Bava Kamma 88b — the Talmud in English

It happened [

he went ]

that Rav Shmuel bar Abba went before Rabbi Yirmeya bar Abba, and he established him

Rabbi Yirmeya for Rav Shmuel

in the property of

his mother.

Rabbi Abba went

Rav Shmuel’s mother’s husband

and related the matter [

he told the things ]

before Rav Hoshaya,

Rav Hoshaya went and related it before Rav Yehuda, and he said to him

Rav Yehuda:

“Thus said Shmuel: A woman who sold property of nichsei melog during her husband’s lifetime and died, the husband takes it from the purchasers,”

and below the reason for this matter is explained.

And just as the husband takes it from the purchasers, so does he take it from one who received the property as a gift. Therefore Rabbi Abba could take it from Rav Shmuel, who had received a gift from his mother, Rabbi Abba’s wife.

They related

this statement of Shmuel

before Rabbi Yirmeya bar Abba, and he said to them:

Although Shmuel said that the husband takes it from the purchasers, the halakha is not so, because

I

a Mishna

know [

I know a Mishna ] in which it is explained that this is not as Shmuel said:

For we learned: “One who writes his property to his son” “

from today and

after his death,”

that is, he gives the body of the land to his son already from today, but the right to eat the produce of the land the father retains for himself until the day of his death.

The son cannot sell

the property in an absolute sale from now,

because it is

still

in the father’s possession

for the produce, until the day of his death.

And the father cannot sell

the property in an absolute sale,

because it is written

and given

to the son.

Nevertheless, the father, and likewise the son, can sell the property in a partial sale:

If

the father sold

his property, it is

sold

for the produce, and the purchaser eats it

until he dies

the father; and when the father dies, the son goes and takes the land from the purchasers.

And if

the son sold

during his father’s lifetime,

the purchaser has no

produce

until the father dies.

And from here Rabbi Yirmeya infers that this is not like Shmuel, for it implies that

when the father dies, at least the purchaser has

the land [

when the father dies, the purchaser will acquire the land ]. And even though the son died during the father’s lifetime,

and it turns out

that the property did not come

to

the son’s possession,

nevertheless, when the father dies, the purchaser will acquire the land.

And the Gemara adds: the words of Rabbi Yirmeya bar Abba are

like

the view of

Rabbi Shimon ben Lakish, who said:

when the father dies,

it makes no difference [

whether ]

whether the son died during the father’s lifetime and the property did not come

to

the son’s possession, or whether the father died during the son’s lifetime and the property came

to

the son’s possession—

the purchaser acquires.

And likewise here: the husband indeed eats the produce during his wife’s lifetime, but he has no right to the body of the land except when she dies and he inherits it. If so, he is like a father who gave his property to his son “from today and after death”: from today—the body, and after death—the produce; but during his lifetime the father retained with himself the right to eat the produce.

And just as concerning a father who wrote his property to his son “from today and after death,” and the son went and sold it, the property belongs to the purchaser after the father’s death, even if the son died during the father’s lifetime, so will the property belong to Rav Shmuel bar Abba after his mother’s death, even though she died during her husband’s lifetime—and this is not like Shmuel’s statement that a woman who sold property of nichsei melog during her husband’s lifetime and died, the husband takes it from the purchasers.

Concerning a son who died during his father’s lifetime, Rabbi Yochanan and Reish Lakish disputed, and their dispute is brought below:

For it was stated: If the son sold during the father’s lifetime and

afterward

the son died during the father’s lifetime:

Rabbi Yochanan said: The purchaser did not acquire.

Reish Lakish said: The purchaser acquired.

And it explains it and proceeds:

Rabbi Yochanan said: The purchaser did not acquire.

Because

he can say to you: When the Mishna teaches: “The son sold, the purchaser did not acquire until the father dies,” and when

when

the father dies, the purchaser has

it means specifically

that the son did not die during the father’s lifetime, so that the property came into the son’s possession, [

the property came into the son’s possession before he died, and then he had the power to transfer it to the purchaser ].

But

if

the son died during the father’s lifetime, so that it did not come into the son’s possession, even when the father dies [

even when the father dies ]

the purchaser has nothing

at all.

It follows that he holds

Rabbi Yochanan:

the acquisition of produce

that the father has

is considered like an acquisition of the body;

therefore, the son does not have the power to sell the property during his lifetime,

and when he sells [

he sold ]

he sells what is not his.

Rabbi Shimon ben Lakish says:

If the son sold during the father’s lifetime and afterward the son died during his father’s lifetime,

the purchaser acquired,

for Reish Lakish holds:

When the Mishna teaches: “The son sold,

the purchaser has nothing until the father dies,”

which implies:

when the father dies, at least the purchaser has it: it makes no difference [

there is no distinction ] whether

the son did not die during the father’s lifetime, so that the property came

into

the son’s possession, or whether

if

the son died during the father’s lifetime, so that the property did not come into the son’s possession;

for in either case

the purchaser acquired.

It follows that he holds

Reish Lakish:

the acquisition of produce is not considered like an acquisition of the body,

and the father’s acquisition of produce does not prevent the son—who has the body—from selling the property, since

when he sells, he sells what is his.

Now the Gemara explains the dispute between Rabbi Yirmeya bar Abba and Rav Yehuda:

In Yevamot 36a, the Gemara ruled that the halakha follows Reish Lakish, that the acquisition of produce is not considered like an acquisition of the body.

And we, now, both Rabbi Yirmeya bar Abba and Rav Yehuda, hold like Rabbi Shimon ben Lakish

that is, since we hold that the halakha follows Reish Lakish, it is appropriate to explain their dispute, Rabbi Yirmeya’s and Rav Yehuda’s, in a manner in which Rav Yehuda’s view also accords with the words of Reish Lakish.

And Rabbi Yirmeya bar Abba says:

For the Mishna implies that even if the son died during the father’s lifetime, the purchaser acquired. If so, it can be proved from here that the acquisition of produce is not considered like an acquisition of the body. [And consequently, the same applies to the matter before us, concerning a woman who gave a gift from her nichsei melog and died during her husband’s lifetime.]

For

if it could enter your mind that the acquisition of produce is considered like an acquisition of the body,

then

when

when

the father dies and the son dies during the father’s lifetime, why does the purchaser have it!?

For

when this one sells [

the son ]

does he not sell what is not his!?

Rather, learn from it: The acquisition of produce is not considered like an acquisition of the body.

They returned [

they returned ] Rabbi Yirmeya bar Abba’s answer

before Rav Yehuda,

that from the Mishna it is proved that the acquisition of produce is not considered like an acquisition of the body, and Rabbi Yirmeya bar Abba properly placed the property in Rav Shmuel bar Abba’s possession.

Rav Yehuda said to them

Rav Yehuda:

“Thus said Shmuel: This [

a woman who sold nichsei melog during her husband’s lifetime and died during her husband’s lifetime ]

is not comparable to our Mishna,”

and he explains it and proceeds:

And the Gemara explains:

What is the reason

that it is not comparable, and what distinction is there between the acquisition of produce that the husband has in his wife’s nichsei melog and the acquisition of produce that the son has who received a gift from his father “from today and after death”?

He said [

Rav Yosef explained ]

Granted, if

the Mishna

had taught the opposite: “One who writes his property to his father” [

and not one who writes his property to his son ], and the father sold during the son’s lifetime, they are not sold until the son dies, it would imply that if the son died, the purchaser acquired. If so, indeed

it could be derived from it that the acquisition of produce is not considered like an acquisition of the body,

for if it were considered like an acquisition of the body, the purchaser would not acquire the land.

But now that it teaches: “One who writes his property to his son,”

there is no necessity that the reason for the matter is that the acquisition of produce is not considered like an acquisition of the body everywhere, for it can be said: In truth, it is considered like an acquisition of the body, and the owner of the body cannot sell it during the giver’s lifetime. And the reason the son can sell before his father dies is

because he is fit to inherit it,

for when the father said to him, “My property is yours after death,” surely his intention was not to give him an ordinary gift after death, for in any event he inherits his father, and what benefit did the gift provide him!? Necessarily, the father’s intention was to give him the possibility of selling the property while the father was still alive, even though ordinarily the acquisition of produce is considered like an acquisition of the body.

If so, a woman who sold nichsei melog, or who gave them as a gift to one who is not fit to inherit her—for example, Rav Shmuel bar Abba, who is not fit to inherit his mother, since she has a husband—her sale is not a sale, since where he is not fit to inherit him, the acquisition of produce is considered like an acquisition of the body, and this is not like Rabbi Yirmeya bar Abba’s words.

Abaye said to him

to Rav Yosef: And is it so that

a son inherits his father,

but

a father does not inherit his son!?

That is, just as concerning a father who gives his son land “from today and after death,” you say: Since he is fit to inherit him, he can sell the property so that the purchaser will acquire it after the father’s death—

so too, concerning a son who gives his father land “from today and after death,” it can be said: Since he is fit to inherit him—for one who dies without sons or daughters, his father inherits him—he can sell the property during his son’s lifetime, and the purchaser will acquire it after the son’s death, even if the son dies after his father has died. If so, even if it had taught the opposite, nothing could be derived from it concerning whether the acquisition of produce is not considered like the acquisition of the body.

Rather,

what is the reason that “one who writes his property to his father” does not give the father greater power than anyone who has only an acquisition of produce? For we say: The reason that he wrote the property to his father was not to strengthen his power to sell during his lifetime,

but he comes to cause the property to escape from his son [

so that the giver’s sons will not inherit him ] if indeed the giver has sons or daughters who are destined to inherit him.

Here too

concerning a father who writes his property to his son, if the father has other sons, it can be said: He did not give him his property during his lifetime in order to strengthen his power to sell during the giver’s lifetime, but

he comes to cause the property to escape from his brothers [

from the recipient’s brothers ]

he comes.

If so, there is no distinction between a father who wrote over his property to his son and retained for himself the eating of the produce for all the days of his life, and a husband who eats the produce of his wife’s nikhsei melog for all the days of his life; and why is the gift of the woman to Rav Shmuel, her son, not effective!?

When the Second Temple was destroyed, the Sanhedrin went into exile from place to place, and one of the places where the Sanhedrin was located was Usha [Rosh Hashana 31b].

But what then is the meaning of “it is not similar to our Mishna”

that Shmuel says

because

with regard to a husband concerning his wife’s property there is

the “Usha enactment.”

For Rabbi Yosei bar Ḥanina said: In Usha they enacted: If a woman sold property of nikhsei melog during her husband’s lifetime, and she died, the husband takes it away from the purchasers.

And even though during her lifetime the husband eats only the produce, and kinyan perot that is not like kinyan haguf cannot prevent the owner of the property from selling it, nevertheless the Sages enacted that the power of the husband’s lien should be as though he had purchased the land from his wife at the time of their marriage. Consequently, if afterward the woman sold it to another person, the husband takes it away from him, as with any land whose owner sold it successively to two people, where the first takes it away from the second.

Rav Idi bar Avin said: We too have learned this,

it is possible to prove from the beraita in accordance with the words of Rabbi Yosei bar Ḥanina, that a woman cannot sell her nikhsei melog so that the purchaser will acquire them after her death:

Witnesses who were found to be zomemim are punished with the same punishment that they plotted to inflict upon the person concerning whom they testified: if they testified to make him liable for death, they are killed; if they made him liable for lashes, they are lashed; and if they testified against him with testimony that causes him monetary loss, they must pay him according to what they plotted to cause him to lose, as it is stated [Deuteronomy 19:19]: “And you shall do to him as he plotted to do to his brother.”

Witnesses who said:

“We testify concerning so-and-so that he divorced his wife and gave her,”

he has already paid her

her ketuba.