BAVA BASRA 151 (28 Sivan) - dedicated to the memory of Hagaon Rav Yisroel Zev (ben Rav Avrohom Tzvi) Gustman, ZT'L, Rosh Yeshiva of "Yeshivas Netzach Yisrael-Ramailes" (in Vilna, Brooklyn, and then Yerushalayim), author of Kuntresei Shi'urim, and renowned Dayan in pre-war and post-war Vilna, on the day of his Yahrzeit. Dedicated by Harav Eliezer Stern of Brooklyn NY, and Michoel Starr of Yerushalayim, who merited to learn from Rav Gustman in Yerushalayim.
1) HALACHAH: IS A SEFER TORAH INCLUDED IN "PROPERTY"?
QUESTION: The Gemara asks whether a person includes his Sefer Torah when he sells or gives away his "property" ("Nechasim"). On one hand, it is generally forbidden to sell a Sefer Torah, and therefore perhaps a Sefer Torah is not included in the term "property." On the other hand, it is sometimes permissible to sell a Sefer Torah, such as in order to have funds to learn Torah or to get married (Megilah 27a), and thus perhaps it is included in a sale of one's "property." The Gemara leaves this question unanswered and concludes with "Teiku."
The BACH emends the Girsa and omits the two sides of the question (while leaving the question itself). Indeed, this is the text in all of the manuscripts of the Gemara as the DIKDUKEI SOFRIM points out, and it seems that most of the Rishonim, too, do not have the two sides of the question in their texts of the Gemara.
According to that Girsa, what is the Gemara's question? Why should a Sefer Torah not be included in the rest of a person's "Nechasim"?
(a) TOSFOS answers that although a Sefer Torah is acquired in the same manner as all other objects, it cannot be called a "possession" like all other items which one may sell as he pleases, since one is prohibited from selling a Sefer Torah (except for the reasons mentioned in Megilah 27a). The CHASAM SOFER (Teshuvos CM 143) explains that although there are also limitations on the sale of Tefilin, Tefilin nevertheless are included in "Nechasim" because they are called a "Malbush" (an article of clothing), and articles of clothing are called "Nechasim." A Sefer Torah, in contrast, cannot be sold and has no uses similar to other items that a person owns. Therefore, it is possible that a Sefer Torah is not called "Nechasim."
(b) The NIMUKEI YOSEF explains that it is possible that a Sefer Torah is not called "Nechasim" due to its importance. The term "Nechasim" refers to ordinary, mundane possessions, and it is not appropriate for such a term to be used to refer to a Sefer Torah. The CHASAM SOFER (ibid.) suggests that this is also the opinion of the RASHBA who adds that the same question applies to one who gives away his "Metaltelin" (movable objects).
The Chasam Sofer points out a practical difference between the explanation of Tosfos and that of the Nimukei Yosef. According to Tosfos, a Sefer Torah certainly is included in the term "Metaltelin," since it is movable. The Gemara has a doubt only with regard to the term "Nechasim," which refers to possessions that have monetary value. According to the Nimukei Yosef, the Gemara's doubt applies even to the term "Metaltelin," because a Sefer Torah, due to its importance, may not be included in any ordinary terms that are used to refer to a person's belongings. The NODA B'YEHUDAH (Teshuvos CM 43) comments that this is also the opinion of the RASHBAM. (However, according to the Chasam Sofer's explanation of Tosfos, the Rashbam might understand the Gemara like Tosfos.)
HALACHAH: The SHULCAN ARUCH (CM 248:11) writes that since the Gemara leaves this question unresolved, when a person gives away his "Nechasim" Beis Din must rule, out of doubt, that a Sefer Torah is not included. If, however, the recipient of the gift seizes the Sefer Torah, the original owner cannot recover it from him (see BI'UR HA'GRA). The ARUCH HA'SHULCHAN rules that a Sefer Torah is included in "Metaltelin." This is unlike the opinion of the Rashba cited by the Chasam Sofer who says that the term "Metaltelin" is included in the Gemara's Safek. (Y. MONTROSE)
2) THE GIFT OF THE MOTHER OF RAV AMRAM CHASIDA
QUESTION: The Gemara relates that Rav Amram Chasida's mother had many documents attesting to various loans that were owed to her. On her deathbed, she gave instructions that they should all be given to Rav Amram as a gift. After her death, Rav Amram's brothers came before Rav Nachman and disputed his ownership of the debts on the grounds that he never made a proper act of Kinyan on the documents. Rav Nachman upheld Rav Amram's ownership based on the principle of "Divrei Shechiv Mera k'Chesuvin uche'Mesurin Dami" -- "the words of a Shechiv Mera are as if they are written and given over."
Why did Rav Nachman need to give this reason for his ruling? The Halachah follows the view of Rebbi Yochanan ben Berokah (130a) who states that even without the special law of "Divrei Shechiv Mera," a person may transfer an inheritance to a specific individual who is otherwise fit to inherit him. Why did Rav Nachman not simply base his ruling on Rebbi Yochanan ben Berokah's principle?
(a) The KOVETZ SHI'URIM explains that Rebbi Yochanan ben Berokah's ruling applies only to an inheritance from a father and not to an inheritance from a mother. This is based on the verse which Rebbi Yochanan ben Berokah cites as his source which states, "And it shall be on the day that he bequeaths to his sons that which he has..." (Devarim 21:16). Since the verse is conjugated in the masculine form, the Halachah that it conveys seems to apply specifically to a male.
However, the Kovetz Shi'urim says that this approach is difficult, because Rebbi Yochanan ben Berokah's principle (which he learns from this verse) applies to all potential heirs, even though the context of the verse deals specifically with a firstborn son.
(b) The AYELES HA'SHACHAR explains that there is a complex question in general as to whether Rebbi Yochanan ben Berokah's principle applies to property which is considered a "Davar she'Lo Ba l'Olam," according to the opinion (which is the Halachah) that a normal Kinyan cannot be made on a "Davar she'Lo Ba l'Olam." It is possible that Rebbi Yochanan ben Berokah's principle cannot be used to bequeath an object that has not yet come into the world (or into the benefactor's possession), since his principle is merely a mechanism which enables a normal Kinyan to take effect on an object when otherwise one would not have been permitted to transfer ownership of that item. His principle, however, cannot enhance the status of an object that is inherently not subject to a Kinyan. Consequently, according to the opinion that a loan document is considered a "Davar she'Lo Ba l'Olam" (and therefore cannot be sold according to the Torah), the transfer of ownership of a loan document to one's heir is not a valid transaction according to Torah law. Even with regard to whether it works mid'Rabanan, there might be a doubt as to whether the Rabanan permitted such a form of transfer of ownership (a "gift inheritance") of a "Davar she'Lo Ba l'Olam." Therefore, when Rav Nachman permitted Rav Amram to keep the loan documents from his mother, he based his ruling on the obvious and indisputable principle of "Divrei Shechiv Mera" and not on the questionable application of Rebbi Yochanan ben Berokah's principle. (Y. MONTROSE)