Babylonian Talmud

Rodkinson 1918 — source 14, scan section 36

be listened to. But how can we know what he meant ? As R. Hisda said elsewhere : If written, and confirmed by the cere- mony of a sudarium, no retraction can take place. So also in our case. If it was said by the sick person, " Give to him, and also write," then the last expression may be considered as a confirmation of this act; and it may be so done. It was taught : R. Jehudah in the name of Samuel said : The Halakha prevails, they may write and give; and so also said Rabha in the name of R. Na'hman. MISHNA X. : If one wishes to bequeath his estate to his children {i.e., it speaks of one who remarries and does not wish that the children by his first wife should lose their share in his estate after his death), he must write: I bequeath my estate to them from to-day and after my death {i.e., the estate belongs to them thenceforward, but not the products until after his death). So is the decree of R. Jehudah. R. Jose, however, maintains : It is not necessary to write " from to-day." If one wrote : " I bequeath my estate to my son from to- day, and after my death," he has no longer any right to sell his estate, because it is bequeathed to his son ; and his son, also, has • Transferred from 152a. 302 THE BABYLONIAN TALMUD. no right to sell it because it is still under the control of his father. If, notwithstanding this, the father has sold, the prod- ucts thereof are sold until he dies. If the son, however, sold, the buyer has nothing therein until the father dies. GEMARA: But how if he has written " from to-day and after my death " ? Have we not learned in a Alishna : If one wrote in a divorce, " from to-day and after my death," it is con- sidered a doubtful divorce, so that after his death his widow cannot marry his brother, but must perform the obligation of Halitzah. (This is no objection) as there we are doubtful as to the explanation of his words. Does he mean by the words, " after my death," to be a condition {i.e., if I die she shall be divorced from to-day), or as a retraction (i.e., the last words re- tract the former), and therefore she cannot marry. Perhaps the divorce was valid, and it is prohibited to her to marry a brother-in-law. But she is under the obligation of Halitzah. Perhaps the divorce was invalid. In our case, however, it is to be explained, the body of the estate is bequeathed " from to- day," but the products, " after my death." "R.Jose . . . It is not necessary," etc. Rabba b. Abuhu became sick. R. Huna and R, Na'hman came to make him a sick call. Said R. Huna to R. Na'hman : Question him whether the Halakha prevails with R. Jose. And he answered: I am not aware of the reason of his statement. To what pur- pose, then, should I ask if the Halakha so prevails ? Rejoined R. Huna: I will tell you the reason later, and meanwhile you may question him with whom the Halakha prevails. And he did so. And Rabba answered : So said Rabh : The Halakha prevails with R. Jose. When they went out from him. said R. Huna: The reason of R. Jose's statement is because the date of the deed testifies to whom from that day the estate belongs. And so also we have learned plainly in a Boraitha. Rabha questioned R. Na'hman : According to R. Jehudah, who requires that there shall be written '* from to-day," etc., how is it, if this was made with the ceremony of a sudarium ? (Shall we assume that as the above ceremony was already per- formed title is acquired, and nothing further is to be added; or, even then, it must be written in the deed " from to-day," etc. ?) And he answered : In such a case it is not necessary. R. Papa, however, maintains that there is a difference in the TRACT BABA BATHRA (LAST GATE). 303 tenor of the deed. If it was written : We have secured the ceremony of a sudarium, which he agreed to and made, then nothing is needed to be added. If, however, it was written: He agreed, and we performed the ceremony, then it is neces- sary to write, " from to-day," etc. (and the reason is, that the latter expression may be explained as intimating that he agreed that possession should come after death, and thereto we have joined the ceremony of a sudarium). R. Hanina of Sura op- posed : Are there such things as we do not know, and we must rely upon the scribes? The scribes of Rabha and of Abayi were questioned, and it was found that they were aware of the differ- ence mentioned above. R. Huna b. R. Joshua, however, said : There is no difference between the two versions mentioned above; as to either of them, nothing is to be added. But if " sudarium " was not mentioned in the deed at all, and there was a memorandum : e.g., " The undersigned testify that a memorandum was made by so and so," etc., then, according to R. Jehudah, " from to-day," etc., is needed. Said R. Kahana: I repeated this discussion before R. Zebid of Nahar- dea, and he told me: You have learned this so. We, how- ever, have learned it as follows: Said Rabha in the name of R. Na'hman : If a sudarium is mentioned, no matter what ver- sion was used, nothing is needed to be added; but in respect to a memorandum (illustrated above) R. Jehudah and R. Jose differ. "/ bequeath my estates to my son," etc. It was taught: If the son sold out and then died while the father was still alive, according to R. Johanan the buyer has nothing in it ; and ac- cording to Resh Lakish, title is given to the buyer after the father's death. The reason of their difference is, because the former holds that the sale of the products ought to be held similar to the sale of the body; and as the products could not be sold by the son, as he had nothing in them so long as the father was alive, so he could not sell the body. And the latter holds that the body is not subordinate to the products; as the body belonged to the son, the sale is valid. R. Johanan objected to Resh Lakish from the Boraitha stated above, p. 289, which says : The estate must be turned over to the heirs of the first ; and according to you. it ought to be to the heirs of the testator. And he answered : It was already ex- 304 THE BABYLONIAN TALMUD. ^plained by R. Hoshua in Babylon that there was a difference when the testator said plainly " and after you." And so also it was answered by Rabh, to a contradiction made before him by Rabha b. R. Huna. But have we not learned in a Boraitha that the estate must be turned over to the heirs of the tes- tator ? In the resolution of this case, Tanaim differ: "My estates are bequeathed to you, and after you to B ; A sells out, and consumes the amount. B has a right to recover it from the buyers after the death of A. So is the decree of Rabbi. R. Simeon b. Gamaliel maintains B has a right only to what remained from A." A contradiction was made from the follow-