Babylonian Talmud: Tractate Baba Bathra

Folio 153a

They understood him to mean [that] this decision¹  [applied only to the case of withdrawal in favour] of a stranger but not for himself. R. Hisda, [however]. said unto them: When R. Huna came from Kafri²  he explained it [to mean]. 'whether for himself or for others'.

There was a certain [man]³  from whom [symbolic] acquisition was taken, who came before R. Huna.⁴  [The latter] said, 'What can I do for you [in such a case] where you did not transfer possession as [other] people do?'⁵

There was a certain [deed of] a gift⁶  in which there was entered,⁷  'in life and in death'.⁸  Rab said: Behold it is [to be treated] like the [usual] gift of a dying man;⁹  and Samuel said: Behold it is [to be treated] like the gift of a man in good health.¹⁰  Rab said, 'Behold, it is like the gift of a dying man — since it contains the entry. 'in death', [the testator] meant [thereby] the donee [to acquire possession] after death, while the insertion,¹¹  'in life', was just for good luck;¹²  and Samuel said, 'Behold, it is like the gift of a man in good health' — since it contained the entry, 'in life', [the testator thereby] meant [to transfer possession] while he was alive, while his entry¹³  of, 'and in death', [is only] like one saying. 'from now and for evermore'.

The scholars of Nehardea stated: The law is in accordance with [the decision] of Rab.

Raba said: If, however, the deed contains the entry.¹⁴  'from life', [the donee] acquires [immediate] possession.¹⁵  Amemar said: The law is not according [to the view] of Raba. Said R. Ashi to Amemar: [Is not this] obvious, seeing that the scholars of Nehardea distinctly said [that] the law was in accordance with [the decision] of Rab! — It might have been assumed [that where the entry was]. 'from life', Rab agrees,¹⁶  hence it was necessary to teach us [otherwise].

There was a certain [person] who once came [with an enquiry]¹⁷  to Nehardea before R. Nahman, [but] he sent him to Shumtamya before R. Jeremiah b. Abba,¹⁸  declaring.¹⁹  'This is Samuel's province;²⁰  how could we act in accordance with [a decision] of Rab!'²¹

There was a certain [woman] who once came before Raba [to ask for his ruling].²²  [As] Raba gave his decision²³  in accordance with his traditional [teaching]²⁴  she worried him.²⁵  He [consequently]²⁶  said to R. Papa. the son of R. Hanan, his scribe: Go, write for her [a statement [ but add to it,'He may hire at their expense²⁷  or deceive them'.²⁸  She²⁹  called out, 'May your³⁰  ship sink! Are you trying to fool me?' Raba's clothes were soaked in water;³¹  and yet he did not escape the drowning.

MISHNAH. IF HE HAS NOT ENTERED IN IT³²  [THAT] HE WAS LYING SICK, [AND] HE [NOW] PLEADS, 'I WAS LYING SICK',³³  AND THEY PLEAD, 'YOU WERE IN GOOD HEALTH,³⁴  HE MUST PRODUCE EVIDENCE THAT HE WAS A DYING MAN;³⁵  [THESE ARE] THE WORDS OF R. MEIR. THE SAGES, HOWEVER, SAY: HE WHO CLAIMS FROM THE OTHER³⁶  MUST PRODUCE THE PROOF.

GEMARA. Once a [deed of a] gift contained the entry, 'As he was lying sick in his bed', but not,³⁷  'And as a result of his illness he departed from the world'.³⁸

1. Lit., 'these words'.
2. [A place in Babylonia, south of Sura. R. Hisda held a school there before his appointment as Head of the Academy at Sura.] Current texts read, 'Kufri', perhaps 'Cyprus'.
3. Who, while on his death-bed, had presented his estate to a stranger.
4. Desiring, on recovery, the return of his estate.
5. Lit., cause to acquire'. Had he presented his estate without allowing symbolic acquisition to take place be could retract on recovery. After symbolic acquisition one has no right to withdraw.
6. Of a dying man who presented all, or part of his estate, and 'symbolic acquisition' was entered on the deed.
7. Lit., 'written',
8. 'The gift is to belong to the donee',
9. Possession of which by the donee is not acquired until after the death of the testator who, if he recovers, may withdraw the gift.
10. Possession of which is acquired immediately, and no withdrawal is possible even if the gift consisted of the testator's entire estate.
11. Lit., 'and that that he wrote'.
12. Lit., 'a mere omen of life' (v. Rashb.)
13. V. p. 662, n, 12.
14. Lit., 'it is written therein'.
15. 'From life' (unlike, 'in life') is regarded as a definite indication that the testator desired to transfer possession while he was still alive, i.e., at once.
16. That, unlike 'in life', possession is acquired at once as if the gift had been made by a man in good health.
17. To ask For R. Nahman's ruling on the legality of withdrawing a gift in the deed of which was enacted 'in life and in death',
18. A disciple of Rab.
19. Lit., 'he said',
20. Samuel was the head of the College at Nehardea and a native of that town,
21. Though the Nehardean scholars themselves decided the law to be in accordance with Rab's view, R. Nahman did not consider it proper to give a ruling contrary to Samuel's view in the place where Samuel had enjoyed supremacy and preferred to send the case to a place under Rab's jurisdiction.
22. On a deed of a gift in which she wrote 'from life', and now wished to withdraw the gift.
23. Lit., 'did'.
24. Telling the woman that she was not entitled to withdraw the gift.
25. She demanded a written statement that (in accordance with the view of Rab) she was entitled to withdraw the gift.
26. To put an end to the disturbance she created.
27. Lit., 'upon them'.
28. This is an extract from a Mishnah (B.M. 75b), dealing with workmen who broke the arrangements entered into with their employers. 'Deceive them', was expressly to be inserted in order to indicate that the statement dictated by Raba was to be of no value whatsoever to the woman, its only object being to make her believe that it contained a decision in her favour and that, consequently, the disturbance she created might come to an end.
29. Perceiving the subterfuge.
30. Lit., 'his'.
31. To ward off thereby the imprecation. IF the curse was to be fulfilled the soaking of the clothes might form a substitute For the drowning of their wearer or of any of his possessions.
32. In the deed of a gift be made of his entire estate.
33. At the time the gift was made and, consequently, be claims his right to retract.
34. And that, consequently, he cannot retract.
35. When he made the gift. If no such proof is forthcoming, the donee is entitled to the gift.
36. The donee. The gift is regarded as being in the possession of its original owner until proof to the contrary is produced.
37. As was customary to enter in a deed of a gift that was written after the death of the testator, to indicate that the gift was made by a dying man and that, having died from that same illness, he did not retract.
38. Lit., 'to the house of his world', i.e., eternity.

Rabbah said: Behold, he is dead and his grave indeed proves this.¹  Abaye [however] said to him: [How] now! If [in the case of] a ship [that sank], where most of the passengers²  are doomed to perish, [we] apply to the victims³  the restrictions of living⁴  men and the restrictions of dead⁵  men, how much more [ought we to do] so⁶  [in the case of] sick men, of whom most do recover.

R. Huna, the son of R. Joshua. said: In accordance with whose [view] may that reported statement of Rabbah be justified?⁷  In accordance with [the view of] R. Nathan. For it was taught:⁸  Who takes away from whom?⁹  He¹⁰  takes away of their¹¹  possession without proof, but they [can] not take away of his possession except by [the production of] proof; these are the words of R. Jacob. R Nathan, [however]. said: If he¹⁰  was in good health,¹²  he must produce proof that [at the time the gift was made] he was lying sick;¹³  if he was lying sick,¹²  they¹¹  must produce proof that [at the time the gift was made], he was in good health.

R. Eleazar said: As regards [Levitical] uncleanness also [they¹⁴  differ in their views on the same principles]¹⁵  as in [this] dispute. For we learnt: A [walled] valley in the summer [is subject to the laws of] a private domain in respect of the Sabbath¹⁶  and [to those of] a public domain¹⁷  in respect of [Levitical] uncleanness.¹⁸  In the rainy season¹⁹  it is regarded as a private domain²⁰  in both respects.²¹

Raba said: This²²  has reference only²³  [to the case] where a winter has not passed over it,²⁴  but [where] a winter has passed over it, [it is regarded as] a private domain in all respects.²⁵

THE SAGES, HOWEVER, SAY: HE WHO CLAIMS FROM THE OTHER HAS TO PRODUCE THE PROOF.

1. Lit., 'upon him'. Since there is no evidence that the testator recovered from the illness during which be made the gift, the fact that be is dead is sufficient ground for the assumption that be died from that illness.
2. Lit., 'most of whom'.
3. Lit., 'upon them'.
4. If among the victims there was, for example, an Israelite who had married the daughter of a priest, it is assumed that he remained alive, and his wife is, consequently. forbidden to eat of the heave-offering. Had it been assumed that her husband was dead she, as the daughter of a priest, would have regained her right to eat of the heave-offering (cf. Git. 28b).
5. If a priest who had married the daughter of an Israelite (and who had, thereby. conferred upon her the right of eating of the heave-offering) was among the passengers, it is assumed that he is dead, and his wife is henceforth deprived of the privilege he had conferred upon her (cf. Git. ibid.).
6. To assume that the testator recovered from the illness during which be made the gift.
7. Lit., 'goes'.
8. In the case of a deed wherein the gift is recorded but in which there is no entry as to whether the donor was sick or in good health at the time the gift was made.
9. The donor From the donee or vice versa,
10. The donor.
11. The donees.
12. At the time the case is heard in court,
13. So that the gift was made by a dying man.
14. R. Jacob and R. Nathan.
15. Whether a decision is to be formed on the basis of the conditions in which a person or an object is found at the time the decision had to be given or on the basis of the condition in which be or it was presumed to be.
16. And nothing may be removed from the valley into a public domain and vice versa.
17. Since in the summer the crops have been removed from it, and the public use it as a thoroughfare.
18. Any doubtful case of uncleanness in a public domain, is treated as 'clean'.
19. When the valley is sown.
20. Because the public abstain from using it on account of its growing crops.
21. Lit., 'to here and to here'; as regards the Sabbath (v. supra p. 665, n. 15), and as regards 'doubtful Levitical uncleanness' which in a private domain is regarded as unclean. Consequently. if a person entered the valley and is not certain whether he entered it in summer or in winter he should, according to R. Nathan, be regarded as clean if his case was dealt with by the court in the summer, and as unclean if dealt with in the winter. According to R. Jacob, who does not take into consideration the time the decision is given, the person would always be regarded as clean whatever the season in which his case is dealt with (since a person is presumed to be usually clean), unless witnesses testified that they saw him enter the valley in winter.
22. That a walled valley in the summer season is subject to the laws of a public domain in respect of Levitical uncleanness.
23. Lit., 'they did not teach but',
24. Since the time when a wall was put round it.
25. Even in the summer season. Once it has acquired the status of a private domain it retains that status permanently.