THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
Bava Basra, 133
1) HALACHAH: COLLECTING "MEZONOS" FROM PROPERTY THAT WAS GIVEN AWAY
QUESTION: The Gemara states that when Shechiv Mera distributes his estate to
several people, those people who are fit to inherit him receive their share
of the estate as an inheritance, while those people who are not fit to
inherit him receive their share as a gift. The Gemara inquires what is the
practical difference between receiving the property as an inheritance and
receiving it as a gift. The Gemara suggests that one difference is when the
widow of the benefactor comes to collect her Mezonos from the estate. The
Halachah is that a widow may collect her Mezonos only from portions of the
estate which were inherited by the heirs, for on those portions her Shi'abud
still exists. She may *not* collect her Mezonos from property that was sold
or given away. Thus, the widow may not collect her Mezonos from the property
that the recipients -- who are *not* fit to inherit the benefactor --
received as a gift, while she *may* collect from the property that the
recipients -- who *are* fit to inherit the benefactor -- received as an
2) WHO IS "MUCHZAK"
The Gemara refutes this difference based on the logic that if a widow may
collect her Mezonos from the property inherited by heirs even though that
property now belongs to them mid'Oraisa (since Yerushah is mid'Oraisa), then
certainly she should be able to collect her Mezonos from the property
received as a gift by others, since this gift is only mid'Rabanan. The gift
given by her husband was a Matnas Shechiv Mera, a gift given by a dying man
through making a verbal statement (and not through a written document). Such
a gift is binding only mid'Rabanan; the Chachamim instituted that a Shechiv
Mera may effect a Kinyan and transfer his property by simply requesting
verbally that the transfer take place (normally, such a request is not
binding). Since the gift given by the Shechiv Mera is binding only because
of a rabbinic enactment, certainly the widow should be able to collect her
Mezonos from that property!
May a widow collect her Mezonos from the recipient of a that was given by
her husband when he was healthy?
ANSWER: The Mishnah in Gitin (48b) states that a widow is entitled to
receive Mezonos from her deceased husband's estate. However, she may collect
her Mezonos only from property inherited by the heirs, but not property
which was sold to others (Nechasim Meshu'abadim). TOSFOS in Kesuvos (49b, DH
Hu) is in doubt whether the widow is restricted only from collecting
property that was *sold*, but she *may* collect property that her husband
had *given* away as a gift, or whether she also may not collect from
property given away as a gift. This doubt is based on the Gemara in Gitin
(50b) which states that some of the enactments that the Rabanan made in
order to protect a buyer (such as the enactment that a widow may not collect
her Mezonos from property that a buyer purchased from her husband) do not
apply to one who received a gift (since he has nothing to lose).
One of the proofs that Tosfos writes that a widow may *not* collect her
Mezonos from property that was given as a gift (even though the recipient of
the gift has nothing to lose) is from our Gemara. he has nothing to a
recipient of a gift. Our Gemara states that a widow may collect her Mezonos
from the recipient of the gift because the gift he received from the Shechiv
Mera was only a Kinyan mid'Rabanan. This implies that a widow may *not*
collect her Mezonos from the recipient of a normal gift (a gift given by a
"Bari," a healthy person) which is a Kinyan mid'Oraisa. This is also the
Halachah as recorded by the SHULCHAN ARUCH (EH 93:20). (Y. Marcus)
OPINIONS: The Gemara (132a-133a) discusses whether a woman foregoes her
rights to collect her Kesuvah from property owned by her husband when he
gives away all of his property as a gift to others and to his wife. The
Gemara says that in the case of a Shechiv Mera who gives away part of his
property to others and part to his wife, the wife's lack of protest shows
that she foregoes the Shi'abud on his property (see Insights to 132b). Rava
(on 132b) asks whether the same applies in the case of a "Bari," a healthy
person, who gives away all of his property to others, including to his wife.
In such a case, perhaps the woman does *not* intend to forego her right to
collect her Kesuvah, because she expects that he will acquire new property
from which she can collect, and the only reason why she was silent when he
gave away all of his property is because she did not want to upset him. The
Gemara leaves this question unresolved.
In such a case, what is the Halachah? It seems that the principle of
"ha'Motzi me'Chaveiro Alav ha'Ra'ayah" should apply. However, it is not
clear who is considered the "Motzi" and who is considered the one who is in
possession of the property ("Muchzak"). Perhaps the woman is considered to
be in possession of the property, since she has a Shi'abud on it. On the
other hand, perhaps the husband is considered to be the "Muchzak," and the
woman is the "Motzi," since he (or the recipients of the gift that he gave)
is in actual possession of the property.
(a) The RASHBAM (end of DH Amar Lei Rav Yeimar) comments that since the
Gemara does not resolve its question concerning whether or not a widow
foregoes her Shi'abud to her husband's property when he gives it away while
he is a "Bari," in practice she may *not* collect her Kesuvah because she is
considered to be the "Motzi."
(b) The KOVETZ SHI'URIM here refers to the TESHUVOS HA'RASHBA (6:5) who
disagrees with the Rashbam. The Rashba asserts that since the husband's
property was certainly Meshu'abad to the woman before the doubt about her
Mechilah arose, the woman is now considered to be the one who is "Muchzak."
The question is whether or not she relinquished her Shi'abud, and since that
question is unresolved, we assume that she still has the Shi'abud.
The Rashba understands that a Shi'abud on property is considered to be like
a partial Kinyan. Hence, if a doubt arises whether she lost that Shi'abud,
she is considered to be "Muchzak" and the other party must bring proof to
prevent her from collecting from that property.
The Rashbam, in contrast, views a Shi'abud to be merely a commitment granted
to the woman to allow her to collect her Kesuvah from that property; it does
not involve any actual Kinyan or partial Kinyan. Accordingly, the husband
(and his heirs) are considered to be "Muchzak" and the woman must bring
proof (that she did not forego the Shi'abud) in order to collect. (Y.