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Kollel Iyun Hadaf, Jerusalem

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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.



(a) With regard to the Beraisa that we just cited Rebbi rules that in the case of Nechasai Lach, ve'Acharecha li'Peloni, ve'Yarad Rishon u'Machar ve'Achal, ha'Sheini Motzi mi'Yad ha'Lekuchos' - because he holds that the Kinyan Peiros of Rishon is not considered a Kinyan ha'Guf, in which case, his sale is not a sale.

(b) Raban Shimon ben Gamliel rules 'Ein le'Sheini Ela Mah she'Shiyer Rishon', because the Kinyan Peiros of the first one is considered like a Kinyan ha'Guf.

(c) According to Resh Lakish, both Tana'im hold 'Kinyan Peiros La'av ke'Kinyan ha'Guf Dami', and Raban Shimon ben Gamliel's reason is because he considers 'Acharecha' a Kinyan ha'Guf.

(d) This explanation will help us resolve what would otherwise be a contradiction in Halachos - inasmuch as on the one hand, this is one of the rare cases where we rule like Resh Lakish against Rebbi Yochanan, and on the other, we rule like Raban Shimon ben Gamliel (as Rebbi Yochanan will teach us later [a ruling with which Resh Lakish will not dispute]).

(a) In another Beraisa, Rebbi authorises Rishon (the first one), to sell. Raban Shimon ben Gamliel rules - 'Ein le'Sheini Ela Mah she'Shiyer Rishon'.

(b) The problem with this Beraisa is - that Rebbi and Raban Shimon ben Gamliel seem to have switched their opinions.

(c) We resolve the S'tirah in Rebbi by establishing the first Beraisa when Rishon sold the Guf, and the second, when he only sold the Peiros (to which he is entitled), and the S'tirah in Raban Shimon ben Gamliel - by establishing the first Beraisa Bedieved (meaning that Rishon's sale is valid), and the second Beraisa Lechatchilah.

(d) Despite the fact that Raban Shimon ben Gamliel holds 'Kinyan Peiros ke'Kinyan ha'Guf (or that 'Acharecha' indicates that it is a Kinyan ha'Guf to begin with), Rishon is not permitted to sell the property Lechatchilah - in order to comply with the wishes of the deceased.

(a) Abaye called a 'Rasha Arum' - someone who advises the first beneficiary to sell the property (like Raban Shimon ben Gamliel).

(b) 'Arum' means - someone whose advice was successful.

(c) He said this about the advisor - who is intruding in a matter that does not concern him, and not about the seller himself - who is acting within his legal rights.

(a) After ruling like Raban Shimon ben Gamliel, Rebbi Yochanan adds 'u'Modeh she'Im Nasnan be'Matnas Shechiv-Mera, Lo Asah K'lum'. It is Rishon who gave the gift in the form of a Matnas Shechiv-Mera.

(b) By 'Matnas Shechiv-Mera', Abaye means either literally or a Matnas Bari 'me'ha'Yom u'le'Achar Miysah' (which is compared to a Matnas Shechiv-Mera, as we learned earlier).

(c) Abaye's reason for Rebbi Yochanan's statement is - because a Matnas Shechiv-Mera only takes effect after the Shechiv-Mera's death, at which point Acharecha has already acquired it (since 'Acharecha' implies the moment that Rishon has no more need for the property).

(a) According to Abaye, a beneficiary acquires a Matnas Shechiv-Mera at the point of the Shechiv-Mera's death. Rava maintains - that he acquires it only after his death.

(b) According to Abaye in the previous case, Acharecha ought to share the property with Rishon's beneficiary.

(c) To reconcile Abaye's latter ruling with his interpretation of Rebbi Yochanan, we are forced to say that he retracted from it (and conceded that Rava was right).

(a) The Mishnah says in Gitin 'Zeh Gitech Im Meisi, Zeh Gitech me'Choli Zeh, Zeh Gitech le'Achar Miysah - Lo Amar K'lum'.

(b) We prove from there that Abaye must have retracted from his latter ruling and not from the former one - because his earlier ruling conforms with the Tana, who declares all these cases effective only after the Shechiv-Mera's death (like Rava) and not at the point of death (like Abaye's second ruling).

(c) Rebbi Zeira Amar Rebbi Yochanan needs to rule like Raban Shimon ben Gamliel in a case where the gift includes Avadim Cana'anim, whom Rishon subsequently sets free - because we might otherwise have thought that the donor did not give him a gift for him to commit the sin of setting free an Eved (in which case, the Shichrur ought to be invalid, and the Eved goes to Acharecha after Rishon's death).

(d) And Rav Yosef Amar Rebbi Yochanan needs to rule like Raban Shimon ben Gamliel, even if Rishon designated part of the property as shrouds for a dead person - because we might otherwise have thought that the donor did not give him a gift for him to squander in this fashion (and that there too, his designation should be invalid ... ).

(a) Rav Nachman bar Rav Chisda connects the case of 'Esrog Zeh Nasun Lecha be'Matanah ve'Acharecha li'Peloni, Natlo Rishon ve'Yatza Bo' with the current Machlokes Tana'im. According to ...
1. ... Rebbi, Rishon *is not Yotze* the Mitzvah of Esrog - because all he has in the Esrog is a Kinyan Peiros (since he is not permitted to sell it), and it is not called 'Lachem'.
2. ... Raban Shimon ben Gamliel, he *is* - because he has the right to eat the Esrog or to sell it, if he wants.
(b) Rav Nachman bar Yitzchak objects to Rav Nachman bar Rav Chisda's interpretation on the grounds that - even according to Rebbi, despite the fact that Rishon only has a Kinyan Peiros, it is still considered "Lachem", seeing as the owner gave him the Esrog for that specific purpose exclusively (without retaining any of it for himself).

(c) Rebbi and Raban Shimon ben Gamliel do however, argue - in a case where Rishon sold the Esrog or he ate it. According to Raban Shimon ben Gamliel, the sale is valid and Rishon is Patur from paying; whereas according to Rebbi the sale is invalid and Rishon is liable to pay (neither will he have been Yotze the Mitzvah of Esrog before having dispensed with it.

(d) Even though we already know this Machlokes from the Beraisa with regard to Karka, we need to be taught it again in respect of an Esrog - because we might otherwise have thought that since the does not produce Peiros, Rebbi will agree that the owner must have given it to Rishon to eat or sell. The reason we do not say that is because being Yotze itself the Mitzvah actually constitutes Peiros.




(a) Rabah bar Rav Huna discusses a case of brothers who purchased an Esrog from Tefusas ha'Bayis to use on Sukos. 'Tefusas ha'Bayis' is - joint property that the deceaced leaves his heirs, before it has been distributed.

(b) They will be able to fulfil the Mitzvah with that Esrog - only if each brother would be able to eat it, and there remained an Esrog for each one (that they could potentially use [see also Rabeinu Gershom]).

(c) This case is worse than the previous one, where Rishon fulfilled the Mitzvah even though he was not permitted to eat the Esrog according to Rebbi - because whereas in the previous case, the Esrog belonged to Rishon exclusively, in this case, the brothers are joint owners, in which case the Esrog is not 'Lachem' (i.e. it does not belong exclusively to the one who is performing the Mitzvah with it).

(d) In spite of Rabah bar Rav Huna's ruling, we permit the use of a communal Esrog, whereby each member of the community in turn, uses the Esrog - because it is agreed (even though it remains unspoken) that when a person uses the Esrog, it is his (in the form of a Matanah al-M'nas le'Hachzir, which will be discussed shortly) exclusively.

(a) Had the Torah written "u'Lekachtem ba'Yom ha'Rishon *P'ri Eitz Hadarchem*", we would have permitted a jointly-owned Esrog (or Lulav ... ), like a jointly-owned garment is Chayav Tzitzis (from "al Kanfei Bigdeichem") and jointly-owned dough is Chayav Chalah (from "Arisoseicham") - but "u'Lekachtem *Lachem*" comes to preclude joint ownership.

(b) Rava rules that if Reuven receives an Esrog as a 'Matanah al-M'nas le'Hachzir', to use on Sukos, and fails to return it, he has not fulfilled the Mitzvah. A 'Matanah al-M'nas le'Hachzir' is - a gift that belongs to the recipient temporarily, on condition that he then returns it.

(c) The reason for Rava's ruling is - since the condition was not fulfilled, it negates the gift retroactively, in which case, the Esrog was not 'Lachem'.

(d) He is coming to teach us - that 'Matanah al-M'nas le'Hachzir' is a valid Matanah.

(a) Based on the opinion of Rebbi Meir in Kidushin - Shmuel (in Gitin) instituted a T'nai Kaful (a double condition) in the wording of the Get of a Shechiv-Mera.

(b) According to Shmuel, the Din in the above case, where the owner of the Esrog did not make a T'nai Kaful ought to be - that the T'nai is canceled and the gift is valid.

(c) In spite of Shmuel's Takanah, Rava considers the T'nai by Esrog valid - because it is only with regard to Gitin and Kidushin (because of the Chumra of Eishes Ish), that we rule like Rebbi Meir and require a T'nai Kaful (see also Tosfos), but not in cases of Mamon.

(d) Should something happen to a Matanah al-M'nas le'Hachzir before the beneficiary has returned the article, he is liable ...

1. ... neither for Onsin ...
2. ... nor for Geneivah va'Aveidah - since he is not a Shomer.
3. ... for negligence.
(a) That woman gave Rav Bibi bar Abaye the date-palm that she owned in the latter's field for the duration of his lifetime - because whenever she wanted to cut it down, he stopped her from doing so (see Rabeinu Gershom).

(b) By giving it to his small son, Rav Bibi hoped - that after he died, the tree would go to his son (like Raban Shimon ben Gamliel), rather than back to the owner.

(c) Granted, even Raban Shimon ben Gamliel forbade selling it Lechatchilah - but that is only because the donor stipulated 'Acharecha li'Peloni'. In the case of Rav Bibi, the woman did not.

(d) We erase the Lashon 'Katan' from the text, even though there are ways of explaining it - such as a grown-up son might have sold the tree back to the woman, something that a Katan cannot do; or because his young son still ate at his table, giving him continued access to the fruit.

(a) When Rav Huna B'rei de'Rav Yehoshua commented 'Mishum de'Asu mi'Mula'i, Amrisu Mili Mulyasa', he meant - that it is not because Abaye's family descended from the house of Eli (whose descendants were all destined to die before they reached the age of twenty), who in turn, resided in 'Mamla', that justified their making statements that were 'cut off' (from the word 'la'Mul', to cut) ... or that were blemished (another connotation of the word 'Mulya').

(b) The basis of his objection is - the fact that in this case, 'Acharecha' happened to be the owner herself, and it is obvious that, even according to Raban Shimon ben Gamliel, in such a case, a person puts himself first (even without having specifically said as much). Consequently, by giving the tree to his son, Rav Bibi would not have achieved anything.

(a) In the case of Reuven, who declares Hekdesh an ox which Shimon gave him as a Matanah al-M'nas le'Hachzir - Rava Amar Rav Nachman rules that if he then returned the ox, he will have fulfilled his obligation (and the Hekdesh will remain intact).

(b) This episode really belongs after the ruling of Rava ('Esrog Zeh ... ['before that of Rav Bibi bar Abaye]) - because it is a branch of 'Matanah al-M'nas le'Hachzir', as is Rava's case (but it is not directly connected with the case of Rav Bibi).

(c) Rava's objection to his Rebbe's statement was - the fact that he did not return the object in a way that the owner could benefit from it.

(d) Rav Ashi therefore qualifies Rav Nachman's ruling - by restricting it to where he said 'al-M'nas she'Tachzirehu' (which he did). Had he said 'al-M'nas she'Tachzirehu *Li*', implying that he must return it in a way that he can benefit from it, the beneficiary would not have fulfilled the condition by returning a Hekdesh animal.

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