Bava Batra 135b (קלה:) — the Talmud in English

Abaye said,

there is no proof from here, d

I can say that in general

one who claims money from another with a definite claim, while the other claims that he does not know,

is liable,

as in the case of Rav Huna and Rav Yehuda cited above.

But here it is different, for it is tantamount to saying, “You have a maneh belonging to another in your possession.”

That is, since the brother is claiming on behalf of his brother, we say to him: “You are not a litigant in our case.” Therefore, he is not believed to extract money from them.

We learned in the Mishna: “One who says, ‘This is my brother,’ is not believed, but he takes a share with him in his portion.

If he dies, the property returns to its place;

if property comes to him from another source, his brothers inherit it with him.”

The Gemara is uncertain what is considered property that came to the brother from another source.

Rava raised a dilemma: What is the status of appreciation that the property generated on its own?

Is its status like appreciation that comes from another source, or not?

The Gemara explains the two sides of the dilemma:

With regard to appreciation that reaches the shoulders

that is, one gave the brother whose status is uncertain empty land, and he labored on it and improved it, so that it is now filled with produce,

you need not raise the dilemma, for it is like property that came to him from another source.

They all divide that appreciation equally.

The dilemma arises with regard to appreciation that does not reach the shoulders, such as

when one gave him a

palm tree, and it grew thicker

that is, it thickened on its own, or

land, and the river deposited silt

that is, the river overflowed its banks and fertilized the land without any effort on the part of the owners,

what

is the halakha? Do the brothers divide that appreciation, or does that appreciation return to the first brother to whom it was given?

And we conclude with

teyku.

Mishna:

One who transfers property to another to take effect after his death has not acquired it, because acquisition does not take effect after death.

Nevertheless, the Sages instituted that in the case of a shekhiv mera who distributes his property before his death, his words are effective, so that his mind will not become disturbed.

Therefore,

if one dies and a dayetiki is found

a will that he did not manage to recite before his death, but instead wrote on a document, even if it was

tied to his thigh,

so that there is no doubt that he wrote it,

it is entirely ineffective.

For he does not have the power to transfer property to take effect after his death. The Sages instituted the above rule only in the case of a shekhiv mera.

But if

he transferred it

the shekhiv mera

to another person,

that is, if it said in the document: “I transfer to you the property written in this document upon your receiving this document from me,”

whether

he transferred it to one

of the heirs or whether he transferred it to someone who is not one of the heirs, his words are effective.

For the words of a shekhiv mera are considered as though they were written and delivered.

Gemara:

The Gemara explains the words of the Mishna:

The Sages taught: What is a dayetiki?

That is, what is the will of a shekhiv mera that can be collected after death, even if he did not transfer it to the recipient from today?

Any document in which it is written

“This shall be to stand and exist

after my death.”

And what is a gift

that is acquired from today and takes effect after his death?

Any document in which it is written: “From today and after death.”

The Gemara raises a difficulty:

Rather,

that is, it appears from your words that only if he wrote for him

“from today and after death” is it a gift,

but if he wrote for him

“from now,” is it not a gift?

Abaye said: This is what he is saying: What is a gift of a healthy person that is like the gift of a shekhiv mera, which is acquired only after death? Any document in which it is written: “From today and after death”

In the Rashbam it is explained that it is not exactly like a shkiv mera's gift; for if he wrote "from today and after my death," the corporeal acquisition takes place from today and the fruits are acquired after death, and therefore he cannot withdraw from it any longer. This is not so in a shkiv mera's gift, for he may retract his gift so long as he has not died. But in Tosafot they posited a case where he said, "from today if I do not retract by the hour of death." In such a case indeed he may retract his gift until the hour of death. And regarding Rashbam's remarks see in Ketzot HaChoshen (Remaḥ 9).

Rabba bar Rav Huna was sitting in the portico of the house of Rav, and he sat and said in the name of Rabbi Yohanan: A shekhiv mera

who said, “Write and give a maneh to so-and-so,” and died before they managed to write as he had instructed,

they may not write and give it, lest he had not finally resolved

in his mind

to transfer it only through a document, and there is no document after death.

And even if they wrote it, they do not give the document after his death, lest he had only resolved to transfer it by document—and there is no document after death. Rashash And the same applies if he said "give and write"; we are concerned he did not intend to transfer except by document. But if he said "give, and even write," it acquires. For he did not say "write" except to enhance the power of the recipient. Rashbam And likewise if he said only "give," they give according to his words; for the words of a shkiv mera are like written and delivered. And even for the living man they give, since it is commanded to fulfill the words of the deceased. Tosafot HaRosh

Rabbi Elazar said

to his students

, “Be careful with it.”

That is, take care to act accordingly, for this is the halakha.

Rav Shizbi said:

That was not the incident. Rather, this statement

was said by Rabbi Elazar, and Rabbi Yohanan said to them

to his students,

“Be careful with it.”

Rav Naḥman bar Yitzḥak said: It is reasonable to follow the version of Rav Shizbi.

Since

if you say that Rabbi Elazar said it,

it is understandable why

Rabbi Yohanan needed to testify concerning it

to testify concerning the words of

Rabbi Elazar.

Since Rabbi Elazar was his student, he needed to state that the halakha follows his words.

But if you say that Rabbi Yohanan said it,

then would

Rabbi Elazar need to testify concerning Rabbi Yohanan, his master?!

And furthermore, come and hear

another proof in accordance with Rav Shizbi’s account,

that Rabbi Elazar said it: For Ravin sent in the name of Rabbi Abbahu: Know that Rabbi Elazar sent to the Diaspora in the name of our master,

in the name of Rav:

A shekhiv mera who said, “Write and give a maneh to so-and-so,” and died, they may not

write and give it, lest he had not finally resolved to transfer it only through a document, and there is no document after death.

This is explicitly in accordance with Rav Shizbi’s account: Rabbi Elazar stated this teaching, and Rabbi Yohanan testified that the halakha follows his words.

And

Rabbi Yohanan explains the halakha:

Rabbi Yohanan said:

It is not the case that they may never write after death. Rather,

it must be examined.

The Gemara explains:

What does “it must be examined” mean?

When Rav Dimi came, he said

two halakhot, the second of which explains Rabbi Yohanan’s words.

The first:

A dayetiki nullifies a dayetiki.

That is, if a shekhiv mera wrote his property over to one person and then went back and wrote it over to another, the second acquired it and not the first.

Since a shekhiv mera can retract his gift until his death. But if he wrote it as a gift from a healthy person, he cannot retract it and give it to another person.

And the second halakha:

If a shekhiv mera said, “Write and give a maneh to so-and-so,” and died, we see whether he was enhancing the recipient’s power,

that is, whether it appears that his intention in requesting the document was only to enhance the recipient’s power, and he did not intend to withhold the gift until the document was written—how his intention is recognized will be explained below—

they may write it

even after death.

But if not, they may not write it.

Lest he intended to transfer it only after death, and there is no document after death.

This is the meaning of Rabbi Yohanan’s statement: “It must be examined.”

Rabbi Abba bar Memel raised an objection:

We learned in a beraita:

A healthy person who said, “Write and give a maneh to so-and-so,” and died—they may not write and give it.

It may be inferred:

In the case of a shekhiv mera, may they write and give it?

He raised the objection, and he himself resolved it: The case is one in which he was enhancing the recipient’s power.

As stated above.

The Gemara explains:

What are the circumstances of one who enhances the recipient’s power?