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Bava Basra, 137

BAVA BASRA 137 - sponsored by Dr. Eli Turkel, l'Iluy Nishmas his mother, Golda bas Chaim Yitzchak Ozer (Mrs. Gisela Turkel), whose Yahrzeit is 25 Av. Mrs. Turkel accepted Hashem's Gezeiros with love; may she be a Melitzas Yosher for her offspring and for all of Klal Yisrael.


QUESTION: The Gemara points out a contradiction in the opinion of Rebbi. In one Beraisa, Rebbi states that when a person (a Shechiv Mera) gives away his property to one person on condition that his property go to a second person after the first person's death, the first person *cannot* sell or consume the property. If he does sell the property, the second recipient may take it from the buyers. However, in a different Beraisa, Rebbi says that the first recipient *may* sell or consume the property!

The Gemara answers that in one Beraisa, Rebbi is discussing the Guf, the actual property itself, which the first recipient is not entitled to sell. In the other Beraisa, Rebbi is discussing the rights to eat the Peros, the produce of the property. The first recipient is entitled to sell his rights to eat the produce of the property.

If the second Beraisa is discussing the sale of the Peros, then what is Rebbi teaching us? It is obvious that the recipient of the Peros may sell his rights to eat the Peros, because he fully owns those rights and may do whatever he wants with them!

ANSWER: The RI MI'GASH answers that Rebbi is teaching that even though the Peros have not yet come into the world (and they are a "Davar she'Lo Ba la'Olam"), *and* the first recipient does not have actual ownership of the property (the Guf) itself, nevertheless his sale of the Peros is valid. This is because the Guf of the property is considered to be his *with regard to eating the Peros*; the Guf is Meshu'abad to him for its Peros, as long as he is alive. When he sells the Peros, he is selling the Shi'abud on the Guf of the property with regard to its Peros. (I. Alsheich)


QUESTIONS: Rava rules that when a person receives an Esrog as a gift on condition that he return it, that Esrog is considered to be his and he may fulfill the Mitzvah with that Esrog, long as he returns it later. This is because a "Matanah Al Menas l'Hachzir" is considered a valid gift. If, however, he does not return it, then he fails to fulfill the giver's condition and the gift is not a valid gift and the Esrog does not belong to him, and he cannot fulfill the Mitzvah with it.
(a) The Rishonim ask that regardless of whether or not the recipient gives back the Esrog, the Esrog should be his and he should be able to fulfill the Mitzvah with it. This is because the giver did not express the condition with the formula necessary for conditions. The Torah established that not all conditional statements are valid. The wording of the conditional statement must follow a specific formulation (Kidushin 61a). One requirement is that the condition be double-sided ("Tenai Kaful") -- both the positive and the negative sides of the condition must be explicitly stated. In addition, the positive side must precede the negative side. For example, "If you do such-and-such (e.g. return the Esrog to me), then the Kinyan will take effect; if you do not do it, then the Kinyan will not take effect." If the Tenai is not formulated properly, then the Tenai is disregarded and the action (the Kinyan) takes effect even if the parties do not fulfill the specified conditions.

In the case of Rava, the condition was not doubled; only the positive side was expressed, but not the negative side. Why then should the condition be binding?

(b) In addition, the case of Rava did not meet another requirement of a conditional statement. In order for a conditional statement to be binding, the condition and the action cannot affect the same object ("Tenai u'Ma'aseh b'Davar Echad;" see Gitin 75a). Here, the condition (that the Esrog be returned) and the Kinyan (that the Esrog will belong to the recipient) affect the same object (i.e. the Esrog)!

(a) There are two basic approaches in the Rishonim to answer this question.
1. TOSFOS (Sukah 41b, DH Heilach; see also MAHARSHA here), the RAMBAN, and the ROSH answer that in the case that Rava is discussing, the condition indeed *was* doubled. Rava is teaching a Halachah in the laws of gifts, and is not teaching how a condition must be formulated, and thus he did not bother to explain the entire phrasing necessary for the condition to be valid. (We find in many places that the Mishnah or Gemara expresses a conditional statement without writing it with its required formula, since, in those places, the Mishnah or Gemara is not teaching the formula of conditions, but rather it is teaching a different Halachah.)

2. The RASHBAM answers that Rava's case is a case of a monetary matter, and in monetary matters (as opposed to matters of Isur, such as Gitin and Kidushin) a "Tenai Kaful" is not necessary. As long as we know the intention of the giver, a single-sided condition suffices and the condition takes effect. (See also RAMBAM and RA'AVAD, Hilchos Zechiyah u'Matanah 3:8, and RIF cited by the RAMBAN in Gitin 76a.)

Other Rishonim question the Rashbam's answer. The source for the requirement of a "Tenai Kaful" for conditional statements is a case of a monetary matter! The format for conditional statements is learned from the condition that Moshe Rabeinu made with the men of the tribes of Gad and Reuven. They received portions in the land of Ever ha'Yarden on condition that they fight alongside the other tribes in the wars of conquest of Eretz Yisrael proper (Kidushin 61a). That certainly was a case of a monetary matter. How, then, can the Rashbam say that for monetary matters a "Tenai Kaful" is not necessary?

The RAMBAN explains that the Tana who requires a "Tenai Kaful" for a conditional statement is Rebbi Meir (Kidushin ibid.). Even though Rebbi Meir teaches this requirement with regard to monetary matters, we do not rule like Rebbi Meir because his is a minority opinion. The only reason why we require a "Tenai Kaful" in cases of Gitin and Kidushin is because of an added stringency due to the severity of those matters (as Gitin 75b).

(b) The Rishonim give a number of answers to this question as well.
1. TOSFOS and the RAMBAN answer that it is Rava who is discussing the case of the Esrog here in our Gemara. Rava, in Gitin (75a), seems to maintain that it is not necessary for the Tenai and the Kinyan to affect two separate objects. Rava does not hold of the requirement of "Tenai u'Ma'aseh b'Davar Echad." The Gemara in Gitin cites a Beraisa which says that when a man gives his wife a Get and says, "This is your Get, but the paper [on which it is written] remains mine," the Get is not valid. If he says, "This is your Get on condition that you return the paper to me," the Get is valid and she is divorced. The Gemara asks what is the difference between the first case and the second case. Rava answers that the reason she is divorced in the second case is because the action (the divorce) precedes the condition, and one requirement for a conditional statement is that the statement of the condition precede the statement of the action. Reversing the order invalidates the condition. Since the condition is invalidated, the action is takes effect without the condition.

Rav Ada bar Ahavah responds to Rava that even if the condition came first, the condition would still be invalid and the Get would take effect, because in that case the condition and the action involve the same object (the Get). The fact that Rava does not give that answer shows that he does not require the condition and the action to be on two separate objects.

2. Tosfos answers further and says that the Gemara that requires the condition and the action to be on two separate objects is discussing the view of Rebbi Meir. The Rabanan argue and maintain that the condition is still valid when the condition and the action involve the same object. Rava, here, is ruling in accordance with the view of the Rabanan.

3. Tosfos and the Ramban suggest another answer. They explain that the problem with a "Tenai u'Ma'aseh b'Davar Echad" is that condition must take effect before the action or Kinyan takes effect, such as in the case of a man who says, "This is your Get (the action) on condition that you return the paper to me (the condition)," where the Get does not take effect until after the condition is fulfilled (i.e. she returns the paper to him). At that point, though, the Get is no longer in her hands and it cannot take effect to divorce her! However, Rebbi (in Gitin 74a, Kidushin 60b) maintains that when a person uses the phrase, "Al Menas" ("on condition that...") in his Tenai, the person intends for the Kinyan to take effect retroactively, from this moment, upon the subsequent fulfillment of the condition. (This is in contrast to using the phrase, "Im" ("if"), in which case the Kinyan will take effect only at the time that the condition is fulfilled.) According to this opinion, when a person gives a Get and says "*Al Menas* that you return the paper to me," at the moment that the woman returns the Get, the Get takes effect retroactively from the time that it was handed to her, and therefore there is no problem of "Tenai u'Ma'aseh b'Davar Echad." Similarly, perhaps Rava (here and in Gitin) agrees with Rebbi that "Al Menas" is like "me'Achshav" and the Kinyan takes effect retroactively. Hence, when the recipient returns the Esrog, the Esrog becomes his retroactively from the time that he received it, and "Tenai u'Ma'aseh b'Davar Echad" is not a problem. (I. Alsheich)

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