BAVA BASRA 138 - Dedicated by Andy & Nancy Neff in memory of Leah Miriam bat Yisroel who passed away on 14 Sivan 5767 -- Lucy Rabin, beloved wife of Sidney Rabin and mother of Nancy Neff and Valerie, Doug and Andy Rabin.
1) A SHECHIV MERA'S GIFT TO THREE CONSECUTIVE RECIPIENTS
QUESTION: The Gemara teaches that when a Shechiv Mera gives away all of his property to three different people with the instructions, "[A field worth] 200 shall be given to Reuven, 300 to Shimon, and 400 to Levi," the person who received the first gift cannot claim that the Shechiv Mera intended to give him precedence and make him the first of the recipients. Hence, if the Shechiv Mera's creditor comes to collect the debt owed to him, the recipient of the first gift may not insist that the creditor collect first from the other recipients. Rather, it is assumed that the Shechiv Mera intended to give away all of his property at the same time, but it was not possible to make three statements (giving three gifts to three different people) simultaneously.
Why does the Beraisa give an example of gifts of increasing value (200, 300, 400)? Will the same Halachah apply if the Shechiv Mera gives gifts of equal value (he gives 200 to each person)?
(a) The RAMBAN, RASHBA, and RITVA cite an opinion (in the name of "Yesh Omrim"; see also ROSH) which maintains that the ruling of the Beraisa applies only when the gifts are not of equal value. When the gifts are not of equal value, the fact that they were given separately does not indicate that the Shechiv Mera intended to leave over some property after each one. He may have given the gifts separately merely because it was not possible to give them simultaneously. However, when a Shechiv Mera gives gifts of equal value to three people, Beis Din assumes that he gave them in a specific order of precedence, and the creditor must collect from the later recipients first. If the Shechiv Mera had not intended to give the gifts in any particular order, he would have phrased them differently; he could have said simply, "Give 600 to Reuven, Shimon, and Levi, equally."
The Ramban, Rashba, and Ritva question this explanation. The second case in the Beraisa teaches that if the Shechiv Mera says, "[A field worth] 200 shall be given to Reuven, and after him, to Shimon, and after him, to Levi," then Beis Din assumes that he intended to give the gifts in that order, and the creditor must collect from the later recipients before he can collect from the earlier ones. According to the explanation cited by these Rishonim, the Beraisa does not need to formulate such a different case (in which the Shechiv Mera uses the term "ul'Acharav" -- "and after him") in order to show the contrasting Halachah; rather, it could have discussed the same case (without the term "ul'Acharav"), in which the Shechiv Mera gives equal portions to each recipient. In such a case, the Halachah would be that the creditor must collect first from the later recipients, because the fact that the Shechiv Mera did not include all of the recipients in one statement (such as "Give 600 to all three") indicates that he intended to give the gifts in a specific order.
(b) Because of this question, the RITVA explains differently. He says that it does not matter whether the Shechiv Mera's gifts were of different values or of equal values. In either case, Beis Din assumes that he meant to give them all at the same time (unless, of course, he says "ul'Acharav"). This is also the view of the RASHBA.
However, this explanation is also problematic. According to this explanation, why does the Beraisa formulate a case in which the Shechiv Mera gave gifts of different values, if the Halachah is the same when the Shechiv Mera gives gifts of equal value?
The Ritva gives two answers to this question.
In his first answer, he says that it is the normal style of the Tana to describe separate gifts as gifts of different amounts.
In his second answer, he says that the Beraisa teaches an additional Chidush by describing the case in this way. In a case in which the gifts are of varying amounts, there might have been a different reason to assume that a creditor must collect from the Shechiv Mera's beneficiaries in a specific order. Beis Din might have assumed that the recipient of the largest gift is the one that the Shechiv Mera favored the most, and therefore the creditor must collect from the other recipients first. The Beraisa teaches that Beis Din does not make such an assumption, and the creditor collects equally from all of the recipients.
The RAMBAN and RASHBA suggest a similar approach to answer the question on the first explanation (in (a) above). They explain that there is a Chidush in the case that the Beraisa discusses, in which the Shechiv Mera says "ul'Acharav," that would not have been conveyed if the Beraisa had discussed a case in which the gifts were of equal value. The Beraisa teaches that although the last recipient was given a larger amount, which implies that the Shechiv Mera favors him the most, Beis Din does not infer that the Shechiv Mera also intended for a creditor to collect from the last recipient after the other two. Rather, the Shechiv Mera's use of the term "ul'Acharav" indicates that the gifts were given in that order, even though the last recipient was given a larger gift. (This is also the explanation of the RASHBAM (end of DH Goveh) when he explains why the first case of the Beraisa discusses gifts of increasing amounts (and not decreasing amounts). He explains that the Beraisa teaches a Chidush with regard to the second case: that even though the last recipient received a larger gift, Beis Din does not assume that the Shechiv Mera also intended for his gift to be the first (so that a creditor would have to collect from him last). Rather, since the Shechiv Mera said "ul'Acharav," Beis Din assumes that the last recipient was, indeed, given the last gift, and a creditor may collect from him first. See, however, the RAMBAN's understanding of the Rashbam, and see the footnote of Rav Avraham Sofer zt'l to the CHIDUSHEI HA'RAN here.)
Why, though, does the Ritva not give this answer, which is similar to the way he answers the question on his own explanation? The Ritva seemingly maintains that this answer cannot explain why the end of the Beraisa discusses a case of "ul'Acharav." Since the Shechiv Mera explicitly said "ul'Acharav," there would be no reason to assume that the Shechiv Mera meant to protect the last recipient from a creditor, even though he was given a larger gift. The Ritva maintains that it is unnecessary for the Beraisa to teach such a Halachah at all. Thus, the Ritva rejects the first explanation for lack of a suitable answer to the question he raises on it. (I. Alsheich)
2) GIVE 200 ZUZ AS BEFITS HIM
QUESTION: The Beraisa teaches that if a Shechiv Mera says, "Give 200 Zuz to my son the Bechor as befits him," his son receives both 200 Zuz and the double portion of a Bechor. Similarly, if he says, "Give 200 Zuz to my wife as befits her," his wife receives both the 200 Zuz and her Kesuvah. The same applies if the Shechiv Mera says, "Give 200 Zuz to my creditor as befits him"; the creditor receives not only the money that is owed to him, but also an additional 200 Zuz.
The Gemara asks that perhaps when the Shechiv Mera says, "Give 200 Zuz to my creditor as befits him," he means that 200 Zuz should be given to his creditor as befits him as repayment for the loan, and he does not mean to give the creditor an additional 200 Zuz.
Why does the Gemara ask this question only with regard to a creditor, and not with regard to a firstborn son or a wife? The Gemara should also ask that when the Shechiv Mera says to give 200 Zuz to his son (or to his wife) "as befits him (or her)," he may mean merely that 200 Zuz should be given as befits his son for the portion of a Bechor, or as befits his wife for her Kesuvah!
(a) The RI MI'GASH answers that it is obvious to the Gemara that since a man feels close to his son and to his wife, he wants to give them more and not to detract from what they will receive. Therefore, when he says "as befits him (or her)," his intention is to increase their share and not to decrease it. This is not the case with regard to a creditor. A person does not feel close to a creditor, and there is no reason to assume that a person would want to increase the amount of money given to a creditor. Therefore, the Gemara asks only with regard to a creditor that "perhaps he means 'as befits him' as payment for his debt."
The RAMBAN rejects this answer, because it is clear from the end of the Beraisa that a person may feel close to his creditor. The end of the Beraisa teaches that if a Shechiv Mera says, "Give 200 Zuz to my creditor for the debt owed to him," the creditor receives only the value of his debt (if it is less than 200 Zuz). This is clearly a case in which the Shechiv Mera attempted to give his creditor more money than was due to him, which indicates that it is possible for a person to feel close to his creditor. Nevertheless, the Gemara asks that when the Shechiv Mera says "as befits him," he may mean "as befits him as repayment for the loan." Why does the Gemara not ask the same question with regard to the Shechiv Mera's son and wife, to whom he also feels close?
(b) Due to this question, the RAMBAN gives a different explanation for why the Gemara does not ask this question with regard to the man's son and wife as well. The Gemara asks its question only with regard to a creditor because there is a logical reason to assume that the Shechiv Mera means to say "as befits him for his debt." If his intent was that the creditor be given a larger amount of money, that would appear like Ribis, interest. Thus, it is logical to assume that the Shechiv Mera wants only to pay back his debt and not to give any extra money to the creditor, since that would appear like Ribis.
(c) The RASHBA answers (in the name of "Yesh Mi she'Omer") that indeed the Gemara could have asked this question with regard to a son and a wife as well. It asks this question only with regard to a creditor since that is the last case mentioned in the Beraisa. (I. Alsheich)