Zechiyah uMattanah - Chapter 3

See Hilchot Mechirah 3:1-2.

See Hilchot Mechirah 1:3-7, 2:1.

See the statements of the Shulchan Aruch (Choshen Mishpat 241:1), from which it is evident that this applies even when the commitment to give the gift was made in the presence of witnesses and/or acknowledged by the giver.

Just as a purchase cannot be made final through merely a verbal commitment (Hilchot Mechirah, Chapter 7), so too, the mere promise to give a gift is not enough to make the transfer final. Nevertheless, as stated in Halachah 9 of that chapter, when a person promises to give a small gift and fails to do so, it is considered as if he did not act in good faith.

The Ramah (Choshen Mishpat 241:2 states that this ruling applies even when the debt is supported by a promissory note or when security was given for it.

The Lechem Mishneh and the Ramah (loc. cit.) refer to the Tur (Choshen Mishpat 74) and state that the Rambam’s wording is precise. One must forgo the debt and give the entrusted article as a gift. If one uses wording that is reversed - i.e., forgoing an entrusted article or giving a loan - the transaction is not effective.

Since the loan is already in the possession of the recipient, the giver must merely forgo the obligation. Similarly, with regard to the entrusted article, since it is already in the physical possession of the recipient, the giver need not do more than make a serious commitment to give it to him.

See Hilchot Mechirah 5:11, which states that a kinyan is not required, nor need the transaction be observed by witnesses.

See Hilchot Mechirah 6:8, which describes the kinyan referred to as ma’amad sh’loshtan.

See Hilchot Mechirah 5:9. Unlike the laws of marriage and divorce, where witnesses are necessary for the kinyan to be established, with regard to financial matters the kinyan is completed whether or not witnesses are present.

I.e., to prevent a person from making a gift and then denying the fact.

See Hilchot Mechirah 21:1-3.

The Shulchan Aruch (Choshen Mishpat 241:4) quotes the Rambam’s opinion, but also quotes that of other authorities, who differ and maintain that with regard to both a sale and a gift, the person transferring the property need not define the property that he is selling.

The Ra’avad questions the Rambam’s ruling, based on Menachot 108b, which states that when a person states: “I am giving you one of the homes in my building,” the recipient acquires the least valuable home in the building. All the traditional commentaries on the Mishneh Torah attempt to resolve this difficulty. The Migdal Oz explains the difference as follows. The term “property” used in this halachah is not specific at all. For it can refer to a home, a field, an orchard or any other type of landed property. Once the giver says “a home,” by contrast, he has already been specific enough for the recipient to make an acquisition.

I.e., the transfer of ownership takes place at the time of the fulfillment of the condition. See Hilchot Ishut 6:15.

Since the condition was not fulfilled, it is as if the property has remained in the possession of the original owner. Therefore, the recipient was not entitled to benefit from it and must return the benefit to the original owner. (See Hilchot Mechirah 11:11.)

See Hilchot Ishut, Chapter 6, and Hilchot Mechirah, Chapter 11, for a description of the laws governing conditional agreements.

Al menat in Hebrew.

Thus, when the condition is fulfilled, the recipient becomes the owner of the gift, not from the time of the fulfillment of the condition, but from the time the agreement was made.

There are, however, both previous and later authorities who do not accept this principle. See Shulchan Aruch (Even HaEzer 38:63).

This refers to Rabbenu Yitzchak Alfasi and Rabbenu Shmuel ben Chofni. See Hilchot Ishut 6:14, where the Rambam discusses this issue and mentions this opinion in the name of “some of the later geonim.” In his gloss on the Mishneh Torah, the Ra’avad attempts to substantiate this view.

In Hilchot Ishut 6:14, the Rambam attempts to negate this thesis, explaining that the source for the laws of conditional agreements is the agreement reached between Mo es and the tribes of Gad and Reuven. That was an agreement concerning financial matters.

I.e., provided the recipient ultimately returns the article, for during the time the gift remains in the recipient’s possession, he is the owner of the object with all the associated rights and responsibilities. If, however, the recipient does not return the article when he is required to, he breaks the conditions under which the article was given, and it is as if it had never been his.
The most classic example of this halachic institution is the gift of a lulav on the holiday of Sukkot. On the first day of the holiday, the person must be the owner of the lulav and the other three species to fulfill the mitzvah. In many instances, it occurs that a person does not own the species himself. How then does he fulfill the mitzvah? By receiving the species from a colleague as a gift with the intent that it be returned. At the time he fulfills the mitzvah, the species belong to him. Afterwards, he returns them to their original owner. See Hilchot Lulav 8:10.

I.e., that after the giver passes away, it should be returned to his heirs.

I.e., that after the recipient passes away, his heirs should return it to the giver or to his heirs.

The Ramah (Choshen Mishpat 241:6) states that if the giver does not specify a time when the article must be returned, the recipient may keep it in his possession for as long as he desires.

He is never required to return the benefit to the giver.

Since the recipient was the legal owner of the ox at the time, he had the right to consecrate it.

For he brought the ox back to the giver. The condition mentioned only that the actual body of the ox be returned. The fact that its status changed is of no consequence.

For since the condition was not fulfilled, it is as if the ox never belonged to the recipient. Therefore, he had no right to consecrate it, for a person cannot consecrate property belonging to someone else.

For since the ox was consecrated, it is of no value to its owner.

Hilchot Avodat Kochavim 10:4 includes this as part of the prohibition (Deuteronomy 7:2): “Do not be gracious unto them.” See also Sefer HaMitzvot (Negative Commandment 50).
When quoting this halachah, the Shulchan Aruch (Choshen Mishpat 249:2) mentions two situations where a gift may be given to a gentile:
a) one knows him well;
b) doing so will contribute to “the ways of peace.”

This term has a specific meaning. As stated in Hilchot Avodat Kochavim 10:6, Hilchot Issurei Bi’ah 14:7-8 and Hilchot Melachim 10:10-11, it refers to a non-Jew who accepts the seven universal laws commanded to Noah and his descendants. Such a person is not a member of the Jewish people. He is, however, granted permission to dwell in Eretz Yisrael.
To attain this status, he must make a formal statement in the presence of a Rabbinic court. This status is granted only during the era when the laws of the Jubilee year are practiced.

“It” refers to the carcass of an animal that has died without ritual slaughter, and hence is unfit to be eaten by a Jew.

Implied is that we must make it possible for the non-Jew to live among us. See also Hilchot Shabbat 2:12 and Hilchot Melachim 10:12.

Even if the servant is freed later, the gift that was given to him remains the property of his master. The rationale is that a Canaanite servant has no independent financial capacity. Instead, everything that a servant acquires is acquired by his master.

If the couple divorces, or the husband dies during his wife’s lifetime, the article is given to her [Shulchan Aruch (Choshen Mishpat 249:3)]. The rationale is that a woman possesses an independent financial capacity. Nevertheless, throughout the time they are married, all of her property is placed in the hands of her husband. He manages it, and he is entitled to the benefits. See Hilchot Ishut 12:3, 22:7.
The same applies with regard to an article given to her as a gift. It is considered to be part of the woman’s nichsei m’log. See Shulchan Aruch (Even HaEzer 85:11).

For the giver has no authority over the article once it enters the woman’s or the servant’s possession. He cannot abrogate the rights given the husband or the master by our Sages or the Torah.

For in this instance, the giver is making a specification about the article itself, as illustrated in the following. In such a situation, he is - like a person who takes a vow - able to restrict how his property is used even when it leaves his actual possession.

The Maggid Mishneh emphasizes that the condition must have two elements: a) a negative one, that the husband has no authority over the money; and b) a positive one, that it be designated for a specific purpose.

This is the only way a person can give a Canaanite servant money to obtain his freedom. Otherwise, it would automatically become the property of the master.

These laws apply whether the person gives the gift in a state of good health (a matnat bari) or in an oral deposition of his property (a matnat sh’chiv me’ra).

He acquires his own freedom and his capacity to acquire other property at the same time.

Or to his heirs.

For it mentions the master’s ownership of the property he retains.

Because he does not have an independent financial capacity.