Babylonian Talmud: Tractate Baba Bathra

Folio 152a

It was stated: [As to] the gift¹  of a dying man [in the deed of] which was recorded [symbolic] acquisition. the school of Rab in the name of Rab reported [that the testator] has [thereby] made him²  ride on two harnessed horses;³  but Samuel said: I do not know what decision to give on the matter. The school of Rab reported in the name of Rab, that he made him ride on two harnessed horses, for it is like the gift of a man in good health⁴  [and] 'it is [also] like the gift of a dying man. 'It is like the gift of a man in good health', in that, if he recovered, he [can] not retract, [and] 'it is like the gift of a dying man' in that, if he said [that] his loan⁵  [shall be given] to X, his loan [is to be given] to X.⁶  Samuel, however, had said, 'I do not know what decision to give on the matter' since it is possible that⁷  he decided not to transfer possession to him⁸  except through the deed,⁹  and no [possession by means of a] deed [may be acquired] after [the testator's] death.¹⁰

A contradiction was pointed out [between one statement] of Rab and another statement of his,¹¹  and [between one statement] of Samuel and another statement of his.¹²  For Rabin sent in the name of R. Abbahu: Be [it] known to you that R. Eleazar had sent to the Diaspora in the name of our Master¹³  [that] where a dying man said, 'Write¹⁴  and deliver a maneh to X', and he died,¹⁵  they must neither write [the deed] nor deliver [the maneh], because it is possible that [the testator]¹⁶  had decided not to transfer possession to him¹⁷  except through the deed,¹⁸  and no [possession by means of a] deed [may be acquired] after [the testator's] death.¹⁹  And Rab Judah said in the name of Samuel [that] the law is that one may both write and deliver.²⁰  [Does not this present] a contradiction [between one statement] of Rab and another statement of his [and between one statement] of Samuel and another statement of his?²¹  — There is no contradiction between the two statements of Rab.²²  One²³  [deals with the case] where symbolic acquisition took place;²⁴  the other²³  where no symbolic acquisition took place.²⁵  There is [also] no contradiction between the two statements of Samuel,²⁶  [because in the latter case the reference is to one] who [specifically] strengthened his²⁷  claims.²⁸

R. Nahman b. Isaac sat behind Raba while Raba was sitting before R. Nahman when he addressed to him the [following] enquiry: Did Samuel say. 'since it is possible that he decided not to transfer possession to him except through the deed, and no [possession by means of a] deed [may be acquired] after [the testator's] death'? Surely Rab Judah said in the name of Samuel, 'If a dying man gave all his property, in writing, to strangers. although [symbolic] acquisition took place. he may retract if he recovered

1. That is where be distributed all his estate (Rashb.).
2. The recipient.
3. I.e., his claim has a double force. That of the gift of a dying man and that of legal acquisition.
4. Owing to the symbolic acquisition that took place.
5. Which someone owes him.
6. Although the money was not, at the time, in his possession and the gift was not made in the presence of the three parties concerned (v. 144a).
7. By the unnecessary mention of symbolic acquisition.
8. The donee.
9. And not merely by virtue of his instructions, being a dying man.
10. Hence it was difficult for Samuel to give a decision on the matter. It may be added that the same difficulty would also arise even where no deed was written and symbolic possession was accompanied by verbal instructions only, or where a deed alone was written unattended by any symbolic acquisition. The mere Fact that the testator had recourse to the unnecessary symbolic form of acquisition raises the question whether his intention thereby was not to annul his first transfer (that of a dying man) and postpone until after his death the donee's acquisition of the gift. Had he wished him to acquire immediate possession there would have been no need For the additional symbolic acquisition. His mere word as a dying man would have done that. Once the possibility of postponement until after death is granted, the donee can no more acquire possession, because as soon as death had taken place the entire estate of the dead man had passed over into the ownership of his legal heirs. (So Rashb.; v. however Tosaf. s.v. [H].)
11. Lit., 'on that of Rab'.
12. CF. previous note.
13. Rab.
14. I.e., the deed.
15. Before the deed was written or the maneh delivered to X.
16. By his demand that a deed also be written which, since his mere verbal instruction as a dying man would have been sufficient, was unnecessary.
17. The donee.
18. CF. supra p. 658, n. 10.
19. Supra 135b, q.v. notes a.l. The legal force given to the word of a dying man extends only to monetary gifts but not to the delivery of a deed.
20. It is assumed that the testator's request for a written document was for the purpose of strengthening the donee's claim; not to weaken it.
21. In the report above it was stated that any unnecessary addition of a deed to the verbal instructions of a dying man was according to Rab assumed to be in favor of the donee and according to Samuel against him, while here the reverse is reported!
22. Lit., 'that of Rab upon Rab, there is no difficulty'.
23. Lit., 'that'.
24. Lit., 'where they acquired of him'. In such a case the testator obviously wished to improve the donee's claims.
25. CF. previous note. It is possible, therefore, that the testator desired acquisition of the gift effected by means of a deed and since he died the deed is no longer of any avail.
26. Cf. supra n. 12.
27. The donee's.
28. Lit., 'power'; by the inclusion of the formula given below.

because it is known that the [symbolic] acquisition took place¹  only on account of [his expectation of] death'!²  He answered him³  by [a wave of] his hand and remained silent.⁴  When he rose, R. Nahman b. Isaac asked Raba, 'What did he indicate to you?' [Raba] replied to him,' That Rab Judah's report refers to the case] where [the testator] strengthened the donee's claims.'⁵  In what manner [is it indicated that one wished to] strengthen the donee's claims? — R. Hisda replied: [By including in the deed the formula]. 'And we⁶  acquired from him⁷  in addition to this [presentation of the] gift.'⁸

[It is] obvious [that where a dying man] gave [all his estate] in writing to one man⁹  and [subsequently] to another¹⁰  the [law is the] very same as [that which] R. Dimi enunciated when he came, [vis., one] will annuls [another] will.¹¹  [If. however.] he wrote [a deed of the gift] and handed¹  it¹²  to one¹³  and [subsequently] wrote [a deed of the gift] and handed¹  it²  to another,¹³  Rab said: The first acquires [its] ownership; while Samuel said: The second acquires [its] ownership. Rab said, 'the first acquires [its] ownership' for¹⁴  it is like the gift of a person in good health;¹⁵  while Samuel said, the second acquires [Its] ownership', for it is like the gift of a dying man.¹⁶

But surely their¹⁷  difference of opinion on the [principle] has [already] once been expressed in [the case of] the [deed of a] gift of a dying man, in which symbolic acquisition was entered!¹⁸  [Both are] required. For if [their dispute] had been stated [in connection] with the first case,¹⁹  [it might have been assumed that] in that [case only] Rab adheres²⁰  to [his opinion], because symbolic acquisition took place;²¹  but in this case,¹⁹  where no symbolic acquisition took place, it might have been suggested [that] he agrees with Samuel.²²  And if [their dispute] had been stated [in connection] with the second case,¹⁹  [it might have been assumed that] in that [case only] Samuel adheres²⁰  to [his opinion];²³  but in that [case]'²⁴  it might have been suggested [that] he agrees with Rab. [Hence both were] required.

At Sura they taught as above.²⁵  At Pumbeditha they taught as follows.²⁵  R. Jeremiah b. Abba said: [The following enquiry] was sent from the academy²⁶  to Samuel. 'Will our Master instruct us [as to] what [is the law in the case where] a dying man gave all his estate to strangers, in writing; and symbolic acquisition [also] took place,²⁷  [but was not entered in the deed]?'²⁸  He replied²⁹  to them: 'After [symbolic] acquisition no withdrawal is of any avail'.³⁰

1. Cf. p. 656. n. 6.
2. From this it follows that if the testator did die the donee acquires possession after the death of the testator though a deed was written. How, then, could it be said in the name of Samuel that where a deed was written there can be no acquisition after death?
3. LIt., 'showed.' 'told'.
4. [Or 'he (Raba) remained silent', having understood what R. Nahman meant to signify by the wave of his hand.]
5. Lit., 'his power'. In such a case the donee acquires possession after death even where the testator ordered the writing of a deed.
6. I.e., 'witnesses'.
7. I.e., from the testator on behalf of the donee, by means of symbolic acquisition.
8. Supra 136a.
9. Lit., 'this'.
10. Lit., 'and he wrote to this'.
11. Supra 135b. Hence the second donee acquires the ownership of the gift.
12. Lit., 'caused him to merit', i.e., to acquire the right of 'ownership', by means of delivering to him the deed.
13. Lit., 'this', presenting to him all his estate.
14. Owing to the delivering of the deed to the donee, which Rab holds has the same effect as symbolic acquisition.
15. Which cannot be withdrawn.
16. And since it can be withdrawn if the testator recovered, it may also be withdrawn while he is still on his deathbed. Hence it was within the rights of the testator to present it to the second who, consequently, acquires its ownership.
17. Rab and Samuel.
18. Supra 152a top. Why, then, should they express the same principles again?
19. Lit., 'in that',
20. Lit., 'said'.
21. Lit., 'they acquired for him'. And since the donee's claim has a double force, that of the gift of a dying man and that of symbolic acquisition, the gift cannot be withdrawn.
22. Hence the second case was necessary.
23. Since there was no symbolic acquisition.
24. Where symbolic acquisition did take place.
25. Lit., 'thus',
26. [Or, 'from the school of Rab', after Rab's death in 247.]
27. Cf. supra p. 656, n. 4 and 5.
28. And subsequently the estate was presented to a second person. (Cf. R. Gersh.) The question is whether, under such circumstances, the first or the second acquires the ownership of the estate.
29. Lit., 'sent'.
30. Lit., 'there is nothing'; and the first donee acquires the legal ownership of the gift. Samuel's view, supra, that the existence of a deed in addition, to symbolic acquisition may imply a desire, on the part of the testator to postpone until after his death the donee's acquisition of the gift does not apply to this case, since here symbolic acquisition had not been entered in the deed itself. (CF. R. Gersh.). [V. however' Rashb., who refers the question back to the case of [H] where the deed was delivered to the first donee.]