Talmud - Bava Batra 148b בבא בתרא קמ״ח ב׳

A dilemma was raised before the Sages with regard to the statement of Rabbi Shimon ben Lakish: If one sold a house, i.e., a lower story, to one person and stated that the upper story will be sold to one other person, what is the halakha? Is this considered reserving additional rights for the second person apart from the upper story, or not? If you say that in a case where one sells his house to one and the upper story to one, his stipulation is not considered reserving rights for the second person, there is another dilemma. If one sold a house except for the upper story, reserving the upper story for himself, what is the halakha? Is this considered reserving additional rights for himself?

Rava said that Rav Naḥman said: Even if you say that where one sells the house to one person and the upper story to one other person, he is not considered to be reserving rights for the second person, if one sold a house except for the upper story, he is considered to be reserving additional rights for himself. And this is in accordance with the opinion of Rav Zevid, who says that the reason the seller reserves additional rights is that if he wants to extend projections from the upper story into the space of the courtyard, he may extend them.

The Gemara concludes: Evidently, since he reserved the upper story, he also reserved the place of the projections. Here too, with regard to the one who gave a palm tree to another and reserved the fruit for himself, since he said that the tree is given to another except for its fruit, he reserved the place of the fruit for himself as well.

§ The mishna (146b) states that if a person on his deathbed granted all of his property to others but reserved for himself any amount of land, his gift is valid even if he recovers. If he did not reserve for himself any amount of land, his gift is not valid if he recovers. Rav Yosef bar Minyumi says that Rav Naḥman says: In the case of a person on his deathbed who wrote a deed granting all of his property to others, the manner in which he divided his property is examined. If it appears that he was intending to divide his entire estate among various recipients, then if he dies, all the recipients acquire their gifts. If he recovers, he can retract all of the gifts, in accordance with the ruling of the mishna.

But if it appears that he was reconsidering the matter, initially intending to give away only a portion of his property, and then reconsidering and distributing the rest, then if he dies, all of the recipients acquire their gifts. If he recovers, he can retract only the last gift, as the previous gifts were given with the intent to reserve part of the property for himself, and they are valid even if he recovers. The Gemara asks: Perhaps he was not reconsidering; rather, he initially intended to transfer ownership of all of his property, and he was considering to whom to give each portion and then giving it. The Gemara answers: The usual way of a person on his deathbed is to consider the matter carefully first and only then to confer his gifts. Therefore, if he pauses to consider in the interim, it appears that he did not initially intend to transfer ownership of his entire estate.

§ Rav Aḥa bar Minyumi says that Rav Naḥman says: With regard to a person on his deathbed who wrote a deed granting all of his generally known property to others, and he then recovered, he cannot retract it, as we are concerned that perhaps he has property in another province that he reserved for himself, in which case the gift is valid even if he recovered.

The Gemara asks: But as for the mishna, which teaches: If he did not reserve for himself any amount of land, and he recovered, his gift is not valid, how can you find these circumstances? Rav Ḥama said: The mishna is referring to a case where he says: All my property is given to so-and-so, in which case he clearly reserved nothing for himself. Mar bar Rav Ashi said: The mishna is referring to a case where our presumption is that he does not have property elsewhere.

§ A dilemma was raised before the Sages: With regard to the gift of a person on his deathbed, is a partial retraction of the gift considered a retraction of the entire gift, or is it not considered a retraction of the entire gift? The Gemara suggests: Come and hear a proof from a baraita: If one gave all of his property to the first recipient and then he partially retracted his gift and gave part of his property to the second recipient, the second acquired his gift, but the first did not acquire anything. What, is it not referring to a case where the giver died, and the reason that the first recipient does not acquire anything is that a partial retraction is considered a retraction of the entire gift?

The Gemara rejects this explanation: No, the baraita is referring to a case where the giver recovered. The first gift was invalidated, because he left nothing for himself, whereas the second gift remained valid, since he gave only part of his property. Had he died, the first recipient would have received the remainder, as the giver retracted only part of the first gift, which he gave to the second recipient.

The Gemara comments: So too, it is reasonable to understand the baraita in this manner. From the fact that the last clause of the baraita teaches: If he gave part of his property to the first recipient, and then he gave all of his property to the second recipient, the first recipient acquired his gift, but the second did not acquire anything. Granted, if you say that the baraita is referring to a case where the giver recovered, due to that reason the second recipient did not acquire the gift. But if you say that the baraita is referring to a case where he died, both of them should acquire their gifts.

Rav Yeimar said to Rav Ashi: And even if the first clause of the baraita is referring to a case where he recovered, one can prove that a partial retraction is considered a retraction of the entire gift. Granted, if you say that a partial retraction is considered a retraction of the entire gift, this is the reason that at least the second recipient acquired the gift, as the giver reserved part of his property for himself. But if you say that a partial retraction is not considered a retraction of the entire gift, the giver should be considered as one who was dividing all of his property between the two recipients, and neither of them should acquire their gifts.

The Gemara concludes: And the halakha is that a partial retraction is considered a retraction of the entire gift. You find the halakha that is stated in the first clause of the baraita both in a case where the giver died and in a case where he recovered. You find the halakha that is stated in the last clause only in a case where he recovered.

§ A series of dilemmas were raised before the Sages: If a person on his deathbed consecrated all of his property to the Temple treasury and subsequently recovered, what is the halakha? Do we say that in any case that concerns consecrated property the assumption is that he resolves to transfer the property unconditionally, and therefore the consecration is valid even if he recovers? Or perhaps in any matter that concerns himself he does not resolve to transfer the property unconditionally.

Furthermore, if a person on his deathbed declared all of his property ownerless, what is the halakha? Do we say that since declaring his property ownerless is for the benefit of the poor as well as the rich, it involves the potential mitzva of providing for the poor, and therefore the assumption is that he resolves to transfer the property, i.e., declare it ownerless, unconditionally? Or perhaps in any matter that concerns himself he does not resolve to transfer the property unconditionally.

Furthermore, if a person on his deathbed divided all of his property to be distributed to the poor, what is the halakha? Do we say that with regard to charity the assumption is that he certainly resolves to transfer the property unconditionally? Or perhaps in any matter that concerns himself he does not resolve to transfer the property unconditionally. The Gemara concludes: These dilemmas shall stand unresolved.

The Gemara presents another version of this series of dilemmas: If a person on his deathbed consecrated all of his property to the Temple treasury, what is the halakha? If he declared all of his property ownerless, what is the halakha? If he divided all of his property to be distributed to the poor, what is the halakha? These dilemmas shall stand unresolved.

Rav Sheshet says: If one says: So-and-so shall take my property, or: So-and-so shall gain possession of my property, or: So-and-so shall take possession of my property, or: He shall acquire my property, all of these are terms that denote the bestowal of gifts. It was taught in a baraita: If one says: So-and-so shall receive as an inheritance, or: So-and-so shall inherit, these are also valid terms denoting inheritance in the case of one who is fit to inherit from him. And this baraita is in accordance with the opinion of Rabbi Yoḥanan ben Beroka, who holds that one can bequeath all of his property to one of his sons using terms that denote inheritance, not only using terms that denote the bestowal of a gift.

A series of dilemmas were raised before the Sages:

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

Bava Batra 148b explores whether selling a house while reserving the upper story implies retained rights, and examines deathbed gifts requiring reserved land for validity.