Bava Basra - Daf 135
- Concern for rumored witnesses re: יבום
A man, who was presumed not to have brothers, claimed the same when he was dying. Rav Yosef declared there was no concern that his wife was subject to יבום, but Abaye objected that people were saying that there were עדים in מדינת הים who know that this man has brothers!? Rav Yosef replied with a quote of Rebbe Chanina about a captive woman’s status regarding Kohanim: עידיה בצד אסתן ותיאסר – There are supposedly witnesses in the North, who are not present to testify, and she should be forbidden?! We are not concerned about possible witnesses who are absent. Abaye protested: אם הקלנו בשבויה – if we were lenient regarding a captive, for whom they were lenient in other ways (e.g., to accept the testimony of a woman), נקל באשת איש – shall we be lenient regarding a married woman?! A captive usually guards herself from being violated, has a prior חזקה of being permitted to Kohanim, and the prohibition is only a לאו, whereas a married woman’s adultery carries the death penalty. [Although this woman’s husband died, her prior status of marriage forms the basis for requiring חליצה if he had brothers.] Rav said: חוש לה – be concerned about the possible witnesses.
- If one man says, “זה אחי,” brothers not required to share the estate with him
The Mishnah on Daf 134a taught that if a man said, "זה אחי" – This is my brother, he is not believed, and the other brothers do not have to share their inheritance with him. The admitting brother, however, does have to give the proportional amount due to the alleged brother. The Mishnah concludes that if the alleged brother died and had inherited property from elsewhere, all the brothers inherit him jointly, in accordance with the first brother’s admission. The Gemara asks what the other brothers say. If they agree he is their brother, they should all share the estate with him!? If they definitively say he is not their brother, then they should not inherit him in the סיפא!? The Gemara answers that they say: אין אנו יודעין – we do not know if he is our brother. Thus, they enjoy the benefit of both sides. Rava says this proves that if one claims a maneh from someone, and that man responds, “I do not know,” he is exempt, which is why the brothers do not give up any of their inheritance. Abaye disagrees, because this is like a claimant saying מנה לאחר בידך – “You owe another person a maneh.” Here, the alleged brother himself does not know if he is their brother, and his own claim is uncertain.
- A שכיב מרע giving a gift with a שטר
The next Mishnah states that if someone dies, and a דייתיקי – dying man’s will was attached to his thigh, its instructions are not followed, since he may have only intended to give the gift with the שטר, which can no longer be given. Rav Shizvi quoted Rebbe Elazar saying that if a שכיב מרע – gravely ill person said: כתבו ותנו מנה לפלוני – “Write and give a maneh to Ploni,”and he died before it was done, we do not carry out his instructions, שמא לא גמר להקנותו אלא בשטר – for perhaps he only decided to give it to him through the שטר, ואין שטר לאחר מיתה – and a שטר is not effective after his death. Rebbe Yochanan told his students: איזדהרו בה – be vigilant about [this ruling]. Rebbe Abahu quoted Rebbe Yochanan saying: תיבדק – it should be examined. Rav Dimi explains we examine his statement: אם כמיפה את כחו – if it was said as one enhancing [the recipient’s] power, adding the document as proof, not a precondition of the gift, then we write the שטר after his death. The Gemara says if the שכיב מרע said to “also” write a שטר, it is enhancing his power.
