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Gitin, 14

GITIN 14 & 15 - have been anonymously dedicated by a very special Marbitz Torah and student of the Daf from Ramat Beit Shemesh, Israel.


14b

1) WHEN THE INTENDED RECIPIENT OF A GIFT DIES
QUESTION: The Gemara cites a Machlokes between two Beraisos regarding what is done with money that someone sent to his friend, saying to the Shali'ach, "give this money to my friend," and the intended recipient died before the money reached him. One Beraisa says that the money is returned to the sender, and another Beraisa says that it is given to the heirs of the intended recipient.

Rav Aba bar Mamal suggests that both Beraisos agree that saying "Holech" ("bring [this gift to so-and-so]") is *not* like saying "Zechi" ("make an acquisition [on this gift on behalf of so-and-so]"). The Beraisa that maintains that the money is given to the heirs of the recipient is referring to a case where the benefactor was a Shechiv Mera (on his deathbed).

RASHI (DH b'Shechiv Mera) explains that since the words of a Shechiv Mera are "k'Kesuvin u'k'Mesurin" (as if they are written [in a contract] and given over), and when a Shechiv Mera says "Holech" it is like he says "Zechi," therefore the recipient acquired the money before he died (that is, he acquired it at the time that the money was given to the Shali'ach). Hence, the money goes to his heirs. Rashi reiterates a number of times in the Sugya that when a Shechiv Mera says "Holech" it is like "Zechi."

Why does Rashi not explain simply that when a Shechiv Mera says something, it is as if it is already given over ("k'Kesuvin u'k'Mesurin") without adding that when he says "Holech" it is like "Zechi?" The law of "Divrei Shechiv Mera k'Kesuvin u'k'Mesurin Dami" is not related to the principle of "Holech k'Zechi;" even if the Shechiv Mera says merely, "I want my money to be given to so-and-so," without saying "Holech" ("bring" or "give" it to him), then it is "k'Kesuvin u'k'Mesurin" and we must honor his request and give it to the recipient!

ANSWER: Rashi was bothered by a number of questions. First, if the Kinyan of the Kinyan is taking place because of the words of the Shechiv Mera, then it should make no difference whether or not the recipient was alive when the benefactor (the Shechiv Mera) gave over the money to the Shali'ach! What matters is that the recipient was alive when the benefactor *said* that he wants the money to be given to the recipient, since it is his Amirah, his words, that make the Kinyan! Why, then, does the Gemara say, in the words of Rav Zevid, that the recipient is Koneh if he was alive "at the time that the money was given to the Shali'ach?" The Gemara should say that the recipient is Koneh if he was alive "at the time that the benefactor *said* to give him the money!" (MAHARSHA)

In addition, there is a rule that although the words of a Shechiv Mera are considered to be written and given over ("k'Kesuvin u'k'Mesurin"), they only take effect *after* the death of the Shechiv Mera, and not retroactively (Bava Basra 137a). If the Kinyan here is working through this special mechanism of "Divrei Shechiv Mera," then why do we give the money to the heirs of the recipient when the recipient died before the Shechiv Mera died? The recipient was not Koneh the money while he was alive, and the money should go back to the sender (or to the sender's heirs), as TOSFOS asks! (RASHASH, KARNEI RE'EM, MAHARAM SHIF)

To answer these questions, Rashi explains that since we see that the words of a Shechiv Mera are "k'Kesuvin u'k'Mesurin" after the Shechiv Mera dies, for the reason that we are so certain that the Shechiv Mera wanted the money to be delivered to the recipient, when the Shechiv Mera says "Holech," we assume that he is adding that word in order to be Makneh it to the recipient even earlier -- before he dies (unlike a normal "Holech" which is not like "Zechi"). Therefore, the moment that the Shali'ach receives the gift, he is Zocheh on behalf of the recipient.

If, as Rashi says, the Shechiv Mera's "Holech" is like "Zechi," then why does Rashi write later (15a, DH v'Yesh Omrim) that the sender may change his mind before the Shali'ach delivers the money and *not* give the money to the intended recipient? We should say that the recipient was already Koneh the money through the Zechiyah of the Shali'ach! (See also MORDECHAI.)

The answer is that the only reason "Holech" is like "Zechi" in this case is because the gift of a Shechiv Mera ("Matnas Shechiv Mera") is a stronger Matanah than a normal Matanah, and therefore we assume that he wants the recipient to be Koneh through his word "Holech" being like "Zechi." Even though a Shechiv Mera's words are "k'Kesuvin u'k'Mesurin," nevertheless a Shechiv Mera can change his mind before he dies. Therefore, the power of "Holech" is no greater than the normal words of a Shechiv Mera, and we assume that the Shechiv Mera wants to give the gift retroactively from that point, on the condition that he does not change his mind before he dies. (MAHARAM SHIF; see RASHASH.)

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