Friday, November 09, 2007

Kesubos 70a - Mitzvah l'kayem divrei ha'meis

It seems that this concept of mitzvah to fulfill the words of the meis, is not just an obligation but a legally binding concept that can override the rules of inheritance as we see from the case of giving a shekel. Tosafos seems to confirm this by asking, why do we need both the concept of divrei shechiv meira k'ksuvin umesruin and also the concept of mitzvah l'kayem divrei ha'meis. Clearly, the concept of divrei shechiv meira... is a legally binding transaction, so it seems that mitzvah l'kayem divrei ha'meis is also legally binding. Tosafos explains that the advantage of mitzvah l'kayem divrei ha'meis is that it works even for a healthy person who gave a tzava'ah prior to his death, however it only applies if one gave the money to a third party i.e. set up a trust, for that purpose (Tosafos in first answer, Rosh, Shulchan Aruch and Rama in C.M. 252:2 pasken that mitzvah l'kayeim only applies when given to a third party for the purpose of making an acquisition for the receiver).
People often like to use this concept of "mitzvah l'kayeim divrei ha'meis" homoletically to require people to follow instruction of one who has passed away. The pischei teshuva (C.M. 252:1) quotes Sh'vus Ya'acov that this is a total misrepresentation of the concept. There is no rule anywhere that one is bound by the rule, will, or even straight out demand of one who has passed away. Furthermore, the Ketzos Hachoshen (end of 252) explains that even if the niftar made his desire and will very clear, and even took a neder that something positive should be done with his money, the inheritors are not in any way bound to keep his neder (so long as it wasn't done with a language that can qualify as matnas shechiv meira k'ksuvin umesurin - see nesivos on the ketzos).

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