Siman 223 — halakha lema‘asse: what the son may still do, and what the forbidden heir may do (יורה דעה רכ״ג)

יורה דעה · סימן רכ״ג

דין המדיר בנו לתלמוד תורה

מילי זוטרי · ביטול תורה · אנן סהדי · קני על מנת להקנות · ירושה · מראה להם מקום

⚖️ הלכה למעשה · Psak

✦ ❖ ✦

What remains permitted, what lapses, and what to do with an inheritance one cannot touch

Subject:
שולחן ערוך יורה דעה סימן רכ״ג (ד seifim)
With the apparatus: ש״ך (ה) · ט״ז (ה) · באר היטב (ג) · נקודות הכסף (א)
Foundations: נדרים ל״ח ע״ב · נדרים מ״ז ע״א · נדרים מ״ח ע״ב · בבא קמא ק״ח ע״ב–ק״ט ע״א · רמב״ם הלכות נדרים chapters ה׳ and ו׳ · Tur and Beit Yosef, Yoreh De’ah 223

Written by:
הרב יוסף חיים סממה · DAAT

The practical questions

Before anything: which vow is it?
The three services, and the measure that permits them
The vow and the inheritance: seven words that change everything
The forbidden heir: four things to know before acting
One work with no entry, and four contemporary situations

1. Before anything: which vow is it?

This level sets out the halakha as the Shakh, the Taz, the Ba’er Hetev and the Nekudot HaKesef give it on this siman. It does not replace a Rav. A note on the compartment: the Admur HaZaken did not write a Shulḥan Arukh on Yoreh De’ah. This level is a level of psak, not a “Daat HaRav”.

Two very different vows bear the same name in the gemara, and the practical halakha is not the same. (a) The father forbade himself his son’s benefit, to protect the son’s study: this is the Shulḥan Arukh’s case, and the three small services remain permitted. (b) The father forbade his son his benefit because the son does not study: this is the Rambam’s case, and according to the Shakh, the Taz and the Ba’ḥ nothing is permitted there, not even those small services.

2. The three services, and the measure that permits them

The question is not “is this service small?” but “does it cost study time?”. That is the Shakh’s own formula — דליכא בהו ביטול תורה כל כך. A brief task that nonetheless requires going out, waiting, travelling, is not necessarily of the same category as a lamp lit in passing. Extending the list to other services must be asked.

The market purchase follows a different logic. It is not permitted because it is small — it is not — but because a man incapable of going there cannot have meant to deprive himself of it. The Beit Yosef draws the limit the other way: a man whose habit it is to go to market is included in the vow.

3. The vow and the inheritance: seven words that change everything

Two formulas, two results. “You are forbidden my benefit”: at the father’s death the son inherits — for this property is no longer “his”. “In my lifetime and after my death”: the son does not inherit. In practice, reconstructing the words used is the whole question, and it belongs to the Rav.

4. The forbidden heir: four things to know before acting

First, do not give in person if it can be avoided. The Ran holds that giving in person yields a טובת הנאה, and one must therefore go by way of מראה להם מקום: telling the right people that this property is there, that it is forbidden, that one does not know what to do with it, and withdrawing.

Second, to whom. The Maharshal gives an order: to the father’s heirs, the nearest first, following the order of succession. And to his own sons, nothing — for there is no greater benefit than providing for one’s children. If there are no heirs at all, to charity, and there he need not inform.

Third, debts. The Shakh restricts this considerably: according to the view that forbids, at siman 221, discharging a clear debt or a pledge, the same applies here — and our seif would then speak only of an oral debt, or one that is not established. This is not a general licence to pay one’s debts with this money.

Fourth, and this is decisive: לכתחילה or בדיעבד? The Prisha and the Ba’ḥ read the seif as a statement of what was done, not as permission to do it: אם נתן או פרע — if he gave or paid, it is valid after the fact; from the outset it is forbidden. The Ba’er Hetev reports it in that form, and the Taz arrives there too. Nothing should therefore be undertaken on the basis of this seif without a Rav.

5. One work with no entry, and four contemporary situations

The Pitḥei Teshuva has no entry on this siman. He surveys later responsa; his silence says only that modern questions have not fallen here. He is read at simanim 224 and 225, and abundantly at siman 228. No entry has been reconstructed here.

A parent wants to “step aside” so that his child may study. The intention is fine, the means heavy. A vow once uttered holds, and a התרת נדרים will be needed to be rid of it — see siman 228. There are less irreversible undertakings, and that is the first thing a Rav will say.

Where does the list of three services stop? The seif names three; the Shakh gives the criterion. But moving from the criterion to a new case — driving, answering a call, carrying a parcel — is not an act of reading, it is a decision. It must be asked.

An inheritance one cannot touch. This is seif ד, and it is the situation most likely to arise in reality. Three reflexes: do nothing with one’s own hand, inform the parties of the property’s origin, and ask before acting. The question whether one may give to one’s own children has a clear answer in the Maharshal, and it is negative.

And the parallel of the thief. The Shakh refers to חושן משפט siman 367 seif 5, where the case of one who robbed his father and must get the property out of his hands is found. The structure is the same: an estate one cannot use, and an exit to be arranged.

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DAAT · הרב יוסף חיים סממה
תלמיד חכם · מעביר שיעורים בהלכה ובחסידות
סימן רכ״ג · Level 4 — Halakha lema‘asse · דין המדיר בנו לתלמוד תורה
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