We’ve learned that someone can distribute their estate to others as gifts on their deathbed in order to circumvent the biblical laws of inheritance. This kind of distribution can lead to multiple people being given gifts who would ordinarily not be part of the chain of inheritance. As we’ve also seen, creditors can make claims against an estate after the death of its owner.
But what about in the case where there is no estate, because it has already been given away as multiple gifts? The Talmud assumes that some of the “gifts” are going to have to be returned to the creditor — but which?
The sages taught: If a person on his deathbed said: “Give 200 dinars to So-and-so, and 300 to So-and-so, and 400 to So-and-so,” one does not say that whoever appears first in the deed acquires first. Therefore, if a promissory note emerged against the giver’s estate, he collects from all of them.
The rabbis imagine a situation where a dying person verbally gives multiple gifts to different people who then, presumably, take what they’ve been given. After the person’s death, however, a creditor appears claiming that they are owed part of the estate. Lacking specification otherwise, they are treated as simultaneous gifts, and the creditor takes a portion of each for repayment.
Of course, the dying person did not actually verbally give the gifts simultaneously — that’s not how human speech works — but the rabbis recognize that as their intention. However, it’s possible the dying person used different language:
But if he said: “Give 200 dinars to So-and-so, and after him, to so-and-so, and after him, to so-and-so,” then one says: Anyone who appears first in the deed gains. Therefore, if a promissory note emerged against the estate, he collects from the last recipient. If he does not have enough, he collects from the penultimate. If he does not have enough, he collects from the one before that.
Here, the dying person’s language clearly specifies an order in which the gifts should be disbursed. In this case, the creditor can only collect in reverse order of the gifts — from that which was given last to first. The logic here is that the estate shrunk in pieces, and the creditor collects from the final pieces that existed before the owner’s death.
Today’s daf demonstrates the breadth and self-imposed limit of rabbinic creativity. The rabbis effectively circumvent the system of biblical inheritance, but they do not allow this new system to undermine people’s ability to borrow and lend money. After all, if you could cancel debt just by giving away all your money at death, who would ever lend you money? And if no one is willing to lend money, many will not be able to find the necessary capital to go to school, start a new business or build or buy a home.
So while the rabbis are willing to create an alternative to biblical inheritance law, they are careful about how much they dismantle, and ensure that creditors can still collect what they are owed — legally and systematically.
Read all of Bava Batra 138 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 10, 2024. If you are interested in receiving the newsletter, sign up here.
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