Babylonian Talmud: Tractate Baba Bathra

Folio 151a

a deed may be written for the seller though the buyer is not with him. [In this case,] as soon as [the buyer] takes possession of the ground he acquires [also] the deed, irrespective of the place in which it is kept. And this accords with what we have learnt [that] movable property may be acquired with landed property by means of money. deed and possession.¹  Cattle are called property; for we learnt: If a person consecrated his property²  which contained cattle suitable [as sacrifices] for the altar; males are to be sold³  for⁴  burnt offerings, and females are to be sold for⁵  peace offerings.⁶  Birds are called property; for we learnt: If a person consecrated his property which contained things suitable [for sacrifices] for the altar, [such as] wines, oils and birds [etc.].⁷  Phylacteries are called property; for we learnt: If a person consecrated his property, [his] phylacteries [also] are taken away⁸  from him.⁹

The question was raised: What [is the law in the case of] a scroll of the Law; is [it] not [regarded as] property, since It is unsalable because it is prohibited to sell it, or, perhaps. since it may be sold in order to study Torah or to take a wife,¹⁰  it is [regarded as] property? — This is undecided.

(Mnemonic:¹¹  Zutra, the mother of Amram of two sisters, R. Tobi and R. Dimi and R. Joseph.)

The mother of R. Zutra b. Tobia gave her property in writing. to R. Zutra b. Tobiah, because she intended to marry R. Zebid.¹²  She [duly] married, but was [subsequently] divorced. She [thereupon] appeared before R. Bibi b. Abaye.¹³  He said: [She made a gift of her property] because she desired to marry¹⁴  and, behold she married.¹⁵  R. Huna the son of R. Joshua said unto him, 'Because you are [yourselves] frail [beings] you speak frail words'.¹⁶  Even according to him who said [that a gift given by] a woman who wished to keep it away from her future husband is acquired [by the recipient], this law is only applicable¹⁷  [to a case] where [the woman] did not declare her reason. Here, however, she has [specifically] declared that [she made the gift] because she [wished] to marry. and, surely. [though] she married, she was [now] divorced.¹⁸

The mother¹⁹  of Rami b. Hama gave her property in writing to Rami b. Hama, in the evening; [but] in the morning she gave them in writing to R. 'Ukba b. Hama. Rami b. Hama came before R. Shesheth who confirmed him in the possession of the property. R. 'Ukba b. Hama, [however]. went to R. Nahman who [similarly] confirmed him in the possession of the property. R. Shesheth [thereupon] appeared before R. Nahman [and] said unto him, 'what is the reason [that] the Master has confirmed R. 'Ukba b. Hama in possession? Is it because she retracted? Surely she died'!²⁰  He²¹  replied unto him: Thus said Samuel, 'Wherever a person may retract if he recovered,²²  he may [also] withdraw his gift'.²³  May it be suggested²⁴  that Samuel said [this²⁵  in the case only where the withdrawal was] for himself; did he, [however], say [this²⁵  in the case where the withdrawal was in favour] of another person?²⁶  He²⁷  replied unto him: Samuel distinctly stated, 'whether for himself or for another'.

The mother of R. Amram the pious had a case²⁸  of notes [of indebtedness]. While she was dying she said, 'Let it be [given] to my son Amram'. His brothers appeared before R. Nahman [and] said to him, 'Surely he²⁹  did not pull³⁰  [the case of documents]'! He replied unto them: The instructions of a dying person [are regarded legally] as written and delivered.³¹

The sister of R. Tobi b. R. Mattenah gave her possessions, in writing. to R. Tobi b. R. Mattenah in the morning. In the evening, Ahadboi son of R. Mattenah came [and] wept before her, saying: Now [people will] say [that] one³²  is a scholar³³  and the other is no scholar. [So] she gave them in writing to him. He [subsequently] appeared before R. Nahman, [who] said unto him: Thus said Samuel, 'Wherever a person may retract if he recovers, he may [also] withdraw his gift'.³⁴

The sister of R. Dimi b. Joseph had a piece of an orchard. Whenever she fell ill she transferred the ownership of it to him,

1. Supra 77a, q.v., for notes.
2. For the purposes of Temple repair.
3. V. Shek. IV, 7: and cf. BaH a Rashb.
4. Lit., 'For the requirements'. i.e., to persons who require burnt-offerings.
5. Cf. previous note.
6. Shek. IV, 7, Zeb. 150a, Tem. 20a, 31b.
7. Shek. IV, 8.
8. So R. Gersh. According to Rashb., 'they estimate for him', put them up to auction so that he might redeem them.
9. 'Ar. 23b, B.K., 102b.
10. Meg. 27a.
11. The Following are key-words used as an aid in the recollection of the ensuing incidents.
12. Who would, otherwise, have acquired the ownership of her property through their marriage. Cf. supra 150b.
13. To claim the return of her property.
14. When she presented the gift she specifically mentioned that it was made on account of her intended marriage.
15. Since she carried out the intention upon which the gift depended, she can no longer reclaim the gift.
16. Cf. supra 137b, q.v. for notes.
17. Lit., 'these words'.
18. As the reason for the making of her gift has now disappeared, she is entitled to the return of her property.
19. Who was on her death-bed.
20. A dying person who gave away all his property to another may withdraw it only if he recovers. Since this woman, however, died, her gift to Rami should remain valid as the gift of a dying person which cannot be withdrawn.
21. R. Nahman.
22. I.e., in the case where he gave away all his possessions.
23. Even if he did not recover. Hence, in this case, the dying mother was within her rights when she, withdrawing the gift from Rami, gave it to R 'Ukba. The estate, therefore, rightly belonged to the latter.
24. Lit., 'say'.
25. That a dying person may withdraw a gift he made.
26. As in this case where the mother did not withdraw the estate for herself but for R.'Ukba.
27. R. Nahman.
28. [H] (root, [H], pluck), 'a bag made of hairless skins', From which the hair was plucked.
29. R. Amram.
30. And since there was no 'pulling', (meshikah v. Glos.), there was no legal acquisition of the bequest.
31. Hence, R. Amram acquired possession of the bequest even though it had not been actually delivered to him.
32. Lit., 'master'.
33. Since the estate was given to him.
34. V., supra notes 3 and 4.

but as [soon as] she recovered she withdrew. On one occasion she fell ill and sent [word] to him, 'Come [and] take possession'. He replied,¹  'I have no desire'. [Thereupon] she [again] sent [word] to him, 'Come [and] take possession in whatever manner you desire'.²  [Then] he went, left for her [some portion of the intended gift]³  and [symbolic] acquisition from her was [also] arranged.⁴  As she [again] recovered she retracted [and] came before R. Nahman.⁵  He sent for him.⁶  He, [however,] did not come, saying, 'Why should I come? Surely, [some portion of the estate] was left to her and [symbolic] acquisition from her [also] took place.'⁷  [Thereupon] he sent to him, [the following message]: 'If you do not come I will chastise you with a thorn that causes no blood to flow'.⁸  He⁹  asked the witnesses how the incident had occurred, [and] they told him [that when she sent for her brother] she exclaimed thus: 'Alas that I am dying'.¹⁰  He said unto them: If so, the disposal¹¹  [of her estate was] due to [her expectation of] death, and he that gives instructions owing to [his expectation of] death, may retract.

It was stated: [In the case where] a dying man presented a part¹²  [of his estate], Raba¹³  said in the name of R. Nahman: It is like the gift of a man in good health and requires [symbolic] acquisition. The Rabbis reported the following,¹⁴  in the presence of Raba, in the name of Mar Zutra, son of R. Nahman, who reported in the name of R. Nahman: It is like the gift of a man in good health; and it is like the gift of a man who is dying. '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 man who is dying', in that no [symbolic] acquisition is required.¹⁵  Raba said unto them: Did I not tell you [that] you shall not hang empty jars on R. Nahman?¹⁶  Thus said R. Nahman: It is like the gift of a man in good health and requires [symbolic] acquisition.

Raba raised an objection against R. Nahman: [IF] HE LEFT [FOR HIMSELF] ANY LAND WHATSOEVER, HIS GIFT IS VALID.¹⁷  Does not [this refer to the case] where no [symbolic] acquisition from him took place?¹⁸  — No; where symbolic acquisition did take place. If so.explain the second clause: [IF. HOWEVER] HE DID NOT LEAVE [FOR HIMSELF] ANY LAND WHATSOEVER, HIS GIFT IS INVALID!¹⁷  Now if, [as you assert, our Mishnah refers to the case] where symbolic acquisition took place.¹⁸  why is his gift invalid? — He replied unto him: Thus said Samuel, 'If a dying man gave all his property, in writing, to strangers, although [symbolic] acquisition took place,¹⁹  he may retract if he recovered, because it is known that he disposed²⁰  [of his estate] only on account of [his expectation of] death.

R. Mesharsheya raised an objection against Raba: The mother of the sons of Rokel once fell ill and she said, 'Let my brooch²¹  be given to my daughter', and it was worth twelve maneh,' and when she died they fulfilled her words?²²  — There [it was a case] of an Instruction [clearly] given owing to [the expectation of] death.²³

Rabina raised an objection against Raba: If a person said, 'Give this bill of divorce to my wife', or, '[Give] this writ of emancipation to my slave', and he died, it must not be delivered after [his] death.²⁴  [If. however, he said.] 'Give a maneh to X, and he died, it is to be given [to X] after [the testator's] death!²⁵  — And what reason is there to assume that no symbolic acquisition took place?²⁶  — [Because it²⁷  is obviously] similar to a bill of divorce;²⁸  as a bill of divorce is not an object for [symbolic] acquisition.²⁹  so this²⁷  also [was not attended by] a symbolic acquisition!³⁰  — There³¹  also [it is a case] of one giving instructions [clearly] on account [of his expectation] of death. R. Huna the son of R. Joshua replied: Elsewhere, an Instruction [given] owing to [the expectation of] death requires [symbolic] acquisition. but the Mishnayoth mentioned refer [to the case]³²  of one who distributed all his estate,³³  for in such a case it was given the same legal force as³⁴  the gift of a dying man.³⁵

And the law is [that where] a dying man presented a part [of his estate].³⁶  [symbolic] acquisition is required although he [subsequently] died. [If. however] his instructions [concerning the gift] were due to [his expectation of] death, no [symbolic] acquisition is required. This, however, [only] when he died; [if] he recovered he [may] retract even though [symbolic] acquisition from him took place.³⁷

1. Lit., 'sent'.
2. So that she shall not be able again to retract.
3. In such a case the donor cannot withdraw, (Cf. our Mishnah, supra 146b.)
4. Lit., 'and they (i.e., witnesses) acquired from her', by means of symbolic acquisition, on behalf of R. Dimi. Legal acquisition under such conditions prevents the testator from withdrawing the gift on recovery unless a specific declaration was made at the time making it evident that the presentation was due to the expectation of death.
5. To reclaim her piece of orchard.
6. Lit., 'to him, come'.
7. Cf. supra note 4.
8. He would place him under the ban.
9. R. Nahman.
10. Lit., 'that this woman is dying'.
11. Lit., 'she was instructing'.
12. Lit., 'a gift of … in part'.
13. Cf.. BaH. a.l. Current texts read: 'The Rabbis said it before Raba in the name of Mar Zutra the son of R. Nahman who said it in the name of R. Nahman: It is like the gift of a man in good health and it is like the gift of a dying man. It is like the gift etc.
14. Lit., 'they said it.'
15. And if he died the recipient acquired its ownership.
16. I.e. 'do not attribute to him such absurd views', v. supra p. 27. n. 2.
17. Supra 146b.
18. Lit., 'where they (i.e.. a court of law or witnesses) did not acquire From him', on behalf of the donee, by means of symbolic acquisition.
19. Lit., 'they took possession from his hand'. Cf. previous note but one.
20. Lit., 'instructed', or (cf. BaH) 'symbolic acquisition took place', v. infra p. 660.
21. [H], 'brooch, 'buckle', or 'a wrap that is pinned on' (Jast.); [or 'veil', v. Krauss, op. cit. I, 188.]
22. V. infra 156b. The brooch or wrap was certainly a gift of a portion only of the estate, and there was no symbolic acquisition! Had there been some legal form of acquisition, an expression other than 'her words' would have been used.
23. I.e., she stated distinctly the reason of the gift she was making. An instruction given in such circumstances, if followed by the death of the testator, requires no symbolic acquisition whether a portion of, or all the estate was presented.
24. Since a divorce or the liberation of a slave does not take effect until actual delivery of the respective documents has taken place, and by that time the husband or master is dead and be can neither divorce nor liberate.
25. Git. 13a. Even though, apparently, there was no symbolic acquisition. How, then, can Raba maintain that such acquisition is required?
26. Lit., 'and from that that they did not acquire of him'. Cf. supra p. 656, n. 4.
27. The disposal of the maneh.
28. With which it was mentioned in the same context.
29. Actual delivery of it being required.
30. Cf. supra p. 656, n. 4.
31. The case of the maneh.
32. Lit., 'and when those Mishnayoth were taught'.
33. In which case no symbolic acquisition is required. [The words that follow do not occur in some MSS. and are best left out.]
34. Lit., 'they made it'.
35. Which requires no symbolic acquisition.
36. Lit., 'a gift … in part'.
37. Cf. supra p. 656, n. 4 and 5.