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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 136

BAVA BASRA 136 (25 Av)- dedicated by Mrs. G. Kornfeld for the second Yahrzeit of her mother, Mrs. Gisela Turkel (Golda bas Chaim Yitzchak Ozer), an exceptional woman with an iron will who loved and respected the study of Torah.



(a) Rebbi Yehudah requires a Bari who is writing out his property to his sons, to write in the Sh'tar 'me'Hayom u'le'Achar Miysah' - because otherwise, he will be giving it to them after his death, something which a Bari cannot do (as we have already learned).

(b) A person would want to write out his property (without the Peiros) to his sons in his lifetime - because he wants to marry another woman, without his sons losing out by his property becoming Meshubad to their stepmother.

(c) Rebbi Yossi rules - that he does not need to write in the Sh'tar 'me'Hayom u'le'Achar Miysah' (for reasons that will soon become clear).

(a) In a case where a father writes all his property to his son, our Mishnah rules ...
1. ... that the father is not permitted to sell the property completely, because it is sold to the son, and the son is not permitted to sell it completely (during the father's lifetime) because it belongs to the father.
2. ... in the event that the father did sell it - then it is sold until the time of his death (meaning that the sale of the Peiros is valid).
3. ... in the event that the son sold it - that it is sold from the time of the father's death (meaning that the 'Guf' is sold).
(b) The Din would exactly the same if the 'father' were to write the property (not to his son, but) - to someone else?

(c) We are speaking about either the father or the son, selling the entire property. It would be possible for the two of them to sell the entire property between them immediately - if the father were to sell the Peiros and the son, the Guf.

(d) In the above case if, after the father sold the Peiros, first the son, and then the father, died - the son's heirs would receive the Guf and the subsequent Peiros of their grandfather's property, since the his father acquired the Guf of the field from the moment that the father wrote it to him.

(a) The Mishnah in Gitin states that if someone who gives his wife a Get 'me'Hayom u'le'Achar Miysah' - she is a Safek Megureshes, because we are not sure whether he meant the Get to take effect in retrospect (immediately) in the event that he dies, or whether he changed his mind, and wants the Get to come into effect only after his death, which is not possible.

(b) We reconcile this with our Mishnah, which validates 'me'Hayom u'le'Achar Miysah', as we just learned - by differentiating between Isur (the Mishnah in Gitin) and Mamon (our Mishnah), where we can interpret his words to mean 'the Guf from today, and the Peiros from after his death' (which is not applicable in the case of a Get).

(a) When Rav Huna asked Rav Nachman to ask Rabah bar Avuhah whether the Halachah was like Rebbi Yossi in our Mishnah or not, he declined, on the grounds - that he did not even know Rebbi Yossi's reason, so what was the point of asking whether it was Halachah.

(b) They had both gone - to visit Rabah bar Avuhah, who was sick.

(c) Rav Huna instructed him to ask anyway, promising that *he* would supply the reason. Meanwhile, Rabah bar Avuhah citing Rav, answered - 'Halachah ke'Rebbi Yossi'.

(d) Rav Huna gave Rebbi Yossi's reason as - 'Z'mano shel Sh'tar Mochi'ach Alav' (the date on the Sh'tar is its valid date) Otherwise, he maintains, what is the purpose of the date (even if he only handed it over later).

(a) We reconcile the above ruling of Rav (like Rebbi Yossi) with his ruling in Gitin, where he requires the insertion of the date like Rebbi Yehudah - by confining that ruling to Gitin (where there is no Kinyan, and which us due to the Chumra of Arayos). We know that he did not simply retract there from his opinion here - because if he had, the Sugya would have said so.

(b) We can comment on the Ge'onim, who cite the Minhag in the Yeshivah like Rebbi Yehudah, even by Mamon - that strictly speaking, they too, rule like Rebbi Yossi, because otherwise they would not have used the Lashon 'Nahagu'.

(c) Rava asked Rav Nachman whether Rebbi Yehudah argues even in the case of a Sh'tar which contains a Kinyan. Rav Nachman replied - in the negative (because if there was a Kinyan, he would acquire the property from the time of the Kinyan in any case.

(d) This means that Rebbi Yehudah and Rebbi Yossi argue when there is no Kinyan, in which case one acquires the property - with the Sh'tar.

(a) Rav Papi disagrees with Rav Nachman however. He makes a distinction between 'Aknaya u'Kenina Mineih' and 'Kenina Mineih ve'Aknaya'. In a regular Sh'tar (with a Kinyan) - 'Aknaya appears at the beginning of the Sh'tar (to say that the owner was Makneh to the beneficiary via the witnesses with a Kinyan Sudar), and 'u'Kenina Mineih' appeared at the end.

(b) According to Rebbi Yehuda ...

1. ... 'Aknaya u'Kenina Mineih' does not require 'me'ha'Yom u'le'Achar Miysah' - because 'u'Kenina Mineih' at the end of the Sh'tar is a form of repetition, which serves to strengthen the rights of the beneficiary, dispensing with the need to write 'me'ha'Yom u'le'Achar Miysah'.
2. ... 'Kenina Mineih ve'Aknaya' still requires 'me'ha'Yom u'le'Achar Miysah' - because the inverted order of the phrases implies that the second phrase comes to explain the first and nothing more.
(c) Rav Chanina mi'Sura claimed that most Chachamim had never heard of this distinction, and he was surprised that the Sofrim had. What he meant was that 'Aknaya u'Kenina Mineih' is no better than 'Kenina Mineih ve'Aknaya' and that neither dispenses with the need for 'me'ha'Yom u'le'Achar Miysah'.

(d) When this was put to the Sofrim of Abaye and of Rava however, they replied - that they were fully aware of Rav Papi's distinction.

(a) According to Rav Huna B'rei de'Rav Yehoshua, there is no difference between 'Aknaya u'Kenina Mineih' and 'Kenina Mineih ve'Aknaya' - echoing the opinion of Rav Nachman.

(b) Rebbi Yehudah and Rebbi Yossi argue, he says, in a case of 'be'Duchran Pisgami de'Havi be'Anpana' - which means a Sh'tar that is meant as a record (one that does not contain a Kinyan at all, like that of Rav Nachman).

(c) When Rav Kahana cited this entire Sugya to Rav Z'vid, he replied that his version of Rava Amar Rav Nachman's statement concurred with Rav Huna B'rei de'Rav Yehoshua. His version of Rava's original statement was - that according to Rav Nachman, Rebbi Yehudah did not require 'me'ha'Yom u'le'Achar Miysah' whichever way the two Kinyanim were stated, and that Rebbi Yehudah only argued with Rebbi Yossi in the case of 'be'Duchran Pisgami de'Havi be'Anpana' (as we just explained).




(a) According to Rebbi Yochanan, if, after the son sold the property, he died, the purchaser will not receive it when the father dies - because he holds that whoever owns the Peiros is considered the owner ('Kinyan Peiros ke'Kinyan ha'Guf' Dami'). Consequently, the son's sale is invalid (since he died before ever receiving the property).

(b) This does not contradict what we explained in the Mishnah (that Rebbi Yochanan concedes that the son's heirs will inherit their grandfather's property, even if he died only after their father) - because, since there, the son did not withdraw from the property before his death, he inherits it even in the grave, as we have already learned, enabling his heirs to inherit it from him.

(c) We can infer from the Seifa of our Mishnah, 'Machar ha'Ben Ein le'Loke'ach ad she'Yamus ha'Av' - 'Ha' Meis ha'Av, Yesh Lo' (that should the father die, the purchaser does receive it).

(d) We will reconcile this ruling with that of Rebbi Yochanan - by restricting the Mishnah to where the son died after his father.

(a) Resh Lakish disagrees with Rebbi Yochanan. According to him, the Seifa of our Mishnah speaks - even where the son died *before* his father ...

(b) ... because he holds 'Kinyan Peiros La'av ke'Kinyan ha'Guf Dami' (the person who owns the Guf is considered the owner of the property, and not the owner of the Peiros).

(c) In another Machlokes, Rebbi Yochanan and Resh Lakish argue over whether someone who purchases a field for the Peiros reads the Parshah when bringing Bikurim or not - Rebbi Yochanan (based on his previous ruling 'Kinyan Peiros ke'Kinyan ha'Guf Dami') holds 'Meivi ve'Korei'; whereas Resh Lakish, who holds 'Kinyan Peiros La'av ke'Kinyan ha'Guf Dami', holds there 'Meivi ve'Eino Korei'.

(d) We learn from the Pasuk "Asher Tavi me'Artz'cha" - that even though he only owns the Peiros, he is obligated to bring Bikurim (see Tosfos DH 'Meivi').

(a) Having taught us in the case of Bikurim that 'Kinyan Peiros ...
1. ... ke'Kinyan ha'Guf Dami', Rebbi Yochanan nevertheless found it necessary to repeat this ruling with regard to our case (of 'Machar ha'Ben'), because we would otherwise have thought - that a father will automatically be Mochel his rights in the Guf (that he owns through his Kinyan Peiros) to his son.
2. ... La'av ke'Kinyan ha'Guf Dami', Resh Lakish found it necessary to repeat this with regard to our case, because we would otherwise have thought - that in our case, even he will agree that the Kinyan Peiros of the father is considered like the Kinyan ha'Guf, because a person is never Mochel his own needs (even for the benefit of his son).
(b) We could have switched the 'Tz'richusa' on to the other foot, and explained that ...
1. ... had Rebbi Yochanan learned his Din in our case, we would have thought that really he holds 'Kinyan Peiros La'av ke'Kinyan ha'Guf Dami', only here he doesn't, because a person is never Mochel his own needs (even for the benefit of his son)
2. ... had Resh Lakish learned his Din in our case, we would have thought that really he holds 'Kinyan Peiros ke'Kinyan ha'Guf Dami', only here he doesn't, because a father will automatically be Mochel his rights in the Guf (that he owns through his Kinyan Peiros) to his son.
(a) In a case where Reuven is Makneh property to Shimon (to acquire after his death), but stipulates 've'Acharecha li'Peloni, ve'Acharav Yirash P'loni', in the event that ...
1. ... Shimon dies, the Beraisa (which we already cited earlier) rules - 'Kanah Sheini'.
2. ... the second one (Acharecha) dies - 'Kanah Shelishi' (Acharav).
3. ... the second one dies in Shimon's lifetime - 'Yachzeru Nechasim le'Yorshei Rishon'. The third one does not inherit it - because he was only supposed to receive it from the second one.
(b) Rebbi Yochanan asks from here - that seeing as Shimon only received the Peiros, according to Resh Lakish, the property ought to revert to Reuven's heirs (rather than to Shimon's?

(c) Resh Lakish reminds Rebbi Yochanan however, that Rav Hoshaya (as well as Rav), have already answered the Kashya for him. When Rav Hoshaya said 'Acharecha Sha'ani', he meant - that the Lashon 'Acharecha li'Peloni' insinuates that he is giving each one the Guf as well as the Peiros.

(a) The Beraisa, which specifically states 'Yachzeru le'Yorshei Nosen' - is then a counter Kashya on Rebbi Yochanan (since, according to him, the property really ought to go to the Yorshei Rishon (like we saw in the previous Beraisa)?

(b) Basically, we answer the Kashya - by establishing a Machlokes Tana'im (and this latter Beraisa, holds 'Kinyan Peiros La'av ke'Kinyan ha'Guf' Dami), whereas the previous Beraisa holds 'ke'Kinyan ha'Guf Dami'. And to that end we will now cite a Beraisa.

(c) We refute the text which reads 'Ela Acharecha Nami Tana'i Hi' - because that would imply that our previous answer on Resh Lakish was wrong, and that the Machlokes Tana'im is a new approach to answer the S'tirah in *his* words, and that is simply incorrect, as we shall now see.

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