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Bava Basra 138



(a) Rav Yehudah Amar Shmuel rules that if Shimon rejects the property that Reuven writes out to him, he nevertheless acquires it. According to Rebbi Yochanan - he does not.

(b) Rebbi Aba bar Mamal explains that they do not in fact, argue - because Rebbi Yochanan speaks when Shimon objected from the outset, whereas Shmuel is speaking when he accepted the Sh'tar and only started to object afterwards.

(c) A gift might be considered detrimental to a person (and not an asset) - because of the Pasuk in Mishlei "Soneh Matanos Yichyeh" ('Someone who dislikes gifts will live long' [see Rashash]).

(d) The status of a gift which the beneficiary rejects is - one of Hefker, which anyone may acquire (like the opinion of Resh Lakish in K'riysus).

(e) If the beneficiary was initially silent, should he now decide that he does not want the gift - he has no option but to give it to someone else or to declare it Hefker.

(a) Rav Nachman bar Yitzchak connects the case of Reuven who handed Levi a gift on behalf of Shimon in front of Shimon, to a Machlokes between Raban Shimon ben Gamliel and the Rabbanan. The Tana Kama rules in this case, where the property includes Avadim, and where the beneficiary is a Kohen - that, despite the beneficiary's retraction, the Avadim may eat Terumah.

(b) According to Raban Shimon ben Gamliel - since the beneficiary objected, he does not acquire the Avadim.

(c) In spite of the fact that one is not obligated to sustain one's Eved Cana'ani, a person might nevertheless not want to accept (specifically) an Eved as a gift - because of the moral obligation to sustain him, a financial burden that he cannot, or does not, want.

(d) Raban Shimon ben Gamliel actually says that the property reverts to the owner or to his heirs. We did indeed cite Resh Lakish a little earlier, who holds that in such a case, the property is Hefker - but that does not tally with the opinion of Raban Shimon ben Gamliel.

(a) The problem with the Tana Kama's ruling is - how it is possible to force the beneficiary to accept a gift against his will.

(b) Rava (or Rebbi Yochanan) therefore establishes the Machlokes - when he was silent when the benefactor handed the Sh'tar to (or made the Kinyan with) the Sheli'ach, and protested only when the Sheli'ach handed him the Sh'tar or the gift (by refusing to accept it).

(c) According to the Chachamim, the beneficiary's initial silence construes acceptance, and his subsequent objection, a change of heart, which cannot undo the acceptance. But Raban Shimon ben Gamliel - attributes his initial silence to the fact that the beneficiary did not consider it worthwhile protesting as long as the gift was in the hands of a third person. Consequently, his ultimate objection reflects his initial decision to reject the gift.

(d) In spite of the principle 'Halachah ke'Raban Shimon ben Gamliel be'Mishnaseinu', we rule like the Chachamim in our Sugya - because the term 'be'Mishnaseinu' (as opposed to 'be'Mishnah'), precludes Beraisos).

(a) In a case where a Shechiv-Mera says 'T'nu Masayim Zuz li'Peloni, ve'Shalosh Me'os li'Peloni, ve'Arba Me'os li'Peloni', the Beraisa rules - that we do not go after the dates on the Sh'taros of their respective gifts. Consequently, should the Shechiv-Mera's creditor claim from them before they have received their money, they are all obligated to pay their father's debt.

(b) If the creditor claimed from them ...

1. ... after they had received the money - he would not be able to claim from them at all, since the Metaltelin of the heirs are not Meshubad to their father's (or benefactor's) creditor.
2. ... but in the case of a Matnas Bari - we would examine the dates on the Sh'tar to determine who pays (like the Din in the Seifa, as we shall see shortly).
(c) This ruling would apply even if the creditor were to claim *after* the beneficiaries had already received their portions - if the gift consisted of Karka to the amounts mentioned, and not cash.

(d) This Din will only apply if the Shechiv-Mera bequeathed *all* his property in this way, but if he retained some, then it would have the Din of a Matnas Bari and would require a Kinyan (as we shall see in the following Perek).

(a) In the case of the Beraisa, if the creditor claimed a debt of nine Dinrim, the beneficiaries pay - in proportion to the amounts that they received; two, three and four Dinrim respectively.

(b) If however, the owner had said 'T'nu Masayim Zuz li'Peloni, ve'Acharav Shalosh Me'os li'Peloni ve'Acharav Arba Me'os li'Peloni' - then (based on the principle that the creditor cannot claim Meshubadim as long as the debtor still has B'nei Chorin), he will claim first from the last beneficiary, whatever is still owing, from the one before, and if there is still money owing, from the first one.

(a) The Beraisa rules that if a Shechiv-Mera said 'T'nu Masayim Zuz li'Peloni B'ni Bechor ...
1. ... ka'Ra'uy Lo' - he receives two hundred Zuz over and above his Cheilek Bechor.
2. ... bi'Vechoraso' - then he receives whichever is more of two hundred Zuz and the Cheilek Bechor.
(b) And the Tana says the same thing with regard to a wife. In a case where the Shechiv-Mera said 'T'nu Masayim Zuz li'Pelonis Ishti ...
1. ... ka'Ra'uy Lah' - she receives two hundred Zuz over and above her Kesuvah.
2. ... 'bi'Kesuvasah' - then she receives whichever is more of two hundred Zuz and her Kesuvah.
(c) The common reason to both of the above latter rulings - is the fact that it is forbidden to detract from one wife's Kesuvah and from the Bechor's extra portion. That is why both have the upper hand.



(a) In similar vein, the Beraisa continues 'u'Shechiv-Mera she'Amar T'nu Masayim Zuz li'Peloni Ba'al Chovi *ka'Ra'uy Lo*, Notlan ve'Notel es Chovo'. In a case where he said 'T'nu Masayim Zuz li'Peloni Ba'al Chovi *be'Chovo*', the Tana rules - that he takes the two hundred Zuz (even if it amounts to less than the debt).

(b) The problem with the Reisha is - how we know that the Shechiv-Mera wants to give his creditor anything more than the actual payment of the debt.

(c) To answer this Kashya, Rav Huna told Rav Nachman that the author of the Beraisa must be Rebbi Akiva - who holds that a person does not use excessive Lashon for nothing. Consequently, when the Shechiv-Mera added the words 'la'Ra'uy Lo', he must have meant to include the two hundred Zuz, over and above the debt.

(a) We learned in the Mishnah in 'ha'Mocher es ha'Bayis' that someone who sells a house has not sold the pit or the enclosure - even if he stipulated 'Umka ve'Ruma' (which are used independently, and need to be included in their own right).

(b) Rebbi Akiva holds that the seller nevertheless needs to purchase a path to his pit, because a person who sells, sells generously. However (based on the principle that we just cited in his name), he says that in a case where the seller stipulates that he is not selling the pit or the enclosure - he obviously means to retain the path to his pit and enclosure, which he no longer needs to purchase.

(c) The Rabbanan - would also agree with Rebbi Akiva, if there was something to include. However, since they hold that a seller tends to sell begrudgingly, he retains the path to his pit anyway, leaving us with nothing to include.

(d) Despite the fact that the Rabbanan agree with Rebbi Akiva in this point, Rav Huna cites specifically Rebbi Akiva - because he is the one who said it. (Alternatively, we might have said that the Beraisa goes like Rebbi Akiva and his disputant).

(a) According to Rebbi Meir, if a Shechiv-Mera says that so-and-so owes him a Manah, witnesses are permitted to document his statement, even without recognizing the debtor, or without knowing about the debt. Consequently, when claiming with that Sh'tar, the heirs are required to bring witnesses to verify their claim.

(b) The Chachamim however, rule - that the witnesses may only record the Shechiv-Mera's statement if they know all the facts. Consequently, when the heirs claim with that Sh'tar, they will not automatically be required to verify their claim.

(c) In spite of the fact that with a Shechiv-Mera, there may not always be time to verify all the facts, the Chachamim disagree with Rebbi Meir - because they are afraid that the second Beis-Din may err and rely on the first one.

(d) Rav Nachman quoting Rav Huna - switches the opinions. According to him, Rebbi Meir says 'Ein Kosvin', and the Rabbanan, 'Kosvin'.

(a) Rav Dimi from Neherda'a ruled - 'Ein Chosheshin le'Beis-Din To'in', like Rav Nachman in the Rabbanan.

(b) Rava rules - that Beis-Din may not perform a Chalitzah without knowing for sure that the so-called Yavam is genuine.

(c) Similarly, he said - they may not perform a Miy'un (the walking-out of a girl under bas-Mitzvah who was married by her mother or brother) without knowing for sure that the man concerned is actually the girl's husband.

(d) Consequently - the two women concerned are permitted to marry on the basis of the original Sh'tar, without having to verify the identity of the respective men.

(a) We reconcile the rulings of Rava and Rav Dimi from Neherda'a - by differentiating on the one hand, between a Beis-Din relying on a Beis-Din (Rava's case), where we are afraid that the second Beis-Din will fully rely on the actions of the first, and their relying on witnesses (Rav Dimi) on the other, which we trust, they will not do without corroborating the facts.

(b) The problem with the text that quotes, not Rava himself, but 'Rava Amar Rav Sechorah Amar Huna', who says 'Ein Choltzin Ela-im-Kein Makirin ... ') is - that they actually hold (in Yevamos) Choltzin Af-al-Pi she'Ein Makirin ... ', and it is Rava who argues with them there and says 'Ein Choltzin'.

(a) When the Tana of our Mishnah writes 'ha'Av Tolesh u'Ma'achil le'Chol Mi she'Yirtzeh' - he is referring to the previous Mishnah 'ha'Kosev Nechasav li'Veno (le'Achar Moso)', and he means that as long as the father is still alive, he may pick fruit from the field that he gave his son, and give it to whoever he wishes.

(b) The fruit that is detached when the father dies - is shared by all his sons.

(c) When the Mishnah writes 'u'Mah she'Hini'ach Talush, Harei Hu shel Yorshin', it implies - that what is still attached to the ground, will go to the son to whom he donated the field ...

(d) ... even fruit that is already ripe and ready to pick (though many Rishonim disagree with this).

(a) The Tana of the Beraisa holds in the above case, if the son to whom the father gave the field then sold it to a third person and the father died - the purchaser owns the field.

(b) When the Tana continues 'Shamin es ha'Mechubarin le'Loke'ach', he means - that seeing as the fruit is not included in the sale, its value must be assessed and the purchaser must pay that amount value to all the heirs.

(c) Ula resolves the discrepancy between the inference from our Mishnah (which considers the attached fruit as part of the land which goes to the son together with the field]) and the ruling of the Beraisa, (which does not) - by confining our Mishnah specifically to the son who received the gift from his father, because, due to the close relationship between a father a son, he gave him the field on that understanding. It will not extend to a third person (such as the purchaser), who does not enjoy that sort of relationship with the original owner of the field or even with the son who sold him the field.

(d) In the equivalent case, but where the recipient of the field was not the benefactor's son, but somebody else - the attached fruit will go to the sons, like the ruling in the previous Beraisa.

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