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Bava Basra, 153

BAVA BASRA 153 (12 Elul) - sponsored with warm Mazel Tov blessings on the occasion of the wedding of Avi and Estie Turkel. May they merit to build together a Bayis Ne'eman b'Yisrael that will be a pride to their dear parents and to all of Klal Yisrael!


QUESTION: The Gemara relates an incident in which a woman approached Rava with a question. The woman, while she was a Shechiv Mera, gave her property away as a gift to someone by writing in a Shtar that she was giving her property "from life and in death." She then recovered from her illness and wanted to retract the gift. Rava, consistent with his opinion in such a case, ruled that the gift is considered to have been like a normal gift of a healthy person and it took effect already while the woman was still a Shechiv Mera, because she wrote "from life" in the Shtar, and thus the woman may not retract the gift. The woman harassed him about his ruling. In order to get her to stop harassing him, Rava told his scribe to write a Shtar for her declaring that she was entitled to retract her gift, but he instructed the scribe to add in the Shtar words from a Mishnah in Bava Metzia (75b) that would make it clear to any knowledgeable person who might read the Shtar that the Shtar was written only to get rid of the bothersome woman. The woman understood his intentions and cursed him that his boat should drown. The students of Rava soaked his clothes in water in order to cause the curse to be fulfilled in a harmless way. Nevertheless, the Gemara relates, Rava's boat still sank at sea.

If Rava was justified in ruling the way that he did, then why did the woman's curse take effect?


(a) The NIMUKEI YOSEF and RITVA explain that there indeed was something that Rava did wrong that allowed the curse to take effect. Rava's opinion in this matter (a Shtar of a gift of a Shechiv Mera in which the words "from life and in death" are written) was a minority opinion that was not accepted as the Halachah (as the Gemara earlier says clearly). Rava, therefore, should not have ruled in accordance with his own opinion when that opinion was overruled. As a result of ruling incorrectly, the principle that "an unintentional mistake in one's learning is equivalent to an intentional transgression" -- "Shigegas Talmud Olah Zadon" (Bava Metzia 33b) applied. Even though it was a mistake on the part of Rava, it sufficed to allow the woman's curse to take effect.

We find a similar concept in the Gemara in Makos (11a). The Gemara says that the mother of the Kohen Gadol would supply food to those who had fled to the cities of refuge (Arei Miklat) because they had killed accidentally. The Gemara explains that this was in order to persuade them not to curse her son for not praying well enough to prevent their accidental killing. It is apparent from there that even for such a small complaint, their curses would have taken effect. We also find this concept in Bava Metzia (75b), where the Gemara says that someone who lends money without witnesses causes a curse to fall upon himself. RASHI there explains that when he makes his claim in court, everyone will curse him that he caused a man to sin by giving him room to deny his claim (by not having witnesses). The lender is certainly not a thief -- on the contrary, he is a generous man who did a favor by lending money and he is now merely trying to get his own money back! Nevertheless, the curse can be effective because there is reason (even though the reason is minimal) for it to take effect.

(b) We may suggest another answer. The Gemara in Gitin (35a) relates that Rava bar Rav Huna had a similar encounter with an angry woman, and there, too, her curse was effective. RAV CHAIM KANIEVSKY shlit'a was asked (by the author of L'RE'ACHA KAMOCHA) why her curse was effective when everything was done according to the dictates of Halachah. Rav Chaim answered that because Rava bar Rav Huna kept telling her the reason for why her claim was invalid, he caused her pain, and thus there were grounds for her curse to take effect. Based on that explanation, we may suggest that here, too, Rava instructed his scribe to write the additional words from the Mishnah in Bava Metzia in her Shtar in the presence of the woman, not realizing that she would figure out that he was trying to trick her. Instead of instructing his scribe to do this in private, he instructed the scribe in her presence, and this caused her pain. Consequently, her curse was able to take effect. (Y. Montrose)

This also seems to be the approach of the ME'IRI here, who writes that we know that "Leitzanus," or mockery, "is a most detestable trait. How much more so must the judges and the leaders be careful to avoid Leitzanus, as they are punished even more for it, as we find in the incident [recorded in our Gemara]." Even though Rava's intention was to protect himself from the harassment of the woman, his role as an authority demanded that he be extra careful about demonstrating any form of mockery or derision. Writing a Shtar to fool the woman was a slightly derisive act, and because of his great stature Rava was held accountable for it and he was vulnerable to the effects of the woman's curse.


OPINIONS: The Gemara discusses a case in which a Shtar Matanah (deed of a gift) given by a Shechiv Mera mentioned that the benefactor wrote the Shtar while he was bedridden with illness, but did not specify whether or not the benefactor died as a result of his illness. The heirs of the benefactor claimed that he had recovered from that illness and then later died from a different illness, and thus the gift should be annulled, as in the case of any Shechiv Mera who recovers. Rabah ruled that since the benefactor was dead at the time that the question arose, we assume that he died as a result of that illness and thus the gift is upheld and the recipient receives the property. Abaye argued that we must assume, to the contrary, that the benefactor survived his illness and recovered, and the gift should be invalid. Abaye proves his view from the case of a boat that sank at sea and we are not sure whether or not the passengers died. The law is that, out of doubt, we give them the stringencies of the living and the stringencies of the dead (for example, if the daughter of a Kohen was married to a Yisrael, and thus was not permitted to eat Terumah in her father's home, we are stringent and forbid her from eating Terumah (out of doubt that perhaps her husband is still alive). If the daughter of a Yisrael was married to a Kohen, and thus she was permitted to eat Terumah, we are stringent and forbid her from eating Terumah (out of doubt that perhaps her husband is dead)). If, in the case of a boat that sinks, where most passengers of boats that sink do not survive, we still give them the stringencies of the living, then certainly in the case of a sick person we should assume that the sick person recovered from his illness (and died later from another cause), since most sick people survive their illness!

The Gemara does not give an answer for Abaye's question. Why did Rabah not agree with Abaye?

(a) The RAMBAN and ROSH explain that Rabah understood that there is a major difference between the two cases. In the case of the sinking boat, we will never know the fate of the people on the boat. We must therefore rule stringently in all matters with regard to them. In contrast, in the case of our Gemara, we know the benefactor is dead. Hence, we can associate his death with the illness that he had at the time that he gave the gift.

(b) The SHITAH MEKUBETZES argues with the Ramban and Rosh and says that it is very difficult to suggest that this was the reason why Rabah did not accept Abaye's reasoning. Rabah clearly stated his reasoning that "his grave proves his status (that he died as a result of his illness)." Certainly Abaye was aware of Rabah's reasoning for the difference between the case of the boat that sinks and the benefactor who is dead, and yet Abaye still proceeded to challenge it. There must be a different underlying dispute between Rabah and Abaye.

The Shitah Mekubetzes explains, therefore, that Abaye was saying that the only time we take the present situation into account in order to determine what occurred in the past is when we have an additional reason to do so. For example, when a person who was Tamei immersed himself in a Mikvah, and afterwards the Mikvah was measured and found to lack the appropriate amount of water necessary to be a valid Mikvah, we rule that the person who immersed there remains Tamei. This ruling is not merely because we measured the Mikvah and found it to be lacking, but because we also say that "someone whose status was Tamei remains so (until we know for certain that his status changed)." Therefore, Abaye assumed that Rabah was saying that we take the present situation (i.e. the fact that the benefactor is dead) into account to determine what happened in the past only because Rabah had another reason to say so. This additional reason could only be that the benefactor's illness showed that he was about to die. His grave illness of the past, combined with the fact that he is dead now, tells us that he died from that illness. In response, Abaye brought proof from the case of a boat that sinks that the man's illness *cannot* serve as a reason to assume that he died from his illness; if we assume (l'Hachmir) that that passengers of a sinking boat survived, then certainly we must assume that a sick person survived and recovered from his illness! Left with only one reason (i.e. that the man is now dead) to assume that the benefactor died from his illness, Rabah should no longer be able to claim that we look at the present status in order to resolve the Safek of the past. (Y. Montrose)

OPINIONS: The Gemara presents a Machlokes between Rebbi Nasan and Rebbi Yakov regarding whether a healthy person who gave a gift is believed to claim that he was a Shechiv Mera at the time that he gave the gift. The specific case in question is when the Shtar Matanah, the deed of gift, does not contain any information about his health at the time of the gift. Rebbi Yakov says that claiming that he was a Shechiv Mera is a valid claim and he may retract the gift, and the recipient of the gift must bring proof that the benefactor was healthy in order to receive the gift. Rebbi Nasan maintains that we determine the status of the benefactor at the time that he gave the gift based on his present status. If, right now, the benefactor is healthy, then we assume that he was healthy at the time of the gift, and thus the recipient prevails, and the benefactor must bring proof that he was a Shechiv Mera in order to retract the gift. If, right now, the benefactor is ill, then the burden of proof rests upon the recipient. The same Machlokes applies in a case in which the benefactor died, and his heirs claim that he did *not* die from the same illness from which he suffered at the time that he gave the gift (but rather he recovered from that illness, rendering the gift invalid). Whose opinion does the Halachah follow?

(a) The RASHBAM quotes the Gemara in Bava Metzia (117b) that states that the Halachah normally follows the opinion of Rebbi Nasan because he was a judge who "delved into the depths of the law." Since we rule like Rebbi Nasan that the status of the benefactor at the time of the gift follows his present status, we also rule like Rabah, who follows the opinion of Rebbi Nasan, as the Gemara points out. Rabah ruled that when a Shechiv wrote a gift but it is not clear from the Shtar whether or not he died from his illness, if he is now dead then we assume that he died from his illness (and not from a different, later illness) and the gift is valid. (TOSFOS, however, says that Rebbi Nasan would not necessarily agree that we follow the present state of the person in Rabah's case. Perhaps Rebbi Nasan only follows the present status of the person when he is alive and well, because everyone who is alive has a Chazakah that he is healthy. When the person is dead, though, we do not assume that he died from the illness that he had when he wrote the Shtar and that he never recovered.)

(b) The RIF and other Rishonim rule like Rebbi Yakov. The Gemara later (154a) cites Amora'im who equate Rebbi Nasan's opinion with that of Rebbi Meir (of our Mishnah), and Rabbi Yakov's opinion with that of the Chachamim. Since the Halachah follows the view of the Chachamim, it does not follow the view of Rebbi Nasan. (The Rashbam, on the other hand, rules like the other Amora'im there, who explain that both Rebbi Meir and the Chachamim in our Mishnah agree with Rebbi Nasan.)

The ROSH comments that Rabah himself there says explains that Rebbi Nasan does not agree with the Chachamim of our Mishnah, which indicates that he seems to have retracted from following the view of Rebbi Nasan.

The RASHBA, however, has the Girsa of "Rava" there, and not "Rabah." According to that Girsa, Rabah himself did not retract his opinion. The Rashba rules, however, like Rava (that the Halachah follows the Chachamim and not Rebbi Nasan), since he was the later Amora.

HALACHAH: The SHULCHAN ARUCH (CM 251:2) rules like the Rif and Rosh. The REMA quotes the NIMUKEI YOSEF who says that we may rely on testimony from those who took care of the deceased man to determine whether or not he died from that illness. The Nimukei Yosef adds (from the RITVA, who says that this is also the view of the RAMBAN) that it is not necessary for the witnesses to have actually stayed with the person at all times to see that he died from that illness. The witnesses' testimony is valid even if they say that they merely asked the family members and servants about his condition. If the response they received was that he was getting worse and then he subsequently died, such testimony is sufficient to ascertain that he died from that illness. (Y. Montrose)
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