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Bava Basra, 129
1) GRANTING A GIFT TO ONE WHO IS FIT TO INHERIT
OPINIONS: Rav Acha brei d'Rav Avya says that according to Rebbi Yochanan ben
Berokah, when a Shechiv Mera says to a person who is fit to inherit him
(such as his son), "Nechasai Lecha v'Acharecha l'Ploni" -- "My property
shall be to you, and after you it shall be to so-and-so," the property is
given to the first person unconditionally. Even when the first person dies,
the second person does not receive the property, but rather the heirs of the
first person receive it. Since he is fit to inherit the Shechiv Mera, the
Shechiv Mera's granting of the property to him is considered to be an
inheritance (Yerushah) and not a gift, and an inheritance has no
termination; once a person inherits property, that property is then
inherited by his children when he dies and the line of inheritance is not
discontinued. The Halachah follows the view of Rebbi Yochanan ben Berokah
and Rav Acha brei d'Rav Avya's ruling.
2) "TOCH KEDEI DIBUR K'DIBUR DAMI"
What is the Halachah, though, when a Shechiv Mera specifically says that he
wants the first person (who is fit to inherit him) to receive the property
as a gift (for example, he says, "Nechasai Lecha *b'Matanah*...")? Is it
then considered a gift, such that when the first person dies the property
will be given to the second person in fulfillment of the Shechiv Mera's
words, or is it still a Yerushah?
(a) The RASHBAM (DH Im Amar l'Echad) says that Rav Acha's ruling applies
only when the Shechiv Mera did not specify how he wants the property to be
granted to the first person (or, obviously, if he stated explicitly that the
property should be given to him as an inheritance). If, however, he
explicitly states that he wants the property to be given to him as a *gift*,
then the first person receives it only as a gift, which is then terminated
upon his death and the property is transferred to the second person as a
(b) The RAMBAN maintains that even when the Shechiv Mera specifies that he
wants his property to be given to the first person as a *gift*, since the
first person is fit to inherit him the property is given to him as an
inheritance and not as a gift, and thus the second person does not receive
it at all.
The RAMBAM (Hilchos Zechiyah 12:4) also rules that "the term 'Matanah,' when
used with regard to someone who is fit to inherit the giver, is considered
an inheritance," and thus even when the Shechiv Mera says that he is given
his property to the first person (who is fit to inherit him) as a gift, it
is considered an inheritance and has no termination. This is also the ruling
of the SHULCHAN ARUCH (CM 248:1).
However, the Rambam later (12:6) writes that when the Shechiv Mera
explicitly states, "My property shall be given to you *as a gift that has a
termination and not as an inheritance that has no termination*," then the
property indeed is given as a gift and not as an inheritance.
The Mefarshim dispute what the Rambam means. According to the RIVASH (#160),
the Rambam is saying that the Shechiv Mera must say exactly this formula in
order for the property to be given as a gift. According to the MACHANEH
EFRAIM (Hilchos Zechiyah #39, and according to the "Chacham" to whom the
Rivash is addressing his response), the Rambam maintains that as long as it
is clear that the Shechiv Mera has intention to give the property only as a
gift, his words are upheld and the property is given only as a gift. This is
also the ruling of the S'MA (CM 248:3).
(c) The RA'AVAD and RIVASH (#167; see TESHUVOS HA'RASHBA 3:122) maintain
that regardless of the wording that the Shechiv Mera uses, the property is
also given to the person who is fit to inherit him as an inheritance and not
as a gift.
Why should this be so? If the Shechiv Mera explicitly states, as the Rambam
writes, that the property should be given "as a gift that has a termination
and not as an inheritance," then why do we disregard his desire?
The KOVETZ INYANIM explains that according to these Rishonim, the enactment
of the Rabanan that the verbal command of a Shechiv Mera is as binding as a
written document applies only when his word does not contravene the law of
the Torah. In this case, the Torah says that the one who is fit to inherit
the Shechiv Mera shall receive the property as an inheritance, while the
Shechiv Mera says that he shall receive the property as a gift. Since the
Shechiv Mera's order contradicts the law of the Torah, in such a case we
disregard the Shechiv Mera's words (with regard to giving the property as a
gift) and we give the property to the first person (as the Shechiv Mera
commanded) as an inheritance (as the Torah requires).
(According to the other Rishonim, such as the Rashbam, the enactment of the
Rabanan that a Shechiv Mera's words are binding applies even in such a case.
Since the Shechiv Mera is able to give his property as a gift to anyone he
chooses, the fact that he is choosing to give it as a gift to someone who is
fit to inherit him is not considered to be in conflict with the Torah's
OPINIONS: The Gemara mentions that the principle of "Toch Kedei Dibur
k'Dibur Dami" applies for all Halachos except for idolatry (Avodah Zarah)
and marriage (Kidushin). The Gemara in Nedarim (87a) adds that it does not
apply for blaspheming (Megadef), and divorce (Gerushin). (TOSFOS here
explains that the reason the Gemara here does not mention Megadef and
Gerushin is because Megadef is included in Avodah Zarah, and Gerushin is
included in Kidushin, since the reason for why "Toch Kedei Dibur" does not
apply to Kidushin is equally valid with regard to Gerushin.)
The Rishonim differ regarding the source for this principle and regarding
the mechanics of how it works.
(a) The RAN in Nedarim (87a) writes that both the principle of "Toch Kedei
Dibur" and its exceptions are *mid'Oraisa*. The logic behind this is that a
person is never totally committed to his actions and reserves the right to
renege within the small amount of time of Toch Kedei Dibur. However, when
performing actions which are of such a severe nature (the exceptions
mentioned in the Gemara), a person does not begin the action until he is
absolutely committed to doing it, and therefore he does not reserve in his
mind the right to renege.
(b) RABEINU TAM maintains that the Halachah of "Toch Kedei Dibur" is a
Takanah d'Rabanan. The Rabanan instituted this principle in order to enable
a buyer to greet his teacher while in the middle of a purchase, without that
greeting acting as an interruption between the words he was saying
beforehand and the words he says afterwards. TOSFOS in Nedarim cites this
opinion in the name of Rabeinu Eliezer. Tosfos asks, however, that "Toch
Kedei Dibur" cannot be a Takanah d'Rabanan, because it is said even with
regard to Halachos that are mid'Oraisa.
(c) The RASHBAM here writes that the principle of "Toch Kedei Dibur" is
mid'Oraisa in all cases, including those exceptions mentioned in the Gemara
(that is, one can rescind within "Toch Kedei Dibur" even in cases of
Megadef, Avodah Zarah, marriage, and divorce), but the Rabanan enacted that
it does *not* work in those cases. They enacted that it not work in cases of
Megadef and Avodah Zarah because of the severity of the act, and that it not
work in cases of marriage and divorce in order to prevent rumors from
spreading which would ruin the reputation of the children born from the
QUESTION: The Rishonim question the opinions of the Ran and Rabeinu Tam
based on the cases discussed by the Gemara in Nedarim. The Gemara says that
if one tore Keri'ah for a relative before the relative died, and then the
relative died within "Toch Kedei Dibur" of the Keri'ah, the mourner need not
tear again. The reasoning of the Ran certainly does not apply, for the
person who tore Keri'ah was not transacting any sort of deal from which he
might wish to renege. Rather, at the time he tore Keri'ah, he was not yet
obligated to tear, because the relative had not yet died, and thus his
Keri'ah should be ineffective! The same is true of the case that the Gemara
mentions in which a man annulled a Neder mistakenly thinking that it was his
wife who made the Neder, and "Toch Kedei Dibur" he discovered that it was
actually his daughter who made the Neder. The Gemara applies the principle
of "Toch Kedei Dibur" even though there is no question of indecision, but
merely a lack of knowledge which was only rectified after the act.
According to Rabeinu Tam, who explains that the principle of "Toch Kedei
Dibur" is a Takanah d'Rabanan in case one needs to greet his teacher in the
middle of a transaction, the case of Keri'ah is similarly problematic, since
there is no reason to apply the principle of "Toch Kedei Dibur" there.
ANSWER: TOSFOS in Bava Kama (73b) answers that even though Rabeinu Tam's
reasoning for "Toch Kedei Dibur" does not apply to Keri'ah, nevertheless the
Rabanan instituted the leniency of "Toch Kedei Dibur" as a special leniency
in the Halachah of Keri'ah.
TOSFOS here in Bava Basra (DH v'Hilchesa) answers that "Toch Kedei Dibur"
applies to Keri'ah because the Rabanan instituted a "Lo Plug" -- since in
some situations the rule applies, they enacted that it should apply in all
These answers, though, do not answer the questions on the Ran's opinion, and
we remain with the questions from the Halachos of Keri'ah and Hafaras
Nedarim. It must be that, according to the Ran, the basic principle of "Toch
Kedei Dibur k'Dibur Dami" is a universal rule that anything which happens
within the time frame of "Toch Kedei Dibur" is non-sequential; it is
immaterial what happened first. Therefore, we can consider the Keri'ah as if
it happened *after* the death. The Ran said his reasoning only in order to
differentiate between normal acts and transactions to which the principle of
"Toch Kedei Dibur" applies, and Avodah Zarah (and Megadef), Gitin and
Kidushin -- acts which are final and irrevocable once performed, due to
their severity, and are therefore excluded from the rule of "Toch Kedei
Dibur k'Dibur Dami."