Masechet Bava Batra 147a-153b

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Last Will and Testament
14 Jan 2010
Torah

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Bava Batra 147a-b

The Mishnah (146b) presents the law of a shechiv mera — someone who is on his deathbed — who commands that his property be distributed. Although under ordinary circumstances property cannot be transferred without a formal kinyan (a formal act of taking ownership), according to the Mishnah a shechiv mera can do so simply by making a statement. What is the source of this unusual law?

The Gemara on our daf brings a series of amoraim, all of whom claim that the law of matnat shechiv mera is of biblical origin. Among the sources that are offered to support this claim are two stories in navi

  1. When King Chizkiyahu was on his deathbed, the navi Yeshayahu told him that he was destined to die and suggested to him that he command his house (see II Melakhim 20:1).
  2. When Achitofel realized that his support of Avshalom’s rebellion against King David was doomed to failure, he returned home, commanded his house, and committed suicide.

In contrast, Rava quotes Rav Nachman as teaching that the law of matnat shechiv mera is of rabbinic origin, shema titraf da’ato alav – lest he become insane.

Several explanations are offered regarding Rav Nachman’s teaching. One explanation brought by the Rashbam is that he may become insane if he believes that his final wishes will not be fulfilled. Rabbeinu Gershom follows this approach and adds that there are circumstances that will not allow for standard kinyanim to be performed, and we must work to accommodate the needs of the shechiv mera. Others suggest that we are concerned lest the dying man may lose his sanity and be unable to complete his final requests in a formal way.

The Gemara concludes that even if this law is not biblical, the Sages gave it the strength of biblical law, allowing the dying man’s wishes to be carried out in the face of other claims. Tosafot suggest that even those amoraim who quoted biblical passages in support of the position that matnat shechiv mera is from the Torah, recognize that it is of rabbinic origin, but because of the strength of the rabbinic enactment they looked for hints in the Torah that could be used to support it.


Bava Batra 148a-b

As we have learned, matnat shechiv mera is a present given by an individual who is on his death bed. Unlike other examples of property transfer where the most basic requirement demands that a formal kinyan – an act of transfer – take place, in the case of matnat shechiv mera the Sages ruled that no such kinyan is necessary. This rule was established in order to ease the concerns that rest on a dying person who wants to be sure that his will is carried out prior to his death. Nevertheless, there are restrictions to this unique rule of matnat shechiv mera; according to the Mishna (146b), this gift only works if the dying man bequeaths all of his possessions while on his death bed. This clarifies to us that he is only distributing his wealth because he assumes that he has no more need for physical possessions, which leads to one final rule that applies to a case of matnat shechiv mera – in the event that the dying man recovers, all of these presents must be returned, since they were given under a mistaken impression.

On our daf Rav Aha bar Manumei quotes Rav Nachman as ruling that even if someone on his deathbed gave away all of his property, he will not get it back if he recovers, since we suspect that he may have property in another place that he did not give away. According to this ruling, the Mishnah’s teaching that he will get his property back if he recovers is limited to specific cases:

Rav Nachman’s ruling appears odd. Why would we suspect that someone is holding property that we don’t know about, and use that suspicion to keep him from getting his property back? The rishonim offer different suggestions that limit this halacha. The Ra’avad suggests that it is true only if he gave away his property in a manner that implies that he might have other property. Rav Avraham Av bet Din says that it applies in a case where he gave away his property in a piecemeal fashion, rather than in one collective group.


Bava Batra 149a-b

As we have learned, (daf 146b) in the case of a shechiv mera — someone who is on his deathbed — who commands that his property be distributed, we listen to and fulfill his commands. Our Gemara asks whether we will accept the words of a shechiv mera who informs us that he owes money to a certain person and ensure that the money gets to him.

In response, the Gemara tells a story about Issur Giyura (Issur the convert) who had 12,000 zuz entrusted with Rava, and he wanted that money to be given to his son, Rav Mari. The complication in this case was that although Rav Mari was born after Issur Giyura’s conversion, he was conceived before Issur Giyura became Jewish. This status did not allow Rav Mari’s to receive the money as an inheritance, and furthermore limited his ability to take possession of the money since he was not in the vicinity to make a kinyan and take physical possession of it. Ultimately the suggestion was raised to have Issur Giyura state that he owed this money to Rav Mari, which would require that the money be given to him by means of a matnat shekhiv mera.

It appears that Rav Mari in our story is one and the same as the amora known in the Gemara as Rav Mari the son of Rachel the daughter of Shmuel, whose mother was the daughter of the well-known amora, Shmuel. During Shmuel’s time there were wars waged in his city, Neharda, and apparently his daughter Rachel was kidnapped or taken captive. She ended up married to her captor, Issur, who later on became a righteous convert. Nevertheless, since his son Mari was conceived while Issur was still a non-Jew, Mari is usually identified in the Gemara with his mother rather than his father.


Bava Batra 150a-b

Our Gemara quotes a Mishnah in Pe’ah (3:6), in which Rabbi Akiva taught that even a very small amount of land is obligated in pe’ah (leaving a corner of the field unharvested for the poor) and bikkurim (first fruits that were brought to Jerusalem) and could be used as the basis for writing a pruzbol.

According to the Torah, among other things the Sabbatical year annulled most private loans (see Devarim 15:1-3). Recognizing that lenders were reluctant to offer loans as the Sabbatical year approached – which was, itself forbidden by the Torah (see Devarim 15:9-11), Hillel ha-Zaken established a method that would allow the lenders to collect the debts that were owed to them, even after the Sabbatical year. His suggestion was to write a document – called a pruzbol – that effectively turned the loan over to the courts, which were not constrained by the laws of shemitta, since they do not apply to public debts. Thus, when the Sabbatical year was over, the court would be collecting the debt, rather than the individual. This legal fiction was viewed as a benefit for both the rich – who would not be able to recover their loans – and the poor – who would now be able to borrow money when they needed to.

Rashi explains the need for land as the basis for a pruzbol as stemming from the fact that this law only applied to “normal” loans. In order to be considered a “normal” loan, land had to be made available as a guarantee that the loan would be repaid.

The source for the term pruzbol is Greek, although it is not entirely clear what the word refers to. One suggestion is that it means simply “an announcement delivered to the courts.” Another suggestion is that it means “finalizing the sale.” Other suggestions have been raised, as well.


Bava Batra 151a-b

Our Gemara quotes Mishnayot in Masechet Shekalim (4:7-8) that discuss a case where someone announces that he is donating all of his possessions to the Mikdash. In such a case, the property is usually given to the Temple treasurer for general upkeep – bedek ha-bayit. But what if some of his possessions can be brought as sacrifices?

If some of the possessions are animals that can be brought as sacrifices, there is general agreement that such an animal should be sacrificed, as that was most probably the intent of the donor. Furthermore, the korban should be brought in such a way that it is entirely donated to the Temple, with no part of it going to the owner. Therefore, all agree that the animals that can be brought as olot – burnt offerings – should be sacrificed. There is a difference of opinion, however, with regard to those animals that can be brought as shelamimkorbanot that are divided between the altar, the kohen and the owner. According to Rabbi Eliezer, such an animal should be sold to someone who will use it as a shelamim, and the proceeds should be given to the Temple treasurer together with all the rest of the possessions. Rabbi Yehoshua agrees that such animals should be sold to someone who will sacrifice them as a shelamim, but, he says, the proceeds of the sale must be used to purchase olot.

If some of the possessions are not sacrificial animals, but they can be brought on the altar – for example, wine, oil, or fowlRabbi Elazar rules that they should be sold to someone who will use them on the mizbe’ach for its appropriate purpose, and the proceeds should be used to purchase olot that will be burned on the altar. In this case the Mishnah does not record any argument.

The Rambam records this in his Mishna Torah (Hilkhot Erchin 5:8-9) and rules like Rabbi Eliezer in the first case, so that the money received from the sale of the animals that cannot be brought as olot will be given to the Temple treasurer for general use. This creates an odd situation that the Rambam feels obligated to explain. In the first case in the Mishnah, animals that could be brought as shelamim are sold and the proceeds are used for bedek ha-bayit. In the second case, other items brought on the mizbe’ach are sold, but the proceeds from that sale are used to buy sacrifices!

He explains (based on the passage in Vayikra 27:11-12) that only animals can be evaluated for the purpose of redemption. As such, the animals in the first case can truly be redeemed, and their value can be used for the relatively mundane purposes of bedek ha-bayit. The wine, oil, etc. in the second case cannot be redeemed, so the money retains the original holiness and must be used for actual sacrifices.


Bava Batra 152a-b

As we have learned, a matnat shechiv mera is a present given by an individual who is on his death bed. Unlike other examples of property transfer where the most basic requirement demands that a formal kinyan – an act of transfer – take place, in the case of matnat shechiv mera the Sages ruled that no such kinyan is necessary. This rule was established in order to ease the concerns that rest on a dying person who wants to be sure that his will is carried out prior to his death.

Our Gemara discusses a case where in addition to his request that his money be given to others, the shechiv mera arranged for a formal contract to be written that spelled out what was to be given away. In such a case, Rav argues that the present is certainly a good one since it works on two different levels – both as a normal present (even if he recovers the present is permanent and will not revert back to him) and as a matnat shechiv mera (and he can even transfer loans that are owed to him, which ordinarily cannot be accomplished without a formal legal act). Shmuel argues, saying that he does not know how to rule in such a case, since the appearance of the contract seems to indicate that he does not want to invoke the matnat shechiv mera rule, yet ein shtar le-ahar mitah – a contract cannot take effect after death.

According to the Rashbam and other rishonim, the Gemara’s discussion would be the same whether a contract was written or if some other method of kinyan was used to transfer ownership of the property, and the Gemara used the expression of “writing a contract” only because that is the normal manner to formalize a kinyan. Others suggest, however, that the entire discussion would only apply to a situation where the kinyan was arranged through a written contract.


Bava Batra 153a-b

As we have learned, according to the Mishnah (146b), the unique power of the gift of a shechiv mera — someone on his death bed — to take effect even without a formal kiny­an, only works if the dying man bequeaths all of his possessions while on his death bed. This clarifies to us that he is only distributing his wealth because he assumes that he has no more need for physical possessions. Therefore, in the event that the dying man recovers, all of these presents must be returned, since they were given under a mistaken impression.

The Gemara on today’s daf brings a case where the witnesses who heard the dying man’s wishes write that he stated the gifts that he wanted to give while he was “sick in bed.” Their testimony did not state clearly, however, that he passed away from this illness, which is the ordinary language that is included in such documents when the witnesses are sharing their testimony that we are dealing with a case of matnat shechiv mera. After the man died, his sons, who are interested in receiving their inheritance, claim that he enjoyed a brief recovery from that first illness, and that he retracted the gifts given while he was ill. Tosafot point out that the recovery in-and-of-itself undoes the matnat shekhiv mera, even if he did not say that he was retracting the gift.

Rabbah says that the current situation – the man is dead and buried – appears to indicate that the matnat shechiv mera remains in effect.

Abayye points to another case of doubt – when a ship sank and we do not know the fate of the people who were on the ship – where we assume that they are still alive unless we find proof to the contrary. Thus we do not always work with the current situation; we often prefer to assume that the earlier situation remains – especially since most people who are sick do recover.

The Gemara does not record a response to Abayye’s question. The Rosh suggests that from the continuation of the Gemara it appears that Rabbah retracted his position; the Ramban suggests that this case is different, since we have the written testimony of the witnesses that at least superficially appears to clarify the situation for us – that he died of the illness, and that the matnat shechiv mera should take effect.


In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.