Bava Basra - Daf 153
- A שטר in which was written "בחיים ובמות" – “in life and in death”
There was a שטר written by a שכיב מרע which stated: "בחיים ובמות" – “I give you this gift in life and in death.” Rav said it is considered a מתנת שכיב מרע, because since he wrote "במות", אחר מיתה קאמר ליה – he is saying it should take effect after his death. The mention of "בחיים" in the שטר was merely סימן בעלמא דחיי – an omen that he should live (i.e., since he mentioned his impending death, he added a hopeful mention of living). Shmuel says it is considered a מתנת בריא, because since he wrote "בחיים", מחיים קאמר – he is saying it should take effect during his lifetime. The mention of "במות" was כמאן דאמר מעתה ועד עולם – like one saying, “This gift should be yours from now and forever,” (i.e., even after he dies). Those of Nehardea rule like Rav. Rava said that if the שטר states "מחיים" – “from life and in death,” it acquires like an ordinary gift, but Ameimar says the halachah does not follow Rava. Although we pasken like Rav, one could have thought Rav agrees that the term "מחיים" takes effect “from” his lifetime; Ameimar teaches otherwise.
- Who must prove if the benefactor was a שכיב מרע or בריא?
A gift document stated that he gave it “when he was sick and lying in bed,” (i.e., a שכיב מרע), but did not indicate if he died from that illness. Rabbah said: הרי מת והרי קברו מוכיח עליו – he has died, and his grave proves it, so we assume he died from that illness, and the gift is valid. Abaye objected that when a ship sinks, we suspect its passengers may have survived. Here, שרוב חולין לחיים – that most ill people recover and live, we should certainly suspect that he did not die from this illness, but later, and the gift should be void!? Rabbah’s opinion follows Rebbe Nassan’s: A Baraisa discusses a gift where the giver and recipients dispute if he was a שכיב מרע or a בריא when he gave it, and whether he can now retract. Rebbe Yaakov says the benefactor can take back the property without proving he was a שכיב מרע, but the recipients must prove he was a בריא to take the property. He follows the חזקה of the property, which was originally the giver’s. Rebbe Nassan says that if he is currently a בריא, he must prove he was a שכיב מרע then; if he is currently a שכיב מרע, they must prove he was a בריא. Rebbe Nassan follows the current status.
- ספק טומאה where it is unknown if the field was a רשות היחיד or רשות הרבים at the time
Rebbe Elazar says: ולטומאה כמחלוקת – and regarding tumah, the same machlokes applies. A Mishnah says about a בקעה – valley of grain fields, בימות החמה – during the summer, if it is enclosed, it is a רשות היחיד regarding laws of Shabbos, but it is a רשות הרבים regarding questions of tumah, and cases of doubtful tumah are ruled tamei. Since people enter the field during the harvest season, it is not secluded. However, בימות הגשמים – during the rainy season, when produce is growing and people do not enter the field, it is a רשות היחיד for tumah as well. Thus, if someone entered a valley containing tumah, and does not know if he became tamei, but also does not know when he entered the valley, Rebbe Yaakov would follow the person’s former חזקה of being tahor. Rebbe Nassan would say that it depends when he asks the question: if he asks during the summer, we assume he entered during the summer; if he asks during the rainy season, we assume he entered during that season.
