Babylonian Talmud: Tractate Baba Bathra

Folio 148a

If a dying man said, 'Give my loan to X',¹  his loan is [immediately] acquired by X;²  although a man in good health has no³  [such power]!⁴ — R. Papa replied: Since an heir inherits it.⁵  R. Aha the son of R. Ika replied: A loan is also transferable⁶  in [the case of] a man in good health; and [this is) in accordance with [the statement] of R Huna in the name of⁷  Rab. For R. Huna said in the name of Rab: [If one said] 'You owe me a maneh, give it to X', in the presence of the three persons,⁸  X acquires possession.

The question was raised: [If dying man gave instructions for his] date-tree [to be given] to one [person] and the fruit thereof to another, what [is the law.]? Has he [in such a case]. left [for himself] the place of the fruit⁹  or did he not leave?¹⁰  If [some reason] be found for the decision¹¹  [that if the fruit were given] to another [person, the dying man does] not reserve [their place, the question may be asked]: What [is the law if] he said,¹²  except its fruit'?¹³

Raba said in the name of R. Nahman: [Even] if [some reason] be found for the decision¹⁴  [that in the case where the] date-tree [was given] to one [person] and the fruit thereof to another, the place of the fruit is not [regarded as] reserved, [if he specifically added,] 'Except its fruit', he [thereby] reserved the place of the fruit; and [this is] in accordance with [the view of] R, Zebid¹⁵  who stated that if he wished to attach mouldings to it he may do [so]. From this it clearly follows that because he reserved the upper storey he also reserved the place of the mouldings. [so] here also, since he said, 'Except its fruit'. he reserved the place of the fruit.

R. Abba said to R. Ashi: We learnt it¹⁶  in connection with [the following statement] of R. Simeon b. Lakish. For R. Simeon b. Lakish stated: When someone, in selling a house to another, told him, 'On condition that the upper storey [remains] mine', the upper storey [remains] his.¹⁷

1. I.e. — the verbal loan which someone owes him shall he paid by that person to X.
2. Through the mere verbal instruction of the testator. Had he been in good health. he could not transfer in this way a verbal loan, which, since a person usually spends the money he borrows, is not In existence.
3. Lit., 'it is not'.
4. He cannot transfer an abstract thing (cf. p. 637 n. 16). How', then, could it be said that. apart from only one difference (v. note 6), there was no distinction between the power of a healthy, and those of a dying man?
5. I.e.. the verbal loan; it is considered to be in the possession of the dying man who accordingly has the power to transfer it as gift to another person. since the gift of a dying man is treated as an inheritance, v. infra 149a. This, however, does not apply to a man in good health, since his gift is not regarded as an inheritance.
6. Lit., 'it is'.
7. Lit., 'said',
8. The creditor, borrower and X; v. 147b-148a.
9. On the branches; and since the branches are attached to the tree they are regarded as ground. Consequently it is a case of one who left for himself some ground, and who, in accordance with our Mishnah, cannot withdraw his gift. even if he recovers.
10. And when he gave the tree to the first, he gave him the branches also. Hence he left for himself no ground at all, and can withdraw the gift if he recovers.
11. Lit., 'to say'.
12. The text and interpretation here adopted (cf. Rashb. second version; R. Gersh. first versionl; and BaH, a.l.) differ from the version in the current editions and from its rather difficult interpretation to which commentators had recourse. A translation of that version would run somewhat as follows: (If he left the fruit) for himself (giving away the tree) except its fruit, what (is the law)? (Is it assumed that for oneself one makes liberal reservation and, consequently. he left for himself the place of the fruit also, and the gift is. accordingly, valid; or is there no difference between reserving for oneself and for another)? Raba said in the name of R. Nahman: If (some reason) could be found for the decision (that where a person gave) a date-tree to one (man) and its fruit to another, the place of the fruit is not reserved; (if he gave) a date-tree to one and reserved the fruit for himself, he did reserve the place of the fruit. What is the reason? — Wherever it is a case of personal interests one makes liberal reservation.
13. In addition to, 'Give him the date tree'. Does the superfluous addition, 'except etc.', imply that he wished to reserve for himself the place of the fruit and, consequently, he cannot anymore withdraw? (V. note l).
14. V. note 3'
15. V. notes on R. Zebid's statement, infra 148b.
16. The enquiry above, and R, Nahman's statement.
17. Supra 63a, 64a.

The question was [accordingly] raised: [If one sold] a house to one and [its] upper storey to another, what [is the law']? Is it [assumed that he] reserved [some air space in the courtyard]¹  or not? If [some reason] could be found [for the decision that if] a house [was sold] to one and [its] upper storey' to another [the seller] reserved nothing [of the air space of the courtyard], what [is the law when he specifically added]. 'Except its upper storey'? Raba said in the name of R, Nahman: If you can find [a reason] for the decision [that he who sold] a house to one and [its] upper storey to another has not reserved [anything from the air space of the courtyard, if he specifically added]. 'Except [its] upper storey', he did reserve [a portion of the air space of the courtyard]. And [this is] in accordance with [the view] of R. Zebid who stated that if he²  wished to attach³  mouldings to it,⁴  he may do so.⁵  From this it clearly follows [that] because he [specifically] reserved [for himself] the upper storey. he has also reserved the place of the mouldings.

R. Joseph b. Manyumi said in the name of R. Nahman: If a dying man gave all his property in writing. to strangers,⁶  [the following] should be noted: If he did it by way of distribution,⁷  [then if] he died all of them acquire possession;⁸  [if] he recovered he may withdraw in [the case of] all of them.⁹  If, [however,] he did it after consideration,¹⁰  [then if] he died, all of them acquire possession;⁸  [if] he recovered, he may only withdraw in [the case of] the last,¹¹  But is it not possible that he merely considered the [matter]¹²  and then gave [the further gifts]? — It is usual for a dying man carefully' to consider [the whole matter] first and subsequently to distribute [the gifts].¹³

R. Aba b. Manyumi said in the name of R. Nahman: If a dying man gave all his property. in writing, to strangers and [then] recovered, he may not withdraw [the gifts], since it may be suspected that he has possessions in another country¹⁴  Under what circumstances, however, is [the case of] our Mishnah, where it is stated [that if] he did not leave some ground his gift was invalid, possible? — R. — Hama replied: [In the case] where he said, 'All my possessions'.¹⁵  Mar son of R. Ashi replied: [In the case] where it is known to us that he has none.¹⁶

The question was raised: Is partial withdrawal¹⁷  [considered] complete withdrawal¹⁸  or not?¹⁹  — Come and hear: [If a dying man gave] all his possessions²⁰  to the first, and a part of them²¹  to the second, the second acquires ownership [and] the first does not. Does not [this refer to the case] where [the testator] died?²² — No; where he recovered.²³  Logical reasoning also supports this [view];²⁴  since the final clause reads: [If he gave] a part of his possessions²⁵  to the first and all of them²⁶  to the second, the first acquires ownership [and] the second does not.²⁷  [Now,] if [the Baraitha] is said [to refer to the case] where he²⁸  recovered, one can well understand why the second does not acquire possession;²⁹  if, however, it is said [to refer to the case] where he²⁸  died, both should have acquired ownership!³⁰  R. Yemar said to R. Ashi: Even if it³¹  be explained³²  [as referring to the case] where he³³  recovered [the following objection may be raised].³⁴  If it is said [that] partial withdrawal is [considered] complete withdrawal, one can at least understand why the second acquires possession;³⁵  if, however, It is said [that] partial withdrawal is not [considered] complete withdrawal, [the testator] should be [regarded] as one who distributes [his possessions]³⁶  and none of them should acquire ownership!³⁷  And the law [is that] partial withdrawal is [considered] complete withdrawal. [Hence.] the first clause [of the Baraitha] may be applicable either [to the case] where he died or [to that] where he recovered:³⁸  the final clause can only be applicable [to the case] where he recovered.³⁹

The question was raised: [If a dying man] consecrated all his possessions and [subsequently] recovered, what [is the law]?⁴⁰  Is it assumed that whenever it is a case of consecrated objects the transfer of possession made is unqualified⁴¹  or, perhaps, when it is a matter of personal interests one does not transfer unqualified possession? [If the answer is in the affirmative, the question arises] what [is the law in the case where] he renounced the ownership of all his property?⁴²  Is it assumed that since [ownerless property may be seized] by the poor⁴³  as well as by the rich, he transfers [therefore] unqualified possession⁴¹  or, perhaps, whenever it is a matter of personal interests one does not transfer unqualified possession? [If the answer is in the negative,]⁴⁴  what, [it may be asked. is the law where] he distributed all his possessions among the poor? Is it assumed [that in a matter of] charity he has undoubtedly transferred unqualified possession or, perhaps, wherever it is a matter of personal interests one does not transfer unqualified possession? — This is undecided.

R. Shesheth stated: 'He shall take', 'acquire', 'occupy' and own'⁴⁵  [used by a dying man]⁴⁶  are all [legal] expressions denoting gift. In a Baraitha it was taught: [The expressions of] 'he shall receive the bequest'⁴⁷  and 'he shall be heir' [are] also [legal] in [the case of] one who is entitled to be his heir; and this is [in accordance with the view of] R. Johanan b. Beroka.⁴⁸

The question was raised

1. For the projection of mouldings from the upper storey.
2. The seller of the house.
3. Lit., 'to bring out',
4. The upper storey which he retained for himself by specifying when selling the house, 'except its upper storey'.
5. Lit., 'brings out'.
6. In succession. one after the other.
7. l.e., if his intention from the very beginning was to distribute all his estate among these.
8. Even if no legal acquisition took place. since the verbal gift of a dying man is legally valid.
9. Because he left nothing for himself, in which case, as stated in our Mishnah, he may withdraw the gifts he made in the expectation of death.
10. I.e., if his intention at first was not to give away all his estate, and only after giving a portion to one he reconsidered the matter and made the gifts to the others.
11. Because with the last gift, the dying man left nothing for himself. In the case of all the previous gifts there was always something over.
12. When pausing to think, he may not have been considering whether to give or not but only what to give. In which case his mind was made up from the beginning to distribute all his estate and, consequently. he should he able to withdraw all the gifts he made.
13. And since the man was pausing for reflection, after every gift he made. it is obvious that it was not his first intention to distribute all his estate.
14. And consequently he was not left destitute.
15. He did not present specified portions but all his possessions wherever they may be situated.
16. No other possessions than those of which he had disposed.
17. If a dying man presented all his estate to one person and then, in accordance with his rights (v. supra 135b). withdrew a part of the gift, and presented that part to another person.
18. Of the entire gift made to the first. The question is whether it is assumed that by his withdrawal of that part, presenting it to the second person. he also indicated the complete withdrawal of the entire gift he made to the first and that, therefore, when he made the gift to the second he was in possession of the rest of his estate; and, consequently, if he recovered he cannot withdraw the gift from the second; while if he died. his heirs may claim from the first the return of bis gift.
19. And the second acquires possession of whatever was given to him, while the first retains the ownership of the rest. If the testator subsequently recovers he may consequently withdraw both gifts (since when disposing of the estate he had left himself nothing), whereas if he dies the heirs would have no claim at all upon either of the donees.
20. Lit., 'all of them',
21. Which he withdrew from the first,
22. And if so, it may be proved from here that the withdrawal of a part is the same as the withdrawal of the whole,
23. And desires to withdraw the gifts. The first cannot retain possession because when the gift was made to him the testator was left with nothing. The right of ownership on the part of the second is discussed in the Gemara infra.
24. That the Baraitha cited refers to a case of recovery.
25. Lit., 'of them'.
26. [I.e., the remaining part of the estate (Alfasi).]
27. Ned. 43b.
28. The testator.
29. Because when he received the gift the testator had left for himself nothing.
30. Since in such a case possession is acquired by the recipients whether the testator had left anything for himself or not. Consequently it must he concluded that the final clause refers to the case where the testator recovered; and since the final clause refers to a case of recovery the first clause also must refer to such a case.
31. The first clause of the Baraitha cited.
32. Lit., 'and let it be also',
33. V note 9
34. To the argument that the Baraitha supplies no proof to the statement that the partial withdrawal is considered complete withdrawal,
35. Because when the part was given to him, the rest of the estate having been withdrawn from the first, the testator was in possession of some property.
36. Since the first is retaining the remainder of the estate while the second acquires possession of its part.
37. Owing to the fact that the testator in distributing his estate had left nothing for himself.
38. The second donee acquires ownership because when the gift was given to him the testator (having withdrawn the gift from the first) was in possession of property. The first does not acquire ownership because the gift has been withdrawn from him in favour of the testator (if he recovers) or his heirs (if he dies).
39. The first acquires ownership because when he was given the gift the testator was still in possession of some of his estate. The second does not acquire ownership because when the gift was given to him the testator had left for himself nothing. Had the testator died both would have acquired ownership.
40. May he withdraw his donation?
41. Without any reservation in case of recovery.
42. Placing them at the disposal of anyone who would take possession of them.
43. So that it is possible for the property to fall into the hands of some poor man.
44. Because the property may happen to fall into the hands of a rich man.
45. These expressions, some of which are synonymous, cannot be exactly rendered into English.
46. In making a gift to anyone.
47. V. p. 643, n. 8.
48. Who maintained supra 130) that a person may appoint one of his heirs to be the sole inheritor of all his estate.