This [law is a matter of dispute between] Tannaim.1 For it was taught: [If a person said.] My estate [shall be] yours, and after you [it shall be given] to X', and the first [recipient] went down [into the estate] and sold [it] and spent [the money],2 the second may reclaim [the estate] from those who bought it;3 [these are] the words of Rabbi. Rabban Simeon b. Gamaliel said: The second [may] receive only what the first had left.4
An incongruity was pointed out: [If a person said]. 'My estate [shall be] yours and after you [it shall be given] to X', the first [may] go down [into the estate], and sell [it] and spend [the money; these are] the words of Rabbi. Rabban Simeon b. Gamaliel said: The first has only [the right of] usufruct. [This, surely, presents] a contradiction [between one statement] of Rabbi and the other statement of his,5 and [between one statement] of Rabban Simeon b. Gamaliel and the other statement of his!6 — There is no contradiction between the two statements of Rabbi,7 [since] one8 [may refer] to the capital;9 and the other,10 to the usufruct.11 There is [also] no contradiction between the two statements of Rabban Simeon b. Gamaliel12 [since] one13 may speak of what is the proper thing;14 the other, of the law ex post facto.15
Abaye said: Who is a cunning rogue? — He who counsels16 to sell an estate,17 in accordance with Rabban Simeon b. Gamaliel.18
R. Johanan said: The halachah is according to Rabban Simeon b. Gamaliel, who [however], admits that if [the estate] was assigned19 as the gift of a dying person, the transaction is invalid.20 What is the reason? — Abaye said, [because] the gift of a dying person is acquired only after death, and [by that time] 'after you'21 had preceded him.22 But did Abaye say so? Surely it was stated: When is possession of the gift of a dying man acquired? Abaye said, 'at death', and Raba said, 'after death'!23 Abaye withdrew from that opinion.24 Whence [is it proved] that he withdrew from this view,24 perhaps he withdrew from that?25 — This cannot be entertained,26 for we have learnt: [If a dying man27 said to his wife] 'Here is thy divorce should I die'28 [or] 'Here is thy divorce [after] my present illness'29 [or] 'Here is thy divorce after [my] death', [the divorce in all these cases] is invalid.30
R. Zeira said in the name of R. Johanan: The halachah is according to Rabban Simeon b. Gamaliel and even if the estate contained slaves whom he liberated.31 [Is this not] obvious? — It might have been presumed [that] he could be told that it was not given to him for the purpose of doing what was prohibited,32 hence he taught us [that we do not say so].
R. Joseph said in the name of R. Johanan: The halachah is according to Rabban Simeon b. Gamaliel and even in the case where a dead man's shrouds were made of it.33 [This is surely] obvious! It might have been presumed that it was not given to him34 to turn35 into [something of which it is] forbidden to have any benefit36 so he taught us [that this is not so].
R. Nahman b. R. Hisda gave the following exposition. [If one said to another]. 'This ethrog37 is given to you as a gift, and after you38 [it shall be given] to X', [and] the first [recipient] took it and performed with it his duty,39 — this will be a point of dispute40 between Rabbi and Rabban Simeon b. Gamaliel.41 R. Nahman b. Isaac demurred: The dispute between Rabbi and Rabban Simeon b. Gamaliel can only extend as far as [the case] there42 because [one] Master is of the opinion [that] acquisition of usufruct is like the acquisition of the capital, and the other] Master is of the opinion [that] acquisition of the usufruct is not like the acquisition of the capital, but here,43
Original footnotes renumbered.
- The view of one of whom is advanced by R. Johanan.
- Lit., 'ate'.
- After the death of the first, who was entitled to usufruct only and had no right to sell the estate itself.
- According to this view, the first, being in possession of the usufruct, is regarded as being also in the possession of the capital itself, R. Johanan follows Rabban Simeon b. Gamaliel.
- Lit., 'on that of Rabbi'.
- Lit., 'on that of Rabban Simeon b. Gamaliel'.
- Lit., 'of Rabbi on that of Rabbi'.
- Allowing the second to reclaim what the first had sold.
- Which is not the possession of the first, and which he has, consequently, no right to sell. Hence it may rightly be reclaimed from the buyer.
- Which confers upon the first the right to sell.
- I.e., the fruit only, which certainly belongs to him and which he may certainly sell.
- Lit., 'of Rabban Simeon b. Gamaliel on that of R. Simeon etc.!
- According to which the first has only the right of usufruct.
- [H] 'as at the commencement', 'for a start'. The proper thing is that the first shall respect the wishes of the testator (who obviously desired the second to have at least some of the estate), and dispose of the usufruct only, leaving the capital itself intact for the benefit of the second.
- [H] 'having been done', i.e., if the first had not come to inquire whether he is entitled to sell the land, but, acting on his own, has sold all, or part of it, the second can only receive what the first had left.
- [Rashb.; R. Gersh, renders, 'who takes counsel with himself.']
- Which was given to a person with the stipulation that after his death it shall be transferred to another person.
- Though the sale is morally wrong, since the original owner meant the second beneficiary to have the estate after the death of the first, it is legal in accordance with the view of Rabban Simeon b. Gamaliel. [According to the explanation of Rashb., it is only he who counsels, that is dubbed 'cunning rogue', since he derives no benefit therefrom.]
- By the first recipient.
- And the second beneficiary may reclaim it from the donee.
- I.e., the second beneficiary, with reference to whom the original owner and testator had said to the first beneficiary, 'after you it shall be given' etc.
- The second beneficiary acquires ownership of the estate, on the strength of the instructions of the original owner, at the very moment the first died. The owner, by his instruction, 'after you to X', has clearly intimated that the first was to have the estate only while alive. As soon, therefore, as he dies, X acquires possession. The person, however, to whom the first assignee has presented the estate, 'as the gift of a dying man', does not acquire possession until after the death of the donor. Hence, 'after you' had anticipated him,
- Since Abaye, here, holds the view that the gift of a dying man is acquired at death, how could it be said that according to him such a gift is acquired after death?
- That the gift is acquired at death.
- According to which ownership is acquired after death,
- Lit., 'It (should) not enter your mind',
- Desirous that his wife shall have the status of a divorced woman (to exempt her, e.g., from the levirate marriage), and not that of a widow.
- I.e., when he dies, the divorce shall become effective.
- I.e., after death will have brought it to an end.
- Lit., 'he said nothing'. because he meant that the divorce shall not become effective except when he died, but after death one cannot give a divorce similarly, in the case of the gift of a dying man, possession was meant to be acquired after and not in death.
- The liberation is valid.
- It is prohibited to liberate a heathen slave. Cf. Lev. XXV, 46.
- Lit., 'he made them into a shroud for the dead', i.e., the gift or any part of its proceeds was used for the purpose.
- Lit., 'they (or we) did not give you'.
- Lit., 'to make them'.
- Lit., 'prohibitions of use'. A dead man's shroud may not be used for any other purpose, nor may any benefit be derived from it. (v. Sanh. 47b).
- [H] a fruit of the citrus family used with the palm leaves, myrtle and willows on the Festival of Tabernacles. Cf. Lev. XXIII, 40.
- I.e., after his death.
- Lit., 'and he went out (from his obligation) by it', i.e., he used it in the prescribed manner and recited the proper benediction.
- Lit., we have arrived at the dispute'.
- According to Rabbi he has not properly performed his duty; since the commandment relating to ethrog requires the fruit itself to be the property of him who makes liturgical use of it, while the ethrog, in this case, does not itself belong to him, he having received it for use only. According to Rabban Simeon R. Gamaliel, however, who allows the first recipient to sell the estate as his own property, the ethrog also is regarded as his own property, and may therefore be used for the performance of the commandment.
- Where the gift consisted of an estate which produced fruit.
- The case of the ethrog.
Baba Bathra 137b
if [the first recipient] is not able1 properly to perform the precept2 therewith, for what [other purpose] was the thing given to him!3 But [it is obvious] that no one [can]4 dispute [the view] that [the first recipient] may properly perform the commandment with it;5 [as regards, however, the case where] he sold, or consumed it, this will be a point of6 dispute between Rabbi and Rabban Simeon b. Gamaliel.7
Rabbah son of R. Huna said: When brothers acquired an ethrog8 out of an [inherited] estate,9 [and] one of them used for its ritual purpose,10 if he is able to eat it,11 he has [also] properly acquitted himself of his ritual duty;12 but if not, he has not acquitted himself of his ritual duty.13 This, however, only in the case where an ethrog is available for everyone [of the brothers].14
Raba said: [If one said to another,] 'This ethrog is given to you as a gift on the condition that you return it to me', [and the recipient] used it for its ritual purpose,15 then if he [subsequently] returned it, he is exempt;16 [if] he did not return it, be is not exempt. [Hereby] we are taught that a gift [presented] on the condition that it be returned is regarded as a [proper] gift.17
A certain woman owned a palm-tree on ground belonging to R. Bibi b. Abaye. Whenever she went to cut it he showed resentment, [so] she made it over to him for life.18 He thereupon went and made it over to his little son.19 R. Huna the son of R. Joshua said: 'Because you are [yourselves] frail [beings] you speak frail words.20 Even Rabban Simeon b. Gamaliel gave his decision only [in the case where the original owner had assigned the estate] to another [person], but not when [it is to return] to [the owner] himself'.21
Raba said in the name of R. Nahman: [If one said to another], 'This ox is given to you as a gift on the condition that you return it to me', [and the recipient] consecrated, and returned it, both the consecration and the restitution are legally valid.22 '[But] what', asked Raba of R. Nahman, 'has he returned to him?'23 'And what', replied the other, 'has he taken away from him?'24 But, said R. Ashi, the matter is looked into: If he said to him, 'on condition that you return it' [he has no claim upon the donee, for] he had surely returned it, if, [however], he said to him, 'on condition that you return it to me', [he can claim compensation], since he implied [that the return must be of] a thing which he may use. Rab Judah said in the name of Samuel: [If a person] assigned his estate, in writing, to another, and the latter25 said, 'I do not want it', he acquires possession [of it] even if he stands and protests.26 R. Johanan, however, said: He does not acquire possession. R. Abba b. Memel said: There is [really] no difference of opinion between them;
Original footnotes renumbered.
- According to Rabbi.
- Lit., 'if to go out, he cannot go out'.
- Not being allowed to consume the fruit, the only other purpose for which one can use an ethrog is for the performance of the commandment.
- Lit., 'all the world do not'.
- Cf. n. 4, supra.
- V. p. 580, n. 12.
- according to Rabbi he does, nad according to Rabban Simeon he does not pay compensation to the second, the ethrog itself, through not productive of any usufruct, being treated as capital in relation to the ritual performed with it.
- Either as part of the estate or by purchase from its proceeds,
- Lit., 'that which belongs to the house'; i.e., before the division of the property had taken place.
- Lit., 'he took it and went out (from obligation) thereby'.
- I.e., if the brothers do not object to his consumption of the fruit.
- Lit., he went out'. Cf. n. 12, supra.
- Since an ethrog cannot be used for its ritual purpose unless it is in the exclusive possession of him who uses it, the ethrog of the inherited estate cannot be regarded as being in the undisputed possession of one of the brother unless it is known that the others do not object to his complete consumption of it.
- Some edd., 'but not a quince or a pomegranate'.
- V. p. 581, n. 12.
- I.e., he has properly performed his ritual obligation.
- I.e., it is considered for the time being the property of the recipient.
- On the understanding that after R. Bebai's death it would revert to her or her heirs
- So that, according to the view of Rabban Simeon b. Gamaliel, the woman could not claim it after his death.
- [H] 'frail things', applied to both people and words. [H] = because you. Others, [H] 'because you are descendants of short-lived people'. Abaye was a descendant of the house of Eli who were condemned to die young. V. I, Sam. II, 32. [Levias. HUC 1904, 155, connects the phrase with the Arabic 'to be foolish'.]
- Here, the woman stipulated that the tree shall revert to her. Hence, R. Bibi's transfer to his son is legally invalid.
- Lit., it is consecrated and returned'.
- The consecrated animal can no longer be used by him.
- The ox he presented has been returned bodily intact.
- Lit., 'that one'.
- Lit., 'cries'.