And according to your reasoning,1 [if] he sold [something] worth five for six2 would his sale indeed be [legally] valid?3 But [this is the reason]: The Rabbis were well aware that a child is susceptible to the temptations of money; and if it would have been laid down4 [that] a sale of his is legally valid, [people] might sometimes rattle money before him [and] he would be tempted5 to sell all the possessions of his [dead father]. In the case of a gift, however, [it is known that] had he not had [some] benefit from him6 he would not have presented him with a gift; the Rabbis, [therefore.] said [that] his gift shall be a [legal] gift in order that people might render him service.7
R. Nahman said in the name of Samuel: [A youth] must be examined [to ascertain whether he has the signs of maturity]8 in respect of betrothal,9 divorce, halizah,10 [declarations of] refusal.11 But in regard to the sale of the estate of his father, he cannot do so until he becomes twenty years of age.12 But since [the youth]13 was examined in respect of his betrothal what need is there14 [for an examination] in respect of [his] divorce?15 — This [law] is required only [in the case] of a youth who married his dead brother's widow.16 For we learnt: [If] a boy of the age of nine years and a day had connexion with his sister-in-law,17 he has acquired her [as wife] and may not divorce her until he had attained [legal] age.18
'[In respect] of halizah'19 — to exclude [the ruling] of R. Jose who said, 'In the [Biblical] section [of halizah] it is written, Man;20 but [in the case of] a woman there is no difference between a major and a minor';21 hence it was necessary to teach us that 'woman' is compared to 'man', contrary to [the view of] R. Jose.
'And [in respect of declarations of] refusal', [this had to be mentioned] in order to exclude [the ruling] of R. Judah who said: [A girl can exercise the right of refusal] until the black22 predominates;23 hence it was necessary to teach us that [the law is] not in accordance with [the view of] R. Judah.24 'And [in respect of] the sale of the estate of his father, until he becomes twenty years of age' [had to be taught] in order to exclude [the view] of him who said [the youth need only be] eighteen years of age.
The law [is that during the] 'intervening period'25 [one is regarded] as being under age.26 The law [is] in accordance with Giddal b. Menashya.27 The law [is] in accordance with Mar Zutra.28 The law is according to Amemar.29 And the law is in accordance with [what] R. Nahman said in the name of Samuel, in all [cases].30
MISHNAH. IF [A PERSON] DISTRIBUTED HIS POSSESSIONS VERBALLY, R. ELEAZAR31 SAID, WHETHER HE WAS IN GOOD HEALTH OR DANGEROUSLY ILL, [ALL] REAL ESTATE32 IS ACQUIRED BY MEANS OF MONEY,33 DEED34 AND POSSESSION,35 WHILE MOVABLE OBJECTS36 ARE ONLY ACQUIRED BY MEANS OF PULLING.37
Original footnotes renumbered.
- That a child is not entitled to sell on account of a possible loss he may incur through his inexperience.
- In which case he made a profit.
- The Mishnah, surely, draws no distinction between sales at a profit or at a loss!
- Lit., 'You said'.
- Lit., 'go'.
- The donee.
- Lit., 'things'.
- Though he is thirteen years and one day old; or, in the case of a girl, twelve years and a day.
- Betrothal is not legal unless the examination had revealed signs of maturity.
- V. Glos.
- A woman's refusal to live with a person to whom she was married during her minority. She can do so only before the signs of maturity have appeared.
- Even if he has grown two hairs,
- The same applies, mutatis mutandis, to a young woman.
- Lit., 'why to me'.
- Since he was allowed to betroth he must have been examined and found to have produced the necessary signs of maturity.
- In such a case no formal betrothal is necessary. A boy who is over nine years of age becomes the legal husband of his dead brother's wife by the mere act of coition. If he desires, subsequently, to divorce her he must undergo an examination for signs of maturity.
- Whose husband had died childless.
- Nid. 45a; Sanh. 55b.
- I.e., it was necessary to teach that an examination for signs of maturity is required before halizah could be allowed to be performed.
- Deut. XXV, 7. The specific mention of man implies that the male only must be of age.
- Nid. 52b; Yeb, 105b. And a girl under age may consequently participate in the ceremony of halizah.
- I.e., the hair.
- And not merely until one has grown two hairs. V. Nid. 52a.
- But in accordance with the first Tanna (Nid. 52a) that her right ceases with the growth of the two hairs.
- The twentieth year of age according to one authority; the eighteenth, according to another.
- Supra 155b, q.v. for notes.
- That a youth of the age of thirteen and one day, who is able to carry on business transactions, may sell the estate he inherited from his father, whether it consists of movables or of real estate.
- That the evidence of a youth who is unable to transact business and is of the age of thirteen and one day, is legal only in the case of a dispute on movable objects, but not in that of real estate.
- That the gift made by such a youth (of the age and character described in the previous note) is legal, though a sale be contracted is invalid.
- Mentioned above. In the case of betrothal, divorce, halizah and declarations of refusal, age alone is no guide unless signs of maturity also appeared. As regards the legality of the sale of an estate inherited from his Father, a youth, if be is not intelligent enough to carry on business transactions, must be twenty years of age, and must also produce signs of maturity. If at the age of twenty no signs of maturity had appeared. the youth remains legally a minor until he had obtained the age of thirty-six, unless marks of a saris had meanwhile made their appearance.
- Others, R. Eliezer.
- Lit., 'possessions which have a secure foundation.
- Which the buyer pays for the land.
- Setting out and confirming the sale.
- The buyer performs some kind of work on the land purchased.
- Lit., 'possessions which have no secure foundation'.
- Heb., meshikah, v. Glos, R. Eleazar is of the opinion that a dying man's verbal instruction has no more legal force than that of a person in good health. Hence, unless legal acquisition took place, the donee acquires no possession even if the donor died; and in case of recovery, the donor may retract even where only a part of his estate had been given away.
Baba Bathra 156b
THEY1 SAID UNTO HIM: THE MOTHER OF THE SONS OF ROKEL ONCE FELL ILL; AND SHE SAID, 'LET MY BROOCH WHICH IS WORTH TWELVE MANEH BE GIVEN TO MY DAUGHTER', AND WHEN SHE DIED, HER INSTRUCTIONS WERE CARRIED OUT!2 HE REPLIED TO THEM: [AS TO] THE SONS OF ROKEL, MAY THEIR MOTHER BURY THEM!3
GEMARA. It was taught: R. Eliezer4 said to the Sages, 'Once there lived5 a man of Meron6 in Jerusalem and he possessed much movable property which he desired to give away as gift[s]. He was told, [however. that] there was no means [of carrying out his wish] unless he transferred possession [to the donees]7 by virtue of land [transferred to them at the same time]. He consequently8 purchased a rocky9 piece of land near Jerusalem and gave the following instructions:10 "Its northern side [shall be given] to X, and [together] with it a hundred sheep and a hundred casks; and its southern side [shall be given] to Y, and together with it a hundred sheep and a hundred casks". And when he died the Sages carried out his instructions'.11 They12 replied to him, '[Is there any] proof from there? The Meronite was in good health'!13
HE REPLIED TO THEM: [AS TO] THE SONS OF ROKEL, MAY THEIR MOTHER BURY THEM! Why did he curse them? — Rab Judah said in the name of Samuel: They allowed thistles to grow in [their] vineyard; and R. Eliezer [is thereby consistent] with his view. For we learnt: If [a person] allows thistles to grow in a vineyard he [thereby], R. Eliezer says, causes [the fruit] to be forbidden;14 and the Sages say: one does not cause [the fruit of a vineyard] to be forbidden unless [he grows] a plant the like of which [people] usually allow to grow.15 Said16 R. Hanina: What is R. Eliezer's reason? Because in Arabia they allow thistles to grow in their fields [as fodder] for their camels.17
R. Levi said: [Symbolic] acquisition may be acquired from a dying man18 even on the Sabbath;19 but [this is] not due to a consideration of the view of R. Eliezer,20 but to the possibility that his21 [peace of] mind might be disturbed.22
MISHNAH. R. ELIEZER23 SAID: ON THE SABBATH, HIS [VERBAL] INSTRUCTIONS24 ARE LEGALLY VALID, BECAUSE HE IS UNABLE TO WRITE,25 BUT NOT ON A WEEK-DAY.26 R. JOSHUA SAID: [IF] THEY SAID [THIS]27 IN [RESPECT OF] THE SABBATH28 HOW MUCH MORE SO IN [THE CASE OF] A WEEK-DAY?29 SIMILARLY: ONE MAY ACQUIRE OWNERSHIP ON BEHALF OF A MINOR30 BUT NOT ON BEHALF OF [A PERSON WHO IS] OF AGE,31 THESE ARE THE WORDS OF R. ELIEZER. R. JOSHUA SAID: [IF THEY ALLOWED POSSESSION32 TO BE ACQUIRED] ON BEHALF OF A MINOR,33 HOW MUCH MORE SO ON BEHALF OF [A PERSON WHO IS] OF AGE.34
GEMARA. Whose [version is represented in] our Mishnah? — It [is that of] R. Judah. For it was taught: R. Meir stated, 'R. Eliezer said: On a week-day his [verbal] instructions35 are legally valid because he is able to write,36 but not on the Sabbath.37 R. Joshua
Original footnotes renumbered.
- The Sages.
- Cf. Supra, 151b, q.v. for notes. Since the verbal instructions of the mother were in this case carried out, how could R. Eleazar maintain that the word of a dying man has no more force than that of one in good health?
- They were wicked men and the instructions of their mother, who deprived them of a portion of her estate in favour of her daughter, were carried out, (though there was no legal acquisition on behalf of the daughter), as some sort of punishment for their wickedness. No inference, therefore, as regards the case of other testators, may be derived from this special one.
- Cf. supra, note 1,
- Lit., 'was'.
- [In Galilee near Gush Halab, v. Neubauer, Geographie, 228ff.]
- Who were not themselves present to acquire possession.
- Lit., 'he went
- Unsuitable for cultivation and, therefore, obtainable at a very low price.
- Lit., 'and said',
- R. Eliezer assumed that the Meronite was a dying man, when he disposed of his property. and since he was compelled to transfer possession by means of land, it is to be inferred that the mere verbal instructions of a dying man have no legal force. How, then, R. Eliezer argued, could the Sages maintain that the verbal disposition of his estate by a dying man is legally valid?
- The Sages.
- Had he been in a dying condition his verbal Instruction alone would have been sufficient.
- It is forbidden to grow in the same vineyard heterogeneous plants even though one is used for human, and the other only for animal consumption.
- I.e., plants for human consumption or use. Thistles are mere weeds and as a rule are not allowed to grow among the vines, V. Kil. v, 8.
- Current editions insert the following, 'Saffron is well suitable, but of what use are thistles'. It is wanting in most MSS, and is unintelligible in this context.
- R. Eliezer, therefore, regards thistles as a proper plant that comes under the prohibition of the growing of heterogeneous kinds, The Sages, however, do not class them as a plant since in most parts of the world they are not grown.
- Whether he left some of his estate for himself or not.
- When it is forbidden to arrange legal transactions.
- Who requires legal acquisition even in the case of the gift of a dying man.
- The dying man's.
- Seeing that no legal acquisition is being arranged he will feel that he is already being regarded as a dying man. As this mental anguish might accelerate his death, the Sages have allowed legal acquisition to be performed even on the Sabbath in order to ensure the patient's peace of mind. Legally, however, the mere word of a dying man transfers possession to the donees.
- Others, 'The Sages'. cf. supra p. 679. n. 1.
- Those of a dying man distributing his property.
- Writing is one of the manual labors that are forbidden on the Sabbath.
- Since a written document may be prepared, and symbolic acquisition may be arranged.
- That no written deed or symbolic acquisition is necessary.
- When these are forbidden, and the rule, 'whenever something is suitable for fusion, actual fusion is not essential', cannot be applied.
- When writing and acquisition are permissible and possible, and the rule, 'Whenever something is suitable etc.' (V. previous note) may be applied.
- Because he himself is not legally entitled to acquire possessions.
- Since he is himself able to acquire possession.
- In his absence.
- Who cannot himself acquire.
- Since he himself is entitled to acquire and be may also appoint an agent to act on his behalf, others also, much more than in the case of a minor, are entitled to acquire possession for him in his absence.
- V. supra p. 681, n. 7.
- And the rule, 'Whenever fusion is possible. actual fusion is not essential', can be applied. Since writing and acquisition are possible on a week-day, actual writing and acquisition are not indispensable.
- V. supra p. 681, n. 11.