Gittin, Daf Tet Vav, Part 6

 

Introduction

Today s sugya has nothing to do with the laws of gittin. It is brought here because R. Hisda s statement is similar to that above. The topic is partitions used to create a space in which one can carry on Shabbat. A wall used to partition space must be ten handbreadths high. The issue is whether a natural barrier and an artificial barrier can join to create such a partition.

 

אָמַר רַב חִסְדָּא גִּידּוּד חֲמִשָּׁה וּמְחִיצָה חֲמִשָּׁה אֵין מִצְטָרְפִין עַד שֶׁיְּהֵא אוֹ כּוּלּוֹ בִּמְחִיצָה אוֹ כּוּלּוֹ בְּגִידּוּד

דָּרֵשׁ מָרִימָר גִּידּוּד חֲמִשָּׁה וּמְחִיצָה חֲמִשָּׁה מִצְטָרְפִין וְהִלְכְתָא מִצְטָרְפִין

 

R. Hisda said: An embankment that is five handbreadths high and a wall that is five handbreadths high cannot join [to create a full partition] until the entire [ten handbreadths] is made from a wall or embankment.

Maremar expounded: An embankment that is five handbreadths high and a wall that is five handbreadths high can join.

And the law is that they can join.

 

R. Hisda rules that the entire partition must be made of the same thing either a natural embankment or an artificial wall. R. Hisda really does not like mixing and matching.

But Maremar disagrees and the halakhah accords with his more lenient position.

 

 

 

 

Gittin, Daf Tet Vav, Part 5

 

Introduction

This is a continuation of the section from yesterday.

 

תְּנַן בְּפָנַי נִכְתַּב כּוּלּוֹ בְּפָנַי נֶחְתַּם חֶצְיוֹ פָּסוּל

אִידַּךְ חֶצְיוֹ הֵיכִי דָמֵי אִילֵּימָא דְּלֵיכָּא דְּקָא מַסְהֵיד עֲלֵיהּ כְּלָל הַשְׁתָּא אֶחָד אוֹמֵר בְּפָנַי נִכְתַּב וְאֶחָד אוֹמֵר בְּפָנַי נֶחְתַּם דְּהַאי קָמַסְהֵיד אַכּוּלַּהּ כְּתִיבָה וְהַאי קָמַסְהֵיד אַכּוּלַּהּ חֲתִימָה פָּסוּל חֶצְיוֹ מִיבַּעְיָא

 

It was taught in the mishnah: [If the agent says]: All of it was written in front of me and half of it was signed in front of me it is invalid. What happened with the other half? If we say that no one testified about it at all, now that if one says, It was written in front of me and another says, It was signed in front of me where one testifies about all the writing and the other about all the signing it is invalid, is it even necessary to state about [a case where only] half [of the signatures are testified about].

 

The Talmud brings the mishnah to bolster either Rava s opinion or Rav Ashi s, as we shall see. The mishnah says that if the agent can t say that the whole get was signed in his presence, the get is not valid. If there is no testimony whatsoever about the second signature, then this mishnah is too obvious. For even if one agent testifies about the writing and another about the signing it is invalid. Obviously if no one can testify about all the signing it is invalid.

 

אֶלָּא אוֹ כִּדְרָבָא אוֹ כִּדְרַב אָשֵׁי וּלְאַפּוֹקֵי מִדְּרַב חִסְדָּא

 

Rather the mishnah accords either with Rava or R. Ashi and it excludes R. Hisda.

 

The Talmud reads this as a difficulty against R. Hisda. It is not easy to understand this line what exactly is the difficulty? Rashi explains it like this. This line of the mishnah must be teaching something new. It can t be that there is no testimony whatsoever about the second signature for then it would be superfluous (as stated above). But R. Hisda goes too far in saying what innovation there is in this line of the mishnah even if there is full testimony about the second signature, the get is invalid! When there is an extraneous text, a sage has a right to say that it offers an innovation. But from a logical perspective, that innovation should be minimal, not maximal.

 

אָמַר לְךָ רַב חִסְדָּא וּלְטַעְמָיךְ בְּפָנַי נִכְתַּב אֲבָל לֹא בְּפָנַי נֶחְתַּם לָמָּה לִי אֶלָּא לֹא זוֹ אַף זוֹ קָתָנֵי הָכָא נָמֵי לָא זוֹ אַף זוֹ קָתָנֵי

 

R. Hisda could say to you: According to your reasoning, why do we need [the line in the mishnah that says], if he says It was written in my presence but not signed in my presence [it is invalid]. Rather, [the mishnah is a case of] this and even this. So too here it is a case of this and even this.

 

R. Hisda says that we can read the mishnah without saying that earlier lines are superfluous. The mishnah lists cases that are increasingly innovative. The earlier line is, admittedly, superfluous. Thus R. Hisda can say that according to the mishnah, not only is a get invalid if one person testifies about the writing and another about the signature, but it is even invalid if one person testifies about the signing and one signature and then joins another witness to testify that he recognizes the second signature.

 

Gittin, Daf Tet Vav, Part 4

 

Introduction

The Talmud goes on to the next section of the mishnah.

 

בְּפָנַי נִכְתַּב חֶצְיוֹ וּבְפָנַי נֶחְתַּם כּוּלּוֹ פָּסוּל

הֵי חֶצְיוֹ אַלֵּימָא חֶצְיוֹ רִאשׁוֹן וְהָאָמַר רַבִּי אֶלְעָזָר אֲפִילּוּ לֹא כָּתַב בּוֹ אֶלָּא שִׁיטָה אַחַת לִשְׁמָהּ שׁוּב אֵינוֹ צָרִיךְ

אֶלָּא אָמַר רַב אָשֵׁי חֶצְיוֹ אַחֲרוֹן

 

Half of it was written in my presence and all of it was signed in my presence, it is invalid:

Which half? If we say the first half, but did not R. Elazar say: Even if he only wrote one line for her sake he does not need to do anymore.

Rather Rav Ashi said: The last half.

 

The mishnah rules that if the agent can testify only that half the get was written in his presence, it is invalid. The Talmud points out that this cannot be the first half, because R. Elazar says that all the scribe has to do is write one line with her in mind and the get is valid. Therefore, R. Ashi explains that it must be the second half, which would include the last line.

 

בְּפָנַי נִכְתַּב כּוּלּוֹ וּבְפָנַי נֶחְתַּם חֶצְיוֹ פָּסוּל

אָמַר רַב חִסְדָּא וַאֲפִילּוּ שְׁנַיִם מְעִידִים עַל חֲתִימַת יַד שֵׁנִי פָּסוּל

מַאי טַעְמָא אוֹ כּוּלּוֹ בְּקִיּוּם הַגֵּט אוֹ כּוּלּוֹ בְּתַקָּנַת חֲכָמִים

 

All of it was written in my presence, and half of it was signed in my presence:

R. Hisda said: Even if two testify about the second signature it is invalid.

What is the reason? Either he must completely uphold the get or completely follow the rabbinic enactment.

 

R. Hisda points out that even if two witnesses testify that the second signature is valid, the get, about which the agent said only half, i.e. one signature, was done in his presence, is invalid. Either the get is validated by external testimony on both signatures, or the get is validated by the agent saying he saw both signatures (the rabbinic enactment). The get cannot be validated by witnesses testifying about one signature and the agent making a declaration about the other. No mixing and matching here folks!

 

מַתְקֵיף לַהּ רָבָא מִי אִיכָּא מִידֵּי דְּאִילּוּ אָמַר חַד כָּשֵׁר הַשְׁתָּא דְּאִיכָּא תְּרֵי פָּסוּל

אֶלָּא אָמַר רָבָא אֲפִילּוּ הוּא וְאַחֵר מְעִידִין עַל חֲתִימַת יַד שֵׁנִי פָּסוּל

מַאי טַעְמָא אָתוּ לְאִיחַלּוֹפֵי בְּקִיּוּם שְׁטָרוֹת דְּעָלְמָא וְקָא נָפֵיק נְכֵי רִיבְעָא דְמָמוֹנָא אַפּוּמָּא דְּחַד סָהֲדָא

 

Rava raised a difficulty: Is there anything that if one says its valid and now two say that it is valid it is invalid?!

Rather Rava said: Even if he (the agent) and another testify about the second signature, it is invalid.

What is the reason? They might come to confuse this with upholding regular documents and extract of the money on the basis of one witness.

 

Rava points out that what R. Hisda said does not make sense. If the agent can testify about the get and he is a single witness, then why can t we have two witnesses testify about the second signature.

Rava therefore tweaks R. Hisda s statement. Even if the agent and another witness testify that the second signature is valid (the agent is not saying he saw it being signed, he just recognizes the handwriting), the get is invalid. The problem is that if this were a monetary document we could have a problem. Let s say one signee testifies that the signature is his. And then he joins with another witness to testify concerning the authenticity second signature. This one witness is essentially doing of the work in validating a document. This is not allowed, and therefore we cannot allow a similar situation with regard to signing a get.

 

מַתְקֵיף לַהּ רַב אָשֵׁי מִי אִיכָּא מִידֵּי דְּאִילּוּ מַסֵּיק לֵיהּ אִיהוּ לְכוּלֵּיהּ דִּיבּוּרָא כָּשֵׁר הַשְׁתָּא דְּאִיכָּא חַד בַּהֲדֵיהּ פָּסוּל

אֶלָּא אָמַר רַב אָשֵׁי אֲפִילּוּ אוֹמֵר אֲנִי הוּא עֵד שֵׁנִי פָּסוּל מַאי טַעְמָא אוֹ כּוּלּוֹ בְּקִיּוּם הַגֵּט אוֹ כּוּלּוֹ בְּתַקָּנַת חֲכָמִים

 

Rav Ashi raises a difficulty: Is there any case in which if he had been able to complete his words, the get would be valid, and now that one is with him, it is invalid.

Rather Rav Ashi said: Even if he is the second witness it is invalid. What is the reason? Either he must completely uphold the get or completely follow the rabbinic enactment.

 

Rav Ashi raises a difficulty very similar to the one Rava himself raised. If the agent had been able to complete his words, he could have validated the get himself. Now that he can t, why should the fact that he has another person to corroborate half of his statement make his statement less reliable?

Therefore, Rav Ashi resolves that the mishnah can even refer to a case where the agent himself is the second witness. The agent testifies that the first signee signed with her in mind and that he is the second witness. Rav Ashi explains, as did R. Hisda above, that either one follows the normal way of upholding a get both signatures must be verified either by the signee or by two other witnesses, or one follows the rabbinic enactment, the agent testifies about both signatures. No mixing and matching!

Gittin, Daf Tet Vav, Part 3

 

הַמֵּבִיא גֵּט מִמְּדִינַת הַיָּם וְאָמַר בְּפָנַי נִכְתַּב אֲבָל לֹא בְּפָנַי נֶחְתַּם בְּפָנַי נֶחְתַּם אֲבָל לֹא בְּפָנַי נִכְתַּב בְּפָנַי נִכְתַּב כּוּלּוֹ וּבְפָנַי נֶחְתַּם חֶצְיוֹ בְּפָנַי נִכְתַּב חֶצְיוֹ וּבְפָנַי נֶחְתַּם כּוּלּוֹ פָּסוּל

 

If one brings a get from abroad and declares:

It was written in my presence but not, It was signed in my presence ;

It was signed in my presence but not It was written in my presence ;

All of it was written in my presence and in my presence but only one of the witnesses signed in my presence ;

Half was written in my presence but both witnesses signed in my presence ; [in all these cases] the get is invalid.

 

In all of these cases one person brings the get, and he cannot recite the full formula. Even if he can recite nearly the whole formula but cannot honestly say that the entire get was written and fully signed by two witnesses in his presence, the get is invalid. As we learned above, when the mishnah say that this get is invalid it means that in order for the woman to use this get to remarry, the witnesses themselves must verify their signatures or two witnesses must testify that they recognize both signatures. The testimony of the one who brought the get is not sufficient in and of itself.

 

אֶחָד אוֹמֵר בְּפָנַי נִכְתַּב וְאֶחָד אוֹמֵר בְּפָנַי נֶחְתַּם פָּסוּל

 

If one says, It was written in my presence and another says, It was signed in my presence , the get is invalid.

 

In this case, one messenger testifies that the get was written in his presence but cannot say that it was signed in his presence, and the other person with him says that the get was signed in his presence but cannot say that the get was also written in his presence. Since there is no complete declaration made by any one messenger, the get is not valid. Again, this means that it remains invalid until its signatures are validated.

 

שְׁנַיִם אוֹמְרִים בְּפָנֵינוּ נִכְתַּב וְאֶחָד אוֹמֵר בְּפָנַי נֶחְתַּם פָּסוּל וְרַבִּי יְהוּדָה מַכְשִׁיר

 

If two say, It was written in our presence and another says, It was signed in my presence , it is invalid.

Rabbi Judah declares it valid.

 

In this case two people bring the get and both can testify that the get was written in their presence, but neither can say that it was signed in their presence. A third person says that it was signed in his presence. The first opinion states that the get is still invalid, and still needs to be upheld by validating the signatures. Rabbi Judah holds that the get is already valid since there is full testimony by two witnesses on the writing. To Rabbi Judah, the writing is the essential part of the making of the get and if two testify that the writing was done properly, the get is valid. This is not through their being deliverers of the get, but rather through their being witnesses.

 

אֶחָד אוֹמֵר בְּפָנַי נִכְתַּב וּשְׁנַיִם אוֹמְרִים בְּפָנֵינוּ נֶחְתַּם כָּשֵׁר

 

If one says, It was written in my presence and two say, It was signed in our presence , it is valid.

 

The fact that two can say it was signed in our presence is sufficient to validate the get.

 

גְּמָ׳ הָא תּוּ לְמָה לִי הָא תְּנָא לֵיהּ חֲדָא זִימְנָא הַמֵּבִיא גֵּט מִמְּדִינַת הַיָּם צָרִיךְ שֶׁיֹּאמַר בְּפָנַי נִכְתַּב וּבְפָנַי נֶחְתַּם

אִי מֵהַהִיא הֲוָה אָמֵינָא צָרִיךְ וְאִי לָא אָמַר כָּשֵׁר קָא מַשְׁמַע לַן

 

Gemara: Why do we need to teach this again? We taught this already once: One who brings a get from abroad must say, It was written in my presence and signed in my presence.

If from that, I would have said, He needs to but if he did not it is still valid. Therefore it teaches us [that it is not].

 

The first part of the mishnah is perceived as being superfluous for it teaches the same thing as was taught at the beginning of the tractate. The Talmud answers that this mishnah comes to teach that if he can t make that full declaration, the get is invalid. If we only had the first mishnah, we might have thought that while he should make the declaration, if he does not, the get is still valid.

 

Gittin, Daf Tet Vav, Part 2

 

Introduction

The Talmud here analyzes the earlier baraita in light of the dispute between R. Elazar and the sages in the mishnah found in yesterday s section. To facilitate understanding I am copying here the earlier baraita:

[One who says], Bring a maneh to So-and-so and he goes and looks for him and does not find him, he should return the object to the sender. If the sender has died: R. Natan and R. Ya akov say: He should return it to the inheritors of the sender. And there are those who say: To the inheritors of those to whom it was sent.

R. Yehudah Hanasi said in the name of R. Yaakov in the name of R. Meir: It is a mitzvah to fulfill the words of the dead.

But the sages say: They should divide it.

And here they said: The agent can do what he wants.

R. Shimon Hanasi said: This happened to me and I said, they should return it to the inheritors of the sender.

 

תַּנָּא קַמָּא כְּרַבִּי אֶלְעָזָר וְרַבִּי נָתָן וְרַבִּי יַעֲקֹב נָמֵי כְּרַבִּי אֶלְעָזָר אַף עַל גַּב דְּמִית לָא אָמְרִינַן מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת

וְיֵשׁ אוֹמְרִים כְּרַבָּנַן

וְרַבִּי יְהוּדָה הַנָּשִׂיא שֶׁאָמַר מִשּׁוּם רַבִּי מֵאִיר כְּרַבִּי אֶלְעָזָר מִיהוּ הֵיכָא דְּמִית אָמְרִינַן מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת

וַחֲכָמִים אוֹמְרִים יַחְלוֹקוּ מְסַפְּקָא לְהוּ

וְכָאן אָמְרוּ שׁוּדָא עֲדִיף

וְרַבִּי שִׁמְעוֹן הַנָּשִׂיא מַעֲשֶׂה אֲתָא לְאַשְׁמוֹעִינַן

 

The first opinion holds like R. Elazar.

And R. Natan and R. Yaakov also hold like R. Elazar and even though he died, we do not say that it is a mitzvah to fulfill the words of the dead.

And those who say hold like the sages.

And R. Yehudah Hanasi in the name of R. Meir holds like R. Elazar however, if he dies it is a mitzvah to fulfill the words of the dead.

And the sages say: They shall divide it they do not know what the rule is.

Those who are here hold that discretion [of the agent] is preferable.

And R. Shimon Hanasi comes to teach us the case that happened.

 

The Talmud now lines up all the opinions in the baraita in line with the debate between R. Elazar and the sages. This section is almost the same as that we saw at the end of Daf Yod Daled so please see there for reference.

 

אִבַּעְיָא לְהוּ רַבִּי שִׁמְעוֹן הַנָּשִׂיא נָשִׂיא הוּא אוֹ מִשְּׁמֵיהּ דְּנָשִׂיא קָאָמַר

תָּא שְׁמַע דְּאָמַר רַב יוֹסֵף הֲלָכָה כְּרַבִּי שִׁמְעוֹן הַנָּשִׂיא וַעֲדַיִין תִּיבְּעֵי לָךְ נָשִׂיא הוּא אוֹ דְּקָאָמַר מִשְּׁמֵיהּ דְּנָשִׂיא תֵּיקוּ

 

The question was asked: R. Shimon Hanasi, was he the Patriarch (nasi) or was he speaking in the name of the Patriarch?

Come and learn: Rav Yosef said: The halakhah is an accordance with R. Shimon Hanasi.

But you can still ask, was he the Patriarch (nasi) or was he speaking in the name of the Patriarch?

Let the question stand.

 

R. Shimon Hanasi is a name not found elsewhere in rabbinic literature therefore it is unclear whether he is transmitting the halakhah in the name of someone else or whether this figure was actually the Patriarch. Alas, there is no answer to the question.

 

גּוּפָא אָמַר רַב יוֹסֵף הֲלָכָה כְּרַבִּי שִׁמְעוֹן הַנָּשִׂיא

וְהָא קַיְימָא לַן דִּבְרֵי שְׁכִיב מְרַע כִּכְתוּבִין וְכִמְסוּרִין דָּמוּ

רַב יוֹסֵף מוֹקֵי לַהּ בְּבָרִיא

 

The matter itself: Rav Yosef said: The halakhah is an accordance with R. Shimon Hanasi.

But we hold that the words of a dying person are as if they are written and given over.

R. Yosef says that the baraita refers to a healthy person.

 

The problem with R. Yosef s statement that the halakhah follows R. Shimon, who said that the gift should be brought back to the inheritors of the sender, is that the accepted halakhah is that the gift of a dying person is treated as if it was written down. Meaning it cannot be retracted. So why should it go back to the inheritors of the sender? The solution is to suggest that R. Yosef interprets the baraita as referring to a healthy person. This would mean that the dispute is about the meaning of bring R. Yosef would hold that it does not mean acquire.

 

וְהָא לְיוֹרְשֵׁי מְשַׁלֵּחַ קָאָמַר וְקַיְימָא לַן מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת

תְּנִי יַחְזְרוּ לִמְשַׁלֵּחַ

 

But he says it must be brought back to the inheritors of the sender and we hold that it is a mitzvah to fulfill the words of the dead.

Teach: It should be returned to the sender.

 

There is still a problem. Even if the sender was healthy at the time of the gift, if he died after the sender got the object, it should go to the inheritors of the recipient for we hold that it is a mitzvah to fulfill the words of dead.

To fix this problem the Talmud emends the baraita. The gift should be returned to the sender, who is alive. If he has died, the gift should be given to the inheritors of the recipient, for it indeed is a mitzvah to fulfill the words of the dead.

 

הֲדַרַן עֲלָךְ הַמֵּבִיא קַמָּא

 

May we return to you Hamevi Kamma

 

Congratulations you ve finished the first chapter of Gittin. Tomorrow we begin chapter two. But don t worry, we ll keep talking about that agent and his declaration!

 

Gittin, Daf Tet Vav, Part 1

 

Introduction

Today s sugya begins to offer a different explanation for the baraita found at the end of Daf Yod Daled. Instead of being a dispute over whether saying bring is like acquire the dispute is over the status of a gift made by a dying person.

 

דִּתְנַן הַמְחַלֵּק נְכָסָיו עַל פִּיו רַבִּי אֶלְעָזָר אוֹמֵר אֶחָד בָּרִיא וְאֶחָד מְסוּכָּן נְכָסִים שֶׁיֵּשׁ לָהֶן אַחְרָיוּת נִקְנִין בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה וְשֶׁאֵין לָהֶן אַחְרָיוּת אֵין נִקְנִין אֶלָּא בִּמְשִׁיכָה

וַחֲכָמִים אוֹמְרִים אֵלּוּ וָאֵלּוּ נִקְנִין בַּאֲמִירָה

אָמְרוּ לוֹ מַעֲשֶׂה בְּאִמָּן שֶׁל בְּנֵי רוֹכֵל שֶׁהָיְתָה חוֹלָה וְאָמְרָה תִּינָּתֵן כְּבִינְתִּי לְבִתִּי וְהִיא בִּשְׁנֵים עָשָׂר מָנֶה וּמֵתָה וְקִיְּימוּ חֲכָמִים אֶת דְּבָרֶיהָ

אָמַר לָהֶם בְּנֵי רוֹכֵל תִּקְבְּרֵם אִמָּם

 

As it was taught, If a man divided his property orally, Rabbi Elazar says: Whether he was healthy or at the point of death, property for which there is security (land) can be acquired only by money, by a document or by possession; property for which there is no security (movable objects) can be acquired only by being drawn [into the possession of the one acquiring.]

And the sages say: Both of these are acquired orally.

They (the Sages) said to him: It once happened that the mother of the sons of Rokhel was sick and said, Give my veil to my daughter, and it was worth twelve hundred maneh (1,200 dinars) and she died and they fulfilled her words.

He said to them: May their mother bury the sons of Rokhel.

 

This mishnah discusses a person who tries to transfer his property to another person orally without using a written document or other formal means of kinyan. According to Rabbi Elazar, whether the man is healthy or dying, he must perform the transaction in the usual manner that transactions are done, i.e. with kinyan. If he wishes to cause acquisition of land he must either receive money from the acquirer, use a document or the acquirer must demonstrate physical possession of the land. If he wishes to cause acquisition of movable property, i.e. things, the acquirer must actually take possession of them by drawing them towards him. In other words, according to Rabbi Elazar, merely saying that one is giving something to another person does not cause the acquisition to take effect. The sages who disagree with R. Elazar hold that both types of possessions may be transferred with words.

The Sages respond to Rabbi Elazar with a story that demonstrates through a precedent that a dying person may indeed transfer their possessions orally. In the story the mother of the sons of Rokhel declared that her expensive veil was to go to her daughter (and not to her sons who would inherit her when she dies). The Sages accepted her words and gave the veil to her daughter, even though no formal acquisition (kinyan) had been made. To this Rabbi Elazar responds that the sons of Rokhel were wicked and therefore the Sages accepted that the veil should belong to her daughter. In other words the story is exceptional and therefore does not serve as a proper precedent.

We shall see tomorrow how this dispute is used to explain the earlier baraita about one who sends an agent to deliver a gift.

 

 

 

Gittin, Daf Yod Daled, Part 6

 

Introduction

The Talmud continues to deal with the issue of whether when a sender says bring he also means acquire such that the object being sent belongs to the recipient from the moment the agent receives it.

 

לֵימָא הוֹלֵךְ כִּזְכִי תַּנָּאֵי הִיא דְּתַנְיָא הוֹלֵךְ מָנֶה לִפְלוֹנִי וְהָלַךְ וּבִקְּשׁוֹ וְלֹא מְצָאוֹ יַחְזְרוּ לַמְשַׁלֵּחַ

מֵת מְשַׁלֵּחַ רַבִּי נָתָן וְרַבִּי יַעֲקֹב אָמְרוּ יַחְזְרוּ לְיוֹרְשֵׁי מְשַׁלֵּחַ

וְיֵשׁ אוֹמְרִים לְיוֹרְשֵׁי מִי שֶׁנִּשְׁתַּלְחוּ לוֹ

רַבִּי יְהוּדָה הַנָּשִׂיא אָמַר מִשּׁוּם רַבִּי יַעֲקֹב שֶׁאָמַר מִשּׁוּם רַבִּי מֵאִיר מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת

וַחֲכָמִים אוֹמְרִים יַחְלוֹקוּ

וְכָאן אָמְרוּ כֹּל מַה שֶּׁיִּרְצֶה שָׁלִיחַ יַעֲשֶׂה

אָמַר רַבִּי שִׁמְעוֹן הַנָּשִׂיא עַל יָדִי הָיָה מַעֲשֶׂה וְאָמְרוּ יַחְזְרוּ לְיוֹרְשֵׁי מְשַׁלֵּחַ

 

Shall we say that whether bring is like acquire is a dispute among tannaim, as it was taught: [One who says], Bring a maneh to So-and-so and he goes and looks for him and does not find him, he should return the object to the sender.

If the sender has died: R. Natan and R. Ya akov say: He should return it to the inheritors of the sender.

And there are those who say: To the inheritors of those to whom it was sent.

R. Yehudah Hanasi said in the name of R. Yaakov in the name of R. Meir: It is a mitzvah to fulfill the words of the dead.

But the sages say: They should divide it.

And here they said: The agent can do what he wants.

R. Shimon Hanasi said: This happened to me and I said, they should return it to the inheritors of the sender.

 

The dispute in this baraita is what to do with an object sent to someone and then that someone is not found for he had died and then when the agent brings the object back, the sender has also died.

R. Natan and R. Ya akov say it must be given to the inheritors of the sender. This is also R. Shimon Hanasi s opinion.

Others say to the inheritors of the intended recipient. This is also R. Meir s opinion.

Finally, there are two other opinions. First the people here (Babylonia?) say that the agent can do what he wants. Second, the sages who say that the two sets of inheritors should split the object.

 

מַאי לָאו בְּהָא קָמִיפַּלְגִי דְּתַנָּא קַמָּא סָבַר הוֹלֵךְ לָאו כִּזְכִי

וְרַבִּי נָתָן וְרַבִּי יַעֲקֹב נָמֵי הוֹלֵךְ לָאו כִּזְכִי וְאַף עַל גַּב דְּמִית לָא אָמְרִינַן מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת

וְיֵשׁ אוֹמְרִים הוֹלֵךְ כִּזְכִי

רַבִּי יְהוּדָה הַנָּשִׂיא אָמַר מִשּׁוּם רַבִּי יַעֲקֹב שֶׁאָמַר מִשּׁוּם רַבִּי מֵאִיר הוֹלֵךְ לָאו כִּזְכִי מִיהוּ הֵיכָא דְּמִית אָמְרִינַן מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת

וַחֲכָמִים אוֹמְרִים יַחְלוֹקוּ מְסַפְּקָא לְהוּ

וְכָאן אָמְרוּ שׁוּדָא עָדִיף

וְרַבִּי שִׁמְעוֹן הַנָּשִׂיא מַעֲשֶׂה אֲתָא לְאַשְׁמוֹעִינַן

 

Is it not that they dispute the following: The first opinion holds that bring is not like acquire.

And R. Natan and R. Yaakov also hold that bring is not like acquire and even though he died, we do not say that it is a mitzvah to fulfill the words of the dead. And those who say hold that bring is like acquire.

R. Yehudah Hanasi in the name of R. Yaakov in the name of R. Meir holds that bring is not like acquire however, if he dies it is a mitzvah to fulfill the words of the dead.

And the sages say: They shall divide it they do not know what the rule is.

Those who are here hold that discretion [of the agent] is preferable.

And R. Shimon Hanasi comes to teach us the case that happened.

 

The Talmud now tries to posit that all of the disputes in the baraita hinge on whether we hold that bring is like acquire.

The first opinion, which held that as long as the sender was alive the agent must bring the object back, holds that bring is not like acquire.

R. Natan and R. Yaakov go a step further. Even if the sender died, the recipient still does not have a right to the object.

R. Meir in general would hold that bring is not like acquire and thus the inheritors of the sender should get the object back. But overriding this is another principle it is a mitzvah to fulfill the words of the dead.

The sages who say that they should divide it are doubtful as to what the halakhah is.

The opinion that says that the agent can do what he wants advocates for the agent s discretion. And finally, R. Shimon Hanasi merely adds that this was an actual case that came before him. The case agrees with R. Natan and R. Yaakov.

 

לָא בְּבָרִיא דְּכוּלֵּי עָלְמָא לָא פְּלִיגִי וְהָכָא בְּמַאי עָסְקִינַן בִּשְׁכִיב מְרַע וּבִפְלוּגְתָּא דְּרַבִּי אֶלְעָזָר וְרַבָּנַן קָמִיפַּלְגִי

 

No, if the case was the gift of a healthy person no one disagrees. What are we dealing with here? With the gift of a dying person, and it is the dispute between R. Elazar and the rabbis.

 

The Talmud shifts the understanding of the dispute in the baraita. If the gift was that of a healthy person all agree that bring is not like acquire and the gift must be returned to the sender. The argument is over the gift of a dying person. Next week we will learn this dispute.