Bava Basra Daf 148 - Matnas Shechiv Mera
Summary
- This shiur presents the sugya on whether a matnat shekhiv mera can operate on items that a matnat bari cannot, anchors Rav Nachman’s requirement for effective language that conveys substance, confronts the apparent contradiction from transferring a loan, and offers two frameworks: Rav Pappa’s linkage to yerushah and Rav Acha bar Rav Ika’s linkage to mechanisms available to a bari via *be-ma’amad sheloshtan*. It applies those frameworks to multiple nafka minot, analyzes whether granting a dekel to one and its perot to another leaves a retained share, and parallels that with selling a house and rights to the deyota and zizin. It then defines how to read staggered bequests of a shekhiv mera, when to fear unknown assets bi-medinas ha-yam and when the Mishnah’s standard applies, and rules that chazarah be-miktzat is chazarah be-kulo. It closes with a teiku about hekdesh, hefker, and tzedaka given by a shekhiv mera who recovers, and notes practical psak considerations raised by later poskim.
- Rava in the name of Rav Nachman rules that a shekhiv mera who says ידור פלוני בבית זה, יאכל פלוני פירות דקל זה “לא אמר כלום,” and that he must say תנו בית זה לפלוני וידור בו, תנו דקל זה לפלוני ויאכל פירותיו. The sugya initially reads Rav Nachman as holding that items ineligible for matnat bari are likewise ineligible for matnat shekhiv mera.
- The same Rava citing Rav Nachman validates a shekhiv mera instructing “תנו הלוואתי לפלוני,” despite a bari being unable to transfer a *milveh al peh*. The Rashbam and Ri Migash explain that a *halva’ah* is *ein bo mamash* due to only a *she‘ibud ha-guf*, whereas Rashi in Ketubot 55b ties a bari’s failure to transfer to coin not being acquired by chalipin, prompting Tosafot’s question why the Gemara chose the loan case rather than cash. Rav Pappa answers that matnat shekhiv mera is modeled on yerushah: whatever passes by yerushah passes via matnat shekhiv mera, and “אין היורש יורש דברים שאין בהם ממש” (Rema, חושן משפט סימן ר״ע סעיף ו׳). The Ritva notes that gifting גובה של ביתו counts, since what transfers by yerushah transfers by matnat shekhiv mera. Rav Acha bar Rav Ika answers that a loan is transferable even by a bari via “מנה לי בידך תנהו לפלוני,” and with *be-ma’amad sheloshtan* one acquires, while a shekhiv mera does not need that formality though it is limited to items transferable by a bari.
- The Meiri and Tashbetz note a theft case: if the object is with a gazlan and *be-ma’amad sheloshtan* is unavailable, the yerushah-model would still allow matnat shekhiv mera, whereas the bari-transfer model would not. The Bach cites Avi HaEzri (R. Elazar mi-Metz) that a loan owed by a goy is not acquired via matnat shekhiv mera because *be-ma’amad sheloshtan* does not apply there, while the Maharit argues that even Rav Acha would agree to Rav Pappa that such a loan can pass with matnat shekhiv mera since it is notionally transferable. Rav Elchanan in Kovetz Shiurim adds nafka minot for giving what is not *be-reshuto* and for gifting *issurei hana’ah*: the yerushah-model yields acquisition (yoresh inherits even prohibited items without benefiting), while the bari-transfer model blocks acquisition of *issurei hana’ah*.
- Rava in the name of Rav Nachman rules that when one gives a *dekel* to one person and its *perot* to another, this is not a retained *makom perot* for the giver and the first recipient receives the entire tree. When one gives a *dekel* to another but says “chutz mi-perotav” for himself, this is a retained *makom perot*, because “kol legabei nafshai be-ayin yafeh meshayyer.”
- R. Shimon ben Lakish states that “המעורר בית לחברו ואמר לו על מנת שדיוטא העליונה שלי—דיוטא העליונה שלו,” and Rav Zevid explains that the extra language retains even rights to be “מוציא זיזין וגזוזטראות.” Rava in the name of Rav Nachman rules that if a *bayit* goes to one and the *deyota* to another, the seller did not retain rights in the *hatzer*; however, if he says “chutz mi-deyota,” that explicit exclusion is a retention that carries with it the *makom zizin*, aligning with the Mishnah on daf 61 and Rav Zevid’s reading.
- Rav Yosef bar Menyumi in the name of Rav Nachman rules that when a shekhiv mera wrote away all assets, we assess: if he was clearly being mechaleik all his assets, then if he dies they all acquire and if he recovers he retracts all; if he was nimlach as he went, then if he dies they all acquire, but if he recovers he retracts only the last. The Gemara answers the “maybe he was still thinking” concern by presuming “setamei d’shekhiv mera medakdek ve-hadar yahiv,” so an initial isolated grant signals non-global intent. Rav Acha bar Menyumi in the name of Rav Nachman rules that even if he gave everything and then recovered, he is not necessarily chozer because we fear he may own more assets *bi-medinas ha-yam*. The Mishnah’s case “לא שייר קרקע כל שהוא אין מתנתו קיימת” applies either where he said כל נכסיי (Rashbam cites Rabbeinu Chananel’s girsa כל נכסיי אלו הן and challenges it; the Ritva notes “אלו” sounds like there are other assets), or where it is muchzak to us that he has nothing else, with the Tur citing a dispute whether this requires absolute testimony or operative chazakah, and Rabbeinu Gershom’s example of someone who never left town sufficing for such a chazakah.
- The Baraita states “כולה לראשון ומקצת לשני—שני קנה ראשון לא קנה; מקצתו לראשון וכולו לשני—ראשון קנה שני לא קנה,” and analysis shows that the seifa fits where he recovered. Rav Yeimar to Rav Ashi argues that even where he recovered one must hold that chazarah be-miktzat is chazarah be-kulo, otherwise both gifts would fail like a total division of assets by a shekhiv mera who then recovered. The halacha is that chozer be-miktzat is chazarah be-kulo, so in the reisha the second acquires and the first does not whether he died or recovered, while in the seifa only the first acquires and the second does not, and that latter outcome stands only where he recovered.
- The Gemara leaves as a teiku whether a shekhiv mera who was makdish all assets, or was mafkir them, or gave them all to tzedaka, and then recovered, is considered to have had full gemirut da’at such that the transfer stands. The formulations weigh whether “kol legabei hekdesh gamar u-makni,” whether hefker to benefit both poor and rich indicates gemirut da’at, and whether tzedaka certainly indicates gemirut da’at, against the possibility that “kol legabei nafshai lo gamar u-makni.” The Chatam Sofer applies this unresolved status to a case of a nedavah to communal tzedakot where the donor cannot recall which fund, with some Rishonim requiring hamotzi me-chaveiro alav ha-ra’ayah to extract, and others treating tzedaka as a de’oraita obligation that triggers safek de’oraita le-chumra.
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