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Bava Basra 148



(a) When Rava Amar Rav Nachman says 'Shechiv-Mera sha'Amar Halva'asi li'Peloni, Halva'aso li'Peloni', he is referring to - a Milveh-al-Peh (an oral loan).

(b) The problem with this statement, coming from Rava Amar Rav Nachman is - that he himself just concluded that whatever is not Koneh by a Bari, is not Koneh by a Shechiv-Mera either, and 'Halva'asi li'Peloni' is not Koneh by a Matnas Bari.

(a) Rav Papa answers 'Ho'il ve'Yoresh Yorshah, by which he means - that seeing as the heirs of a Shechiv-Mera inherit his oral loans, Chazal incorporated them in the concession, too.

(b) Rav Acha Brei de'Rav Ika answers differently. He cites Rav Huna Amar Rav, who says - that 'Manah Li be'Yadcha, Teneihu li'Peloni' is Koneh, provided all three parties are present, as we learned earlier. So, based on the fact that it is possible to transfer an oral loan without a Kinyan, Chazal incorporated it in the concession, even in cases where it is normally not Koneh.

(c) The other exception to the above rule that stems from the Din of 'Halva'asi li'Peloni' is - where the Shechiv-Mera wants to give the beneficiary a coin (which can normally not be acquired even with a Kinyan Chalipin).

(a) We ask what the Din will be if someone gives a date-palm to Reuven and the fruit to Shimon. This She'eilah cannot pertain to a Matnas Bari - because then it would belong above, in Perek ha'Mocher es ha'Sefinah, and not here.

(b) Assuming then, that the She'eilah concerns a Matnas Shechiv-Mera, we ask it here - because it refers to our Mishnah 'Shiyer Karka Kol-she-Hu, Matanaso Matanah'.

(c) The She'eilah is based on the difference between a Matnas Shechiv-Mera be'Kulo, and a Matnas Shechiv-Mera be'Miktzaso. Besides the fact that the latter requires a Kinyan, the difference between them is - whether, in the event that the Shechiiv-Mera recovers, he can retract (a Matnas Shechiv-Mera be'Kulo), or not (a Matnas Shechiv-Mera be'Miktzaso).

(d) The She'eilah then is - whether when the Shechiv-Mera gives Reuven the tree, he means to retain the branches for himself, in which case the initial gift is a Matnas Shechiv-Mera be'Miktzas, from the which he cannot retract; or whether he gives him the entire tree, branches and all, in which case, it is a Matnas Shechiv-Mera be'Kulo, from which he can later retract.

(a) Based on the assumption that the previous case is not considered a Shiyur and that the gift of the palm-tree is effective, we ask what the Din will be if the Shechiv-Mera simply precluded the fruit from the sale. Maybe that *will* be considered a Shiyur ...

(b) ... because when it comes to oneself, one tends to be more generous, in which case, the Shechiv-Mera may well retain the branches for the fruit.

(c) We refute the above version of the second She'eilah - on the grounds that the basic distinction between a third person and the owner will not fit into the Gemara's alternative version (cited later in the Sugya, where Resh Lakish is only speaking about the owner, and not a third person at all).

(d) The second She'eilah, according to this version, is when the Shechiv-Mera said 'Chutz mi'Peirosav', which is superfluous (seeing as he only gives Reuven the tree to begin with, and not the fruit). Perhaps, we therefore suggest, he means to retain the branches, even if, in the first She'eilah, he gives Shimon the fruit together with the branches.

(a) Rebbi Aba told Rav Ashi that he had learned the above distinction in connection with a statement of Resh Lakish, who said (in 'ha'Mocher es ha'Bayis') that if someone sells a house on condition that the Diyuta (the attic) still belongs to him - the Diyuta still belongs to him.

(b) They ask whether, if a Bari sells a house or a room (in a Chatzer) to Reuven and the Diyuta to Shimon - whether he leaves Reuven a space in the Chatzer to allow him to affix ledges to the Diyuta that protrude into the Chatzer or not.

(c) On the assumption that, in the previous She'eilah, it is not considered a Shiyur - they ask what the Din will be if in Resh Lakish's case, whether there, he will retain the right to affix a ledge to the Diyuta that protrudes into the Chatzer.

(a) Rava Amar Rav Nachman resolves the She'eilah by quoting Rav Z'vid, who ruled in such a case - that the owner's stipulation allows him to affix ledges to the Diyuta that protrude into the Chatzer.

(b) This latter case might be different than the previous one - because even if he had not stipulated that the Diyuta belonged to him, it would have belonged to him anyway. Consequently, the stipulation is superfluous, and permits him to retain rights in the actual Chazter.




(a) Rav Yosef bar Minyumi Amar Rav Nachman states that if a Shechiv-Mera distributes all his property to a number of people - this has the Din of a regular Matnas Shechiv-Mera, which acquires after death, but allows him to retract as long as he is alive.

(b) If however, he changed his mind - (meaning that he initially meant to give away only part of his estate to the first beneficiary, and then changed his mind and decided to give away more to the second beneficiary, and then to the third, and so on, then the Din is the same in the event that he dies, but only allows him to retract from the last one.

(c) We know that he changed his mind and was not just working out to whom to give his estate - because people tend to make their list first before beginning to distribute.

(a) Rav Yosef bar Minyumi Amar Rav Nachman says that a Shechiv-Mera who distributes all his property (field by field) and then recovers, cannot retract - because we suspect that he may own more property in another country (in which case, it is a Matnas Shechiv-Mera be'Miktzas, from which one cannot retract).

(b) We therefore establish our Mishnah, which states 'Lo Shiyer Karka Kol she'Hu, Ein Matanaso Kayemes' - when he specifically stated that he is giving 'all his property' to so-and-so (incorporating all his property wherever it is).

(c) According to Mar bar Rav Ashi - the Tana speaks when we know that he does not own any more property, other than what he specifically gave away.

(a) We ask whether 'Chazarah be'Miktzas Havya Chazarah' or not. 'Chazarah be'Miktzas Havya Chazarah', which means in practical terms - that if the Shechiv-Mera gives all his property to Reuven, and then gives half to Shimon, the other half automatically reverts to him.

(b) We try to resolve the She'eilah from the Beraisa 'Kulan le'Rishon, u'Miktzasan le'Sheini, Sheini Kanah, Rishon Lo Kanah', by initially establishing it when he died, which proves that he retracted from the gift to Reuven completely (otherwise, there is no reason why Reuven should not acquire the half that the Shechiv-Mera did not give to Shimon).

(c) The proof falls away however, once we establish the Beraisa when he recovered - because then, the Tana is simply saying that he can retract from his gift to Reuven (which was a Matnas Shechiv-Mera be'Kulah), but not from his gift to Shimon, which (having retracted from the gift to Reuven, turns out to be a Matnas Shechiv-Mera be'Miktzasah).

(d) And we try to prove that the Tana speaks when he recovered, from the Seifa 'Miktzasan le'Rishon, ve'Kulan le'Sheini, Rishon Kanah, Sheini Lo Kanah' - because had he died, why is Shimon not Koneh?

(a) Rav Yeimar however, queries Rav Ashi's proof (that the Tana might even hold 'Chazarah be'Miktzas Lo Havya Chazarah' and the Tana speaks when the Shechiv-Mera recovered). He proves that, even if he does, he must still hold ' ... Havya Chazarah' - because if he held ' ... Lo Havya Chazarah', even Shimon would not acquire the property either, seeing as the Shechiv-Mera distributed all his property to two people ('Mechalek Nechasav'), as we learned above.

(b) The Halachah is - 'Chazarah be'Miktzas Havya Chazarah be'Kulah'.

(c) The Reisha of the Beraisa therefore rules 'Sheini Kanah, Rishon Lo Kanah', irrespective of whether the Shechiv-Mera recovered or not. The Seifa ('Rishon Kanah, Sheini Lo Kanah') on the other hand, must speak specifically when he recovered, - because if the Shechiv-Mera had died, both would acquire the Matanah (as Rav Yosef bar Minyumi Amar Rav Nachman explained earlier).

(a) We ask what the Din will be with regard to a Shechiv-Mera who declared all his property Hekdesh and then recovered. We figure that Hekdesh might be different than Hedyot in this regard - because a person tends to be Makdish generously (with not the least intention of retracting).

(b) We then ask what the Din will be in a case where he declares his property Hefker - whether there too, he clearly did so with a full heart, either because of the element of Tzedakah (seeing it is available to the poor as well as to the rich, or because a person who declares property Hefker takes it right out of his mind, without any thoughts of retrieving it afterwards.

(c) They might nevertheless be no different than Hedyot - because one always tends to put oneself first.

(d) We then ask about a Shechiv-Mera who distributed his estate to the poor, whether, assuming that by Hekdesh, he may not retract whereas by Hefker, he may, we compare this case to Hekdesh or to Hefker.

(e) The outcome of these She'eilos is - 'Teiku'?

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