The Biblical Basis for a Deathbed Gift
The other day, in Bava Batra 147a:
אָמַר רַבִּי זֵירָא אָמַר רַב: מִנַּיִן לְמַתְּנַת שְׁכִיב מְרַע שֶׁהִיא מִן הַתּוֹרָה? שֶׁנֶּאֱמַר: ״וְהַעֲבַרְתֶּם אֶת נַחֲלָתוֹ לְבִתּוֹ״ – יֵשׁ לְךָ הַעֲבָרָה אַחֶרֶת שֶׁהִיא כָּזוֹ. וְאֵי זוֹ? זוֹ מַתְּנַת שְׁכִיב מְרַע.
§ Unlike the gifts of a healthy person, the gifts of a person on his deathbed do not require a formal act of acquisition. Rabbi Zeira says that Rav says: From where is it derived that this halakha with regard to the gift of a person on his deathbed is by Torah law? As it is stated in the passage delineating the laws of inheritance: “If a man dies, and he does not have a son, then you shall cause his inheritance to pass to his daughter” (Numbers 27:8). The term “you shall cause…to pass” is superfluous, as the verse could have stated: His inheritance shall go to his daughter. One can therefore derive from this term that you have another case of causing property to pass to another, which is comparable to this case of inheritance, which does not require an act of acquisition. And what is this case? This is the case of the gift of a person on his deathbed.
רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ, מֵהָכָא: ״וּנְתַתֶּם אֶת נַחֲלָתוֹ לְאֶחָיו״ – יֵשׁ לְךָ נְתִינָה אַחֶרֶת שֶׁהִיא כָּזוֹ. וְאֵי זוֹ? זוֹ מַתְּנַת שְׁכִיב מְרַע.
Rav Naḥman says that Rabba bar Avuh says: The halakha with regard to the gift of a person on his deathbed is derived from here: “And if he has no daughter, then you shall give his inheritance to his brothers” (Numbers 27:9). The verse could have stated: His inheritance shall go to his brothers, as inheritance is transferred by itself, without any intervention. One can therefore derive from the term “you shall give” that you have another case of giving that is comparable to this case. And what is this case? This is the case of the gift of a person on his deathbed.
How does any read of these verses lead to the idea that there is a secondary הַעֲבָרָה or a secondary נְתִינָה? Rashbam notes a few possibilities that leave me unsatisfied:
שנאמר והעברתם את נחלתו - דהוה מצי למכתב איש כי ימות ובן אין לו נחלתו לבתו וכו' והעברתם יתירא הוא ורבינו חננאל פי' מדכתיב את נחלתו את רבויא הוא ולא נהירא דהא אמרינן לקמן ההיא מיבעי ליה לכדתניא ר' אומר כו' והעברתם דריש ולא דריש את אלמא לעיל נמי דריש אידך מלשון העברה ואית דמפרשי מדשני קרא בדבוריה דמצי למכתב ונתתם כדכתיב באינך ולא נהירא נמי האי לישנא דהא ונתתם נמי חשבינן מיותר באותה סוגיא דהכי הוה ליה למכתב איש כי ימות ובן אין לו נחלתו לבתו ואם אין לו בת נחלתו לאחיו וכן כולם הלכך כל והעברתם ונתתם מיותרים הם כן נראה בעיני:
That is:
The very word והעברתם is extra
The word את
That it uses haavara instead of netina
With Rashbam disliking the second because that isn’t how the sugya takes it when it objects that the derasha is already in use; and disliking the third because someone else interprets a different instance of netina itself within the sugya to achieve the same ends.
I am displeased with all of them. This idea of והעברתם being extra because we could phrase it otherwise seems like a mechanism of last resort, when you cannot figure out what was running through the midrashist’s mind. Indeed, it is difficult, as you can see from other options being proposed. I am displeased with et because it is the direct object marker, and so I think that it should be used to include more targets. Like et to include awe of Talmidei Chachamim, not to include far-flung applications of the verb.
IMHO, the derasha is based on the vav conversive. The typical application of vav conversive is to take a future-tense (technically imperfect) verb form and turn it into a past-tense (technically perfect) verb. So yomer + va → vayomer, so “He said” in the past. It also works in the opposite direction, something typically past tense and turning it into future and imperative. So ve’ahavta is because “ahavta” means “you loved”. Add the initial ve (instead of va), and it becomes “and you shall love”.
Here, ve-ha’avartem and unetatem are examples of this vav conversive. But it still seems like it is the vav for and, vav hachibur. So, how is it “and you shall pass / give”. There must be another instance of the passing of the inheritance.
That is peshat in the midrash.
The problem, as Rashbam points out, is that the gemara itself — by which we mean the Talmudic Narrator, makes it into a contrast. Thus:
וְרַב נַחְמָן – מַאי טַעְמָא לָא אָמַר מִ״וְּהַעֲבַרְתֶּם״? הַהוּא מִיבְּעֵי לֵיהּ לְכִדְרַבִּי – דְּתַנְיָא, רַבִּי אוֹמֵר: בְּכוּלָּן נֶאֶמְרָה בָּהֶן ״נְתִינָה״, וְכָאן נֶאֶמְרָה ״הַעֲבָרָה״; אֵין לְךָ שֶׁמַּעֲבִיר נַחֲלָה מִשֵּׁבֶט לְשֵׁבֶט, אֶלָּא בַּת – הוֹאִיל וּבְנָהּ וּבַעְלָהּ יוֹרְשִׁין אוֹתָהּ.
The Gemara asks: And with regard to Rav Naḥman, what is the reason that he did not say that this halakha can be derived from the term “you shall cause…to pass”? The Gemara answers: He requires that verse for that which is taught by Rabbi Yehuda HaNasi, as it is taught in a baraita: Rabbi Yehuda HaNasi says: With regard to all of the heirs, the term giving was stated in the Torah, and here, with regard to the daughter, the term causing to pass was stated. One can derive from this that there is no heir who can cause one’s inheritance to pass from one tribe to another tribe except for the daughter, since her son and her husband inherit from her, and they may be of a different tribe.
This is the game of musical chairs. There has to be one derasha for each law, and one law for each derasha. So, the Talmudic Narrator believed that this derasha would have the negative impact of knocking out Rabbi Yehuda HaNasi’s dearsha. But that derasha was not about the vav. It was about the root of הַעֲבָרָה itself.
This doesn’t bother me, because my approach is perhaps less traditional than Rashbam. I would say that the entirety of this section is Stammaic. It is plausibly post-Amoraic, after Ravina and Rav Ashi. So, I am not wedded to the idea that the Talmudic Narrator correctly understood Rav or Rav Nachman’s derasha.
This speaks to one of my pet peeves. I think hardly anyone understands the derashot and how they work, and a large part of that is that the derashot are reworked in later sources or strata to conform to different rules of midrashic interpretation.