Babylonian Talmud: Tractate Baba Bathra

Folio 114a

at night, however, even three [persons] may [only] write down [instructions] but are not [permitted] to constitute themselves into a court.¹  What is the reason? Because they have become witnesses,²  and a witness may not act as a judge'.³  — He said unto him: 'Yes, I indeed mean the same'.⁴

It was stated: [With regard to symbolical] acquisition,⁵  how long⁶  may one withdraw?⁷  — Rabbah said: So long as the session⁸  is in progress. R. Joseph said: So long [only] as they are dealing with that subject.

R. Joseph said: Logical reasoning supports my view. For Rab Judah said:⁹  Three [persons] who came to visit a sick man may, if they wish, [either] write down [his instructions with reference to the disposal of his estate, or], if they prefer it, give judgment.¹⁰  Now, if it is assumed¹¹  [that the testator may withdraw] during the whole time the session is in progress, [how can they give judgment?¹²  Surely it may he apprehended that he might withdraw!¹³  — R. Ashi said: Discussing this tradition in the presence of R. Kahana, [I argued:] Is this¹⁴  right, then, according to R. Joseph? Surely [according to his view also], it may be apprehended that he¹⁵  might withdraw!¹⁶  But what have you to say [in reply]?¹⁷  That they¹⁸  would he passing

1. Even on the following day.
2. At night, when listening to the testator's instructions, they were unqualified to act as judges and have thus inevitably become witnesses. cf. 469, n. 14.
3. Thus it has been proved that matters of inheritance, like other civil law cases, require a law court of three and may be heard in the day-time only.
4. Lit., 'I say so also'.
5. Symbolical acquisition is one of the forms of binding a party or parties to an agreement or an arrangement it is effected by handing over a scarf or some similar object is the person whose word thus becomes legally confirmed. V. Halifin, v. glos. s. v.
6. Lit., 'until when'.
7. And cancel or change the agreement.
8. Of the court that dealt with the matter.
9. Supra 113b.
10. V. p. 469, n. 16 supra.
11. Lit., 'if it enters your mind'.
12. Which has the power to make the testator's instructions legally and irrevocably binding at once.
13. Before the session was over, the testator might change his mind, and thus annul all the work of the court.
14. The statement of Rab Judah which R. Joseph quoted in support of his view.
15. The testator.
16. While the court was still dealing with the matter.
17. According to R. Joseph.
18. The members of the court.

from one subject to another!¹  Here also²  [it may he replied that they] stand up³  and then sit down again.⁴

The law is in accordance with [the view] of R. Joseph in the case of Field,⁵  Subject⁶  and Half.⁷

A WOMAN [TRANSMITS HER ESTATE TO] HER SONS etc. For what [purpose is] this [statement] also required? Surely it has been taught [already] in an earlier clause [that] A MAN [INHERITS FROM] HIS MOTHER AND [FROM] HIS WIFE!⁸  — It teaches us⁹  this: That [the transmission of the estate of] a woman [to] her son is [to be] in the same manner as [the transmission of the estate] of a woman [to] her husband. As [in the case of the transmission of the estate of a] wife [to] her husband, the husband is not heir to his wife in the grave,¹⁰  so [in the case of the transmission of the estate of] a woman [to] her son, the son in the grave does not inherit from his mother to transmit [the inheritance] to [his] brothers on his father's side.¹¹

R. Johanan said in the name of R. Judah son of R. Simeon: [It is] the word of the Torah [that] a father is heir to his son and [that] a woman is heir to her son, for it is said, tribes,¹²  [which implies that] the tribe of the mother is compared to the tribe of the father; as [in the case of] the father's tribe a father is heir to his son, so [in the case of] the mother's tribe, a woman is heir to her son.

1. And thus prevent the testator from withdrawing his instructions, and thus nullifying their work.
2. In adopting the view of Rabbah.
3. After receiving instructions from the testator, thus breaking up the session, before proceeding to give judgment.
4. To issue the verdict. The testator is thus prevented from withdrawing, since the session which had dealt with his case has terminated.
5. When one of the heirs has a field adjoining the field that is to be divided (cf. supra 12b).
6. 'So long as they are dealing with the same subject' (the case under discussion).
7. The case where a testator expressed the wish that his estate be divided between his wife and his son. The widow, according to R. Joseph, is entitled to half the estate (cf. infra 143a).
8. Since the earlier clause enunciated the laws that a son inherits from, and does not transmit to his mother, and that a husband also inherits from, and does not transmit to his wife, what need is there for the clause stating that 'a woman transmits her estate to her son and to her husband, but does not inherit from them', which, though in different words, is a mere repetition of the laws in the earlier clause?
9. By the addition of the superfluous clause.
10. A wife in the grave does not inherit from her father (whom she predeceased), to transmit the inheritance to her husband. Cf. supra 113a, 'a husband does not receive as heir the prospective estate of his wife as he does that which was already in her possession.
11. Brothers born not from the same mother, but from the same father only. As to the 'mother's brothers' in the same clause, this is repeated incidentally to the preceding two.
12. Num. XXXVI, 9. Cf. ibid 8.