TALMUD. The 23rd Massekhet – Bava Batra

Massekhet Bava Batra – the “last gate” – is the third and final section of Massekhet Nezikin, the large tractate that deals with financial matters.

Bava Batra differs from its predecessors, Bava Kamma and Bava Metzia, in two ways that are interconnected. While Bava Kamma and Bava Metzia dealt, on some level, with prohibitions, Bava Batra focuses solely on civil law. Parallel to this, the laws contained in the other two massekhtot were often based on sources in the Torah and on the interpretation of the Sages, while our massekhta is grounded in Rabbinic enactments whose sources are their understanding of human nature, on community agreements and on the need to establish boundaries and principles for business transactions in the Jewish community.
to be continued in the form of comments.

the link to the previous Massekhet:
http://kabbalistnyc.com/?p=4387

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176 Responses to TALMUD. The 23rd Massekhet – Bava Batra

  1. Bava Batra 151a-b: Sacrificing Donations to the Temple

    Our Gemara quotes Mishnayot in Massekhet Shekalim (4:7-8) that discuss a case where someone announces that he is donating all of his possessions to the Mikdash. In such a case, the property is usually given to the Temple treasurer for general upkeep – bedek ha-bayit. But what if some of his possessions can be brought as sacrifices?

    If some of the possessions are animals that can be brought as sacrifices, there is general agreement that such an animal should be sacrificed, as that was most probably the intent of the donor. Furthermore, the korban should be brought in such a way that it is entirely donated to the Temple, with no part of it going to the owner. Therefore, all agree that the animals that can be brought as olot should be sacrificed. There is a difference of opinion, however, with regard to those animals that can be brought as shelamim – korbanot that are divided between the altar, the kohen and the owner. According to Rabbi Eliezer, such an animal should be sold to someone who will use it as a shelamim, and the proceeds should be given to the Temple treasurer together with all the rest of the possessions. Rabbi Yehoshua agrees that such animals should be sold to someone who will sacrifice them as a shelamim, but, he says, the proceeds of the sale must be used to purchase olot.

    If some of the possessions are not sacrificial animals, but they can be brought on the altar – for example, wine, oil, or fowl – Rabbi Elazar rules that they should be sold to someone who will use them on the mizbe’aḥ for its appropriate purpose, and the proceeds should be used to purchase olot that will be burned on the altar. In this case the Mishna does not record any argument.

    The Rambam records this in his Mishneh Torah (Hilkhot Erkhin 5:8-9) and rules like Rabbi Eliezer in the first case, so that the money received from the sale of the animals that cannot be brought as olot will be given to the Temple treasurer for general use. This creates an odd situation that the Rambam feels obligated to explain. In the first case in the Mishna, animals that could be brought as shelamim are sold and the proceeds are used for bedek ha-bayit. In the second case, other items brought on the mizbe’aḥ are sold, but the proceeds from that sale are used to buy sacrifices!

    He explains (based on the passage in Vayikra 27:11-12) that only animals can be evaluated for the purpose of redemption. As such, the animals in the first case can truly be redeemed, and their value can be used for the relatively mundane purposes of bedek ha-bayit. The wine, oil, etc. in the second case cannot be redeemed, so the money retains the original holiness and must be used for actual sacrifices.

  2. Bava Batra 152a-b: Putting it in Writing

    As we have learned, a matnat shekhiv mera is a present given by an individual who is on his death bed. Unlike other examples of property transfer where the most basic requirement demands that a formal kinyan – an act of transfer – take place, in the case of matnat shekhiv mera the Sages ruled that no such kinyan is necessary. This rule was established in order to ease the concerns that rest on a dying person who wants to be sure that his will is carried out prior to his death.

    Our Gemara discusses a case where in addition to his request that his money be given to others, the shekhiv mera arranged for a formal contract to be written that spelled out what was to be given away. In such a case, Rav argues that the present is certainly a good one since it works on two different levels – both as a normal present (even if he recovers the present is permanent and will not revert back to him) and as a matnat shekhiv mera (and he can even transfer loans that are owed to him, which ordinarily cannot be accomplished without a formal legal act). Shmuel argues, saying that he does not know how to rule in such a case, since the appearance of the contract seems to indicate that he does not want to invoke the matnat shekhiv mera rule, yet ein shtar le-aḥar mitah – a contract cannot take effect after death.

    According to the Rashbam and other rishonim, the Gemara’s discussion would be the same whether a contract was written or if some other method of kinyan was used to transfer ownership of the property, and the Gemara used the expression of “writing a contract” only because that is the normal manner to formalize a kinyan. Others suggest, however, that the entire discussion would only apply to a situation where the kinyan was arranged through a written contract.

  3. Bava Batra 153a-b: Proving the Illness Caused the Death

    As we have learned, according to the Mishna (146b), the unique power of the gift of a shekhiv mera – someone on his death bed – to take effect even without a formal kiny­an, only works if the dying man bequeaths all of his possessions while on his death bed. This clarifies to us that he is only distributing his wealth because he assumes that he has no more need for physical possessions. Therefore, in the event that the dying man recovers, all of these presents must be returned, since they were given under a mistaken impression.

    The Gemara on today’s daf brings a case where the witnesses who heard the dying man’s wishes write that he stated the gifts that he wanted to give while he was “sick in bed.” Their testimony did not state clearly, however, that he passed away from this illness, which is the ordinary language that is included in such documents when the witnesses are sharing their testimony that we are dealing with a case of matnat shekhiv mera. After the man died, his sons, who are interested in receiving their inheritance, claim that he enjoyed a brief recovery from that first illness, and that he retracted the gifts given while he was ill. Tosafot point out that the recovery in-and-of-itself undoes the matnat shekhiv mera, even if he did not say that he was retracting the gift.

    Rabba says that the current situation – the man is dead and buried – appears to indicate that the matnat shekhiv mera remains in effect.

    Abaye points to another case of doubt – when a ship sank and we do not know the fate of the people who were on the ship – where we assume that they are still alive unless we find proof to the contrary. Thus we do not always work with the current situation; we often prefer to assume that the earlier situation remains – especially since most people who are sick do recover.

    The Gemara does not record a response to Abaye’s question. The Rosh suggests that from the continuation of the Gemara it appears that Rabba retracted his position; the Ramban suggests that this case is different, since we have the written testimony of the witnesses that at least superficially appears to clarify the situation for us – that he died of the illness, and that the matnat shekhiv mera should take effect.

  4. Bava Batra 154a-b: Selling Property While Still a Minor

    Our Gemara relates a story that occurred in Bnei Brak, where someone who inherited property from his father sold it and died soon afterwards. Family members then claimed in court that the person who sold the property was underage at the time that it was sold and that the sale should be cancelled. Rabbi Akiva heard the case together with the suggestion that the body be exhumed in order to ascertain whether he had reached maturity before he died. Rabbi Akiva ruled that he could not allow for nivul ha-met – desecration of the dead – in such a case; furthermore, he argued that the physical condition of the body changes after death, so that examining the body would not offer a definitive clarification of the situation.

    As we will see on tomorrow’s daf the time that a person is considered an adult to engage in buying and selling property – particularly property that he received as an inheritance – is not the ordinary 13-year old age of maturity, but 18 or 20. Even so, there remains an element of concern with physical maturity, as someone who does not reach physical maturity may not be considered competent to engage in business even at the later age.

    The continuation of the Gemara suggests that Rabbi Akiva’s argument about nivul ha-met may only apply to relatives, as Tosafot explain, either because they should be expected to be more concerned with the dead man’s honor or because there is no out-of-pocket loss for them, since they were not purchasers. In theory, someone who was not a relative could argue that his loss was so great that he would not be concerned if someone else’s body would be desecrated. The Gemara concludes that that is why Rabbi Akiva offered a second reason that the body should not be exhumed – in any case due to physical changes in the body, we will not be able to determine whether the dead man had reached maturity.

  5. Bava Batra 155a-b: The Age of Maturity

    We know that Jewish law recognizes a child as reaching maturity when he becomes physically mature. Nevertheless, with regard to certain halakhot the law may require other types of maturity.

    Our Gemara presents a case where a child has received an inheritance from his father. How old must he be before he is allowed to sell that property? Rava quotes Rav Naḥman as requiring him to be 18 years old; Rav Huna bar Ḥinnana quotes Rav Naḥman as requiring him to have reached 20 years.

    Some of the Ge’onim understand that this question does not relate specifically to inheritance, but to any business transaction – the Gemara is simply discussing the most ordinary case where a young person will have property to deal with. The concern is that a young child will not possess the business acumen to buy and sell, so Jewish law will consider him a minor until he becomes older.

    Most of the commentaries (e.g., the Ri”f, Rambam, Meiri and others) apply this only to property received as an inheritance from his father, while the Ritva applies it to any situation of inheritance, even from his mother or his siblings. The reason to limit it to apply only in the case of a father’s inheritance is that this is a rabbinic enactment to protect the value of the estate, and such enactments are limited only to ordinary cases. It is common for a child to inherit his father’s estate – any other inheritance would be unusual.

    Although the continuation of the Gemara seems to imply that the ages of 18 or 20 are dependent on physical maturity, it is clear that the reasoning behind this law is our concern that a young person makes well thought-out financial decisions. In fact, Rabbeinu Tam and the Ri”d both rule that a child of 13 years old who is known to understand the markets and is savvy in his business sense would be permitted to buy and sell this property.

  6. Bava Batra 156a-b: The Evils of Growing Weeds

    As we have learned, it is a generally accepted principle that we listen to the instructions of a shekhiv me-ra – a person on his deathbed – and disburse properties and possessions that he owns simply based on his words, without demanding the usual kinyan. This ruling is given because we want to free the shekhiv me-ra from all of his worldly concerns and ensure that he is at peace to avoid hastening his death. In point of fact, Rabbi Elazar demands a full kinyan even in the case of someone who was mesukan – ill and in a dangerous state.

    To disprove Rabbi Elazar, the Gemara tells a story about the family of Bnei Rokhel whose mother was on her death bed and requested that her valuable keveinati – a brooch – be given to her daughter, and her request was fulfilled by the Sages after her death. Rabbi Elazar responded in strong language, arguing that this family was known to be resha’im. The Rashbam explains that because they were resha’im, the Sages were not interested in having the sons receiving a valuable inheritance, so through a power similar to hefker beit din hefker, they transferred ownership to another sibling.

    According to the Gemara, Rabbi Eliezer explains that the Bnei Rokhel family was considered to be evildoers because they allowed weeds to grow in their vineyards, something that according to Rabbi Eliezer’s ruling was forbidden because of the halakhot of kilayim – the prohibition against planting different crops in close proximity. Rabbi Uziel Moshe Rothstein explains in his Naḥalat Moshe that even though most of the Sages disagree with Rabbi Eliezer’s ruling on that matter, since that was the common practice in his community it was enough to consider them evildoers, and the Sages may have applied rules differently to them than to others.

  7. Bava Batra 157a-b: Buying Something That Does Not Exist

    One of the basic questions that comes up regarding issues of ownership in Jewish law is whether adam makneh davar she-lo ba la-olam – whether or not a person can buy or sell an object that is not in existence right now. Our Gemara presents this question as a disagreement between Rabbi Meir and the Sages, with Rabbi Meir ruling that something can be bought or sold even if it does not exist presently and the Sages ruling that such a thing cannot be bought or sold. The Gemara does limit Rabbi Meir’s ruling to a situation where the object is expected, even though it does not exist at this moment, e.g. if someone sells the rights to dates that will grow on a palm tree in the upcoming season.

    In truth, when Rabbi Meir presents his position, he does not appear to require an expectation that the object will come into existence; he never mentions that the case of dates is what he is referring to in his ruling. If anything, the original case that Rabbi Meir discusses appears to be a case where the future of the situation is much in doubt – he presents his ruling in a case where a man asks a married woman to agree to marry him after her husband dies.

    One approach suggested by the commentaries is that Rabbi Meir must be discussing an out-of-the-ordinary case, where, for example, the husband was on his death bed when the marriage proposal was made. Only there would Rabbi Meir rule that the marriage proposal has significance. Other rishonim argue that there are two issues at hand when Rabbi Meir discusses issues of a davar she-lo ba la-olam. Sometimes the issue is that the thing does not exist; sometimes the thing exists, but for one reason or another it cannot be acted upon at this time. Rabbi Meir ruling that adam makneh davar she-lo ba la-olam means that if we anticipate that the object will appear or if the object already exists and its status may change in the future, in both of these cases the decisions or activities made by the parties will have significance.

    It should be noted that Rabbi Meir’s position is rejected and the accepted ruling is that ein adam makneh davar she-lo ba la-olam – that a person cannot buy or sell an object that is not in existence right now.

  8. Bava Batra 158a-b: Competing Claims

    Our Mishna discusses a case where a husband and wife were killed in a sudden accident. Those who would inherit the husband’s estate claim that the wife died first, and since the husband inherits his wife, they would receive her property, as well; those who would inherit the wife claim that the husband died first so she would retain possession of her property and would be owed her ketuba from her husband’s estate, as well.

    Beit Shammai rules that the money is divided between her husband’s relatives and her father’s relatives, since Beit Shammai believes that whenever we cannot ascertain what happened, we will divide the money.

    Beit Hillel rules that given the questionable situation, we leave the status quo. Thus, the ketuba remains with the husband’s family, and the property that she retains control over – the nikhsei melug – remains with the wife’s family.

    When a couple gets married, a ketuba – the agreement that is signed by witnesses delineating the obligations that the husband has towards his wife – is written. When the Mishna on our daf refers to the ketuba, it means specifically the monetary responsibilities that the husband has accepted in this relationship, and, in particular, the amount of money that he guaranteed to her in the event of divorce or death.

    It was traditional for the wife to also bring financial assets into the marriage, which were divided into two:

    •Nikhsei melug, which are possessions that remain the property of the woman. While the couple is married, the husband can derive benefit from this property. When the marriage ends, they remain hers, in whatever condition they may be.
    •Nikhsei tzon barzel, which are possessions that become the property of the husband. Their value is written into the ketuba, and in the event that their marriage comes to an end – if the husband dies or if they become divorced – the wife will be reimbursed for the full amount, either from the estate if he died or from him if they divorced.

    According to Beit Hillel, in theory the nikhsei tzon barzel should also remain in their status quo situation. Whether they are seen as belonging to the husband or the wife is not clear, and is subject to a disagreement in the Gemara.

  9. Bava Batra 159a-b: The Testimony of a Relative

    Why, according to Jewish law, will relatives be rejected as witnesses in a court of law?

    Our Gemara raises this issue while attempting to clarify a case that the Talmud calls kasha she-be’dinei mamonot – one of the most difficult rulings in civil law. The case suggested by the Gemara as being one that is very difficult to understand is a situation where a person signs a legal document as a witness, and at a later time marries and becomes related to one of the people involved in the contract. According to Jewish law, even though he can no longer come to court and attest to the fact that he witnessed and signed the document – since he is a relative and unable to testify – nevertheless, other people who recognize his handwriting can testify that it is his signature and the document will be accepted based on his signature.

    The Gemara suggests that this can be explained simply by understanding that a relative is disqualified from testifying not because we are afraid that he will lie, but simply because it is a gezerat melekh – it is the decree of the King (i.e. from the Torah; from God). The proof presented for this idea is that even people with impeccable credentials – like Moshe Rabbeinu and Aharon HaKohen would not be permitted to testify regarding an issue relating to a relative.

    A variant reading brought by the Ra’avad and others has the Gemara pointing to the fact that Moshe and Aharon are unable to testify about one-another, indicating that the problem is not dependent on trustworthiness but on the very fact that they are related.

    The Ritva points out that it makes no sense to suggest that the underlying basis for relatives to be excluded from testifying is that they have a prejudiced view, given that they love their relative, since Jewish law forbids relatives from testifying not only on behalf of their relatives, but even if the testimony will be against their relatives.

  10. Bava Batra 160a-b: Two Types of Contracts

    Oftentimes we have discussed the use of contracts as instruments that seal and clarify agreements. Such documents are never mentioned in the Torah – how are they viewed and regulated by Jewish law?

    This question is the central issue dealt with in Perek Get Pashut, the tenth and final perek in Massekhet Bava Batra.

    Although contracts are not mentioned in the Torah, there is a lengthy description of writing a contract in a poignant story related in Sefer Yirmiyahu (Chapter 32) where Yirmiyahu, who has been imprisoned for prophesying the destruction of the Temple and the exile of the Jewish people from their land, purchases a plot of land from his uncle, symbolizing the eventual return of the people from exile. Although the Gemara concludes that we cannot learn details of contract law from the story in Sefer Yirmiyahu, nevertheless we see that during First Temple times the rules that regulated written contracts were already established.

    During the times of the Mishna , there were two types of contracts, ordinary ones and special ones that were called a shetar mekushar or a “tied-up document.” Our Mishna teaches that ordinary contracts were signed by the witnesses under the text in the document itself, while in a shetar mekushar their signatures would appear on the back of the document. Although a shetar mekushar was originally established for use in divorce documents – gitei nashim – so that kohanim who would not be able to remarry their first wife would have time to rethink their decision, they were established for use in ordinary business transactions, as well.

    According to Rashi, the get mekushar was written as follows: a line of the contract would be written and the next line was left empty and folded over, a process that was repeated as necessary. When finished, the witnesses would sign the back and the document would be sewn together.

  11. Bava Batra 161a-b: A Legal Signature

    When witnesses sign legal documents, what must they write so that their signatures will be recognized and confirmed?

    According to the Mishna in Massekhet Gittin (87b), a person can write ben ish ploni ed – “the son of so-and-so, witness” – and that will suffice to identify the person. Similarly according to that Mishna, someone who simply signs his first name will also be recognized as a witness.

    Our Gemara questions whether it is possible that a person will sign his father’s name – apparently as a show of honor to his father. This question is based on what is common practice in today’s world, that we have surnames or family names that identify members of a given family. This is evident from some names that retain an element of the original ancestor’s name, like Michaelson or Davidson.

    Other examples of symbolic signatures are presented by the Gemara, as well.

    According to the Gemara, when signing his name,

    Rav would draw a fish.

    Rabbi Ḥanina would draw a palm branch.

    Rav Ḥisda drew the letter samekh

    Rav Hoshaya drew the letter ayin.

    Rava bar Rav Huna drew the mast of a ship.

    According to the Rashbam, aside from Rav Ḥisda and Rav Hoshaya who made use of significant letters that appears in their names, we do not know why each of these Sages chose their particular symbol to be their representative signatures. He surmises that they must have had some special connection with the symbol, perhaps connected with their diet or some other aspect of their daily lives.

    Recognizing that symbols such as these were used, the Gemara asks whether someone may have chosen to use his father’s name as a symbol. Today’s common practice notwithstanding, the Gemara argues that no one at that time would have been so impudent as to make use of his father’s name in that way.

  12. Bava Batra 162a-b: A Validly Witnessed Document

    In Talmudic times – as today – legal documents were signed by witnesses in order to ensure their accuracy and validity. Even signed documents, however, may be compromised, if they are signed in a way that will lead to questions or confusion.

    The Gemara on today’s daf presents a baraita that teaches that if the witnesses did not sign immediately after the text of the document, i.e. if two lines or more were left blank, the document is no longer trustworthy. On the other hand, if there are four or five signatures on the document, even if one of them turns out to be disqualified as a witness – e.g. he was found to be related – the document may, nevertheless, be accepted if it can be affirmed based on the other, reliable signatures.

    This straightforward ruling appears to contradict a Gemara in Massekhet Makkot (5b) where the ruling is that if a group of witnesses testified and one was found to be disqualified, the entire testimony is rejected.

    Rabbeinu Tam is quoted as distinguishing between the two cases by differentiating between oral testimony, where all are considered a single group, and written signatures on a document where they are not. Other rishonim disagree with Rabbeinu Tam and argue that there is no difference between those two types of testimony. Most suggest that the ruling in Massekhet Makkot is limited to a situation where each witness intends to testify. In the case of a legal document, however, we cannot assume that everyone who signed had the intention to testify. It could be that additional names were added simply to fill in the empty space, to honor the guests or because one of the parties insisted that everyone in the room sign their names.

    There is an alternative reading to this baraita – which appears in the tosefta in Gittin, according to which the document remains valid only if the problematic signatures appeared at the top of the list, since that is an indication that those names were signed just to honor the people and not because they were true witnesses.

  13. Bava Batra 163a-b: A Forgery With the Seal of Approval

    One of the ways of ensuring the veracity of a legal document was to have the signatures of the witnesses examined and approved by the Jewish court. Once the beit din put its formal stamp of approval on the document, it will be considered valid with no need for any further verification.

    The Gemara on today’s daf discusses a situation where space is left above the court’s stamp of approval, a situation where ordinarily the empty space is filled in with lines of ink. The Gemara asks whether we must be concerned with the possibility that the individual holding the document may cut off the text of the document together with the witnesses’ signatures, erase the lines and write a false promissory note together with the signatures of forged witnesses directly above the court’s seal of approval. In such a case the forged document could be presented for collection, given Rav’s ruling that a document – including the witnesses’ signatures – can be written on parchment that had been erased. The Gemara responds that when the parchment was erased we will require personal testimony of the witnesses and will not accept the seal of approval without carefully checking into the situation.

    A question that is raised by the rishonim is why we are only concerned about an erased document in this case, and not in other cases where the witnesses’ signatures have been approved. Perhaps the individual holding the document will erase it and rewrite it, leaving the approved signatures to attest to the contents of the document.

    The Rashbam essentially accepts the question and suggests that the question would be raised in all cases of legal documents. Tosafot argue that we do not suspect that people will attempt to erase letters and words; the question only comes up where the erasures will be simple lines, which are easy to undo. Tosafot Ri”d offers another suggestion. In this case, the person holding the document has nothing to lose. His original document remains in force even as he tries to steal by means of a forged document. In this case, someone who erases a real document is taking a chance that he will be discovered and will receive neither his attempted thievery, nor the money that was really owed to him, since the document has been destroyed.

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    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz

  14. Bava Batra 164a-b: Being Too Complimentary

    According to Jewish law, are there limitations on the praise that a person is allowed to heap on his friend?

    This issue comes up as part of a discussion about documents that were either poorly – or else well – written. The Gemara tells two stories:

    Rabbi [Yehuda HaNasi] received a get mekushar (see above – daf 160) and he could not locate the date. His son, Rabbi Shimon, suggested that it may have been “swallowed up” by the folds of the document. Rabbi unfolded the document and found the date. Rabbi Shimon then realized that Rabbi was peering in at him and he understood that his father assumed that he had written it incorrectly. Rabbi Shimon defended himself by saying that he had not written the document, rather it was written by Rabbi Yehuda the Tailor. Rabbi became upset with his son, and told him that he should avoid telling stories that involved lashon ha-ra (evil tidings).

    Another time Rabbi was completing a book of Tehillim and he commented that the writing in the book was very straight. Again, his son Shimon denied any connection with writing, crediting Rabbi Yehuda the Tailor as the scribe who wrote it. Again Rabbi told him that he should avoid speaking lashon ha-ra.

    While it is not surprising that the criticism of the first case could be considered lashon ha-ra, the Gemara must explain why the second case, which involved only compliments, is considered lashon ha-ra, as well. The Gemara explains that Rav Dimi’s ruling is the source, given his position that a person should not speak well of his friend, lest it lead to evil statements about him at a later time.

    It is difficult to accept that we are not allowed to speak positively about others. Several explanations for Rav Dimi’s ruling are raised by the rishonim. Among them:

    A person should not exaggerate when describing his friend’s attributes, since this may lead others to offer criticisms in an attempt to “even things out.” (Rashi)

    A person should not speak well of someone in front of his enemy (Rambam).

    A person should not speak well of another in front of a large group, lest within the group there is someone hates that person.

    Read the essay in your browser to access the glossary terms »

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz

  15. Bava Batra 165a-b: The Dust of Evil Speech

    On yesterday’s daf we learned that one must be careful when speaking about others – even if he is saying things that are positive. In the continuation of that Gemara, Rav Amram quotes Rav as saying that lashon ha-ra – negative speech – is one of the three sins that a person will invariably transgress every day. Clarifying this statement, the Gemara on today’s daf says that it is not lashon ha-ra itself that cannot be avoided, rather the statement refers to avak lashon ha-ra – literally “the dust of evil speech.”

    When the Gemara talks about lashon ha-ra, it is discussing situations where one person says unkind things about another – even if they are true. Avak lashon ha-ra, on the other hand would be a statement that is not, in itself, negative, rather that it can be interpreted as negative, or may lead to a negative statement being made, like the case involving Rabbi Shimon be-Rabbi and his statement about the scribe as related on yesterday’s daf .

    In a similar vein, our Gemara brings Rav Yehuda quoting Rav as saying that most people transgress the prohibition of stealing, some transgress the laws of sexual impropriety, but everyone transgresses the laws of lashon ha-ra. Again the Gemara suggests that Rav’s intention was avak lashon ha-ra rather than actual lashon ha-ra.

    The rishonim point out that the Gemara does not really anticipate that everyone will transgress laws of stealing, rather it is a reference to the things that people say in the course of business transactions that are less than truthful. The Maharsha suggests that the three transgressions mentioned – stealing, sexual impropriety and lashon ha-ra – are metaphors that represent the three types of sins that are committed – monetary crimes, physical misbehavior and spiritual transgressions.

    Read the essay in your browser to access the glossary terms »

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz

  16. Bava Batra 166a-b: The Economics of Sacrifices

    Basic economic theory teaches that prices rise and fall based on supply and demand. The Gemara on our daf illustrates how this was known to the Sages of the Mishna, who applied that rule to assist people who brought sacrifices in the Temple.

    When the Temple stood in Jerusalem, a woman who gave birth was obligated to bring a sacrifice in order to enter the Temple and partake of kodashim – consecrated food. Our Gemara quotes a Mishna in Massekhet Keritot (8a) that teaches that in a case where a woman miscarried a number of times – so that it is unclear whether or not she is obligated to bring the sacrifices – she should bring just one. Given the prohibition against bringing unnecessary sacrifice in the Temple, we want to minimize the number of such sacrifices that are brought.

    The Mishna continues, teaching that a woman who had five live births will be obligated to bring five sacrifices; after the first one, however, she will already be permitted to partake of kodashim. The Mishna relates that once the prices of the doves brought for these sacrifices rose in price to a golden dinar and Rabban Shimon ben Gamliel swore that he would act to lower the prices immediately. Recognizing that the rise in prices stemmed from the many women who came to bring multiple sacrifices, he went to the study hall and taught that even someone who had many births was only obligated to bring a single sacrifice, and the prices fell.

    This ruling is surprising, given the agreement of both Beit Hillel and Beit Shammai that a separate sacrifice must be brought for each and every birth. Several explanations are offered by the rishonim in response to this question.
    •Some suggest that Rabban Shimon ben Gamliel disagrees and believes that only one sacrifice is necessary, even after a number of births.
    •The Re’ah argues that the requirement to bring a separate sacrifice for each birth is a rabbinic requirement, and recognizing the immediate need, Rabban Shimon ben Gamliel relied on the Biblical law.
    •Rashi in Keritot argues that Rabban Shimon ben Gamliel’s ruling was a hora’at sha’ah – a ruling necessitated by the immediate situation – that abrogated the Torah law.
    •Most rishonim reject this approach, pointing out that that would not have allowed Rabban Shimon ben Gamliel to teach a falsehood as the law.
    •Rabbeinu Tam and others have a variant reading in the Gemara that has Rabban Shimon ben Gamliel requiring the women to bring all of the sacrifices; he merely emphasized that they do not need to do it at that time, but could postpone it to another opportunity.

  17. Bava Batra 167a-b: Footing the Bill

    When a legal document is drawn up to attest to a loan or a business transaction, which of the two parties pays the cost of the scribe?

    Logically it would make sense to say that the individual who will benefit from having a clear legal record of the transaction should pay the costs. Thus, the lender, who will need this documentation in order to collect the debt, would appear to be the one who should pay.

    The Mishna on today’s daf rules otherwise.

    According to the Mishna, it is the borrower who will pay the scribe’s wages, similarly it is the purchaser who will pay for the receipt to be written. In other cases where a contract or legal document needs to be written, we find:
    •That the husband will pay the costs of a shetar kiddushin – a marriage document
    •That the sharecropper will pay the costs of the tenant agreement
    •That both parties will share the expense when they have a court case.

    The Ramah explains that the underlying principle in these cases is that we do not look at the person who will benefit from having a legal record of the transaction or the agreement, rather we judge based on which party is benefitting most from the transaction itself. For example, since it is the borrower who is deriving benefit by receiving the loan, it will be his responsibility to pay for the shetar that documents the transaction. Similarly, in the case of buying and selling – which likely refers to a non-commercial sale – the one who truly derives benefit is the purchaser, since people are usually reluctant to sell their possessions.

    According to the Gemara, this is true even if the purchase was a low quality field, since by its nature, real estate is a more substantial thing than money which is spent and is gone.

  18. Bava Batra 168a-b: A Transaction With Inconclusive Consent

    When is a business agreement so outlandish that the halakha steps in to limit the possibility of such a deal taking place?

    The Mishna on today’s daf describes a case where a borrower pays back part of a loan that he owes, and the lender hands the promissory note to a third party in order to assure the borrower that he will not try to collect the full loan with this note. What will happen if the borrower then tells the third party that if he does not pay off the rest of the loan by a specific date, then the note should be returned to the lender so that he can collect the full value? The Mishna relates that in the event that the loan is not paid in full, Rabbi Yosei rules that the third party should turn the note over to the lender; Rabbi Yehuda holds that he should not.

    The Gemara explains that this difference of opinion is a question of whether asmakhta kanya or not.

    An asmakhta is a promise or agreement obligating the individual at some point in the future, should a specific event occur. As opposed to ordinary situations of a tenai – a standard agreement, that certainly takes effect – an asmakhta usually is an agreement based on the assumption that the condition will never actually take place. We rule like Rabbi Yehuda, who holds that asmakhta lo kanya – that it does not take effect.

    Why does the halakha keep an asmakhta from taking effect?

    Rav Se’adya Gaon explains that an asmakhta (a transaction with inconclusive consent) is when the person making the agreement makes an exaggerated offer that goes well beyond what the other party deserves by right, like in our case. Alternatively, an asmakhta is a situation where the promise is based on factors that are out of his control entirely (e.g. gambling). In cases like these the halakha determines that the person could not possibly mean to accept the stated terms, so there is no gemirut da’at – no knowledgeable agreement – which is necessary for the transfer of property to take effect.

  19. Bava Batra 169a-b: A Gift by Way of a Document

    How much legal significance does a document delineating a gift have?

    According to the baraita quoted by our Gemara, Rabban Shimon ben Gamliel rules that if someone gave a present to his friend by means of a shetar matana – a document that delineates the gift – if the document is returned to the first person, the gift is returned to him, as well. The Ḥakhamim say that the gift remains the property of the recipient.

    Rabba explains this difference of opinion as being based on the question of whether or not otiyot niknot be-mesira – literally whether “letters are purchased by transferring them.” Essentially the question is whether transferring a note or contract is sufficient to effect a transaction or if there is a need for a kinyan – a formal act of ownership to take place. According to Rabban Shimon ben Gamliel, otiyot niknot be-mesira, so the gift will be given or returned with the transference of the shetar matana. The Ḥakhamim who disagree believe that once the gift is given and the recipient takes possession of it, transferring the shetar matana to another has no meaning.

    The R”i MiGash believes that this question only applies to cases where the transfer of the gift was effected solely by means of the shetar matana, with no other kinyan having been done. If, however, there was an associated kinyan that took place, then the role of the shetar was merely to serve as a proof of the transaction, and even Rabban Shimon ben Gamliel would agree that returning the shetar would have no effect on the gift. The Ramah disagrees, arguing that according to Rabban Shimon ben Gamliel the shetar becomes a powerful proof of ownership for the person who is holding it, to the extent that it is possible to suggest that transferring the shetar would be equivalent to transferring the property that it represents.

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    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz

  20. Bava Batra 170a-b: Documenting a Loan Payment

    The Mishna teaches that when someone pays back part of a loan we must find ways to allow him to prove that he no longer owes the full amount. Rabbi Yehuda says that a new note must be written; Rabbi Yosei says that the lender should write a receipt. Rabbi Yehuda objects to Rabbi Yosei’s suggestion because that places the onus of responsibility on the borrower to guard his receipt “from mice” – lest they eat it, or should he lose it in some other way. The Mishna records that Rabbi Yosei responds by saying that it is appropriate for him to have to guard his receipt, so that the other’s rights will not be infringed upon.

    All agree that Rabbi Yosei’s statement refers to the fact that having to write a new promissory note with a smaller loan obligation will be to the detriment of the lender. Several possibilities are suggested to explain this.
    •Tosafot argue that the new promissory note will have to have the current date on it. Since ordinarily all of the borrower’s property serves to guarantee the loan from the time written in the note, a later date limits the property from which the lender can collect, if the borrower had sold land between the date of the original loan and the new date when the loan was partially paid off.
    •The Rashbam believes that the new promissory note will have the earlier date written in it, since that is when the loan was registered. He offers a different explanation, claiming that the lender has a better chance of collecting the loan when there is a larger amount of money written in the note. This is because the fear that the lender will brandish the larger note – with the possibility that a receipt may be lost or destroyed – will serve to encourage the borrower to pay the rest as soon as possible.
    •The Ramban offers a variation on this theme, suggesting that a borrower doesn’t really care if he has a small sum outstanding, and he will not hurry to pay off the debt.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  21. Bava Batra 171a-b: Proof of Payment

    On yesterday’s daf we learned that according to Rabbi Yosei the lender should write a receipt for the amount of a loan that was paid up, a position that Rabbi Yehuda did not accept.

    The Gemara on today’s daf quotes Rav Huna the son of Rav Yehoshua as teaching that even Rabbi Yosei suggests writing a receipt only in a situation where there was partial payment of the loan. If the loan was paid off in full, rather than writing a receipt, the lender should return the original promissory note to the borrower. The reasoning behind this ruling is straightforward. According to Rabbi Yosei, when only part of the loan is repaid, the best way to ensure the rights of both the borrower and the lender is by writing a receipt. When the loan is paid in full, however, there is a better way to ensure that justice will be done – simply by returning and destroying the original promissory note that is no longer valid.

    This reasoning notwithstanding, the Gemara concludes that we follow the opinion of Rabbi Yoḥanan and Reish Lakish who agree that we do write a receipt, for if we did not, what recourse would a lender have in the event that the original promissory note was lost or destroyed? Would the borrower be freed of his obligation to pay simply because he cannot return the note?

    Abaye objects to this argument, claiming that now the borrower is put in a situation where he must fear that if he loses the receipt the lender may discover the original note and demand payment. Rava responds by quoting the passage in Mishle (22:7) that states how a borrower is subservient to the lender – the borrower’s interests are subordinated to those of the lender.

    Rav Ya’akov Emden points out that Abaye’s objection has another weakness to it. The case that he presents assumes that the lender will want to cheat the borrower and collect the loan twice. We do not ordinarily assume that people will try to steal from one-another. Rav Emden argues that in all of the cases where the Gemara expresses concern lest the borrower demand more than is due to him, it is not because we are afraid of deceit, rather it is because we are concerned that people forget what transpired or that they leave loans as part of their estate and the people who inherit do not know that payment has already been made.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  22. Bava Batra 172a-b: When Two People Share a Name

    When collecting a debt based on producing a promissory note, how clear and transparent must the names in the document be?

    The Mishna on today’s daf teaches that if there are two people in a city who share the same name – the example suggested is “Yosef ben Shimon” – they cannot produce a promissory note on each other, nor can anyone else demand payment from one of them based on a note in which his name appears. The suggestion made by the Mishna is that they should add their grandfather’s name to their name, or alternatively, include some distinguishing feature about them (e.g. “tall,” “thin,” etc.) or their families.

    The Ri”f points out that this ruling is the continuation of a number of rulings that appear in the Mishna that list factors that will keep someone from claiming what is rightly his simply because he is unable to prove conclusively who the document refers to.

    It is interesting to note that the Mishna emphasizes that these two people with identical names lived in the same city. This precludes the possibility that someone can claim that a note presented requiring him to pay back a loan may refer to someone with the same name who lives in another place, and, as the Piskei ha-Ri”d points out – implies that it was necessary to include the individual’s address in the document when it was written and signed. This law is clear in cases of gittin – divorce documents – but is less clear in cases of business transactions. In fact, the Ramban disagrees and does not require that business contracts include a person’s place.

    The halakha that keeps these two people from lending money to one-another is explained by the Rashbam as stemming from a concern that when one demands payment from the other based on the note that he is holding, the accused borrower may claim that he was, in fact, the original lender, and that the note being produced allegedly proving that he borrowed money is simply the note that he returned to the other when he received payment of the original loan. Therefore the situation can only be rectified by using other methods to clarify who was borrowing and who was lending.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  23. Bava Batra 173a-b: Collecting From the Guarantor

    The Mishna on today’s daf focuses on the role of an arev – someone who agrees to guarantee a loan. According to the Mishna, although the arev agreed to be responsible for the loan, nevertheless the lender cannot collect from him without first trying to collect from the borrower. In a case where the lender states clearly at the time of the loan that he wants to collect from either one of them, then he has the right to do so. Rabban Shimon ben Gamliel disagrees, ruling that in any case the lender must first collect from the borrower.

    According to the conclusion of the Gemara, even the Tanna Kamma agrees that under ordinary circumstances when the borrower has the means to pay the loan, the lender cannot collect from the arev. The Gemara explains that the only disagreement between the Tanna Kamma and Rabban Shimon ben Gamliel is in the case of a kablan, that is, someone who says “give him a loan and I will pay you back.”

    In explanation of the obligation of an arev to pay the loan in the event that the borrower cannot, Ameimar suggests that it is a case of asmakhta. As we learned above (daf 168 ), an asmakhta is a promise or agreement obligating the individual at some point in the future, should a specific event occur. As opposed to ordinary situations of a tenai – a standard agreement, that certainly takes effect – an asmakhta usually is an agreement based on the assumption that the condition will never actually take place. In our case we can assume that the arev anticipates that the borrower will pay the loan and that he does not really expect to pay.

    According to this approach, whether or not an arev may actually have to pay should be dependent on the question of whether asmakhta kanya or not. Rav Ashi rejects this approach, arguing that we rule that an asmakhta does not create an obligation, yet people do co-sign loans. He concludes that in this case, the very fact that the arev is relied upon is sufficient to create the gemirut da’at – a conscious decision – necessary to overcome the doubts of the arev and to obligate him to pay.

  24. Bava Batra 174a-b: A Guarantor for a Marriage Contract

    The Mishna (173b) taught a halakha presented by Rabban Shimon ben Gamliel in the interest of protecting the interests of the arev – individual who guaranteed payment – in the case of a ketuba. When a couple gets married, the marriage contract guarantees payment to the wife in the event of her husband’s death or divorce. If the ketuba payment was made by the arev rather than by the husband himself, Rabban Shimon ben Gamliel required the husband to take a vow that his ex-wife can no longer derive benefit from him. This was done in order to avoid the possibility that the couple would conspire to have the arev pay her so that they could then remarry.

    In illustrating this ruling, the Gemara tells of a man named Moshe bar Atzari who had agreed to guarantee his daughter-in-law’s ketuba. His son, Rav Huna was in difficult financial straits, and Abaye raised the idea that he should divorce his wife, and after his father paid the ketuba he should remarry her. When Rava pointed out that he would be required to take the vow according to Rabban Shimon ben Gamliel’s ruling, Abaye argues that if they got divorced out of court, no one would require him to do so. In the end, it turned out that it was a family of kohanim, so it would have been impossible for him to divorce and remarry his wife.

    The Gemara expresses shock at Abaye’s suggestion, given that Abaye is known to refer to someone who recommends such a course of action in a similar case (see above, daf 137b) as a rasha arum – an evil trickster. The Gemara responds that this case is unique because Rav Huna’s father certainly wanted to help out his son, especially since he was a scholar.

    The Rashbam explains that he is a rasha (an evildoer) because he negates the wishes of the person who gave him the gift, and he is arum (a trickster) because he can successfully arrange for the gift to end up in the hands of another. He adds that Abaye only applies this appellation to someone who advises to do this. The person who does it, who is simply looking out for his own interests, would not be considered a rasha for doing this.

    This essay is based upon the insights and chidushim of Rabbi Adin Even-Israel Steinsaltz, as published in the English Koren Talmud Bavli with Commentary by Rabbi Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  25. Bava Batra 175a-b: Collecting a Debt From the Borrower’s Property

    Aside from the monetary obligation to pay back a loan, there is a mitzva to do so, as well. Furthermore, according to the Mishna, if a person borrows money and a promissory note is written, then his property becomes obligated to the debt, and the lender can collect the debt from that property even if it has been sold to a third party. If, however, the loan was made in front of witnesses, but no note was written, then repayment can only be made from property that the borrower is still holding.

    This clear halakha notwithstanding, we find a disagreement about how property becomes obligated to the repayment of that debt.

    According to Ulla, all loans – whether they are committed to writing or done in front of witnesses – obligate the borrower’s property, which theoretically can be collected as payment even if it has been sold. Ulla argues that the basis for this rule is biblical, and that the Sages limited it only to loans that are committed to writing because only then can we be certain that the individual who purchased the land from the borrower would know that there was a lien on it. When the loan only had witnesses, we are concerned lest the buyer will unfairly lose his purchase.

    According to Rabba, biblical law does not recognize the automatic creation of a lien on property in any case of borrowing. The Sages enacted a rule obligating the borrower’s property to pay the loan in order to offer a guarantee to the lender so that loans would be readily available. This rule was limited to cases where we could be certain that the purchaser would hear about the lien, that is, only cases where a formal note was written.

    The Ramah explains that according to Ulla the biblical law obligated all of the borrower’s property to the repayment of the debt – both real estate and moveable property. The Sages limited the lien only to real estate out of concern that it would be impossible for people to keep track of liens on moveable property, and every purchase might be collected for unpaid debts.

  26. Bava Batra 176a-b: A Guarantor After-the-Fact

    We have learned above (see dapim 173 and 174) about the role of an arev – someone who agrees to guarantee a loan. According to the Mishna (175b) if the arev signed on the loan after it had already been agreed upon, signed and witnessed then even in cases where he will have to pay, there would be no liens on his property, and collection could only be made from money that was in his possession at the time of collection.

    The Mishna relates that such a case came before Rabbi Yishmael, and that was the ruling that he offered. In response, Ben Nannas argued that an arev who signs the note after the witnesses will not be obligated to pay at all. He compared it to a case where someone came across a scene in the marketplace where a lender was choking someone who had borrowed from him and was demanding his money back. If that person stepped in and offered to pay the debt so that the borrower would be saved, surely he is not obligated to do so. Ben Nannas explains that in such a case the loan was originally made with no expectation that there was an arev involved, and no obligation was created at a later time with a simple verbal commitment. According to the Mishna, Rabbi Yishmael was so taken by this argument that he recommended that anyone who wanted to develop his intelligence should study the monetary laws, and whoever wanted to truly understand the monetary laws should become a student of Ben Nannas.

    On our daf, the Gemara brings Rabba bar bar Ḥana who quotes Rabbi Yoḥanan as saying that Rabbi Yishmael may have offered praise to Ben Nannas, but that that halakha follows Rabbi Yishmael’s position. In fact, Rabbi Yaakov quotes Rabbi Yoḥanan as saying that Rabbi Yishmael disagreed with Ben Nannas even in the case of the choking lender in the marketplace. Thus, Rabbi Yishmael’s position was that an arev can fully commit himself to guarantee someone’s loan, even if it is not at the time that the loan was made. Such a guarantee, however, cannot create a lien on his property.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz, as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

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