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What Happens When a Dying Man Doesn’t Die

A question of morals for a loopy Coen-brothers script, in this week’s ‘Daf Yomi’ Talmud study

Adam Kirsch
June 27, 2017
Inset image: Wikimedia Commons
King Hezekiah on a 17th century painting by unknown artist in the choir of Sankta Maria kyrka in Åhus, Sweden.Inset image: Wikimedia Commons
Inset image: Wikimedia Commons
King Hezekiah on a 17th century painting by unknown artist in the choir of Sankta Maria kyrka in Åhus, Sweden.Inset image: Wikimedia Commons

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In its discussions of inheritance, the Talmud generally imagines a situation in which instructions are being given by a man already on his deathbed. As we have seen over the previous weeks of Daf Yomi reading, Torah law prescribes a certain order in which a man’s relatives inherit his property: first his sons, then his daughters, then his father, and so on. However, a testator can change this order, specifying that some or all of his property should go to a particular heir, provided that he makes the statement in the form of a gift rather than of an ordinary bequest. Such gifts can be made only to one who is fit to inherit in the first place—that is, a relative of some kind.

When a man who is dying makes such a gift, it is treated more leniently in certain legal respects than ordinary gifts made by healthy people. For instance, an ordinary gift must be physically acquired by the recipient in order to be legally valid; the mere expression of the donor’s desire to give does not affect the transfer. A dying man, however, may not live long enough to make sure such a transfer is carried out, so in his case, verbal instructions are considered legally effective. In Bava Batra 147b, Rav Nachman explains the justification for this rabbinic ordinance: It is so that a dying man will not “lose control of his mind” in grief and frustration that his wishes are not being carried out.

Typically, however, the rabbis attempt to show that their legislation, while not explicitly mentioned in the Torah, can at least be deduced from a Torah verse. Thus Rav Menashya bar Yirmeya cites a verse from II Kings concerning the dying King Hezekiah, who was told by the prophet Isaiah, “Instruct your household, for you will die, and you will not live.” This wording implies that an instruction alone, coming from a dying man, is adequate to transfer ownership of his property. Other rabbis offer different verses in support of the same conclusion.

But what happens, the Talmud asks, if a man makes a gift thinking he is about to die, and then he recovers? He is placed in an awkward position: He may have given away all his property on the assumption that he wouldn’t need it anymore, and when he recovers he is destitute. To prevent this outcome, the Mishna in Bava Batra 146b explains that a gift from a dying man who recovers “does not stand.” But this is the case only if it was a gift of everything he owned because a person presumably would not give away all his property unless he believed he was going to die. If, on the other hand, he reserved for himself “any amount of land,” the assumption is that this provision was meant to suffice for him in case he recovered, so that the rest of his gift remains in force.

The Gemara goes on to probe the limits of this rule. Say a dying man gives away all his property, but he divides it among various recipients. If he makes these gifts all at the same time, then the law considers that he is like one who intended to give away all his property, and so if he recovers, he has the right to revoke all the bequests. If, on the other hand, he divided his property a little at a time—today making one gift, tomorrow another, and so on—then the law considers that each of these bequests constituted a separate action. Seen in this light, the first gift was not a total gift because it represented only a part of the dying man’s property; the same with the second gift, and so on with all the bequests until the very last, which gave away the man’s last remaining property. Accordingly, if he recovers, it is only this final gift that he has the right to revoke, while all the earlier ones remain in force.

A natural response to such hypotheticals is that only a greedy and heartless person would cling to a gift made by a dying man who then recovered and asked for it back. However, the law does not deal with people’s good or bad intentions; it prescribes their rights, and it’s possible to claim one’s rights in ways that seem clearly unethical. Indeed, a rather shocking example is given in Bava Batra 149a, concerning the great Amora Rava, one of the most important sages of the Gemara. On one occasion, Rava was given a deposit of 12,000 dinars by a man named Issur, who was a convert to Judaism. Because this was a deposit, not a loan, the money never legally left Issur’s possession, even though it was in Rava’s house.

When Issur fell sick, he wanted the money to be inherited by his son, Rav Mari. But Rava found a loophole. Although Rav Mari was born after his father converted to Judaism, and indeed was himself a pious Jew—the Gemara says he was in the study hall while his father was dying—he was conceived when his father was still a gentile. This meant that, under Jewish law, Rav Mari was not entitled to inherit from his father because he was not conceived “in the sanctity of the Jewish people.” When Issur died, then, his property would be considered legally ownerless—apparently, he either had no other living Jewish relatives—and any Jew could take possession of it. Since the dinars were actually in Rava’s house, he would be able to claim them.

As if this weren’t bad enough, Rava went on to enumerate all the ways he could prevent Issur from getting the money to Rav Mari before he died. Issur couldn’t give the money as a gift because, as we’ve seen, only legal heirs can receive deathbed gifts, and Rav Mari wasn’t a legal heir. Issur could get around this problem by physically transferring the money to his son, which would make the acquisition legal, but, Rava said, he wouldn’t be able to do this because “the dinars are not with him.” In other words, Rava wouldn’t return them in order to facilitate the transfer. Finally, if Issur sent for Rava to give him verbal instructions to turn over the deposit, Rava simply said, “I shall not go.” Any way you figure it, Rava would get his hands on the 12,000 dinars.

There is no getting around the fact that this episode presents one of the greatest Talmudic sages in a very unflattering light. Rava is making use of a legal loophole having to do with the invidious distinction between Jews and converts in Jewish law, to steal Rav Mari’s inheritance. Indeed, it appears that Rava’s colleagues were displeased by his actions, for one of them, Rav Ika, came up with a way for Issur to thwart Rava’s plans. Rather than give the money to his son as a gift, Rav Ika suggested, Issur should simply write a declaration that the money belonged to Rav Mari in the first place. Such an “admission,” coming from a man on his deathbed, is considered legally binding, and so the money would have to be “returned” to Rav Mari, even if, in fact, it never actually belonged to him.

Outwitted, Rava “became angry and said: They are teaching people claims and causing me loss.” It is a very fitting conclusion to the story: Rava wanted to use a technicality to take Issur’s property, so Issur used another technicality to prevent him from doing so. Live by the sword, die by the sword. Indeed, some commentators on this Talmudic passage have been so embarrassed by Rava’s actions that they tried to come up with excuses for him. According to one, cited in the Koren Talmud, Rava never intended to keep the money for himself; he was always going to give it to Rav Mari. However, he wanted to do this out of sheer good will and not because it was a legal obligation. This sounds nice, but it hardly explains Rava’s anger at being caused a loss. The Talmud, in this case, shows that even the most important sages could be all too human.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.

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