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Shabbat Rosh Hashana - Haazinu 5774

P'ninat Mishpat: Who is the Presumed Owner of a Father/Sons Property?

(based around Shut Harashba I:996)

[The Rashba was unquestionably one of the most respected and influential of the Rishonim. Born in Barcelona in 1235, he was a student of the Ramban, a teacher of the Ritva, and an older contemporary of the Rosh. He served as a rabbi in Barcelona for half a century. His chiddushim on many massechtot of Shas and topical works in a few areas (Torat Habayit) are very important works, but his responsa are perhaps his most quoted work by later authorities. Many of the responsa are on matters of beit din, but most of them are short (there are 1255 responsa in the first volume alone) and do not tell a full story of what cases he was asked to solve. Often the responsa are just requests for his opinions on theoretical questions.]


A father and married son lived under one roof as one household. The son was the one who was active commercially on behalf of the family. When the father and son died, many documents were found of rights to property and loans, with the son’s name listed as the beneficiary. Now there is a dispute between the inheritors of the father and the inheritors of the son. The latter claim that since the son’s name is on the documents, we should assume that the rights were his and are now transferred to his inheritors. The father’s inheritors claim they were the father’s property and were recorded in the son’s name only because he was the one who was actively involved.

The widow and inheritors of the son are correct. This is the case even if it is not clearly known that the son had any of his own property. It is true that if the son were alive, he would have to bring proof that the property is his. This is clear from the gemara (Bava Batra 52a) regarding a parallel case of brothers who owned their father’s estate jointly but one of the brothers was the one who was most involved and there were contracts in his name. [This is actually the subject of a machloket between Rav and Shmuel, but what the Rashba states is the accepted opinion.] However, when the active brother dies, all agree that the brothers have to bring a proof that the rights are theirs, or else the dead brother’s inheritors receive it. [This is based on the concept that one can make claims on behalf of the inheritors of one who ostensibly has rights in something because one cannot expect inheritors to prove things regarding matters in which they were not involved in their father’s lifetime.]

The matter is even simpler that the son’s inheritors receive the property without proof if it is known that the son had some of his own money. In that case there are grounds to say that he was industrious with his money and there is no reason to doubt the usual assumption – that which is in one’s name is his until proven otherwise.
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