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Bava Basra, 138

1) A SHECHIV MERA'S GIFT TO THREE CONSECUTIVE RECIPIENTS

QUESTION: The [Gemara] teaches that when a Shechiv Mera gives away all of his property to three different people by saying, "[A field worth] two hundred shall be given to Reuven, three hundred to Shimon, and four hundred to Levi," we do not say that the person who received the first gift has rights of precedence. Hence, if the Shechiv Mera's creditor comes to collect the debt owed to him, the recipient of the first gift may *not* evade paying him by telling him that there was property leftover after the gift was given to him and it is from that leftover property that the creditor must first collect his debt. Rather, we say that the Shechiv Mera intended to give away all of his property at the same time, but it is just not possible to make three statements (giving three gifts to three different people) simultaneously.

Why does the Beraisa give an example of gifts of increasing value (200, 300, 400)? Will the same Halachah apply when he gives gifts of equal value (200, 200, 200)?

ANSWERS:

(a) The RAMBAN, RASHBA, and RITVA cite an opinion (in the name of "Yesh Omrim;" see also ROSH) which maintains that the ruling of the first case in the Beraisa applies *only* when the gifts are *not* of equal value. When the gifts are not of equal value, the fact that one gift was given before the other does not indicate that the Shechiv Mera intended to leave over some property after he gave the first two gifts. Rather, he gave the gives consecutively merely because it was not possible to give them simultaneously. However, when he gives gifts of equal value (such as 200 to Reuven, 200 to Shimon, and 200 to Levi), in such a case we *do* say that he gave in a specific order of precedence, and the creditor must collect from the later recipients first. This is because the Shechiv Mera would have phrased the giving of the gifts differently had he not wanted to give them in any particular order; had he wanted to give all three gifts at the same time, he would not have separated them, but rather he would have said, "Give 600 to Reuven, Shimon, and Levi, equally."

The Ramban, Rashba, and Ritva question this explanation. The second case in the Beraisa teaches that if the Shechiv Mera says, "[A field worth] two hundred shall be given to Reuven, and after him, to Shimon, and after him, to Levi," then he meant to give the gifts in that order, and the creditor must collect first from the later recipients. According to the explanation cited by these Rishonim, the Beraisa should not have taught a different case ("ul'Acharav" -- "and after him") in order to show the contrasting Halachah, but rather it should have taught the same case (without "ul'Acharav"), but with the Shechiv Mera giving equal portions to each recipient! In such a case, the Halachah would be that the creditor must collect first from the later recipients, because the fact that the Shechiv Mera did not include all of the recipients in one statement ("Give 600 to all three") shows that he intended to give them the gifts in a specific order!

(b) The RITVA, because of this question, explains differently. He says that it does not matter whether the Shechiv Mera gave gifts of different values or whether he gave gifts of equal value. In either case, we assume that he meant to give them all at the same time (unless, of course, he says "ul'Acharav"). This is also the view of the RASHBA.

However, this explanation is also problematic. According to this explanation, why does the Beraisa express the case as one in which the Shechiv Mera gave gifts of different values, if the Halachah is the same when the Shechiv Mera gave gifts of equal value?

The Ritva gives two answers to this question.

First, he says that it is the manner of the Tana to express separate gifts in different amounts.

Second, he says that the Beraisa is teaching an additional Chidush by expressing the case as one in which the Shechiv Mera gave gifts of different values. We might have thought that since the Shechiv Mera gave one of the recipients a greater amount that he gave to the others, it is because that recipient is more beloved to the Shechiv Mera and therefore he gave him more. Accordingly, we might have thought that the recipient who received more is also the one to whom the Shechiv Mera intended to benefit first (and the creditor must collect from the other recipients first). Therefore, the Beraisa teaches that we do not make such an assumption, but rather the creditor collects from all of the recipients equally.

The RAMBAN and RASHBA suggest a similar approach to answer the question on the first explanation (in (a) above). The explain that the Beraisa is teaching an additional Chidush by expressing the contrasting Halachah in a case where the Shechiv Mera said "ul'Acharav" (and not in a case where he merely gave gifts of equal value, without saying "ul'Acharav). We might have thought that the fact that he gave that recipient priority in the *amount* he receives, he also gave him priority in the *order* in which he receives it, because the larger gift proves that he loves him more and that he wants the creditor to collect from him *last*. The Beraisa, therefore, teaches that we do not say this, but rather the fact that he said "ul'Acharav" shows that he gave the gifts in that order, even though the amount that he gave to the last recipient is larger. (This is also the explanation of the RASHBAM (end of DH Goveh) when he explains why, in the first case of the Beraisa, the gifts are in increasing increments (and not decreasing increments). He explains that the Beraisa is teaching a Chidush in the second case, that even though the last recipient received a larger gift, we do not say that the Shechiv Mera loves him more and therefore also intended to give to him first, because he said "ul'Acharav." See, however, the RAMBAN's understanding of the Rashbam, and see the footnote of Rav Avraham Sofer zt'l to the CHIDUSHEI HA'RAN here.)

Why, though, does the Ritva not give this answer, if it is so similar to the answer that he gives to address the question on his own explanation? It seems clear that the Ritva maintains that this answer cannot be given to explain why the end of the Beraisa gives a case of "ul'Acharav." We would *not* have thought that -- by giving a larger gift to the last recipient -- that the Shechiv Mera loves him more and wants him to receive the gift *first*, because the Shechiv Mera said explicitly "ul'Acharav!" Thus, the Ritva rejects the first explanation. (I. Alsheich)

138b

QUESTION: The Beraisa teaches that if a Shechiv Mera says, "Give 200 Zuz to my son the Bechor as is befitting him," his son receives *both* 200 Zuz *and* his double portion as a Bechor. Similarly, if he says, "Give 200 Zuz to my wife as is befitting her," his wife receives both the 200 Zuz and her Kesuvah. The same applies if the Shechiv Mera says, "Give 200 Zuz to my creditor as is befitting him;" the creditor receives not only the money that is owed to him, but also an additional 200 Zuz.

The Gemara asks that perhaps when the Shechiv Mera says, "Give 200 Zuz to my creditor as is befitting him," he means that 200 Zuz should be given to his creditor as befitting him *as repayment for the loan*, and he does *not* mean to give the creditor an additional 200 Zuz.

Why does the Gemara ask this question only with regard to a creditor, and not with regard to his son and his wife? The Gemara should also ask that perhaps when he says two give 200 Zuz to his son (or to his wife) "as is befitting him (or her)," he means that 200 Zuz should be given to his son or his wife as is befitting his son as his portion as a Bechor, or as is befitting his wife as her Kesuvah!

ANSWERS:

(a) The RI MI'GASH answers that with regard to his son and his wife, it was obvious to the Gemara that since a man feels close to his son and to his wife, he wants to give them *more* and not to detract from what they get. Therefore, when he says "as is befitting him (or her)," his intention is to increase their share and not decrease it. This is not so with regard to a creditor. He does not feel close to a creditor, and there is no reason to assume that he wants to increase the amount that he gives to the creditor unless we have clear proof that this is his intention. Therefore, the Gemara asks only with regard to a creditor that "perhaps he means 'as is befitting to him' as payment for his debt."

The RAMBAN rejects this answer, because it is clear from the end of the Beraisa that the person *does* feel close to his creditor. The end of the Beraisa teaches that if a Shechiv Mera says, "Give 200 Zuz to my creditor *for the debt owed to him*," he receives only the value of his debt. If the Shechiv Mera does not feel close to the creditor, then why did he attempt to give him more money? It must be that he *does* feel close to him, and nevertheless the Gemara asks that perhaps when he says "as is befitting him," he means "as is befitting him as repayment for the loan." Why does the Gemara not ask the same thing with regard to the Shechiv Mera's son and wife, with whom he also feels close?

(b) The RAMBAN, therefore, gives a different answer to why the Gemara does not ask its question with regard to the man's son and wife as well. The reason why the Gemara only asks its question with regard to a creditor is because there is a logical reason to assume that he means to say "as is befitting to him *for his debt*." If his intention was to increase the amount that the creditor receives, then that would appear like Ribis, interest. Thus, it is logical to assume that the Shechiv Mera only wants to pay back his debt and not give any extra money to the creditor, since that would appear like Ribis.

(c) The RASHBA answers (in the name of "Yesh Mi she'Omer") that indeed the Gemara could have asked this question on the case of his son and his wife. It asks this question only with regard to a creditor since that is the last case that is mention in the Beraisa. The Gemara therefore poses its question on the last case mentioned in the Beraisa. (I. Alsheich)