Bava Batra 304

בידוע שלא היה קנין אלא מחמת המיתה ואחוי ליה בידיה ואשתיק

because it is known that the [symbolic] acquisition took place<span class="x" onmousemove="('comment',' Cf. p. 656. n. 6. ');">¹</span> only on account of [his expectation of] death'!<span class="x" onmousemove="('comment',' From this it follows that if the testator did die the donee acquires possession after the death of the testator though a deed was written. How, then, could it be said in the name of Samuel that where a deed was written there can be no acquisition after death? ');">²</span> He answered him<span class="x" onmousemove="('comment',' LIt., 'showed.' 'told'. ');">³</span> by [a wave of] his hand and remained silent.<span class="x" onmousemove="('comment',' [Or 'he (Raba) remained silent', having understood what R. Nahman meant to signify by the wave of his hand.] ');">⁴</span>

כי קם אמר רב נחמן בר יצחק לרבא מאי אחוי לך אמר ליה במיפה את כחו

When he rose, R. Nahman b. Isaac asked Raba, 'What did he indicate to you?' [Raba] replied to him,' That Rab Judah's report refers to the case] where [the testator] strengthened the donee's claims.'<span class="x" onmousemove="('comment',' Lit., 'his power'. In such a case the donee acquires possession after death even where the testator ordered the writing of a deed. ');">⁵</span> In what manner [is it indicated that one wished to] strengthen the donee's claims? — R. Hisda replied: [By including in the deed the formula]. 'And we<span class="x" onmousemove="('comment',' I.e., 'witnesses'. ');">⁶</span> acquired from him<span class="x" onmousemove="('comment',' I.e., from the testator on behalf of the donee, by means of symbolic acquisition. ');">⁷</span> in addition to this [presentation of the] gift.'<span class="x" onmousemove="('comment',' Supra 136a. ');">⁸</span>

היכי דמי מיפה את כחו אמר רב חסדא וקנינא מיניה מוסיף על מתנתא דא

[It is] obvious [that where a dying man] gave [all his estate] in writing to one man<span class="x" onmousemove="('comment',' Lit., 'this'. ');">⁹</span> and [subsequently] to another<span class="x" onmousemove="('comment',' Lit., 'and he wrote to this'. ');">¹⁰</span> the [law is the] very same as [that which] R. Dimi enunciated when he came, [vis., one] will annuls [another] will.<span class="x" onmousemove="('comment',' Supra 135b. Hence the second donee acquires the ownership of the gift. ');">¹¹</span> [If. however.] he wrote [a deed of the gift] and handed<span class="x" onmousemove="('comment',' Cf. p. 656. n. 6. ');">¹</span>

פשיטא כתב לזה וכתב לזה היינו דכי אתא רב דימי אמר דייתיקי מבטלת דייתיקי כתב וזיכה לזה כתב וזיכה לזה רב אמר ראשון קנה ושמואל אמר שני קנה

it<span class="x" onmousemove="('comment',' Lit., 'caused him to merit', i.e., to acquire the right of 'ownership', by means of delivering to him the deed. ');">¹²</span> to one<span class="x" onmousemove="('comment',' Lit., 'this', presenting to him all his estate. ');">¹³</span> and [subsequently] wrote [a deed of the gift] and handed<span class="x" onmousemove="('comment',' Cf. p. 656. n. 6. ');">¹</span> it<span class="x" onmousemove="('comment',' From this it follows that if the testator did die the donee acquires possession after the death of the testator though a deed was written. How, then, could it be said in the name of Samuel that where a deed was written there can be no acquisition after death? ');">²</span>

רב אמר ראשון קנה הרי היא כמתנת בריא ושמואל אמר שני קנה הרי היא כמתנת שכיב מרע

to another,<span class="x" onmousemove="('comment',' Lit., 'this', presenting to him all his estate. ');">¹³</span> Rab said: The first acquires [its] ownership; while Samuel said: The second acquires [its] ownership. Rab said, 'the first acquires [its] ownership' for<span class="x" onmousemove="('comment',' Owing to the delivering of the deed to the donee, which Rab holds has the same effect as symbolic acquisition. ');">¹⁴</span> it is like the gift of a person in good health;<span class="x" onmousemove="('comment',' Which cannot be withdrawn. ');">¹⁵</span> while Samuel said, the second acquires [Its] ownership', for it is like the gift of a dying man.<span class="x" onmousemove="('comment',' And since it can be withdrawn if the testator recovered, it may also be withdrawn while he is still on his deathbed. Hence it was within the rights of the testator to present it to the second who, consequently, acquires its ownership. ');">¹⁶</span>

והא אפליגו בה חדא זימנא במתנת שכיב מרע שכתוב בה קנין

But surely their<span class="x" onmousemove="('comment',' Rab and Samuel. ');">¹⁷</span> difference of opinion on the [principle] has [already] once been expressed in [the case of] the [deed of a] gift of a dying man, in which symbolic acquisition was entered!<span class="x" onmousemove="('comment',' Supra 152a top. Why, then, should they express the same principles again? ');">¹⁸</span> [Both are] required. For if [their dispute] had been stated [in connection] with the first case,<span class="x" onmousemove="('comment',' Lit., 'in that', ');">¹⁹</span> [it might have been assumed that] in that [case only] Rab adheres<span class="x" onmousemove="('comment',' Lit., 'said'. ');">²⁰</span>

צריכא דאי איתמר בהא בהא קאמר רב משום דקנו מיניה אבל בהא דלא קנו מיניה אימא מודה ליה לשמואל ואי איתמר בהא בהא קאמר שמואל אבל בהך אימא מודה ליה לרב צריכא

to [his opinion], because symbolic acquisition took place;<span class="x" onmousemove="('comment',' Lit., 'they acquired for him'. And since the donee's claim has a double force, that of the gift of a dying man and that of symbolic acquisition, the gift cannot be withdrawn. ');">²¹</span> but in this case,<span class="x" onmousemove="('comment',' Lit., 'in that', ');">¹⁹</span> where no symbolic acquisition took place, it might have been suggested [that] he agrees with Samuel.<span class="x" onmousemove="('comment',' Hence the second case was necessary. ');">²²</span> And if [their dispute] had been stated [in connection] with the second case,<span class="x" onmousemove="('comment',' Lit., 'in that', ');">¹⁹</span>

בסורא מתנו הכי בפומבדיתא מתנו הכי אמר רב ירמיה בר אבא שלחו ליה מבי רב לשמואל ילמדנו רבינו שכיב מרע שכתב כל נכסיו לאחרים וקנו מידו מהו שלח להו אין אחר קנין כלום

[it might have been assumed that] in that [case only] Samuel adheres<span class="x" onmousemove="('comment',' Lit., 'said'. ');">²⁰</span> to [his opinion];<span class="x" onmousemove="('comment',' Since there was no symbolic acquisition. ');">²³</span> but in that [case]'<span class="x" onmousemove="('comment',' Where symbolic acquisition did take place. ');">²⁴</span> it might have been suggested [that] he agrees with Rab. [Hence both were] required. At Sura they taught as above.<span class="x" onmousemove="('comment',' Lit., 'thus', ');">²⁵</span> At Pumbeditha they taught as follows.<span class="x" onmousemove="('comment',' Lit., 'thus', ');">²⁵</span> R. Jeremiah b. Abba said: [The following enquiry] was sent from the academy<span class="x" onmousemove="('comment',' [Or, 'from the school of Rab', after Rab's death in 247.] ');">²⁶</span> to Samuel. 'Will our Master instruct us [as to] what [is the law in the case where] a dying man gave all his estate to strangers, in writing; and symbolic acquisition [also] took place,<span class="x" onmousemove="('comment',' Cf. supra p. 656, n. 4 and 5. ');">²⁷</span> [but was not entered in the deed]?'<span class="x" onmousemove="('comment',' And subsequently the estate was presented to a second person. (Cf. R. Gersh.) The question is whether, under such circumstances, the first or the second acquires the ownership of the estate. ');">²⁸</span> He replied<span class="x" onmousemove="('comment',' Lit., 'sent'. ');">²⁹</span> to them: 'After [symbolic] acquisition no withdrawal is of any avail'.<span class="x" onmousemove="('comment',' Lit., 'there is nothing'; and the first donee acquires the legal ownership of the gift. Samuel's view, supra, that the existence of a deed in addition, to symbolic acquisition may imply a desire, on the part of the testator to postpone until after his death the donee's acquisition of the gift does not apply to this case, since here symbolic acquisition had not been entered in the deed itself. (CF. R. Gersh.). [V. however' Rashb., who refers the question back to the case of [H] where the deed was delivered to the first donee.] ');">³⁰</span>