Bava Batra 296

איבעיא להו בית לאחד ודיוטא לאחד מהו מי הוי שיור או לא אם תמצא לומר בית לאחד ודיוטא לאחד לא הוי שיור חוץ מדיוטא מהו

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]<span class="x" onmousemove="('comment',' For the projection of mouldings from the upper storey. ');">¹</span> 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 he<span class="x" onmousemove="('comment',' The seller of the house. ');">²</span> wished to attach<span class="x" onmousemove="('comment',' Lit., 'to bring out', ');">³</span>

אמר רבא אמר רב נחמן אם תמצא לומר בית לאחד ודיוטא לאחד לא הוי שיור חוץ מדיוטא הוי שיור ואליבא דרב זביד דאמר שאם רצה להוציא בה זיזין מוציא

mouldings to it,<span class="x" onmousemove="('comment',' The upper storey which he retained for himself by specifying when selling the house, 'except its upper storey'. ');">⁴</span> he may do so.<span class="x" onmousemove="('comment',' Lit., 'brings out'. ');">⁵</span> From this it clearly follows [that] because he [specifically] reserved [for himself] the upper storey. he has also reserved the place of the mouldings.

אלמא כיון דשייר דיוטא מקום זיזין נמי שייר (הכא נמי כיון דאמר חוץ מפירותיו מקום פירי שייר)

R. Joseph b. Manyumi said in the name of R. Nahman: If a dying man gave all his property in writing. to strangers,<span class="x" onmousemove="('comment',' In succession. one after the other. ');">⁶</span> [the following] should be noted: If he did it by way of distribution,<span class="x" onmousemove="('comment',' l.e., if his intention from the very beginning was to distribute all his estate among these. ');">⁷</span> [then if] he died all of them acquire possession;<span class="x" onmousemove="('comment',' Even if no legal acquisition took place. since the verbal gift of a dying man is legally valid. ');">⁸</span>

אמר רב יוסף בר מניומי אמר רב נחמן שכיב מרע שכתב כל נכסיו לאחרים רואין אם במחלק מת קנו כולן עמד חוזר בכולן

[if] he recovered he may withdraw in [the case of] all of them.<span class="x" onmousemove="('comment',' 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. ');">⁹</span> If, [however,] he did it after consideration,<span class="x" onmousemove="('comment',' 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. ');">¹⁰</span> [then if] he died, all of them acquire possession;<span class="x" onmousemove="('comment',' Even if no legal acquisition took place. since the verbal gift of a dying man is legally valid. ');">⁸</span>

אם בנמלך מת קנו כולן עמד אינו חוזר אלא באחרון ודלמא עיוני קא מעיין והדר יהיב סתמיה דשכיב מרע מידק דייק והדר יהיב

[if] he recovered, he may only withdraw in [the case of] the last,<span class="x" onmousemove="('comment',' 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. ');">¹¹</span> But is it not possible that he merely considered the [matter]<span class="x" onmousemove="('comment',' 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. ');">¹²</span> 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].<span class="x" onmousemove="('comment',' 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. ');">¹³</span>

אמר רב אחא בר מניומי אמר רב נחמן שכיב מרע שכתב כל נכסיו לאחרים ועמד אינו חוזר חיישינן שמא יש לו נכסים במדינה אחרת

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 country<span class="x" onmousemove="('comment',' And consequently he was not left destitute. ');">¹⁴</span> 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'.<span class="x" onmousemove="('comment',' He did not present specified portions but all his possessions wherever they may be situated. ');">¹⁵</span> Mar son of R. Ashi replied: [In the case] where it is known to us that he has none.<span class="x" onmousemove="('comment',' No other possessions than those of which he had disposed. ');">¹⁶</span>

ואלא מתני' דקתני לא שייר קרקע כל שהוא אין מתנתו קיימת היכי משכחת לה אמר רב חמא באומר כל נכסי מר בר רב אשי אמר במוחזק לן דלית ליה

The question was raised: Is partial withdrawal<span class="x" onmousemove="('comment',' 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. ');">¹⁷</span> [considered] complete withdrawal<span class="x" onmousemove="('comment',' 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. ');">¹⁸</span> or not?<span class="x" onmousemove="('comment',' 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. ');">¹⁹</span>

איבעיא להו חזרה במקצת הוי חזרה בכולה או לא תא שמע כולן לראשון ומקצתן לשני שני קנה ראשון לא קנה מאי לאו בשמת

— Come and hear: [If a dying man gave] all his possessions<span class="x" onmousemove="('comment',' Lit., 'all of them', ');">²⁰</span> to the first, and a part of them<span class="x" onmousemove="('comment',' Which he withdrew from the first, ');">²¹</span> to the second, the second acquires ownership [and] the first does not. Does not [this refer to the case] where [the testator] died?<span class="x" onmousemove="('comment',' And if so, it may be proved from here that the withdrawal of a part is the same as the withdrawal of the whole, ');">²²</span>

לא בשעמד

— No; where he recovered.<span class="x" onmousemove="('comment',' 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. ');">²³</span> Logical reasoning also supports this [view];<span class="x" onmousemove="('comment',' That the Baraitha cited refers to a case of recovery. ');">²⁴</span> since the final clause reads: [If he gave] a part of his possessions<span class="x" onmousemove="('comment',' Lit., 'of them'. ');">²⁵</span>

הכי נמי מסתברא מדקתני סיפא מקצתן לראשון וכולן לשני ראשון קנה שני לא קנה אי אמרת בשלמא בשעמד משום הכי שני לא קנה אלא אי אמרת בשמת תרוייהו ליקנו

to the first and all of them<span class="x" onmousemove="('comment',' [I.e., the remaining part of the estate (Alfasi).] ');">²⁶</span> to the second, the first acquires ownership [and] the second does not.<span class="x" onmousemove="('comment',' Ned. 43b. ');">²⁷</span> [Now,] if [the Baraitha] is said [to refer to the case] where he<span class="x" onmousemove="('comment',' The testator. ');">²⁸</span>

א"ל רב יימר לרב אשי ותהוי נמי בשעמד אי אמרת בשלמא חזרה במקצת הויא חזרה בכולה היינו דשני מיהת קנה אלא אי אמרת חזרה במקצת לא הויא חזרה בכולה ניהוי כמחלק ולחד מינייהו לא ליקנו

recovered, one can well understand why the second does not acquire possession;<span class="x" onmousemove="('comment',' Because when he received the gift the testator had left for himself nothing. ');">²⁹</span> if, however, it is said [to refer to the case] where he<span class="x" onmousemove="('comment',' The testator. ');">²⁸</span> died, both should have acquired ownership!<span class="x" onmousemove="('comment',' 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. ');">³⁰</span>

והלכתא חזרה במקצת הויא חזרה בכולה רישא משכחת לה בין שמת בין שעמד סיפא לא משכחת לה אלא כשעמד

R. Yemar said to R. Ashi: Even if it<span class="x" onmousemove="('comment',' The first clause of the Baraitha cited. ');">³¹</span> be explained<span class="x" onmousemove="('comment',' Lit., 'and let it be also', ');">³²</span> [as referring to the case] where he<span class="x" onmousemove="('comment',' V note 9 ');">³³</span>

איבעיא להו הקדיש כל נכסיו ועמד מהו מי אמרינן כל לגבי הקדש גמר ומקני או דלמא כל לגבי נפשיה לא גמר ומקני

recovered [the following objection may be raised].<span class="x" onmousemove="('comment',' To the argument that the Baraitha supplies no proof to the statement that the partial withdrawal is considered complete withdrawal, ');">³⁴</span> If it is said [that] partial withdrawal is [considered] complete withdrawal, one can at least understand why the second acquires possession;<span class="x" onmousemove="('comment',' 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. ');">³⁵</span> if, however, It is said [that] partial withdrawal is not [considered] complete withdrawal, [the testator] should be [regarded] as one who distributes [his possessions]<span class="x" onmousemove="('comment',' Since the first is retaining the remainder of the estate while the second acquires possession of its part. ');">³⁶</span>

הפקיר כל נכסיו מהו מי אמרינן כיון דאף לעניים כעשירים גמר ומקני או דלמא כל לגבי נפשיה לא גמר ומקני

and none of them should acquire ownership!<span class="x" onmousemove="('comment',' Owing to the fact that the testator in distributing his estate had left nothing for himself. ');">³⁷</span> 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:<span class="x" onmousemove="('comment',' 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). ');">³⁸</span> the final clause can only be applicable [to the case] where he recovered.<span class="x" onmousemove="('comment',' 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. ');">³⁹</span>

חילק כל נכסיו לעניים מאי מי אמרינן צדקה ודאי מגמר גמר ומקני או דלמא כל לגבי נפשיה לא גמר ומקני תיקו

The question was raised: [If a dying man] consecrated all his possessions and [subsequently] recovered, what [is the law]?<span class="x" onmousemove="('comment',' May he withdraw his donation? ');">⁴⁰</span> Is it assumed that whenever it is a case of consecrated objects the transfer of possession made is unqualified<span class="x" onmousemove="('comment',' Without any reservation in case of recovery. ');">⁴¹</span> 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?<span class="x" onmousemove="('comment',' Placing them at the disposal of anyone who would take possession of them. ');">⁴²</span>

(ל"א הקדיש כל נכסיו מהו הפקיר כל נכסיו מהו חילק כל נכסיו לעניים מהו תיקו)

Is it assumed that since [ownerless property may be seized] by the poor<span class="x" onmousemove="('comment',' So that it is possible for the property to fall into the hands of some poor man. ');">⁴³</span> as well as by the rich, he transfers [therefore] unqualified possession<span class="x" onmousemove="('comment',' Without any reservation in case of recovery. ');">⁴¹</span> or, perhaps, whenever it is a matter of personal interests one does not transfer unqualified possession? [If the answer is in the negative,]<span class="x" onmousemove="('comment',' Because the property may happen to fall into the hands of a rich man. ');">⁴⁴</span>

אמר רב ששת יטול ויזכה ויחזיק ויקנה כולן לשון מתנה הן במתניתא תנא אף יחסין וירת בראוי ליורשו ור' יוחנן בן ברוקא היא

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'<span class="x" onmousemove="('comment',' These expressions, some of which are synonymous, cannot be exactly rendered into English. ');">⁴⁵</span> [used by a dying man]<span class="x" onmousemove="('comment',' In making a gift to anyone. ');">⁴⁶</span>

איבעיא להו

are all [legal] expressions denoting gift. In a Baraitha it was taught: [The expressions of] 'he shall receive the bequest'<span class="x" onmousemove="('comment',' V. p. 643, n. 8. ');">⁴⁷</span> 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.<span class="x" onmousemove="('comment',' Who maintained supra 130) that a person may appoint one of his heirs to be the sole inheritor of all his estate. ');">⁴⁸</span> The question was raised