Babylonian Talmud: Tractate Baba Bathra

Folio 147a

"I thought I had a son; now, [however] that I have no son, [let] my estate [be given] to X"; [or] if a person was lying ill in bed, and on being asked to whom his estate [shall be given]. he replied, "I thought my wife was with child; now' [however] 'that my wife is not with child, [let] my estate [be given] to X"; and it [subsequently] transpired that he had a son or that his wife was pregnant, his gift is invalid,'¹  Is it to be assumed that this [statement represents the view of] R Simeon b. Menasya and not [that of] the Rabbis?²  — It may even be said [to represent the view of] the Rabbis, [but] 'I thought' is different.³  And what did he that raised the question imagine?⁴  — It might be suggested that he⁵  was merely mentioning his grief,⁶  hence [it was necessary] to teach us [that this is not so].

R. Zera said in the name of Rab: Whence [is it proved] that the gift of a dying man⁷  [is considered valid] by the Torah? — For it is said, Then ye shall cause his inheritance to pass to his daughter⁸  [which⁹  implies that] there exists another transfer which is [the same] as this [one]. And which is it? It is the gift of a dying man.¹⁰  R. Nahman in the name of Rabbah b. Abbuha said: [It may be derived] from the following.¹¹  Then shall ye give his inheritance unto his brethren,¹²  [which¹³  implies that] there exists another giving which is like this [one]. And which is it? It is the gift of a dying man.¹⁴  Why does not R. Nahman derive it from, Then ye shall cause to pass?¹⁴  — He requires that [expression] for [the following], according to Rabbi. For it was taught: Rabbi said, In [the case of] all [the relatives¹⁵  the expression of] 'giving' is used but here¹⁶  [the expression] used is that of 'causing to pass',¹⁷  [in order to teach] you that no other but a daughter causes an inheritance to pass from one tribe to [another] tribe, since [in her case] her son and her husband are her heirs.¹⁸  And why does not R. Zera derive it from, Then shall ye give?¹⁹  — This is the usual [expression] of Scripture.²⁰

R. Menashya b. Jeremiah said: [It²¹  may be derived] from the following:²²  In those days was Hezekiah sick unto death; and Isaiah the prophet the son of Amoz came to him, and said unto him, 'Thus saith the Lord; Set thy house in order for thou shalt die, and not live',²³  by mere verbal instruction.²⁴

Rami b. Ezekiel said: [It²¹  may be derived] from the following: And when Ahitophel saw that his counsel was not followed. he saddled his ass and arose, and got him home into his city and set his house in order, and strangled himself.²⁵  by mere verbal instruction.²⁶

Our Rabbis taught: Ahitophel advised his sons three things: Take no part²⁷  in strife, and do not rebel against the government of the House of David, and [if] the weather on the Festival of Pentecost is fine sow wheat²⁸  Mar Zutra stated: It was said, 'cloudy'²⁹  The Nehardeans said in the name of R. Jacob: 'Fine' [does] not [mean] absolutely fine, nor does 'cloudy' mean completely overcast, but even [when it is] 'cloudy' and the north wind blows [the clouds], it is regarded as 'fine'.³⁰

R. Abba said to R. Ashi: We rely upon [the weather information] of R. Isaac b. Abdimi. For R. Isaac b. Abdimi said: [At] the termination of³¹  the last day of Tabernacles, all watched the smoke of the wood pile.³²  [If] it³³  inclined towards the north, the poor rejoiced and landowners³⁴  were distressed because [that³⁵  was an indication] that the yearly rains would be heavy³⁶  and the crops would decay.³⁷  [If] it inclined towards the south, the poor were distressed and landowners rejoiced because [that³⁸  was an indication] that the yearly rains would be scanty and the crops could be preserved.³⁹  [If] it inclined towards the east, all were glad;⁴⁰  towards the west, all were distressed.⁴¹

A contradiction was raised: The east [wind] is always beneficial; the west [wind] is always harmful; the north wind is beneficial for wheat that reached⁴²  [the stage of] a third [of its maturity].⁴³  and harmful for olives in blossom; and the south wind is injurious' for wheat that reached⁴²  [the stage of] a third [of maturity] and beneficial for olives in blossom. And R. Joseph. (others say Mar Zutra and others say. R. Nahman b. Isaac), said: Your mnemonic is, 'Table in the north and candelabra in the south;⁴⁴  the one⁴⁵  Increases Its own⁴⁶  and the other⁴⁷  increases Its own.⁴⁸ — There is no difficulty: This⁴⁹  for us,⁵⁰  and that⁵¹  for them⁵²

It was taught: Abba Saul said: Fine [weather at] the Festival of Pentecost is a good sign⁵³  for all the year.

R. Zebid said: If the first day of the New Year is warm, all's the year will be warm; if cold, all⁵⁴  the year will be cold. Of what [religious] significance is this⁵⁵  [weather information]?

1. Because it is assumed that if he had known the facts he would not have given his estate to X but to his son or his wife.
2. Since the Rabbis, as has been shown above, do not admit the principle of assumed motive.
3. In such a case as this, where the testator specifically said that he thought he had no son and that only because he was told that he had no son his estate was to be given to a stranger. even the Rabbis admit that motive which need no longer be merely assumed is the determining factor.
4. Lit., 'and he that threw (i.e.. argued) what did he throw?' How could he even for one moment assume that the' Rabbis would not in such a case hold the same view as R. Simeon h. Menasya, when the difference between the two cases is so self evident?
5. The testator,
6. The mention of the death of his son might not have been due at all to his desire to indicate the cause of his giving away his estate to strangers. It might have been a mere expression of sorrow at having no son to survive him, a fact which the disposal of his estate had brought to his mind.
7. Even if made verbally, is as binding as if attended by a legal symbolic acquisition.
8. Num. XXVIII, 8.
9. The superfluity of the expression of [H] or, according to others, of [H]
10. As the transfer of a father's estate to a daughter takes place without symbolic acquisition so does the transfer of the gift of a dying man.
11. Lit., 'from here'.
12. Ibid, v. 9.
13. The superfluous, [H] or [H]
14. Cf. supra, n. 8.
15. That were enumerated in Num XXVII, 9-11
16. In the case of a daughter.
17. Ibid. v. 8.
18. V. supra 109b.
19. Num. XXVII, 9
20. The expression is not in any way superfluous.
21. The validity of a verbal gift made' by a dying man.
22. Lit., 'from here'.
23. II Kings, XX 1
24. I.e., Hezekiah was to set his house in order (Heb., Zaw [H], lit., command) by nothing more than his verbal instruction,
25. II Sam. XVII, 23.
26. Ahitophel set his house in order, (Heb., wa-yezav, [H], 'and he commanded') by his verbal instructions only.
27. Lit., 'be not '
28. Fine weather at that season is an indication of a good wheat harvest for that year.
29. I.e., cloudy weather at Pentecost is an indication of a good harvest for that year. Cloudy, Heb. balul, [H], is easily interchangeable with barrur, [H], clear.
30. And the wheat harvest of that year will be successful.
31. Lit., 'exit'.
32. On the Temple altar.
33. The column of smoke.
34. Lit., masters of houses'.
35. The prevalence of the South wind which caused the column of smoke to incline towards the North.
36. Lit., 'many'.
37. And as they could not be stored away for long. prices would fall.
38. The north wind. Cf. p. 635, n. 18.
39. Consequently prices would rise.
40. The west wind by which it was driven would cause a moderate rainfall and plentiful crops.
41. The east wind by which it was driven towards the north would cause a scanty rainfall and meagre crops; and prices would consequently rise.
42. Lit.. 'when they brought'.
43. When it requires no more rain.
44. In the Temple.
45. The north where stood the table on which was placed the shewbread.
46. Crops of wheat which are required for the shewbread.
47. The south where stood the candelabra, for the lighting of which olive oil was used. is beneficial to olives.
48. At any rate, it has been stated in this Baraitha that 'the east wind is always beneficial and the west wind is always harmful', how, then, was the reverse stated in the previous Baraitha, reported by R. Isaac b. Abdimi? (V., notes 5 and 6).
49. The latter Baraitha which states that the east wind is beneficial and the west wind harmful.
50. Refers to Babylon which is situated in a valley and has an abundance of water. A heavy yearly rainfall, there, is harmful; a light one beneficial.
51. The first Baraitha.
52. Palestine, which is a dry highland country. There the west wind with its heavy rains is beneficial while the dry east wind is harmful.
53. V. supra p. 635. n. 11
54. I.e., 'most of it' (Rashb.).
55. Lit., 'as to what comes out of it'.

— In respect of the prayer of the High Priest [on the Day of Atonement]¹

Raba,²  however, said in the name of R. Nahman: The [validity of a verbal] gift of a dying man is a mere [provision] of the Rabbis³  lest his mind become affected.⁴  But did R. Nahman say so?⁵  Surely R. Nahman said: Although Samuel had stated that if a person sold a bond of indebtedness to another and subsequently⁶  remitted [the debt] it is remitted,⁷  and that even an heir may remit,⁸  Samuel, [nevertheless]. admits that if he presented it to him as the gift of a dying man, he cannot [subsequently] remit it.⁹  [Now]. if it is agreed'¹⁰  that [this¹¹  is] Biblical, one can well understand the reason why one cannot remit [the debt]; if, however, It is maintained¹⁰  that [this is merely] Rabbinical, why should he not be able to remit [it]? — It is not Biblical; but was given¹²  [the same force] as [a law] of the Torah.¹³

Raba said in the name of R. Nahman: If a dying man said, 'Let X live¹⁴  in this house', or,'Let X eat the fruit of this date-tree', his Instructions are to be disregarded¹⁵  unless he used the following expression:¹⁶  'Give this house to X that he may live in it', or 'Give this date-tree to X that he may eat of its fruit'¹⁷  Does this mean to imply¹⁸  that R. Nahman holds the opinion that [only] the rights¹⁹  that a man in good health may confer,²⁰  may also be conferred by²¹  a dying man, [while those] which a man in good health cannot confer,²¹  can neither be conferred by a dying man?²¹  Surely Raba said in the name of R Nahman:

1. When he offered up a special prayer for rain. If the signs indicated heavy rains. his prayer had to be modified.
2. At this point is resumed the discussion of the theme introduced by R. Zera (p. 634).
3. Biblically the gift would not be valid unless attended by actual or symbolic acquisition.
4. As a result of any resistance which might be offered to his instructions. Hence, legal force was given to his verbal and informal instructions as if legal acquisition had taken place.
5. That the validity of the verbal gift of a dying man n only Rabbinical.
6. Lit., 'and he returned'.
7. And the buyer cannot claim the debt from the borrower. He only bought the rights of the creditor which now exist no more. He can, however, reclaim from the creditor (the seller) the sum he paid him for the bond.
8. A debt he inherited.
9. B.K. 92a; B.M. 20a; Kid. 38a.
10. Lit., 'you said'.
11. The validity of the verbal gift of a dying man.
12. Lit., 'and they made it'.
13. For the reason given supra, viz., lest his mind become affected.
14. Lit., 'shall dwell'.
15. Lit., 'he said nothing'. X cannot acquire the right of living in the house or that of eating the dates. since the former is abstract, while the dates are nol yet in existence. As such rights cannot be given away by one in good health, even by means of symbolic and legal transfer, the acquisition of the object itself (the house or the tree) being required, a dying man also cannot by his mere verbal instructions (though valid in the acquisition of concrete and existing objects), confer such rights.
16. Lit., 'until he would say'.
17. By transferring the possession of the concrete object. the abstract or the yet non-existing. may also simultaneously he transferred.
18. Lit., 'to say'.
19. Lit., 'thing'.
20. Lit., 'there is'.
21. Lit.. 'there is not', i.e., that the only difference between the rights of a healthy, and those of a dying man consists in the privilege of the latter to transfer possession by a mere verbal instruction, while in the case of the former, actual or symbolic acquisition must take place.