Bava Basra 149 - 155 - Issue #58
13 - 19 Adar Sheini 5755 / 15 -21 March 1995

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Deathbed Decisions

The Rule:	A man who makes a deathbed bequest of all his possessions and subsequently recovers can retract his gift because it is obvious that he intended giving away everything he owned only because he expected to die.
The Issue:	What if he sold all his possessions on his deathbed and subsequently recovered - can he back out of the deal? This question was put to Rabbi Yehuda. On one occasion he quoted his teacher, the Sage Rav, as ruling that he could not back out. On another occasion he quoted him as ruling that he could.
The Problem:	How do we reconcile these apparently conflicting rulings?
The Solution:	We examine what the seller did with the funds he received from the sale. If he kept them in his possession it is an indication that his sale was entirely conditional on his death and he therefore wished to have the money available to refund the buyer. But if we find that he used those funds to pay his debts it indicates that he intended the sale to be final regardless of whether he lived or died and he therefore cannot back out.

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The Rule:	Reuven declares that he is giving all his possessions to Shimon. The gift is an irrevocable one because he makes the necessary kinyan for transferring ownership. The question is only what is considered to be included in the term "possessions"? Proofs are presented that land, money, slaves, clothes, animals and even tefillin come under the definition of possessions and are included in the gift. The only object which remains a matter of doubt is a Sefer Torah.
The Questions:	Possession implies not only ownership but the ability to sell. On the one hand a Sefer Torah may not be sold as freely as other belongings and therefore should not come under the title of possessions. On the other hand a Sefer Torah may be sold if its proceeds are needed for the fulfillment of the important mitzvah of studying Torah or getting married. Perhaps even this limited range of freedom to sell qualifies a Sefer Torah to be considered a possession and included in his gift.
The Resolution:	The issue remains unresolved. Shimon can therefore not present a legal claim to Reuven's Sefer Torah, but if he took possession of this disputed "possession" we do not take it away from him.

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General Editor: Rabbi Moshe Newman
Production Design: Lev Seltzer
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