Zechiyah uMattanah - Chapter 12

This applies when the sh’chiv me’ra made a verbal statement alone. If, however, he had his statements written down, we assume that his intent was to make that son an executor, as stated in Chapter 6, Halachah 2 and Hilchot Nachalot 6:2.
The Ramah, Rabbenu Asher and the Tur make a different distinction, explaining that when the sh’chiv me’ra uses the expression “give,” he is making his son an executor, but when he uses the expression “inherit,” that son is entitled to the entire estate. See Sefer Me’irat Einayim 281:3.

This statement applies only with regard to a legitimate heir. If a person is not an heir, he cannot be granted a portion of an estate using such an expression (Hilchot Nachalot 6:1).

Bava Batra 130a derives this concept from the exegesis of Deuteronomy 21:16: “On the day that he leaves his property to his sons.” Our Sages interpret this to mean that the dying man has the authority to “leave his property to his sons” – i.e., divide it at will.
Based on this principle, a sh’chiv me’ra may also divide his estate among several of his heirs, giving one more than the other [Ramah (Choshen Mishpat 281:1)].
This law applies only when there is no son who is a firstborn. If there is a firstborn son, the father does not have the option of denying him his birthright, as Deuteronomy, ibid., states. This applies if the sh’chiv me’ra uses the expression “inherit.” If he gives the estate as a gift to another son, the firstborn’s share can be denied [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 281:4)].

Bava Batra 131a leaves undecided the question whether a healthy person can give gifts using the expression “inherit,” for the time for the inheritance has not arrived yet. Since the question is left undecided, the property cannot be expropriated from the heirs.

I.e., anyone who is not an heir.

The property that the first person inherits from the dying man’s estate, and that the first person did not wear out, sell, give away (see Halachah 9) or destroy before his death is given to the second person. This gift is never considered part of the first recipient’s estate, and he can never transfer ownership of it to his own heirs (Halachah 10).

Or any person who would be one of the heirs scheduled to receive a portion of the inheritance.

This applies even when the second person the sh’chiv me’ra named is also a legitimate heir [Maggid Mishneh; Ramah (Choshen Mishpat 248:1)].

Provided it was clear that he was not merely named as the executor, as stated in ch. 6.

Note, however, Halachah 6, which states that the giver can place certain restrictions on the inheritance by making an explicit statement to that effect.

He must use the expression “give.” If, however, a healthy person uses the expression “inherit,” his gift is not binding, as indicated in Halachah 2 (Sefer Me’irat Einayim 248:6).

The rationale is that a healthy person can give gifts. He does not have the legal authority to transfer an inheritance. Therefore, the exception mentioned in Halachah 4 does not apply, because it is unique to an inheritance.

As if it were a gift given by a healthy man.
The Rambam’s ruling represents his interpretation of Bava Batra 129a, b. Although the Ra’avad and others interpret that passage differently, the Shulchan Aruch and the Ramah (Choshen Mishpat 248:2) accept the Rambam’s ruling.

I.e., since the giver has the potential to give gifts to his heirs without having the gifts considered an inheritance.

The commentaries explain that this applies even if he entrusted the money to a third party without making an explicit statement, as explained above. Since the third party received specific instructions from the sh’chiv me’ra, he must follow them (Beit Yosef, Choshen Mishpat 248).

In contrast to the law stated in Chapter 11, Halachah 23, in this instance we do not say that he was merely encouraging his sons to live frugally. For in this instance, he already gave the money to another person.

Whether before or after the death of the sh’chiv me’ra. Even if the first person mentioned never took possession of the property, it is given to the second after the death of the sh’chiv me’ra.

For this was the giver’s will.

For no stipulation was made with regard to his acquisition of the property. Thus, it is transferred to his heirs.

For the stipulation made by the original giver can never be fulfilled.

The Rashba (Volume III, Responsum 122) states the prohibition is not a point of law per se, but rather an ethical measure that the recipient should uphold in order to carry out the will of the departed.

The Rashbam (Bava Batra 137a) states that although the person who gives the advice is considered “wicked,” the recipient who sells or gives away the property is not considered to be “wicked.” The rationale is that he acted for his own benefit, while the person who gave him advice did not derive any personal benefit from his conduct. The Ir Shushan, by contrast, considers the seller “wicked” as well.

Even though freeing servants involves a transgression, the actions of the recipient are still binding (Sefer Me’irat Einayim 248:12).

The commentaries explain that this refers to wasting a valuable garment by using it is as a shroud (Ibid.:13).

Despite the fact that the recipient’s conduct was undesirable and ran contrary to the will of the giver, the recipient’s deeds are binding (Ibid.).

The Maggid Mishneh explains the Rambam’s ruling as follows: From the fact that the original giver stipulated that after the first recipient’s death, the property should be given to someone else, we understand that it was not his intent that he give it to his sons. For we assume that a person would give his property to his sons, and for that reason, he stipulated that the property must be given to another person. Thus, if the recipient sells or gives it to his own sons, he violates the conditions of the original gift, and his actions are therefore not binding.
We do not, however, say that all sales or gifts are not valid, because the giver would not think that he would sell or give away the property to an outside party. Hence, doing so is not a violation of his stipulation (Sefer Me’irat Einayim 248:15).
The Rambam’s ruling is based on his interpretation of Bava Batra 137b. Although the Ra’avad and the Rashbam interpret that passage differently, the Rambam’s interpretation is quoted by the Shulchan Aruch (Choshen Mishpat 248:4).

I.e., before the first recipient died, he wished to apportion his estate and give this property to another person.

I.e., before the first recipient died, he divorced his wife and became liable for the money due her by virtue of her ketubah.

Even though the first recipient could use the property to pay his debts, and it is considered as being on lien to the debt since the payment has not been made, it is still considered to be belonging to the first recipient. And the court would not violate the will of the original giver by yielding it to someone else.

The court may – and should – indenture the proceeds, for these are the sole property of the first recipient.

Who seeks to collect the money due her by virtue of her ketubah.

I.e., designated them as the source from which a debt will be repaid.

For his claim to it has precedence over that of the creditor or the wife.

This is one of the laws ordained by our Rabbis at Usha to stabilize the social conditions of the Jewish people (Ketubot 50a). When a man marries a woman, he is considered to have purchased her property. If she sells any property, he has the right to expropriate the property from the purchaser.

It is as if the woman sold the property to him, and thus the law stated in Halachah 9 applies.

Since this was the explicit condition of the gift, the husband has no right to the property.

When a woman sells property, her husband ordinarily has the right to nullify the sale and take the property, as stated above and explained in Hilchot Mechirah 30:3.

And he has the right to nullify the sale.

For, as mentioned above, the giver explicitly stated that the property should be given to him, rather than to the woman’s husband.

If she sells it, the sale is binding, as stated in Halachah 9.

There are, indeed, other instances where the cycle is allowed to continue endlessly until the parties reach a compromise. That ruling is not applied in this instance because of the rationale mentioned by the Rambam.

She was his only daughter, and thus his heir.

And thus he is entitled to inherit her property.

And a husband inherits only property that is in his wife’s possession at the time of her death, not property that is fit to come into her possession at a later time (ra’ui).

For the daughter (wife) has no right to the estate until after her grandmother’s death.

Even if the daughter had left an heir.

Since the estate would be considered as actually having been owned by the daughter before her death, her husband would have the right to inherit it.

I.e., the ownership of the property is transferred at the time of the giver’s death, but it takes effect retroactive to the date of the legal document.

This is one of the common legal processes through which a will was made in Talmudic times. Nevertheless, as reflected in the laws mentioned in this halachah, it has certain drawbacks, for the owner’s rights to his property are restricted.

I.e., the son who was given the property, and it is not considered to be part of the estate as a whole. Although legally it is part of the estate – as reflected by the continuation of the halachah – an exception is made for the reason the Rambam states.

See Chapter 8, Halachah 5 and notes.

For once produce is ready to be detached, it is considered as if it were already detached (Hilchot Mechirah 1:17).

For the produce is considered to be part of his estate as a whole.

If the son dies before his father, the property belongs to the son’s heirs, and they may expropriate it from the purchaser (Maggid Mishneh).

The Tur and the Ramah (Choshen Mishpat 257:3) differ and maintain that the produce belongs to the son, as if his father had not sold the property.

For until the father dies, the son has no right to the use of the property.

We do not say that the property reverts to the father’s ownership and is acquired by his heirs.

This addition is based on the explanation of Sefer Me’irat Einayim 257:10.

And which was confirmed by a kinyan (Sefer Me’irat Einayim 257:11).

There is a difference of opinion among the commentaries with regard to the extent of the comparison to a gift given by a sh’chiv me’ra. The Rashbam and the Ramban say that the comparison is only that the full transfer of property takes effect later. Unlike a gift given by a sh’chiv me’ra, however, in this instance the giver cannot retract his gift. This appears to be the Rambam’s view.
The Maggid Mishneh, however, mentions others who differ and maintain that the comparison to a gift given by the sh’chiv me’ra includes this facet as well, and the giver has the right to retract. The Shulchan Aruch (Choshen Mishpat 257:6) cites the first view.

From the fact that it is possible that the document may speak of a kinyan, Sefer Me’irat Einayim 258:1 states that this law speaks of a gift given by a healthy person. For if it were speaking of a gift given by a sh’chiv me’ra, a kinyan would not be necessary. Indeed, it would detract from the gift’s legal power.

For the transfer of the legal document itself serves as a kinyan (Hilchot Mechirah 1:7).

In which case the transfer would be invalid, for a person cannot transfer property after his death.

It is as if the document explicitly stated that it takes effect: “from today and after [the person’s] death” [Ramah (Choshen Mishpat 258:1)].

With this clause, the Rambam answers a question that is likely to arise: If all that is necessary is to date a document, why is it common to require that the document state that the transaction takes effect “from the present time”?
The Rambam explains that in fact this is not necessary. The phrase is included merely as a precaution to clarify matters and prevent legal problems from arising.

I.e., the person acquires the property - and the benefits from it - from the time he is given the document. The giver no longer has any connection to it. Instead, the recipient may use it as he desires and do with it as he sees fit.

Compare to Chapter 8, Halachah 19. The difference between the two is that in this instance, since the giver is healthy, it is not logical to say that he is mentioning “his lifetime” only to avoid confronting death (Maggid Mishneh).

Cf. Jeremiah 17:7; Psalms 118:8-9, 146:3.

The Maggid Mishneh and other commentaries cite the conclusion of Hilchot Matnot Aniyim, Chapter 10, and Hilchot Talmud Torah 3:11, where the Rambam speaks of the virtues of refraining from taking from others and instead earning one’s livelihood through one’s own labor. Though these are prevalent themes in the Rambam’s writing, his words here focus on a more fundamental belief – that no man, neither oneself nor another, can be relied upon as a source for wellbeing. Instead, our faith and trust must be placed in God.