בבא בתרא דף קלז ע"ב

If he could not fulfil his obligation with it, for what purpose did he give it to him?^[1]

דאי מיפק לא נפיק - For Rebbi, for what purpose did he give it to the first? For it has no other fruits, and he cannot sell or eat its body; it was given to the first only to fulfil with it the mitzvah of taking, and “for yourselves” applies to it^[2], since the second has no power over it as long as it is fit for this first one to fulfil his obligation with it, for he said “after you.” It is unlike the esrog of partners, with which one does not fulfil the obligation, as below, for there they are all partners together; but here he is not bound to the second at all for all the days of the first one’s life.

Rather, as to fulfilling the obligation, all agree that he fulfils it with it; if he sold it or ate it, we come to the dispute of Rebbi and Rabban Shimon ben Gamliel.

מכרה או שאכלה - For according to Rebbi he must pay the value of the esrog to the second, and according to Rabban Shimon the second has only what the first left over. He comes to teach that just as they disagree about land, they disagree about an esrog: according to Rebbi the first may go and sell it in order to fulfil his obligation with it, since he gave it to him for its fruits, and that is its “fruits”; and according to Rabban Shimon he has, at the outset, only the use of its fruits, which is fulfilling his obligation with it, and if he sold it, it is sold. And because one might have thought it is sold since even Rebbi agrees that he gave the body to the first, there being no fruits, he teaches us that taking it and fulfilling the obligation with it is the “fruits” he gave to the first, and the body he gave to the second.

Rabbah bar Rav Huna said: Brothers who bought an esrog from the joint estate^[3], and one of them took it and fulfilled his obligation with it – if he is able to eat it, he has fulfilled it; and if not, he has not fulfilled it.

שקנו אתרוג - They inherited it from their father, or bought it with money of their father’s inheritance, in the joint estate, as long as they have not divided; and one of the brothers took it without the other’s knowledge and fulfilled his obligation with it. We look: if the brothers are not particular with one another, and he could eat it without their permission – for example, there are many esrogim in the joint estate, or many esrogim can be found in the town, or they have already fulfilled their obligation and no longer need it.

יצא - For “for yourselves” applies to it, since it is entirely his.

ואם לאו לא יצא - For it is written (Vayikra 23), “And you shall take for yourselves” – from your own, that it be entirely his and not partly his. Although we expound in Shechitas Chullin, in Perek Reishis HaGez (Chullin 135b–136a), “your garments, your doughs, your terumos” to include a garment of partners, dough of partners and grain of partners, which are obligated in tzitzis, challah and terumah – so too here, had it been written “the fruit of a beautiful tree of yours,” even one of a partnership would do; but since it is written “for yourselves,” it must be entirely his. And the reason it is not written “and you shall take for yourself” is to expound from it that the taking must be by each and every one, as we expound in Maseches Sukkah (41b) and in Toras Kohanim. And our custom, that the whole congregation makes the blessing on one esrog: our intention agrees that each one gives his share to the other as a gift, as we say regarding Rabban Gamliel and Rabbi Yehoshua in Maseches Sukkah (there); and although he did not state it, it is as if he stated it, for it is no worse than a gift on condition of return, since for this at least the intention of the whole congregation is the same: that it be given to each one until he has made the blessing on it, and afterwards he returns it. And this is on the first day of Yom Tov; but on the second day of Yom Tov^[4] we say, “since one fulfils the obligation with a borrowed one, one fulfils it with a stolen one.” And what is written in the books, “and this applies specifically to an esrog, but a quince or a pomegranate – no,” is a lengthening of explanation by fools and is not from the Gemara; so it appears to me, and it is correct.

And this applies specifically where there is an esrog for each and every one; but a quince or a pomegranate – no.

Rava said: “This esrog is given to you as a gift on condition that you return it to me” – he took it and fulfilled his obligation with it: if he returned it, he has fulfilled it; if he did not return it, he has not fulfilled it.^[5]

החזירו יצא - It is revealed retroactively that it was a gift from the start, for he has now fulfilled the condition; the gift was dependent on a condition, and it was fulfilled.

ואם לאו - But if he sold it or ate it, he has not fulfilled his obligation, for it is revealed that it was not a gift. And although regarding gittin we hold like Rabbi Meir, who requires a doubled condition^[6], as it says in Perek Mi She’achazo (Gittin 75b), “Shmuel instituted in the get of a dangerously ill man…” – that applies to gittin and kiddushin, where we require a doubled condition at the outset for good measure, since we learn it from the condition of Bnei Gad and Bnei Reuven; but in monetary law we do not require a doubled condition, only a revelation of intent. Since he said “on condition that you return it to me,” although he did not double it by saying “and if you do not return it, it shall not be a gift,” even so it is not a gift unless the condition is fulfilled. For even where he stated nothing at all and one can rely on an assessment of his intent, we follow the assessment of his intent, in our perek above regarding many laws, such as one who writes his property over to his wife (131b), and later in Perek Mi Shemeis (148b) regarding a dangerously ill man who wrote all his property over to others, and regarding one who heard that his son had died and wrote his property over to others and afterwards his son came, where it says in Perek Mi Shemeis (below 146b) that it is not a gift.

He teaches us that a gift on condition that it be returned is called a gift.

A certain woman had a date palm on the land of Rav Bibi bar Abaye. Whenever she went to cut its fruit, he was annoyed with her.

She transferred it to him for all the years of his life.

אקניתיה ניהליה כל ימי חייו - Of Rav Bibi; and after him it returns to her and to her heirs.

He went and transferred it to his young son.

אקנייה לבנו קטן - Like Rabban Shimon, who said the second has only what the first left over. And although Rabban Shimon forbade it at the outset, that is when the giver told him “after you to so-and-so,” where we require that something be left for that so-and-so after him; but this woman, since she gave it to him entirely for all the days of his life and did not specify that after him it go to another person, but only to herself, intended it for Rav Bibi’s peace of mind – even to give it at the outset to whomever he wishes. And the reason he transferred it to his young son is so that the woman could not go back and buy it from him; or else, because the son relies on his table, Rav Bibi would eat the fruits in place of his son’s support. And it appears to me that the reading is not “to his young son” but simply “to his son,” and so Rabbeinu Chananel wrote in his commentary; and because the scribes were used to writing it so in the Gemara elsewhere, they wrote it here too.

Rav Huna the son of Rav Yehoshua said: Because you come from Mamla^[7], you say cut-off words?

ממולאי - As it says in Rosh Hashanah (18a; see there): Rava and Abaye came from the house of Eli; and after their place the descendants of Eli were called “from Mamla,” as it says in Bereishis Rabbah at the beginning of parashah 59: “And Avraham was old” – “a crown of glory is old age…” – Rabbi Meir went to Mamla and saw that they were all black-haired. He said to them: Perhaps you are of the family of Eli, of whom it is written, “and all the increase of your house shall die as men”? They said: Rabbi, pray for us. He said to them: Go and busy yourselves with charity, and you will merit old age, etc. And so it says in Rosh Hashanah (there): “If the sin of the house of Eli will be atoned for with sacrifice and offering” – with sacrifice and offering it is not atoned for, but it is atoned for with Torah and acts of kindness.

אמריתו מילי מוליאתא - Cut-off words that have no substance, from the expression “his harvest shall be cut off” (Iyov 18); alternatively, as in “a mound against a mound” in Chezkas HaBatim (above 54a) – bumps, that is, blemished words. And he disparages them after the name of their place, as it is written, “the houses of Achziv shall be a deception, and Ekron shall be uprooted” (Michah 1).

Even Rabban Shimon ben Gamliel said it only where it passes to another; but to himself – no.^[8]

אפי' רבן שמעון לא קאמר - That what the first sold is sold – except when he said “my property to you, and after you to another”; but when he said “and after you to myself,” like this woman, who transferred it to you only for the days of your life and wants it to return to her after you – even Rabban Shimon ben Gamliel agrees that she transferred to you only the fruits, and what you transferred to your son accomplished nothing except for the fruits all the days of your life.

Rava said in the name of Rav Nachman: “This ox is given to you as a gift on condition that you return it to me” – if he consecrated it^[9] and returned it, it is consecrated and returned.

אמר רבא אמר רב נחמן שור זה כו' - It appears to me that the reading has this before the incident of Rav Bibi, for it resembles the statement of Rava, “This esrog is given to you as a gift on condition that you return it to me”: “this ox is given to you as a gift” until such-and-such a time, to do your work with it.

על מנת שתחזירהו לי - After the time.

הרי זה מוקדש ומוחזר - That is, it is consecrated, because it has been returned and the condition was fulfilled, for it is revealed that it was a gift retroactively. And it appears to me that if it died within the time, he is exempt from paying, for he was not a borrower to be liable for accidents^[10], nor even a guardian to be liable for theft and loss; he is a recipient of a gift, and is liable only for negligence.

Rava said to Rav Nachman: What has he returned?

מאי אהדריה - He told him “on condition that you return it to me” – that its return be to himself; but once he consecrated it, this is only a return to hekdesh.

He said to him: And what has he lacked?

Rather, Rav Ashi said: We look: if he said to him, “on condition that you return it,” he has returned it. If he said to him, “on condition that you return it to me,” he meant something that is fit for him.

Rav Yehudah said in the name of Shmuel: One who writes his property over to another, and the other said, “I do not want it” – he acquires it, and even if he stands and protests.^[11]

ה"ג הכותב נכסיו לאחר - This is the reading: “one who writes his property over to another” – and the reading does not have “all.”

קנה ואפי' עומד וצווח - “I do not want this gift”; and the reason is explained below.

And Rabbi Yochanan said: He does not acquire it.

Rabbi Abba bar Memel said: And they do not disagree;

אבל פריש או רמון לא - The Kuntres (here, the Rashbam) explains that we do not have this reading. One can explain it, with difficulty: specifically when the giver has an esrog besides the one the recipient of the gift took, he is not particular if the other eats the esrog; but if the giver has only a quince or a pomegranate, he does not fulfil his obligation, for presumably he will be particular if the other eats the esrog. And it is difficult.

לא החזירו לא יצא - And if you ask: why does he not fulfil his obligation even when he doubled the condition? For this is a condition and an act in one thing^[12], and that is not like the condition of Bnei Gad and Bnei Reuven, as we say in Mi She’achazo (Gittin 75, and there): “This is your get, and the paper is mine” – she is not divorced; “on condition that the paper is mine” – she is divorced. And it asks: what is the difference between the first clause and the last? Rava said: Because the act comes before the condition, therefore the condition is void and she is divorced. And Rav Adda bar Ahavah challenges: the reason is that the act comes before the condition – but otherwise not? Now, all conditions we learn from the condition of Bnei Gad and Bnei Reuven; just as there it was not a condition and an act in one thing, etc. Rather, Rav Adda bar Ahavah said: because it is a condition and an act in one thing. However, one can say that Rava here holds that we do not require that the condition and the act not be in one thing, for there too he does not require it. Alternatively, Rav Adda holds that whoever says “on condition” is not as one who says “from now,” and therefore it is an act and a condition in one thing, since he divorces her only when she returns the paper to him – and how can she be divorced when the get is in his hand? Therefore it is an act and a condition in one thing and does not count as a condition. But Rava holds that whoever says “on condition” is as one who says “from now,” and it is not a condition and an act in one thing; the act and the condition can both be fulfilled, and she is divorced at once and afterwards fulfils the condition. Alternatively, there it follows Rabbi Meir and here it follows the Rabbanan.

Notes

1. 1. The Mishnah (136a) records a dispute about one who says “my property is yours, and after you it goes to so-and-so.” Rebbi holds the first recipient has only the fruits (the use) and may not sell; Rabban Shimon ben Gamliel holds that if the first sold it, the sale stands. The Gemara applies this to an esrog given in those words.
2. 2. On the first day of Sukkos the Torah says “and you shall take for yourselves” (Vayikra 23:40): the four species must belong to the one who takes them. A borrowed esrog, or one owned jointly, does not fulfil the mitzvah.
3. 3. Tefusas habayis: the estate the heirs have not yet divided. Until division the brothers own it jointly, so no single brother owns a whole esrog of his own.
4. 4. The second day of Yom Tov kept outside Eretz Yisrael is rabbinic. The Torah requirement of “for yourselves” therefore does not apply, and a borrowed esrog suffices.
5. 5. A borrowed esrog does not fulfil the first-day mitzvah, so the esrog must be given as a gift. Rava teaches that a gift on condition of return is a real gift, as long as the condition is kept.
6. 6. A doubled condition (tenai kaful) spells out both sides: “if you do this, it takes effect; if not, it does not.” It is learned from Moshe’s condition with the tribes of Gad and Reuven (Bamidbar 32:29–30).
7. 7. Mamla was a place whose people descended from Eli the Kohen, whose house was cursed that its men would die young. Rav Huna plays on the name: מילי מוליאתא, “cut-off words.”
8. 8. Rabban Shimon ben Gamliel let the first recipient’s sale stand only where the giver named another person to receive it next. Where it is to come back to the giver herself, the recipient has only the fruits, so Rav Bibi could not give the tree itself to his son.
9. 9. Consecrating (hekdesh) makes the animal Temple property; it no longer belongs to an ordinary person.
10. 10. The levels of liability for another’s property: a borrower pays even for accidents, a paid guardian pays for theft and loss, and an unpaid guardian only for negligence. The Rashbam rules that the recipient of a conditional gift is none of these, and pays only for negligence.
11. 11. Shmuel holds the gift takes effect even though the recipient protests that he does not want it. The reason, and how the two views are reconciled, is explained on the next page.
12. 12. A “condition and act in one thing” is a condition that concerns the very object of the act (here, the get paper). Such a condition is not like that of Gad and Reuven and is void. “Whoever says ‘on condition’ is as one who says ‘from now’” means the act takes effect at once and the condition is fulfilled afterwards.