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Week 110 - Sunday - 30 December 2001

BAVA BATRA: CHAPTER 9: MISHNAH 7

One who distributes his assets orally, R. Eliezer says: Both one who is well and one who is dangerously ill – mortgageable property is acquired by money and by deed, and by possession; and which are not mortgageable, are only acquired by pulling. They said to him: A case occurred when the mother of the sons of Rokhel was ill, and she said: Give my kevinah to my daughter, and it is of twelve manehs, and she died, and they carried out her words. He said to them: Their mother should bury the sons of Rokhel. But the Sages say: On Shabbat his words are valid, because he cannot write; but not on a weekday. R. Yehoshua says: They said this about Shabbat, all the more so on a weekday. Similarly: one may acquire for a minor and one may not acquire for an adult. R. Yehoshua says: They said this of a minor, all the more so for an adult.

Kehati

This mishnah continues to teach the law of a dangerously ill person who orders the distribution of his assets, and quotes a Tannaitic dispute.

One who distributes his assets orally - by his last will. Some refer this to one who distributes his assets among his sons (Rashi Git. 14b); while others refer this to one who distributes his possessions to those who are not his legitimate heirs. (Yad Ramah; Hameiri), R. Eliezer says - some read, "R. Eleazar says" (see Tosafot): Both one who is well and one who is dangerously ill - Whether the person was well or dangerously ill, the only way another can acquire the assets is by using one of the valid acts of acquisition; for mortgageable property - i.e., land, is acquired by money - which the buyer gives to the seller. Even if the buyer gave the seller a perutah, since it was given with the intention of effecting transfer, the buyer acquires the land; and by deed - or by a deed of gift from the donor to the donee; and by possession - The receiver performs an act of acquisition on the land, such as locking it up, or fencing it in, or digging in it, or some similar action (see Kidd. 1:5); and which are not mortgageable - movables - are only acquired by pulling - or by lifting up, or by transference (as explained in Kidd. 1:4-5), but not by money, by deed, or by possession. R. Eliezer holds that the words of a dangerously ill person are not considered as if they were written in a deed and transferred. He therefore says here that even if a dangerously ill person distributed his assets, the receiver only acquires them if he performs an act of acquisition, like the law regulating a healthy person's gift. The halakhah does not follow R. Eliezer.

They - the Sages, who hold that the words of a dangerously ill person are considered as if written and transferred: said to him: a case occurred when the mother of the sons of Rokhel - Rokhel was the name of their father, was ill, and she said: Give my kevinah to my daughter - kevinah is the Targum translation of redid (Is. 3:23), which is a type of veil, and it is of twelve manehs - it is worth 1200 zuz, and she died, and they carried out her words - they gave the veil to her daughter even though she had not formally acquired it. This shows that a gift by a dangerously ill person does not require a formal act of acquisition by the donee.

He - R. Eliezer - said to them - to the Sages: Their mother should bury the sons of Rokhel - i.e., one cannot bring proof from the sons of Rokhel, who were wicked people. Would that their mother had buried them! As they were wicked, the Sages punished them by forcing them to give the veil to her daughter without formal acquisition (Rashbam; Bartenura). The Gemara states that R. Eliezer called them wicked because they kept thorn-bushes in their vineyards which he considered to be diverse species. This itself is a dispute between R. Eliezer and the Sages (Kil. 5:8): "One who keeps thorn-bushes in his vineyard - R. Eliezer says: he has consecrated (i.e., he may not derive any benefit from the crop); but the Sages say: he has not consecrated." It follows that according to the Sages the sons of Rokhel were not wicked, and there is no reason to suppose that the Sages punished them.

But the Sages say - Some read, R. Eliezer says: On Shabbat - If a dangerously ill person distributed his assets on Shabbat, his words are valid - even without a formal act of acquisition, because he cannot write - and since one is not allowed to write, or acquire on Shabbat, the Sages decreed that an oral declaration is valid, so that he should not become agitated, but not on a weekday - because then there can be a deed and a formal contract.

R. Yehoshua says: They - the Sages - said this about Shabbat - that a dangerously ill person can transfer title orally, even though one cannot argue that since he could have transferred title and written out a deed, therefore also without a formal act of acquisition and a deed the donee acquires title, all the more so on a weekday - when acquisition and the writing of a deed is permitted, the donee will certainly acquire title without a formal act of acquisition and a deed. (This accords with the Talmudic principle that "whenever something is suitable for mixing, actual mixing is not indispensable" (B.B. 81b) i.e., where potential performance is possible, actual performance is not an absolute requirement. This principle is explained in Menahot (12:4), "one may offer a freewill-offering [of fine flour with oil] of sixty tenths and bring it in one vessel." For up to sixty tenths the flour can be properly mixed with the oil, above that amount two vessels are required as the flour and oil cannot be mixed together properly in a single vessel. Now, if up to sixty tenths were brought in one vessel even if they were not mixed together properly, the offering is valid since they could have been mixed in the one vessel. Similarly, here, since on a weekday a dangerously ill person could have written, the absence of a deed certainly does not invalidate his gift.

Similarly - the Tannaim dispute on another matter. One may acquire for a minor - A person who wishes to give a gift to a minor cannot give it to him directly, for a minor cannot make a legal acquisition. Instead he can give it to another adult, who takes possession of the gift on behalf of the minor, and one may not acquire for an adult - because an adult is able to take possession by himself. R. Yehoshua says, They said this of a minor - the Sages permitted another adult to acquire a gift on behalf of a minor, and all the more so for an adult - since an adult can acquire something for himself and moreover can appoint an agent, there is all the more reason to say that one adult can acquire something on another adult's behalf. The halakhah follows R. Yehoshua.

BAVA BATRA: CHAPTER 9: MISHNAH 8

If a house fell on him and on his father, or on him and on his heirs, and he was liable for his wife's ketubah and to a creditor - the father's heirs say: the son died first, and afterwards the father died. The creditors say: the father died first, and afterwards the son died. The School of Shammai says, Let them share, but the School of Hillel says: The assets remain in their presumptive ownership.

Kehati

From here until the end of this chapter, the mishnayot deal with doubts in regard to inheritances.

If a house fell on him and on his father - On Reuven and on his father, Jacob and both died, or on him and on his heirs - his relatives, whom he inherits on their death, e.g., if it fell on Reuven and on Shimon his brother who died childless so that Reuven would have inherited Shimon, and he - Reuven - was liable for his wife's ketubah and to a creditor - and Reuven left no assets from which both the creditor and the widow could collect; the father's heirs - if the house fell on him and his father - say: the son died first, and afterwards the father died - So that Reuven never inherited anything. As Reuven himself left no assets, his wife cannot collect her ketubah, nor can a creditor collect a debt owed to him;

The creditors say: the father died first, and afterwards the son died - so that on the father's death Reuven inherited him and has assets from which we may collect our debt. The School of Shammai says, Let them share - for where there is a doubt as to who owns a sum of money, the claimants share. The Gemara (Yev. 38b) explains that according to the School of Shammai, a deed which is due to be paid in the future is considered as if paid already, so that the creditors also have a presumptive title to assets like the heirs and therefore the creditors and heirs share, but the School of Hillel says: The assets remain in their presumptive ownership - The heirs have presumptive title to the assets because the heirs would certainly inherit from him. Whereas the creditors who wish to remove the assets from the heirs, must prove that the father died first, and as long as they have no proof they cannot collect from the assets of the inheritance.

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