Talmud - Bava Batra 138b בבא בתרא קל״ח ב׳

she has the advantage; if she wants, she takes the two hundred dinars, and if she wants, she takes payment of her marriage contract.

The baraita continues: And if there was a person on his deathbed who said: Give two hundred dinars to so-and-so, my creditor, as is appropriate for him, the creditor takes the two hundred dinars and takes payment of the debt as well. But if he said: Give him two hundred dinars as payment for the debt, he takes the two hundred dinars as payment for the debt.

The Gemara asks: Because he says: As is appropriate for him, he takes the two hundred dinars and takes payment of the debt as well? But perhaps he was saying: As is appropriate for him as payment for the debt, and meant only to specify the amount of the debt.

Rav Naḥman said: Rav Huna said to me: In accordance with whose opinion is this? It is in accordance with the opinion of Rabbi Akiva, who expounds superfluous language. Rabbi Akiva holds that if one uses unnecessary words, he apparently intended to add a matter.

As we learned in a mishna (64a): One who sells a house without specification has sold neither the pit nor the cistern [dut] with it, even if he writes for the buyer in the bill of sale: With its depth and its height. This is because anything that is not part of the house, like pits and cisterns, must be explicitly mentioned in the contract or else they remain in the seller’s possession. And therefore the seller must purchase for himself a path through the buyer’s domain to reach whatever remains his, because he has sold the area of the house along with the house itself, and he no longer has permission to walk there. This is the statement of Rabbi Akiva.

And the Rabbis say: The seller need not purchase for himself a path through the buyer’s domain, as this is certainly included in what he has withheld for himself from the sale. And Rabbi Akiva concedes that when the seller says to the buyer in the bill of sale: I am selling you this house apart from the pit and the cistern, he need not purchase for himself a path through the buyer’s domain. Since the seller unnecessarily emphasized that the pit and the cistern are not included in the sale, he presumably intended to reserve for himself the right of access to them.

Apparently, according to Rabbi Akiva, since he did not need to state: Apart from the pit and the cistern, and stated it anyway, the seemingly superfluous statement was coming to add a matter. Since the seller unnecessarily stressed that the pit and cistern are not included in the sale, he must have intended to thereby reserve for himself the right of access. Here too, with regard to the gift given by a person on his deathbed to his creditor, since he did not need to say: As is appropriate for him, and said it anyway, this phrase was coming to add a matter, i.e., that the two hundred dinars are in addition to the debt.

§ The Sages taught (Tosefta 8:18): If there was a person on his deathbed who said: I have one hundred dinars owed to me by so-and-so, the witnesses that hear this may write his statement in a document even if they do not know whether the statement is true. Therefore, when the person’s heir collects the debt, he must bring proof of the debt, as the document written by these witnesses is not regarded as proof. This is the statement of Rabbi Meir. And the Rabbis say: The witnesses may not write the document unless they know for a fact that the statement is true. Therefore, when the heir collects the debt, he need not bring proof other than the document written by the witnesses, as it has the status of a promissory note.

Rav Naḥman says: Rav Huna told me that the opposite is taught in another baraita: Rabbi Meir says that the witnesses may not write his statement in a document unless they know for a fact that the statement is true, and the Rabbis say that they may write it even if they do not know whether the statement is true; and even Rabbi Meir said that they may not write it only due to the concern that it might be presented before a court that errs and allows the heirs to collect without furnishing additional proof. Rav Dimi of Neharde’a says: The halakha is that there is no concern about the possibility of a court that errs.

The Gemara asks: And in what way is this case different from Rava’s statement? As Rava says: A court may not supervise ḥalitza unless the judges recognize the yavam and yevama. And a court may not supervise a declaration of the refusal of a girl upon her reaching majority to remain married to the man to whom her mother or brothers married her as a minor after the death of her father, unless they recognize the girl. Therefore, another court may write a document attesting to the performance of ḥalitza or a document stating that a declaration of refusal was made in a court elsewhere based on the testimony of witnesses even if the judges do not recognize these people, relying on the presumption the first court would not have allowed the act to be performed had they not been sure of the identities of the parties.

What is the reason Rava said that the court must recognize the participants in these actions? Is it not due to the concern that a court that errs might write such a document based on the testimony of witnesses without verifying that the participating parties were recognized by the court where the ḥalitza or refusal took place?

The Gemara answers: The two issues are not the same. A court does not normally examine the act of another court, so there is concern that the court where the document is written might assume that the court where the act took place recognized the participating parties. But a court does normally examine the statement of witnesses. Therefore, there is no concern that it will rely on a statement written by witnesses without their knowledge of its accuracy.

MISHNA: In continuation of the case discussed in the previous mishna of a father who wrote a document granting his property to his son but reserved the rights to the produce during his lifetime, the mishna states that the father may detach produce from the land and feed the produce to whomever he wishes, and what he left detached at the time of his death belongs to all the father’s heirs, not only to this son.

GEMARA: The mishna indicates that what the father left detached, yes, it is inherited by all the heirs; but the produce that is connected to the ground at the time of his death, no, it is not inherited by them. Rather, it belongs to the son who received the property.

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

BavaBatra 138b examines deathbed gift language regarding a creditor's payment versus debt settlement, and Rabbi Akiva's view on interpreting extra contractual wording.