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Shabbat Parashat Chayei Sara 5775

Chayei Sarah | 22 Cheshvan 5775 | 15/11/2014

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

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 UMeishiv 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 Yosefs 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 Yosefs 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).


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