Babylonian Talmud: Tractate Baba Bathra

Folio 129a

If [its purpose is] to exclude Raba's [law,¹  surely] he [merely] adds [to that of R. Abba]!²  If [to exclude the law] of Mar son of R. Ashi, [surely, it has already been stated that] the law is not according to Mar son of R. Ashi!³  If to exclude [the laws] of Samuel and R. Shesheth and R. Papa, to these, surely, objections have already been raised!⁴  — But, [this is the object of the declaration:] To exclude [the law] of R. Johanan,⁵  and [that which was to be implied by] the difficulty of Mar son of R. Ashi.⁶

IF ONE DISTRIBUTED HIS PROPERTY VERBALLY [AND] GAVE TO ONE [SON] MORE, AND TO [ANOTHER] ONE LESS, etc. How is one to understand [the giving of] A GIFT AT THE BEGINNING, IN THE MIDDLE, or AT THE END? — When R. Dimi came⁷  he stated in the name of R. Johanan: [If one wrote,] 'Let a certain field be given to X and he shall inherit it,' this is [called] A GIFT AT THE BEGINNING. [If he wrote], 'let him inherit it and it shall be given to him', this is [called] A GIFT AT THE END. 'Let him inherit it and let it be given to him so that he may inherit it', this is A GIFT IN THE MIDDLE. [This law is] only [applicable to the case] of one person and one field,⁸  but not to [the case of] one person and two fields,⁹  [or] one field and two persons.¹⁰  R. Eleazar said: ['The same law applies] even [to the case of] one person and two fields [or] one field and two persons'. [The law,]¹¹  however, [is] not [applicable] in [the case of] two fields and two persons.

When Rabin came⁷  he said: [In the case where one wrote], 'Let this field be given to X, and let Y inherit that [other] field', R. Johanan said: He¹²  acquires possession, [and] R. Eleazar said: He¹³  does not acquire possession. Said Abaye to Rabin: You have given us satisfaction [in one [respect] and cause for demurring in another.¹⁴  [For, as regards the apparent contradiction between the statement] of R. Eliezar¹⁵  and the other statement of His¹⁶  one can well explain [that there is] no [real] difficulty [since] one statement¹⁷  [may be said to refer to the case] of one person and two fields;¹⁸  and the other,¹⁹  to two persons and two fields. [The contradiction], however, [between the first statement] of R. Johanan,²⁰  and his second one²¹  [presents] a difficulty!²²  — [We²³  are] Amoraim [in dispute] as to [which were the views] of R. Johanan.

Resh Lakish, however, said: No possession is [ever] acquired²⁴  unless [the testator] had said, 'Let X and Y inherit this and that particular field, which I had assigned to them as a gift, so that they may inherit them'.²⁵

[The following Amoraim are] in [the same] dispute [as that of those mentioned]. R. Hamnuna said: [The law that possession²⁶  is acquired], was only taught [in the case of] one person and one field, but not [in the case of] one person and two fields [or] one field and two persons.²⁷  And R. Nahman said: [The same law applies] even [to the case of] one person and two fields [or] one field and two persons, but not [to that of] two fields and two persons.²⁸  And R. Shesheth said: [Possession is acquired] even [in the case of] two fields and two persons.²⁹

R. Shesheth said: I derive my decision from the following Baraitha.³⁰  If one³¹  said, 'Give my children³²  a shekel a week',³³  and they require a sela',³⁴  a sela' is to be given to them.³⁵  If, however, he said,'Give them no more than a shekel', only a shekel is to be given to them. But if he gave instructions [that] if these died

1. Regarding the evidence of certain relatives, supra 128a.
2. Without disagreeing with R. Abba's law.
3. Why, then, state the same thing again?
4. And the law could not, in any case, be decided in accordance with their views.
5. Regarding the assignment of one's entire estate to one child among all the heirs (supra 128b), which is contrary to that of R. Abba.
6. Who, contrary to the law of R. Abba (supra 128b), sought to prove that the borrower need not take an oath.
7. From Palestine.
8. IN such a case, the expression of 'inheritance' is counteracted by that of 'gift'.
9. If, in connection with one field, the expression of 'inheritance' and with the other that of 'gift' was used, the latter field is acquired by the donee but not the former.
10. If the testator said, e.g., that the half of the field shall be inherited by one person and the other half shall be taken as a gift by another, the latter acquires possession of his share, but the former does not,
11. This is a Talmudic comment, nad does not belong to R. Eleazar's statement (Rashb.).
12. The latter and certainly the former.
13. The latter.
14. Lit., 'one'.
15. In R. Dimi's report, supra, where it is stated that possession is acquired.
16. In Rabin's report, according to which possession is not acquired.
17. Lit., 'here'; viz., the first statement.
18. Both fields were given to him at the same time; and since he acquires possession of the one field, (given as a gift), he also acquires possession of the other.
19. Lit., 'here', the second statement; that of Rabin,
20. In R. Dimi's report.
21. In the report of Rabin.
22. According to the first statement no possession is acquired even in the case where the two fields were assigned as an inheritance to one person, much less where they were so assigned to two persons, while according to the second statement, possession is acquired even in the case of two fields and two persons.
23. R. Dimi and I (Rabin).
24. Where the expression of 'inheritance' was used together with that of 'gift', in the case of two persons and two fields.
25. Both acquire possession of the respective fields, because the testator had used the expression, 'I had assigned to them as a gift', implying that the gift was made before it was assigned as 'inheritance' (R. Gersh.).
26. Where the expression of 'gift' was used with that of 'inheritance'.
27. This is in agreement with the statement of R. Dimi in the name of R. Johanan, supra.
28. Agreeing with the view of R. Eleazar, supra.
29. As Rabin stated in the name of R. Johanan.
30. Lit., 'whence do I say it? For it was taught'.
31. A dying person, or one setting out on a long journey.
32. Out of the estate he leaves behind.
33. For their maintenance.
34. Sela' = two shekels.
35. By mentioning shekel, the father did not imply the exclusion of the bigger sum. He only meant to convey his wish that his sons were no to be given more than their weekly requirements.

others¹  shall be his heirs in their stead, only a shekel [a week] is to be given to them, whether he used the expression 'give' or 'give no [more]'.²  Now here, surely, it is [a case] similar to that of two fields³  and two persons,⁴  and yet it is taught that possession is acquired.⁵  He raised this⁶  as an objection [to the opinions of his colleagues]⁷  and he [himself] gave the reply: [The Baraitha⁸  deals with such persons] as are entitled to be his heirs,⁹  and this [law is in agreement with the law of] R. Johanan b. Beroka.¹⁰

R. Ashi said: Come and hear! [If a person said], '[I give¹¹] my estate to you; and after you, X shall be [my] heir; and after X,¹²  Y shall be heir', [when the] first dies, the second acquires the ownership; when the second dies, the third acquires the ownership. And if the second died in the lifetime of the first, the estate reverts to the heirs of the first.¹³  Now here, surely, [the case] resembles that of two fields and two persons¹⁴  and yet it was taught that possession is acquired!¹⁵  And if it be suggested [that] here also [one deals with the case of one] who is entitled to be his heir and [that] it¹⁶  is [in accordance with the view of] R. Johanan b. Beroka;¹⁷  if so,¹⁸  [the question arises, how can it be said that if] the second died, the third acquired possession? Surely, R. Aha the son of R. Iwya sent [the following message]: According to the view of R. Johanan b. Beroka,¹⁹  [if one said],²⁰  'My estate [shall be] yours, and after you [it shall be given] to X', and the first is [one who is] entitled to be his heir, the second has no [claim] whatsoever in face of the first,²¹  for this²²  is not a [specific] expression of 'gift' but [rather] of 'inheritance'²³  and an inheritance cannot be terminated.²⁴  [Is not this²⁵  then,] a refutation of [the views of] all of them?²⁶  — This is a refutation.

May this be regarded also as a refutation of [the view of] Resh Lakish?²⁷  — [How can] you think so! Did not Raba say,²⁸  'The law is in accordance with [the views] of Resh Lakish in these three [cases]'?²⁹  — [This is] no difficulty, [for] here,³⁰  [the expressions of 'gift' and 'inheritance' may have been uttered] one immediately after the other;³¹  there,³²  [the two expressions] may not have been uttered one immediately after the other.³³

And the law is that [expressions uttered] immediately after one another³¹  [are] always [regarded] as having been uttered simultaneously, except, [in the case of] idolatry³⁴

1. Whom he nominated.
2. Since it is obvious that he desired to economise in the weekly maintenance of his children in order that as much as possible may remain for his appointed heirs.
3. (a) The total sum of the shekels to be given to the children and (b) the sum to be given subsequently to his appointed beneficiaries.
4. (a) The children, (b) the other heirs. In the case of the former he used the expression of 'giving'; in that of the latter, 'inheritance'.
5. By the appointed heirs. Since it has been said that the children were not to be given more than a shekel a week in order to leave as much as possible for the appointed heirs, it is obvious that the latter acquire possession. Thus, the law of R. Shesheth is proved.
6. The Baraitha cited.
7. R. Hamnuna and R. Nahman, who stated that in such a case one cannot dispose of an 'inheritance' to strangers.
8. Which allows one to bequeath his estate by the use of the term 'inheritance'.
9. He did not bequeath the estate to strangers, but to one or more of his legal heirs. Hence the question of the use of the term 'inheritance' does not arise.
10. Who allows the appointment to an estate of one of the heirs to the exclusion of all others, infra 130a.
11. Using the expression of gift.
12. Lit., 'after after you'.
13. The third can gain possession from the second only, and since the latter died before he himself gained possession, the entire estate must revert to the first.
14. (a) The 'gift' of usufruct to the first, and (b) the transmission thereof as 'inheritance' to the second or the entire estate to the third.
15. which shows that, even in such a case, the term 'gift', used with reference to one, makes effective the term 'inheritance' applied to the other.
16. The statement declaring the term 'inheritance' effective.
17. V. p. 539, n. 12.
18. That the second was not a stranger, but an heir.
19. Who holds that provided the beneficiaries are heirs, the testator can distribute his property among them in any manner he thinks fit.
20. Without specifying whether as a 'gift' or an 'inheritance'.
21. Or his heirs.
22. The vague expression, 'shall be yours'.
23. Since the person is a legal heir.
24. An estate, once bequeathed by a father to one of his heirs, becomes the absolute property of that heir, from whom it is transmitted to his own heirs. The father has no right to interrupt his succession by appointing any other person as second heir.
25. The Baraitha cited by R. Ashi.
26. All the Amoraim who maintained, supra, that if one gave instructions for field to be given as an 'inheritance' to one person and as a 'gift' to another, his instructions are invalid. As has been proved, the Baraitha cited by R. Ashi does not, as has been suggested, deal with the case of one who is entitled to be heir, but with that of any stranger appointed by the testator; and, though the estate was given as a 'gift' to one, and as an 'inheritance' to another, possession is acquired, the instructions of the testator being obviously regarded as legally valid. How then, could the Amoraim mentioned maintain that the testator's instructions in such a case are invalid, and that the person appointed as heir does not acquire possession of the estate?
27. Who holds the opinion that the expression of 'gift' used in connection with the one, does not make effective the term 'inheritance' applied to the other.
28. Yeb. 36a, Hul. 76a.
29. Of which the view he advanced here is one. Surely, it would not have been regarded as law if it were refuted by the Baraitha.
30. In the Baraitha; according to which possession is acquired when the expression 'gift' was used in the case of one and that of 'inheritance' in the case of the other.
31. [H], lit., 'within as much (time) as is required for an utterance', i.e., the time needed to utter a short greeting such as, 'Peace be upon thee my master', represented by the three words, [H]
32. In the statement of Resh Lakish.
33. Lit., 'after the time required for an utterance.
34. I.e., if one set aside an object for idol worship, though he withdrew immediately, the object remains prohibited. [Or, according to Tosaf. if a man proclaims an idol as his god, his immediate retraction does not save him from the death penalty. (V. Ned. 87a.)]