Bava Basra - Daf 138
- Protesting against receiving a gift
A Baraisa teaches that if one writes all his assets to someone, which included slaves, and the recipient said: אי אפשי בהן – “I do not want them,” the Tanna Kamma says that if the second master is a Kohen, the slaves may eat terumah (because the gift took effect). Rabban Shimon ben Gamliel says his protest voids the gift, and the first owner’s heirs inherit the slaves. The Gemara clarifies: בצווח מעיקרו – if he protested from the beginning, all agree the gift is void. שתק ולבסוף צווח - If he was initially silent, and later protested, all agree the gift is valid (and he merely changed his mind). They argue שזיכה לו על ידי אחר – where he transferred it to him through another person (who acquired it on the recipient’s behalf), and the recipient was initially silent and later protested. The Tanna Kamma holds that here, too, his initial silence proves he wanted it. Rabban Shimon ben Gamliel holds: הוכיח סופו על תחילתו – his eventual [protest] proves the intent of his initial silence. He never wanted it, and was initially silent because he reasoned: כי לא מטו לידי מאי אצווח – as long as they did not reach my hand, why should I protest?
- When the order in a שכיב מרע’s gift indicates the recipients acquire sequentially
A Baraisa states that if a שכיב מרע says, “Give two hundred zuz to Ploni, and three hundred to Ploni, and four hundred to Ploni,” אין אומרין כל הקודם בשטר זוכה – we do not say that whoever is mentioned earlier in the שטר acquires earlier; rather, they all acquire their gifts simultaneously. Therefore, if someone produces a שטר that the שכיב מרע owed him money, גובה מכולם – he collects from all of them, proportionally according to what each received. But if he said, “Give two hundred zuz to Ploni, ואחריו לפלוני – and after him, three hundred to Ploni, ואחריו לפלוני - and after him, four hundred to Ploni,” then we do say כל הקודם בשטר זוכה – whoever comes earlier in the שטר acquires earlier, because this expression indicates that he wants the gifts to be conveyed sequentially. Therefore, if someone produces a שטר that the שכיב מרע owed him money, גובה מן האחרון – he collects the entire amount from the last recipient. If his gift is not enough to cover the debt, גובה משלפניו – he collects the remainder from the [recipient] before him, and so on.
- Can עדים record a שכיב מרע’s claim without knowing its veracity, or are we חושש לבית דין טועין?
A Baraisa states that if a שכיב מרע said, “Ploni owes me a maneh,” Rebbe Meir says: העדים כותבין אף על פי שאין מכירין – the witnesses may record the claim, even though they do not recognize whether the claim is true. Therefore, when his heir presents this document to collect the debt, צריך להביא ראיה – he must bring proof to the claim, since it was not initially investigated. The Chochomim say the עדים cannot record the claim before determining that it is true; therefore, this document is sufficient proof for the claim. Rav Huna reversed the opinions, and explained why עדים should not record the claim: משום בית דין טועין – because of a concern of a Beis Din erring to allow collection with the document without further proof. Still, the halachah is we are not concerned for an erring Beis Din. The Gemara asks that Rava said Beis Din does not allow a woman to perform חליצה or מיאון unless they recognize the people involved, because we are concerned that a future Beis Din would mistakenly assume their identities were already confirmed!? It answers that a Beis Din relies on another Beis Din to investigate matters but would not rely on עדים to do so.
