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Bava Basra, 132

1) GIVING AWAY ONE'S PROPERTY WITH A MISTAKEN ASSUMPTION

QUESTION: The Gemara discusses a case in which a man's son went overseas, and the father heard that his son died, and, consequently, he gave his entire estate to others. His son then returned alive. Rebbi Shimon ben Menasya states that the man may retract the gift that he gave on the grounds that he gave it based on a mistaken assumption (i.e. that his son was dead).

Does the same Halachah apply in a case in which the man had no children, and he gave away his property to others assuming that he would never have children, and, later, he was blessed with a child? May he revoke the gift in order to give the property to his child?

ANSWER: The KOVETZ SHI'URIM writes that this Halachah applies only when the man had a son at the time that he gave his estate to others. If he had no children at all when he gave away his estate to others on the assumption that he would never have children, and, later, he was blessed with a child, then he *cannot* retract the gift. Since -- at the time that he gave the gift -- he indeed had no children, there were no mistaken assumptions, and thus he has no grounds on which to retract his gift. The subsequent birth of a child is a later development which did not exist at that time that he gave the gift.

However, TOSFOS in Kesuvos seems to contradict this view. Tosfos (Kesuvos 47b, DH she'Lo Kasav) writes that a person who bought a cow which died shortly after the purchase may not claim that the sale was a "Mekach Ta'us," a transaction in error. The reason is because the death of the cow was a later development which occurred after the time of the sale. Tosfos there proves that this ruling applies only in the case of a sale, since a sale depends not only on the intention of the buyer, but it also depends on the will of the seller ("Da'as Makneh"), and the seller is not willing to accept responsibility for a later mishap. In contrast, in the case of a gift, the transaction depends only on the intention of the benefactor. Hence, when circumstances change (to the benefit of the giver of the gift) after the gift was given, it is deemed to be a transaction made in error, and the Kinyan is annulled.

In the case of our Gemara, the father is giving a gift, and therefore he should be able to retract the gift even if he had no children at the time that he gave it and was later blessed with a child!

Perhaps the case which the Kovetz Shi'urim discusses is different. In that case, there is no particular event that occurred to which we can point and say that it was based on *that* even that he gave away his property. In contrast, when a man gives away his property after he hears that his son died, it is clear that he gave away his property based on that information. That is not so clear when a man has no children and he gives away his property to others; it is not clear that he is giving away his property to others for the sole reason that he has no children to inherit his property. While it is true that he *might* not have given away his property had he had children, we cannot assume (unless he explicitly states otherwise) that he certainly would not have given away his property to his close friends had he known that he would have children. (We see that a person does not think about future children from the Rishonim (see RITVA, NIMUKEI YOSEF) on 142b, who say that the concept of "Kerovah Da'ato Shel Adam Etzel Beno" applies only to a child who has been conceived but who has not yet been born, but not to a child who has not yet been conceived.)

132b

QUESTION: The Gemara (end of 132a) cites a Mishnah in Pe'ah (3:7) which states that when a husband allots all of his property to his sons with the exception of a small portion which he allots to his wife, we interpret her acceptance of that portion as implicit consent to forego her claim (the Shi'abud of her Kesuvah) on all of the rest of her husband's property (which he has allotted to his sons). The Gemara asks how the wife showed her consent to forego her claim on his property. The Gemara records the answers of three Amora'im as to how the woman showed her consent to forego the Shi'abud on his property. Shmuel answers that that the Mishnah there is referring to a situation in which the wife was present when her husband gave away his property and wrote that he was giving only a small portion to her. Her silence (and lack of protest) is interpreted to be a sign that she foregoes any claim to the rest of the property.

The Gemara questions the answer of Shmuel (as well as the answers of the other Amora'im). According to Shmuel, the Tana Kama of the Mishnah in Pe'ah and Rebbi Yosi in that Mishnah are saying the same thing! Rebbi Yosi states that either explicitly stating that she foregoes her Shi'abud, *or* her silence when the husband writes, in her presence, that he is giving to her only a small portion of the property, indicates that she foregoes her right to collect her Kesuvah. From the words of Rebbi Yosi we can infer that the Tana Kama (with whom Rebbi Yosi is arguing) requires *both* that the husband write to her, in her presence, that he is giving her only a small portion, *and* that the woman explicitly state that she foregoes the Shi'abud. This contradicts the explanation of Shmuel, who explained that the Tana Kama maintains that the woman's silence is enough to indicate that she foregoes the Shi'abud.

The Gemara continues and quotes Rav Nachman who says that when a husband makes his wife a partner with his sons in the allotment of his property to them, the wife loses her right to claim her Kesuvah from the rest of the property.

This statement, however, seems clearly to be in agreement with the explanation given by Shmuel, which the Gemara just refuted! How does the Gemara reconcile this statement with its challenge to the explanation of Shmuel?

ANSWERS:

(a) The ROSH says in the name of RABEINU CHANANEL that when the husband allots to his wife an *equal* portion as the sons, the Tana Kama agrees that she consents to forego the Shi'abud even without explicitly stating so, since she benefits considerably. Only when he gives her only a small portion does the Tana Kama require that she explicitly express her consent to forego the Shi'abud.

(b) The CHIDUSHEI HA'RAN cites RABEINU CHANANEL as saying that since the husband made his wife a *partner* with his sons in the property, the Tana Kama agrees that we may assume that she consents to the gift and foregoes the Shi'abud even if she does not explicitly state so. This is because a person would not agree to become a partner with others without full desire to do so.

(c) The RASHBAM (DH Shutaf) explains that Rav Nachman is ruling like Rebbi Yosi, and not like the Tana Kama, in the Mishnah in Pe'ah. Thus, the Gemara is saying that it is a sign of the wife's consent to forego her Kesuvah when she is silent at the time that her husband makes her a partner together with the sons to receive his property, in accordance with the view of Rebbi Yosi. The Gemara rejected Shmuel's explanation of the Tana Kama of that Mishnah, but his ruling is still true according to Rebbi Yosi.