Bava Basra, Chapter 8, Mishnah 7. The Mishnah opens with the case of a person who wishes to give one of his properties to his son or sons, while at the same time keeping for himself the right of enjoyment from that property - the rent he collects from the apartment, the right to live in the house he owns, or the option to harvest his field and take the crop. Whatever enjoyment it may be, he wishes to keep these rights for himself, which are called the right of eating the fruits. Meaning: the production rights of the property remain in his hands all the days of his life, and after his passing, the body - the property itself - will pass to the full use of the sons. Until that time, he wishes to transfer to them the ownership and acquisition, and to leave the usage rights in his hands.
Why would a person want to act this way? A possible answer: A man who marries a second wife and does not want her kesubah to place a lien on this property as well, can give it as a gift right now. It turns out that he gives the property from now, and at the same time keeps for himself the right to use it until the day of his death.
The language of the document - "From today and after death":
The first question the Mishnah comes to answer is: What language should be used in the document to describe this transaction? To this the Mishnah says: "Hakoseiv nechasav levanav - tzarich sheyichtov mei'hayom ule'achar misah, divrei Rabbi Yehudah" - One who writes his properties over to his sons must write "from today and after death," the words of Rabbi Yehudah. He must include two expressions: "From today" - since the acquisition of the body of the property takes place already today; and "after death" - since the fruits of the property pass to the sons only upon his passing.
Why is the language "from today" required? Because if he had written that the gift is given only after his death, it would have no validity at all. A person cannot give a gift after his death: at the moment of death, the laws of inheritance take effect immediately, and the property is no longer his so that he can give it. On the other hand, if he gives it as a complete gift now, then everything is finished now, and the matter has no connection to what will happen after his death. Therefore, both expressions are required together - to show that part of the transaction takes effect from now and part of it takes effect afterwards.
Rabbi Yosi disagrees and says: "Eino tzarich" - He does not need to. In his opinion, it is sufficient to write "after death" alone, and there is no need to mention "from today," since the date stated in the document itself testifies to the time the acquisition takes effect. Furthermore, a person does not say that he gives something after death unless his intention is to transfer the continued use after death, while the main giving is done from now - for a gift that takes effect only after death has no substance, and a person would never intend for that, because the matter is not possible at all. It turns out that the language "after death" is sufficient, referring to the use of the property, while the giving of the body of the property takes effect from today by virtue of the date written in the document. And the halachah is in accordance with Rabbi Yosi.
The sale of the property by the father or by the son:
Now the Mishnah clarifies how the matter is expressed in practice. This time it does not speak of all the sons, but of a father who preferred one of his sons and gave him the house, provided that he continues to live in it until the day of his death: "Hakoseiv nechasav leveno le'achar moso" - One who writes his properties over to his son after his death - the ownership passes to the son already now, while the right to enter and live or rent it out is given to him only after the death of the father.
And from here the Mishnah establishes two limitations:
"Ha'av eino yachol limkor, mipnei shehen kesuvin laben" - The father cannot sell, because they are written to the son - the father no longer has the right to sell the house, since it was already acquired by the son.
"Vehaben eino yachol limkor, mipnei shehen birshus ha'av" - And the son cannot sell, because they are in the father's domain - even though the son is the legal owner, he is not permitted to sell, because in the meantime the house stands in the father's domain, who is entitled to live in it until the day of his death.
And what will be the law if the father or the son violated the prohibition and sold? Presumably, once it becomes clear to the buyer that the sale is subject to significant limitations, he will claim a mistaken transaction and withdraw. But if he did not do so, and both sides knew well what was involved, the Mishnah teaches what is sold in practice:
"Machar ha'av - mechorin ad sheyamus" - If the father sold, they are sold until he dies - the father who sold the place to another person, even though it was forbidden for him to do so, his sale is valid regarding the usage right: the buyer is permitted to live in the house as long as the father is alive, and when the father dies the house passes to the son's domain, and the buyer vacates the place.
"Machar haben - ein lalokei'ach bahen kelum ad sheyamus ha'av" - If the son sold, the buyer has nothing in them until the father dies - the son who sold while the father is alive, the buyer has no usage right whatsoever, since the father is entitled to live there. Only after the death of the father does the house pass to the buyer. Until then he is merely a buyer in name only.
The Father's Rights to the Produce:
The Mishnah continues: "Ha'av tolesh uma'achil lechol mi sheyirtzeh" - the father may detach and feed whoever he wants. As long as the right to use the property is reserved for the father, he is permitted to harvest from it as he wishes and feed the produce to anyone he desires. The initial thought might have been that perhaps the permission to use the property is limited to the father's personal benefit alone and does not include a third party. The Mishnah informs us that this is not the case: The father retains unlimited rights to the produce of the property for his entire life, and he may do with it as he pleases and give it to whoever he wants.
"Umah shehiniach talush - harei hu shel yorshin" - anything that was detached from the ground and remains after the father's death does not follow the land. Since it was detached, it is no longer part of it, but rather part of the general estate, and therefore it is divided equally among all the heirs according to the regular rules of inheritance, and not given to that specific son who received the rest of the property.
The Dispute among the Rishonim Regarding Produce Ready to be Detached:
It is worth noting a dispute among the Rishonim on this matter: What is the law regarding produce that is ready to be detached and its time for harvesting has already arrived, but in practice it has not yet been detached?
The Rambam's Approach: Since they already needed to be detached and were simply not detached in practice, they are considered as if they were detached, and are no longer secondary to the ground. We saw this earlier in the fifth chapter, Mishnah 7, and the Bartenura brought this there as well.
The Rashbam's Approach: As long as they were not practically detached from the ground, their status is that of attached produce and they are secondary to it, and therefore they are part of the land itself. (The Rashbam, if you will, serves as Rashi on tractate Bava Basra, since Rashi's commentary is not present in this part of the tractate.)
The Bartenura on our Mishnah rules like the Rashbam, and so it turns out that he is inconsistent between his words in Chapter 5, Mishnah 7, and his words here in Chapter 8, Mishnah 7 - but that is the reality of the matter.
Dividing the Estate Between Adult and Minor Sons:
From this point on, even though we are still in the same Mishnah, a new topic begins (and in the Gemara itself, this is a separate Mishnah): How do we practically deal with the division of the property remaining in the estate. The Mishnah states: "Hiniach banim gedolim uktanim" - the father passed away and left behind sons; for example, four sons, two adults and two minors, and they could possibly be from two marriages.
"Ein hagedolim misparnesin al haketanim" - the adult brothers are not permitted to clothe themselves at the minors' expense, since the assumption is that the adults' clothes are more expensive than the minors' clothes, and if we were to clothe everyone from the estate we would spend more on the adults, and this is unfair.
"Velo haketanim nizonin al hagedolim" - similarly, the minors are not fed at the expense of the adults, since the assumption is that the minors' food is more expensive than the adults' food: they eat more frequently and require more expensive foods.
"Ela cholkin beshaveh" - the division must be equal. We do not say "each according to his needs," that the adults receive expensive clothing and the minors receive expensive food. It is obvious that on the day after the father's passing, when the children need food and clothing on that day or the next, there is not enough time to make all the calculations, issue an inheritance order, and divide everything equally. Therefore, receipts must be kept and exact calculations made regarding how much was spent on each child's clothing and how much each one's food cost, and ultimately the estate must be divided equally among all the brothers according to the laws of inheritance. An exact accounting must be made to ensure that each one receives exactly his share, and that one does not take more than his brother from the moment of the father's passing.
"Nase'u hagedolim - yisa'u haketanim" - if the adult sons married after the father's passing, for example in weddings scheduled for the day following the passing, while the minors are too young to marry, they too must be married off from the estate equally. Meaning, if each of the adults received a wedding from the estate costing a hundred thousand shekels, a hundred thousand shekels must be set aside from the estate for each of the minors, and only the remainder is divided equally. This is proper and this is fair.
If the older sons married during the father's lifetime:
The next line in the Mishnah can be misleading, and an important distinction must be made: here we are not dealing with older sons who married after the father's passing, but rather with sons who married during the father's lifetime. The two older sons received lavish weddings at a hundred thousand shekels each, while the younger ones were orphaned before they married, and now they demand lavish weddings like those of their brothers.
Regarding this, the Mishnah states: "Ve'im amru ketanim: harei anu nosin kederech shenisatem atem - ein shomin lahem, ela mah shenatan lahem avihem natan" - and if the younger sons say, "We will marry in the same manner that you married," we do not listen to them, rather what their father gave them, he gave. Beis Din does not entertain this claim. What the father gave during his lifetime and spent on his sons was his right, and what was given is given. From the moment of his passing, the inheritance is divided equally among the sons (ignoring the laws of the firstborn for the sake of this example), and in this case, each of the younger sons will receive a quarter of the estate. There is no additional allocation made on account of the lavish weddings the father funded for the older sons during his lifetime: when it comes time to divide the inheritance, it is divided with absolute fairness, shekel for shekel, among all the heirs, strictly according to the rules of inheritance.