Zechiyah uMattanah - Chapter 6

In general, we follow the principle דברים שבלב אינם דברים, “matters [left] in a person’s heart, and not explicitly stated, are of no consequence” (Kiddushin 49b). That said, there are exceptions, such as the case at hand, where the person’s intent is plainly obvious. See also Hilchot Mechirah 11:8.

As explained in Chapter 5, Halachah 1.

In contrast to the following halachah, the Rambam does not mention whether this law applies to a gift given while one is healthy, or only to an apportionment of one’s property before dying (matnar sh’chiv me’ra). The Ramban and the Tur (Choshen Mishpar 246) explain that it applies only to a dying man’ testament. For if it were speaking about gifts given by a healthy man, there is no reason to think that the property would be given to the son. For just as the person is not concerned with keeping the property for himself we assume he would not be concerned with keeping it for his son.
The Ramah however, differs and maintain that this law applies even when the giver is healthy. It is possible that a person will have given up all desire to own property himself, and yet would rather have that property go bis son than to others. The Shulchan. Aruch (Choshen Mishpa. r 246:2) quotes both opinions.

Instead, he would have retained it for his son to inherit.

For the fact that he retained some property, instead of apportioning his entire estate, indicates that he desired to leave an inheritance for his son.

The Maggid Mishneh explains that mentioning the son as the executor in a written document is an honor that compels his brothers to respect him. When, by contrast, the father merely makes these statements verbally, the principle stated above does not apply.
Based on Hilchot Nachalot 6:2, the Kessef Mishneh rejects this hypothesis. See Sefer Me’irat Einayim 246:5.

The Tur and the Ramah follow the interpretation of the Rashbam (Bava Batra 130a) and state that if a dying man uses the expression “inherit,” the gift is binding. The Rambam’s understanding is based on the interpretation of the Sephardic teachers who preceded him, Rabbenu Chanan’el and Rabbenu Yitzehak Alfasi, and is perpetuated in the Slmlchan Aruch (Choshen Mishpar 246:4).

Although it is hardly likely that a father would desire that an infant be considered the executor, in order to establish uniformity our Sages maintained the above stated principle in this instance as well. It applies even when the other sons are adults and would not need an executor to control their management of their property.
The Slmlchan Aruch (loc. cit.) states that if the wording of the document indicates that the son is to receive the property mentioned as a gift (e.g., it explicitly states that the intent is that he receive it as a gift and not merely become the executor), it is given to him.

The fact that he kept a portion of the property for his other heirs indicates that he intended for the son he mentioned to actually acquire the remainder of the property. For had he merely intended to appoint him as executor, he could have appointed him as the executor of this portion of the estate as well (Sefer Me’irat Einayim 246:7).

The commentaries question the nature of the situation referred to. For if a person has even one son, his daughters are not considered heirs. Among the explanations given is that the “daughters” refer to granddaughters of the deceased - nieces of the son - who receive their father’s share of their grandfather’s inheritance. Alternatively, the intent is that usually women are given issur nechasim, one tenth of the estate of their father, to use for their dowries. (See Hilchot Ishut, Chapter 20.) By giving his entire inheritance to his son, the father is withholding this gift from his daughters.

I.e., if the estate falls to the deceased’s brothers, and he mentions one as the sole heir.

Although Rabbenu Yitzchak Alfasi describes this law as “a halachah without a rationale,” some explanation can be given. It is natural for daughters to respect a male heir. It is not necessary to make him executor to engender such respect. Therefore, if the father singled the son out in his will, we can assume that his words should be taken literally and the son should be given the entire inheritance.

The Rashbam (Bava Batra 131b) emphasizes that the husband must use the expression “gives.” If he states that she will inherit his property, she does not receive anything, for she is not a legal heir. See Hilchot Nachalot 6:2-5.

Thus, she does not acquire anything as her own. She does not, however, forfeit her right to the property due her by virtue of her marriage contract [Tur, Ramah (Even HaEzer 107:1)].
Note the comments of the Chelkat Mechokek 107:2, who questions whether the woman is granted the right to function as the executor if the heirs are past the age of majority.

Even though there is no necessity to confirm the appointment of an executor with a kinyan, we nevertheless assume this to be the husband’s intent. With regard to a kinyan and an oral deposition of property, see Chapter 8, Halachah 10.

This follows the logic explained in Halachah 2.

As the Rambam explains in Hilchot Ishut, according to Jewish law there are two phases in marriage, kiddushin or erusin, at which time a man consecrates a woman as his wife and causes her to be prohibited to all other men, and nisu’in., when he marries her, the couple consummate their relationship and live together as man and wife.

For in these instances, it i very unlikely that he would have appointed her as an executor.

I.e., and not only to the son who was mentioned explicitly. The rationale is that once the portion is given to the other person, the half of the estate that remains is the father’s entire estate. Thus, the law mentioned in Halachah 2 applies.

A woman who was merely consecrated or one who was divorced, or who was assigned her husband’s entire estate in a manner that clearly indicates that she was not only appointed an executor. If, however, she was only appointed an executor, she does not forfeit the money due her by virtue of her ketubah (Maggid Mishneh).

When a woman marries, all her husband’s property becomes on lien to the money due her by virtue of her ketubah. Ordinarily, this lien takes precedence over all debts undertaken afterwards. Nevertheless, in this situation, the woman forfeits this lien for the reason the Rambam proceeds to explain.

So that she cannot use it to collect the sum mentioned in it in a court of law. The Chelkat Mechokek 107:8 suggests that the ketubah is not torn, for at times it may be used, as explained in the following note.

If, however, the gift predates the debt, any property owned by the husband at the time of the gift is not under lien to the debt. (See Beit Shmuel 107:7.) Moreover, if the husband acquired other property after giving his wife this gift, the woman may acquire the money due her by virtue of her ketubah from it [Shulchan Aruch (Even HaEzer 107:3)]

She may, however, collect her nedunyah - i.e., the payment for the property that she brought to the marriage (Beit Shmuel 107:8).

The fact that her husband assigned her his entire estate demonstrates his respect for her. This is a great source of satisfaction.

This halachah is based on the statements of the Mishnah (Pe’ah 3:8). In his Commentary on the Mishnah, the Rambam writes that this halachah applies only when the husband makes these statements while on his deathbed. If he makes such statements while he is healthy, the woman is allowed to collect the money due her by virtue of her ketubah, unless the heirs can bring proof that she forfeited her claim.
The Shulchan Aruch (Even HaEzer 106:1) quotes the Rambam’s ruling in this halachah. The ShulchanAruch (loc. cit. 108:1) also states that when a husband on his death bed uses different wording and says: ‘May my wife take a share like my children,” she acquires that share, but does not forfeit her right to the money due her by virtue of her ketubah.

To forfeit her claim to the money due her by virtue of her ketubah, the woman does not have to state her acceptance of her husband’s statements. All that is necessary is that she not protest. [Maggid Mishneh; Rambam’s Commentary on the Mishnah (loc. cit.)].

In the Talmudic era, movable property was not considered as valuable as landed property. We assume that a woman would not forfeit her right to her ketubah merely for the right to receive movable property,

The rationale is the same given by the Rambam at the conclusion of the halachah. Since the woman may collect her due from a portion of the estate - the portion retained by her husband - she is given the right to collect it from the entire estate.

As the Rambam explains (Hilchot Ishut 16:7), in the era of the Geonim the socio-economic conditions of the Jewish people changed, and movable property became more valuable. Hence, the Geonim gave women (and other creditors) the right to collect their due from movable property.

See Beit Shmuel 106:6 who, on the basis of the enactment of. the Geonim, questions whether or not a woman who is given movable property in the present age forfeits the money due her by virtue of her ketubah.

Without leaving heirs.

The share of the child who died is transferred to his father’s estate and from there to the father’s heirs. Since the woman retains the right to collect the money due her from property that accrues to her husband’s estate (Halachah 9), she may collect from this property.

To prevent her husband from taking control of her property and becoming her legal heir. See also Hilchot Ishut 22:9.

The property reverts to her ownership automatically. There is no need for a kinyan to confirm this. During the time she is married, however, the recipient derives the benefit from the property, as stated in the following halachah. It need not be given to the woman’s husband.
The Maggid Mishneh emphasizes that this law applies even when the woman did not make a specific statement to this effect when transferring the property. The nature of the circumstances makes her intent readily apparent.

A the Rambam states in Hilchot Ishut, loc. cit., there are legal conventions that allow a woman to retain a portion of her property while giving away the remainder in this manner.

The Maggid Mishneh state that this principle does not apply when a gift is given by mistake, as stated at the beginning of this chapter. See, however, the explanation of this concept in Sefer Me’irat Einayim 246:23.

See Chapter 3, Halachah 9. Surely this applies in this instance, when it is possible that the gift will never be returned.

The Maggid Mishneh explains that this applies only to gifts given by a healthy person. When, by contrast, a dying man is apportioning his property, we assume that he is giving it to his sons unless he explicitly states otherwise. See Chapter 11, Halachah 1.

Even if the person has daughters-in-law, we assume that he would rather give a gift to his daughters than to his daughters-in-law (Bava Batra 143b).

Sefer Me’irat Einayim 247:3 states that this principle stems from the fact that the person sending the gift uses the words: “Give these to ‘D.” For, even though •:c can be interpreted as “my children,” its more literal translation is “my sons.” See also the Bayit Chadash and the Siftei Cohen 247:1.

The Shulchan Aruch (Choshen Mishpat 247:2) quotes the opinion of the Tur, which states that these principles apply only when the man sending the gifts is no longer married. If he is married, we can assume that the gifts appropriate for women were intended for his wife.

When quoting this law, the Shulchan Aruch (Even HaEzer 59:1) does not-mention that the bride must be a virgin. The Ramah adds this factor. The Chelkat Mechokek· 59: I states that there is no difference of opinion regarding this matter.

If, however, he married off a daughter first, it does not prevent the son from acquiring the home.

Our Sages assumed that only when the first two conditions are met will the father’s happiness be so great that he will desire to give his son a home. The third condition is an indication that this in fact was his desire. For the fact that he removed all his property from the home shows that he desired to transfer its ownership.
When stating this law, the Tur and the Ramah (loc. cit.) add another condition: that the father must have another home in which to live.

The intent is not that there is no logical basis for this ruling, for on the contrary, the Rambam describes the logical basis immediately afterwards. Rather, the intent is that there is no halachic rationale why this transfer should be effective, for there are no kinyanim involved (Kin’at Eliyahu).

This rationale is added by the Rambam, although it is not found in Bava Batra 144a, the source for this halachah.

I.e., the father stated that he did not intend to give a particular utensil to his son.

I.e., in addition to the room in which the wedding is held, the house in which that room is situated has a loft, a porch or another apartment.

See Hilchot Ishut 23:13-15.

In Hilchot Ishut, the Rambam also states that this law applies when the commitments are made by the bride and the groom themselves.

With regard to the commitment made by parents, this law applies only with regard to a first marriage [Hilchot Ishut 23:14; Shulchan Aruch (Even HaEzer 51:1).]

It is not necessary to formalize the transfer of the property through a kinyan. Instead, the transfer takes effect automatically at the time of the couple’s marriage.

The parents’ intent is not to give gifts to the bride and the groom as individuals, but to give the couple the wherewithal to start their lives together.

Note, however, the Chelkat Mechokek 51:4 which states that this applies only when the person giving the gift states that be is giving it as a gift. If he uses different wording, stating that he accepts an obligation upon himself. that obligation is binding even if he does not possess the articles he promised at the time he made that commitment.
(This is a very important ruling. One of the most common commitments made by parents is to provide food for the newly married couple for a given number of years. Now this food does not exist at the time of the engagement, and yet the commitment is binding.)

And an article that one does not own is considered as if it does not exist.

Hilchot Mechirah 22:5.

It does, however, establish a binding commitment with regard to the parents and the newly married couple, and if it has not been sold, it is considered to belong to them. The matter can be compared to the difference between a loan supported by a verbal commitment and one that is supported by a promissory note.

In both these instances, a formal divorce is necessary to dissolve the marriage bond.

Neither to him nor to his heirs.

We might think that the money should be returned, because certainly the groom gave it only for the sake of marriage. Nevertheless, were the money to have to be returned, one might think that the consecration was not binding and that the man is permitted to marry the sister of his first wife (Bava Batra 145a; Chelkat Mechokek 50:2).

E. g., a person consecrated a woman whose husband went overseas, and rumors were heard that he died. Since the consecration is not valid, the money must be returned to the groom (Chelkat Mechokek 50:6).
As reflected by this example, the intent is an error that is not a point of common knowledge. When the matter is a point of common knowledge, as in the instance stated in the following halachah, the money is considered to be a gift.

This Jaw applies also if the consecration was made conditionally and the condition was not kept, or there is a doubt about the validity of the consecration and it is not considered to be binding [Shulchan Aruch (Even HaEzer 50:1)]. Note, however, the statements of the Chelkat Mechokek 50:4 and the Beit Shmuel 50:5 regarding the latter point.

The precise meaning of the term m·, v is defined in Hilchot Ishut, Chapter 1.

I.e., we take it for granted that the person knew this fact, and therefore had another intent when giving his sister the money.

Kiddushin 46b mentions another opinion, which states that we assume that he gave it for safekeeping, but that opinion is not accepted as halachah.
The Lechem Mishneh cites the Rambam’s ruling in Hilchot Gezelah 9:7, which speaks of a person buying a field that he knows does not belong to the seller. In that instance, the Rambam considers the money that the purchaser pays as having been entrusted for safekeeping, rather than given as a gift.
A distinction can, however, be made between the two instances. Our halachah speaks of a person’s sister - i.e., someone with whom we assume he shares close feelings. Therefore, we conclude that his intent was to give her a gift. There is no reason to assume that a person would show such generosity to the salesman mentioned in Hilchot Gezelah.

The Rambam includes this phrase, because one might think that a distinction would be made between a gift of significant value and one of lesser value.

With regard to the ruling when the woman retracts, see Halachah 23.

As reflected by the following halachah and by the Rambam’s Commentary on the Mishnah (Bava Batra 9:5), if any of the gifts become destroyed, they are considered like food and drink, and need not be returned.

For he gave her the right to use them in her father’s home.

The Tur and the Ramah (Even HaEzer 50:3) differ and maintain that if the prospective groom did not partake of a betrothal feast in his father-in-law’s home, everything - even food and drink and articles of minor value - he gave his prospective bride must be returned. (For in such an instance, the prospective bride’s family did not suffer any loss.) And if he did partake of a betrothal feast in his father-in-law’s home, nothing - even articles that are still intact - need be returned. (For they also suffered a loss.)

The rationale is that we assume that if the prospective father-in-law had known that he was going to have to pay for the food, he would not have ordered expensive fare.

See the description of dina d’garmei in Hilchot Chovel UMazik 7:7.
The Ra’avad objects to the Rambam’s ruling, comparing this to a well known case of grama dinezikin (Bava Batra 93b): A person sold garden seeds to a colleague. The purchaser sowed them and they did not grow. The seller is not liable for the costs undertaken by the purchaser in sowing the seeds.
The Maggid Mishneh supports the Rambam’s ruling, making the following distinction between the two cases. In the case mentioned in Bava Batra, the purchaser sought to profit. Therefore, he must undertake a certain risk. In this instance, the prospective groom was not entering a business arrangement; he was merely fulfilling his social responsibilities. Therefore, since the woman was the cause of his loss, she should bear the responsibility.

This option is granted in certain cases (see Hilchot Gezelah Va’Avedah 4:1; Hilchot Chovel UMazik 7:17), but not here. A distinction can be made between those instances and the case at hand. In those instances, a person willfully stole or damaged a colleague’s property. Therefore, our Sages imposed a penalty on them and accepted the plaintiff’s oath. In this instance, although the woman caused her prospective husband a loss, she did not intend to do so, and there is no reason for her to be subjected to a penalty.