not compel compliance. See also Pitchei Teshuvah (Choshen Mishpat 282), citing the responsa of Chatam Sofer (Choshen Mishpat 151), that this is a grave sin because “their iniquities shall be upon their bones,” as above. Rabbi Ovadia Yosef likewise discusses this extensively in Yabia Omer (vol. 8, Choshen Mishpat 9, section 1).

Section A

Whether It Is Permitted to Divert an Inheritance When One Leaves Four Zuz for the Inheritance

Well known are the words of Ketzot HaChoshen (Choshen Mishpat 282, subsection 2), in the name of Tashbetz (part 3, end of no. 147) and Sefer HaIttur (letter Mem), that if one leaves four zuz for his sons to inherit according to Torah law, there is no objection to distributing the remainder of his property as he wishes. This was written in the standard legal documents of the Geonim: when they wished to bequeath to others, they would reserve four zuz for the inheritance, as above. According to this, there is no difficulty regarding Rabbi Meir, who seemingly left nothing from his weekly earnings for his sons’ inheritance, because he had already initially left four zuz for their inheritance. Thus, when his students said, “What will become of your children, since you leave them nothing?” they meant apart from the four zuz mentioned above. Alternatively, since what one leaves for inheritance—four zuz shared among all the heirs—is considered nothing relative to all his wealth, people commonly say of one who left his sons four zuz or more and distributed the remainder to others or to charity that he left his sons nothing.

However, Pitchei Teshuvah there (subsection 1) cites Chatam Sofer (Choshen Mishpat 151), who challenged this premise. The Gemara says that the Sages are displeased with one who diverts an inheritance, whereas the Jerusalem Talmud implies that it is prohibited, applying to it the verse, “And their iniquities shall be upon their bones.” Rather, there is a distinction: when one gives all his assets to others and does not leave even four zuz for inheritance, the Jerusalem Talmud states that this is an outright prohibition. In contrast, the Gemara’s statement that the Sages are displeased applies even when one gives only part of his assets and leaves four zuz for his sons’ inheritance. Accordingly, he explains that when HaIttur says that there is no prohibition if one leaves four zuz, he means only that there is no outright prohibition and no grave sin of “their iniquities shall be upon their bones”; nevertheless, the Sages are still displeased. According to this, the question remains: how did Rabbi Meir violate the words of the Sages?

However, it appears appropriate to note concerning the words of Chatam Sofer that the author of HaIttur explicitly writes that if one reserves four zuz for his sons, “the authority is in his hands,” implying that he may do so ab initio and that even the Sages are pleased with him. Indeed, I have seen that the leading authority of our generation, the mighty shepherd, our master Rabbi Ovadia Yosef, of blessed and saintly memory, in Yabia Omer (vol. 8, Choshen Mishpat 9, subsection 8), rejected the words of Chatam Sofer, because the Jerusalem Talmud refers back to the Mishnah: “One who writes his assets to others and leaves out his sons—the Sages are displeased with him.” On this Rabbi Abba bar Mamal says that the verse states of him, “And their iniquities shall be upon their bones.” Everything is said regarding one matter and it is one sin; there is no distinction here between a major sin and a minor sin. This is likewise explained in the responsa of Maharanach (no. 118), that the Jerusalem Talmud refers back to the Mishnah’s statement that “the Sages are displeased with him.” HaIttur and Tashbetz both say that whenever one leaves something for his sons, there is no issue of the Sages being displeased. He also cites Igrot Moshe (Choshen Mishpat, part 2, no. 50), which states that one who acts in accordance with Tashbetz in the name of a Gaon, and as Ketzot HaChoshen rules, is pleasing to the Sages. He further cites Rabbi Chida in Birkei Yosef (Yoreh De’ah 249, subsection 15), who writes that this appears somewhat implied by the responsa of Rivash (no. 168): if one leaves part of his assets to the heirs, there is no concern of the Sages being displeased. This was likewise concluded in Zera Emet (part 2, Yoreh De’ah 110). The responsa Beit David (Choshen Mishpat 137) testifies that this is the widespread custom. I have heard that our master Rabbi Ovadia Yosef, of blessed memory, also did this in his will: he left four zuz for the Torah inheritance, in addition to distributing a substantial gift to each of his sons and daughters.

Chatam Sofer himself wrote at the end of his responsum that if one leaves his heirs a substantial portion, this gift may be taken into account. Accordingly, it may be said that Rabbi Meir left his heirs a substantial portion.

A Tanna who supports this view is Meiri (Bava Batra 133b), who writes: It is not only where one writes to others and leaves out his sons that the Sages are displeased; even if one consecrates all his assets and leaves his sons poor, the Sages are displeased. The sons are considered somewhat in possession of at least part of their father’s assets, and one who deprives them entirely of everything is displeasing to the Sages. Rather, every person should give each matter its due: support the poor appropriately, consecrate, give, and bequeath; this is his honor and the honor of Heaven. Thus, he repeated several times that the prohibition applies specifically when one completely removes his sons’ inheritance, for he wrote, “and leaves his sons poor,” and again, “deprives them entirely of everything.”

In the responsa Veyosef Avraham (no. 13), this is inferred from the language of Rambam and the Shulchan Aruch: “Anyone who gives all his assets,” rather than “from his assets.” This proves that they follow HaIttur: only one who gives away all his assets is prohibited, but if he leaves part of his assets for his sons’ inheritance, there is not even a trace of prohibition. [Yabia Omer cited this point briefly.]

Nevertheless, this still requires examination in light of the Gemara in Ketubot (52b), concerning Yehudah bar Merimar, who was afraid to accompany Rav Pappa to the house of Abba Sura regarding Rav Pappa’s daughter’s dowry, because of the Sages’ statement, “Do not be involved in diverting an inheritance,” even if one is not a witness to the matter. This implies that even if one gives only part of his assets for his daughter’s dowry or the like, this falls under diverting an inheritance. Chatam Sofer inferred this as well and therefore disagreed with HaIttur. Many later authorities similarly raised this point, as did the annotations of Rabbi Yosef Shalom Elyashiv, of blessed memory, there.

While considering this matter, I said, with Heaven’s help, that there is not such a strong question from the Gemara in Ketubot. It is possible that Yehudah bar Merimar initially feared that, out of respect for him, the bride’s father would give all his assets for his daughter’s dowry and would not leave even four zuz for his sons at that time; this would consequently constitute the prohibition of diverting an inheritance. Indeed, in the end, out of respect for him, he wrote over all his money for his daughter’s dowry. I subsequently found precisely this explanation in the responsa Veyosef Avraham cited above (no. 13). He added that this is not remote from reality, for we see many fathers of brides who, when they see that the groom has distinguished lineage and is among the prominent people, give him a large sum of money and borrow beyond their ability in order to give it to him. At times, when giving the dowry to the groom, even selling all their assets would not suffice to pay their debt; yet out of their great joy, they trust in G-d and repay the debt. Rashash (Bava Batra 133b) likewise suggested that the expression “diverting” implies transferring everything, as in the biblical phrase, “You shall transfer his inheritance to his daughter,” and the rabbinic enactments of the sons’ ketubah and the daughters’ one-tenth share of assets prove this. However, he found the Gemara in Ketubot difficult. In light of the above, it is resolved. I later saw that Chatam Sofer himself, in another responsum (Even HaEzer, part 2, no. 168), wrote a similar resolution: the entire prohibition of diverting inheritance means giving a daughter more than a son, and the case of Yehudah bar Merimar was such a case, as he feared that the father would give his daughter more than his son.

Section B

Diverting One’s Inheritance for the Support of Torah Scholars and Those Who Toil in Torah

At first glance, the prohibition against diverting an inheritance from one’s heirs applies even when one consecrates his money to Heaven, as is evident from Bava Batra (133b). The Gemara sought to cite proof from Yosef ben Yo’ezer, whose son did not conduct himself properly. He had a vessel full of dinars and arose and consecrated it to the Temple. This would indicate that the first Tanna agrees with Rabban Shimon ben Gamliel that where a son does not conduct himself properly, one is remembered favorably and may divert the inheritance. The Gemara rejects this: how do we know that Yosef ben Yo’ezer acted with the approval of the Sages? Thus, according to the Gemara’s conclusion that the first Tanna disagrees with Rabban Shimon ben Gamliel—and this is the halachah—he did not act with the approval of the Sages when he diverted his inheritance, even though he consecrated his money to the Temple.

Perhaps, however, one may distinguish between consecrating assets to the Temple or the like, for which it is not appropriate to divert the inheritance of one’s heirs—since there is no poverty where there is wealth and the palace of the King of kings lacks neither silver nor gold—and giving one’s assets to support Torah scholars. In light of this, it is more understandable how Rabbi Meir supported Torah scholars with one-third of his money. In this regard, the Jerusalem Talmud in Shekalim (chapter 5, halachah 4) contains striking words. Rabbi Chama bar Chanina and Rabbi Hoshaya were inspecting synagogues in Lod. Rabbi Chama bar Chanina said to Rabbi Hoshaya: How much money did my ancestors invest here in building synagogues! Rabbi Hoshaya replied: How much money did your ancestors invest here? Were there no Torah scholars engaged in Torah whom they could have supported? The Jerusalem Talmud further relates that Rabbi Avun made the doors for the great study hall and boasted of this before Rabbi Mana, saying: See what I have done. Rabbi Mana said to him: Concerning you I apply the verse, “Israel forgot his Maker and built palaces” (Hosea 8). Were there no people engaged in Torah whom you could have supported?

Indeed, Netziv, in Ha’amek She’elah (Ki Tisa 64, section 13), explains accordingly that it is permitted to divert an inheritance in order to support Torah scholars, because this falls under the positive commandment of honoring Torah. As we say in a similar context in Shevuot (30a), one positive commandment versus another positive commandment, and honoring Torah takes precedence. The Shulchan Aruch likewise states (Yoreh De’ah 249:16) that the mitzvah of supporting youths studying Torah takes precedence over ordinary charity and over building a synagogue.

Yefeh Toar likewise writes (Lech Lecha, chapter 42, no. 1) concerning Hyrcanus, who said to his son Rabbi Eliezer: My son, I came here only to disinherit you from my assets. Now that I have seen you thus, all my assets are given to you as a gift. Rabbi Eliezer replied: They are hereby consecrated by me, and I retain only as much as my brothers. Although it was said that one should not be involved in diverting an inheritance, even from an unworthy son to a worthy son, this case differs because Rabbi Eliezer was a Torah scholar. [It is surprising that he discusses Hyrcanus as proof, for how do we know he acted with the approval of the Sages? Initially, when he heard that Rabbi Eliezer had gone to study Torah, he disinherited him from all his assets. Perhaps he holds that he acted on the advice of Rabban Gamliel and the Sages who were in the academy at that time; this requires examination.] The work She’erit Yaakov Algazi similarly supports this view: the prohibition against diverting an inheritance among brothers applies only where the difference is merely the absence of wrongdoing—one does not conduct himself properly while the other does—but if one is a Torah scholar, there is no prohibition. Yabia Omer (vol. 9, Choshen Mishpat 9) cites Mareh HaGadol (part 2), in the pamphlet Seridei Yehudah by Rabbi Yehudah Ashkenazi, in his homily for marriage (page 4c), who supports this reasoning from Ketubot (52b) concerning the marriage of a daughter. We are not concerned there with diverting an inheritance, because this is also a Torah matter, so that men will seek to marry her. Likewise, Torah scholars should be strengthened and allowed to benefit from one’s assets so that they may engage in Torah, for it is permitted to sell a Torah scroll in order to study Torah, as stated in Megillah (27a) and in the Tur and Shulchan Aruch (Yoreh De’ah 270). The Tur and Shulchan Aruch also rule (Orach Chaim 153:6) that a Torah scroll and other sacred items may be sold to support students. It is said in Berachot (34b): All the prophets prophesied only concerning one who enables Torah scholars to benefit from his assets.

The commentators, however, ask: Rambam (Laws of Inheritances 6:11) writes, “It is a matter of piety that a pious person should not witness a will in which the inheritance is diverted from an heir, even from a son who does not conduct himself properly to his brother who is wise and conducts himself properly.” The Tur and Shulchan Aruch likewise rule this way. Because of this difficulty, several later authorities rejected the words of Yefeh Toar. Yabia Omer resolves this by distinguishing between giving a gift to a wealthy Torah scholar, regarding which Rambam writes that one should not divert the inheritance even to a Torah scholar, and diverting an inheritance in order to support a Torah scholar who is not wealthy and needs sustenance. Regarding the latter, Yefeh Toar writes that there is no objection to diverting the inheritance. He adduces proof from the above Midrash in Kohelet concerning Rabbi Meir, who distributed one-third of his money to support Torah scholars and was not prevented by the concern of diverting an inheritance.

It further appears to me, with Heaven’s help, that spending money to support Torah scholars differs, because it is part of the mitzvah of Torah study. Consequently, it is not like transferring one’s money to others; rather, it is like spending money to fulfill mitzvot relevant to him. It is comparable to the partnership of Yissachar and Zevulun, in which one gives half of all he earns, as the Rema writes in the Shulchan Aruch (Yoreh De’ah 246), as explained by the Shach there. Birkat Shmuel (Kiddushin 27) explains the Tur as meaning that Zevulun has a mitzvah of Torah study by supporting Yissachar so that he may engage in Torah. He adds a novel point: one who is able to support others so that they engage in Torah but does not do so bears the sin of neglecting Torah study. His words may be supported by Rabbenu Yonah’s Iggeret HaTeshuvah (section 12): “One who wishes to be saved from the bitter punishment of neglecting Torah study should occupy himself with the needs of students who study for the sake of Heaven.” Igrot Moshe (Yoreh De’ah, part 4, no. 37) likewise elaborates that Zevulun truly has the mitzvah of Torah study and a share in Yissachar’s knowledge of Torah. Similarly, the work Torat Moshe (Parashat Ekev) by Chatam Sofer states that one who supports Torah scholars thereby shares in their wisdom, as if he himself had toiled in Torah and found it. Likut Shoshanim (vol. 6, p. 167) cites the Chafetz Chaim in his work Torah Or (chapter 11), that when Yissachar studies the Order of Kodashim, it is considered as though Zevulun offered a sacrifice. These are precisely the same ideas. See also what I have further elaborated on this in my work Yena DeYosef: The Segulah for Memory (chapter 4, notes).

See further Pitchei Teshuvah (Choshen Mishpat 282, subsection 1), which cites Chatam Sofer (Choshen Mishpat 151): where two conditions are present—he both consecrates the assets and gives away only part of them—the matter is permitted and there is no concern of diverting an inheritance. No source proves otherwise. In the Gemara in Bava Batra cited above (133b), Yosef ben Yo’ezer consecrated all his assets; in Ketubot (52b), the discussion concerns one who wished to give for his daughter’s dowry, which is not considered consecration. In all such cases there is reason for concern. But when one consecrates only part of his assets, there is no concern, as we find in Ketubot (67b) concerning Mar Ukva. At the time of his death, he asked that his ledger of charitable donations made during his lifetime be brought before him, and it recorded seven thousand dinars. He said: I have prepared light provisions for the long journey upon which I am departing. He then arose and distributed half his assets to charity. This was despite the fact that Mar Ukva had children, as stated in Bava Metzia (70a) and Rashi there. Accordingly, there is no difficulty in how Rabbi Meir set aside one-third of his income to support Torah scholars and those who toil in Torah.

Section C

Whether the Prohibition of Diverting an Inheritance Applies Only Near Death

Pitchei Teshuvah (Choshen Mishpat 282, subsection 1) cites Chatam Sofer (Choshen Mishpat 151), who suggests that perhaps the entire prohibition of diverting an inheritance applies only to a deathbed gift, since such a gift takes effect only at death. At that point the assets fall before the heirs, and he comes to remove them from the heirs. But an inter vivos gift in which the principal takes effect today and the usufruct after death presents no concern, because during his lifetime each person may do with his property as he wishes. He writes that this is a sound reasoning to explain the custom of people without children who consecrate their assets. According to this, Rabbi Meir’s giving one-third of his money to support Torah scholars is more readily understood, as are several other difficulties in different places.

Chatam Sofer himself, however, recognized and emphasized that this premise is contradicted by the Gemara in Ketubot (52b), concerning Yehudah bar Merimar, who was afraid to accompany Rav Pappa to the house of Abba Sura regarding Rav Pappa’s daughter’s dowry because of the prohibition of diverting an inheritance. This proves explicitly that the prohibition applies even to a lifetime gift. Rabbi Chida, in Petach Einayim (Ketubot 53a), likewise proves from that Gemara that there is a prohibition of diverting an inheritance even during one’s lifetime and even through an inter vivos gift. He therefore challenges the Knesset HaGedolah (Choshen Mishpat 282, glosses to Tur, subsection 10), Penei Moshe, and Yefeh Toar (chapter 59, no. 15), who used this distinction to explain the Sages’ statement in Bereishit Rabbah on the verse, “And all the wealth of his master was in his hand”—this refers to a will. But surely Abraham fulfilled even the enactment of eruv tavshilin. They explained that there is no prohibition in a lifetime gift, but their words are contradicted by an explicit Talmudic passage, as above. Be’nei Chayei (Choshen Mishpat 282) likewise raises this point.

I subsequently saw in Yabia Omer (vol. 8, Choshen Mishpat 9, subsection 5) that he upholds the words of the above authorities who distinguish between an inter vivos gift and a deathbed gift. This is seemingly explicit in the responsa of the Rosh (general rule 85, no. 3), based on the Jerusalem Talmud (Ketubot 69a) and similarly the Babylonian Talmud (Bava Batra 143b): If one was overseas and said, “Let these be given to my children,” his daughters are included; but if he said so at the time of his death, his daughters are not included. The Rosh explains that in a lifetime gift everyone is included, whereas at the time of death, when he comes to bequeath, we assess his intent as not wishing to divert the inheritance from sons to daughters, because it is a transgression. As Shmuel told Rav Yehudah: Do not be involved in diverting an inheritance, even from an unworthy son to a worthy son, and certainly not from a son to a daughter. His words explicitly prove that there is no prohibition of diverting an inheritance in a lifetime gift.

He cites Rabbi Yaakov Algazi in Shema Yaakov (Bo, p. 82c), who proves this and resolves the case of Yehudah bar Merimar in Ketubot (53a), who feared assisting in giving an excessive dowry to a daughter because of the prohibition of diverting an inheritance. Rav Pappa indeed disagreed with him and therefore had no concern. This was accepted in the responsa Nichpeh BaKesef (part 2, p. 115d) and in his work Ne’ot Yaakov (homily for Shabbat HaChodesh, p. 20), which calls it a correct answer and says that the word of G-d is true in his mouth, in accordance with the Rosh’s responsum. This is unlike the responsa of Maharshal? [Maharsadam] (Choshen Mishpat 336), which states that the prohibition applies even to an inter vivos gift, and likewise Maharanach (no. 118) and Maharibal (part 3, no. 33). Their words conflict with the Rosh’s responsum, and we find no early halachic authority who disagrees with the Rosh on this. This inference from the Rosh was also made in Mishkenot HaRo’im (system Lamed, letter 1).

Yabia Omer further resolves it in the name of Rabbi Yehudah Ashkenazi in his work Machaneh Yehudah (end of no. 282): Yehudah bar Merimar feared that the bride’s father would be unable to give immediately as Rav Pappa wished, and out of embarrassment would give real property as a gift effective from today and after death. In such a case there is a prohibition of diverting an inheritance, because that gift becomes effective at death retroactively from the time of giving.

However, at the end of that discussion, Yabia Omer finds this premise difficult and leaves it unresolved. The early authorities wrote that it is forbidden to add for daughters beyond one-tenth of the assets because of diverting an inheritance, as Ran writes (Bava Metzia 68a), based on Ketubot (52b), “up to one-tenth of the assets.” This is also the view of the Rosh himself (there, no. 12), as cited by the Tur in his name (Even HaEzer 113), and is likewise stated in the responsa of Rashbatz (part 2, end of no. 233). Yabia Omer nevertheless strains to say that in practice one may rely on this reasoning—indeed, he rules in his conclusion that there is no concern of diverting an inheritance in an inter vivos gift. It is possible that even according to his view, he did not permit giving away all one’s property through an inter vivos gift on the basis of this reasoning, for the Rosh does not address such a case—because many authorities disagree with Ran and hold that it is permitted to add beyond one-tenth of the assets. Maggid Mishneh writes (Laws of Marriage 20:3) that according to Rambam, the father’s capacity is assessed even to add beyond one-tenth of his assets. Ritva (Ketubot 68a) writes this as well, as does Rashi according to this understanding; likewise Raavad, Ramban, and Rivash; see Shitah Mekubetzet there. Aruch HaShulchan (Even HaEzer 113) also understands Maran accordingly.

Yet this still requires clarification, for seemingly there remains a difficulty from Bava Batra (133b), concerning Yosef ben Yo’ezer, who consecrated a vessel full of dinars to the Temple, and of whom it was said that he did not act with the approval of the Sages because it is forbidden to divert one’s inheritance, even though this was during his lifetime as an inter vivos gift. See what I wrote below to resolve this.

Section D

One Who Uses His Money for His Own Benefit and Merit

Pitchei Teshuvah (Choshen Mishpat 282) cites the responsum of Chatam Sofer (no. 151), who, after discussing at length how to justify the custom and what people rely upon when those without children consecrate their homes and assets to G-d, offers a remarkable reasoning. Since they do so for their own benefit—for the elevation of their own souls and those of their wives, so that they may have satisfaction in Gan Eden and leave themselves a name and continuity—and additionally, since the Gemara states (Bava Batra 116a), “And you shall transfer his inheritance”: one who has no son, the Holy One, blessed be He, is filled with wrath against him, and wrath means Gehinnom, therefore one who consecrates his assets wishes to save himself from Gehinnom through this charity. He takes precedence over his heirs. He concludes that this appears to justify the custom, and wherever the halachah is uncertain, follow the custom.

Accordingly, it is understandable how Rabbi Meir dedicated one-third of his money to charity in order to attain the merit of Torah study. This is no less than any matter for which a person acquires something and spends money for his own benefit, such as food, drink, and clothing. Likewise, he wishes to acquire the possessions of eternal life in the World to Come and take a share in the reward of those who toil in Torah. This is not necessarily only by virtue of the Yissachar-Zevulun arrangement or the mitzvah of Torah study, but in order to increase his merits. This has practical implications for spending money on other mitzvot as well.

However, it requires clarification why Chatam Sofer’s reasoning is not contradicted by the Gemara in Bava Batra (133b) concerning Yosef ben Yo’ezer, who consecrated a vessel full of dinars to the Temple, and regarding whom it was said that he did not act with the approval of the Sages because it is forbidden to divert an inheritance.

The first Tanna agrees with Rabban Shimon ben Gamliel that if his son did not conduct himself properly, he is remembered favorably and it is permitted to divert the inheritance. The Gemara rejects this: how do we know that Yosef ben Yo’ezer acted with the approval of the Sages? Thus, according to the Gemara’s conclusion that the first Tanna disagrees with Rabban Shimon ben Gamliel, and this is the halachah, he did not act with the approval of the Sages when he diverted the inheritance, even when consecrating his money to the Temple. It appears that there is no difficulty. There it is explicitly explained that Yosef ben Yo’ezer consecrated his money in order to divert the inheritance from his son, who did not conduct himself properly. The Gemara therefore says: How do we know that he acted with the approval of the Sages? Even when his son does not conduct himself properly, one may not divert his inheritance. Thus, the entire prohibition applies when that is one’s intention. But if one’s intention is to show gratitude and benefit someone who has benefited him, or to attain the merit of a mitzvah or spiritual elevation and the like, there is no concern whatsoever. Nor is there a difficulty from Ketubot (52b), concerning Yehudah bar Merimar, who did not wish to assist in diverting an inheritance for the daughter’s dowry. There, it was not a matter of attaining or benefiting himself in any way, for they would have married in any event; Rav Pappa merely wished to influence them to add for their daughter, and that itself was a diversion of inheritance from son to daughter. See the novellae of Rabbi Yosef Shalom Elyashiv, of blessed memory (Ketubot 53a), who writes similarly that whenever one does so for his own benefit, this is not considered diverting an inheritance.

Section E

Rabbi Meir Would Vow Charity Before Acquiring the Money

Upon further reflection, it occurred to me, with Heaven’s help, that there is no difficulty at all concerning Rabbi Meir Baal HaNes, of blessed memory, and how he gave one-third of his money to charity. Certainly, before he earned the three selaim from writing sacred scrolls, he would first make a vow of charity for Torah scholars’ support. Consequently, once he earned them, although this was one-third of his money, he was obligated to give it to charity in fulfillment of his vow. At the time he made the vow, there was no prohibition of diverting an inheritance, since he had not yet acquired the money and it had not entered his possession. Perhaps this is the source of the custom of holy Jews to set aside charity for the soul of Rabbi Meir Baal HaNes, of blessed memory. This custom is cited in the responsa of Chatam Sofer (vol. 6, Likkutim 27), who writes that this was his own practice. [In my youth, I heard from my colleague, the eminent Rabbi Shimon, may he be blessed, an awe-inspiring incident involving the true gaon, Rabbi Yehudah Moalem, of blessed memory, head of the Porat Yosef Yeshivah. Once, a kollel scholar came before him and expressed his anguish that he had no money to buy Shabbat necessities. The rabbi replied that he should come to him toward evening. In the meantime, the rabbi sat and wrote approximately ten mezuzot, sold them, and gave the money to that scholar so he would have the means to support his household for Shabbat. Alas for those who are gone and can no longer be found.]

This has a practical halachic implication: if a person undertakes and obligates himself to give from his money before he acquires money and property, there is no prohibition of diverting an inheritance, because immediately upon acquiring them he is already obligated to give them. This well explains the custom of undertaking to give enormous sums for a dowry that are not in the possession of the person undertaking the obligation at that time. As you already know, whatever the parties undertake to give a Torah-observant groom and bride as dowry is undertaken under the law of a vow to charity. This is written by Chelkat Mechokek (Even HaEzer 51, subsection 13) and Beit Shmuel there (subsection 11), in the name of the responsum of Maharil (no. 64): one who writes that he will clothe his daughter according to his means must fulfill it, because the couple are poor at the time of the match, even if the groom’s father likewise undertook to clothe his son. The Shulchan Aruch also rules in the laws of charity (Yoreh De’ah 258:12): “If one says that he will give his fellow a gift, if the recipient is poor, it is considered a vow to charity and he may not retract it.” I have elaborated on this, with Heaven’s help, in my work Taba’at Yosef: Chuppah and Kiddushin (chapter 7); see there.