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Bava Basra, 151

1) HALACHAH: IS A SEFER TORAH INCLUDED IN "PROPERTY?"

QUESTION: The Gemara asks whether a person includes his Sefer Torah when he says that he is selling or giving away his "property" ("Nechasim"). On one hand, it is forbidden to sale a Sefer Torah, and therefore perhaps it is not included in a sale of one's "property." On the other hand, since it is permissible to sell a Sefer Torah in order to have funds to learn Torah and to get married, perhaps it is included in a sale of one's "property." The Gemara leaves this question unanswered and concludes with "Teiku."

The BACH emends the Girsa and omits the two sides of the question (while leaving the question itself). Indeed, this is the text of the Gemara according to all of the manuscripts of the Gemara as the DIKDUKEI SOFRIM points out, and it seems that most of the Rishonim, too, do not have the two sides of the question in their text of the Gemara.

According to that Girsa, what is the question of the Gemara? Why should a Sefer Torah not be included in the rest of a person's "Nechasim?"

ANSWERS:

(a) TOSFOS answers that even though a Sefer Torah is acquired in the manner of all other objects, nevertheless since it is prohibited to sell a Sefer Torah (except for the reasons mentioned in the Gemara in Megilah 27a), a Sefer Torah cannot be called a "possession" like all other possessions which one may sell as he pleases. The CHASAM SOFER (Teshuvos CM 143) explains that even though we also find limitations on selling Tefilin, Tefilin nevertheless are included in "Nechasim" because they are also called a "Malbush" (an article of clothing) and it follows that it is included in "Nechasim" since articles of clothing are called "Nechasim." A Sefer Torah, however, which has no uses similar to other items that one owns and is not able to be sold, perhaps is not called "Nechasim."

(b) The NIMUKEI YOSEF explains that the reason a Sefer Torah is not called "Nechasim" is because it is so important. The term "Nechasim" refers to one's ordinary, mundane possessions, and thus it is not appropriate for such a term to include a Sefer Torah. The CHASAM SOFER (ibid.) suggests that this is also the opinion of the RASHBA who adds that the same question applies if one gives away his "Metaltelin" (movable objects).

The Chasam Sofer says that this a practical difference between the explanation of Tosfos and that of the Nimukei Yosef. According to Tosfos, a Sefer Torah certainly is included in the term "Metaltelin," since it is movable. The doubt of the Gemara applies only with regard to the term "Nechasim," which refers to possessions of monetary value. According to the Nimukei Yosef, the doubt of the Gemara applies even for the term "Metaltelin," because a Sefer Torah is not included in regular expressions of belongings, as it is more important. The NODA B'YEHUDAH (Teshuvos CM 43) remarks that this is also the opinion of the RASHBAM (however, according to the Chasam Sofer's explanation of Tosfos, the Rashbam might also understand the Gemara like Tosfos).

HALACHAH: The SHULCAN ARUCH (CM 248:11) says that since the Gemara leaves this question unresolved, out of doubt a Sefer Torah is *not* included when one gives away his "Nechasim." If, however, the recipient of the gift seizes the Sefer Torah as well, then we do not take it away from him (see BI'UR HA'GRA). The ARUCH HA'SHULCHAN says that a Sefer Torah *is* included in "Metaltelin." This is unlike the Rashba cited by the Chasam Sofer who says that this term is also included in the doubt of the Gemara. (Y. Montrose)

QUESTION: The Gemara relates that Rav Amram Chasida's mother had many documents attesting to various loans that were owed to her. On her deathbed, she proclaimed that they should all be given to Rav Amram as a gift. After her death, Rav Amram's brothers came before Rav Nachman and protested his ownership of the debts on the grounds that he never made a proper act of Kinyan on the documents. Rav Nachman upheld Rav Amram's ownership based on the principle of "Divrei Shechiv Mera k'Chesuvin uche'Mesurin Dami" -- "the words of a Shechiv Mera are as if they are written and given over."

The Acharonim ask why did Rav Nachman need to give this reason for his ruling? The Halachah follows the view of Rebbi Yochanan ben Berokah (130a) who states that one is allowed to transfer an inheritance to a specific individual who is otherwise fit to inherit him without having to use the special law of "Divrei Shechiv Mera." Why, then, did Rav Nachman not base his ruling on Rebbi Yochanan ben Berokah's principle in order to uphold Rav Amram's inheritance?

ANSWERS:

(a) The KOVETZ SHI'URIM explains that Rebbi Yochanan ben Berokah's ruling applies only to an inheritance being bequeathed by a father and not to an inheritance being bequeathed by a mother. This is based on the verse which Rebbi Yochanan ben Berokah cites as his source, which states, "And it shall be on the day that *he* bequeaths to *his* sons that which *he* has..." (Devarim 21:16), which is conjugated in the masculine form.

However, he says that this approach is difficult, because Rebbi Yochanan ben Berokah's principle, which he learns from this verse, applies to all potential heirs, even though the context of the verse is dealing only with a firstborn son.

(b) The AYELES HA'SHACHAR explains that there is a complex question regarding whether Rebbi Yochanan ben Berokah's principle applies to property which is considered a "Davar she'Lo Ba l'Olam" or not (according to the opinion, which is the Halachah, that a normal Kinyan cannot be made on a "Davar she'Lo Ba l'Olam"). Perhaps one cannot use Rebbi Yochanan ben Berokah's principle to bequeath an object that has not yet come into the world (or into the possession of the benefactor), since his principle is merely a mechanism whereby a normal Kinyan can be made on an object that otherwise one would not be permitted to transfer ownership of that item. Consequently, according to the opinion which maintains that one may not sell a loan document according to the Torah because it is deemed a "Davar she'Lo Ba l'Olam," the transfer of ownership of a loan document to one's heir is *not* a valid transaction according to Torah law. Even with regard to whether it works mid'Rabanan, there might be a doubt whether the Rabanan permitted such a form of transfer of ownership (a "gift-inheritance") for a "Davar she'Lo Ba l'Olam." Therefore, Rav Nachman based his ruling, permitting Rav Amram to keep the loan documents that his mother gave to him before she died, on the obvious and indisputable principle of "Divrei Shechiv Mera" and not on the questionable application of Rebbi Yochanan ben Berokah's principle. (Y. Montrose)

151b