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 154a-b
Our Gemara relates a story that occurred in Benei Berak, where someone who inherited property from his father sold it and died soon afterwards. Family members then claimed in court that the person who sold the property was underage at the time that it was sold and that the sale should be cancelled. Rabbi Akiva heard the case together with the suggestion that the body be exhumed in order to ascertain whether he had reached maturity before he died. Rabbi Akiva ruled that he could not allow for nivul ha-met – desecration of the dead – in such a case; furthermore, he argued that the physical condition of the body changes after death, so that examining the body would not offer a definitive clarification of the situation.
As we will see on tomorrow’s daf the time that a person is considered an adult to engage in buying and selling property – particularly property that he received as an inheritance – is not the ordinary 13-year old age of maturity, but 18 or 20. Even so, there remains an element of concern with physical maturity, as someone who does not reach physical maturity may not be considered competent to engage in business even at the later age.
The continuation of the Gemara suggests that Rabbi Akiva’s argument about nivul ha-met may only apply to relatives, as Tosafot explain, either because they should be expected to be more concerned with the dead man’s honor or because there is no out-of-pocket loss for them, since they were not purchasers. In theory, someone who was not a relative could argue that his loss was so great that he would not be concerned if someone else’s body would be desecrated. The Gemara concludes that that is why Rabbi Akiva offered a second reason that the body should not be exhumed – in any case due to physical changes in the body, we will not be able to determine whether the dead man had reached maturity.
Bava Batra 155a-b
We know that Jewish law recognizes a child as reaching maturity when he becomes physically mature. Nevertheless, with regard to certain halachot the law may require other types of maturity.
Our Gemara presents a case where a child has received an inheritance from his father. How old must he be before he is allowed to sell that property? Rava quotes Rav Nachman as requiring him to be 18 years old; Rav Huna bar Hinena quotes Rav Nachman as requiring him to have reached 20 years.
Some of the Geonim understand that this question does not relate specifically to inheritance, but to any business transaction – the Gemara is simply discussing the most ordinary case where a young person will have property to deal with. The concern is that a young child will not possess the business acumen to buy and sell, so Jewish law will consider him a minor until he becomes older.
Most of the commentaries (e.g., the Ri”f, Rambam, Meiri and others) apply this only to property received as an inheritance from his father, while the Ritva applies it to any situation of inheritance, even from his mother or his siblings. The reason to limit it to apply only in the case of a father’s inheritance is that this is a rabbinic enactment to protect the value of the estate, and such enactments are limited only to ordinary cases. It is common for a child to inherit his father’s estate – any other inheritance would be unusual.
Although the continuation of the Gemara seems to imply that the ages of 18 or 20 are dependent on physical maturity, it is clear that the reasoning behind this law is our concern that a young person makes well thought-out financial decisions. In fact, Rabbeinu Tam and the Ri”d both rule that a child of 13 years old who is known to understand the markets and is savvy in his business sense would be permitted to buy and sell this property.
Bava Batra 156a-b
As we have learned, it is a generally accepted principle that we listen to the instructions of a shechiv mera – a person on his deathbed – and disburse properties and possessions that he owns simply based on his words, without demanding the usual kinyan – formal act of transfer. This ruling is given because we want to free the shechiv mera from all of his worldly concerns and ensure that he is at peace to avoid hastening his death. In point of fact, Rabbi Elazar demands a full kinyan even in the case of someone who was mesukan – ill and in a dangerous state.
To disprove Rabbi Elazar, the Gemara tells a story about the family of Benei Rochel whose mother was on her deathbed and requested that her valuable keveinati – a type of jewelry or clothing – be given to her daughter, and her request was fulfilled by the sages after her death. Rabbi Elazar responded in strong language, arguing that this family was known as resha’im – evildoers. The Rashbam explains that because they were resha’im, the sages were not interested in having the sons receiving a valuable inheritance, so through a power similar to hefker bet din hefker – the Jewish courts’ ability to declare an object ownerless (a type of eminent domain) – they transferred ownership to another sibling.
According to the Gemara, Rabbi Elazar explains that the Bnei Rochel family was considered to be evildoers because they allowed weeds to grow in their vineyards, something that according to Rabbi Elazar’s ruling was forbidden because of the halakhot of kilayim – the prohibition against planting different crops in close proximity. Rabbi Uziel Moshe Rothstein explains in his Nachalat Moshe that even though most of the sages disagree with Rabbi Elazar’s ruling on that matter, since that was the common practice in his community it was enough to consider them evildoers, and the sages may have applied rules differently to them than to others.
Bava Batra 157a-b
One of the basic questions that comes up regarding issues of ownership in Jewish law is whether adam makneh davar she-lo ba la-olam – whether or not a person can buy or sell an object that is not in existence right now. Our Gemara presents this question as a disagreement between Rabbi Meir and the Sages, with Rabbi Meir ruling that something can be bought or sold even if it does not exist presently and the Sages ruling that such a thing cannot be bought or sold. The Gemara does limit Rabbi Meir’s ruling to a situation where the object is expected, even though it does not exist at this moment, e.g. if someone sells the rights to dates that will grow on a palm tree in the upcoming season.
In truth, when Rabbi Meir presents his position, he does not appear to require an expectation that the object will come into existence; he never mentions that the case of dates is what he is referring to in his ruling. If anything, the original case that Rabbi Meir discusses appears to be a case where the future of the situation is much in doubt – he presents his ruling in a case where a man asks a married woman to agree to marry him after her husband dies.
One approach suggested by the commentaries is that Rabbi Meir must be discussing an out-of-the-ordinary case, where, for example, the husband was on his death bed when the marriage proposal was made. Only there would Rabbi Meir rule that the marriage proposal has significance. Other rishonim argue that there are two issues at hand when Rabbi Meir discusses issues of a davar she-lo ba la-olam. Sometimes the issue is that the thing does not exist; sometimes the thing exists, but for one reason or another it cannot be acted upon at this time. Rabbi Meir ruling that adam makneh davar she-lo ba la-olam means that if we anticipate that the object will appear or if the object already exists and its status may change in the future, in both of these cases the decisions or activities made by the parties will have significance.
It should be noted that Rabbi Meir’s position is rejected and the accepted ruling is that ein adam makneh davar she-lo ba la-olam – that a person cannot buy or sell an object that is not in existence right now.
Bava Batra 158a-b
Our Mishna discusses a case where a husband and wife were killed in a sudden accident. Those who would inherit the husband’s estate claim that the wife died first, and since the husband inherits his wife, they would receive her property, as well; those who would inherit the wife claim that the husband died first so she would retain possession of her property and would be owed her ketubah from her husband’s estate, as well.
- Bet Shammai rules that the money is divided between her husband’s relatives and her father’s relatives, since Bet Shammai believes that whenever we cannot ascertain what happened, we will divide the money.
- Bet Hillel rules that given the questionable situation, we leave the status quo. Thus, the ketubah remains with the husband’s family, and the property that she retains control over — the nikhsei melug — remains with the wife’s family.
When a couple gets married, a ketubah — the agreement that is signed by witnesses delineating the obligations that the husband has towards his wife — is written. When the Mishna on our daf refers to the ketubah, it means specifically the monetary responsibilities that the husband has accepted in this relationship, and, in particular, the amount of money that he guaranteed to her in the event of divorce or death.
It was traditional for the wife to also bring financial assets into the marriage, which were divided into two:
- Nikhsei melug, which are possessions that remain the property of the woman. While the couple is married, the husband can derive benefit from this property. When the marriage ends, they remain hers, in whatever condition they may be.
- Nikhsei tzon barzel, which are possessions that become the property of the husband. Their value is written into the ketubah, and in the event that their marriage comes to an end — if the husband dies or if they become divorced — the wife will be reimbursed for the full amount, either from the estate if he died or from him if they divorced.
According to Bet Hillel, in theory the nikhsei tzon barzel should also remain in their status quo situation. Whether they are seen as belonging to the husband or the wife is not clear, and is subject to a disagreement in the Gemara.
Bava Batra 159a-b
Why, according to Jewish law, will relatives be rejected as witnesses in a court of law?
Our Gemara raises this issue while attempting to clarify a case that the Talmud calls kasha she-be’dinei mamonot – one of the most difficult rulings in civil law. The case suggested by the Gemara as being one that is very difficult to understand is a situation where a person signs a legal document as a witness, and at a later time marries and becomes related to one of the people involved in the contract. According to Jewish law, even though he can no longer come to court and attest to the fact that he witnessed and signed the document – since he is a relative and unable to testify – nevertheless, other people who recognize his handwriting can testify that it is his signature and the document will be accepted based on his signature.
The Gemara suggests that this can be explained simply by understanding that a relative is disqualified from testifying not because we are afraid that he will lie, but simply because it is a gezeirat melech – it is the decree of the King (i.e. from the Torah; from God). The proof presented for this idea is that even people with impeccable credentials – like Moshe Rabbeinu and Aharon ha-Kohen would not be permitted to testify regarding an issue relating to a relative.
A variant reading brought by the Ra’avad and others has the Gemara pointing to the fact that Moshe and Aharon are unable to testify about one-another, indicating that the problem is not dependent on trustworthiness but on the very fact that they are related.
The Ritva points out that it makes no sense to suggest that the underlying basis for relatives to be excluded from testifying is that they have a prejudiced view, given that they love their relative, since Jewish law forbids relatives from testifying not only on behalf of their relatives, but even if the testimony will be against their relatives.
Bava Batra 160a-b
Oftentimes we have discussed the use of contracts as instruments that seal and clarify agreements. Such documents are never mentioned in the Torah – how are they viewed and regulated by Jewish law?
This question is the central issue dealt with in Perek Get Pashut, the tenth and final perek in Masechet Bava Batra.
Although contracts are not mentioned in the Torah, there is a lengthy description of writing a contract in a poignant story related in Sefer Yirmiyahu (Chapter 32) where Yirmiyahu, who has been imprisoned for prophesying the destruction of the Temple and the exile of the Jewish people from their land, purchases a plot of land from his uncle, symbolizing the eventual return of the people from exile. Although the Gemara concludes that we cannot learn details of contract law from the story in Sefer Yirmiyahu, nevertheless we see that during First Temple times the rules that regulated written contracts were already established.
During the times of the Mishna, there were two types of contracts, ordinary ones and special ones that were called a shetar mekushar or a “tied-up document.” Our Mishna teaches that ordinary contracts were signed by the witnesses under the text in the document itself, while in a shetar mekushar their signatures would appear on the back of the document. Although a shetar mekushar was originally established for use in divorce documents – gitei nashim – so that kohanim who would not be able to remarry their first wife would have time to rethink their decision, they were established for use in ordinary business transactions, as well.
According to Rashi, the get mekushar was written as follows: a line of the contract would be written and the next line was left empty and folded over, a process that was repeated as necessary. When finished, the witnesses would sign the back and the document would be sewn together.
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.
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