Bava Batra 303

איתמר מתנת שכיב מרע שכתוב בה קנין בי רב משמיה דרב אמרי ארכביה אתרי ריכשי ושמואל אמר לא ידענא מאי אדון בה

It was stated: [As to] the gift<span class="x" onmousemove="('comment',' That is where be distributed all his estate (Rashb.). ');">¹</span> of a dying man [in the deed of] which was recorded [symbolic] acquisition. the school of Rab in the name of Rab reported [that the testator] has [thereby] made him<span class="x" onmousemove="('comment',' The recipient. ');">²</span> ride on two harnessed horses;<span class="x" onmousemove="('comment',' I.e., his claim has a double force. That of the gift of a dying man and that of legal acquisition. ');">³</span> but Samuel said: I do not know what decision to give on the matter. The school of Rab reported in the name of Rab, that he made him ride on two harnessed horses, for it is like the gift of a man in good health<span class="x" onmousemove="('comment',' Owing to the symbolic acquisition that took place. ');">⁴</span>

בי רב משמיה דרב אמרי ארכביה אתרי ריכשי הרי היא כמתנת בריא הרי היא כמתנת שכיב מרע הרי היא כמתנת בריא שאם עמד אינו חוזר הרי הוא כמתנת שכיב מרע שאם אמר הלואתו לפלוני הלואתו לפלוני

[and] 'it is [also] like the gift of a dying man. 'It is like the gift of a man in good health', in that, if he recovered, he [can] not retract, [and] 'it is like the gift of a dying man' in that, if he said [that] his loan<span class="x" onmousemove="('comment',' Which someone owes him. ');">⁵</span> [shall be given] to X, his loan [is to be given] to X.<span class="x" onmousemove="('comment',' Although the money was not, at the time, in his possession and the gift was not made in the presence of the three parties concerned (v. 144a). ');">⁶</span> Samuel, however, had said, 'I do not know what decision to give on the matter' since it is possible that<span class="x" onmousemove="('comment',' By the unnecessary mention of symbolic acquisition. ');">⁷</span> he decided not to transfer possession to him<span class="x" onmousemove="('comment',' The donee. ');">⁸</span>

ושמואל אמר לא ידענא מאי אדון בה שמא לא גמר להקנותו אלא בשטר ואין שטר לאחר מיתה

except through the deed,<span class="x" onmousemove="('comment',' And not merely by virtue of his instructions, being a dying man. ');">⁹</span> and no [possession by means of a] deed [may be acquired] after [the testator's] death.<span class="x" onmousemove="('comment',' Hence it was difficult for Samuel to give a decision on the matter. It may be added that the same difficulty would also arise even where no deed was written and symbolic possession was accompanied by verbal instructions only, or where a deed alone was written unattended by any symbolic acquisition. The mere Fact that the testator had recourse to the unnecessary symbolic form of acquisition raises the question whether his intention thereby was not to annul his first transfer (that of a dying man) and postpone until after his death the donee's acquisition of the gift. Had he wished him to acquire immediate possession there would have been no need For the additional symbolic acquisition. His mere word as a dying man would have done that. Once the possibility of postponement until after death is granted, the donee can no more acquire possession, because as soon as death had taken place the entire estate of the dead man had passed over into the ownership of his legal heirs. (So Rashb.; v. however Tosaf. s.v. [H].) ');">¹⁰</span> A contradiction was pointed out [between one statement] of Rab and another statement of his,<span class="x" onmousemove="('comment',' Lit., 'on that of Rab'. ');">¹¹</span> and [between one statement] of Samuel and another statement of his.<span class="x" onmousemove="('comment',' CF. previous note. ');">¹²</span>

ורמי דרב אדרב ודשמואל אדשמואל דשלח רבין משמיה דרבי אבהו הוו ידעי ששלח ר' אלעזר לגולה משום רבינו שכיב מרע שאמר כתבו ותנו מנה לפלוני ומת אין כותבין ונותנין שמא לא גמר להקנותו אלא בשטר ואין שטר לאחר מיתה ואמר רב יהודה אמר שמואל הלכתא כותבין ונותנין

For Rabin sent in the name of R. Abbahu: Be [it] known to you that R. Eleazar had sent to the Diaspora in the name of our Master<span class="x" onmousemove="('comment',' Rab. ');">¹³</span> [that] where a dying man said, 'Write<span class="x" onmousemove="('comment',' I.e., the deed. ');">¹⁴</span> and deliver a <i>maneh</i> to X', and he died,<span class="x" onmousemove="('comment',' Before the deed was written or the maneh delivered to X. ');">¹⁵</span> they must neither write [the deed] nor deliver [the <i>maneh</i>], because it is possible that [the testator]<span class="x" onmousemove="('comment',' By his demand that a deed also be written which, since his mere verbal instruction as a dying man would have been sufficient, was unnecessary. ');">¹⁶</span>

קשיא דרב אדרב קשיא דשמואל אדשמואל

had decided not to transfer possession to him<span class="x" onmousemove="('comment',' The donee. ');">¹⁷</span> except through the deed,<span class="x" onmousemove="('comment',' CF. supra p. 658, n. 10. ');">¹⁸</span> and no [possession by means of a] deed [may be acquired] after [the testator's] death.<span class="x" onmousemove="('comment',' Supra 135b, q.v. notes a.l. The legal force given to the word of a dying man extends only to monetary gifts but not to the delivery of a deed. ');">¹⁹</span> And Rab Judah said in the name of Samuel [that] the law is that one may both write and deliver.<span class="x" onmousemove="('comment',' It is assumed that the testator's request for a written document was for the purpose of strengthening the donee's claim; not to weaken it. ');">²⁰</span>

דרב אדרב לא קשיא הא דקנו מיניה הא דלא קנו מיניה דשמואל אדשמואל לא קשיא במיפה את כחו

[Does not this present] a contradiction [between one statement] of Rab and another statement of his [and between one statement] of Samuel and another statement of his?<span class="x" onmousemove="('comment',' In the report above it was stated that any unnecessary addition of a deed to the verbal instructions of a dying man was according to Rab assumed to be in favor of the donee and according to Samuel against him, while here the reverse is reported! ');">²¹</span> — There is no contradiction between the two statements of Rab.<span class="x" onmousemove="('comment',' Lit., 'that of Rab upon Rab, there is no difficulty'. ');">²²</span> One<span class="x" onmousemove="('comment',' Lit., 'that'. ');">²³</span> [deals with the case] where symbolic acquisition took place;<span class="x" onmousemove="('comment',' Lit., 'where they acquired of him'. In such a case the testator obviously wished to improve the donee's claims. ');">²⁴</span>

יתיב רב נחמן בר יצחק אחוריה דרבא ויתיב רבא קמיה דרב נחמן קא בעי מיניה מי אמר שמואל שמא לא גמר להקנותו אלא בשטר ואין שטר לאחר מיתה והא אמר רב יהודה אמר שמואל שכיב מרע שכתב כל נכסיו לאחרים אף על פי שקנו מידו עמד חוזר

the other<span class="x" onmousemove="('comment',' Lit., 'that'. ');">²³</span> where no symbolic acquisition took place.<span class="x" onmousemove="('comment',' CF. previous note. It is possible, therefore, that the testator desired acquisition of the gift effected by means of a deed and since he died the deed is no longer of any avail. ');">²⁵</span> There is [also] no contradiction between the two statements of Samuel,<span class="x" onmousemove="('comment',' Cf. supra n. 12. ');">²⁶</span> [because in the latter case the reference is to one] who [specifically] strengthened his<span class="x" onmousemove="('comment',' The donee's. ');">²⁷</span> claims.<span class="x" onmousemove="('comment',' Lit., 'power'; by the inclusion of the formula given below. ');">²⁸</span> R. Nahman b. Isaac sat behind Raba while Raba was sitting before R. Nahman when he addressed to him the [following] enquiry: Did Samuel say. 'since it is possible that he decided not to transfer possession to him except through the deed, and no [possession by means of a] deed [may be acquired] after [the testator's] death'? Surely Rab Judah said in the name of Samuel, 'If a dying man gave all his property, in writing, to strangers. although [symbolic] acquisition took place. he may retract if he recovered