QUESTIONS: The Gemara records the case of a widow who wanted to prevent her
new husband from acquiring all of her property. To this end, she gave away
all of her property as a gift to her daughter so that her husband would not
receive it. Later, when her husband divorced her, Rav Nachman ruled that her
property returns to her and does not belong to her daughter, because she
only gave to her daughter to keep it away from her husband.
How do we know that she only gave it to her daughter in order to keep it
away from her husband? RASHI explains that she informed the witnesses (who
signed on the Shtar of the gift) that she was giving the gift only in order
to keep the property away from her husband, but she did not intent that if
she becomes widowed or divorced that her daughter should actually keep the
According to Rashi, the Gemara is discussing a case where the woman
specified at the time of the gift that she is only giving away her property
in order to prevent her husband from getting it. TOSFOS, the ROSH, and other
Rishonim pose a number of strong questions on Rashi's explanation.
First, the Gemara later (79a) says that Rava would have agreed to Rav
Nachman's ruling had the woman gifted her property to a *stranger*. But
since she wrote it to her daughter, there is reason to believe that she
really intended for her daughter to keep it. According to Rashi, though, who
says that she explicitly stated to witnesses that she is not giving it to
the daughter for her to keep it but only to keep it away from her husband,
what difference does it make whether the recipient is a stranger or her
daughter? The Kinyan should not be valid because she revealed her intentions
for it not to be valid!
Second, the Gemara concludes that the recipient of the "gift" does not
receive the property only when the woman gives away *all* of her
possessions, since we know that she would not leave her self penniless and
therefore she must not really intend to give it all away. When she gives
away only part of her property, the Gemara says that the recipient *does*
keep it. According to Rashi, though, if the woman *specified* that she was
only giving it away in order to prevent her husband from getting it, why
should the property belong to the recipient?
Third, Rav Anan questioned Rav Nachman's ruling even in the case where the
woman gifts her property to a stranger. According to Rashi, though, what
doubt could there be if the woman expressly stated that she was giving the
gift only to keep it away from the husband? In fact, the Gemara in Bava
Basra (151a) states clearly that the case of our Gemara is where the woman
did *not* reveal her intentions at the time she gave the gift. If she
reveals her intentions at the time of she gives the gift, then there is no
question that the Kinyan does not take effect. How, then, can Rashi here
assert that she *did* reveal her intentions?
(a) The TOSFOS RID asserts that there is a printer's error in Rashi, and the
words of Rashi should instead read, "She did *not* tell the witnesses [of
her intentions]," instead of, "She did tell the witnesses."
However, all of the Rishonim quote the words of Rashi as they appear in our
(b) The RAMBAN cites other Rishonim who explain that there is a difference
between a case where a woman specifies that she is giving the gift in order
to keep it away from her husband (the case in our Gemara), and where she
specifies the inverse, that she does not want the gift to belong to the
recipient for any other purposes (the case in Bava Basra). In the case in
our Gemara, since she only spells out one side of her conditional gift, it
is not clear that she does *not* want the property to belong to the
recipient if the husband *does* die. Perhaps she is giving it away in order
to prevent the husband from getting it, and she does not mind that the
recipient takes full possession of it even if the husband later dies.
However, Rashi seems to say that in our Sugya she even states the inverse
condition, that she does not want the recipient to acquire the property if
the husband does die.
(c) The RITVA suggests that the woman told the witnesses of her intentions
at the time that they signed the Shtar, before she actually gave the Shtar
to her daughter to give her the gift. Since she did not specify at the time
that she gave the gift (in front of the recipient), we are not sure what she
had in mind at that moment; perhaps she changed her mind and decided to give
the property away completely. In contrast, the Gemara in Bava Basra is
discussing a case where the woman specified *at the time that she gave over
the Shtar* that her intentions were to give it over entirely. This is also
the way the PNEI YEHOSHUA and others explain Rashi.
Why does Rashi not explain like all of the other Rishonim, that the woman
specified nothing at the time she wrote the Shtar, nor when she gave it over
to her daughter, but rather we just assume that she is doing it in order to
keep her property away from her husband (since she gave away all of her
property, as the Gemara says later)?
Rashi might have been bothered by the question that the Rishonim ask on our
Sugya from the Gemara in Kidushin (49b). The Gemara there discusses a person
who sold his property because he was leaving to Eretz Yisrael, but he did
not mention his intentions at the time of the sale. His plans then changed
and he was unable to go to Eretz Yisrael. Even though he says that he sold
his property only on condition that he would be leaving town, we rule that
since he did not say so explicitly, the intentions in his heart are not
effective -- "Devarim she'b'Lev Einam Devarim." Similarly, when a woman
gives away all of her property, why should we assume that her intention is
only to give it away in order to prevent her husband from getting it? Since
she does not verbally state her intentions, they should be considered
"Devarim she'b'Lev" and not be effective!
The Rishonim, citing the RI MI'GASH, answer this question by saying that the
Gemara is discussing a woman who gave away all of her property and
immediately thereafter she became married. Her subsequent marriage reveals
to us clearly what her intentions were. This is an "Umdena," a
strongly-based assumption, which has the status of a verbal statement and is
not considered "Devarim she'b'Lev."
Rashi might have rejected this answer because the "Umdena" is based on an
action that happens *after* she gives away her property. At the time that
she gives away her property, though, there is no way of knowing why she is
giving it away. Therefore, her intentions should remain "Devarim she'b'Lev."
The Ritva (79a, DH Amar Abaye) also seems to have been bothered by this
point. He writes that our Gemara's ruling only applies when she gives away
all of her property *after* she had committed herself to marrying the man
("Shiduchim"). Under such conditions, there is an "Umdena" at the time of
the giving of the gift that she only intends to keep her property away from
her husband, and not to really give it away unconditionally.
Rashi, though, holds that even though she is engaged to be married, this is
not a strong enough "Umdena." Even though the gift was given after she
committed herself to get married, there is no way to relate her giving of
the gift directly to her forthcoming marriage in order to have a clear
assumption that she was giving it away because of the marriage.