אֲמַר לְהוּ לְרַבִּי דּוֹסְתַּאי בַּר רַבִּי יַנַּאי וּלְרַבִּי יוֹסֵי בַּר כֵּיפַר בַּהֲדֵי דְּאָתֵיתוּ אַתְיוּהּ נִיהֲלִי אֲזוּל יַהֲבֵיהּ נִיהֲלֵיהּ אָמְרִי לְהוּ נִקְנֵי מִינַּיְיכוּ אָמְרִי לְהוּ לָא אָמְרִי לְהוּ אַהְדְּרֵיהּ נִיהֲלַן 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.
רַבִּי דּוֹסְתַּאי בְּרַבִּי יַנַּאי אֲמַר לְהוּ אִין רַבִּי יוֹסֵי בַּר כֵּיפַר אֲמַר לְהוּ לָא הֲווֹ קָא מְצַעֲרוּ לֵיהּ אֲמַר לֵיהּ חֲזִי מָר הֵיכִי קָא עָבֵיד אֲמַר לְהוּ טָב רְמוֹ לֵיהּ 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.
כִּי אֲתוֹ לְגַבֵּיהּ אֲמַר לֵיהּ חֲזִי מָר לָא מִיסָּתְיֵיהּ דְּלָא סַיְּיעַן אֶלָּא אֲמַר לְהוּ נָמֵי טָב רְמוֹ לֵיהּ אֲמַר לֵיהּ אַמַּאי תֶּיעְבֵּד הָכִי 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?
אֲמַר לֵיהּ אוֹתָן בְּנֵי אָדָם הֵן אַמָּה וְכוֹבָעָן אַמָּהּ וּמְדַבְּרִין מֵחֶצְיֵיהֶן וּשְׁמוֹתֵיהֶן מְבוֹהָלִין אַרְדָּא וְאַרְטָא וּפִילֵי בְּרֵישׁ אוֹמְרִין כְּפוֹתוּ כּוֹפְתִין אוֹמְרִין הֲרוֹגוּ הוֹרְגִין אִילּוּ הָרְגוּ אֶת דּוֹסְתַּאי מִי נָתַן לְיַנַּאי אַבָּא בַּר כְּמוֹתִי 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?
אֲמַר לֵיהּ בְּנֵי אָדָם הַלָּלוּ קְרוֹבִים לַמַּלְכוּת הֵן אָמַר לֵיהּ הֵן יֵשׁ לָהֶן סוּסִים וּפְרָדִים שֶׁרָצִים אַחֲרֵיהֶן אֲמַר לֵיהּ הֵן אֲמַר לֵיהּ אִי הָכִי שַׁפִּיר עֲבַדְתְּ 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.
הוֹלֵךְ מָנֶה לִפְלוֹנִי וְהָלַךְ וּבִקְּשׁוֹ וְלֹא מְצָאוֹ תָּנֵי חֲדָא יַחְזְרוּ לַמְשַׁלֵּחַ וְתַנְיָא אִידַּךְ לְיוֹרְשֵׁי מִי שֶׁנִּשְׁתַּלְחוּ לוֹ § 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.
לֵימָא בְּהָא קָמִיפַּלְגִי דְּמָר סָבַר הוֹלֵךְ כִּזְכִי וּמָר סָבַר הוֹלֵךְ לָאו כִּזְכִי 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.
אָמַר רַבִּי אַבָּא בַּר מֶמֶל דְּכוּלֵּי עָלְמָא הוֹלֵךְ לָאו כִּזְכִי וְלָא קַשְׁיָא הָא בְּבָרִיא הָא בִּשְׁכִיב מְרַע 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.
רַב זְבִיד אָמַר הָא וְהָא בִּשְׁכִיב מְרַע הָא דְּאִיתֵיהּ לִמְקַבֵּל בִּשְׁעַת מַתַּן מָעוֹת הָא דְּלֵיתֵיהּ לִמְקַבֵּל בִּשְׁעַת מַתַּן מָעוֹת 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.
רַב פָּפָּא אָמַר הָא וְהָא בְּבָרִיא הָא דְּמִית מְקַבֵּל בְּחַיֵּי נוֹתֵן הָא דְּמִית נוֹתֵן בְּחַיֵּי מְקַבֵּל 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.
לֵימָא הוֹלֵךְ כִּזְכִי תַּנָּאֵי הִיא דְּתַנְיָא הוֹלֵךְ מָנֶה לִפְלוֹנִי וְהָלַךְ וּבִקְּשׁוֹ וְלֹא מְצָאוֹ יַחְזְרוּ לַמְשַׁלֵּחַ מֵת מְשַׁלֵּחַ רַבִּי נָתָן וְרַבִּי יַעֲקֹב אָמְרוּ יַחְזְרוּ לְיוֹרְשֵׁי מְשַׁלֵּחַ וְיֵשׁ אוֹמְרִים לְיוֹרְשֵׁי מִי שֶׁנִּשְׁתַּלְחוּ לוֹ 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.
רַבִּי יְהוּדָה הַנָּשִׂיא אָמַר מִשּׁוּם רַבִּי יַעֲקֹב שֶׁאָמַר מִשּׁוּם רַבִּי מֵאִיר מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת וַחֲכָמִים אוֹמְרִים יַחְלוֹקוּ וְכָאן אָמְרוּ כֹּל מַה שֶּׁיִּרְצֶה שָׁלִיחַ יַעֲשֶׂה אָמַר רַבִּי שִׁמְעוֹן הַנָּשִׂיא עַל יָדִי הָיָה מַעֲשֶׂה וְאָמְרוּ יַחְזְרוּ לְיוֹרְשֵׁי מְשַׁלֵּחַ 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.
מַאי לָאו בְּהָא קָמִיפַּלְגִי דְּתַנָּא קַמָּא סָבַר הוֹלֵךְ לָאו כִּזְכִי וְרַבִּי נָתָן וְרַבִּי יַעֲקֹב נָמֵי הוֹלֵךְ לָאו כִּזְכִי וְאַף עַל גַּב דְּמִית לָא אָמְרִינַן מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת וְיֵשׁ אוֹמְרִים הוֹלֵךְ כִּזְכִי 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.
רַבִּי יְהוּדָה הַנָּשִׂיא אָמַר מִשּׁוּם רַבִּי יַעֲקֹב שֶׁאָמַר מִשּׁוּם רַבִּי מֵאִיר הוֹלֵךְ לָאו כִּזְכִי מִיהוּ הֵיכָא דְּמִית אָמְרִינַן מִצְוָה לְקַיֵּים דִּבְרֵי הַמֵּת 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.
וַחֲכָמִים אוֹמְרִים יַחְלוֹקוּ מְסַפְּקָא לְהוּ וְכָאן אָמְרוּ שׁוּדָא עָדִיף וְרַבִּי שִׁמְעוֹן הַנָּשִׂיא מַעֲשֶׂה אֲתָא לְאַשְׁמוֹעִינַן 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.
לָא בְּבָרִיא דְּכוּלֵּי עָלְמָא לָא פְּלִיגִי וְהָכָא בְּמַאי עָסְקִינַן בִּשְׁכִיב מְרַע וּבִפְלוּגְתָּא דְּרַבִּי אֶלְעָזָר וְרַבָּנַן קָמִיפַּלְגִי 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.
דִּתְנַן הַמְחַלֵּק נְכָסָיו עַל פִּיו רַבִּי אֶלְעָזָר אוֹמֵר אֶחָד בָּרִיא וְאֶחָד מְסוּכָּן נְכָסִים שֶׁיֵּשׁ לָהֶן אַחְרָיוּת נִקְנִין בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה וְשֶׁאֵין לָהֶן אַחְרָיוּת אֵין נִקְנִין אֶלָּא בִּמְשִׁיכָה וַחֲכָמִים אוֹמְרִים אֵלּוּ וָאֵלּוּ נִקְנִין בַּאֲמִירָה 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.
אָמְרוּ לוֹ מַעֲשֶׂה בְּאִמָּן שֶׁל בְּנֵי רוֹכֵל שֶׁהָיְתָה חוֹלָה וְאָמְרָה תִּינָּתֵן 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