Zechiyah uMattanah - Chapter Three

When a person gives a gift to a colleague, the recipient does not acquire it until he takes possession through one of the legal processes by which a purchaser takes possession of a purchase.

If the giver desires to give him movable property, the recipient must lift up the article, perform meshichah on an article that one would not ordinarily lift up, or acquire that article through one of the other means through which movable property is acquired.

If he is giving him landed property or servants, the recipient does not acquire them until he manifests ownership over them as a purchaser would, or until a legal document recording the gift reaches his hand.

A verbal statement is not sufficient. The recipient does not acquire the gift, and either one of them still has the option of retracting.

When, by contrast, a creditor forgoes a debt to a colleague or gives him an object that previously had been entrusted to the recipient for safekeeping, such a gift is made final by a verbal statement alone. Nothing further is necessary, as we have explained.

Similarly, if a person tells a colleague: "You owe me a maneh. Give it to this person," the intended recipient acquires it. Neither has the option of retracting. This applies whether he gave the recipient the maneh in payment for a debt he owed him, or whether he gave it to him as a gift. And it applies whether the maneh had been given to the person to whom the giver charged with making the gift as a loan or it had been entrusted to him for safekeeping, as we have explained.

Just as with regard to buying and selling, witnesses are necessary only to reveal the truth of the situation when there are claims and denials, so too, with regard to the waiver of obligations and gifts, witnesses are necessary only because of liars.

Just as a seller must define the property that he sells, as we have explained, so too, a person who gives a gift must define what he is giving.

What is implied? If a person writes a deed to a colleague which states: "Land from my property is given to you," or he writes: "All of my property is acquired by you with some exceptions," since he did not identify the property he was giving, and the recipient did not know what he was receiving, the recipient does not acquire anything. The recipient may not demand of the giver: "Give me the least valuable of your properties." Instead, he acquires nothing unless the giver defines the place that he is giving him.

Different rules apply, however, if the giver tells the recipient: "I am giving you a portion worth such and such in this and this field." Since he defined the field, even though he did not define the portion of the field, the recipient may collect a portion of that value from the least valuable portion of the field.

The following rules apply whenever a person gives a gift within the context of a conditional agreement. Whether the condition was stipulated by the giver or by the recipient, should the recipient take possession of and acquire the gift, the gift becomes binding when the condition is fulfilled. If the condition is not fulfilled, the gift is nullified and the recipient must return the benefit that he derived. This applies provided that the condition was stated in the proper manner.

We have already explained that with regard to all conditional agreements concerning gifts, purchases and sales, it is necessary that the condition be restated, that the positive dimension of the condition be stated before the negative, that the condition precede the deed, and that the condition is one that is possible to fulfill. If any one of these factors is lacking, the condition is nullified, and it is as if it had never been stated.

Whenever a person uses the expression: "conditional on the following," it is as if he said that the transaction will take effect retroactive to the present time; he does not have to restate the condition. Some of the geonim have ruled in this manner. And this is also my opinion.

My teachers ruled that there is no need to restate the condition or state the positive dimension of the condition first, except in cases of divorce and consecration. There is no proof to substantiate this approach.

Whenever a person gives a gift on the condition that it be returned, the gift is valid. The gift is valid whether the condition was made to return the article immediately, that it be returned after a specific time passes, that it remain as a gift for the entire lifetime of either the giver or the recipient, or that it remain as a gift for the entire lifetime of another person.

The above applies both with regard to movable property and landed property. The recipient may derive benefit from the gift for the entire time that it is his.

When a person tells a colleague: "I am giving you this ox as a gift on the condition that you return it," if the recipient consecrates the ox and then returns it, it is consecrated, and he has fulfilled his obligation to return it.

If, however, the giver tells the recipient: "I am giving it to you on the condition that you return it to me," the ox is not consecrated. For implied in the condition stated by the owner is that he return to him an article that will be fitting for him to use. The same applies in all analogous situations.

It is forbidden for a Jew to give a gentile a gift without charge. He may, however, give such a gift to a resident alien, as implied by Deuteronomy 14:21: "Give it to the stranger in your gates to eat or sell it to a gentile."

To a gentile, it must be sold; it may not be given. To a resident alien, by contrast, it may be sold or given. The reason for the distinction is that we are obligated to sustain a resident alien, as implied by Leviticus 25:35: "A stranger or a resident, he shall live among you."

When a person gives a gift to a Canaanite servant or a married woman, it is acquired by the husband or the owner. There is, however, a distinction between their powers of acquisition. The servant's master acquires the article itself, while the husband acquires merely the right to the benefit from the article.

Even if a person gives a gift to a married woman on the condition that her husband have no authority over it, or to a servant on the condition that his master have no authority over it, the master or the husband acquires it.

If, however, one gives a gift to a married woman or to a servant and the giver stipulates that the gift itself may be used for only this or this purpose, the master or the husband does not acquire it.

What is implied? When a person gives a gift to a married woman and tells her: "This money is given to you as a gift on the condition that you use it for clothing, that you use it for beverages or that you do with it what you desire without the permission of your husband," the husband has no authority over it.

Similarly, if a person told a servant: "This money is given to you as a gift on the condition that you use it for food and drink, that you use it to obtain your freedom or that you do with it what you desire without the permission of your master," the master has no authority over it. The same principles apply in all analogous situations.

When a person gives all his possessions to a servant as a gift, the servant acquires himself, and he becomes a free man. He then acquires all the other property.

If, however, the master retains for himself even the slightest amount of property - even movable property, the servant does not acquire anything.

The rationale is that the deed is not a complete bill of freedom, for the master retains some connection to the bill of transfer. Therefore, the servant is not freed, and since he is not freed, he does not acquire anything.