BAVA BASRA 149 - A week of learning has been dedicated towards meriting a Refu'ah Sheleimah for Eliezer Lipa ben Yetta, by Mr. and Mrs. Kornfeld of Yerushalayim.

1) THE ADMISSION OF A "SHECHIV MERA"

QUESTION: The Gemara inquires about a Shechiv Mera who makes a statement of admission that he is in possession of money or property that belongs to someone else. Is his statement given the same credibility that is given to the admission of a healthy person, who is always believed in such a case ("Hoda'as Ba'al Din k'Me'ah Edim Dami")?

Logically, it seems that a Shechiv Mera's admission should be believed, since a Shechiv Mera has more power than a healthy person has to make transactions. (For example, his verbal instructions alone are sufficient and a Kinyan is not necessary.) What, then, is the basis of the Gemara's question?

ANSWERS:

(a) The RASHBAM explains that the Gemara's question applies in a case in which the money or property was known to belong to the Shechiv Mera and there was never a reason, before his admission, to assume otherwise. The Gemara reasons that there may be another reason for the Shechiv Mera to make this "admission." The Gemara in Sanhedrin (29b) discusses a similar case in which a dying man says that he owes money to someone else. The Gemara says that the admission is not believed, and that the dying man is assumed to have made that statement merely to prevent people from saying that he is rich (which will cause an "Ayin ha'Ra"; see RASHI there). The Gemara extends this logic to his heirs, as he does not want an "Ayin ha'Ra" cast upon them either.

If, however, the Gemara in Sanhedrin clearly rules that the admission of a dying man is not accepted, then what is the question of the Gemara here? The Rashbam explains that the Gemara in Sanhedrin is discussing a case in which the dying man admits that he borrowed money. When people think that someone borrowed a lot of money, it thwarts any "Ayin ha'Ra" because it is not desirable to be a borrower, as the verse states, "A borrower is a servant to the lender" (Mishlei 22:7). In contrast, the Gemara here discusses a person who admits that he was entrusted to hold money or property for someone as a deposit. A custodian of someone else's money or property is certainly not considered the owner's "servant." On the contrary, it is the custodian who does a favor for the owner by watching his property for him. The Gemara therefore asks whether the same reasoning applies to disregard his admission. The Gemara learns from the incident of the money of Isur Giyora that a Shechiv Mera's admission indeed is valid.

(b) The RI (cited by Tosfos) and RABEINU CHANANEL explain that the Gemara's question is whether the Shechiv Mera's admission has the status of a Matnas Shechiv Mera, or the status of a gift given by a normal, healthy person. If it has the status of a Matnas Shechiv Mera, then if he gives away all of his property and then recovers, the gift is annulled. If his admission is treated like the admission of a normal, healthy person, then his gift remains valid and binding even if he recovers. The Gemara derives from the case of Isur Giyora that a Shechiv Mera's admission is similar to a gift given by a healthy person. Isur Giyora did not have the power to give a Matnas Shechiv Mera (as the Gemara says, since he was a convert and thus was not able to inherit, and a Matnas Shechiv Mera works only for someone who is able to inherit). It must be that the admission of a Shechiv Mera is not like a Matnas Shechiv Mera, but rather it is like the gift of a normal, healthy person, and thus it is binding even if the Shechiv Mera recovers.

(c) TOSFOS cites a third approach (although he prefers the explanation of the RI) that explains that the Gemara questions whether a person has the ability to transfer the ownership of money or an object that belongs to him and that he deposited with a friend for safekeeping. The case that the Gemara is discussing is that of a Shechiv Mera who entrusted his own money or object to a friend, and now wants to give that money or object as a gift to a third party. The Gemara asks if the fact that the money or object is not physically in his possession lessens his power to effect a transfer of ownership. The Gemara derives from the case of Isur Giyora that one indeed may transfer the ownership of his own money while it is not in his physical possession at the moment. (The Gemara derives, however, only that a Shechiv Mera may effect such a transaction, but not that a healthy person may do so, since a healthy person is subject to more stringent laws of transactions).

According to this explanation, the Gemara could have asked this question with regard to a healthy person as well. In addition, had the Gemara answered that a Shechiv Mera may not transfer the ownership of such objects, it would have been understood, too, that a healthy person certainly may not do so.

The NESIVOS HA'MISHPAT (CM 60:32) notes that there is an underlying question in the case of the Gemara. (It appears that this question applies according to both explanations cited by Tosfos.) The question is whether Hoda'ah, admission, is a valid vehicle of transaction (like a form of Kinyan) only when it is possible that the admission is true (that is, there is no evidence that the person making the admission indeed owned the property, and it may indeed belong to someone else), or even when it is clear that it is not true (that is, it is certain that this person was always the owner of the property, or he himself says that he owned it until now, and now he "admits" that it belongs to someone else). The Gemara answers that Hoda'ah is accepted as a valid means of transaction. (Some suggest that this applies to a Shechiv Mera; see SHACH there.) (Of course, in a case in which the admission is plausible, it is obvious that it is effective.) (Y. MONTROSE)

2) AGADAH: RAVA AND THE MONEY OF ISUR GIYORA

QUESTION: The Gemara relates an incident in which Isur Giyora deposited money with Rava for safekeeping. Rava asserted that there was no way for Isur Giyora to transfer the ownership of that money to his son Rav Mari, and Rava therefore was planning to keep the money. In the end, Isur Giyora followed Rav Ika's advice to "admit" that the money belonged to Rav Mari. When Isur Giyora made his admission, Rava became upset. He exclaimed, "You are teaching people claims and thereby causing me to lose money!"

Why did Rava become upset over such a thing? Rava certainly knew the dictum of the Gemara earlier (10a) which states that a person's income, including all profits and losses, is fixed for the entire year on Rosh Hashanah. Why did he become upset over this loss of money, if he knew that it was decreed on Rosh Hashanah?

ANSWERS:

(a) The CHAZON ISH (LIKUTIM 21) explains that Rava wanted to procure the money for Tzarchei Tzibur, for the needs of the poor, as indicated by the Gemara in Ta'anis (20b) which quotes Rava's declaration that he could do all of the charitable acts that Rav Huna did, except having all of the poor people eat in his home whenever they wanted, due to the great number of poor people in his community. The Chazon Ish infers that Rava actually did all of the things that Rav Huna did (as he would not have boasted untruthfully). Therefore, Rava needed to make an extra effort to obtain money for the poor, because that money was not part of his own income, and thus it was also possible that he could lose that money.

(b) The YOSEF DA'AS quotes RAV M. MAZOZ who explains that Rava was not seriously upset about the loss of money. Rather, he wanted his students to discuss the difficult case and sharpen their minds by trying to find a solution whereby the money of Isur Giyora could be transferred to Rav Mari. When Rav Ika found an acceptable solution, Rava proclaimed in jest, "You are causing me to lose money!" (As related in Yosef Da'as, Rav Mazoz says that after he said this explanation, Rava came to him in a dream and blessed him with Birkas Kohanim.) (Y. MONTROSE)

149b----------------------------------------149b

3) HALACHAH: HOW MUCH PROPERTY RETAINED CONSTITUES A "MATNAS SHECHIV MERA B'MIKTZAS"?

OPINIONS: The Mishnah (146b) states that if a Shechiv Mera gives away his property but retains "any amount of land" for himself, his gifts are considered absolute and unconditional (like the gifts of a healthy person), and he may not retrieve them if he recovers. The Gemara asks how much land is considered "any amount" of land. Rav Yehudah in the name of Rav says that this is the amount of land the Shechiv Mera needs to support himself. Rav Yirmeyah bar Aba states that it is not necessary for the Shechiv Mera to retain land for the gifts to be binding; rather, his gifts are binding as long as he retains any type of property, even Metaltelin (movable objects), in the amount necessary to support himself.

The Gemara attempts to refute both the assertion that there is a minimum amount of property that the Shechiv Mera must retain (enough to support himself) in order for the gift to be considered a Matnas Shechiv Mera b'Miktzas, and the assertion that it is sufficient for him to retain Metaltelin, even if he gives away all his land. The Gemara, however, does not come to any definite conclusion. What is the Halachah? Is it necessary for the Shechiv Mera to keep land for himself, or does Metaltelin suffice as well? Is it necessary for him to retain enough property to support himself or does any amount suffice?

(a) The RIF rules that the Halachah follows neither Rav Yehudah nor Rav Yirmeyah bar Aba. The Rif proves this from the Gemara later (150b) in which Rava (150b) states that there are five cases in which a person must give away all of his property in order for the law to change (that is, in each case there is a difference between giving away some of one's property and giving away all of one's property). One of the cases is that of a Shechiv Mera. By including all of the five cases in one statement, Rava implies that the case of Shechiv Mera is similar to the other cases. Since, in the other cases, it is sufficient to leave over any amount of property, the same applies to the case of a Matnas Shechiv Mera. Thus, the gift will be considered a Matnas Shechiv Mera b'Miktzas as long as any amount of property was excluded.

(b) The ROSH writes that the RIF's ruling is difficult to understand, because the Gemara here does not record the opinion of any Amora who argues with Rav Yehudah and interprets the Mishnah literally, that any amount of land that a Shechiv Mera retains suffices to make the gift a Matnas Shechiv Mera b'Miktzas. Therefore, the Rosh explains that when Rava (150b) groups the five cases together, he does not mean that they are all completely equivalent to each other. For example, in the case of a Kesuvah, there must be some land left over, whereas in the other cases, even Metaltelin may be left over. Similarly, the exact details of the case of Shechiv Mera may differ from those of the other four cases. The Rosh explains that logic dictates that a Shechiv Mera who gives away his property unconditionally (by giving only some of his property away) does so only if he keeps for himself enough to support himself in the event that he recovers, as Rav Yehudah says. Therefore, the Shechiv Mera's gift is considered unconditional only if he retains a sufficient amount of whatever commodity he uses to support himself (whether it is land or Metaltelin) so that he can continue to support himself in the event that he lives, as Rav Yirmeyah bar Aba says. (It seems from the Rosh that the amount that must be left over is the amount the Shechiv Mera will need to support himself for the rest of his life.)

The S'MA and NESIVOS HA'MISHPAT (see CM 250:4) understand that the Rosh maintains that if the Shechiv Mera retains land, then he must have enough land to support both himself and his family, because he needs people (his family members) to help him farm his land and therefore he must support them. If, however, he earns an income through other means and does not need workers to assist him, then his gift is considered a Matnas Shechiv Mera b'Miktzas as long as he retains only the amount that he needs for his own support; he does not have to retain the amount that he needs for his family's support.

The ARUCH HA'SHULCHAN disagrees with this approach in the Rosh and asserts that regardless of the Shechiv Mera's occupation, he must retain enough property to support himself and his family; if he does not, then the gift is nullified if he recovers.

(c) The BA'AL HA'ITUR gives an explanation similar to that of the Rosh. However, the Ba'al ha'Itur adds that the Shechiv Mera must retain for himself enough to support himself for twelve months in order for his gift to be considered a Matnas Shechiv Mera b'Miktzas.

HALACHAH: The SHULCHAN ARUCH (CM 250:4) follows the opinion of the RIF (a), while the REMA cites the opinion of the Rosh (b). (Y. MONTROSE)

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