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Shabbat Parashat Chayei Sara 5775

P'ninat Mishpat: Relinquishing Rights to a Partnership Deciphering an Unclear Provision in a Will

(based on Shoel UMeishiv I:III152)

[Reuven died without children, leaving behind a will that included provisions that Reb Yosef should say Kaddish for Reuven and that Reuven’s relatives/inheritors should give him 50 rubles. Yosef started saying Kaddish and was given all the money, but then he died after only a few months of saying Kaddish. Reuven’s inheritors are now asking of Yosef’s relatives to return the money that is beyond that which corresponds to the time that Yosef said Kaddish, since the condition was not fulfilled. Yosef’s relatives responded that since a condition was not made as to what would happen if Yosef did not finish his period of saying Kaddish, he should receive the full amount, which can be considered tzedaka (ed. note – one gets the impression that Reb Yosef was poor and that is why he was given the opportunity to receive the 50 rubles), which then was transferred to his inheritors.]


The querier [who seems to not be a rabbi but a budding scholar, whom the author praised and encouraged] cited the gemara in Beitza 20 about one who said: “Give Ploni 400 zuz, and he should marry my daughter.” The gemara says that because he said to give the money before he said that he should marry his daughter, the present is intact even if the recipient did not marry the daughter. [Both the querier and the Shoel U’Meishiv apparently wrote intricate analyses of the opinions of the Rishonim on this gemara, but neither presentation is found in this responsum.]

In any case, here, since Reuven wrote first that Reb Yosef should say Kaddish and only afterwards that he should receive the money, he should not receive more money than due to him for the part of the job that he carried out. One might raise the argument that since Yosef’s failure to fulfill the condition for full payment was only due to oness (extenuating circumstances), he should not lose the payment that was slated to go to him. However, this is incorrect due to the rule that although failure to do something due to oness is not failure, it is also not considered positive fulfillment (see Shach, Choshen Mishpat 21). Since in this case the money was for fulfillment of the need to say Kaddish, as opposed to a case where money needs to be withheld as a sanction for failure, Yosef did not deserve the money.

Another claim one can make on behalf of Yosef’s family is that the will did not state how long Yosef had to say Kaddish. However, it is clear that the intention is for a full 11 months, as since Reuven left no child, we can safely assume that he would not have been satisfied with less Kaddish than the usual amount done (see a parallel case in Gittin 74b).

Despite the fact that Reb Yosef could not have demanded pay for the time he was not able to recite Kaddish, since he was already paid in full, Reuven’s inheritors cannot recover the money from Yosef’s inheritors. One reason has to do with the fact there were no explicit conditions for how long he needed to say Kaddish to deserve the lump-sum payment promised. As such, we apply umdanot (assumptions) that indicate that he did not deserve the full amount. However, we are left in a situation of uncertainty whether the umdanot are true in this case. Therefore, Yosef could not have extracted the full sum, but neither can Reuven’s family extract money already paid. Another reason is that Reuven’s inheritors did not follow the will’s provision, to their own detriment. While the will spoke about saying Kaddish and then receiving money, they gave money before the task was finished. As such, they turned it into a case where the saying of the Kaddish was the secondary commitment, making the giving of the money unconditional on the completion of Yosef’s obligation.

Therefore, Yosef’s family does not need to return any of the 50 rubles given to him.
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