Zechiyah uMattanah - Chapter 5

I.e., a person on his death bed. See Chapter 9, Halachah 1.

By giving the gift in a hidden manner.

However, when the purchaser(s) try to take possession of the article, he will discover that the recipient of the gift has the legal right to the property. (The Ra’avad apparently had a different version of the Mishneh Torah, and based on that version, explains the difficulty differently.)

As the Maggid Mishneh emphasizes, a hidden gift of movable property is also not effective. The Rambam mention landed property because movable property is not acquired through the transfer of a legal document unless another kinyan is also performed.

I.e., in public view, so that others will know about the matter.

See also the Shulchan Aruch (Choshen Mishpat 242:4), which clarifies that if the giver had the document written privately, but had it signed or given in a public manner, the gift is not considered to have been given in a hidden manner, and it is acceptable.

At present, registering the exchange of property in the deeds office is considered to be the most effective means of publicizing the transfer of property (Kin’at Eliyahu).

The Shulchan Aruch (loc. cit.:5) states that since it has become customary for all legal documents to be written in a conspicuous manner, even when the giver does not state explicitly that the document should be written in this manner, we assume that this was his intention. The Ramah, nevertheless, states that it is preferable that an explicit statement be made.

The Maggid Mishneh, the Tur and the Ramah [(Choshen Mishpat 242:8), based on Bava Batra 40b] state that we do not consider the deed recording the hidden gift as a protest invalidating the gift. (See the following halachot.)

Bava Batra, ibid., explains that there is a difference of opinion whether a hidden gift refers to a legal document that the giver instructs the recipient to hide, or one that does not state that it should be made public. As indicated by the Rambam, the latter view is accepted.

See Hilchot Mechirah 10:3, which states that in contrast to a sale or a compromise, a gift or a waiver of a debt is nullified if the person issues a protest beforehand, even if he is under no compulsion whatsoever.

Since the giver of a gift does not receive anything in return (in contrast to a sale), for the transfer of ownership to be effective he must desire to relinquish his hold on the object.

In contrast to the instance described in the previous halachah, in this instance there are two factors involved: a) his obvious desire not to give the gift, and b) the fact that he had given a hidden gift beforehand. Neither of these factors alone is sufficient to nullify the gift (Sefer Me’irat Einayim 242:14).

See Bava Batra 40b, which records this incident.

For when his father died, he would not receive anything.

The son.

Because the document he was given was hidden.

“As if he had been acting under duress,” because he had the option not to marry her (Maggid Mishneh).

The Maggid Mishneh and the Ramah (Choshen Mishpat 242:10) emphasize that were it not for the first gift, the second gift would be binding. For it to be nullified, it would have to have been accompanied by a protest.

The Rambam is speaking about an instance where the legal documents were transferred to the recipient without the transfer having been observed by witnesses. For had the transfers been observed by witnesses, the recipient who received the document first would acquire the field, as stated in the conclusion of the following halachah.

For we assume that the document that was written earlier was also transferred earlier (Maggid Mishneh).

This is the Rambam’s interpretation of the Talmudic expression (Ketubot 94a), 1m11 ‘l”11. The judges must try to determine who the rightful owner is. Tosafot (Bava Batra 35a) offer a different interpretation of that expression: that the judges arbitrarily decide to whom to award the field.
The Ramah (Choshen Mishpat 240:3) states that this prerogative should be given only to a judge who is a :inou:i, “expert.” On this basis, the Siftei Cohen 240:5 questions what should be done in the present era.

Sefer Me’irat Einayim 240:14 states that the statements of the giver or seller are not acceptable and cannot be used to determine the outcome.

For the kinyan affects the transfer of the property. The document is then no more than a legal record.

For we follow the opinion of Rabbi Eliezer, who maintains that the transfer of the property is made final when the witnesses observe the transfer of the legal document.

This presents a problem, because we do not know when the transfer of the property took place. The date of the transfer is significant, because from the date of the transfer the property is no longer on lien to any debts undertaken by the first owner and becomes on lien for debts undertaken by the second owner.

I.e., the giver agrees to reimburse the recipient for the value of the field if a creditor of the giver expropriates the field for a debt of the giver that was undertaken before the transfer of the field.

It is taken for granted that a person selling property will take responsibility for it if expropriated by his creditor for an unpaid debt. If we see a deed of sale that does not mention this factor, we assume that it was inadvertently omitted by the scribe. The seller is held responsible unless the deed states explicitly that he has no responsibility. (See Hilchot Mechirah 19:3.)

As the Rambam explains in Hilchot Sh’chenim 12:5, 13:1, when a person sells landed property, his neighbors are given the option of buying it from the purchaser at the price he paid for it. This right is not granted when a field is given as a gift.
By giving the purchaser a document recording the transfer as a gift, the seller thus intended to prevent the neighbors from exercising their right to purchase the property from him. The commentaries debate, however, if he is legally entitled to do this, or if this is merely a technique of deception that would not be effective if brought to the court’s attention (Maggid Mishneh).
The Tur and the Ramah (Choshen Mishpat 240:1) state that the purchaser/recipient has the right to nullify the neighbor’s claim only when he shows only the second document in court. If he shows both, it is considered a sale and the neighbor is given the right to purchase the property.

The giver or the seller granted the recipient the right to benefit from the trees in the field (Ketubot 44a).

I.e., the first document was valid. Afterwards because of the additional points mentioned in the second document, the second document was composed, and the matters mentioned in the first document were restated for the sake of specificity.
The Tur and the Maggid Mishneh explain that it is as if two separate contracts were made. The fundamental transfer of property takes effect from the date mentioned in the first document. The ownership of the additional points is transferred at the date of the second contract.

The Ramah (Choshen Mishpat 240:2) adds that it is not necessary to say that this ruling applies when the second document is less inclusive than the first

If the field is expropriated by his creditor.

Ketubor, loc. cit., cites a difference of opinion between two Sages with regard to the rationale for this ruling. Rafram maintains that the second document indicate that the first was a forgery. Rav Acha maintains that the recipient was willing to release the initial owner from responsibility until the date of the second contract

When stating this Jaw, the Tur uses slightly different wording. Sefer Me’irat Einayim 240:8 notes the difference and explains that the Tur requires only that the produce that is in the recipient’s hand at present be returned to the original owner. He does not have to pay him from the produce that he consumed.

For until that date the property belonged to the original owner, and the produce is therefore al o rightfully his.

Ketubot, loc. cit., states that these are the halachic ramifications of Rafram’s position. The Maggid Mishneh explains that it is not that the halachah was decided in favor of Rafram. Instead, the matter remained unresolved. Nevertheless, since the property belonged to the initial owner, it is considered his until it is proven otherwise.