Gittin 14bגיטין י״ד ב
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14bי״ד ב

אמר להו לר' דוסתאי ב"ר ינאי ולר' יוסי בר כיפר בהדי דאתיתו אתיוה ניהלי אזול יהביה ניהליה אמרי להו נקני מינייכו אמרי להו לא אמרי להו אהדריה ניהלן

Rabbi Aḥai said to Rabbi Dostai bar Rabbi Yannai and to Rabbi Yosei bar Keifar: When you come from Neharde’a bring the vessel to me. They went to Neharde’a and the people who were in possession of the vessel gave it to them. After handing over the vessel, those people said to them: Let us perform an act of acquisition with you, so that you will be responsible for the vessel until you reach Rabbi Aḥai. The agents said to them: No; we do not want to do this. They said to them: If so, return the vessel to us, as we do not wish to transfer it in such a manner that we retain responsibility.

ר' דוסתאי ברבי ינאי אמר להו אין ר' יוסי בר כיפר אמר להו לא הוו קא מצערו ליה א"ל חזי מר היכי קא עביד אמר להו טב רמו ליה

Rabbi Dostai, son of Rabbi Yannai, said to them: Yes, I am willing to return it. However, Rabbi Yosei bar Keifar said to them: No, as you do not have the right to retract in this situation. They tormented Rabbi Yosei bar Keifar to force him to agree to return the vessel. Rabbi Yosei bar Keifar said to Rabbi Dostai: See, my Master, what they are doing to me. Rabbi Dostai said to them: You are acting well; hit him.

כי אתו לגביה א"ל חזי מר לא מיסתייה דלא סייען אלא אמר להו נמי טב רמו ליה א"ל אמאי תיעבד הכי

When these two agents came before Rabbi Aḥai, Rabbi Yosei bar Keifar said to him: See, my Master, not only did Rabbi Dostai not support me; rather, he even said to them: You are acting well; hit him. Rabbi Aḥai said to Rabbi Dostai: Why did you do this?

א"ל אותן בני אדם הן אמה וכובען אמה ומדברין מחצייהן ושמותיהן מבוהלין ארדא וארטא ופילי בריש אומרין כפותו כופתין אומרין הרוגו הורגין אילו הרגו את דוסתאי מי נתן לינאי אבא בר כמותי

Rabbi Dostai said to him: Those people who were in possession of the vessel, they are the size of a cubit, and their hats were a cubit, and they spoke from their midpoints, and their names were frightening: Arda and Arta and Pili Bereish. If one were to say to them: Restrain this person, they would restrain him. If one were to say to them: Kill him, they would kill. Had they killed Dostai, i.e., me, who would give Yannai, my father, another son like me?

א"ל בני אדם הללו קרובים למלכות הן א"ל הן יש להן סוסים ופרדים שרצים אחריהן א"ל הן א"ל אי הכי שפיר עבדת:

Rabbi Aḥai said to him: Are these people close to the government? Rabbi Dostai said to him: Yes. Rabbi Aḥai asked him: Do they have horses and mules that run after them, i.e., do they have servants to perform their bidding? Rabbi Dostai said to them: Yes. Rabbi Aḥai said to him: If so, you acted well, as the situation was entirely out of your control.

הולך מנה לפלוני והלך ובקשו ולא מצאו תני חדא יחזרו למשלח ותניא אידך ליורשי מי שנשתלחו לו

§ The Gemara discusses the meaning of the expression: Deliver, in relation to a gift. With regard to one who said to his agent: Deliver one hundred dinars to so-and-so, and the agent went and searched for that person but did not find him, as he had died, it is taught in one baraita: The money should be returned to the sender. And it is taught in another baraita: The money should be given to the heirs of the one to whom it was sent.

לימא בהא קמיפלגי דמר סבר הולך כזכי ומ"ס הולך לאו כזכי

The Gemara suggests: Let us say that they disagree about this, as one Sage, in the second baraita, holds that in the case of a gift, saying: Deliver, is like saying: Acquire, and consequently the agent took possession of the money on behalf of the one to whom it was sent. Therefore, the heirs inherit this item. And one Sage, in the first baraita, holds that in the case of a gift, saying: Deliver, is not like saying: Acquire, and therefore the agent must return the money to the sender.

אמר ר' אבא בר ממל דכ"ע הולך לאו כזכי ולא קשיא הא בבריא הא בשכיב מרע

Rabbi Abba bar Memel said: No; everyone agrees that in the case of a gift, saying: Deliver, is not like saying: Acquire, and the apparent contradiction between the two baraitot is not difficult: This baraita, which says that the agent must return the money to the sender, is dealing with a case where the giver was a healthy person when he issued the instructions. Such a gift is acquired by the recipient only once it reaches his possession, and this recipient died before the gift reached him. Conversely, that baraita, which says that he should give it to the heirs of the one to whom it was sent, deals with the instructions of a person on his deathbed. Since the gift of a dying person is immediately acquired by the recipient, this recipient acquired it straightaway, and therefore it must be given to his heirs.

רב זביד אמר הא והא בשכיב מרע הא דאיתיה למקבל בשעת מתן מעות הא דליתיה למקבל בשעת מתן מעות

Rav Zevid said: It is possible to say that saying: Deliver, is not like saying: Acquire, and that both this baraita and that baraita are dealing with a case where the giver was a person on his deathbed. Instead, the difference between the two sources is that this baraita, which states that he should give it to the recipient’s heirs, is referring to a case where the recipient was alive at the time of the giving of the money. Consequently, when the sender gives the money to the agent the recipient immediately acquires it, and his heirs claim it in his stead. That baraita, which says that the agent must return the money to the sender, is referring to a case where the recipient was not alive at the time of the giving of the money, and consequently the agent could not acquire the money on his behalf.

רב פפא אמר הא והא בברי' הא דמית מקבל בחיי נותן הא דמית נותן בחיי מקבל

Rav Pappa said yet another explanation of the baraita: This baraita and that baraita are both dealing with a healthy person who subsequently died. The difference is that this baraita, which said that the agent must return the money to the sender, is dealing with a case where the recipient died in the lifetime of the giver, and as he did not acquire the money himself his heirs do not take possession of it either. By contrast, that baraita, which states that the money should be given to the heirs of the recipient, is dealing with a case where the giver died in the lifetime of the recipient. Once he dies it is a mitzva to fulfill his wishes, and therefore the recipient, and his heirs after him, are entitled to the money.

לימא הולך כזכי תנאי היא דתניא הולך מנה לפלוני והלך ובקשו ולא מצאו יחזרו למשלח מת משלח ר' נתן ור' יעקב אמרו יחזרו ליורשי משלח ויש אומרים ליורשי מי שנשתלחו לו

The Gemara further suggests: Shall we say that the issue of whether saying: Deliver, is like saying: Acquire, is a dispute between tanna’im? This is as it is taught in a baraita, that if one person said to another: Deliver one hundred dinars to so-and-so, and he went and searched for him but did not find him, as he had died, the money should be returned to the sender. If the sender died, Rabbi Natan and Rabbi Ya’akov said: The money should be returned to the heirs of the sender. And some say: It should be given to the heirs of the one to whom it was sent.

ר' יהודה הנשיא אמר משום ר' יעקב שאמר משום ר"מ מצוה לקיים דברי המת וחכ"א יחלוקו וכאן אמרו כל מה שירצה שליח יעשה א"ר שמעון הנשיא על ידי היה מעשה ואמרו יחזרו ליורשי משלח

The baraita continues: Rabbi Yehuda HaNasi said in the name of Rabbi Ya’akov, who said this in the name of Rabbi Meir: It is a mitzva to fulfill the statement of the dead. Therefore the money should be given to the heirs of the one to whom it was sent. And the Rabbis say: Due to the uncertainty, they should divide it. And here, in Babylonia, they said: Whatever the agent wishes to do he may do. Rabbi Shimon HaNasi said: When an incident of this kind occurred under my jurisdiction I inquired into how to proceed, and the Sages said to me: The money should be returned to the heirs of the sender.

מאי לאו בהא קמיפלגי דת"ק סבר הולך לאו כזכי ור' נתן ור' יעקב נמי הולך לאו כזכי ואע"ג דמית לא אמרינן מצוה לקיים דברי המת ויש אומרים הולך כזכי

The Gemara suggests: What, is it not correct to say that they disagree about this issue, that the first tanna holds that saying: Deliver, is not like saying: Acquire, and therefore the money should be returned to the sender? And Rabbi Natan and Rabbi Ya’akov also hold that saying: Deliver, is not like saying: Acquire, but they add that even though the sender died, one does not say: It is a mitzva to fulfill the statement of the dead. Consequently, the money is returned to the sender’s heirs. And the Sages in the clause beginning: Some say, claim that saying: Deliver, is like saying: Acquire. Therefore the recipient takes possession of the money immediately, and it is given to his heirs.

ר' יהודה הנשיא אמר משום ר' יעקב שאמר משום ר' מאיר הולך לאו כזכי מיהו היכא דמית אמרינן מצוה לקיים דברי המת

And Rabbi Yehuda HaNasi, who said in the name of Rabbi Ya’akov, who said this in the name of Rabbi Meir, also holds that saying: Deliver, is not like saying: Acquire. However, in a case where the sender died we say that it is a mitzva to fulfill the statement of the dead. Therefore, the one hundred dinars should be given to the recipient or his heirs.

וחכמים אומרים יחלוקו מספקא להו וכאן אמרו שודא עדיף ורבי שמעון הנשיא מעשה אתא לאשמועי'

And the Rabbis say: They should divide it, because they are uncertain about the halakha in this situation. And the Sages in the clause beginning: Here they said, maintain that in this case the discretion [shuda] of the agent is preferable to an even division between the parties. And Rabbi Shimon HaNasi does not offer an opinion of his own; rather, he came to teach us an incident in which this case was decided in practice.

לא בבריא דכולי עלמא לא פליגי והכא במאי עסקינן בשכיב מרע ובפלוגתא דר' אלעזר ורבנן קמיפלגי

The Gemara rejects this suggestion: No; it is possible that in a case where the giver was a healthy person when he appointed the agent everyone agrees that saying: Deliver, is not like saying: Acquire, and with what are we dealing here? We are dealing with a person on his deathbed who sent these one hundred dinars, and they disagree in the dispute between Rabbi Elazar and the Rabbis.

דתנן המחלק נכסיו על פיו ר' אלעזר אומר אחד בריא ואחד מסוכן נכסים שיש להן אחריות נקנין בכסף ובשטר ובחזקה ושאין להן אחריות אין נקנין אלא במשיכה וחכמים אומרים אלו ואלו נקנין באמירה

This is as we learned in a mishna (Bava Batra 156a): With regard to one who divides his property orally, Rabbi Elazar says: Both in the case of a healthy person and that of a dangerously ill person, property that serves as a guarantee, i.e., land, is acquired by means of money, through a document, or by taking possession. And property that does not serve as a guarantee, i.e., movable property, can be acquired only through pulling. And the Rabbis say: If the giver is on his deathbed, then both this property and that property can be acquired through speech, and there is no need for an additional act of acquisition.

אמרו לו מעשה באמן של בני רוכל שהיתה חולה ואמרה תינתן

They said to Rabbi Elazar: Didn’t an incident of this kind occur with regard to the mother of the family of the sons of Rokhel, who was ill, and she said: Give