Babylonian Talmud: Tractate Baba Bathra

Folio 136a

— As R. Hisda said:¹  [This is a case where the witnesses record,] 'And we have acquired [legal possession] of him,²  in addition to [the presentation of] this gift.³  [so] here also [the testator's motive may be known] when he declared, 'Also write, and sign, and deliver to him.'⁴

It was stated: Rab Judah said in the name of Samuel: The halachah is that [the deed of a gift] is written and delivered.⁵  And Raba in the name of R. Nahman said likewise: The halachah is that [the deed] is written and delivered.⁵

MISHNAH. IF A PERSON [DESIRES] TO GIVE HIS ESTATE IN WRITING TO HIS SONS,⁶  HE MUST WRITE, '[THIS ESTATE IS ASSIGNED]⁷  FROM THIS DAY AND⁸  AFTER [MY] DEATH';⁹  THESE ARE THE WORDS OF R. JUDAH. R. JOSE SAID: THIS¹⁰  IS NOT NECESSARY.¹¹  IF A PERSON ASSIGNED HIS ESTATE, IN WRITING, TO HIS SON¹²  [TO BE HIS]¹³  AFTER HIS¹⁴  DEATH, THE FATHER MAY NOT SELL [IT]¹⁵  BECAUSE IT IS ASSIGNED IN WRITING TO THE SON, AND THE SON MAY NOT SELL [IT] BECAUSE IT IS IN THE POSSESSION OF THE FATHER. IF THE FATHER SOLD [THE ESTATE]. THE SALE IS VALID UNTIL HIS DEATH.¹⁶  IF THE SON SOLD [IT], THE BUYER HAS NO CLAIM WHATSOEVER UPON IT UNTIL THE FATHER'S DEATH.

GEMARA. [Of] what [avail] is it that he wrote, 'FROM THIS DAY, AND AFTER [MY] DEATH'? Surely we learnt, [if one inserts in a divorce]. 'from this day, and after [my] death', the divorce is valid and invalid;¹⁷  and if he dies she is subject to the law of halizah¹⁸  but not to that of the levirate marriage!¹⁹  — There²⁰  it is doubtful whether it²¹  is a condition²²  or a retraction.²³  Here, however, [it is obvious that] he meant to say this to him.²⁴  'Acquire the land itself²⁵  today; the fruit after [my] death'.²⁶

R. JOSE SAID: THIS IS NOT NECESSARY. Rabbah b. Abbuha was indisposed [and] R. Huna and R. Nahman came in [to see him]. 'Ask him', said R. Huna to R. Nahman,²⁷  '[is] the halachah in accordance with [the view of] R. Jose or [is] the halachah not in accordance with [the view of] R. Jose?' — 'I do not [even] know R. Jose's reason, replied the other, '[shall] I ask him²⁸  [about] the halachah?' 'You inquire of him,' said [R. Huna] 'whether the halachah [is according to R. Jose] or not; and as to his reason I will tell you [it later].' [Thereupon, R. Nahman] inquired of [Rabbah], who replied to him, 'Thus said Rab: The halachah [is] in accordance with [the view of] R. Jose'. When²⁹  they came out, [R. Huna] said to him.³⁰  'This is R. Jose's reason: He is of the opinion that the date of the deed proves its import,'³¹  Thus it was also taught [elsewhere]: R. Jose said, 'This is not necessary, because the date of the deed proves its import.'

Raba inquired of R. Nahman: What [is the law] in [the case of a deed of transfer?³²  — He said to him: in [the case of] a deed of transfer this³³  is not required. R. Papi said: There are deeds of transfer where [this³³  is] required, and there are deeds of transfer where [this is] not required. [If the deed reads]. 'He conferred upon him³⁴  possession', [concluding with], 'and we³⁵  acquired it from him',³⁶  there is no need [for this].³⁷  [If, however, it reads], 'We acquired it from him' [concluding with], 'he gave him possession', this³⁸  is required.³⁹  R. Hanina of Sura demurred: Is there anything we do not know and the scribes would know?⁴⁰  The scribes of Abaye were asked and they knew;⁴¹  the scribes of Raba, and they knew.⁴¹

R. Huna the son of R. Joshua said, whether [the order was]. 'He conferred upon him possession … and we acquired it of him', or, 'We acquired it of him … and he conferred upon him possession the insertion of 'from this day] is not required;⁴²  and their dispute⁴³  [has reference only to the case] where [the deed reads], 'a memorandum of the transaction that took place in our presence'.⁴⁴

R. Kahana said: I mentioned the reported statements in the presence of R. Zebid of Nehardea, and he told me: You read thus,⁴⁵  [but] we have the following version: Raba said⁴⁶  in the name of R. Nahman, 'In [the case of] a deed of transfer this⁴⁷  is not required whether [the formula was], 'He conferred upon him possession … and we acquired it of him' or, 'We acquired it of him … and he gave him possession'; their dispute [has reference only to the case] where [the formula is], 'a memorandum of the transaction that took place in our presence'.

IF A PERSON ASSIGNED HIS ESTATE, IN WRITING TO HIS [TO BE HIS] AFTER HIS DEATH. It was stated: If the son sold [the estate]⁴⁸  during the lifetime of his father, and died while his father was still alive,

1. Infra 152b.
2. I.e., they had executed the legal formality of conveyance by means of a kinyan (v. Glos.) between the testator and the recipient.
3. V. infra 152b.
4. in which case the testator clearly indicated that the gift was independent of the written deed, the purpose of which was only to strengthen the beneficiary's claims.
5. After the testator's death; if it was ascertained (as R. Johanan stated, supra) that the purpose of the deed was to strengthen the beneficiary's claim.
6. I.e., a person in good health who desires, for example, to marry a second time, and wishes to protect the sons that were born from his first marriage from the possible seizure of his estate by his second wife, in payment of her kethubah.
7. I.e., the land itself.
8. The produce thereof also.
9. If, 'from this day', is not specified, the gift is invalid, since a person cannot give possession after his death.
10. The addition, 'from this day'.
11. The reason is given infra.
12. Inserting the formula, 'from this day and after my death'. The law that follows applies to a gift made to any other person.
13. The son's.
14. The testator's.
15. The land and its produce.
16. Lit., 'sold until he dies', Until then only, may the buyer have its usufruct.
17. Lit., 'a divorce and it is not a divorce'. It is not certain whether by the first part of the expression he meant the divorce to be effective at once, in which case it is valid; or whether by the second part of the expression he withdrew the first, and desired the divorce to become effective after his death, in which case (since one cannot divorce after death) it is invalid.
18. V. Glos. Since it is possible that the divorce was invalid and she is therefore the widow of a husband who died without issue.
19. Since it is also possible that the divorce was valid, and a divorced woman may not be married by the brother of her former husband. Similarly, in the case of the will, the same doubt exists, why, then was it said that possession was definitely acquired?
20. In the case of the divorce.
21. The addition, 'and after death'.
22. I.e., that when he dies the divorce shall be considered as having taken effect from now; and since the condition has been fulfilled, the divorce is valid.
23. Asserting that the divorce was not to take effect from that day onwards, as the first part of the expression implied, but only after his death; and since one cannot give a divorce after death, the document is invalid.
24. To the son.
25. Lit., 'the body', i.e., the principal. capital, actual estate.
26. In the case of a divorce, such a division in the meaning of the two parts of the expression is, of course, impossible.
27. [R. Nahman was Rabbah b. Abbuha's son-in-law.]
28. Rabbah.
29. Lit., 'after'.
30. R. Nahman.
31. That the presentation of the gift is to begin on that day (though the expression 'from that day' was not inserted). Had it been intended to postpone the presentation till after death, there would have been no point in recording the date of the deed.
32. [H] 'giving', or 'transferring possession' of the gift, i.e., when it is recorded in the deed that the legal formality of conveyance, the kinyan, had been executed as between the testator and the recipient, which virtually places the gift in the possession of the recipient. Does R. Judah in such a case also require the specific insertion, 'from this day'?
33. The insertion, 'from this day'?
34. The donee.
35. The witnesses.
36. From the testator, by symbolic acquisition.
37. For the insertion of 'from this day'. Since two distinct kinds of transfer of possession have been mentioned, [1] he conferred possession and [2] we acquired etc., the claim of the donee is thereby strengthened and he acquires ownership of the gift even though, 'from this day' has not been recorded.
38. The addition of 'from this day'.
39. Since the second part of the expression may be taken as an interpretation of the first. Thus: 'We acquired possession etc.' because 'he gave him possession'. Consequently, the two parts imply only one transfer of possession which, unless 'from this day' is inserted, cannot be effective or valid. (Rashb.)
40. If most scholars do not know the difference between the one and the other formula, would the scribes be able to tell what this one or the other implied?
41. The difference in the meaning and purport of the two formulae.
42. In agreement with R. Nahman.
43. Of R. Judah and R. Jose as to whether the insertion, 'from this day', is required.
44. I.e., when the deed is not one recording a transfer of possession through the witnesses; but a memorandum of the transactions at which the witnesses were present. R. Jose holding that even in such a case the date of the memorandum proves its import.
45. in the form of an enquiry: 'Raba inquired of R. Nahman' etc., supra.
46. I.e., a statement of fact, not an inquiry.
47. V. p. 575, n. 6.
48. Assigned to him by his father for possession after his death.

R. Johanan said: The buyer does not acquire ownership;¹  and Resh Lakish said: The buyer does acquire ownership.²  R. Johanan said [that] the buyer did not acquire ownership, [because] possession of usufruct is like the possession of the capital;³  and Resh Lakish said [that] the buyer did acquire ownership [because] possession of usufruct is not like the possession of the capital.⁴

But, surely, on this [principle]⁵  they have once disputed!⁶  For it was stated: If a person sells the usufruct of his field,⁷  R. Johanan said, [the buyer] must bring [the bikkurim]⁸  and recite [the declaration];⁹  and Resh Lakish said, he must bring but does not recite. R. Johanan said [that] he must bring and recite because he holds the opinion that possession of usufruct is like the possession of the capital.¹⁰  and Resh Lakish said [that] he must bring but not recite [because in his opinion] the possession of usufruct is not like the possession of the capital!⁶  — R. Johanan [can] answer you: Although possession of usufruct is, generally, like the possession of the capital [itself], it was necessary [to re-state the principle] here; since it might have been supposed [that] a father would renounce his claims in favour of his son;¹¹  so he taught us [that this is not so]. And R. Simeon b. Lakish [can] answer you: Although possession of usufruct is, generally, not like the possession of the capital [itself], it was necessary [to re-state the principle] here; since it might have been supposed [that] whenever [it is a matter] of self-interest a man considers himself first even where there is a son;¹²  so he taught us [that this is not so].

R. Johanan raised an objection against Resh Lakish: [If a person said]. 'I give my estate to you; and after you, X shall be [my] heir; and after X, Y shall be my heir', [when the] first dies, the second acquires the ownership; when the second dies the third acquires ownership. [If] the second dies in the lifetime of the first the estate reverts to the heirs of the first.¹³  Now, if it were [so],¹⁴  it should [revert] to the heirs of the [original] owner?¹⁵  — He replied to him: Rab. Hoshaia in Babylon¹⁶  has already explained this: It is different [when the expression], 'after you', [was used].¹⁷  Rabbah son of R. Huna pointed out the same incongruity in the presence of Rab, who [likewise] replied: It is different [when one used the expression] 'after you'.

But, surely, it was taught.¹⁸  [The estate] reverts to the heirs of the [original] owner!¹⁹

1. Even after the father's death, since the estate has never come into the possession of the son.
2. After the death of the father, as the representative of the son who, if alive, would have been entitled to the inheritance.
3. Since the usufruct was in the ownership of the father, the capital, i.e., the soil also is regarded as being in his possession, and the son, therefore, is not entitled to transfer it to a buyer.
4. The soil, therefore, was the undisputed property of the son who, consequently, was fully entitled to transfer it to a buyer.
5. Whether possession of usufruct is like the possession of the capital.
6. Why then dispute it again?
7. Lit., 'his field for fruit'.
8. First ripe fruit. V. Deut. XXVI, 2.
9. Ibid. 3-10.
10. Hence he may recite the declaration which contains the sentence, 'the land which thou hast given me'.
11. And that, consequently, the soil is the son's despite the usufruct of the father.
12. As the father retained for himself the usufruct so he also retained his rights in the soil.
13. V. supra 129b.
14. That possession of the usufruct is not like the possession of the capital itself.
15. Lit., 'giver'. Since the first recipient enjoyed only the usufruct, the capital must have remained in the possession of the original owner; and, consequently when the second dies, the estate should revert to the heirs of him to whom the soil belonged.
16. [A pupil of R. Johanan who hailed from Babylon, in contradistinction to R. Hoshaiah, the teacher of R. Johanan. Some MSS delete 'in Babylon' and may thus refer to the latter.]
17. By the use of 'after you', the owner has clearly intimated that the first, while alive, was to have possession of both capital and usufruct. Elsewhere, however, acquisition of usufruct alone is not the same as the acquisition of the capital itself.
18. Even in the case where 'after you' was used.
19. Which shows that even in such a case the possession of usufruct is not at all like the possession of the capital, how then can R. Johanan maintain the view, contradictory to the Baraitha, that possession of usufruct is always like the possession of the soil itself?