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.