Bava Batra 273

תנאי היא דתניא נכסי לך ואחריך לפלוני וירד ראשון ומכר ואכל השני מוציא מיד הלקוחות דברי רבי רבן שמעון בן גמליאל אומר אין לשני אלא מה ששייר ראשון

This [law is a matter of dispute between] Tannaim.<span class="x" onmousemove="('comment',' The view of one of whom is advanced by R. Johanan. ');">¹</span> 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],<span class="x" onmousemove="('comment',' Lit., 'ate'. ');">²</span> the second may reclaim [the estate] from those who bought it;<span class="x" onmousemove="('comment',' After the death of the first, who was entitled to usufruct only and had no right to sell the estate itself. ');">³</span>

ורמינהי נכסי לך ואחריך לפלוני יורד ראשון ומוכר ואוכל דברי רבי רבן שמעון בן גמליאל אומר אין לראשון אלא אכילת פירות בלבד

[these are] the words of Rabbi. Rabban Simeon b. Gamaliel said: The second [may] receive only what the first had left.<span class="x" onmousemove="('comment',' 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. ');">⁴</span> 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,<span class="x" onmousemove="('comment',' Lit., 'on that of Rabbi'. ');">⁵</span> and [between one statement] of Rabban Simeon b. Gamaliel and the other statement of his!<span class="x" onmousemove="('comment',' Lit., 'on that of Rabban Simeon b. Gamaliel'. ');">⁶</span>

קשיא דרבי אדרבי ודרשב"ג אדרשב"ג

— There is no contradiction between the two statements of Rabbi,<span class="x" onmousemove="('comment',' Lit., 'of Rabbi on that of Rabbi'. ');">⁷</span> [since] one<span class="x" onmousemove="('comment',' Allowing the second to reclaim what the first had sold. ');">⁸</span> [may refer] to the capital;<span class="x" onmousemove="('comment',' 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. ');">⁹</span>

דרבי אדרבי לא קשיא הא לגופא הא לפירא דרשב"ג אדרשב"ג לא קשיא הא לכתחלה הא דיעבד

and the other,<span class="x" onmousemove="('comment',' Which confers upon the first the right to sell. ');">¹⁰</span> to the usufruct.<span class="x" onmousemove="('comment',' I.e., the fruit only, which certainly belongs to him and which he may certainly sell. ');">¹¹</span> There is [also] no contradiction between the two statements of Rabban Simeon b. Gamaliel<span class="x" onmousemove="('comment',' Lit., 'of Rabban Simeon b. Gamaliel on that of R. Simeon etc.! ');">¹²</span>

אמר אביי איזהו רשע ערום זה המשיא עצה למכור בנכסים כרבן שמעון בן גמליאל

[since] one<span class="x" onmousemove="('comment',' According to which the first has only the right of usufruct. ');">¹³</span> may speak of what is the proper thing;<span class="x" onmousemove="('comment',' [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. ');">¹⁴</span> the other, of the law <i>ex post facto</i>.<span class="x" onmousemove="('comment',' [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. ');">¹⁵</span>

א"ר יוחנן הלכה כרבן שמעון בן גמליאל ומודה שאם נתנן במתנת שכיב מרע לא עשה כלום

Abaye said: Who is a cunning rogue? — He who counsels<span class="x" onmousemove="('comment',' [Rashb.; R. Gersh, renders, 'who takes counsel with himself.'] ');">¹⁶</span> to sell an estate,<span class="x" onmousemove="('comment',' Which was given to a person with the stipulation that after his death it shall be transferred to another person. ');">¹⁷</span> in accordance with Rabban Simeon b. Gamaliel.<span class="x" onmousemove="('comment',' 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.] ');">¹⁸</span>

מאי טעמא אמר אביי מתנת שכיב מרע לא קנה אלא לאחר מיתה וכבר קדמו אחריך

R. Johanan said: The <i>halachah</i> is according to Rabban Simeon b. Gamaliel, who [however], admits that if [the estate] was assigned<span class="x" onmousemove="('comment',' By the first recipient. ');">¹⁹</span> as the gift of a dying person, the transaction is invalid.<span class="x" onmousemove="('comment',' And the second beneficiary may reclaim it from the donee. ');">²⁰</span> What is the reason? — Abaye said, [because] the gift of a dying person is acquired only after death, and [by that time] 'after you'<span class="x" onmousemove="('comment',' 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. ');">²¹</span>

ומי אמר אביי הכי והא איתמר מתנת שכיב מרע מאימתי קנה אביי אמר עם גמר מיתה ורבא אמר לאחר גמר מיתה

had preceded him.<span class="x" onmousemove="('comment',' 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, ');">²²</span> 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'!<span class="x" onmousemove="('comment',' 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? ');">²³</span> Abaye withdrew from that opinion.<span class="x" onmousemove="('comment',' That the gift is acquired at death. ');">²⁴</span>

הדר ביה ביי מההיא ממאי דמההיא הדר ביה דלמא מהא הדר ביה

Whence [is it proved] that he withdrew from this view,<span class="x" onmousemove="('comment',' That the gift is acquired at death. ');">²⁴</span> perhaps he withdrew from that?<span class="x" onmousemove="('comment',' According to which ownership is acquired after death, ');">²⁵</span> — This cannot be entertained,<span class="x" onmousemove="('comment',' Lit., 'It (should) not enter your mind', ');">²⁶</span>

לא סלקא דעתך דתנן זה גיטך אם מתי זה גיטך מחולי זה זה גיטך לאחר מיתה לא אמר כלום

for we have learnt: [If a dying man<span class="x" onmousemove="('comment',' 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. ');">²⁷</span> said to his wife] 'Here is thy divorce should I die'<span class="x" onmousemove="('comment',' I.e., when he dies, the divorce shall become effective. ');">²⁸</span> [or] 'Here is thy divorce [after] my present illness'<span class="x" onmousemove="('comment',' I.e., after death will have brought it to an end. ');">²⁹</span>

אמר רבי זירא א"ר יוחנן הלכה כרשב"ג ואפילו היו בהן עבדים והוציאן לחירות

[or] 'Here is thy divorce after [my] death', [the divorce in all these cases] is invalid.<span class="x" onmousemove="('comment',' 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. ');">³⁰</span> R. Zeira said in the name of R. Johanan: The <i>halachah</i> is according to Rabban Simeon b. Gamaliel and even if the estate contained slaves whom he liberated.<span class="x" onmousemove="('comment',' The liberation is valid. ');">³¹</span> [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,<span class="x" onmousemove="('comment',' It is prohibited to liberate a heathen slave. Cf. Lev. XXV, 46. ');">³²</span>

פשיטא מהו דתימא א"ל למיעבד איסורא לא יהבינן לך קא משמע לן

hence he taught us [that we do not say so]. R. Joseph said in the name of R. Johanan: The <i>halachah</i> is according to Rabban Simeon b. Gamaliel and even in the case where a dead man's shrouds were made of it.<span class="x" onmousemove="('comment',' 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. ');">³³</span> [This is surely] obvious! It might have been presumed that it was not given to him<span class="x" onmousemove="('comment',' Lit., 'they (or we) did not give you'. ');">³⁴</span>

אמר רב יוסף אמר רבי יוחנן הלכה כרבן שמעון בן גמליאל ואפי' עשאן תכריכין למת פשיטא מהו דתימא לשוינהו איסורי הנאה לא יהבי לך קא משמע לן

to turn<span class="x" onmousemove="('comment',' Lit., 'to make them'. ');">³⁵</span> into [something of which it is] forbidden to have any benefit<span class="x" onmousemove="('comment',' 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). ');">³⁶</span> so he taught us [that this is not so].

דרש רב נחמן בר רב חסדא אתרוג זה נתון לך במתנה ואחריך לפלוני נטלו ראשון ויצא בו באנו למחלוקת רבי ורשב"ג

R. Nahman b. R. Hisda gave the following exposition. [If one said to another]. 'This ethrog<span class="x" onmousemove="('comment',' [H] a fruit of the citrus family used with the palm leaves, myrtle and willows on the Festival of Tabernacles. Cf. Lev. XXIII, 40. ');">³⁷</span> is given to you as a gift, and after you<span class="x" onmousemove="('comment',' I.e., after his death. ');">³⁸</span> [it shall be given] to X', [and] the first [recipient] took it and performed with it his duty,<span class="x" onmousemove="('comment',' Lit., 'and he went out (from his obligation) by it', i.e., he used it in the prescribed manner and recited the proper benediction. ');">³⁹</span>

מתקיף לה רב נחמן בר יצחק ע"כ לא פליגי רבי ורשב"ג התם אלא דמר סבר קנין פירות כקנין הגוף דמי ומר סבר קנין פירות לאו כקנין הגוף דמי אלא הכא

— this will be a point of dispute<span class="x" onmousemove="('comment',' Lit., we have arrived at the dispute'. ');">⁴⁰</span> between Rabbi and Rabban Simeon b. Gamaliel.<span class="x" onmousemove="('comment',' 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. ');">⁴¹</span> R. Nahman b. Isaac demurred: The dispute between Rabbi and Rabban Simeon b. Gamaliel can only extend as far as [the case] there<span class="x" onmousemove="('comment',' Where the gift consisted of an estate which produced fruit. ');">⁴²</span> 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,<span class="x" onmousemove="('comment',' The case of the ethrog. ');">⁴³</span>