Bava Batra 148b (קמח:) — the Talmud in English

And concerning these matters stated by Reish Lakish,

they raised a dilemma before them: If the house is given to one person,

that is, he transferred the house to one person,

and the upper story to another, what is the halakha? Is this considered a reservation,

meaning, did he grant the owner of the roof the right to project beams into the courtyard,

or not,

as he did not intend to grant him rights in the courtyard?

And if you would say,

if we adopt the position

that when the house is given to one person and the upper story to another, this is not considered a reservation,

there is still a dilemma in a case where he explicitly said to the first person that he was selling him the house

except for the upper story: What is the halakha?

Since he said “except for the upper story,” which is superfluous wording, does he certainly intend to grant the second person rights in the courtyard, to project beams from the roof toward the courtyard, or not?

The Gemara resolves the dilemma:

Rava said that Rav Naḥman said: If you would say that when the house is given to one person and the upper story to another, this is not considered a reservation,

if he said

“except for the upper story,” this is considered a reservation,

and he leaves the second person the right to project beams into the courtyard,

in accordance with the opinion of Rav Zevid,

as Rav Zevid explained concerning one who reserves the upper story for himself,

as he said: If he wishes to project

beams from it, he may project them.

Evidently,

this proves from here that

since he reserved the upper story,

even though it is unnecessary to reserve it explicitly,

he also reserved a place for projecting beams,

he intended to reserve for himself a place for projecting beams. The same applies when he gives the house to one person and the upper story to another: If his wording is superfluous, his intention is to give the second person a place for projecting beams.

The Gemara continues to explain the laws of a gift by a shikhiv mera.

Rav Yosef bar Minyumi said that Rav Naḥman said: With regard to a shikhiv mera who wrote all his property over to others,

and the law is that he can retract, since he gave away all his property,

we examine

what his intention was:

If he was distributing,

meaning that from the moment he began giving, his intention was to distribute all his property, then even if he gave his entire property not to one person but to several, it is considered a gift by a shikhiv mera, in which case, if he

dies, they all acquire

even without an act of acquisition. But if he

recovers

from his illness,

he retracts from all of them,

even from the first recipients, since from the outset his intention was to distribute everything.

But

if he reconsidered,

meaning that at first he intended to retain part of his property for himself, and ultimately reconsidered and decided to distribute all his property, and

he dies, they all acquire.

However, this applies specifically when he gave the first recipients their portions with an act of acquisition, since this was a partial gift and therefore requires an act of acquisition. The final recipient is different, since at that point he did not reserve anything for himself, and it is possible to effect the transfer through speech. But if he

recovers, he retracts only from the last recipient.

Since the gifts to the others were partial gifts accompanied by an act of acquisition, he cannot retract from them; only with regard to the last recipient is there an assessment that he gave the gift because of his impending death, since it was then that he gave everything.

The Gemara asks: Why, in the case where he reconsidered, does he not retract?

Perhaps he is merely deliberating and then gives the gift!?

Perhaps he decided to give everything, but is deliberating to whom to give it and then gives it, in which case he should be subject to the law of a gift by a shikhiv mera.

The Gemara answers:

Ordinarily, a shikhiv mera deliberates carefully and then gives.

Generally, a shikhiv mera initially considers to whom he will give his property, and only afterward begins distributing it. If we see that he stops in the middle, apparently he reconsidered; therefore he cannot retract, and an act of acquisition is required at the time of the gift.

Rav Aḥa bar Minyumi said that Rav Naḥman said: With regard to a shikhiv mera who wrote all his property over to others and recovered

from his illness and wishes to retract,

he cannot retract.

Even though he gave all his property,

we are concerned that perhaps he has property in another country,

so it turns out that this was not a gift of all his property. And one must say that he also performed an act of acquisition, since this is a partial gift, which is not acquired without an act of acquisition.

The Gemara asks:

But then, the Mishna, which teaches

as follows:

If he did not reserve any land whatsoever

and recovered,

his gift is not valid,

and he can retract,

how can you find such a case!?

In what circumstance is this speaking? After all, one must be concerned that perhaps he has property in another country, so why can he retract?

Rav Ḥama said: It is speaking of one who says, “All my property,”

thereby emphasizing that he is giving all his property. But here, where he said that he was giving his known property and did not emphasize “all my property,” he cannot retract. And this is in fact the reason for the concern that perhaps he has property that he did not give away, since otherwise, why did he not simply say, “I give all my property to so-and-so”

. Mar bar Rav Ashi said

that the Mishna presents no difficulty:

It is in a case where it is established for us that he does not have

any additional property, and therefore we are not concerned.

They raised a dilemma before them

the members of the academy were uncertain:

Partial retraction:

A shikhiv mera gave all his property to one person, and afterward retracted part of the gift and gave that portion to another. He can retract, since the gift takes effect only after his death. Does

this constitute retraction from the entire gift,

meaning, by canceling part of the gift, has he revealed his intention to retract from all of it, so that only the second recipient will receive the portion, and if he ultimately recovers from his illness, he will not be able to retract, as is the law with regard to a partial gift by a shikhiv mera? Likewise, the second recipient will acquire only if there was also an act of acquisition

or not,

or perhaps his sole intention was to retract from the partial gift, while the remainder remains with the first recipient, and this is considered a gift of all the property by a shikhiv mera, so that if he recovers, he retracts.

The Gemara resolves the dilemma from a beraita:

Come and hear:

A shikhiv mera who gave

all of it to the first recipient,

and then retracted his gift of all his property to the first recipient,

and

gave

part of it to the second recipient,

that is, he gave the second recipient part of what he had initially given the first,

the second recipient acquires

in any event, whether he dies or recovers from his illness, since this is a partial gift. Whereas

the first recipient does not acquire.

The Gemara infers:

Is it not

speaking

of a case where he died?

That is, the Gemara attempts to establish that the beraita is speaking of a case in which the shikhiv mera ultimately died. Since the beraita states that the first recipient did not acquire, this must necessarily be because partial retraction constitutes retraction from the entire gift.

The Gemara rejects this:

No.

The beraita is not speaking of a case where he died, but rather

of a case where he recovered

from his illness. Therefore the second recipient acquired, since it was a partial gift. But the gift to the first recipient, who initially received all the property, was entirely nullified, because since the shikhiv mera recovered from his illness, he retracts. Nevertheless, it is still possible that partial retraction does not constitute retraction from the entire gift.

The Gemara compels this answer:

This is also evident,

that the beraita is speaking of a case where he recovered,

from what is taught in the latter clause:

A shikhiv mera who gave

part of it to the first recipient and all of it to the second recipient: The first recipient acquires; the second recipient does not acquire.

Granted, if you say

that this is speaking

of a case where he recovered

from his illness,

it is for this reason that the second recipient did not acquire.

Since he received the remainder of the property, leaving the giver with nothing, the second recipient did not acquire, since the giver can retract. But the first recipient acquired, since he received only part of the property.

But if you say that it is speaking of a case where he died,

if the latter clause is speaking of a case where he ultimately died,

let both of them acquire!

Both of them should acquire.

Since we have established that the latter clause is speaking of a case where he recovered, it is reasonable that the first clause is likewise speaking of a case where he ultimately recovered. Accordingly, the Gemara continues: This must necessarily provide proof that partial retraction constitutes retraction from the entire gift:

Rav Yeimar said to Rav Ashi: Let it also be speaking of a case where he recovered,

even though it is speaking of a case where he recovered from his illness.

Granted, if you say

that we maintain that

partial

retraction constitutes retraction from the entire gift, this is why, at least, the second recipient acquired.

Therefore the second recipient acquires and not the first, since he retracted from the gift to the first, while he cannot retract from the gift to the second, since he gave him only part of the property.

But if you say

that we maintain that

partial retraction does not constitute retraction from the entire gift,

and the first gift remains in effect,

let it be considered as though he was distributing

the property, like a shikhiv mera who distributes his property to the first and second recipients.

And

since ultimately he gave everything,

neither one of them should acquire!

Neither of them should acquire, since he can retract from both of them.

And from here we have resolved the doubt: Partial retraction is a revelation of intent that cancels the entire gift, and this is the halakha.

And the halakha is—

partial retraction constitutes retraction from the entire gift.

Accordingly, the beraita is readily explained: In the first clause, where he gave all of it to the first recipient, then retracted and gave part of it to the second recipient, the second recipient acquires whether the giver dies or recovers, since he cannot retract from a partial gift.

And the latter clause, where he gave part of it to the first recipient and all of it to the second recipient, and the second recipient did not acquire, but only the first recipient acquired, is speaking of a case where he recovered from his illness. Therefore the second recipient does not acquire, since the giver can retract. The first recipient acquired, since this is a partial gift.

They raised a dilemma before them

the members of the academy were uncertain:

A shikhiv mera who

consecrated all his property and recovered, what is the halakha?

Can he not retract from the consecration, despite having consecrated all his property?

Do we say that, with regard to consecration, he makes a complete decision and effects the acquisition,

since when he gives his property to the consecration, his intention is that the consecration take effect as a gift by a healthy person and acquire it immediately, and therefore he cannot retract?

Or perhaps

or should we say:

With regard to himself, he does not make a complete decision and effect the acquisition,

as he is also concerned for himself and does not want to remain without property, even though he gave it to the consecration. Therefore his intention was to consecrate it only in the event that he died, and if he recovers, he retracts.

The Gemara continues to consider the matter: If we adopt the first side of this doubt, that when giving to the consecration he makes a complete gift and cannot retract, there is still a further dilemma:

If he declared all his property ownerless, what is the halakha?

Can he retract?

The sides of the doubt are:

Do we say that since the poor as well as the wealthy can acquire it,

that is, since in a declaration of ownerlessness the poor also have the possibility of acquiring the property,

he makes a complete decision and effects the acquisition,

it is reasonable that his intention is to make a complete gift.

Or perhaps

or should we say:

With regard to himself, he does not make a complete decision and effect the acquisition.

With regard to himself, he does not make a complete gift and can retract.

And if we adopt the first side with regard to ownerlessness, that he cannot retract, since by declaring his property ownerless he demonstrates that he is not particular about this property and wishes to remove it from his possession, there is nevertheless still a further dilemma:

If he distributed all his property to the poor, what is the halakha?

He gave all his property to charity—what is the ruling?

The sides of the doubt are:

Do we say

that perhaps

with regard to charity, he certainly makes a complete decision and effects the acquisition,

as with regard to charity he certainly gives a gift and cannot retract, and this is similar to consecration?

Or perhaps

or should we say:

With regard to himself, he does not make a complete decision and effect the acquisition.

He is concerned for himself, and therefore effects the transfer only after death.

And the Gemara leaves the matter at

teyku

.

The Gemara now explains the expressions used in a gift by a shikhiv mera:

Rav Sheshet said: “He shall take,” “he shall acquire,” “he shall take possession,” and “he shall acquire”—

all of them are expressions of a gift,

even in the case of a shikhiv mera, despite the absence of an additional act of acquisition. With regard to a healthy person, it is obvious that these expressions are effective

. In a beraita it was taught

the beraita adds:

“He shall inherit”

and “he shall be heir,”

expressions of inheritance are also effective

when addressed to one fit to inherit,

if the recipient is fit to inherit from him.

And this is the opinion of Rabbi Yoḥanan ben Beroka,

who holds that a person may designate as his heir, according to his wishes, one who is fit to inherit from him; therefore here too, the gift is effective when expressed in the language of inheritance.