Bartenura on Mishnah Bava Batra

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9.1.1
מי שמת. שהנכסים מרובים – in order that the sons will be supported and the daughters until they become adults (i.e., the age of twelve and one-half years – or until they are married, after which the balance of the estate goes to the sons).
9.1.2
שהנכסים מועטים – and they don’t have a measure like this.
9.1.3
בשביל שאני זכר הפסדתי – in astonishment. Burt rather, I will not lose out and all of us will be supported together. But the Halakha is not according to Admon. The put the widow with the daughter when the property is small, like a daughter with the brothers. Just as the daughter is with the brothers, the daughter is supported whereas the sons go begging at the doors. Even the widow is with the daughter. The widow receives support and the daughter goes begging at the doors.
9.2.1
וטומטום – doubtfully a male and doubtfully a female.
9.2.2
הזכרין דוחין אותו אצל הנקבות – for they say to him, bring proof that you are a male and take [your portion].
9.2.3
הנקבות דוחים אותו אצל הזכרים – as they say to hm, bring proof that you are a female and you will be supported with us.
9.2.4
ילדה זכר נוטל מנה – and even though we hold that one who makes an assignment to a fetus did not acquire it, here we are dealing with someone on his deathbed who made an assignment to his son, he acquired it, for the temperament of a person is closest with his son.
9.2.5
ילדה זכר ונקבה – twins together.
9.2.6
ילדה טומטום אינו נוטל – this Mishnah is superseded and the Halakha is that a person of indeterminate sex takes the least of the two of them.
9.2.7
יורש את הכל – so that you don’t say that this is a creature of its own kind, and not worthy of inheritance. This comes to teach us that this is not the case.
9.3.1
השביחו גדולים את הנכסים – while they are still belonging to the estate (before division among heirs).
9.3.2
השביחו לאמצע – and these words refer, when they improved the estate on account of the estate themselves, for they didn’t take out anything of their own, but only from the estate of their father, they hired workers. And they improved the estate on account of themselves. But if they dug and planted and spent their own money, the improvements they made, they made for themselves.
9.3.3
וכן אשה שהשביחה – In the Gemara (Tractate Bava Batra 144a) we establish it with a woman inheriting such as the case of Reuven who married the daughter of Shimon, his brother. But alas, he died without having any children. And the daughters of Shimon, his brother, inherit him. It is found that his wife, who is the daughter of Shimon, his brother, inherits him with the rest of her sisters. And you might say that with this benefit that she derives due to the emerging rumor that she manages [her husband’s property] and improves it, even if she had said, “see what my husband left me etc.,” even so, she renounced it and wants to improve it for the common fund/estate (and divide the profit equally). But it comes to teach it that she improved it for herself.
9.4.1
שנפל אחד [מהן] לאומנות – to the service of the king, for it is the custom of the king to appoint from all the houses of the city one person [to serve] as custom-collector/publican for one month or two months.
9.4.2
נפל לאמצע – all the profit, because it was on account of his father that it came time, but if was on his account, because of his sharpness and importance and wisdom that he was taken into the service of he king, what he earned, the profit is for himself.
9.4.3
חלה ונתרפא – if he became sick by accident, meaning to say, that he was not negligent with himself and he is cured from the estate, but if he got sick from blowing cold winds/cold draughts, and similar things, and it is written concerning it (Proverbs 22:5): “Thorns and snares are in the path of the crooked; [He who values his life will keep far from them],” in this we state in our Mishnah that he is not healed other than from what is his.
9.4.4
שושבינות – it is the manner of wedding gifts (see Talmud Bava Batra 144b) that one takes a meal and a gift to the wedding and eats with him, and the other returns and does the same for that one when he marries a woman. But if the father sent the wedding gift undefined via the hand of one of his sons, and the wedding gift returned after that following the death of the father, it returned to the estate, because it is like a loan, for it can be collected in the Jewish court of law, For a person who brings a wedding gift to his friend can go back and claim the wedding gift from him in a Jewish court, that he should give him the wedding gift in the manner that he had given it to him. And it will be that the second marriage should be like the first marriage: if she is a virgin, she is a virgin, if she is a widow, she will be a widow, and if in public, it will be in public, and if it is private, it will be in private, for the second can say to the first, “I will not do with you other than in the manner that you did for me.”
9.4.5
אבל השולח לחבירו כדי יין וכדי שמן – without a wedding, or alternatively, at a wedding, and he doesn’t go to eat with him, this is not wedding gifts, but rather a [personal] gift, and they are not collected in the Jewish court.
9.5.1
השולח סבלונות – it is the custom of grows on the morrow of the betrothal that they send to the house of the betrothed ornaments and kinds of precious goods and pitchers of wine and pitchers of oil, and sometimes, the groom goes to eat there.
9.5.2
אינן נגבין – if he (i.e., the groom) dies or she (i.e., the bride) dies, or he comes to divorce her, for on account of his love and joy of eating he pardoned, and especially when he at a Denar’s worth, but if he at less than a Denar, he did not pardon and he collects the nuptial gifts.
9.5.3
שלח סבלונות מרובים – and even a little, if he explained that on the connection that they come with her, to the house of her husband, then these are collected. But it is the way of things that [the Mishnah] took that it is the manner of nuptial gifts that they send them in order that they will come to the house of the husband, to be many. And those which they send in order that she can adorn herself with them in the house of her father, it is the manner to be few.
9.6.1
ושייר קרקע כל שהוא – (see Tractate Peah, Chapter 3, Mishnah 7 for a similar statement at the beginning of the Mishnah) and the same law applies if he left to himself movable, his gift is a gift. But if he stood and doesn’t return and he who acquired something from him on this same gift, as the gift of someone on their deathbed for a portion, requires acquisition, whether standing or not standing. But if he did not acquire it from his hand, the recipient did not acquire the gift, even if the person on his deathbed died. And especially, if he came to transfer/give possession the gift while living. But if he said: “Give to so-and-so this and that after his death,” he doesn’t require acquisition even if he left something to himself. And a person on his deathbed who came to give a a gift while living, if he did not leave anything to himself and stood, it goes back and even if they acquired it from his hand. It is a Mitzvah on account of death that he heard him when he said: “Woe is he who dies.” It (i.e., the gift) always returns [to its owner] whether he left [something to himself] or he did not leave [something to himself], and even if they acquired it from his hand. But if he died, the recipient acquired the gift, and even without acquisition.
9.6.2
לא כתב שכיב מרע – a pitcher of harvest and throws it into his bier, and even if it is not the language of gift of a healthy individual when he walked in the marketplace on his feet and didn’t leave anything.
9.6.3
הוא אומר שכיב מרע הייתי – and I have retracted, but the other says: “You were healthy and you cannot retract, he has to bring proof that he was on his deathbed, since after the present we follow, since presently, he is healthy. It is upon him to bring proof that he was on his deathbed at the time of the gift.
9.6.5
וחכמים אומרים – we don’t follow after the present but we say: “the claimant must produce evidence” (see Tractate Bava Kamma, Chapter 3, Mishnah 11 as well as the last line of our Mishnah). And the recipient of a gift who comes to remove it from the hand of the giver who is in possession of it, he must bring proof and witnesses that he (i.e., the giver) was healthy at that time, and the Halakha is according to the Sages.
9.7.1
ר' אליעזר אומר אחד בריא ואחד מסוכן – Rabbi Eliezer does not hold by [the statement] that the words of a person on his deathbed are as if they are written and transmitted, and even if one issues directives due to [his imminent] death, he holds that his gift is not a gift, other than through an acquisition, like the gift of a health individual. But the Halakha is not according to Rabbi Eliezer.
9.7.2
כבינתי – it is the Aramaic translation of a brooch of hammered metal.
9.7.3
תקברם אמם – meaning to say, they don’t bring a proof from them because they were wicked, and the Rabbis fined the sons to fulfill for the daughter the gift of their mother, even though it was not according to the law.
9.7.4
אבל לא החול – if the person on his deathbed distributed his possessions on a weekday.
9.7.5
קל וחומה בחול – and such is the Halakha, that whether it is a weekday or Shabbat, the words of a person on his deathbed are as if hey are written and transmitted, and there is no need for an acquisition. But if he asked tha they should acquire it from his hand, they acquire it from it, whether on weekdays or on Shabbat in order that his mind should not be troubled by it.
9.8.1
יורשי האב אומרים הבן מת ראשון – and the creditor cannot collect from these properties for the son never took possession of them.
9.8.2
ובעלי החוב אומרים האב מת ראשון – and the properties fell one hour before the son and they are mortgaged to the marriage contract of his wife and the creditors.
9.8.3
בית שמאי אומרים יחלוקו – the School of Shammai holds that the document that stands to be collected is considered as collected, and the inheritors of the father and the creditors, both of them are in possession. Therefore, they divide it.
9.8.4
ובית הלל אומרים – the property is in the possession of the inheritors and is seen as possessed, and the creditor comes to take it from their hands, and he has to bring proof that the father died first.
9.9.1
האשה מתה תחלה – and there is nothing for the inheritors of the wife, for the husband died last and inherited his wife.
9.9.2
נכסים בחזקתן – mort-main (i.e., wife’s estate held by her husband, which in case of her death or divorce he must restore “in specie,” being responsible with all his landed property for loss or deterioration) belongs to present occupants but the School of Hillel did not explain if it is in the possession of the inheritors of the wife which were hers or in the possession of the inheritors of the husband for their responsibility is upon him. Therefore, the mort-main is to be divided.
9.9.3
וכתובת אשה – which are a Maneh (= 100 silver denars) or two hundred (denars) and a supplement which remain in the possession of the inheritors of the husband.
9.9.4
ונכסים הנכנסים והיוצאים עמה – these are the usufruct (i.e., the wife’s estate of which the husband has the fruition without responsibility for loss or deterioration) for at the time that she enters [into marriage], they enter with her, and if they lessened, they lessen for her, and if they increased, they increased for her, it is found that the inheritors of the wife take all the usufruct and half of the mort-main.
9.10.1
נפל הבית עליו ועל אמו – and she has no other son other than this one. The inheritors of the son say that the woman died first and the son inherited her property and we inherit the son. But the inheritors of the woman from the family of the house of her father state that the son died first and that we inherit the woman.
9.10.2
אלו ואלו מודים [ – The School of Shammai and the School of Hillel [agree] that they should divide it. But this is not like the case where the house fell upon him and his wife. For in that case, there are two types of property. There is what the husband is in possession of and there is what the wife is in possession of, but here, everything is in the possession of the woman/wife since she was a widow. And both come from the power of inheritance to inherit everything. Therefore, it is divided.
9.10.3
מודה אני בזה – for according to the words of the School of Hillel, we say that is so that the property is left in the hands of the possessors, in the possession of her inheritors from the father’s side, for during her lifetime, once her husband died she is a connected through the tribe of her father. And her monies also during her lifetime are in the possession of her father’s tribe. Therefore, her inheritors from the father’s side inherit her, and the Halakha is according to Rabbi Akiba.
9.10.4
על חלוקין אנו מצטערין – meaning to say, on the disagreement above of the Schools of Shammai and Hillel. We are saddened that they didn’t come to agreement and you say that also with this they are divided. And you came to dispute on the first Tanna/teacher, that they are both equivalent.
10.1.1
גט פשוט – a plain document similar to ours which are not sewn or folded; and every document is called a Get.
10.1.2
עדיו מתוכו – from the inside, similar to ours that we make.
10.1.3
מקושר מאחוריו – he (i.e., the scribe) writes one line or two and wraps them on the blank part and sews it. And one witnesses inscribes on the wrapping from the outside, and he (i.e., the scribe) goes back and writes two lines from the inside and wraps them on the blank part and the second witnesses inscribes on the wrapping from the outside. And similarly, the third witness. But the Rabbis established a folded document because of stringent Kohanim, because they would write a bill-of-divorcement suddenly to their wives and then regret it and they wouldn’t be able to restore them (i.e., because a Kohen cannot marry a divorced woman – see Leviticus 21:7), and the Rabbis ordained for them a folded bill-of-divorcement which is not easy to write quickly, lest in the midst of it, he is pacified. And just as they ordained/instituted a folded document for a Get, so they instituted for other documents that the Sages did not disagree with.
10.1.4
שניהם פסולין – for they did not act as the Sages ordained.
10.1.5
שיכול לעשותו פשוט – for if the seams would tear and the Get would open, it would be a plain document.
10.1.6
רשב"ג אומר הכל כמנההג המדינה – there is a dispute between Rabban Shimon ben Gamaliel and the Rabbis in a place where there is the practice of [both] a plain document and a folded document. If someone said to him: “Make for me a folded [document]” and he went and he made for him an ordinary document, or “Make for me an ordinary document” and he made for him a folded document, the first Tanna/teacher [of the Mishnah] holds that he is particular, and it is unfit. But Rabban Shimon ben Gamaliel holds that since with both (i.e., the plain document and folded document), it [depends upon] local custom, he is not strict and it is appropriate/fit, but the Halakha is according to the first Tanna/teacher [of the Mishnah] (see Talmud Bava Batra 165a).
10.2.1
פשוט שכתוב בו עד אחד – this is what he said: just as when a plain document in which only one witness is written in it is unfit from the Torah, so also a folded document in which only two witnesses are written in it is also unfit from the Torah.
10.2.2
אין לו אלא עשרים – and even though [it states] one-hundred zuzim, they are twenty-five Selaim. The hand of the owner of the document is at a disadvantage. And this is how we interpret for him a document: one hundred inferior Zuzim are not worth other than twenty Selaim.
10.2.3
אין לי אלא מנה – twenty five Selaim, this is how we interpret it for a document: One hundred Zuzim which are thirty light and inferior Selaim, which are twenty-five from the good ones.
10.2.4
ונמחקו – the number that is written afterwards is erased.
10.2.5
ומלמטה מאתים – when he doubles his words in the document.
10.2.6
הכל הולך אחר התחתון – as long as it will not be written last in the document.
10.2.7
למה כותבין את העליון – for since at the end, the document repeats and states it again, and the responsibility of this money such-and-such I accepted upon myself (see Talmud Bava Batra 167b).
10.3.1
כותב גט לאיש – and [the witnesses] inscribe [their names], and he will divorce here when he desires, and even though his wife is not with him, for she is divorced against her will.
10.3.2
ושובר לאשה – which she does for her husband regarding her Jewish marriage settlement/Ketubah, for it is a liability for him to her, and is a benefit for her husband, as we obtain a privilege in behalf of a person in his absence (see Tractate Eruvin, Chapter 7, Mishnah 11).
10.3.3
ובלבד שיהא מכירן – that the scribe and the witnesses recognize/know the man and the woman [getting divorced]., whether with a Jewish bill of divorce or a receipt, for if they do not recognize them lest he write a Get/Jewish bill of divorce in the name of another married woman where his name is the same as the other man’s name, and she should take out that same Jewish bill of divorce where she is not divorced by it and similarly for the receipt.
10.3.4
והלוה נותן שכר – even if it is giving a person goods to trade with another (usually two shares of the profit going to the investor and one to the trader) where half of it is a loan and half of it is a deposit. Nevertheless, the person receiving the business pays the fee to the scribe (see Talmud Bava Batra 168a).
10.4.1
שטרי אריסות – the person who goes down to the land to work it and to guard it for one-half, one-third or one-fourth [of the profit].
10.4.2
קבלנות – for such-and-such Khorim per year, whether it produced or it didn’t produce.
10.4.3
שטרי בירורין – this one (i.e. litigant) chooses one judge who will judge for him and that one (i.e. litigant) chooses for himself one [judge] and they write in a document: “so-and-so chose judge so-and-so and his claims are this and that,” in order that they don’t retract and raise a complaint.
10.4.4
כותבים שנים – to each one of the litigants a separate document in which their claims are arranged in it, but the Halakha is not according to Rabban Shimon ben Gamaliel. But rather, they write one document containing the claims of each of the litigants and that so-and-so (i.e., the litigant) chose so-and-so as a judge that would adjudicate for him and so-and-so (i.e., the other litigant) chosen so-and-so as a judge that would adjudicate for him.
10.5.1
והשליש את שטרו – the lender and the borrower transferred the document to the hand of a third-party for it was a trouble for them to write a receipt and they relied upon the third party.
10.5.2
ר' יוסי אומר יתן – for he holds that Asmakhta (i.e., a promise to submit to a forfeiture of pledged property – or equivalent – without having received a sufficient consideration) is a valid legal transfer of property (see Talmud Bava Batra 168a). A person who promises t his fellow something on the condition that he will do something for him in the future, and he relies upon his intention at the time of the condition that he would be able to fulfill it. But when the time comes, he is not able to fulfill it. This is called Asmakhta. But with regard to the Jewish legal decision, Asmakhta does not acquire/gives no title, unless he acquired it from his hand in an important Jewish court. But he caused to take hold of his merits in the same Jewish court where he transferred his documents and his proofs, and he said: “if I don’t bring it from now until thirty days, my benefits will be voided. But my teachers/Rabbis explain that every Jewish court that are specialists and know the laws of Asmakhta are called an important Jewish court in this matter. But Maimonides says that there is no important Jewish court other than a Jewish court ordained in the Land of Israel.
10.6.1
מי שנמחק שטרו – and there were witnesses who saw when it was blotted out on its own, or smudged by water.
10.6.2
מעמיד עליו עדים – that know from when it was written and what was written in it, and they make for him an attestation before a Jewish court and they write for him everything that had been written in that document.
10.6.3
יחליף – he should tear the document and write another according to the remaining balance.
10.6.4
נמצא זה – the borrower needs to guard his receipt from the mice, for if he loses it, the creditor will collect all of his liability.
10.6.5
אמר רבי יוסי וכן יפה לו – to the creditor, for the borrower must guard his receipt and hurry to pay him back, and no harm will come to the creditor to write another document that had an advanced time for the liability [to be paid off] and that he returns now and he would not be able to seize the sold property unlawfully other than from the time of the second document. And the Halakha is according to Rabbi Yosi that we write a receipt.
10.7.1
קח לך עבדים – that they should warm up for you the bathhouse that it is like what our father left us, so it shall be forever, and even though that we have in the first chapter (Tractate Bava Batra, Chapter 1, Mishnayot 1 and 6), concerning something where there isn’t the law of division. One can say, “I will make a wall or I will divide it,” meaning to say, “sell me your part or I will sell [to you] my part. But it is different here because the poor person cannot say, “I will divide it” because he has nothing with which to buy.”
10.7.2
אינן יכולין להוציא שטר חוב זה על זה – because each one can claim that this document that is in your hands, I returned to you when I paid you repaid me the monies that I lent to you.
10.7.3
ולא אחד יכול להוציא שטר חוב עליהם – because each one can supersede him regarding his fellow.
10.7.4
ישלשו – he will write the name of his father’s father.
10.7.5
ואם היו משולשים – that their names and the names of their fathers and the names of their father’s fathers are the same.
10.7.6
יכתבו סימן – a certain [sign] that this is red-spotted or long or short and if their signs are the same, they should write, “Kohen,” if one is a Kohen and the other is an Israelite.
10.7.7
נמצא – to one borrower there two documents from two loans that he borrowed from him.
10.7.8
הקטן אינו פרוע – that one document among his documents is spoken of and not two.
10.7.9
לא יפרע מן הערב – first, until the borrower is brought to court, and the Jewish court makes him liable [to pay it off]; and if he doesn’t have wherewith to pay, then he can collect from the guarantor.
10.7.10
רבן שמעון בן גמליאל אומר אם יש נכסים ללוה – he should not collect payment from the guarantor, not from the fact that the first Tanna/teacher holds that even if the borrower has property, he should collect payment from the guarantor, but rather, because our Mishnah is deficient, and this is how it should be taught: A person who loans his fellow through a guarantor should not collect payment from the guarantor, but if he said, “on condition that I can collect payment from whomever I desire,” he can collect payment from the guarantor. When is this said? When the borrower lacks property, but if the borrower has property, he should collect payment from the guarantor, or from a person who assumes the other man’s obligations unconditionally (see Talmud Bava Batra 173b and 174a), even though the borrower has property, he should collect from the person who assumes the other man’s obligations unconditionally. Rabban Shimon ben Gamaliel says that both the guarantor and the man who assumes the other person’s obligations unconditionally are the same: if the borrower has property, he (i.e., the creditor) may not collect from them. But the Halakha is not according to Rabban Shimon ben Gamaliel. The guarantor is the person who says [to the creditor]: “Give him and I will be the guarantor [of your repayment].” The קבלן /the person who assumes the other person’s obligations unconditionally who says: “Give him, and I will give it to you.”
10.7.11
הערב לאשה בכתובתה – and the husband lacks property, and the guarantor needs to pay off her Ketubah/Jewish marriage contract [in event of the husband’s death or a divorce], he should not pay off the Ketubah until the husband first makes her take a vow against deriving any benefit with the knowledge/consent of the public a vow that cannot be revoked, that he cannot restore her [as his wife], for we suspect lest it is his intention to restore her [as his wife] and to consume her Jewish marriage contract settlement after she has collected her settlement from the guarantor and regarding law, the guarantor of a Ketubah is not mortgaged and he is not liable to pay it off [for the husband] and even if the husband lacks property. What is the reason that he has performed a Mitzvah and nothing is missing from it? But if he is mortgaged as a guarantor for the Ketubah of his son, a father regarding his son is himself personally mortgaged, but a קבלן/someone who unconditionally assumes the other man’s obligations when the Jewish marriage contract is mortgaged, the wife can claim the Ketubah from him (i.e., the קבלן ) at first, and even if the husband has property, but the husband forces her to take an vow against benefit first with the consent of the public.
10.8.1
המלוה את חבירו בשטר – even though it is not written [in the loan document] property which is pledged from which debts may eventually be collected (i.e., landed property), collects from mortgaged property for we hold that surety (i.e., mortgaged property) is a scribal error, if it had not been written in the [loan] document. It is considered as if it was written.
10.8.2
הוציא עליו כתב ידו שהוא חייב לו – and there is no other testimony there.
10.8.3
גובה מנכסים בני חורין – and not mortgaged [property], for since he has no witnesses, it has no voice, and they did not know about him that he had property in order that he had to be careful about.
10.8.4
אחר חיתום שטרות – after the witnesses signed the document, [the guarantor wrote]: “I so-and-so the son of so-and-so is the guarantor.”
10.8.5
גובה מן הערב – from free standing properties alone for since witnesses did not inscribe on the surety/guarantor, it is like a loan by mouth.
10.8.6
אמר ליה בן ננס וכו' – for he holds that every guarantor after the giving of the money is not a guarantor for it wasn’t on the faithfulness of the guarantor and the trust in him that the creditor made the loan to him (i.e., the borrower), and even though Rabbi Yishmael extolled Ben Nanos, the Halakha is according to Rabbi Yishmael for the guarantor after the giving of the money requires an acquisition, and if not, it is not mortgaged, for before the giving of the money, there is no need for an acquisition.

Bartenura on Mishnah, trans. by Rabbi Robert Alpert, 2020. Via Sefaria (sefaria.org), Sefaria-Export. Version source: http://sefaria.org Licence: CC-BY. Source.