Ways Around Disowning a Child with a Vow
by R. Gidon Rothstein

Yoreh De’ah 223

AH opens this chapter with a quick reminder of an idea from Siman 218, we interpret vows by combining the intent of the person who took the vow, the context and wording. Nedarim 38b imagined a father who had wanted to free his son of filial duties to be able to study Torah unencumbered, and therefore vowed to prohibit himself benefit from said son.

Still, the Gemara allowed the son to fill a barrel of water, light a candle, or fry a small fish for his father. Such brief services do not interrupt his study to the extent we think the father intended to include them in the original vow. Even if done daily. Nor are we letting intent overpower the words (which said, no services), because compared to the services the son in theory owes the father, these do not count. “Service” meant the big stuff.

Rambam, Nedarim 6;17, flipped the whole discussion, took the Gemara to refer to a vow prohibiting the son’s benefit from the father because the father thought he was not studying sufficiently well. Here again, the father can fill a barrel with water, light a candle, and/or fry him a fish because the vow only sought to exclude the son from big benefits, not minimal ones like these.

While AH thinks the two opinions options rather than arguments, he knows important acharonim (Shach, Taz, and more), who detected a debate and therefore thinks we should be stringent, not let the son have such benefits where the father barred him from benefit in general, to focus him on Torah study.

Skipping his discussion of the proofs either side would bring, in se’if four AH raises an idea from Yerushalmi Bikkurim, a son whose parent bound him to study Torah and not serve the parent may still bring home items from the market, if the parent is not one to go to the store him/herself. AH is not sure why Rambam and Shulchan Aruch omitted the idea, inferring they may have doubted the idea.

Inheritance and Loans

Rambam in Nedarim 5;6 pointed out the difference between a father who bans a son from benefit from his possessions and one who adds “in my lifetime and after my death.” In the first case, the son inherits as usual, since the possession cease being the father’s the moment he passes. Where the father included “after death,” he was putting the ban on the items themselves. The son would not be able to use them; he could pick which brothers or sons get his share , and/or use those items to pay off a loan or a ketubah.

Tur (cited by AH in se’if six) rejected Rambam’s view, because paying off a loan is a benefit, even if (as Rambam prescribed) the banned person says “these are from my father’s property that he prohibited to me.” Tur thought the only option Bava Kamma 108b accepted was for the man to borrow and the lenders of their own accord to collect from the father’s property.

Se’if seven has other views of Rambam’s position. Ran suggested he meant the court would take these properties/possessions to pay off his loans, and that the man couldn’t give the items to his sons/brothers, he could show them where they were, a sort of hefker, for them to then take themselves. Bach thought Rambam could have meant this all bedi’avad, if the person already did it, we will not revoke the gift or repayment.

AH rejects these and several other answers, giving his own in se’if ten. He argues—as he has earlier, he tells us, although I didn’t find it—that no vow can stop inheritance. Rather, for reasons of chillul Hashem, because it will look as if the son is ignoring the vow, Chazal instituted other strategies. He can give it as a gift or pay off a loan, if he notes why he is using these assets in particular. The items are really his, just that his obligation to honor his father’s wishes bars him from taking them himself.

Grandsons Can Make It Better

In se’if twelve, AH notes another exception Rambam carved out, 5;7, where the father discussed the possibility his grandson would be a Torah scholar. Then, he allows the father to bequeath it to the vow-prohibited son, for him to pass on to the grandson. The middle generation (son/father) may not use those assets, because the vow still applies to him, but may serve as conduit, if the grandson turns out to be a Torah scholar, in line with the grandfather’s stipulation.

Should the grandson fail to meet expectations, he certainly does not inherit the properties, because the grandfather sent them his way, with a kinyan, an act of acquisition. Most think the grandson incurs no prohibition, where Bach and Taz thought the grandfather’s basing the inheritance on his Torah scholar status implicitly included him in the vow on his father, should he turn out poorly.

Except Where They Can’t/Don’t

AH doesn’t think either view captures what Rambam meant. In se’if thirteen, he argues Rambam would have thought that if the grandson missed expectations, the banned son would be expected to follow the spirit of his father’s wishes, and give the inheritance to another son, brother, lender, someone who qualified for what he could safely assume would have been his father’s wishes.

Some worried about the kinyan sudar, the handkerchief agreement, the grandfather had performed, often seen to create ownership. If the grandson has already been given the assets, how could the son divert them? AH dismisses the issue, because the handkerchief didn’t transfer the properties to the grandson, they solidified the grandfather’s intent, and when the grandson missed the mark, the handkerchief ceremony was no longer in force. Rosh, Ran, Tur all held that way, and AH notes Rambam did not speak of a kinyan, a creation of new ownership, but of heter, the son being allowed to take it and give it to his son (the ill-fated grandson).

When I learned Nedarim with the Daf Yomi, I kept noticing how infrequently a vow presents the best way of dealing with a problem. In our siman, disinheritance apparently helps a father express his deep distaste for a son’s choices, yet his hopes to send bounty his grandson’s way again show us the complex problems that arise with radical solutions.

Next time, AHH Halachot Shonot 11, when a person vows to become a nazir in two different ways.