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Bava Basra, 148

1) WHEN DOES A "MATNAS SHECHIV MERA" TAKE EFFECT?

QUESTION: Rav Nachman (147b) teaches that a dying man's directive that a certain person should live in his house is not binding. Even though, normally, a verbal command made by a Shechiv Mera to give a gift is binding, in this case his command is meaningless because his word is binding only when he gives a *tangible object*, such as the house itself. He cannot give away the rights of residence in the house, because rights are not tangible entities.

The Gemara points out that Rav Nachman seems to maintain that a Shechiv Mera's word is only as powerful as the Kinyan that a healthy man can make (and since a healthy man cannot transfer ownership of rights through a Kinyan Sudar, a Shechiv Mera cannot transfer ownership of rights through his word). The Gemara questions this, however, from another statement of Rav Nachman. Rav Nachman says that a Shechiv Mera, through his verbal command alone, is able to effectively give away the rights to a loan that he is owed. A healthy person, in contrast, cannot transfer a debt (which is not written in a Shtar) even with a Kinyan, because a debt is an intangible asset. We see, then, that Rav Nachman holds that the power of a Matnas Shechiv Mera is *greater* than the Kinyan of a healthy person!

Rav Papa answers that the power of a Matnas Shechiv Mera is not greater than that of the Kinyan of a healthy person, and the transfer of ownership of a debt is an exception, because a debt -- although it cannot be transferred with a Kinyan to someone else -- it can be inherited by an heir. The transfer of ownership through a Matnas Shechiv Mera works like the transfer of ownership through inheritance. Since the ownership of a debt is transferred through inheritance (when the creditor dies, his heirs inherit the debts owed to him), a Shechiv Mera may also transfer the ownership of a debt.

Rav Acha brei d'Rav Ika answers that a healthy person *is* able to transfer the ownership of a debt. A debt can be transferred by using the mechanism of Ma'amad Sheloshtan (where the creditor, the debtor, and the recipient of the gift are all present and the creditor declares that he is transferring to the recipient the rights to collect the loan).

It seems that both of these answers are true. A debt can be transferred through inheritance, and a debt can be transferred through Ma'amad Sheloshtan. Does Rav Acha argue that the transfer of ownership of a Matnas Shechiv Mera is not comparable to inheritance, or does Rav Papa argue that the fact that a debt can be transferred through Ma'amad Sheloshtan should not affect the Shechiv Mera's ability to transfer it? Is there any practical difference between these two answers?

ANSWERS:

(a) The KETZOS HA'CHOSHEN (125:8) writes that there is a significant difference between these two answers, with significant Halachic ramifications. He cites TOSFOS in Gitin (14b) who states that even if the intended recipient dies before the Shechiv Mera dies, the recipient's heirs still acquire the gift. This is because the Shechiv Mera's gift to the recipient takes effect at the moment that he gives his command (and thus the gift was already in the possession of the recipient before he died).

The RAN questions this from the Gemara earlier in Bava Basra (137a) which clearly states that a Shechiv Mera's gift is acquired only posthumously, and not before the death of the Shechiv Mera. How, then, can Tosfos say that the Shechiv Mera's words take effect immediately? The Ran therefore maintains that if the intended recipient of the gift dies before the benefactor, his heirs do not receive the gift.

The Ketzos ha'Choshen justifies the view of Tosfos by stating that he is following the opinion of Rav Papa in our Gemara. Since the power of the Matnas Shechiv Mera is like the power of inheritance, the recipient of the gift does not need to be alive at the time of the benefactor's death in order to acquire the gift. The Shechiv Mera's words create a situation of inheritance, so that the intended recipient of the gift becomes entitled to "inherit" the gift from the Shechiv Mera as if he were his closest relative. When the Shechiv Mera dies after the recipient, in accordance with the normal laws of inheritance we look for the surviving heirs of the recipient and grant the inheritance to them. This is why Tosfos states that the Shechiv Mera's word takes effect immediately, while the actual transfer of ownership of the gift takes effect after his death, as the Gemara earlier says.

The Ran, on the other hand, seems to be following the view of Rav Acha, who says that a Matnas Shechiv Mera does not work in the manner of an inheritance, but rather it works in the manner of a normal transaction. In a normal transaction, one cannot give a gift to a dead person, and therefore if the intended recipient of the gift dies before the benefactor, his heirs do not receive the gift. (See BEIS YOSEF CM 245 for a different answer for Tosfos, and further discussion in in the KETZOS HA'CHOSHEN and NESIVOS there, and OR SAME'ACH Hilchos Zechiyah u'Matanah 9:13.)

(b) The MORDECHAI here cites the AVI'ASAF who says that if a Shechiv Mera gives away the rights to collect debts owed to him by Nochrim, his gift is invalid. The BACH (CM 253) explains his reasoning as follows. The Avi'asaf maintains that an ordinary person cannot transfer the ownership of debts owed to him by Nochrim using the process of Ma'amad Sheloshtan. Since a Shechiv Mera's power is parallel to that of an ordinary, healthy person, it follows that a Shechiv Mera will also lack this power to give away a debt owed to him by a Nochri through Ma'amad Sheloshtan. His view clearly is based on the reasoning of Rav Acha (see, however, HAGAHOS MAIMONIYOS, Hilchos Zechiyah u'Matanah 10:1). According to Rav Papa, the Shechiv Mera's transaction is not similar to an ordinary Kinyan, but rather it is similar to inheritance (and since the Shechiv Mera is giving the Nochri's debt to another Jew (to whom the laws of inheritance apply), the gift is valid. (Y. Montrose)

OPINIONS: The Gemara asks that if the owner of a tree gives the tree to one person and the fruit of the tree to another person, has he left for himself the place from which the fruit grows. The Gemara then asks that if, in such a case, has not left for himself the place from which the fruit grows, what is the Halachah if he specifically mentions that he is giving away the tree "except for its fruit?"

The Gemara does not indicate clearly whether the benefactor in the case is a Shechiv Mera, or whether he is a healthy person. Also, the reasoning behind the questions is not clear.

(a) The RASHBAM states that the Gemara is continuing its discussion about a Shechiv Mera. It does not make sense to say that the Gemara is interjecting laws about Kinyanim of a healthy person, as that would be irrelevant here and would belong in a different Perek.

According to the Rashbam, the explanation of the Gemara is as follows. The Mishnah (146b) states that when a Shechiv Mera gives away his property but leaves something for himself, his gifts take effect even if he recovers. The Gemara asks that if a Shechiv Mera -- who owns only one tree -- gives away his tree to another person without giving away its fruit or the places from which the fruit grows (that is, it is a Matnas Shechiv Mera *b'Miktzas*, a partial gift, since he is not giving away all of his property), and then he decides to give the fruit to a second person, does he intend to retain the places on the tree (such as the branches) from which the fruit grows or not? If he retains those places, then his gifts are valid even if he recovers, since he left something for himself.

The Gemara then asks that if we assume that in such a case the Shechiv Mera does *not* leave for himself the places from which the fruit grows, what is the Halachah when he specifically states that he is giving away the tree to another person "except for its fruit?" Since the fruit, anyway, would not have been included in the gift without the Shechiv Mera specifying so, by adding the words "except for its fruit" does he intend to keep the places from which the fruit grows or not? The Gemara answers (according to the Girsa of the Rashbam) that this is the law of Rav Zevid -- that when a person adds words to his transaction which are not necessary, he is intending to add something (to what he is excluding from the sale).

(b) TOSFOS explains that the Gemara is discussing a normal transaction of a healthy person, and not that of a Matnas Shechiv Mera. If it were discussing a Matnas Shechiv Mera, then the Gemara should have included it in a later Sugya (149b-150a) that discusses how much the Shechiv Mera must leave over in order for his gift to take effect even if he recovers. Tosfos also questions the Rashbam's explanation from the Gemara later which concludes that leaving over movable objects also makes the gift of a Shechiv Mera take effect even if he recovers, so why is the Gemara here discussing specifically a case of leaving over land (i.e. branches of a tree, which are attached to, and thus considered like, the land)?

Therefore, the RI explains that the Gemara's question is whether or not a normal, healthy person who gives away his tree keeps for himself the places on the tree from which the fruit grows. If he does keep it for himself, then he may give those places on the tree (with the potential fruit) to another person or he may keep them for himself. If he does not leave over the places from which the fruit grows, then the fruit automatically becomes the possession of the recipient of the tree. The Gemara then asks that if we assume that the original owner of the tree does not retain those places on the tree when he gives the tree to one person and the fruit to a second person, what is the Halachah in a case where he keeps the fruit for himself? Does he retain also the places on the tree from which the fruit grows or not? The Gemara concludes that in such a case he does retain his tree space, as a person always leaves for himself as much as possible. (Y. Montrose)

148b

OPINIONS: The Gemara inquires about the Halachah in a case in which a Shechiv Mera gives away all of his property to Hekdesh, or he gives it all as charity to poor people, and then the Shechiv Mera recovers. Is such a gift included in the law of the Mishnah (146b) which states that when a Shechiv Mera gives away all of his property and then recovers, his gift is annulled? Perhaps because he is doing such a great Mitzvah when he gives away all of his property to Hekdesh or Tzedakah, he has intention that his gift should take effect even if he recovers. The Gemara leaves this question unanswered.

What is the Halachah in practice in such a case?

(a) The RIF, RAMBAM (Hilchos Zechiyah u'Matanah 9:19), RAN, and other Rishonim maintain that this question involves a monetary matter, and thereby we invoking the rule that in a case of doubt in a monetary matter, the property remains in the possession of its original owner (in this case, the Shechiv Mera who recovered).

The Ran in Nedarim (7a) cites the Gemara in Chulin (134a) which indicates that a doubt concerning a matter of Tzedakah is considered a monetary doubt. He also cites the Gemara in Yoma (8b) that says that with regard to Ma'aser Ani, we also invoke the aforementioned principle. The SHULCHAN ARUCH (CM 250:3) follows this opinion.

(b) The RAMBAN, RASHBA (see also Ran), and SHITAH LO NODA L'MI maintain that Hekdesh and Tzedakah are not considered monetary matters, but rather they are matters of *Isur*. Accordingly, the rule is that in a case of a doubt concerning an Isur (when the Isur involved is an Isur d'Oraisa), we must be stringent. Consequently, the Shechiv Mera who recovered is obligated to give the property to Hekdesh and Tzedakah.

(c) The ROSH maintains that the gift of the Shechiv Mera to Hekdesh or to Tzedakah is binding even if he recovers, for the following reason. In a normal case of a Matnas Shechiv Mera, there is an Umdena -- an assumption based on circumstances -- that tells us that the Shechiv Mera intended to give away all of his property only if he dies, but not if he recovers. In this case, though, there is a *doubt* about that Umdena (or a "Safek Umdena"). Did he indeed have that intention when he gave away all of his property to Hekdesh or to Tzedakah, or does the fact that he is doing a great Mitzvah indicate that he did not have such intent (but rather he intended to give the gift unconditionally)?

The Rosh explains that an Umdena can cancel a Kinyan (such as when the Shechiv Mera recovers in a normal case of a Matnas Shechiv Mera) only when that Umdena is clear and certain. When the Umdena is in doubt, then we do not follow the Umdena, but rather we follow the person's action. Since the Shechiv Mera gave away all of his property to Hekdesh or to Tzedakah, the doubtful Umdena does not override the gift, and the gift takes effect even if he recovers. (See KOVETZ SHI'URIM here who discusses whether a doubtful Umdena cannot override an action because it becomes like "Devarim she'b'Lev," intent in the heart which does not override one's expressed words or actions, or because it becomes like a Safek Tenai (i.e. did he make the stipulation or not), and since the action that he did was a definite (Vadai) action, we apply the principle of "Ein Safek Motzi Midei Vadai.")

The BEIS YOSEF (CM 250) is perplexed by the Rosh's explanation. In the case of our Gemara, the Shechiv Mera's intent *is* clear -- it is clear that his gift is being given only due to his impending death, like any other case of a Shechiv Mera who gives away all of his property! The only question is whether the fact that he is doing a great Mitzvah by giving away his property to Hekdesh or to Tzedakah indicate that his intent was different than it is in a normal case. (Y. Montrose)

The Rosh himself, however, has support for his view from the case discussed by the Gemara earlier. The Gemara says that when a Shechiv Mera writes "all of his property" to others (by specifying which property he is giving to whom; he did not actually write "all of my property," but rather he distributed all of his property that is known to us (MAGID MISHNAH)), the gifts take effect even if he recovers, because we are concerned that he has additional property abroad (and thus his gift is a Matnas Shechiv Mera *b'Miktzas*). In that case, too, there is a doubtful Umdena: we are not sure whether the Shechiv Mera intended to give away his property only on condition that he die (because he had no other property), or whether he intended to give an unconditional gift (because he had additional property abroad). We see from the Gemara's ruling in that case (that the gifts take effect even if he recovers) that, indeed, a doubtful Umdena cannot override an action (the giving away of his property).

How, though, do the other Rishonim understand that Gemara? It seems to be a clear support for the approach of the Rosh!

The NIMUKEI YOSEF (69b of the pages of the Rif, DH she'Kasav Kol Nechasav) writes that in the earlier case of the Gemara, the fact that the Shechiv Mera himself gave away his property and did not specify that he was giving away "all of my property" is a strong proof that he indeed has property elsewhere which he is *not* giving away. Therefore, there is no Umdena at all that he wanted to give away his property on condition that he does not live; on the contrary, the circumstances indicate that he wanted to give away only part of his property (and that he wanted it to be an unconditional gift).