Zechiyah uMattanah - Chapter 10

The Shulchan Aruch (Choshen Mishpat 253:18) states that this law applies whether the dying man specifies “this maneh,” pointing to the money in question, or “a maneh” without being specific in this manner.

If the maneh in question does not constitute the totality of the estate of the sh’chiv me’ra, the sh’chiv me’ra must Clearly state that he is giving the maneh because of his impending death. Otherwise, he would have to confirm his gift with a kinyan. (See Chapter 8, Halachah 17.) Moreover, a kinyan chalifin would not be effective in this instance, because money cannot be transferred via a kinyan chalifin [Shulchan Aruch (op. cit.)].

The Maggid Mishneh quotes the Rashba as stating that this ruling applies only when a maneh is found among the dying man ‘s property. Otherwise, property should not be sold to meet this obligation. The Mag g id Mishneh debates whether or not the Rambam and the Rashba share the same position.

I.e., the heirs may claim that the intent was not that the person be given a maneh from the estate, but that the dying man had admitted that he had once been given a maneh by the recipient and had buried it in some unknown place. We do not accept this claim and we give the recipient a maneh from the estate.

As above, the laws mentioned in this halachah apply only when the sh’chiv me’ra specifically states that he is giving the gift because of his impending death, or when the articles given comprise the totality of the estate of the sh’chiv me’ra.

Hilchot Mechirah 6:8 explains that when a healthy person wants to transfer money that was given as a loan or an entrusted article to another person, the three people - the lender, the borrower and the intended recipient - must stand together, and the lender must tell the borrower, “Give the maneh that you owe me to so and so [the intended recipient].” Our Sages did not require this practice to be followed when a dying person was apportioning his property. Instead, they allowed the dying man to make the transfer with merely a verbal statement.

The Maggid Mishneh states that the sh’chiv me’ra need not mention the debt that the promissory note records. It is obvious that by transferring ownership of the note, he is transferring ownership of the debt.

The Hagahot Maimoniot and the Ramah (Choshen Mishpat 253:20) state that this applies with regard to a promissory note only when the debtor is a Jew, but not when the debtor is a gentile.

See Hilchot Mechirah 6:10-11, which outline this process with regard to a transfer made by a healthy person. These procedures are not required, however, when a dying man apportions his property.

The sh’chiv me’ra himself can, however, still waive payment of the note if he desires.

See Hilchot Mechirah 6:12.

See Chapter 8, Halachah 2.

Giving this instruction is sufficient to allay the suspicions that the Rambam mentions in the following clause.

See Hilchot To’en V’Nit’an 6:7.

See Hilchot To’en V’nit’an 7:1. Note Sefer Me’irat Einayim 255:3, which states that it is not necessary for the sh’chiv me’ra to charge the observers explicitly to serve as witnesses.

E. g., the person to whom he stated that he owed money was present or the dying man had no children (Kessef Mishneh).

I.e., money that had been used for the redemption of produce from the second tithe. This money must be taken to Jerusalem and used to purchase food there.

The bracketed additions are based on the Shulchan Aruch (Ciioshen Mishpat 255:7).

Sefer Me’irat Einayim 255:24 states that this law applies even if such statements were made by a healthy person, but it appears that he desired to clarify the status of the money that he put away lest he die suddenly.

Different laws apply if the two people make such statements.

The first tithe, which must be given to the Levites. Some authoritative manuscripts of the Mishneh Torah state ma’aser sheni in this halachah as well.

And thus cannot be taken by the witness.

The motivating factor is the principle of migo - i.e., had the person desired to perpetrate a falsehood, he could have done so otherwise. In this instance, since the money was accessible to him, if he had desired to give the money to the other person or for tithes even though there was no obligation to do so, he could have taken it and given it himself. Since he did not do so, but rather brought the matter to the attention of the heir, we assume that his words are true.

See Sanhedrin 30a.

I.e., the instructions that the person heard in the dream are of no halachic consequence, and he is not at all bound to adhere to them.

From the statements of the Maggid Mishneh, it appears that the sh’chiv me’ra made this statement on his own volition, as mentioned in Halachah 4. The Tur (Choshen Mishpat 255), by contrast, explains that this refers to an instance where the creditor came and asked for payment of the debt and the dying man acknowledged hi obligation.

The Tur (loc. cit.) mentions a difference of opinion among the Rabbis with regard to the definition of the heirs’ claim. Some of the Rabbis explain that the heirs are claiming that their father erred when he made his original admission and that he later retracted that statement. If such an admission had been made by a healthy man, it could not be retracted.
Other Rabbis explain that the heirs claimed that their father had paid the debt after he made the admission, but before he died. (See Sefer Me’irat Einayim 255:20, but note also Siftei Cohen 255:14.)
It must be noted that this law applies whether or not the statement of the sh’chiv me’ra was observed by witnesses.

As is required whenever a person denies entirely a claim made by others. Here too, the heirs are denying the claim of the person acknowledged by the sll’chiv me’ra.

Note the parallel in Hilchot To’en V’Nit’an 7:6.

The Maggid Mishneh explains that the Rambam’s ruling is based on the interpretation of Bava Batra 175a by the Ri Migash. That interpretation describes the circumstance referred to in this halachah as follows: A dying man admitted owing a debt to a colleague while speaking in a sincere fashion, that left no doubt that he was not merely making the statements so that his sons would not appear wealthy. (See Halachot 3 and 4.) His sons, however, were not present at that time. They were not told about their father’s statements in detail, only that he had made such an admission, but had not stated that the debt should be paid.
On that basis, it is highly unlikely that they would have paid the debt. For they had no way of knowing that the estate in fact owed the money. They had not been informed of the fact that their father had spoken in a sincere tone, and in their minds it would have been possible to think that he made the statement so that his sons did not appear wealthy. For this reason, their claim is not accepted.
[The Hagahot Maimoniot give another explanation for the heirs’ hesitation. As long as the sh’chiv me’ra did not definitely charge them with paying the debt, the possibility exists that they felt that his thoughts had become confused, as sometimes happens before death, and that the debt was not necessarily owed.]
The Ra’avad, the Tur and the Rashba challenge this ruling, explaining that we should assume that the sons knew that their father spoke sincerely. Hence, if they say that they paid the debt, their word should be accepted, as it is in the instance mentioned in the following halachah.
The Shulchan Aruch (Choshen Mishpat 255:4) quotes the Rambam’s ruling, while the Ramah cites that of the dissenting authorities.

Since they were explicitly told to pay the debt, it can be assumed that they would. Thus, the situation resembles that of a debt supported by a verbal commitment alone. In such an instance, if the debtor claims to have paid the debt, his word is accepted. According to Rabbinic law, however, he must support his claim with a sh’vuat hesset.

I.e., the money is considered as if it had already been given to the intended recipient, when it was given to the third party. And then, upon the recipient’s death, it becomes the property of the recipient’s heirs.
Had the gift been given by a healthy person, it would not have been binding, because telling a person to bring a gift to someone is not tantamount to asking the person to acquire property on his behalf (see Chapter 4, Halachot 4 and 5). Nevertheless, our Sages reinforced the power of the statement of a sh’chiv me’ra and considered it as if the property had already been transferred.
There is a slight problem in the above logic. Generally, the gifts given by a sh’chiv me’ra do not take effect until after the sh’chiv me’ra dies. In this instance, we say that it takes effect as soon as it was transferred. It is possible to explain that since the sh’chiv me’ra appointed an agent, he thus made it clear that he desired that the gift take effect immediately (Siftei Cohen 125:36).
When quoting this law, the Shulchan Aruch (Choshen Mishpat 125:9) adds several particulars that are corollaries of the above points.
a) The gift applies even if the recipient dies before the giver dies;
b) The gift applies even if the heirs of the recipient were born after the giver dies;
c) The giver cannot retract until he recovers;
d) If the giver recovers, he can retract.

Since the person died before the money was given, the gift is null and void. It is not considered to be part of his estate.

We do not assume that the order in which the recipients are mentioned reflects the giver’s choice of priority. Instead, we assume that he desired to give them all equal priority, and it is just that it is physically impossible to mention the name of more than one person at one time.

I.e., if the estate contains 900 zuz, and all the allocations can be made, there is no difficulty. The only time questions arise is when it is less than that sum.
Compare to the division of an estate among different wives, Hilchot Ishut 17:8 and the payment of debts, Malveh V’Loveh 20:4.

The Maggid Mishneh (in his gloss on the following halachah) states in the name of the Rashba that this applies when there is not a sufficient amount left in the estate for the heirs to pay the creditor. If. however, there is money in the estate that was not apportioned in gifts, the debt should be paid from those fund • and not from the gifts given. The Shulchan Aruch (Choshen Mishpar 253:10) quotes this ruling.

I.e., only a defined object may be transferred not a privilege (Hilchot Mechirah 22:13- 14).

See Hilchot Mechirah 23:1, which explains that giving such a gift “is not considered to be transferring ownership of an entity that has not come into existence. For the article itself exists, and [the person) is transferring ownership over its produce. To what can the matter be compared? To a per on who rents a house or a field to a colleague, in which instance he did not transfer ownership over [the property in its entirety], but rather merely the right to derive benefit from it”