The Order of Death

Bava Batra (9:8) | Allon Ledder | 17 years ago

When a matter comes before a Beit Din for a decision, there is often uncertainty as to the facts of the case. The Beit Din has to consider the evidence and in some cases there is conflicting evidence. There are detailed halachot which govern the admissibility of evidence and the validity of witnesses. Within the parameters of these halachot the Beit Din attempts to ascertain the facts and it then proceeds to determine the appropriate psak.

However, sometimes there is no evidence clarifying the facts. An example would be where a house collapses and two people are killed (the last three Mishnayot of perek 9). The order of death can be critically important when determining how to apportion the estates. In these circumstances it is often not possible to know who was killed first.

For example, if the two people who are killed are husband and wife and they have no children:

• if the wife was killed first (even if the difference in time was

  only a moment) the husband will inherit the wife’s possessions, and on his death, these possessions will pass to his heirs; or

• if the husband was killed first the wife’s property will pass to

  her family.

These types of issues are not uncommon and they occur in secular law as well. To deal with this issue, the civil law in many countries consider the deaths to have occurred in order of seniority, i.e. the person who is older is assumed to have died first.

The Halacha deals with this uncertainty differently. The general principle is that the possessions are considered to be the property of whoever had them at the time of death. The burden of proof is on the party who wants to challenge that and thereby establish that the possessions should be transferred to the other party. For example, property that is in the wife’s possession at the time of her death will be inherited by her family unless the heirs of the husband can prove that the wife was killed first (in which case the property will be inherited by the husband and then passed on to the husband’s heirs).

The secular law has decided upon an arbitrary solution to deal with the uncertainty. Yet, the Jewish law approach also does not appear to guarantee the correct result. However, Chazal teach us that when there is a properly constituted Beit Din, Hashem Himself stands amongst the judges (so to speak) and assists them to reach the correct decision (see Rashi to Bereshit 18:1). In cases where the Beit Din is not able to reach the correct decision, Hashem may cause events to occur in such a way that the money eventually ends up in the right hands. (For an example of where Hashem orchestrates events to cause justice to be done see Rashi to Shmot ). We must also remember that any residual wrongdoing will be compensated in Olam Haba.

We are obligated to engage in hishtadlut, to exert ourselves in pursuing justice (Devarim ). However at the end of the day, we are subject to human limitations and we can only do what we can humanly do. Beyond that point, we have faith that Hashem is controlling the world and that He will ensure that everything turns out for the best. Only Hashem knows the answer to the question of who died first and who is entitled to the inheritance.

This is a timely message for this time of year. As we leave the apparent security of our homes of bricks and mortar and move into our flimsy sukkot, we realise our human limitations and recognise that the true answer to everything and source of our security is HaKadosh Baruch Hu.

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