Bava Batra 137
תַּנָּאֵי הִיא. דְּתַנְיָא: ״נְכָסַי לְךָ וְאַחֲרֶיךָ לִפְלוֹנִי״, וְיָרַד רִאשׁוֹן וּמָכַר וְאָכַל – הַשֵּׁנִי מוֹצִיא מִיַּד הַלָּקוֹחוֹת, דִּבְרֵי רַבִּי. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אֵין לַשֵּׁנִי אֶלָּא מַה שֶּׁשִּׁיֵּיר רִאשׁוֹן.
The Gemara answers: The halakha in this case is a dispute between tanna’im; as it is taught in a baraita: With regard to one who said: My property is given to you, and after you, to so-and-so, and the first recipient entered the property and sold it and consumed the profits, the second recipient repossesses the property from the purchasers, as the property belongs to him after the death of the first recipient; this is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: The second recipient receives only that which the first beneficiary left, since his sale is valid.
וּרְמִינְהִי: ״נְכָסַי לְךָ וְאַחֲרֶיךָ לִפְלוֹנִי״ – יוֹרֵד רִאשׁוֹן וּמוֹכֵר וְאוֹכֵל, דִּבְרֵי רַבִּי. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אֵין לָרִאשׁוֹן אֶלָּא אֲכִילַת פֵּירוֹת בִּלְבַד.
And the Gemara raises a contradiction from another baraita (Tosefta 8:4): If one says: My property is given to you, and after you, to so-and-so, the first one may enter the property and sell it and consume the profits; this is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: The first one has only the right of consumption of the produce.
קַשְׁיָא דְּרַבִּי אַדְּרַבִּי, וּדְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אַדְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל!
This statement of Rabbi Yehuda HaNasi is difficult as it is contradicted by the other statement of Rabbi Yehuda HaNasi, and this statement of Rabban Shimon ben Gamliel is difficult as it is contradicted by the other statement of Rabban Shimon ben Gamliel. Their opinions in the latter baraita seem to be the opposite of those in the former baraita.
דְּרַבִּי אַדְּרַבִּי לָא קַשְׁיָא – הָא לְגוּפָא, הָא לְפֵירָא. דְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אַדְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל לָא קַשְׁיָא – הָא לְכַתְּחִלָּה, הָא דִּיעֲבַד.
The Gemara answers: The apparent contradiction between one statement of Rabbi Yehuda HaNasi and the other statement of Rabbi Yehuda HaNasi is not difficult; this ruling that the first one cannot sell it is referring to the property itself, and that ruling that he can sell it is referring to the produce. The apparent contradiction between one statement of Rabban Shimon ben Gamliel and the other statement of Rabban Shimon ben Gamliel is not difficult either; this statement, that the first has only the right to consume the produce, is referring to his rights ab initio, whereas that statement, that if he sold the property the second one gets nothing, is referring to the halakha after the fact.
אָמַר אַבָּיֵי: אֵיזֶהוּ רָשָׁע עָרוּם? זֶה הַמַּשִּׂיא עֵצָה לִמְכּוֹר בִּנְכָסִים כְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל.
Abaye says: Who is a cunning wicked person? This is one who provides advice to sell property in accordance with the ruling of Rabban Shimon ben Gamliel. Although Rabban Shimon ben Gamliel holds that the sale is valid, he does not permit one to do so ab initio, as that would deprive the second designated recipient of the property. Therefore, one who advises the first recipient to do so is considered a cunning wicked person.
אָמַר רַבִּי יוֹחָנָן: הֲלָכָה כְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל. וּמוֹדֶה, שֶׁאִם נְתָנָן בְּמַתְּנַת שְׁכִיב מְרַע – לֹא עָשָׂה כְּלוּם.
Rabbi Yoḥanan says: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel; but Rabban Shimon ben Gamliel concedes that if the first recipient gave the property to another as the gift of a person on his deathbed, in which case no formal act of acquisition is required, he has done nothing; the second recipient can repossess the property from the one to whom it was given.
מַאי טַעְמָא? אָמַר אַבָּיֵי: מַתְּנַת שְׁכִיב מְרַע לֹא קָנָה אֶלָּא לְאַחַר מִיתָה, וּכְבָר קְדָמוֹ ״אַחֲרֶיךָ״.
What is the reason? Abaye says: The recipient of the gift of a person on his deathbed acquires it only after the person’s death, and in this case, the acquisition of the recipient resulting from the statement of: After you, i.e., the second designated recipient, has already preceded the acquisition of the first one.
וּמִי אָמַר אַבָּיֵי הָכִי? וְהָא אִיתְּמַר: מַתְּנַת שְׁכִיב מְרַע, מֵאֵימָתַי קָנָה? אַבָּיֵי אָמַר: עִם גְּמַר מִיתָה, וְרָבָא אָמַר: לְאַחַר גְּמַר מִיתָה!
The Gemara asks: But did Abaye actually say this, that the gift of a person on his deathbed takes effect only after his death? But wasn’t it stated in an amoraic dispute concerning the matter: From when does the recipient of the gift of a person on his deathbed acquire it? Abaye says: With the completion of death, i.e., at the moment he dies; and Rava says: After the completion of death.
הָדַר בֵּיהּ אַבָּיֵי מֵהַהִיא. מִמַּאי דְּמֵהַהִיא הֲדַר בֵּיהּ? דִּלְמָא מֵהָא הֲדַר בֵּיהּ!
The Gemara answers: Abaye retracted that latter statement. The Gemara asks: From where is it known that he retracted that statement? Perhaps he retracted this, i.e., the statement that the recipient acquires it only after the person’s death, and his conclusion is that he acquires it at the moment of his death.
לָא סָלְקָא דַּעְתָּךְ, דִּתְנַן: ״זֶה גִּיטֵּךְ אִם מַתִּי״; ״זֶה גִּיטֵּךְ מֵחוֹלִי זֶה״; ״זֶה גִּיטֵּךְ לְאַחַר מִיתָה״ – לֹא אָמַר כְּלוּם.
The Gemara answers: That possibility should not enter your mind, as we learned in a mishna (Gittin 72b): If a man on his deathbed says to his wife: This is your bill of divorce if I die, or: This is your bill of divorce if I die from this illness, or: This is your bill of divorce after I die, he has said nothing. The divorce does not take effect after his death. Evidently, when one gives instructions on his deathbed, his intention is for them to be effective after he dies.
אָמַר רַבִּי זֵירָא אָמַר רַבִּי יוֹחָנָן: הֲלָכָה כְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, וַאֲפִילּוּ הָיוּ בָּהֶן עֲבָדִים וְהוֹצִיאָן לְחֵירוּת.
Rabbi Zeira says that Rabbi Yoḥanan says: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel that if the first recipient sells the property, the sale is valid, and this is the halakha even if there were Canaanite slaves included in the property and the first recipient emancipated them.
פְּשִׁיטָא! מַהוּ דְּתֵימָא, אֲמַר לֵיהּ: לְמֶיעְבַּד אִיסּוּרָא לָא יָהֲבִינַן לָךְ; קָא מַשְׁמַע לַן.
The Gemara asks: Isn’t that obvious? The Gemara answers: Lest you say that the giver would have said to him: I did not give you my Canaanite slaves to transgress a prohibition, as it is prohibited to emancipate Canaanite slaves, Rabbi Yoḥanan teaches us that he has the legal right to do so.
אָמַר רַב יוֹסֵף אָמַר רַבִּי יוֹחָנָן: הֲלָכָה כְּרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, וַאֲפִילּוּ עֲשָׂאָן תַּכְרִיכִין לְמֵת. פְּשִׁיטָא! מַהוּ דְּתֵימָא: לְשַׁוּוֹיִנְהוּ אִיסּוּרֵי הֲנָאָה לָא יְהַבִי לָךְ; קָא מַשְׁמַע לַן.
Rav Yosef says that Rabbi Yoḥanan says: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel even if he made the gift into shrouds for a corpse. The Gemara asks: Isn’t that obvious? The Gemara answers: Lest you say that the giver would have said to him: I did not give you my possessions to render them into items from which deriving benefit is prohibited, but rather so that you may use and enjoy them, and Rabbi Yoḥanan teaches us that he may do so.
דָּרַשׁ רַב נַחְמָן בַּר רַב חִסְדָּא: ״אֶתְרוֹג זֶה נָתוּן לְךָ בְּמַתָּנָה, וְאַחֲרֶיךָ לִפְלוֹנִי״, נְטָלוֹ רִאשׁוֹן וְיָצָא בּוֹ – בָּאנוּ לְמַחְלוֹקֶת רַבִּי וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל.
§ Rav Naḥman bar Rav Ḥisda taught: If one said to another: This etrog is given to you as a gift, and after you die, to so-and-so, and the first recipient then took it and fulfilled his obligation of taking the four species on the first day of Sukkot with it, when one is obligated to take species that belong to him, in this case, we have arrived at the dispute between Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel as to the nature of the ownership of the first recipient. According to Rabbi Yehuda HaNasi’s opinion that he cannot sell the etrog, it is not considered entirely his, and he does not fulfill his obligation by taking it. According to the opinion of Rabban Shimon ben Gamliel, who holds that he can sell it, he fulfills his obligation.
מַתְקֵיף לַהּ רַב נַחְמָן בַּר יִצְחָק: עַד כָּאן לָא פְּלִיגִי רַבִּי וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל הָתָם, אֶלָּא דְּמָר סָבַר: קִנְיַן פֵּירוֹת כְּקִנְיַן הַגּוּף דָּמֵי, וּמָר סָבַר: קִנְיַן פֵּירוֹת לָאו כְּקִנְיַן הַגּוּף דָּמֵי. אֶלָּא הָכָא,
Rav Naḥman bar Yitzḥak objects to this statement, reasoning that Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel disagree only there, in the case of: After you, with regard to the nature of the recipient’s ownership; as one Sage, Rabban Shimon ben Gamliel, holds that ownership of the rights to use an item and the profits it engenders is considered like ownership of the item itself, and the other Sage, Rabbi Yehuda HaNasi, holds that ownership of the rights to use an item and the profits it engenders is not considered like ownership of the item itself. But here, with regard to the etrog,
אִי מִיפָּק לָא נָפֵיק בֵּיהּ, לְמַאי יַהֲבֵיהּ נִיהֲלֵיהּ?
if he does not fulfill his obligation with it, for what purpose did the owner give it to him?
אֶלָּא מִיפָּק – דְּכוּלֵּי עָלְמָא לָא פְּלִיגִי, דְּנָפֵיק בֵּיהּ; מְכָרָהּ אוֹ אֲכָלָהּ – בָּאנוּ לְמַחְלוֹקֶת רַבִּי וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל.
Rather, with regard to fulfilling his obligation, everyone agrees that he fulfills his obligation with it. It is only in a case where the first recipient sold it or consumed it, that we have arrived at the dispute between Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel. According to Rabbi Yehuda HaNasi, if he sold it, the second recipient can repossess the etrog from the purchaser, and if he consumed it he must pay the second recipient its value, whereas according to Rabban Shimon ben Gamliel, he owes nothing to the second recipient, as the etrog belongs to him.
אָמַר רַבָּה בַּר רַב הוּנָא: הָאַחִין שֶׁקָּנוּ אֶתְרוֹג בִּתְפוּסַת הַבַּיִת; נְטָלוֹ אֶחָד מֵהֶן וְיָצָא בּוֹ – אִם יָכוֹל לְאוֹכְלוֹ, יָצָא; וְאִם לָאו, לֹא יָצָא.
Rabba bar Rav Huna says: In a case of brothers who acquired an etrog with money from the jointly held property of the estate, and one of them took it on Sukkot and attempted to fulfill his obligation with it, the halakha depends on the limits of his ownership of the etrog: If he may eat it, i.e., his brothers allow him to do so, he has fulfilled his obligation to perform the mitzva, and if not, he has not fulfilled his obligation.
וְדַוְקָא דְּאִיכָּא אֶתְרוֹג לְכׇל חַד וְחַד, אֲבָל פָּרִישׁ אוֹ רִמּוֹן – לֹא.
And this is specifically in a case where there is an etrog for each and every one of the brothers; but if the other brothers get merely a quince or a pomegranate, he has not fulfilled his obligation even if he has the right to eat it.
אָמַר רָבָא: ״אֶתְרוֹג זֶה נָתוּן לְךָ בְּמַתָּנָה, עַל מְנָת שֶׁתַּחְזִירֵהוּ לִי״, נְטָלוֹ וְיָצָא בּוֹ; הֶחְזִירוֹ – יָצָא, לֹא הֶחְזִירוֹ – לֹא יָצָא. קָא מַשְׁמַע לַן דְּמַתָּנָה עַל מְנָת לְהַחֲזִיר – שְׁמָהּ מַתָּנָה.
Rava says: If one person said to another: This etrog is given to you as a gift on the condition that you return it to me, and the recipient took it on Sukkot and attempted to fulfill his obligation with it, if he ultimately returned it, he has fulfilled his obligation; if he did not return it, he has not fulfilled his obligation, as he did not fulfill the condition, thereby retroactively invalidating the gift. The Gemara explains that Rava teaches us that a gift given on the condition that it be returned is considered a valid gift.
הַהִיא אִיתְּתָא דַּהֲוָה לַהּ דִּיקְלָא בְּאַרְעָא דְּרַב בִּיבִי בַּר אַבָּיֵי. כׇּל אֵימַת דַּהֲוָת אָזְלָא לְמִיגְזְרֵיהּ, הֲוָה קָפֵיד עִילָּוַהּ. אַקְנִיתֵיהּ נִיהֲלֵיהּ כֹּל שְׁנֵי חַיָּיו. אֲזַל אִיהוּ אַקְנְיֵיהּ נִיהֲלֵיהּ לִבְנוֹ קָטָן.
§ The Gemara relates: There was a certain woman who had a palm tree on the land of Rav Beivai bar Abaye. Whenever she would go to harvest the produce from it, he would get angry at her for trampling on his crops. Since she did not wish to anger him, she decided to temporarily waive her right to the tree’s produce, and transferred ownership of it to him for all the years of his life, so that after his death she would once again be able to harvest the produce. He then went and transferred it to his minor son, so that it would remain in his family even following his death.
אָמַר רַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ: מִשּׁוּם דְּאָתוּ מִמּוּלָאֵי, אָמְרִיתוּ מִילֵּי מוּלְיָאתָא? אֲפִילּוּ רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל לָא קָאָמַר אֶלָּא לְאַחֵר, אֲבָל לְעַצְמוֹ – לֹא.
Rav Huna, son of Rav Yehoshua, said to Rav Beivai bar Abaye: Is it because you descend from truncated [mula’ei] people, as Rav Beivai’s family traced their lineage to Eli, all of whose descendants were condemned to premature death (see I Samuel 2:31), that you speak truncated [mulyata] and unsound matters? Even Rabban Shimon ben Gamliel, who holds that in a case where one says: My property is given to you, and after you, to so-and-so, if the first recipient sells the property the sale is valid, says so only in a case where it was to be given to another person; but if the giver said that it will return to himself, he did not say that the first recipient can sell it, as the giver clearly intended to maintain his ownership of the property. Accordingly, Rav Huna, son of Rav Yehoshua, held that Rav Beivai’s sale did not take effect.
אָמַר רָבָא אָמַר רַב נַחְמָן: ״שׁוֹר זֶה נָתוּן לְךָ בְּמַתָּנָה, עַל מְנָת שֶׁתַּחְזִירֵהוּ לִי״; הִקְדִּישׁוֹ וְהֶחְזִירוֹ – הֲרֵי זֶה מוּקְדָּשׁ וּמוּחְזָר.
§ Rava says that Rav Naḥman says: If one said to another: This ox is given to you as a gift on the condition that you return it to me, and the recipient consecrated it and then returned it to him, it is consecrated and returned. The consecration takes effect, and although the owner may not use it, nevertheless it is considered returned and the condition is fulfilled.
אֲמַר לֵיהּ רָבָא לְרַב נַחְמָן: מַאי אַהְדְּרֵיהּ? אֲמַר לֵיהּ: וּמַאי חַסְּרֵיהּ? אֶלָּא אָמַר רַב אָשֵׁי: חָזֵינַן; אִי אֲמַר לֵיהּ: ״עַל מְנָת שֶׁתַּחְזִירֵהוּ״ – הָא אַהְדְּרֵיהּ. אִי אֲמַר לֵיהּ: ״עַל מְנָת שֶׁתַּחְזִירֵהוּ לִי״ – מִידֵּי דַּחֲזֵי לֵיהּ קָאָמַר לֵיהּ.
Rava said to Rav Naḥman: What did he return to him? The ox was not returned to the possession of the giver, as it is consecrated. Rav Naḥman said to him: And what did he cause him to lose? He returned the ox. Rather, Rav Ashi said: We must rule in this case based on what we see. If the giver said to the recipient: On the condition that you return it, it is considered returned, as he returned it. But if he said to him: On the condition that you return it to me, he was effectively saying to him that he must return something fit for him to use. Consequently, the consecration prevents the condition from being fulfilled, and both the gift and the consecration are retroactively nullified.
אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: הַכּוֹתֵב נְכָסָיו לְאַחֵר, וְאָמַר הַלָּה ״אִי אֶפְשִׁי בָּהֶן״ – קָנָה, וַאֲפִילּוּ עוֹמֵד וְצוֹוֵחַ. וְרַבִּי יוֹחָנָן אָמַר: לֹא קָנָה.
§ Rav Yehuda says that Shmuel says: If one writes a document granting his property to another, and the other person says: I do not want it, he acquires it, and this is the halakha even if he is standing and shouting in protest that he does not want it. And Rabbi Yoḥanan says that he does not acquire it.
אָמַר רַבִּי אַבָּא בַּר מֶמֶל: וְלָא פְּלִיגִי;
Rabbi Abba bar Memel said: And they do not disagree with each other:
