Bava Batra 148
שְׁכִיב מְרַע שֶׁאָמַר ״תְּנוּ הַלְוָאָתִי לִפְלוֹנִי״ – הַלְוָאָתוֹ לִפְלוֹנִי, וְאַף עַל גַּב דְּלֵיתֵיהּ בְּבָרִיא! רַב פָּפָּא אָמַר: הוֹאִיל וְיוֹרֵשׁ יוֹרְשָׁהּ.
With regard to a person on his deathbed who says: Give the loan owed to me to so-and-so as a gift, the loan owned to him is acquired by so-and-so. And this is the halakha despite the fact that this does not apply in the case of a healthy person, as one cannot transfer a loan to a third party without a promissory note. Rav Pappa says: In this case the halakha of transferring loans differs with regard to a person on his deathbed, since an heir inherits loans without a promissory note, and the Sages accorded the gift of a person on his deathbed the halakhic status of an inheritance.
רַב אַחָא בְּרֵיהּ דְּרַב אִיקָא אָמַר: הַלְוָאָה אִיתָא בְּבָרִיא, וְכִדְרַב הוּנָא אָמַר רַב – דְּאָמַר רַב הוּנָא אָמַר רַב: ״מָנֶה לִי בְּיָדְךָ, תְּנֵהוּ לִפְלוֹנִי״; בְּמַעֲמַד שְׁלָשְׁתָּן – קָנָה.
Rav Aḥa, son of Rav Ika, said: A loan without a promissory note can be conferred as a gift by a healthy person. And this is in accordance with that which Rav Huna says that Rav says, as Rav Huna says that Rav says: With regard to one who said to another: I have one hundred dinars in your possession, give it to so-and-so, if this was stated in the presence of all three of the parties, the third party acquires the money without an act of acquisition and without the need for witnesses.
אִיבַּעְיָא לְהוּ: דֶּקֶל לְאֶחָד וּפֵירוֹתָיו לְאַחֵר, מַהוּ? מִי שַׁיַּיר מְקוֹם פֵּירֵי, אוֹ לָא שַׁיַּיר? אִם תִּמְצֵי לוֹמַר: לְאַחֵר לָא הָוֵי שִׁיּוּר; לְעַצְמוֹ – ״חוּץ מִפֵּירוֹתָיו״, מַהוּ?
§ A dilemma was raised before the Sages: With regard to one who gave a palm tree to one person and its fruit to another, what is the halakha? Did he reserve the place of the fruit on the tree for the second person in order to give him a tangible object, and therefore the second person acquires the fruit, or did he not reserve it, and the second person does not acquire the fruit? Furthermore, if you say that giving the palm tree to one person and giving the fruit to another is not considered reserving the place of the fruit unless this is explicitly stipulated, then if he reserves the fruit for himself, stating that the tree is given to another except for its fruit, what is the halakha?
אָמַר רָבָא אָמַר רַב נַחְמָן, אִם תִּמְצֵי לוֹמַר: דֶּקֶל לְאֶחָד וּפֵירוֹתָיו לְאַחֵר לָא הָוֵי שִׁיּוּר מְקוֹם פֵּירֵי; דֶּקֶל לְאֶחָד וְשִׁיֵּיר פֵּירוֹתָיו לְפָנָיו – שַׁיַּיר מְקוֹם פֵּירֵי. מַאי טַעְמָא? כֹּל לְגַבֵּי נַפְשֵׁיהּ – בְּעַיִן יָפָה מְשַׁיֵּיר.
Rava said that Rav Naḥman said: Even if you say that giving the palm tree to one person and its fruit to another is not considered reserving the place of the fruit for the second person, if he gave the palm tree to one person and reserved the fruit for himself, he also reserved the place of the fruit for himself. What is the reason for this distinction? The reason is that anything that one reserves with regard to himself, he reserves generously, and therefore he reserves for himself not only the fruit itself, but also the place of the fruit.
אֲמַר לֵיהּ רַבִּי אַבָּא לְרַב אָשֵׁי: אֲנַן אַדְּרַבִּי שִׁמְעוֹן בֶּן לָקִישׁ מַתְנֵינַן לַהּ. דְּאָמַר רַבִּי שִׁמְעוֹן בֶּן לָקִישׁ: הַמּוֹכֵר בַּיִת לַחֲבֵירוֹ, וְאָמַר לוֹ: ״עַל מְנָת שֶׁדְּיוֹטָא הָעֶלְיוֹנָה שֶׁלִּי״ – דְּיוֹטָא הָעֶלְיוֹנָה שֶׁלּוֹ.
Rabbi Abba said to Rav Ashi: We learned the aforementioned statement of Rav Naḥman with regard to the statement of Rabbi Shimon ben Lakish concerning a different matter, as Rabbi Shimon ben Lakish says: In the case of one who sells a house to another and says to him: I am selling the house on the condition that the upper story [deyota] remains mine, the upper story remains his.
אִיבַּעְיָא לְהוּ: בַּיִת לְאֶחָד וּדְיוֹטָא לְאֶחָד, מַהוּ? מִי הָוֵי שִׁיּוּר, אוֹ לָא? אִם תִּמְצָא לוֹמַר בַּיִת לְאֶחָד וּדְיוֹטָא לְאֶחָד לָא הָוֵי שִׁיּוּר, ״חוּץ מִדְּיוֹטָא״, מַהוּ?
A dilemma was raised before the Sages with regard to the statement of Rabbi Shimon ben Lakish: If one sold a house, i.e., a lower story, to one person and stated that the upper story will be sold to one other person, what is the halakha? Is this considered reserving additional rights for the second person apart from the upper story, or not? If you say that in a case where one sells his house to one and the upper story to one, his stipulation is not considered reserving rights for the second person, there is another dilemma. If one sold a house except for the upper story, reserving the upper story for himself, what is the halakha? Is this considered reserving additional rights for himself?
אָמַר רָבָא אָמַר רַב נַחְמָן: אִם תִּמְצָא לוֹמַר בַּיִת לְאֶחָד וּדְיוֹטָא לְאֶחָד לָא הָוֵי שִׁיּוּר, ״חוּץ מִדְּיוֹטָא״ הָוֵי שִׁיּוּר – וְאַלִּיבָּא דְּרַב זְבִיד, דְּאָמַר: שֶׁאִם רָצָה לְהוֹצִיא בָּהּ זִיזִין – מוֹצִיא;
Rava said that Rav Naḥman said: Even if you say that where one sells the house to one person and the upper story to one other person, he is not considered to be reserving rights for the second person, if one sold a house except for the upper story, he is considered to be reserving additional rights for himself. And this is in accordance with the opinion of Rav Zevid, who says that the reason the seller reserves additional rights is that if he wants to extend projections from the upper story into the space of the courtyard, he may extend them.
אַלְמָא כֵּיוָן דְּשַׁיַּיר דְּיוֹטָא – מְקוֹם זִיזִין נָמֵי שַׁיַּיר; הָכָא נָמֵי, כֵּיוָן דְּאָמַר ״חוּץ מִפֵּירוֹתָיו״ – מְקוֹם פֵּירֵי שַׁיַּיר.
The Gemara concludes: Evidently, since he reserved the upper story, he also reserved the place of the projections. Here too, with regard to the one who gave a palm tree to another and reserved the fruit for himself, since he said that the tree is given to another except for its fruit, he reserved the place of the fruit for himself as well.
אָמַר רַב יוֹסֵף בַּר מִנְיוֹמֵי אָמַר רַב נַחְמָן: שְׁכִיב מְרַע שֶׁכָּתַב כׇּל נְכָסָיו לַאֲחֵרִים – רוֹאִין; אִם בִּמְחַלֵּק, מֵת – קָנוּ כּוּלָּן, עָמַד – חוֹזֵר בְּכוּלָּן.
§ The mishna (146b) states that if a person on his deathbed granted all of his property to others but reserved for himself any amount of land, his gift is valid even if he recovers. If he did not reserve for himself any amount of land, his gift is not valid if he recovers. Rav Yosef bar Minyumi says that Rav Naḥman says: In the case of a person on his deathbed who wrote a deed granting all of his property to others, the manner in which he divided his property is examined. If it appears that he was intending to divide his entire estate among various recipients, then if he dies, all the recipients acquire their gifts. If he recovers, he can retract all of the gifts, in accordance with the ruling of the mishna.
אִם בְּנִמְלָךְ, מֵת – קָנוּ כּוּלָּן, עָמַד – אֵינוֹ חוֹזֵר אֶלָּא בָּאַחֲרוֹן. וְדִלְמָא עַיּוֹנֵי קָא מְעַיֵּין, וַהֲדַר יָהֵיב! סְתָמֵיהּ דִּשְׁכִיב מְרַע מִידָּק דָּיֵיק וַהֲדַר יָהֵיב.
But if it appears that he was reconsidering the matter, initially intending to give away only a portion of his property, and then reconsidering and distributing the rest, then if he dies, all of the recipients acquire their gifts. If he recovers, he can retract only the last gift, as the previous gifts were given with the intent to reserve part of the property for himself, and they are valid even if he recovers. The Gemara asks: Perhaps he was not reconsidering; rather, he initially intended to transfer ownership of all of his property, and he was considering to whom to give each portion and then giving it. The Gemara answers: The usual way of a person on his deathbed is to consider the matter carefully first and only then to confer his gifts. Therefore, if he pauses to consider in the interim, it appears that he did not initially intend to transfer ownership of his entire estate.
אָמַר רַב אַחָא בַּר מִנְיוֹמֵי אָמַר רַב נַחְמָן: שְׁכִיב מְרַע שֶׁכָּתַב כׇּל נְכָסָיו לַאֲחֵרִים, וְעָמַד – אֵינוֹ חוֹזֵר, חָיְישִׁינַן שֶׁמָּא יֵשׁ לוֹ נְכָסִים בִּמְדִינָה אַחֶרֶת.
§ Rav Aḥa bar Minyumi says that Rav Naḥman says: With regard to a person on his deathbed who wrote a deed granting all of his generally known property to others, and he then recovered, he cannot retract it, as we are concerned that perhaps he has property in another province that he reserved for himself, in which case the gift is valid even if he recovered.
וְאֶלָּא מַתְנִיתִין דְּקָתָנֵי: לֹא שִׁיֵּיר קַרְקַע כָּל שֶׁהוּא – אֵין מַתְּנָתוֹ קַיֶּימֶת; הֵיכִי מַשְׁכַּחַתְּ לַהּ? אָמַר רַב חָמָא: בְּאוֹמֵר ״כׇּל נְכָסַי״. מָר בַּר רַב אָשֵׁי אָמַר: בְּמוּחְזָק לַן דְּלֵית לֵיהּ.
The Gemara asks: But as for the mishna, which teaches: If he did not reserve for himself any amount of land, and he recovered, his gift is not valid, how can you find these circumstances? Rav Ḥama said: The mishna is referring to a case where he says: All my property is given to so-and-so, in which case he clearly reserved nothing for himself. Mar bar Rav Ashi said: The mishna is referring to a case where our presumption is that he does not have property elsewhere.
אִיבַּעְיָא לְהוּ: חֲזָרָה בְּמִקְצָת – הָוֵי חֲזָרָה בְּכוּלָּהּ, אוֹ לָא? תָּא שְׁמַע: כּוּלָּן לָרִאשׁוֹן וּמִקְצָתָן לַשֵּׁנִי – שֵׁנִי קָנָה, רִאשׁוֹן לֹא קָנָה. מַאי, לָאו בְּשֶׁמֵּת?
§ A dilemma was raised before the Sages: With regard to the gift of a person on his deathbed, is a partial retraction of the gift considered a retraction of the entire gift, or is it not considered a retraction of the entire gift? The Gemara suggests: Come and hear a proof from a baraita: If one gave all of his property to the first recipient and then he partially retracted his gift and gave part of his property to the second recipient, the second acquired his gift, but the first did not acquire anything. What, is it not referring to a case where the giver died, and the reason that the first recipient does not acquire anything is that a partial retraction is considered a retraction of the entire gift?
לָא, בְּשֶׁעָמַד.
The Gemara rejects this explanation: No, the baraita is referring to a case where the giver recovered. The first gift was invalidated, because he left nothing for himself, whereas the second gift remained valid, since he gave only part of his property. Had he died, the first recipient would have received the remainder, as the giver retracted only part of the first gift, which he gave to the second recipient.
הָכִי נָמֵי מִסְתַּבְּרָא, מִדְּקָתָנֵי סֵיפָא: מִקְצָתָן לָרִאשׁוֹן, וְכוּלָּן לַשֵּׁנִי – רִאשׁוֹן קָנָה, שֵׁנִי לֹא קָנָה. אִי אָמְרַתְּ בִּשְׁלָמָא בְּשֶׁעָמַד, מִשּׁוּם הָכִי שֵׁנִי לֹא קָנָה; אֶלָּא אִי אָמְרַתְּ בְּשֶׁמֵּת, תַּרְוַיְיהוּ לִיקְנוֹ!
The Gemara comments: So too, it is reasonable to understand the baraita in this manner. From the fact that the last clause of the baraita teaches: If he gave part of his property to the first recipient, and then he gave all of his property to the second recipient, the first recipient acquired his gift, but the second did not acquire anything. Granted, if you say that the baraita is referring to a case where the giver recovered, due to that reason the second recipient did not acquire the gift. But if you say that the baraita is referring to a case where he died, both of them should acquire their gifts.
אֲמַר לֵיהּ רַב יֵימַר לְרַב אָשֵׁי: וְתֶהֱוֵי נָמֵי בְּשֶׁעָמַד; אִי אָמְרַתְּ בִּשְׁלָמָא חֲזָרָה בְּמִקְצָת הָוְיָא חֲזָרָה בְּכוּלָּהּ – הַיְינוּ דְּשֵׁנִי מִיהַת קָנָה. אֶלָּא אִי אָמְרַתְּ חֲזָרָה בְּמִקְצָת לָא הָוְיָא חֲזָרָה בְּכוּלָּהּ – נִיהְוֵי כִּמְחַלֵּק, וּלְחַד מִינַּיְיהוּ לָא לִיקְנוֹ!
Rav Yeimar said to Rav Ashi: And even if the first clause of the baraita is referring to a case where he recovered, one can prove that a partial retraction is considered a retraction of the entire gift. Granted, if you say that a partial retraction is considered a retraction of the entire gift, this is the reason that at least the second recipient acquired the gift, as the giver reserved part of his property for himself. But if you say that a partial retraction is not considered a retraction of the entire gift, the giver should be considered as one who was dividing all of his property between the two recipients, and neither of them should acquire their gifts.
וְהִלְכְתָא: חֲזָרָה בְּמִקְצָת הָוְיָא חֲזָרָה בְּכוּלָּהּ; רֵישָׁא – מַשְׁכַּחַתְּ לַהּ בֵּין שֶׁמֵּת בֵּין שֶׁעָמַד, סֵיפָא – לָא מַשְׁכַּחַתְּ לַהּ אֶלָּא כְּשֶׁעָמֵד.
The Gemara concludes: And the halakha is that a partial retraction is considered a retraction of the entire gift. You find the halakha that is stated in the first clause of the baraita both in a case where the giver died and in a case where he recovered. You find the halakha that is stated in the last clause only in a case where he recovered.
אִיבַּעְיָא לְהוּ: הִקְדִּישׁ כָּל נְכָסָיו וְעָמַד, מַהוּ? מִי אָמְרִינַן: כֹּל לְגַבֵּי הֶקְדֵּשׁ – גָּמַר וּמַקְנֵי; אוֹ דִלְמָא, כֹּל לְגַבֵּי נַפְשֵׁיהּ – לָא גָּמַר וּמַקְנֵי?
§ A series of dilemmas were raised before the Sages: If a person on his deathbed consecrated all of his property to the Temple treasury and subsequently recovered, what is the halakha? Do we say that in any case that concerns consecrated property the assumption is that he resolves to transfer the property unconditionally, and therefore the consecration is valid even if he recovers? Or perhaps in any matter that concerns himself he does not resolve to transfer the property unconditionally.
הִפְקִיר כׇּל נְכָסָיו, מַהוּ? מִי אָמְרִינַן: כֵּיוָן דְּאַף לַעֲנִיִּים כַּעֲשִׁירִים – גָּמַר וּמַקְנֵי; אוֹ דִלְמָא, כֹּל לְגַבֵּי נַפְשֵׁיהּ לָא גָּמַר וּמַקְנֵי?
Furthermore, if a person on his deathbed declared all of his property ownerless, what is the halakha? Do we say that since declaring his property ownerless is for the benefit of the poor as well as the rich, it involves the potential mitzva of providing for the poor, and therefore the assumption is that he resolves to transfer the property, i.e., declare it ownerless, unconditionally? Or perhaps in any matter that concerns himself he does not resolve to transfer the property unconditionally.
חִילֵּק כׇּל נְכָסָיו לַעֲנִיִּים, מַאי? מִי אָמְרִינַן: צְדָקָה וַדַּאי מִגְמָר גָּמַר וּמַקְנֵי; אוֹ דִלְמָא, כֹּל לְגַבֵּי נַפְשֵׁיהּ לָא גָּמַר וּמַקְנֵי? תֵּיקוּ.
Furthermore, if a person on his deathbed divided all of his property to be distributed to the poor, what is the halakha? Do we say that with regard to charity the assumption is that he certainly resolves to transfer the property unconditionally? Or perhaps in any matter that concerns himself he does not resolve to transfer the property unconditionally. The Gemara concludes: These dilemmas shall stand unresolved.
לִישָּׁנָא אַחֲרִינָא: הִקְדִּישׁ כׇּל נְכָסָיו, מַהוּ? הִפְקִיר כׇּל נְכָסָיו, מַהוּ? חִילֵּק כׇּל נְכָסָיו לַעֲנִיִּים, מַהוּ? תֵּיקוּ.
The Gemara presents another version of this series of dilemmas: If a person on his deathbed consecrated all of his property to the Temple treasury, what is the halakha? If he declared all of his property ownerless, what is the halakha? If he divided all of his property to be distributed to the poor, what is the halakha? These dilemmas shall stand unresolved.
אָמַר רַב שֵׁשֶׁת: ״יִטּוֹל״ וְ״יִזְכֶּה״ וְ״יַחֲזִיק״ וְ״יִקְנֶה״ – כּוּלָּן לְשׁוֹן מַתָּנָה הֵן. בְּמַתְנִיתָא תָּנָא: אַף ״יַחְסֵין״ וְ״יֵרַת״ – בְּרָאוּי לְיוֹרְשׁוֹ, וְרַבִּי יוֹחָנָן בֶּן בְּרוֹקָא הִיא.
Rav Sheshet says: If one says: So-and-so shall take my property, or: So-and-so shall gain possession of my property, or: So-and-so shall take possession of my property, or: He shall acquire my property, all of these are terms that denote the bestowal of gifts. It was taught in a baraita: If one says: So-and-so shall receive as an inheritance, or: So-and-so shall inherit, these are also valid terms denoting inheritance in the case of one who is fit to inherit from him. And this baraita is in accordance with the opinion of Rabbi Yoḥanan ben Beroka, who holds that one can bequeath all of his property to one of his sons using terms that denote inheritance, not only using terms that denote the bestowal of a gift.
אִיבַּעְיָא לְהוּ:
A series of dilemmas were raised before the Sages:
