Talmud - Bava Batra 137a בבא בתרא קל״ז א׳

The Gemara answers: The halakha in this case is a dispute between tanna’im; as it is taught in a baraita: With regard to one who said: My property is given to you, and after you, to so-and-so, and the first recipient entered the property and sold it and consumed the profits, the second recipient repossesses the property from the purchasers, as the property belongs to him after the death of the first recipient; this is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: The second recipient receives only that which the first beneficiary left, since his sale is valid.

And the Gemara raises a contradiction from another baraita (Tosefta 8:4): If one says: My property is given to you, and after you, to so-and-so, the first one may enter the property and sell it and consume the profits; this is the statement of Rabbi Yehuda HaNasi. Rabban Shimon ben Gamliel says: The first one has only the right of consumption of the produce.

This statement of Rabbi Yehuda HaNasi is difficult as it is contradicted by the other statement of Rabbi Yehuda HaNasi, and this statement of Rabban Shimon ben Gamliel is difficult as it is contradicted by the other statement of Rabban Shimon ben Gamliel. Their opinions in the latter baraita seem to be the opposite of those in the former baraita.

The Gemara answers: The apparent contradiction between one statement of Rabbi Yehuda HaNasi and the other statement of Rabbi Yehuda HaNasi is not difficult; this ruling that the first one cannot sell it is referring to the property itself, and that ruling that he can sell it is referring to the produce. The apparent contradiction between one statement of Rabban Shimon ben Gamliel and the other statement of Rabban Shimon ben Gamliel is not difficult either; this statement, that the first has only the right to consume the produce, is referring to his rights ab initio, whereas that statement, that if he sold the property the second one gets nothing, is referring to the halakha after the fact.

Abaye says: Who is a cunning wicked person? This is one who provides advice to sell property in accordance with the ruling of Rabban Shimon ben Gamliel. Although Rabban Shimon ben Gamliel holds that the sale is valid, he does not permit one to do so ab initio, as that would deprive the second designated recipient of the property. Therefore, one who advises the first recipient to do so is considered a cunning wicked person.

Rabbi Yoḥanan says: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel; but Rabban Shimon ben Gamliel concedes that if the first recipient gave the property to another as the gift of a person on his deathbed, in which case no formal act of acquisition is required, he has done nothing; the second recipient can repossess the property from the one to whom it was given.

What is the reason? Abaye says: The recipient of the gift of a person on his deathbed acquires it only after the person’s death, and in this case, the acquisition of the recipient resulting from the statement of: After you, i.e., the second designated recipient, has already preceded the acquisition of the first one.

The Gemara asks: But did Abaye actually say this, that the gift of a person on his deathbed takes effect only after his death? But wasn’t it stated in an amoraic dispute concerning the matter: From when does the recipient of the gift of a person on his deathbed acquire it? Abaye says: With the completion of death, i.e., at the moment he dies; and Rava says: After the completion of death.

The Gemara answers: Abaye retracted that latter statement. The Gemara asks: From where is it known that he retracted that statement? Perhaps he retracted this, i.e., the statement that the recipient acquires it only after the person’s death, and his conclusion is that he acquires it at the moment of his death.

The Gemara answers: That possibility should not enter your mind, as we learned in a mishna (Gittin 72b): If a man on his deathbed says to his wife: This is your bill of divorce if I die, or: This is your bill of divorce if I die from this illness, or: This is your bill of divorce after I die, he has said nothing. The divorce does not take effect after his death. Evidently, when one gives instructions on his deathbed, his intention is for them to be effective after he dies.

Rabbi Zeira says that Rabbi Yoḥanan says: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel that if the first recipient sells the property, the sale is valid, and this is the halakha even if there were Canaanite slaves included in the property and the first recipient emancipated them.

The Gemara asks: Isn’t that obvious? The Gemara answers: Lest you say that the giver would have said to him: I did not give you my Canaanite slaves to transgress a prohibition, as it is prohibited to emancipate Canaanite slaves, Rabbi Yoḥanan teaches us that he has the legal right to do so.

Rav Yosef says that Rabbi Yoḥanan says: The halakha is in accordance with the opinion of Rabban Shimon ben Gamliel even if he made the gift into shrouds for a corpse. The Gemara asks: Isn’t that obvious? The Gemara answers: Lest you say that the giver would have said to him: I did not give you my possessions to render them into items from which deriving benefit is prohibited, but rather so that you may use and enjoy them, and Rabbi Yoḥanan teaches us that he may do so.

§ Rav Naḥman bar Rav Ḥisda taught: If one said to another: This etrog is given to you as a gift, and after you die, to so-and-so, and the first recipient then took it and fulfilled his obligation of taking the four species on the first day of Sukkot with it, when one is obligated to take species that belong to him, in this case, we have arrived at the dispute between Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel as to the nature of the ownership of the first recipient. According to Rabbi Yehuda HaNasi’s opinion that he cannot sell the etrog, it is not considered entirely his, and he does not fulfill his obligation by taking it. According to the opinion of Rabban Shimon ben Gamliel, who holds that he can sell it, he fulfills his obligation.

Rav Naḥman bar Yitzḥak objects to this statement, reasoning that Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel disagree only there, in the case of: After you, with regard to the nature of the recipient’s ownership; as one Sage, Rabban Shimon ben Gamliel, holds that ownership of the rights to use an item and the profits it engenders is considered like ownership of the item itself, and the other Sage, Rabbi Yehuda HaNasi, holds that ownership of the rights to use an item and the profits it engenders is not considered like ownership of the item itself. But here, with regard to the etrog,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bava Batra 137a examines conflicting rulings from Rabbi Yehuda HaNasi and Rabban Shimon ben Gamliel on inheritance rights when property passes to a second recipient after the first.