בבא בתרא קמג

בבא בתרא קמג

וְכַרְכֵּישׁ בָּהּ רֵישֵׁיהּ בֵּי מִדְרְשָׁא. אֲזַל לְגַבֵּיהּ, אֲמַר לֵיהּ: אִילּוּ אֲמַר לֵיהּ ״קְנִי כַּחֲמוֹר״, מִי קָנֵי?!

and he nodded [vekharkeish] his head in the study hall in approval of this explanation. Rabbi Yirmeya went to Rabbi Avin, who said to him: Rabbi Abbahu’s reasoning is that if a father said to his son: Acquire an item as a donkey does, does he acquire it? In the same manner that the son would not acquire anything if his acquisition were likened to that of a donkey, which possesses no ability to acquire an item, so too, since the father compared the son’s acquisition to the acquisition effected by his unborn children, who possess no ability to acquire property, the son did not acquire any property.

דְּאִיתְּמַר: ״קְנִי כַּחֲמוֹר״ – לֹא קָנָה. ״אַתְּ וַחֲמוֹר״ – רַב נַחְמָן אָמַר: קָנָה מֶחֱצָה, וְרַב הַמְנוּנָא אָמַר: לֹא אָמַר כְּלוּם. וְרַב שֵׁשֶׁת אָמַר: קָנָה הַכֹּל.

This is as it was stated: With regard to one who says to another: Acquire an item as a donkey does, he does not acquire any property, as a donkey cannot acquire property. But with regard to one who says: You and a donkey shall both acquire my property, there is a disagreement. Rav Naḥman says: The person acquires his half of the property, and Rav Hamnuna says: It is as though the giver does not say anything. Since the beneficiary was included with the donkey in the same acquisition, he does not acquire any property, just as the donkey does not acquire any property. Rav Sheshet says: The person acquires all the property. As the giver knew that a donkey cannot acquire property, he intended for the person, who was capable of acquiring property, to acquire all the property.

אָמַר רַב שֵׁשֶׁת: מְנָא אָמֵינָא לַהּ? דְּתַנְיָא, רַבִּי יוֹסֵי אוֹמֵר: אֵין לְךָ מַר בַּקִּישּׁוּת, אֶלָּא פְּנִימִי שֶׁבּוֹ. לְפִיכָךְ, כְּשֶׁהוּא תּוֹרֵם – מוֹסִיף עַל הַחִיצוֹן שֶׁבּוֹ, וְתוֹרֵם.

Rav Sheshet said: From where do I say this? As it is taught in a baraita: Rabbi Yosei says: There is nothing bitter in the cucumber other than its inner part, which is sometimes bitter and inedible and unfit to be separated as teruma. Therefore, since one does not know if the cucumber he separates as teruma is bitter inside, when he separates teruma, he adds part of another cucumber as teruma, in addition to the outer part of the cucumber, which is edible. And he separates both as teruma, thereby ensuring that the teruma consists of sufficient edible cucumber.

אַמַּאי? ״אַתְּ וַחֲמוֹר״ הוּא!

Rav Sheshet asks: Why does the separation of teruma take effect? Is it not analogous to one who states: You and a donkey shall acquire an item, since he designated as teruma both the outer part of the cucumber, which is fit to become teruma, and the inedible inner part, which is not fit to become teruma? Since this does not invalidate the separation of teruma with regard to the edible outer part, one can infer that although the donkey cannot acquire property, this does not prevent the person from acquiring the property.

שָׁאנֵי הָתָם, דְּמִדְּאוֹרָיְיתָא תְּרוּמָה מְעַלַּיְיתָא הִיא –

The Gemara replies: It is different there, as by Torah law the bitter inner part is also properly considered teruma, even though by rabbinic law if one separated inferior produce as teruma he must again separate produce of superior quality as teruma. Therefore, when one designates the entire cucumber as teruma, he is not designating both fit and unfit produce.

דְּאָמַר רַבִּי אִילְעָא: מִנַּיִן לַתּוֹרֵם מִן הָרַע עַל הַיָּפֶה – שֶׁתְּרוּמָתוֹ תְּרוּמָה? שֶׁנֶּאֱמַר: ״וְלֹא תִשְׂאוּ עָלָיו חֵטְא, בַּהֲרִימְכֶם אֶת חֶלְבּוֹ מִמֶּנּוּ״ – וְאִם אֵינוֹ קָדוֹשׁ, נְשִׂיאוּת חֵטְא לָמָּה? מִכָּאן לַתּוֹרֵם מִן הָרַע עַל הַיָּפֶה, שֶׁתְּרוּמָתוֹ תְּרוּמָה.

This is as Rabbi Ile’a says: From where is it derived that the halakha with regard to one who separates teruma from poor-quality produce for superior-quality produce is that his teruma is valid teruma? It is as it is stated with regard to teruma: “And you shall bear no sin by reason of it, seeing that you have set apart from it the best thereof” (Numbers 18:32). By inference, this indicates that it is a transgression to separate the inferior part of the produce as teruma. Rabbi Ile’a explains the proof: And if the inferior produce is not sanctified as teruma, why does it involve the bearing of sin, as it is a meaningless act? From here one can derive that that the halakha with regard to one who separates teruma from poor-quality produce for superior-quality produce is that although he acted improperly, his teruma is valid teruma.

אֲמַר לֵיהּ רַב מָרְדֳּכַי לְרַב אָשֵׁי, מֵתִיב רַב אַוְיָא תְּיוּבְתָּא: מַעֲשֶׂה בְּחָמֵשׁ נָשִׁים וּבָהֶן שְׁתֵּי אֲחָיוֹת, וְלִיקֵּט אֶחָד כַּלְכָּלָה שֶׁל תְּאֵנִים – וְשֶׁלָּהֶן הָיְתָה, וְשֶׁל שְׁבִיעִית הָיְתָה; וְאָמַר: ״הֲרֵי כּוּלְּכֶן מְקוּדָּשׁוֹת לִי בְּכַלְכַּלָּה זֹאת״; וְקִבְּלָה אַחַת מֵהֶן עַל יְדֵי כּוּלָּן. אָמְרוּ חֲכָמִים: אֵין אֲחָיוֹת מְקוּדָּשׁוֹת.

§ The Gemara cited Rav Hamnuna’s opinion that if one says: You and a donkey shall acquire my property, he did not say anything. Rav Mordekhai said to Rav Ashi: Rav Avya raises an objection to Rav Hamnuna’s opinion from a mishna (Kiddushin 50b): An incident occurred involving five women, and among them were two sisters, and one person gathered a basket of figs that belonged to them, and the fruit was of the Sabbatical Year, and he said: You are hereby all betrothed to me with this basket, and one of them accepted it on behalf of all of them. The Sages said: The sisters are not betrothed, as it is prohibited to marry the sister of one’s wife during her lifetime.

אֲחָיוֹת הוּא דְּאֵין מְקוּדָּשׁוֹת – הָא נָכְרִיּוֹת מְקוּדָּשׁוֹת; וְאַמַּאי? ״אַתְּ וַחֲמוֹר״ הִיא!

One can infer from the mishna: It is only the sisters who are not betrothed, but the unrelated women are betrothed. But why is that so? It is analogous to one who states: You and a donkey shall acquire an item. Since he tried to betroth two women ineligible for betrothal together with the eligible women, the betrothal should not take effect even with regard to the eligible women.

אֲמַר לֵיהּ: הַיְינוּ דַּחֲזַאי רַב הוּנָא בַּר אַוְיָא בְּחֶלְמָא – דְּמוֹתֵיב רַב אַוְיָא תְּיוּבְתָּא. לָאו מִי אוֹקֵימְנָא דְּאָמַר: ״הָרְאוּיָה מִכֶּם לְבִיאָה תִּתְקַדֵּשׁ לִי״?

Rav Ashi said to Rav Mordekhai: This is why I saw Rav Huna bar Avya in a dream, because you were going to tell me that Rav Avya raised an objection to Rav Hamnuna’s opinion. But as for this objection, didn’t we interpret the mishna in Kiddushin as referring to where he says: Those of you who are eligible for engaging in sexual intercourse with me shall be betrothed to me? Since the sisters were forbidden to him, they were not included in the betrothal in the first place, and there was no impediment to the betrothal of the eligible women taking effect. The case is therefore not comparable to the case discussed by Rav Hamnuna.

הָהוּא דַּאֲמַר לַהּ לִדְבֵיתְהוּ: ״נִכְסַיי לִיךְ וְלִבְנִיךְ״, אָמַר רַב יוֹסֵף: קָנְתָה מֶחֱצָה. וְאָמַר רַב יוֹסֵף: מְנָא אָמֵינָא לַהּ? דְּתַנְיָא, רַבִּי אוֹמֵר: ״וְהָיְתָה לְאַהֲרֹן וּלְבָנָיו״ – מֶחֱצָה לְאַהֲרֹן מֶחֱצָה לְבָנָיו.

§ The Gemara relates: There was a certain man who said to his wife: My property is given to you and to your sons. Rav Yosef says: In such a case, the wife acquires half of the property, even though the man did not specify how much of his property he was giving her. And Rav Yosef said: From where do I say this? As it is taught in a baraita: Rabbi Yehuda HaNasi says: The verse states with regard to the shewbread: “And it shall be for Aaron and his sons” (Leviticus 24:9). This means half for Aaron and half for his sons. One can infer from the baraita that when it is specified that a gift is to be divided between an individual and a group, the intention is that the individual receives half.

אֲמַר לֵיהּ אַבָּיֵי: בִּשְׁלָמָא הָתָם, אַהֲרֹן בַּר חֲלוּקָּה הוּא; לְהָכִי פְּרַט בֵּיהּ רַחֲמָנָא – לְמִשְׁקַל פַּלְגָא. אִשָּׁה – לָאו בַּת יְרוּשָּׁה הִיא, דַּיָּה שֶׁתִּטּוֹל כְּאֶחָד מִן הַבָּנִים.

Abaye said to Rav Yosef: Granted, there, in the case of the shewbread, Aaron is eligible to receive a share of the shewbread as a priest; it is for this reason that the Merciful One specified him separately, so that he should take more than other priests, i.e., half. But with regard to a woman, who is not eligible to inherit her husband’s property, it is sufficient for her to receive a portion of the inheritance as one of the sons, not half of all the property.

אִינִי?! וְהָא עוֹבָדָא הֲוָה בִּנְהַרְדְּעָא, וְאַגְבְּיַהּ שְׁמוּאֵל פַּלְגָא! בִּטְבֶרְיָא, וְאַגְבְּיַהּ רַבִּי יוֹחָנָן פַּלְגָא! וְתוּ, כִּי אֲתָא רַב יִצְחָק בַּר יוֹסֵף, אָמַר: הָהוּא דְּמֵי כְלִילָא דִּשְׁדוֹ דְּבֵי מַלְכָּא אַאַבּוּלֵי וְאַאִיסְטְרוּגֵי, אָמַר רַבִּי: נִיתְּבוּ אַבּוּלֵי פַּלְגָא וְאִיסְטְרוּגֵי פַּלְגָא!

The Gemara raises an objection: Is that so? But there was an incident in Neharde’a where a man gave a gift to an individual and to a group of people, and Shmuel collected half the sum for the individual. There was a similar case in Tiberias, and Rabbi Yoḥanan collected half the sum for the individual. And furthermore, when Rav Yitzḥak bar Yosef came from Eretz Yisrael he said: There was a certain coronation tax that was placed by the royal house on the city councilmen [a’abulei] and on the prominent citizens [ve’a’isterugei]. Rabbi Yehuda HaNasi said: Let the city councilmen give half and the prominent citizens half. This indicates that when two groups are mentioned together, the intent is that each one represents half.

הָכִי הַשְׁתָּא?! הָתָם, מֵעִיקָּרָא כִּי הֲווֹ כָּתְבִי – אַאַבּוּלֵי הֲווֹ כָּתְבִי; וְאִיסְטְרוּגֵי הֲווֹ מְסַיְּיעִי בַּהֲדַיְיהוּ, וְיָדַע מַלְכָּא דַּהֲווֹ קָא מְסַיְּיעִי; הַשְׁתָּא מַאי דְּקָא כָּתְבִי אַאַבּוּלֵי וְאַאִיסְטְרוּגֵי, לְמֵימְרָא דְּהָנֵי פַּלְגָא וְהָנֵי פַּלְגָא.

The Gemara rejects this argument: How can the case concerning the tax be compared to the other cases? There, initially, when they would write the writ of assessment, they would write that it was placed on the city councilmen alone. And the prominent citizens would assist them in raising the sum, and the king knew that they were assisting them. Therefore, now, the meaning of what they wrote: It is placed on the city councilmen and on the prominent citizens, is to say that these should give half of the tax, and those should give half.

מֵתִיב רַבִּי זֵירָא: הָאוֹמֵר ״הֲרֵי עָלַי מִנְחָה מֵאָה עִשָּׂרוֹן, לְהָבִיא בִּשְׁנֵי כֵלִים״ – מֵבִיא שִׁשִּׁים בִּכְלִי אֶחָד, וְאַרְבָּעִים בִּכְלִי אֶחָד.

Rabbi Zeira raises an objection to Rav Yosef’s ruling from a baraita (Tosefta, Menaḥot 12:7): With regard to one who says: It is incumbent upon me to bring a meal-offering of one hundred tenths of an ephah in two vessels, he brings sixty-tenths in one vessel, and the remaining forty-tenths in one vessel, as no more than sixty-tenths may be brought in a single vessel.

וְאִם הֵבִיא חֲמִשִּׁים בִּכְלִי אֶחָד וַחֲמִשִּׁים בִּכְלִי אֶחָד – יָצָא. אִם הֵבִיא אִין – לְכַתְּחִלָּה לָא; וְאִי סָלְקָא דַּעְתָּךְ כׇּל כִּי הַאי גַוְונָא פַּלְגָא וּפַלְגָא הוּא, אֲפִילּוּ לְכַתְּחִלָּה נָמֵי!

And if he brought fifty-tenths in one vessel and fifty in one vessel, he fulfilled his obligation. One can infer from the baraita that after the fact, if he had brought fifty-tenths in each vessel, yes, he fulfilled his obligation, but he may not do so ab initio. And if it should enter your mind to say that every case like this is divided half and half, it should be permitted to divide the meal-offering into equal halves even ab initio.

הָכִי הַשְׁתָּא?! הָתָם, אֲנַן סָהֲדִי דְּהַאי גַּבְרָא מֵעִיקָּרָא – לְקׇרְבָּן גָּדוֹל קָא מְכַוֵּין, וְהַאי דְּקָאָמַר בִּשְׁנֵי כֵלִים – דְּיָדַע דְּלָא אֶפְשָׁר לְאֵתוֹיֵי בִּכְלִי אֶחָד; כַּמָּה דְּאֶפְשָׁר לְאֵיתוֹיֵי מַיְיתִינַן.

The Gemara dismisses Rabbi Zeira’s objection: How can these cases be compared? There, in the case of the meal-offering, it is clear to us that this person initially intended to bring a large offering, and the reason that he said he will bring the offering in two vessels was that he knew that it is not possible to bring the entire offering in a single vessel. Therefore, we bring, in a single vessel, as much as it is possible to bring, which is sixty-tenths. In any other case it is possible that the division should be into two equal portions.

וְהִלְכְתָא כְּווֹתֵיהּ דְּרַב יוֹסֵף בְּשָׂדֶה, עִנְיָן וּמֶחֱצָה.

The Gemara concludes: And the halakha is in accordance with the opinion of Rav Yosef in three matters where he disagreed with Rabba: In the matter of dividing a field between brothers (see 12b); in the matter of whether certain actions are limited by the court session or by the topic of discussion in the court (see 114a); and in the matter of half, i.e., this matter, whether an unspecified division into two parts is divided into two equal halves.

הָהוּא דְּשַׁדַּר פִּיסְקֵי דְשִׁירָאֵי לְבֵיתֵיהּ. אָמַר רַבִּי אַמֵּי: הָרְאוּיִין לְבָנִים – לַבָּנִים, רְאוּיִין לְבָנוֹת – לַבָּנוֹת. וְלָא אֲמַרַן אֶלָּא דְּלֵית לֵיהּ כַּלָּתָא, אֲבָל אִית לֵיהּ כַּלָּתָא – לְכַלָּתֵיהּ שַׁדַּר. וְאִי בְּנָתֵיהּ לָא נְסִיבָן – לָא שָׁבַק בְּנָתֵיהּ וּמְשַׁדַּר לְכַלָּתֵיהּ.

§ The Gemara cites additional incidents concerning a gift whose method of division was not specified: There was a certain man who sent swaths of silk to his home as a gift. Rabbi Ami says that in such a case, those swaths that are suitable for the sons’ garments are given to the sons, and those that are suitable for the daughters’ garments are given to the daughters. The Gemara comments: We said this only when he does not have daughters-in-law, but if he has daughters-in-law, it is presumed that he sent it for his daughters-in-law. And if his daughters are not married, it is presumed that he does not forsake his daughters and send to his daughters-in-law, so the silk is given to his daughters.

הַהוּא דַּאֲמַר לְהוּ: ״נִכְסַיי לִבְנַיי״. הֲוָה לֵיהּ בְּרָא וּבְרַתָּא. מִי קָרוּ אִינָשֵׁי לִבְרָא ״בְּנַיי״ – וּלְסַלּוֹקֵי לִבְרַתָּא מֵעִישּׂוּר קָאָתֵי; אוֹ דִלְמָא, לָא קָרוּ אִינָשֵׁי לִבְרָא ״בְּנַיי״ – וּלְמוֹשְׁכָהּ לְבַרְתָּא בְּמַתָּנָה קָאָתֵי?

There was a certain man who said to those surrounding him: I leave my property to my sons [levanai], and he had only a son and a daughter. The question was raised: Do people call a single son in the plural: My sons, and in his will he came to remove his daughter even from the tenth of his property that would rightfully be her dowry? Or perhaps people do not call a single son: My sons, and he came to include his daughter in the gift?

אָמַר אַבָּיֵי, תָּא שְׁמַע: ״וּבְנֵי דָּן – חֻשִׁים״. אֲמַר לֵיהּ רָבָא, דִּלְמָא כִּדְתָנָא דְּבֵי חִזְקִיָּה: שֶׁהָיוּ מְרוּבִּין כְּחוּשִׁים שֶׁל קָנֶה! אֶלָּא אָמַר רָבָא: ״וּבְנֵי פַלּוּא – אֱלִיאָב״. רַב יוֹסֵף אָמַר: ״וּבְנֵי אֵיתָן – עֲזַרְיָה״.

Abaye said: Come and hear a proof that one does refer to a single son using the plural term sons, as it is written: “And the sons of Dan: Hushim” (Genesis 46:23). Rava said to Abaye: Perhaps this verse should be understood as the school of Ḥizkiyya taught, that Hushim is not the name of Dan’s son but that they, Dan’s sons, were as numerous as the groups [ḥushim] of reeds. Rather, Rava said: One can prove this usage of the term sons in the verse: “And the sons of Pallu: Eliab” (Numbers 26:8). Rav Yosef said: This can be proven from another verse: “And the sons of Ethan: Azariah” (I Chronicles 2:8).

הַהוּא דַּאֲמַר לְהוּ: ״נִכְסַאי לִבְנַאי״. הֲוָה לֵיהּ בְּרָא, וּבַר בְּרָא. קָרוּ אִינָשֵׁי לְבַר בְּרָא ״בְּרָא״, אוֹ לָא? רַב חֲבִיבָא אֲמַר: קָרוּ אִינָשֵׁי לְבַר בְּרָא ״בְּרָא״, מָר בַּר רַב אָשֵׁי אָמַר: לָא קָרוּ אִינָשֵׁי לְבַר בְּרָא ״בְּרָא״. תַּנְיָא כְּווֹתֵיהּ דְּמָר בַּר רַב אָשֵׁי: הַמּוּדָּר הֲנָאָה מִבָּנִים – מוּתָּר בִּבְנֵי בָנִים.

There was a certain man who said to those surrounding him: I leave my property to my sons, and he had a son and a grandson, i.e., his son’s son. The question was raised: Do people call a grandson a son, or do they not? Rav Ḥaviva said: People call a grandson a son. Mar bar Rav Ashi said: People do not call a grandson a son. The Gemara comments: It is taught in a baraita in accordance with the opinion of Mar bar Rav Ashi: With regard to one prohibited by a vow from deriving benefit from a certain person’s sons, it is permitted for him to derive benefit from the sons of that person’s sons, as they are not included in the term sons.

מַתְנִי׳ הִנִּיחַ בָּנִים גְּדוֹלִים וּקְטַנִּים; הִשְׁבִּיחוּ גְּדוֹלִים אֶת הַנְּכָסִים – הִשְׁבִּיחוּ לָאֶמְצַע. אִם אָמְרוּ: ״רְאוּ מַה שֶּׁהִנִּיחַ אַבָּא, הֲרֵי אָנוּ עוֹשִׂין וְאוֹכְלִים״ – הִשְׁבִּיחוּ לְעַצְמָן. וְכֵן הָאִשָּׁה שֶׁהִשְׁבִּיחָה אֶת הַנְּכָסִים – הִשְׁבִּיחָה לָאֶמְצַע. אִם אָמְרָה: ״רְאוּ מַה שֶּׁהִנִּיחַ לִי בַּעְלִי, הֲרֵי אֲנִי עוֹשָׂה וְאוֹכֶלֶת״ – הִשְׁבִּיחָה לְעַצְמָהּ.

MISHNA: In the case of one who died and left behind adult and minor sons, if the adult sons enhanced the property, they enhanced it so that the profit goes to the middle, i.e., it is distributed among all the heirs. If the adult sons said from the outset: See that which our father left behind; we are going to engage in business with our share of the property and profit from it, then they enhanced the property for themselves. And similarly, with regard to a wife who enhanced the property of her deceased husband, she enhanced it so that the profit goes to the middle, i.e., it is divided between her and the heirs. If she said: See that which my husband left me; I am going to engage in business with my share and profit from it, then she enhanced the property for herself.

גְּמָ׳ אָמַר רַב חֲבִיבָא בְּרֵיהּ דְּרַב יוֹסֵף בְּרֵיהּ דְּרָבָא, מִשְּׁמֵיהּ דְּרָבָא: לֹא שָׁנוּ אֶלָּא שֶׁשָּׁבְחוּ נְכָסִים מֵחֲמַת נְכָסִים, אֲבָל שָׁבְחוּ נְכָסִים מֵחֲמַת עַצְמָן – הִשְׁבִּיחוּ לְעַצְמָן.

GEMARA: Rav Ḥaviva, son of Rav Yosef, son of Rava, says in the name of Rava: They taught this halakha only with regard to where the property was enhanced on account of the property, i.e., the heirs invested money from the common inheritance in order to enhance the property, and their input was only in the management of its investment. But if the property was enhanced on their account, i.e., on account of the efforts or expenditure of the adult sons, the halakha is that they enhanced it for themselves.

אִינִי?! וְהָא אָמַר רַבִּי חֲנִינָא: אֲפִילּוּ לֹא הִנִּיחַ לָהֶם אֲבִיהֶם אֶלָּא

The Gemara asks: Is that so? But doesn’t Rabbi Ḥanina say: Even if their father left them nothing but