Zechiyah uMattanah - Chapter 4

The Kessef Mishneh questions the Rambam’s statements with regard to this matter. For seemingly, if the gift has a blemish that the recipient did not notice until later, he has the right to return it, as does the purchaser of an article who discovers a blemish. The Kessef Mishneh explains that the Rambam is referring to a blemish that was obvious from the outset.

This is somewhat of an overstatement. As the Rambam proceeds to state, these statements are equivalent to a formal renunciation of ownership. They are of no consequence with regard to the fact that the article is never returned to its original owner (Kessef Mishneh).
The Ra’avad and the Ramah (Choshen Mishpat 245:10) seek to clarify the Rambam’s statements, explaining that the law the Rambam mentions applies when the statements made by the recipient indicate his lack of desire to accept the gift. If, however, the recipient states that the gift was never properly acquired, his statements are accepted. The rationale is that when he testifies to the detriment of his own position, the statements of a principal involved in a judgment are accepted more than those of 100 witnesses. Therefore, if the recipient claims not ever to have received the gift, his statements are accepted. (See Halachah 13 and notes.)

Through a valid kinyan, as one takes possession of other ownerless property, as described in the previous chapters.

The Ramah (Ibid.) states that if the recipient has a creditor who can support his claim with a loan contract, the creditor acquires the article automatically. for he has a lien on all articles belonging to the recipient.

Through the statements that he made.

For a person cannot be compelled to accept property against his will.

The third party is considered to be a shaliach, “agent,” of the recipient, for we assume that the recipient would have desired that he be appointed in this capacity.

In which instance the property would be ownerless and could be claimed by anyone who takes possession of it, as the Rambam proceeds to explain.
The Shulchan Aruch (Choshen Mishpat 245:11) mentions a difference of opinion among the Rabbis whether or not this question applies also with regard to a matnat sh’chiv me’ra (the deposition of an oral will). The Ramah, however, rules that such a distinction should not be made between that instance and an ordinary gift.

And hence, he felt no necessity to issue a protest.

In which instance the property would revert to the possession of the original owner, as the Rambam proceeds to explain.

I.e., because of our doubt regarding the ownership of the article.

The original owner of the article might desire to reclaim the article as his own, maintaining that the recipient never accepted it, and so it reverts to his ownership, as stated in Halachah 1. His claim is not accepted, because there is no way of resolving the doubt mentioned above.

This ruling is not accepted by all authorities. As mentioned in the notes on Hilchot Nizkei Mammon 1:11, according to the Rambam, since the doubt remains unresolved, whichever of the two parties who have a claim to the article is in possession at the time is allowed to maintain possession. If, however, the other party takes possession by force, he is allowed to retain possession.
Other authorities do not allow the original owners to seize possession of the article by force. Since at the time the question first arose, the article was in the possession of the person who acquired it, he should be allowed to maintain possession.

A zuz is synonymous with a dinar.

Gittin 11 b states that saying “give to” is equivalent to saying “acquire on behalf of.” There is, however, a distinction between the two terms, as explained in Halachah 11 and notes.
As reflected in the rulings of the Shulchan Aruch (Choshen Mishpat 125:6-7), this concept is not accepted by all authorities, and there are those who distinguish between “give to” and “acquire on behalf of.”

For according to the Rambam, in both instances the wording Reuven uses implies that Levi will serve as an agent and acquire the money on behalf of Shimon. Therefore, as soon as the money is given to Levi, Shimon acquires it.

The Shulchan Aruch (Choshen Mishpat 243:2) emphasizes that if the recipient is a poor person, the giver is not able to retract even if he uses this wording. Moreover, even if the recipient is wealthy, there are occasions where retracting can cause him to be considered faithless, as stated in Hilchot Mechirah 7:9.

For this choice of wording indicates that Reuven desires Levi to bring the money to Shimon, and for Shimon to acquire it himself. Therefore, Shimon does not acquire the money until it reaches his own domain.
As the Ra’avad emphasizes, these concepts apply only with regard to giving a gift. With regard to repaying a debt or returning a lost object, even if the person uses the expression “bring,” once the article is given to the agent he cannot retract. See Hilchot Malveh V’Loveh 16:2; Hilchot Sechirut 1:6.

By stating “bring,” Reuven did not transfer ownership of the money to Shimon. Hence, since Levi could not deliver the money, it should be returned to its legal owner.

I.e., in the event that Reuven died after Shimon did, before the money could be returned to Reuven (Maggid Mishneh).
Because of Shimon’s death, Levi can no longer fulfill the mission with which he was originally charged. Therefore, the money should be returned to its original owner or to his heirs.

I.e., in the event that Shimon died after Reuven did. Even though the money was not given to Shimon, the money should be given to Shimon’s heirs, because as soon as Reuven died, the money became Shimon’s, for the reasons the Rambam proceeds to explain. Thus, in the event of Shimon’s death, it should be given to Shimon’s heirs.

See Chapter 10, Halachah 12, with regard to the ruling when similar instructions are given when a person is allocating his property through the deposition of an oral will.

I.e., had the money been returned to Reuven before he died, there would be no obligation to give it to Shimon or his heirs. Nevertheless, since it remained in the hands of Levi, Reuven’s agent, it is a mitzvah to follow the instructions that Reuven gave.
It is only when the money (or article) is entrusted to a third party for this specific purpose, before the principal’s death, that this principle applies [Ramah (Choshen Mishpat 252:2)]. Otherwise, it remains part of the principal’s estate and is transferred to the principal’s heirs.

As explained above, a person who acquires property on behalf of a colleague is acting as his agent. To serve as an agent, one must be past majority and mentally competent (Hilchot Shluchin 2:2).
As the Rambam proceeds to explain in the following halachah, even though in certain instances a minor can acquire property for himself, he cannot do so on behalf of others.

I.e., a woman married to anyone else besides the person giving the gift. A woman married to the person giving the gift cannot acquire property on behalf of another person unless she has a right to it herself [Maggid Mishneh; Ramah (Choshen Mishpat 243:14)].
The fact that a married woman does not have an independent financial capacity - but rather whatever she acquires for herself becomes encrusted to her husband - does not prevent her from acquiring property on behalf of another person (Hilchot Shluchin, loc. cit.).

I.e., a servant or maidservant belonging to anyone else besides the person giving the gift. A servant belonging to the giver of the gift cannot receive the property on behalf of another person, because the servant is considered an extension of his master (Maggid Mishneh, based on Eruvin 79b).

For, as stated in Hilchot Shluchin, loc. cit., a servant can serve as an agent. The only exception is an instance involving marriage or divorce.

Note the Siftei Cohen 243:5, who rules that a gentile can acquire property from a Jew on behalf of another gentile.

Hilchot Shluchin 2:1. There are opinions (Bava Metzia 72a) that maintain that a gentile can acquire property on behalf of a Jew, but the Rambam does not accept them.

Ibid..

He has obviously attained a certain degree of maturity.

The Maggid Mishneh and the Ramah (Choshen Mishpat 243:15) maintain that this applies even according to Scriptural Law. Although the Rambam has stated (Hilchot Gezelah 17:4, 12) that a minor has the right to acquire an ownerless object only according to Rabbinic law, different laws apply to receiving a gift. The rationale is that in these instances the consent of another person (the giver of the gift) endows the child’s act with greater legal power. Even so, with regard to the acquisition of property through a sale, although the consent of another person is also involved, the child’s acquisition is only Rabbinic in origin, as explained in Hilchot Mechirah 29:1.

For as reflected in Hilchot Gezelah 17:4, a greater level of understanding is required to acquire property on behalf of someone else than to acquire it for one’s own self.
A minor may acquire property on behalf of others according to Rabbinic Law. Therefore, a minor may be involved in the making of an eruv (Siftei Cohen 243:7).

According to Scriptural Law. He does, however, acquire it according to Rabbinic Law.

I.e., according to Scriptural Law. According to Rabbinic law, he has this capacity, as reflected in Hilchot Gezelah 17:12 (Sefer Me’irat Einayim 243:28).

For certainly a mentally incompetent person is no worse than the newborn child described in the following halachah (Sefer Me’irat Einayim 243:30). The Ketzat HaChoshen 243:6 takes issue with this point, for the child will eventually mature into a responsible adult, while it is possible that the mentally incompetent person will never attain competency.

But not for others [Shulchan Aruch (Choshen Mishpat 243:17)]. See Hilchot Gezelah 17:4,12, which explains that, although according to Scriptural Law a deaf mute is considered to be mentally incompetent, nevertheless, according to Rabbinic law he is given the right to acquire ownerless property. Sefer Me’irat Einayim 243:31 explains that, just like a child, he has the potential to acquire a gift according to Scriptural Law, because the consent of another person is involved.

It would appear that even according to Scriptural Law, the gift becomes the property of the minor.

I.e., an adult’s or a female minor’s. As the Rambam proceeds to explain, the courtyard functions as an agent, and a male minor cannot employ an agent.

Since, a the Rambam states in the following halachah, the article will be kept safe in the courtyard, it function like an agent. Therefore, it is given the halachic status of one.

When the courtyard is not protected, it cannot serve as an agent.

In his gloss on Hilchot Gezelah 17:8 (where these concepts are first raised), the Maggid Mishneh states that the intent is within his field, at its side. If he is outside the property, he does not acquire the object. See Ramah (Choshen Mishpat 200:1).

From Hilchot Gezelah 17:11, it is obvious that this law applies only to immobile objects.

If however, the per on is not standing there, or he is standing there but does not make such a statement, he does not acquire the object (Hilchot Gezelah 17:8).
The Rambam’s opinion is cited by the Shulchaii Aruch (Choshen Mishpat 243:21). The Tur and the Ramah (commenting on this law and on Choshen Mishpat 200:1) differ and maintain that with regard to a sale or a gift, it is not necessary for the courtyard 10 be safeguarded for the recipient (or purchaser) to be acquire a gift or purchase. As long as the giver (seller) is able to safeguard the object in an unprotected field belonging to the recipient, that is sufficient

This measure was chosen because it represents the height of an ordinary person standing with outstretched arms. This is as far as he can reach to pick up an article without leaving his place.

See Sefer Me’irat Einayim 268:3, which cites an opinion that maintains that a _person can acquire an object by virtue of its entering the four cubits adjacent to him only when he is standing still. If he is walking, this is not an effective means of acquisition.

Our Sages ordained that the area in a person’s immediate reach be considered equivalent to his private, guarded courtyard. In such an instance, he is not required to make a statement of intent regarding the acquisition of an article.

For the convention of four cubits is not effective there, nor on property belonging to another person (Hilchot Gezelah 17:9).

The Ramah (Choshen Mishpat 243:23, based on Rabbenu Yitzchak Alfasi) writes that this applies only to a female minor who has been orphaned [or one who is married (Sefer Me’irat Einayim 243:39)]. For only in those instances does she have an independent financial capacity.
The Siftei Cohen 243:11, however, notes that there are many Rishonim who differ with Rabbenu Yitzchak Alfasi and maintain that since this privilege is granted to a female minor who does not have a father, it is also granted to all female minors.

In Hilchot Gezelah 17:10, the Rambam writes:
[The rationale for these laws is that] we derive [the concept that] a female minor [may acquire property by virtue of its presence in her] courtyard from [the fact that] she is able to acquire an article that is placed in her hand. For just as she can be divorced by virtue of a bill of divorce being placed in her hand, so too can she be divorced by virtue of a bill of divorce being placed in her courtyard. And just as her courtyard is effective with regard to [the acquisition of] a bill of divorce, so too, it is effective with regard to [the acquisition of] a lost object.
[From this we also conclude that she may acquire an article by virtue of its presence in the area within a radius of] four cubits of her, for this area is considered her courtyard with regard to [the acquisition of] a lost article.

In Hilchot Gezelah, loc. cit., the Rambam explains:
The [potential for] a man [to acquire property by virtue of its presence in his] courtyard is derived, by contrast, from [the fact that] he is able to acquire an article via an agent. Just as an agent can acquire [an article] for him, so too, can he acquire [an article by virtue of its presence in his] courtyard. Since a male minor is incapable of charging an agent to act on his behalf, so too, he cannot acquire [an article by virtue of its presence in his] courtyard or in [the radius of] four cubits around him; it must reach his hand.
As stated in the notes on Hilchot Mechirah 29:10-11, the Ra’avad maintains that the above principles apply only with regard to the acquisition of ownerless property. With regard to a sale or a gift, since the consent of another person is involved, a male minor may acquire property placed in his courtyard. The Shulchan Aruch (Choshen Mishpat 243:23) accepts the Rambam’s ruling.

See Hilchot Gerushin 2:6, which explains similar concepts with regard to a bill of divorce. The fundamental principle that applies in both instances is that an agent can be charged with an object to convey or a task to perform, but he cannot be charged merely with instructions to convey.

Even though three people constitute a Rabbinic court, their actions are not acceptable in this instance (Sefer Me’irat Einayim 244:2).

The Ra’avad adds that it is certainly not acceptable if these individuals write the deed themselves, for they were never charged with that responsibility by the giver.

The Ramban and the Tur (Choshen Mishpat 244) do not accept this ruling and maintain that if these instructions are conveyed to the agent and followed, the gift is binding. The Shulchan Aruch (Choshen Mishpat 244:1) mentions both views without stating which is to be followed.

This is a lesser situation than the previous one, for in the first instance the people received specific instructions to convey to the scribe, while in this instance they chose to entrust the task to the scribe on their own. Nevertheless, one might think that since they were capable of writing the deed on their own, they could also entrust that responsibility to an agent.

This ruling is accepted by the Tur. On this basis, we can appreciate the Tur’s interpretation of the principle: “Words cannot be conveyed by an agent.” When an agent is given instructions to perform a task, but is not given an article in his hand, he cannot convey those instructions to another person. See Tur (Even HaEzer 141).

The Ramah (Choshen Mishpat 245:1) emphasizes that if a person makes such statements verbally, they are not effective in transferring ownership over property unless he performs a kinyan to that effect. Nevertheless, if a person makes an admission of the fact that has has previously transferred property, his statement is accepted. (See the following halachah.)

All these expressions employ the past tense.

Since his statement employs the future tense, it is interpreted as merely a promise to give a gift; it does not effect a transfer of property. With regard to the use of the present tense, the Shulchan Aruch (Choshen Mishpat 243:3) quotes an opinion that states that the document is acceptable. For unlike the future tense, it can be interpreted to mean that the article is being transferred at this time.

The Kessef Mishneh states that in such an instance, the use of the future tense would also be acceptable, for it could be interpreted to mean that the person is telling the witnesses that when they compose the deed (in the future), he will transfer the property to the recipient.

See Halachah 2.

The recipient is not rejecting the gift (see Halachah 1). but rather admitting not ever to have received it (Sefer Me’irat Einayim 245:7).

As stated in Halachah 2, without the knowledge of the recipient. Since it i possible to resolve the statements of the two principals in this manner, the transfer is binding.
The Tur and the Shulchan Aruch (Choshen Mishpat 245:4) tale that this ruling applies only when the giver has other unencumbered property. If, however, that is not so and a creditor of the giver is trying to expropriate this property as payment for a debt, the giver’s statement is not accepted.

I.e., to the recipient himself.

The commentaries raise the question: Why is the recipient’s statement accepted and not the giver’s? Just as the recipient is a principal, so is the giver.
The Rashba (in his commentary on Bava Batra 40b) offers two resolutions:
a) we suppose that the recipient will remember better than the giver, because the giver may have thought that he will give, but then changed his mind;
b) The property is in the possession of the giver, and it is the recipient who must prove that it is his. Since the recipient denies receiving the property, he cannot substantiate such a claim.

I.e., the produce that grew between the time the gift was given and the time the matter was brought to the attention of the court.

The Tur interprets this as referring to an instance when the son of the recipient claims to have been present when his father rejected the gift. Even so, we say that perhaps he was not aware of his father’s dealings and that later his father accepted the gift. If, however, he does not make such a statement, we assume that his father received the gift without his knowing about it. The Shulchan Aruch (Choshen Mishpat 245:6) quote this understanding with the preface: “There are those who say that....”

The Maggid Mishneh differentiates between the instance described in this halachah and Halachah 1 as follows: In this halachah, the recipient is denying that he ever received the gift. In such an instance, we follow the maxim: The statements of a principal are considered equivalent to the testimony of 100 witnesses. Therefore, the gift is returned to its original owner. In Halachah 1, by contrast, the recipient admits receiving the gift, but wishes to disavow ownership.

This claim is significant if the recipient is being held liable for a debt, he lacks sufficient funds to pay it, and his creditor seeks lo expropriate the gift. If the recipient’s claim is accepted, the gift is returned to its original owner. Otherwise, it will be expropriated oy the creditor.

The Ra’avad and the Tur (Choshen Mishpat 245) protest the Rambam’s· requirement of an oath. For seemingly, there is no reason t require the recipient to take an oath, denying the fact that he received the gift. The Maggid Mishneh admits the force of the Ra’avad’s argument, but rates that perhaps an oath is required if the recipient’s creditors are claiming the property. This interpretation is reflected in the statement of the law by Sefer Me’irat Einayim 245:12.

This law applies to a gift of movable property or of landed property when it has been io the recipient’s possession for more than three years. (See Hilchot To’en V’Nit’an 8:1, 11:1.)

The person who claims to have received the gift.

As in all cases where a person totally denies a claim lodged against him.

For the plaintiff is required to prove his claim, not the person in possession of the disputed article.