Zechiyah uMattanah - Chapter 9

See Chapter 5, Halachah 1, which explains that a gift cannot be hidden, but rather must be publicized. It is not significant, however, that the publicity come a certain time after the gift was given. For at the time the gift is transferred, the matter is to be revealed.

As does a healthy person (Chapter 5, Halachah 2).
The Kessef Mishneh gives two reasons for this distinction:
a) Generally, the reason why a person would give a hidden gift would be to flatter the recipient and make it appear that he is giving him a gift, when in fact he is not. It is unlikely that a person would do such a thing at the time of his death.
b) We do not desire to tire the dying man and have him speak any more than is necessary.

If, however, the dying man specifically asks that the gift remain hidden after his death, it is nullified (Ketzot HaChoshen 242:4).

The forms of the verbs cited by the Rambam all employ the future tense. Although this would not be acceptable with regard to an ordinary transaction (Hilchot Mechirah 2:8), an exception is made with regard to a gift given by a sh’chiv me’ra (Maggid Mishneh). The rationale is that his gift does not take effect until afterwards (Bayit Chadash, Choshen Mishpat 253).

It is preferable that the dying man state explicitly that he is giving the portion as a matnat sh’chiv me’ra. This differentiates his allotments from gifts given by a healthy man.

For these expressions do not clearly indicate a desire to transfer the property. In order to expropriate the property from the heirs, the intended recipient must be able to demonstrate clearly that the deceased desired to transfer his property to him.

Instead, the dying man is considered to have died intestate, and the property is transferred to those who have priority according to the order of inheritance.

The difference between the status of these two gifts can be explained based on Chapter 12, Halachol 3-4, which explain that if a person states: “My property should be given to so and o, and afterwards, to so and so,’’ when the first person mentioned dies, the second is given the property. If, however, the first person is an heir, the second per on docs not receive the estate upon the first person’s death.
The rationale is that since the first person is fit to be an heir, the property is considered as having been inherited. Therefore, the dying man’s wishes are not considered, and it is given to the heirs of the first recipient when that recipient dies. We do not pay attention to the fact that originally the dying man used wording that indicated that he was giving the property as a gift. See Ra’avad; Ramah (Choshen Mishpat 253:6).

See Chapter 6, Halachot 2-3.

I.e., we assume that his question is rhetorical, and it is considered as if he stated that his property should be given to the person named.

I.e., conceived after the person undergoes conversion.

For the conversion causes the convert to be considered a new entity with no connections to his previous relations. Therefore, the son is also considered a convert. This applies even if the mother of the son in question was Jewish and later married the non-Jew who fathered her child. See Bava Batra 149b, which describes such a situation concerning a convert named Isar.

Hilchot Nachalot 6:10.

Our Sages deemed that undesirable, for it would create the impression that the son who received the property is the dying man’s son according to Torah Law. Hence, had the dying man fathered another son after he converted, and if that son dies childless, one might think that the son who was not conceived before the father converted would have to perform either yibbum or chalitzah for the other son.

The Tur and the Ramah (Choshen Mishpat 256:1) differ with regard to this principle, and maintain that a convert cannot give a matnat sh’chiv me’ra either to another convert or to a native-born Jew. The rationale is that our Sages ordained that a matnat sh’chiv me’ra be considered an inheritance. Since the laws of inheritance do not apply to such a convert, for he has no heirs according to Jewish law, he is not able to give a matnat sh’chiv me’ra.

He must state that the obligation be met. If not, we suspect that perhaps he made these statements only so that his sons would not feel excessively secure and wealthy. (See Chapter 10, Halachot 3-4.)

For any time a person sincerely acknowledges an obligation, it is binding upon him.

This applies even when we have reason to suspect that the dying man did not actually have such a debt.

In this manner, the convert Isar was able to transfer his property to his son, who had been conceived before Isar converted (Bava Batra 149b).

For, as stated in Chapter 3, Halachah 11, and in Hilchot Avodat Kochavim 10:4, it is forbidden to give a gift to a gentile without charge.

If the dying man had a legal document composed using either of the latter two expressions, the servant would be freed, as stated in Hilchot Avadim 6:2. Nevertheless, because he merely states that this should be done, his heirs must free the servant.

If the dying man used the first expression, the heirs are compelled, because it is a mitzvah to carry out the instructions of a deceased person. If he used either of the latter two expressions, his statements are effective in declaring the servant ownerless. In such a situation, the heirs must free the servant, as stated in Hilchot Avadim 8:13.

Hence, in contrast to a gentile, who cannot be given a gift, the servant can be granted his freedom.
The Maggid Mishneh questions the Rambam’s ruling, noting, as the Rambam himself states (Hilchot Avadim 9:6), that it is forbidden to free a servant. In resolution, the Maggid Mishneh quotes the Rashba, who explains that if the servant did a favor for his master, the master may - and in a certain sense, is obligated to - free his servant in appreciation.

Similar laws apply to male servants (Maggid Mishneh).

In Hilchot Avadim 6:4, the Rambam explains that this halachah is based on the principle that it is a mitzvah to carry out the will of the deceased. There he also states that the heirs are compelled to carry out these wishes.

The Maggid Mishneh and the Siftei Cohen (Yoreh De’ah 267:98) cite the opinion of Rashi, who maintains that the maidservant should be freed if this is the only thing that will generate satisfaction for her.

For a per on cannot be forced to acquire a gift against his will, as stated in Chapter 4, Halachah 1. If the sh’chiv me’ra did not apportion it to anyone else, it is given to the heirs.

Rabbi Akiva Eiger and the Netivor HaMishpat 245:12 state that this applies when the recipient remains silent after the giver’s death. If, however, he protests during the giver’s lifetime, even if he remained silent when he initially heard of the gift, the gift does not take effect. For a gift given by a sh’chiv me’ra does not take effect until the sh’chiv me’ra dies. Until that time, the intended recipient may refuse to accept the gift.

For the property has already been transferred to the recipient’s possession.
The commentaries question why the property is not considered to be ownerless, a would be the case if such a scenario occurred when a healthy person gave someone a gift. Note the rulings of the Tur, the Shulchan Aruch, the Ramah (Choshen Mishpat 245:11) and the commentaries on these texts.

I.e., his entire estate. Alternatively, a portion of his estate, but he specifically stated that he is giving that portion as a matnat sh’chiv me’ra, as stated in Chapter 8, Halachah 7 (Kessef Mishneh).

We have translated this line according to the interpretation of most commentaries. According to the interpretation of the Kessef Mishneh mentioned in the previous note, the translation would be: “Whether [he desires to give] his entire estate or only a portion of it.”

In order to strengthen the legal power of the recipient.

The Ramah (Choshen Mishpat 250:13) states that even if the first recipient seizes possession of the property, it should be expropriated from him.

If, however, he performs only one of the two, he may retract (Maggid Mishneh).

Since the sh’chiv me’ra performed two actions to confirm the intended recipient’s acquisition of the property, the transfer is considered to be a gift given by a healthy person. It takes effect immediately and cannot be retracted.
The Shulchan Aruch (Choshen Mishpat 250:14) states that if a person explicitly states that he is giving the gift because of his impending death, he still has the right to retract. If, however, that is merely obvious from his statements, there are opinions that maintain that he does not have that privilege.

The Ramah (Choshen Mishpat 250:12) states that this law applies even if the dying man originally divided his estate between two people and retracted only the portion given to one of them.
The Ramah continues and states that if the dying man explicitly states that he is retracting only a portion of the gift, the initial recipient(s) acquire the remainder.

I.e., despite the fact that a kinyan was performed to bolster the recipient’s legal power, the giver still retains the right to retract (Maggid Mishneh).

I.e., in the case where the entire estate was given, in which instance a kinyan could nullify the person’s acquisition unless it was carried out merely to bolster the recipient’s legal power (Chapter 8, Halachah 11).

I.e., neither the entire estate, nor even the portion that remained after the second gift, was taken away.

I.e., the nullification of the first gift. With regard to the second person’s acquisition of the property, the Shulchan Aruch (Choshen Mishpat 250:12) states that if the sh’chiv me’ra dies the second recipient acquires the property even if a kinyan was not performed. If he recovers, the recipient does not receive the property even if a kinyan was performed.

Without explicitly stating that the kinyan was performed merely to bolster the recipient’s legal power. In this instance, the gift is considered to be a gift given by a healthy man (Chapter 8, Halachah 15).

Because it is considered to be a gift given by a healthy man.

According to the laws of a matnat sh’chiv me’ra.

Bava Batra 148b questions whether or not gifts of this nature or the disowning of one’s property are governed by the same laws as ordinary gifts. There is a rationale to explain why they should be placed in a different category, for we might assume that he consecrated the property or dedicated it to the poor so that the merit of that gift will help him recover. Nevertheless, it is possible that this is not so, and he did not desire that the gift take effect until after his death. Since the Talmud did not resolve the issue, we state that, because of the doubt, the property should remain in the possession of the heirs.
The Ramah (Choshen Mishpat 250:3) writes that even if the poor take possession of the property, it should be expropriated from them. There are, however, authorities who dispute that ruling.

Unlike in the case of an oral will, the sale must be concluded using one of the accepted kinyanim (Sefer Me’irat Einayim 250:12).

Because the fact that he sold only a portion of his property indicates that his act was not solely intended to enable him to allocate his property before his death, but also had an ordinary business dimension.

The fact that he retained possession of the money indicates that his intent was to nullify the sale if he recovered.

The fact that he spent the money indicates that he considered it to be an ordinary business transaction.

The gift must have been confirmed by a kinyan, for otherwise it would not be binding if given by a healthy person. The question is whether the kinyan was conducted to effect the transaction (in which instance it would be considered to be a gift given by a healthy person), or whether the intent was merely to bolster the legal power of the recipient (in which instance it would be considered a matnat sh’chiv me’ra).

For the property is in the possession of the giver. Since the intended recipient desires to expropriate the property from him, we follow the principle: When a plaintiff desires to expropriate property from a defendant, the burden of proof is on the plaintiff (Maggid Mishneh).

The fact that the giver is now healthy is not significant.

As is required any time a person denies totally a claim made by a plaintiff.

This ruling is based on the principle of migo: that if the defendant had desired to lie, he could have used a more effective lie. In this instance, if the recipient had denied entirely that he had received the property as a gift, but instead claimed that it was his own, his claim would have been accepted. Therefore, his word is accepted when he claims that he received the property as a gift given when the giver was healthy.
There is a question whether this ruling also applies when there are witnesses who can testify that the recipient took possession of the property because of the gift, in which instance the principle of migo does not apply. The Maggid Mishneh maintains that even so, the Rambam’s ruling remains in effect, because since the property is now in the possession of the recipient, the giver is considered to be the one attempting to expropriate property, and the burden of proof is on him.
The Kessel Mishneh differs and maintains that the witnesses’ testimony nullifies the legal weight of the recipient‘s possession. Hence, the burden of proof lies on the recipient. The Siftei Cohen 251:6 substantiates the ruling of the Kessef Mishneh.

Since the giver is demanding that the property be returned to him, the recipient must support his claim with an oath.

The fact that it is tied to the deceased’s thigh indicates that it is not a forgery (Rashbam, Bava Batra 135b). Nevertheless, the document is not of legal consequence.

Such a statement indicates that the intent was to give the gift as a matnat sh’chiv me’ra and not as a gift given by a healthy person. With regard to a gift given by a healthy person, if the gift was confirmed by a kinyan, the property is transferred even though the legal document has not been given to the recipient.

As stated in Halachah 15. Indeed, the fact that the document remained in the possession of the deceased would appear to support that contention.

The Maggid Mishneh explains that the Rambam’s intent was that if he transferred ownership of a certain portion of the property via the legal document, all the other gifts mentioned in the legal document are also binding.

I.e., all the other gifts are considered to be matnat sh’chiv me’ra. Since the document was binding with regard to the gifts transferred via the legal document, we do not assume that the sh’chiv me’ra retracted regarding the remaining gifts.

This refers to Halachah 24.

For the ruling stated by the Rambam to apply, the promissory note cannot state that a kinyan was enacted confirming the debt.

For his original statements - and subsequent failure to clarify what to do with the document - indicate that he had not made a final decision whether or not to commit himself.