BAVA BASRA 137 (14 Sivan) - Dedicated by Doug Rabin in memory of his mother, Leah Miriam bat Yisroel (Lucy) Rabin, in honor of her Yahrzeit.

1) SELLING ONE'S RIGHTS TO THE PRODUCE OF PROPERTY

QUESTION: The Gemara points out a contradiction in the opinion of Rebbi. In one Beraisa, Rebbi states that when a dying man (a Shechiv Mera) gives away his property to one person on condition that the property be given to a second person after the first person's death, the first person cannot sell or consume the property. If he does sell the property, the second recipient may take it from the buyers. However, in a different Beraisa, Rebbi says that the first recipient may sell or consume the property.

The Gemara answers that the first Beraisa refers to the Guf, the actual property itself, which the first recipient is not entitled to sell. The second Beraisa, however, discusses the rights to the Peros, the produce of the property. The first recipient is entitled to sell his rights to the produce of the property.

If the second Beraisa refers to the sale of the Peros, then why must Rebbi state that the first recipient can sell them? It should be obvious that the recipient of the Peros may sell his rights to the Peros, because he has full ownership of those rights and may do whatever he wants with them.

ANSWER: The RI MI'GASH answers that Rebbi teaches that although the Peros do not exist yet (and they are a "Davar she'Lo Ba la'Olam"), and the first recipient does not own the actual property (the Guf) itself, his sale of the Peros is valid nonetheless. This is because the Guf of the property is considered to be his with regard to the Peros; the Guf is Meshubad to him for its Peros, as long as he is alive. When he sells the Peros, he sells this Shibud on the Guf of the property. (I. Alsheich)

137b----------------------------------------137b

2) THE REQUIREMENTS FOR A CONDITIONAL STATEMENT

QUESTIONS: Rava rules that when a person receives an Esrog as a gift on condition that he return it, that Esrog is considered his and he may fulfill the Mitzvah with that Esrog, as long as he returns it later. This is because a "Matanah Al Menas l'Hachzir" is considered a valid gift. If, however, he fails to fulfill the giver's condition and return the Esrog, then the gift is not valid and the Esrog does not belong to him, and he cannot fulfill the Mitzvah with it.

(a) The Rishonim ask that regardless of whether the recipient gives back the Esrog, the Esrog should be his and he should be able to fulfill the Mitzvah with it, because the giver did not use the necessary formula for conditions. The Torah establishes that a conditional statement is valid only if its wording follows a specific formula (Kidushin 61a). One requirement is that the condition be double-sided ("Tenai Kaful"), i.e. both the positive and the negative possibilities must be stated explicitly. In addition, the positive side must precede the negative side. An example of such a statement is, "If you do such-and-such (e.g. return the Esrog to me), then the Kinyan will take effect; if you do not do it, then the Kinyan will not take effect." If the Tenai is not formulated properly, then the Tenai is disregarded and the action (the Kinyan) takes effect even if the parties do not fulfill the specified conditions.

In the case of Rava, the condition was not doubled; only the positive side was expressed, but not the negative side. Why, then, should the condition be binding?

(b) Moreover, the case of Rava does not meet another requirement of a conditional statement. In order for a conditional statement to be binding, the condition and the action cannot affect the same object ("Tenai u'Ma'aseh b'Davar Echad"; see Gitin 75a). Here, the condition (that the Esrog be returned) and the Kinyan (that the Esrog will belong to the recipient) affect the same object: the Esrog itself.

ANSWERS:

(a) There are two basic approaches in the Rishonim to answer this question.

1. TOSFOS (Sukah 41b, DH Heilach; see also MAHARSHA here), the RAMBAN, and the ROSH answer that the case that Rava discusses indeed is a case in which the condition is doubled, and Rava simply does not quote the entire conditional statement. Since Rava's purpose is to teach a Halachah about the laws of gifts, and not about how a condition must be formulated, he does not bother to quote the entire phraseology necessary for the condition to be valid. (There are many places where the Mishnah or Gemara discuss a conditional statement without quoting its required formula, since, in those places, the purpose is not to teach the formula of a condition, but rather to teach a different Halachah.)

2. The RASHBAM answers that Rava's case is a case of monetary law, and in monetary matters (as opposed to matters of Isur, such as Gitin and Kidushin) a "Tenai Kaful" is not necessary. As long as the intent of the giver is clear, a single-sided condition suffices and the condition takes effect. (See also RAMBAM and RA'AVAD, Hilchos Zechiyah u'Matanah 3:8, and RIF cited by the RAMBAN in Gitin 76a.)

Other Rishonim question the Rashbam's answer from the fact that the very source for the requirement of a "Tenai Kaful" is a case of a monetary matter. The format for conditional statements is learned from the agreement that Moshe Rabeinu made with the men of the tribes of Gad and Reuven. They received portions in the land of Ever ha'Yarden on condition that they fight alongside the other tribes to conquer Eretz Yisrael proper (Kidushin 61a). Moshe Rabeinu's conditional statement related to the acquisition of Ever ha'Yarden, which certainly was a monetary matter. Why, then, does the Rashbam say that a "Tenai Kaful" is not necessary in monetary matters?

The RAMBAN explains that the Tana who requires a "Tenai Kaful" for a conditional statement is Rebbi Meir (Kidushin ibid.). Although Rebbi Meir teaches this requirement with regard to monetary matters, the Halachah does not follow Rebbi Meir because his position is a minority opinion. The only reason why a "Tenai Kaful" is required in cases of Gitin and Kidushin is that there is an added stringency due to the severity of those matters (see Gitin 75b).

(b) The Rishonim give a number of answers to this question as well.

1. TOSFOS and the RAMBAN answer that Rava in Gitin (75a) seems to maintain that there is no requirement of "Tenai u'Ma'aseh b'Davar Echad," and thus his statement here is consistent with his position there. The Gemara in Gitin cites a Beraisa which says that when a man gives a Get to his wife and says, "This is your Get, but the paper [on which it is written] will remain mine," the Get is not valid. If, however, he says, "This is your Get on condition that you return the paper to me," the Get is valid and the divorce takes effect. The Gemara asks how the two cases differ from each other. Rava answers that in the second case, the action (the divorce) is stated before the condition, and the formula for a conditional statement requires that the condition precede the statement of the action. If a person makes a conditional statement but reverses the order, the condition is invalidated, and the action takes effect even if the condition is not fulfilled. Rav Ada bar Ahavah responds to Rava that even if the condition would be mentioned first, the condition still would be invalid and the Get would take effect, because the condition and the action involve the same object (the Get). Since Rava does not give that answer, it seems that he does not require that the condition and the action relate to two separate objects.

2. Tosfos answers further that the requirement of "Tenai u'Ma'aseh b'Davar Echad" exists only according to Rebbi Meir, while the Rabanan argue and maintain that the condition is valid even when the condition and the action involve the same object. Rava here rules in accordance with the view of the Rabanan.

3. Tosfos and the Ramban suggest another answer. They explain that the problem with a "Tenai u'Ma'aseh b'Davar Echad" is that the fulfillment of the condition makes the Kinyan impossible. For instance, in the case of a man who says, "This is your Get on condition that you return the paper to me," the Get cannot take effect until after the condition has been fulfilled (i.e. she returns the paper to him), but at that point the Get is no longer in the wife's possession and it cannot cause her to become divorced. However, Rebbi (in Gitin 74a, Kidushin 60b) maintains that when a person uses the phrase, "Al Menas" ("on condition that...") in his Tenai, the person intends for the Kinyan to take effect retroactively from that moment, provided that the condition is fulfilled subsequently. (This is in contrast to the word "Im" ("if"), which implies that the Kinyan should take effect only when the condition is fulfilled.) According to this opinion, when a man gives a Get and imposes a condition that states "Al Menas that you return the paper to me," the Get takes effect retroactively from the time that it was given to her, provided that she returns the paper. Consequently, such a case is not subject to the problem of "Tenai u'Ma'aseh b'Davar Echad." Perhaps Rava (here and in Gitin) agrees with Rebbi that "Al Menas" is like "me'Achshav" and the Kinyan takes effect retroactively. Hence, in the case of the Gemara here, when the recipient returns the Esrog, he is considered retroactively to have owned it from the time that he received it. Since it is possible for the Kinyan to take place and the condition to be fulfilled, the conditional statement is not subject to the limitation of "Tenai u'Ma'aseh b'Davar Echad." (I. Alsheich)

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