Zechiyah uMattanah - Chapter 8

This is an Aramaic term literally meaning “lying down because of sickness.” Note the Targum of II Kings 13:14.

In Talmudic times, these laws carried great importance, because they represented the most common manner in which a dying man apportioned his estate. Rather than prepare a written will, most people would apportion their property orally in the manner that the Rambam proceeds to explain in the following chapters. In the present generation, for various reasons (see the commentary on Halachah 27), the concept of an oral will has fallen out of use, and property is generally apportioned through a written will.

The Ramah (Choshen Mishpat 250:5) emphasizes that this convention applies even if the dying man does not explicitly state that he is apportioning his property in preparation for his death.

On the Sabbath, it is forbidden to draw up a legal record, and ordinarily transactions that would require such a record are also forbidden. See Hilclrot Slwbbat 23:12.

The dying man will most likely fear that if all the ordinary legal conventions for the transfer of property were required, he would not live long enough to apportion all his property. Therefore, in consideration of his feelings, our Sages did not require them.

Like landed property, which is acquired with a deed of transfer (Sefer Me’irat Eina yim 250:3).

Like movable property, which is acquired by meshichah (ibid.).

I.e., our Sages instituted this practice so that a person could apportion his property calmly, secure in the knowledge that his instructions would have all the weight of a binding legal convention (Bava Barra 147b).

Since it is unnecessary and is performed solely to appease the dying man, we allow it to be performed on the Sabbath. For it is only a Rabbinic decree, and it can thus be superseded out of concern for the dying man.

Hilchot To’en V’Nit’an 6:6 explains that ordinarily a person may make certain statements about financial matters while speaking facetiously, without any intent that his words be taken seriously. To make certain that the defendant does not claim to have spoken in such a manner, ordinarily, his statements will not be accepted in a court of law unless he says “You are my witnesses.” An exception is made in this instance because of the rationale explained by the Rambam.

In Hilchot Mechirah 22:10, £he Rambam explains that this leniency is granted despite the fact that ordinarily a person cannot transfer property to a person who does not yet exist. In this halachah, as a preface to the laws which follow, he adds that this law also applies with regard to a sh’chiv me’ra.

The Maggid Mishneh explains that according to the Rambam, this law [derived from Bava Batra 140b] applies only with regard to a sh’chiv me’ra and not with regard to a healthy person. For a healthy per. on would have to confirm such statements with a kinyan, and this is not possible in this instance, for money cannot be acquired through a kinyan sudar (Hilchot Mechirah 5:6). Moreover, this is a n asmacfua, for since the person doe s not know the gender of the child his wife will bear, we assume that he did not make a serious commitment. (See also Siftei Cohen 253:35.)
The Rashba, however, differs with the Rambam and describes situations where this law could apply with regard to a healthy person as well. (The commentaries derive an important principle from this discussion: That an asmachta is binding for a sh’chiv me’ra.)

100 zuz.

This clause is necessary. Otherwise, one might think that the father did not necessarily realize that his wife was pregnant with twins and did not intend to give gifts to both his son and his daughter (Sefer Me’irat Einayim 253:58).

A person whose genital area is covered by skin and whose gender cannot be identified. If afterwards the Tumtum undergoes an operation and his genitals are revealed, he is considered to be of whichever gender is revealed.

A person who possesses both male and female sexual organs.

I.e., in this instance they receive as sons. If, however, the father desired to give a larger portion to his sons, they receive as if they were daughters.
The rationale is, as the Rambam rules in Hilchot Ishut 2:24, that there is an unresolved doubt with regard to the gender of these individuals. Hence, they are always given the lesser amount. See also Hilchot Nachalot 5:2.

The rationale is that it is clear from his statement that he desired that the money be given to his son. (See Chapter 6, Halachah 1.) Moreover, even if the son dies, since the gift did not take effect at the time that it was given, it does not take effect afterwards.

For the intent of the sh’chiv me’ra is that if he recovers, he will continue to own his property.

Not only do the intended recipients not acquire the property until the sh’chiv me’ra actually dies, but their acquisition takes effect at that time only. We do not say that retroactively the property becomes theirs from the time the sh’chiv me’ra apportioned it to them.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 252:1) explain that this does not refer to the money due the deceased’s wife by virtue of her ketubah. Certainly, that money is expropriated for her, for he would have the right to collect that money even if the property had been sold. Instead, the intent is ketubat benin dichrin - i.e., when a man has sons from two different wives, each of the sons has the right to collect the money due his mother by virtue of her ketubah from his father’s estate (Hilchot Ishut 19:13). Even this privilege takes precedence over the deceased’s apportionment of his property.

A husband’s estate is responsible to pay for his widow’s living expenses until she remarries or collects the money due her by virtue of her ketubah. Similarly, it is liable for the living expenses of his daughters until they marry or attain majority.

Therefore, the sons and the widow and his daughters have a prior claim. Needless to say, a creditor of the deceased has a prior claim, and his debt must be settled before the gifts that were apportioned can be given out.

The Hagahot Maimoniot maintain that the same law applies when a legal document is not prepared, but the sh’chiv me’ra has his statements confirmed by a kinyan.

See Halachot 15-17, which describe when a kinyan is and is not necessary when a dying man apportions only part of his estate. This halachah is speaking about an instance when a kinyan is not necessary.

In which instance a kinyan is never necessary, as stated in Halachah 2.

Since the sh’chiv me’ra is rejecting the halachic convention our Sages offered him, he is not given its benefits.

For in this instance, the sh’chiv me’ra is not rejecting the convention granted him, but rather seeking to strengthen the recipient’s position.

We assume that he is peaking about landed property worth a maneh, for money itself cannot be transferred through the medium of a legal document.

The Ra’avad states that even if the legal document was written while the sh’chiv me’ra was alive, the gift should not be made after his death, because the witnesses who composed the document are considered to be the dying man’s agents, and with his death their agency ceases.
The Shulchan Aruch (Choslzen Mishpat 250:17) goes even further, stating that even if the legal document was transferred while the sh’clzlv me’ra was alive. the gift is not effective, because the intent of the sh’chiv me’ra was that the gift not take effect until after hi death.

This indicates that hi intent is that the gift be given as a matnat sh’chiv me’ra.

Similarly, if the le ga l document states: ‘May this legal document function in a manner that is effective,” the legal document is effective [Ramah (Choshen Mishpat 250:17)].

I.e., without stating explicitly that he is giving it as a matnat sh’chiv me’ra.

When quoting this law, the Shulchan Aruch (Ciwsh en Mishpat 250:2) emphasizes that the sh’chiv me’ra must “recuperate entirely.” See Halachot 25 and 26 and notes for clarification regarding this issue.

Automatically; the person who was ill need not perform any legal act to reclaim ownership of his property.

Although the Mishnah (Bava Batra 146b) mentions only landed property, the Gemara (ibid. 150b) clarifies that the intent is also movable property.

I.e., without explicitly stating that it is being given as part of the dying’s man apportionment of his property.

As reflected by the following halachah, the rationale is that by retaining property, the person indicates that he is considering the possibility that he will recover from his illness and wants to ensure that in that eventuality, something is left for him. If this were not so, why else would he give away part of his estate, but not the entire estate? Accordingly, any property that he did give away is considered to be like a gift given by a healthy person.
While accepting the basic concept, the Tur and the Ramah (Choshen Mishpat 250:4) differ and state that this principle applies only when the person retains enough property to support himself. Otherwise, the retention of property is not considered sufficient indication that the person meant his gifts to be binding even if he recovered.

In Hilchot Mechirah 1:7, the Rambam writes that the transfer of property via a legal document is effective from the time the document reaches the hand of the recipient. This is probably the intent here as well.

Since it is like a gift given by a healthy man, it is not automatically retracted if the dying man recovers.

The intent is any valid kinyan - e.g., kinyan chalifin, meshichah or lifting the article up (Ramah, Ibid.).

Since it is like a gift given by a healthy man, it must be confirmed using the same legal conventions as a gift given by a healthy man.

Such a person is referred to as a ;, n•o ncno ;,1:;o, “one who apportions [his property] because of [his impending] death.”

Halachot 10-11.

Even though the person is dying, the wording he uses changes the halachic status of the gift that he is giving. For this reason, the Ramah (Choshen Mishpat 250:9) states that careful attention must be paid to the wording used by a dying man or written in a legal document on his behalf.

During the giver’s lifetime.

As the Rambam states in Chapter 12, Halachah 16 [quoted by the Shulchan Aruch (Choshen Mishpat 251:1)], if such a document is composed by a healthy person, we assume that the intent is that the gift take effect immediately. It states “in death” only as a figurative expression, indicating that the gift should continue forever.

I.e., the fact that it states “in life” is not interpreted as indicating that it takes effect from the time that the gift was made.

For, as stated in Halachah 17, when a gift involving only part of a person’s estate is given explicitly as a matnat sh’chiv me’ra, it is granted that status.

As is necessary when giving part of one’s estate (Halachah 15).

As would ordinarily apply with regard to such a gift (ibid.).
The Maggid Mishneh states that if the sh’chiv me’ra does in fact die, the person to whom the property is given may in fact take possession of it. The suspicion mentioned by the Rambam is not strong enough to refute that claim. It is only when the person recovers that a question arises.
Rabbenu Asher and the Tur do not accept the interpretation of the Maggid Mishneh and maintain that this suspicion applies even if the sh’chiv me’ra dies. See Sefer Me’irat Einayim 250:28.

And he has thus not apportioned all his property.

I.e., he specifically states that the property that he apportions is his entire estate.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 250:11) emphasizes that there is no difference whether a sh’chiv me’ra gives all his property to one per on or divides it among- many.

This is evidenced by his rapid announcement of the division of his estate, without pausing (Rasbbam, Bava Batra 148b).

The pause indicates that he considered every gift to be an individual matter not necessarily connected with the gift that preceded or followed it.

Since the gifts are considered to be individual matters, each must be confirmed with a kinyan, except the last gift. Only then are. such gifts effective.
The last gift, since it includes all the person’s remaining property, is considered to be an ordinary matnat sh’chiv me’ra and a kinyan is not necessary. For this reason, the Ra’avad and the Maggid Mishneh emphasize that with regard to this last gift, the kinyan. must have been performed only to amplify the legal power of the recipient, as stated in Halachah 11.

The other recipients acquire the property given them. The rationale is that since he confirmed his gift with a kinyan, each is like a gift given by a healthy person, as stated in Halachah 15.

If, however the sh’chiv me’ra gives the servant only a portion of his property, the slave does not even acquire his own freedom, as stated in Hilchot Avadim 7:1.

The Maggid Mishneh quotes the Rashba as explaining the rationale as follows: Once a s lave is freed, he can never be enslaved again. This is a point of common knowledge; certainly the master is aware of it. Therefore, we assume that the master’s intent when making this statement was to free him.

The Shulchan Aruch (Choshen Mishpar 250:15) states that if the master gives the lave the property “from today, if I die, ‘the slave is not granted his freedom if the master recovers. The rationale is that the gift was obviously conditional in nature.

To exemplify this concept, Bava Batra 151b speaks of a woman who says of herself: “Woe, this woman is dying.”

The fact that a kinyan was made would make the gift appear to resemble a gift given by a healthy person - in which instance, it is binding even if the dying man recovers (Halachah 15). Nevertheless, since it is obvious that his intent was that he was dividing his property because he thought his death was imminent. it is as if he made an explicit condition to that effect.
Based on this interpretation, we are forced to say that the kinyan was performed merely to amplify the legal power of the recipient, as explained in Halachah 11.

In the desert (Rambam’s Commentary on the Mishnah (Gittin 6:5)].

This refers to a person who is being taken from jail before a judge to be sentenced (Ibid.). In Hilchot Gerushin 2:12, the Rambam states that this applies even if he is being judged for financial crimes.

In all these cases, particularly in Talmudic times, there was a real danger that the person would die. Rather than leave his estate intestate, a person might desire to make a will in such a situation. It is possible that he may not have the means at his disposal to draw up that will in a manner that would be effective according to the standard legal conventions. Because of the pressing nature of his situation, our Sages gave him the option of apportioning his property through an oral will, like a sh’chiv me’ra.
Although the Rambam’s decision is quoted by the Shulchan Aruch (Choshen Mishpat 250:8) and the Ra’avad does not object, there are many authorities- e.g., Rabbenu Asher, Rabbenu Yonah and the Rashba - who do not accept this ruling with regard to a person who departs on the sea or who undertakes a caravan journey. Their opinion is mentioned by Sefer Me’irat Einayim 250:22.

I.e., the laws that apply to a sh’chiv me’ra apply to them.

Walking unsupported at home, by contrast, is not considered to be a sign that he has recovered [Ramah (Choshen Mishpat 250:2)]. (Sec also Hilchot Rotzeach 4:4.)

Since he did not recover at all, the fact that he died from a different sickness is not significant, and the apportioning of his property that he made is binding.

In the marketplace; even walking unsupported at home is not considered to be proof that the person recovered.

If he did not die because of the first sickness, the fact that he was able to walk outside is considered a sign of his recovery. And this recovery, even though it was only temporary, is sufficient to have the property revert to his ownership.

The Kessej Mishneh notes that in Hilchot Gerushin 9:19, the Rambam writes that an evaluation must be mad e even if the dying person walked unsupported in the marketplace, because the laws regarding a hill of divorce are more severe than those applying to a gift.

For we assume that he recovered.

The Ramah (Choshen Mishpat 251:2) writes that the witnesses do not have to be present at the person’s death to make such a statement. For this, they can rely on the people who are present at that time [even if they are not acceptable witnesses (Sefer Me’irat Einayim 251:7)].

If, however, the recipient seize the property before the dying man’s death, the burden of proof becomes the heirs’ [Ramah (Choshen Mishpat 251:2)].

This is one of the reasons that the practice of an oral will has fallen into disuse. For if the heirs claim that the per on recovered - particularly if they bring physicians who testify that the cause of death cannot be determined- it becomes the recipients’ obligation to prove that the sh’chiv me’ra died from his original sickness. Since this is not always possible, the property remains in the possession of the heirs.