Bava Batra 136

The mishnah on today’s daf states:

A person who writes a document granting his property to his sons must write: “I give the property from today and after my death” — this is the statement of Rabbi Yehuda. Rabbi Yosei says: He need not write this.

The medieval commentator known as Rashbam envisions the scenario like this: There’s a healthy father who’s about to marry a new woman and he doesn’t want all of his property to be liened against his new wife’s ketubah (the marriage contract that promises her a payment from his property should the marriage end), lest his children lose out on their inheritance. The property has to legally become theirs before he dies in order to override the Torah’s rules of inheritance and the laws of ketubah. However, the father also wants to continue using and benefiting from the property until his death. To accomplish this goal, the mishnah requires that he write in a double clause: “I give the property from today, and after my death.” Rashbam explains that “from today,” means the property itself is immediately acquired by the sons, and “after my death” means the fruits of the property will belong to them after their father passes away. Rabbi Yosei minimally disagrees about part of the clause; as the Gemara will later conclude, he believes that it’s not necessary to write “from today.” 

While this solution works for the mishnah, the Gemara is skeptical about the efficacy of the phrase “from today”:

And if he wrote: “from today and after my death,” what of it? Didn’t we learn in a mishnah (Gittin 72a): If a husband said to his wife: This is your bill of divorce from today and after my death, it is a bill of divorce but not a complete bill of divorce, and therefore if he dies without children his wife performs the ritual through which a woman is freed of her levirate bonds, but she does not enter into levirate marriage.

With regard to a get — divorce document — another mishnah asserts that the language of “from today” produces an uncertainty, and therefore invalidates a get. The result is that there’s enough possibility that the get is kosher, taking effect retroactively from that day, in order to make levirate marriage forbidden (because if no obligation exists, then marrying one’s former brother-in-law is not only not commanded but forbidden), but enough possibility that it’s invalid that the widow is required to perform halitzah, the ceremony severing the levirate bond, like a woman whose husband died without children.

If this is the case for a get, the Gemara argues, shouldn’t we also be concerned that the same uncertainty applies to a will? The Gemara offers a resolution to its own dilemma:

There (with regard to a get) we are uncertain if the expression “and after my death” is meant as a condition, or if it is a retraction of the statement: “From today.” But here, in the case of a deed of gift, this is what the father is presumably saying to him: Acquire the property itself today, and the produce after my death.

The reason this phrasing produces a problem in the scenario of get is that we’re uncertain whether these phrases are an indication that, if he dies, the get will retroactively have taken effect from today, or whether the “after my death” cancels out the “from today” in which case this is a divorce document issued after death, which is definitionally ineffective. The fact that one cannot be partially divorced complicates this formula. In our case, on the other hand, it’s easy to explain the seemingly at odds phrases: The sons acquire the property today, but the produce continues to belong to their father until he dies. So in this case, the transfer is effective.

Read all of Bava Batra 136 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 8, 2024. If you are interested in receiving the newsletter, sign up here.