Babylonian Talmud: Tractate Baba Bathra

Folio 138a

one refers to the case¹  where he protested²  and the outset;³  the other,¹  where he kept silent at first and then⁴  protested.⁵

R. Nahman b. Isaac said: [If a donor] transferred ownership to one through the medium of another and [the former] kept silent;⁶  and ultimately⁷  protested, we have arrived at a dispute⁸  between Rabban Simeon b. Gamaliel and the Rabbis. For it was taught: [If a person] had assigned to another, in writing, an estate of his, part of which consisted of slaves; and the latter⁹  said, 'I do not want them',¹⁰  they¹¹  may, [nevertheless], if their second master¹²  was a priest, eat of the heave-offering.¹³  Rabban Simeon b. Gamaliel said: As soon as the donee¹⁴  had said, 'I do not want them', the heirs [of the testator] become their legal owners.¹⁵  And [when] we were discussing the subject [the question was raised, would] the first Tanna [consider the assignee legal owner] even if he stands and protests? — Raba, and some say R. Johanan, said: [in the case] where he protested from the outset, all agree¹⁶  that he does not acquire ownership. [If he first] kept silent and finally he protested. all agree¹⁶  that he does acquire ownership.'They are in disagreement only [in the case] where the [testator] transferred ownership to the donee through a third party,¹⁷  and [he at first] kept silent and finally he protested. [In such a case], the first Tanna holds the opinion [that] since he kept silent [at first] he acquired ownership, and that [the reason] why he protests [now is because] he has simply changed his mind. Rabban Simeon b. Gamaliel, however, holds the opinion [that] his final [act] proves what [he had in his mind] at the beginning, and that [the reason] why he did not then¹⁸  protest [is] because he thought. 'Why should I cry before they come into my possession!

Our Rabbis taught:¹⁹  If a dying man²⁰  said, 'Give two hundred zuz to X, three hundred to Y, and four hundred to Z', it must not be assumed²¹  [that] whoever is [mentioned] in the deed first gains possession [first]. Hence, [if] a note of indebtedness was produced against him,²²  [the debt] is to be collected from all of them.²³  [If], however, he²²  said, 'Give two hundred zuz to X, and after him [three hundred zuz] to Y, and after him [four hundred zuz] to Z', the law is²⁴  [that] whoever is [mentioned] first in the deed acquires possession [first].²⁵  Hence, [if] a note of indebtedness was produced against him,²²  [the debt] is collected from the last [mentioned]. [If] he has not [enough], collection [of the balance] is made from the one [mentioned] before him. If the share of this one also does not suffice,²⁶  collection [of the remaining balance] is made from the one mentioned first.²⁷

Our Rabbis taught: If a dying man said,²⁸  'Give two hundred zuz to X [who is] my firstborn son, in accordance with his due', he receives these as well as²⁹  [the portion of] his birthright.³⁰  If, [however], he said, 'As his birthright'.³¹  he³²  is given the choice.³³  He may, if he wishes, receive these;³⁴  he may, if he prefers, receive the portion of his birthright. [If] a dying man said, 'Give two hundred zuz to X [who is] my wife, in accordance with her due', she receives these as well as³⁵  her kethubah. If, [however], he said 'as her kethubah'³⁶

1. Lit., 'here'.
2. Cf. n. 2, supra.
3. When the deed of assignment was offered to him. Hence the opinion of R. Johanan that ownership is not acquired.
4. Lit., 'at the end'.
5. His first silence is interpreted as consent to his acquisition of the ownership. Hence the opinion of Rab Judah that, though he protested later, ownership is acquired by him.
6. When the transfer took place.
7. When the deed of assignment was offered him.
8. As to whether ownership had been acquired by him who protested.
9. Lit., 'that one'.
10. He did not wish to have the responsibility of managing and maintaining slaves.
11. The slaves.
12. The donee who objects to have them.
13. Terumah (v. Glos.) The slaves, having become his property, are allowed to eat of the heave-offering as any other member of a priest's household; v. Lev. XXII, 11.
14. V, n. 1, supra.
15. Ker. 24b; Hul. 39b.
16. Lit., 'all the world do not dispute'.
17. Lit., 'through another'.
18. Lit., 'until now'.
19. Git. 50b.
20. Lit., 'a dying man who'.
21. Lit., 'we do not say'.
22. The testator.
23. All the three, being regarded as heirs who have acquired simultaneous right of possessions by his mere verbal instructions (supra 135b), must pay the debt in proportions equal to the shares they received.
24. Lit., 'we say'.
25. By definitely stating, after him he indicated the order of acquisition he desired.
26. Lit., 'he has not'.
27. Lit., 'from him who was before him'.
28. V. n. 4, supra.
29. Lit., 'and he receives'.
30. It is assumed that this was the wish of the deceased. Had he wanted him to receive the specified two hundred zuz only, he would not have added, 'in accordance with his due'.
31. I.e., that the two hundred zuz shall be given to his firstborn son as the portion of his birthright.
32. The firstborn.
33. Lit., 'his hand is upon the upper (part)', i.e., he has the advantage.
34. If the portion of his birthright is less than two hundred zuz.
35. Lit., 'and she receives'.
36. I.e., that the two hundred zuz shall be given to her in payment of her kethubah.

she is to have the choice.¹  She may, if she wishes, receive these, she may, if she prefers, receive her kethubah. [If] a dying man said, 'Give two hundred zuz to X [who is] my creditor, in accordance with his due', he²  receives these as well as his debt.'³  If, [however], he said, 'as his debt',⁴  he receives these in [payment of] his debt. Should he⁵  then, because he⁶  said, in accordance with his due', receive these and receive [also] his debt, when it is possible that he meant, 'in accordance with what is his due on account of the debt'? — R. Nahman replied: Huna has told me that this law represents the view of⁷  R. Akiba who draws inferences [from] superfluous expression[s]. For we learnt:⁸  [He⁹  sold] neither the cistern nor the cellar, even though he has included in the contract¹⁰  depth and height.¹¹  He¹²  must, however, buy for himself a passage [to these];¹³  these are the words of R. Akiba. But the Sages say: He¹²  need not buy for himself a passage. R. Akiba, however, admits that where he¹²  said to him, 'except these',¹⁴  he need not buy a passage for himself.¹⁵  From this it clearly follows [that] where [a person] mentioned [that] which was not necessary, his object was¹⁶  to add something; [so] here also, since he mentioned [that]¹⁷  which was not necessary, his object was to add something.¹⁸

Our Rabbis taught: If a dying man said, 'X owes me a maneh', the witnesses may write [it down].¹⁹  although they do not know [whether there is any truth in the statement].²⁰  Consequently, when [the debt] is collected, proof²¹  has to be brought;²²  these are the words of R. Meir. But the Sages say: [The witnesses must] not write unless they know [the statement to be true].²³  Consequently, when [the debt] is collected, there is no need for proof to be produced.²⁴  R. Nahman said: Huna told me [that] a tanna reported [the following]: R. Meir said, '[The witnesses] must not write', and the Sages say, 'They may write'; and even R. Meir said this²⁵  only on account of²⁶  a court [that might] err.²⁷

R. Dimi of Nehardea said: The law is[ that] there is no need to provide against²⁸  all erring court.²⁹  And why [is this case] different from [that] of Raba? For Raba said:³⁰  Halizah must not be arranged unless [the court] know [the widow and her brother-in-law], nor may a declaration of refusal³¹  be accepted unless [the court] know [the parties]. Consequently³²  [it is permissible for witnesses]³³  to write out a certificate of halizah³⁴  as well as a certificate of refusal³⁴  even though they do not know [the parties].³⁵  [Has not this precaution³⁶  been taken] in order to provide against an erring court!³⁷  No;³⁸  a court does not minutely examine [the decision of] another³⁹  court;⁴⁰  [that of]³⁹  witnesses, [however], it does minutely examine.⁴¹

MISHNAH. A FATHER⁴²  MAY PLUCK [THE FRIT] AND GIVE IT TO ANY ONE HE WISHES FOR CONSUMPTION; AND ANY PLUCKED [FRUIT] WHICH HE LEAVES [AFTER HIS DEATH] BELONGS TO [ALL] THE HEIRS.⁴³

GEMARA. PLUCKED [FRUIT] only belongs to all the heirs,⁴⁴  [but] not [fruit] that is still attached to the ground?⁴⁵

1. Cf. n. 3, supra.
2. The creditor.
3. V. p. 584, n. 13.
4. I.e., the two hundred zuz shall be given to the creditor in payment of his debt.
5. The creditor.
6. The testator.
7. Lit., 'who is this? It is, etc.'.
8. Supra 63b, and 64a.
9. Who sold a house.
10. Lit., 'he wrote for him'.
11. Of the house. A cistern and a cellar are not regarded as its indispensable parts.
12. The seller.
13. The sale of the house includes the area surrounding it. Hence, the seller, though retaining the ownership of the cistern and the cellar, has no claim upon the path that leads to them.
14. Cistern and cellar.
15. It was not necessary for the seller to specify, 'except these', if he wished to retain the cistern and the cellar only, since these are implicitly excluded from the sale. The addition of, 'except these', is, therefore, taken to imply the exclusion from the sale of the path that leads to them.
16. Lit., 'he comes'.
17. 'In accordance with his due'.
18. I.e., that the sum shall be in addition to his debt.
19. As a memorandum of what they heard.
20. V., R. Gersh. a.l. and cf. Rashb.
21. Of the defendant's liability.
22. By the heirs.
23. Because a memorandum signed by witnesses may sometimes lead a court to a wrong decision through the assumption that the witnesses had verified the statement.
24. The existence of a written document is sufficient evidence that the witnesses had satisfied themselves of the veracity of the statements it contains.
25. That the witnesses may not put the statements on record.
26. Not because that was the law.
27. V. n. 8, supra.
28. Lit., 'to fear', 'apprehend'.
29. Hence, witnesses may put on record the statements of a dying person (as R. Nahman above quoted in the name of the Rabbis), even though they had not satisfied themselves as to the veracity of the statements.
30. Jeb. 106a.
31. Heb. Mi'un, A minor who has been betrothed by her father may have the engagement annulled on declaring before a court that she refuses to live with the man.
32. Since no court would allow halizah, or a declaration of refusal, unless the parties were known to it.
33. Who were present during one or other of such ceremonies.
34. Which would enable the woman to re-marry.
35. Though they do not know, the court well knew.
36. That a court must not arrange a halizah or accept a declaration of refusal unless the parties concerned are known to it.
37. I.e., a second court that might be called upon to deal with the question of the remarriage of the parties, and that might wrongly assume that the previous court had satisfied itself as to their identity. Now, if here provision was made against an erring court, why is not such provision necessary in the case spoken of by R. Dimi?
38. The case of a court is not to be compared with that of witnesses.
39. Lit., 'after'.
40. Hence, no court must arrange halizah or annul a minor's betrothal unless the parties are known to it.
41. Hence, every document that would be brought before them, though attested by witnesses, would always be carefully scrutinised. Witnesses, therefore, nay put on record the statements of a dying man (as R. Dimi stated supra) even though they had not satisfied themselves as to whether the debt he mentioned was really due to him.
42. Who directed that after his death his estate shall be given to his son, so that the land itself is acquired by the son at once while the right of usufruct remains with the father.
43. And not only to that son to whom the estate had been assigned.
44. Lit., 'yes'.
45. Lit., 'joined'. Since our Mishnah stated that detached fruit belongs to all the heirs it seems to imply that fruit attached to the ground is regarded as the ground itself and belongs to the son to whom the estate was assigned.