Bava Batra 261:1

מגמר נמי לא תגמרו מיניה דאין לדיין אלא מה שעיניו רואות

"nor infer [any law] from it" — because a judge must be guided only by that<span class="x" onmousemove="('comment',' Lit., 'a judge has nothing but'. ');">¹</span> which his eyes see. Raba inquired: What<span class="x" onmousemove="('comment',' Lit., 'how'. ');">²</span>

בעי רבא בבריא היאך כי קא"ר יוחנן בן ברוקה בשכ"מ דבר אורותי הוא אבל בבריא לא או דלמא אפילו בבריא נמי

[is the law in the case of] a person in good health?<span class="x" onmousemove="('comment',' Who appointed one of his legal heirs to inherit all his estate. ');">³</span> Does R. Johanan b. Beroka<span class="x" onmousemove="('comment',' In our Mishnah, supra 130a. ');">⁴</span> speak [only] of [the case of] a dying man, who has the right to appoint an heir [on the spot],<span class="x" onmousemove="('comment',' Without the necessity for a formal written document. The instructions of a dying man, though only verbal, are legally binding. ');">⁵</span>

אמר ליה רב משרשיא לרבא תא שמע דאמר לו רבי נתן לרבי שניתם משנתכם כר' יוחנן בן ברוקה דתנן לא כתב לה בנין דיכרין דיהוין ליך מינאי אינון ירתון כסף כתובתיך יותר על חולקיהון דעם אחוהון חייב שתנאי ב"ד הוא

but not [of] one [who is] in good health; or [does he] perhaps [speak] also even of one in good health? — R. Mesharsheya said to Raba: Come and hear: R. Nathan said to Rabbi,<span class="x" onmousemove="('comment',' R. Judah I, Editor of the Mishnah. ');">⁶</span> 'You<span class="x" onmousemove="('comment',' I.e., Palestinians. R. Nathan (v. infra) was a Babylonian. ');">⁷</span> have taught your Mishnah<span class="x" onmousemove="('comment',' Keth. 52b. ');">⁸</span>

ואמר לו רבי יסבון תנן

in accordance with [the views of] R. Johanan b. Beroka; for we learnt:<span class="x" onmousemove="('comment',' Keth. 52b. ');">⁸</span> [A husband who] did not give [his wife] in writing<span class="x" onmousemove="('comment',' As part of her kethubah, or marriage contract, ');">⁹</span> [the following statement, viz.], "The male children that will be born from our marriage<span class="x" onmousemove="('comment',' Lit., 'that you will have from me'. ');">¹⁰</span>

ואמר רבי ילדות היתה בי והעזתי פני בנתן הבבלי אלא דקיימא לן בנין דכרין לא טרפא ממשעבדי אי סלקא דעתך יסבון תנן אמאי לא טרפא ממשעבדי אלא ש"מ ירתון תנן

shall inherit<span class="x" onmousemove="('comment',' [H] ');">¹¹</span> the money of thy marriage settlement in addition to their shares with their brothers",<span class="x" onmousemove="('comment',' This provision is necessary, in the interests of the children, in case their mother predeceases their father who subsequently marries another wife who gives birth to new male children. ');">¹²</span> is [nevertheless] liable, because it is a condition<span class="x" onmousemove="('comment',' That the marriage settlement of a wife who predeceased her husband is to be inherited by her sons on the death of the husband. [The reason of this enactment is given by R. Simeon b. Yohai (Keth. 52b) 'in order that a man may be encouraged to give as liberal a dowry to his daughter as he would give to his son — for the fear lest the daughter's property should eventually go to another woman's children would make a father hesitate before dowering her as liberally as he would like on marriage.] ');">¹³</span>

מאן שמעת ליה דאית ליה האי סברא ר' יוחנן בן ברוקה ושמע מינה אפי' בבריא

laid down by the court'.<span class="x" onmousemove="('comment',' This shows that the Mishnah is in accordance with the views of R. Johanan. Why, then, Rabbi was asked, did he adopt the view of an individual against the Rabbis who were in the majority? ');">¹⁴</span> And Rabbi replied [to him]:<span class="x" onmousemove="('comment',' Keth. 55a. ');">¹⁵</span> "We learnt: they shall take".<span class="x" onmousemove="('comment',' Not 'inherit', i.e., as a gift and not as an inheritance. That a father has the right to give his estate as a gift, to whomsoever he desires, is disputed by no one. ');">¹⁶</span>

אמר ליה רב פפא לאביי בין למאן דאמר יסבון ובין למאן דאמר ירתון הא אין אדם מקנה דבר שלא בא לעולם

[Later], however, Rabbi stated: "It was childishness on my part to be presumptuous in the presence of Nathan the Babylonian. The fact is<span class="x" onmousemove="('comment',' Lit., 'but'. ');">¹⁷</span> that the law is well established [that] male children may not seize<span class="x" onmousemove="('comment',' Lit., 'it (the kethubah) may not' etc. ');">¹⁸</span> any sold property [of their father in payment for their mother's <i>kethubah</i>]".<span class="x" onmousemove="('comment',' Keth. 55a. ');">¹⁹</span>

ואפי' לר' מאיר דאמר אדם מקנה דבר שלא בא לעולם הני מילי לדבר שישנו בעולם אבל לדבר שאינו בעולם לא

[Now], if it is assumed [that] we learnt, "they shall take", why may they not seize sold property?<span class="x" onmousemove="('comment',' Which was really mortgaged to them prior to the sale. The right to the gift was acquired at once, i.e., on the date of the marriage contract. ');">²⁰</span> Consequently it must be inferred that we learnt: "they shall inherit"'.<span class="x" onmousemove="('comment',' Since an inheritance takes effect after the testator's death, the buyers of the property, purchase of which took place in the owner's lifetime, have the prior claim. R. Nathan's objection was, therefore, well founded. ');">²¹</span> [Now], who has been heard to hold this view?<span class="x" onmousemove="('comment',' Enunciated in the cited Mishnah. ');">²²</span>

אלא תנאי בית דין שאני הכא נמי תנאי בית דין שאני

[Surely] R. Johanan b. Beroka! Thus it may be inferred [that the law<span class="x" onmousemove="('comment',' Of R. Johanan in our Mishnah. ');">²³</span> applies] even to [the case of] one who is in good health.<span class="x" onmousemove="('comment',' Since here the appointment to heirship was made at the time of the marriage. ');">²⁴</span> R. Papa said to Abaye: Whether according to him who said, [that the reading<span class="x" onmousemove="('comment',' In the Mishnah cited by R. Nathan. ');">²⁵</span>

א"ל משום דקא מפיק לה בלשון ירתון

was] 'they shall take', or according to him who said [that the reading was], 'they shall inherit', [the question may be asked], surely one [has] not [the right] to give possession of something which is not yet in existence! And even R. Meir,<span class="x" onmousemove="('comment',' Lit., 'according to R. Meir'. ');">²⁶</span> who maintains [that] one may give possession of that which is not yet in existence, applies this law<span class="x" onmousemove="('comment',' Lit., 'these words'. ');">²⁷</span> [only to the case where the possession was given] to one who is [already] in existence,<span class="x" onmousemove="('comment',' At the time when possession was conferred. ');">²⁸</span>

הדר אמר אביי לאו מילתא היא דאמרי דתנן לא כתב לה בנן נוקבן דיהויין ליכי מינאי יהויין יתבן בביתי ויתזנן מנכסאי עד דתילקחן לגוברין חייב שהוא תנאי ב"ד

but not [to the case where possession is given] to one who does not exist.<span class="x" onmousemove="('comment',' How, then, can the children, who were not in existence when the marriage contract between their father and mother was written, acquire possession of their mother's kethubah? ');">²⁹</span> [The reason], however,<span class="x" onmousemove="('comment',' Why the children do acquire possession. ');">³⁰</span> [must be that] a condition [imposed] by a court is different [from an ordinary assignment],<span class="x" onmousemove="('comment',' Though a private assignment is not valid unless the assignee was alive at the time when it was made, an assignment based on the decision of a court takes effect in all cases. ');">³¹</span>

והוה לזה במתנה ולזה בירושה וכל לזה בירושה ולזה במתנה אפי' רבנן מודו

here, likewise,<span class="x" onmousemove="('comment',' In respect to the objection raised by R. Nathan. ');">³²</span> [it could have been explained<span class="x" onmousemove="('comment',' by Rabbi. ');">³³</span> that] a condition [imposed] by a court is different!<span class="x" onmousemove="('comment',' And all (even the Rabbis who elsewhere maintain that the expression of 'inherit' does not confer possession), agree that, in such a case, the assignment is valid. What need, then, was there for Rabbi to suggest a change if reading from 'inherit' to 'receive'? ');">³⁴</span>

אמר ליה רב נחומי ואית דאמר רב חנניה בר מניומי לאביי

— He replied to him: Because he [first] used the expression, 'they shall inherit'.<span class="x" onmousemove="('comment',' Instead of the generally more effective term 'take', denoting 'gift'. This seemed to imply agreement with the view of R. Johanan b. Beroka, as against that of the Rabbis. Hence, Rabbi preferred to change the reading. ');">³⁵</span> Subsequently, Abaye said: What I said is nothing,<span class="x" onmousemove="('comment',' There was really no need for Rabbi to suggest a change of reading, for in either case, whatever the reading, the Mishnah may be considered to be in agreement with both R. Johanan and the Rabbis. ');">³⁶</span> For we learnt:<span class="x" onmousemove="('comment',' Keth. 52b. ');">³⁷</span> [A husband who] did not give his wife in writing<span class="x" onmousemove="('comment',' Together with her kethubah. ');">³⁸</span> [the following] undertaking, viz., 'The female children that will be born from our marriage<span class="x" onmousemove="('comment',' Lit., 'which you will have from me'. ');">³⁹</span> shall live in my house and be maintained out of my estate until they shall be taken [in marriage] by men, is [nevertheless] liable, because that [fatherly duty] is a condition [imposed] by the court. Consequently, this<span class="x" onmousemove="('comment',' The husband's undertaking with reference to the male children on the one hand, and to that of the female children on the other. ');">⁴⁰</span> is a case of giving to one as a 'gift'<span class="x" onmousemove="('comment',' The maintenance of the daughters. There is legal obligation on a father to provide for the maintenance of his daughters. ');">⁴¹</span> and to another as an 'inheritance',<span class="x" onmousemove="('comment',' The sons are given their mother's kethubah as her legal heirs. ');">⁴²</span> and wherever [something is given] to one person as an inheritance and to another as a gift<span class="x" onmousemove="('comment',' And the expressions of 'gift' and 'inheritance' were used one immediately after the other. ');">⁴³</span> even the Rabbis agree [that the assignments are valid].<span class="x" onmousemove="('comment',' According to the Mishnah, supra 126b, which represents the opinion of the Rabbis, an assignment made by using the expression of inheritance is legally valid whenever the expression of 'gift' was used with it. This was explained in the Gemara, supra 129a, to apply even to the case of two separate fields given as an inheritance and a gift respectively to two different persons. Similarly, here, the kethubah for the sons and the maintenance for the daughters may be regarded as the assignment of an inheritance and a gift respecting two persons; and, since the two provisions were made by the same court and are to be entered in the same contract, the two clauses, one containing the term, 'inherit', and the other, 'give', may be assumed to follow in close proximity to one another; in which case the Rabbis also agree that both the inheritance and the gift are acquired. The question, therefore, remains why was Rabbi compelled to have recourse to a change of reading? ');">⁴⁴</span> R. Nihumai (one said, it was R. Hananya b. Minyumai) asked Abaye: