one refers to the case1 where he protested2 and the outset;3 the other,1 where he kept silent at first and then4 protested.5 R. Nahman b. Isaac said: [If a donor] transferred ownership to one through the medium of another and [the former] kept silent;6 and ultimately7 protested, we have arrived at a dispute8 between Rabban Simeon b. Gamaliel and the Rabbis. For it was taught: [If a person] had assigned to another, in writing, an estate of his, part of which consisted of slaves; and the latter9 said, 'I do not want them',10 they11 may, [nevertheless], if their second master12 was a priest, eat of the heave-offering.13 Rabban Simeon b. Gamaliel said: As soon as the donee14 had said, 'I do not want them', the heirs [of the testator] become their legal owners.15 And [when] we were discussing the subject [the question was raised, would] the first Tanna [consider the assignee legal owner] even if he stands and protests? — Raba, and some say R. Johanan, said: [in the case] where he protested from the outset, all agree16 that he does not acquire ownership. [If he first] kept silent and finally he protested. all agree16 that he does acquire ownership.'They are in disagreement only [in the case] where the [testator] transferred ownership to the donee through a third party,17 and [he at first] kept silent and finally he protested. [In such a case], the first Tanna holds the opinion [that] since he kept silent [at first] he acquired ownership, and that [the reason] why he protests [now is because] he has simply changed his mind. Rabban Simeon b. Gamaliel, however, holds the opinion [that] his final [act] proves what [he had in his mind] at the beginning, and that [the reason] why he did not then18 protest [is] because he thought. 'Why should I cry before they come into my possession! Our Rabbis taught:19 If a dying man20 said, 'Give two hundred zuz to X, three hundred to Y, and four hundred to Z', it must not be assumed21 [that] whoever is [mentioned] in the deed first gains possession [first]. Hence, [if] a note of indebtedness was produced against him,22 [the debt] is to be collected from all of them.23 [If], however, he22 said, 'Give two hundred zuz to X, and after him [three hundred zuz] to Y, and after him [four hundred zuz] to Z', the law is24 [that] whoever is [mentioned] first in the deed acquires possession [first].25 Hence, [if] a note of indebtedness was produced against him,22 [the debt] is collected from the last [mentioned]. [If] he has not [enough], collection [of the balance] is made from the one [mentioned] before him. If the share of this one also does not suffice,26 collection [of the remaining balance] is made from the one mentioned first.27 Our Rabbis taught: If a dying man said,28 'Give two hundred zuz to X [who is] my firstborn son, in accordance with his due', he receives these as well as29 [the portion of] his birthright.30 If, [however], he said, 'As his birthright'.31 he32 is given the choice.33 He may, if he wishes, receive these;34 he may, if he prefers, receive the portion of his birthright. [If] a dying man said, 'Give two hundred zuz to X [who is] my wife, in accordance with her due', she receives these as well as35 her kethubah. If, [however], he said 'as her kethubah'36
Baba Bathra 138bshe is to have the choice.1 She may, if she wishes, receive these, she may, if she prefers, receive her kethubah. [If] a dying man said, 'Give two hundred zuz to X [who is] my creditor, in accordance with his due', he2 receives these as well as his debt.'3 If, [however], he said, 'as his debt',4 he receives these in [payment of] his debt. Should he5 then, because he6 said, in accordance with his due', receive these and receive [also] his debt, when it is possible that he meant, 'in accordance with what is his due on account of the debt'? — R. Nahman replied: Huna has told me that this law represents the view of7 R. Akiba who draws inferences [from] superfluous expression[s]. For we learnt:8 [He9 sold] neither the cistern nor the cellar, even though he has included in the contract10 depth and height.11 He12 must, however, buy for himself a passage [to these];13 these are the words of R. Akiba. But the Sages say: He12 need not buy for himself a passage. R. Akiba, however, admits that where he12 said to him, 'except these',14 he need not buy a passage for himself.15 From this it clearly follows [that] where [a person] mentioned [that] which was not necessary, his object was16 to add something; [so] here also, since he mentioned [that]17 which was not necessary, his object was to add something.18 Our Rabbis taught: If a dying man said, 'X owes me a maneh', the witnesses may write [it down].19 although they do not know [whether there is any truth in the statement].20 Consequently, when [the debt] is collected, proof21 has to be brought;22 these are the words of R. Meir. But the Sages say: [The witnesses must] not write unless they know [the statement to be true].23 Consequently, when [the debt] is collected, there is no need for proof to be produced.24 R. Nahman said: Huna told me [that] a tanna reported [the following]: R. Meir said, '[The witnesses] must not write', and the Sages say, 'They may write'; and even R. Meir said this25 only on account of26 a court [that might] err.27 R. Dimi of Nehardea said: The law is[ that] there is no need to provide against28 all erring court.29 And why [is this case] different from [that] of Raba? For Raba said:30 Halizah must not be arranged unless [the court] know [the widow and her brother-in-law], nor may a declaration of refusal31 be accepted unless [the court] know [the parties]. Consequently32 [it is permissible for witnesses]33 to write out a certificate of halizah34 as well as a certificate of refusal34 even though they do not know [the parties].35 [Has not this precaution36 been taken] in order to provide against an erring court!37 No;38 a court does not minutely examine [the decision of] another39 court;40 [that of]39 witnesses, [however], it does minutely examine.41
MISHNAH. A FATHER42 MAY PLUCK [THE FRIT] AND GIVE IT TO ANY ONE HE WISHES FOR CONSUMPTION; AND ANY PLUCKED [FRUIT] WHICH HE LEAVES [AFTER HIS DEATH] BELONGS TO [ALL] THE HEIRS.43
GEMARA. PLUCKED [FRUIT] only belongs to all the heirs,44 [but] not [fruit] that is still attached to the ground?45 - To Next Folio -
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