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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 135



(a) When they asked that Shechiv-Mera (who had brothers but, as far as was known, no sons) about his wife, and he replied that she was fit to marry a Kohen Gadol - he meant that he had divorced her and she was allowed to marry whoever she wanted (though not a Kohen of course).

(b) We could not interpret his words to mean that he had sons, and believe him on the grounds of 'Ho'il' (that he could give his wife a Get) in which case she would indeed be permitted to marry at least a Kohen Hedyot - because he did not say that he did (to break the Chazakah that he didn't).

(c) Rabah wanted to rule there - like the outcome of the previous Sugya (permitting her from then on).

(d) Abaye queried this ruling however (in spite of the outcome of the previous Sugya, reconciling the two rulings of Rebbi Yochanan 'Ka'an Lemafre'a, *Ka'an Lehaba*') - because who's to say that in fact the two Amora'im don't actually argue over what Rebbi Yochanan said, and that, according to Rebbi Chiya bar Avin, Rebbi Yochanan does not even believe the husband from now on either.

2) Rava instructed Rav Nasan bar Ami, as a final ruling on this issue - to take into account Abaye's Kashya (and to consider her still married up until her husband's death).


(a) The snag that Abaye discovered in the case of the Shechiv-Mera who corroborated the existing Chazakah that he had no brothers, and whom Rav Yosef therefore wanted to permit to marry, was - in the form of witnesses who were out of town, but who purportedly knew otherwise, and who intended to come and testify accordingly.

(b) When Abaye queried his ruling on these grounds, Rav Yosef countered - that since the witnesses were not there, it was not necessary to contend with them.

(c) And he tried to prove his point from a ruling of Rebbi Chanina in Kesuvos (in the case of the daughters of Shmuel who admitted that they had been captured but claimed that they had not been raped by their captors), who ruled 'Eidim be'Tzad Estan ve'Te'aser' - permitting them to marry Kohanim, even though there were witnesses who purportedly knew that they had been (in which case they would be forbidden to marry Kohanim), since the witnesses were ('in the north', meaning that they were not available to give testimony.

(a) Once again, Rava instructed Rav Nasan bar Ami to take Abaye's ruling into account. This time, Abaye objected to *Rav Yosef*'s ruling on the grounds - that we cannot learn a lenient ruling from the case of a captive (because the basic ruling forbidding female captives to marry Kohanim is no more than a Chumra to start off with) on to our case, where the woman was married, and transgressing the Dinim of Yibum involved an Isur d'Oraysa.

(b) The basis for the leniency by a captive is - the ruling that we accept the testimony of one witness, and even a woman (whereas to allow a Yevamah le'Shuk would require two).

(a) We learned in our Mishnah, 'Zeh Achi, Eino Ne'eman'. The Tana cannot be speaking when the other brothers ...
1. ... concede that he is their brother - because then, why does the Tana continue 've'Yitol Imo be'Chelko' (with Reuven (the brother who claims that he is his brother)? Why not with all of them?
2. ... deny that he is their brother - because then, why does the Tana conclude 'Naflu Lo Nechasim mi'Makom Acher, Yirshu Echav Imo' (seeing as they deny being his brothers)?
(b) So the Tana must be speaking - when they claim that they do not know whether he is their brother or not (in which case, the onus lies on him to prove that he is).

(c) There is a Machlokes in Bava Kama regarding 'Manah Li be'Yadcha ve'ha'Lah Omer Eini Yode'a'. Rabah now attempts to prove from 'Zeh Achi' - that the one who claims 'Eini Yode'a' is Patur (that we do not say 'Bari ve'Shema, Bari Adif' [the one who us certain has the upper hand]), like Rav Nachman and Rebbi Yochanan.

(d) Abaye refutes that proof However. When he says 'Sha'ani Hacha, de'ke'Manah le'Acher be'Yadcha Dami', he means - that here, the brother himself is not sure that he is a brother, in which case it is like a case of 'Shema ve'Shema' (and even Rav Huna and Yehudah will agree that he is Patur).




(a) Rava asked 'Sh'vach she'Shavchu Me'eleihem Mahu'. By 'Sh'vach she'Shavchu Me'eleihem', he meant - improvements that did not effect any basic change to his inheritance (such as a tree that grew bigger or land that threw up silt, causing it to improve).

(b) His She'eilah was - whether, if this occurred in the Safek brother's domain, the brothers will receive a share in it at his death (because it is considered external gain), or only the brother who testified that he was a brother would take it (since in essence, it is the same tree or field that 'the brother' originally inherited).

(c) 'Sh'vach ha'Magi'a li'Kesafim' he added, is not a She'eilah. 'Sh'vach ha'Magi'a li'Kesafim' refers to - improvements that the Safek effected to the property, such as fruit that grew in the field as a result of the Safek's having plowed and planted them (see also Rabeinu Gershom).

(d) It is not a She'eilah - because, since it is not part of what he inherited, it is obviously considered 'property that fell to him from somewhere else', in which case, the brothers take a share (as we learned in our Mishnah).

(e) The outcome of the She'eilah is - Teiku ('Tishbi Yetaretz Kushyos ve'Ibayos').

(a) Our Mishnah rules that if a Shechiv-Mera dies and a Daytiki (the Sh'tar of a Matnas Shechiv-Mera) is found tied to his body, it is invalid - because, seeing as he said nothing, he clearly intended the recipient of the gift to acquire it by means of the Sh'tar, and a Sh'tar cannot acquire after the death of the donor.

(b) The Tana needs to add that the Daytiki was tied to his body, to dispense with the likelihood that the beneficiary placed it there in order to inherit the Shechiv-Mera's property (where it is obvious that he will not acquire it).

(c) The Mishnah say in a case where, before he died, the Shechiv-Mera specifically declares that he is leaving the contents of the Sh'tar to so-and-so - that the beneficiary then inherits the property (irrespective as to whether he is an heir or not), in accordance with the Takanas Chachamim.

(d) 'Daytiki' is the acronym of - 'Da Tehei le'Meikam ve'Lih'yos' (this is going to become valid - after the Shechiv-Mera's death).

(a) The basic difference that the Tana of the Beraisa presents to describe the difference between a Daytiki and a Matnas Bari is - that the former takes effect after the Shechiv-Mera's death, the latter, during his life-time.

(b) We ask why the Tana then presents a case of 'me'Hayom u'le'Achar Miysah' and not 'me'Achshav' (which is even a stronger Matanah), to which Abaye answers - because the Tana is comparing cases that are similar, and 'me'Hayom u'le'Achar Miysah' (which implies 'ha'Guf me'Hayom, u'Peiros le'Achar Miysah) is similar to a Matnas Shechiv-Mera, inasmuch as the beneficiary receives some of it only after the donor's death.

(c) A Matnas Bari that is meant to take place after death, but that does not contain one of these two clauses, is not valid - because any transaction that is predated can only come into effect, if the parties could have effected it at the time that it is supposed to come into effect (and dead men cannot effect Kinyanim).

(d) The advantage of a Matnas Bari that contains the clause 'me'Hayom u'le'Achar Miysah' over a Matnas Shechiv-Mera is - the fact that the donor cannot retract from the gift of the actual field as long as he lives (which a Shechiv-Mera can, as we shall see shortly).

(a) Sitting in the sun-porch of Bei Rav, Rabah bar Rav Huna in the name of Rebbi Yochanan ruled that if a Shechiv-Mera left instructions to document a gift and to give the gift to so-and-so, Beis-Din should not comply with his instructions - because he may have specifically meant the gift to place by means of the Sh'tar, and as we just learned 'Ein Sh'tar le'Achar Miysah'.

(b) It makes no difference whether he said 'Kisvu u'Tenu' or 'Tenu ve'Kisvu', unless he said 'Kisvu Af Tenu' (as we shall see later).

(a) According to one version, Rebbi Elazar upheld Rebbi Yochanan's ruling (instructing the Talmidim to take it seriously). According to Rav Shizbi however - it was Rebbi Elazar who issued the initial ruling, and Rebbi Yochanan who upheld it.

(b) Rav Nachman bar Yitzchak preferred Rav Shizbi's version - on logical grounds, because, whereas it would be necessary for Rebbi Yochanan to uphold a ruling of his Talmid, Rebbi Elazar, it would be unnecessary (even improper) for a Tamid to uphold the rulings of his Rebbe.

(c) In any event, Ravin, quoting Rebbi Avahu sent from Eretz Yisrael that *Rebbi Elazar* had sent this ruling to the Golah - in the name of Rav.

(d) When Rebbi Yochanan commented on Rebbi Elazar's ruling 'Tibadek' - he cannot have meant to argue with him (since as we just saw, he concurred with his Talmid's ruling). What he therefore meant was - that the case would always require examination, since sometimes, we do comply with the Shechiv-Mera's instructions, despite the fact that he mentioned a Sh'tar (as we shall now see).

(a) When Rav Dimi arrived from Eretz Yisrael, he taught two Halachos. When he said 'Dayteki Mevateles Daytiki', he meant - that if a Shechiv-Mera gives a Matnas Shechiv-Mera to two people, the second one acquires it.

(b) The reason for this is - because a Shechiv-Mera has the right to retract (as we will learn in 'Mi she'Meis').

(c) He will not however, be able to retract from the first gift - if he gave it to the beneficiary with a Kinyan.

(a) He also said that if a Shechiv-Mera who said 'Kisvu u'Tenu Manah li'Peloni', Beis-Din would follow his instructions - provided the Sh'tar is only meant to strengthen the beneficiary's position ('ki'Meyapeh es Kocho').

(b) And that is how Rebbi Aba bar Mamal interprets the inference from the (forthcoming) Beraisa too. The Tana there rules that if a *Bari* said 'Kisvu u'Tenu Manah li'Peloni' and died - Beis-Din do not comply with his instructions.

(c) To explain 'Meyapeh es Kocho', we cite Rav Chisda, who in a case where, although the Shechiv-Mera inserted Kinyan in the Daytiki, Rav Yehudah Amar Shmuel validated the gift, in the event that he died, established the case - where he specifically stated that the Kinyan was to be an addition to the gift ('ve'Kanina Mineih *Mosif* al Matnasa Da').

(d) And in similar vein, we will establish our case (of 'Meyapeh es Kocho' of Rebbi Yochanan and the Beraisa) when he said '*Af* K'suvu va'Chasumu, ve'Havu Leih'.

(a) Rav Yehudah Amar Shmuel's final ruling in this matter is - 'Halachah Kosvin ve'Nosnin (in the case of Meyapeh es Kocho, like Rebbi Yochanan).

(b) Rava Amar Rav Nachman - echoes Shmuel's ruling.

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