QUESTION: Rav Nachman (147b) teaches that if a dying man gives instructions that a certain person should live in his house, his directive is not binding. Even though, normally, a Shechiv Mera's verbal command to give a gift is binding, in this case his command is meaningless because his instructions are binding only when he gives a tangible object, such as the house itself. He cannot give away the right to reside in the house, because that right is not a tangible entity.

The Gemara infers that Rav Nachman maintains that a Matnas Shechiv Mera is only as effective as a full-fledged Kinyan that a healthy man makes (and since a healthy man cannot transfer the ownership of rights -- such as the right to reside in a house -- through a Kinyan Sudar, a Shechiv Mera cannot transfer it through his verbal instructions). The Gemara questions this, however, from another statement of Rav Nachman. Rav Nachman says that a Shechiv Mera can give away, through his verbal command alone, the rights to a loan that is owed to him. A healthy person, in contrast, cannot transfer a debt (which is not written in a Shtar) to another person even with a Kinyan, because a debt is an intangible asset. The Gemara infers from this statement of Rav Nachman that a Matnas Shechiv Mera is effective even in situations in which the Kinyan of a healthy person is not effective.

Rav Papa answers that a Matnas Shechiv Mera indeed is effective only in cases in which the Kinyan of a healthy person would be effective, and the transfer of ownership of a debt is an exception to the rule, because although a debt cannot be transferred with a Kinyan to someone else, it can be inherited by an heir. A Matnas Shechiv Mera functions like the transfer of ownership through inheritance. Since the ownership of a debt can be transferred through inheritance (i.e. when the creditor dies, his heirs inherit the debts owed to him), a Matnas Shechiv Mera also can transfer the ownership of a debt.

Rav Acha brei d'Rav Ika answers that a healthy person is able to transfer the ownership of a debt. A debt can be transferred with the mechanism of Ma'amad Sheloshtan (where the creditor, the debtor, and the recipient of the gift are all present and the creditor declares that he is transferring to the recipient the right to collect the loan).

It seems that both of these answers are true, as a debt can be transferred both through inheritance and through Ma'amad Sheloshtan. Is there any practical difference between these two answers? Does Rav Acha perhaps argue that the transfer of ownership of a Matnas Shechiv Mera is not comparable to inheritance, or does Rav Papa perhaps argue that the fact that a debt can be transferred through Ma'amad Sheloshtan should not affect the Shechiv Mera's ability to transfer it?

(a) The KETZOS HA'CHOSHEN (125:8) writes that there is a significant difference between these two answers, with significant Halachic ramifications. He cites TOSFOS in Gitin (14b) who states that when a Shechiv Mera commands that a gift be given to someone, even if the intended recipient dies before the Shechiv Mera dies, the recipient's heirs still acquire the gift. This is because the Shechiv Mera's gift to the recipient takes effect at the moment that he issues his command (and thus the gift was already in the possession of the recipient before he died).

The RAN questions the assertion of Tosfos from the Gemara earlier in Bava Basra (137a) which clearly states that a Shechiv Mera's gift is acquired only posthumously, and not before the death of the Shechiv Mera. How, then, can Tosfos say that the Shechiv Mera's instructions take effect immediately? As a result of this question, the Ran disagrees with Tosfos and maintains that if the intended recipient of a Matnas Shechiv Mera dies before the benefactor dies, the recipient's heirs do not receive the gift.

The Ketzos ha'Choshen justifies the view of Tosfos and explains that Tosfos follows the opinion of Rav Papa in the Gemara here. Since a Matnas Shechiv Mera works like the mechanism of inheritance, the recipient of the gift does not need to be alive at the time of the benefactor's death in order to acquire the gift. The Shechiv Mera's instructions create a situation of inheritance, so that the intended recipient of the gift becomes entitled to "inherit" the gift from the Shechiv Mera as if he were his closest relative. When the Shechiv Mera dies after the recipient dies, the inheritance is granted to the surviving heirs of the recipient, in accordance with the normal laws of inheritance. This is what Tosfos means when he states that the Shechiv Mera's instructions take effect immediately, even though the ownership of the gift is transferred only after his death, as the Gemara earlier says. Even though the gift does not enter the recipient's ownership immediately, the recipient does assume the status of an "heir" immediately.

The Ran, on the other hand, seems to follow the view of Rav Acha, who says that a Matnas Shechiv Mera does not work through the mechanism of inheritance; rather, it functions like a normal transaction. A normal transaction such as a gift cannot be made to a dead person, and therefore if the intended recipient of the gift dies before the benefactor dies, the recipient's heirs do not receive the gift. (See BEIS YOSEF CM 245 for a different answer for Tosfos, and further discussion in the KETZOS HA'CHOSHEN and NESIVOS HA'MISHPAT there, and OR SAME'ACH, Hilchos Zechiyah u'Matanah 9:13.)

(b) The MORDECHAI here cites the AVI'ASAF who says that a Shechiv Mera cannot give away the right to collect debts owed to him by Nochrim. The BACH (CM 253) explains his reasoning as follows. The Avi'asaf maintains that an ordinary person cannot use the process of Ma'amad Sheloshtan to transfer the ownership of debts owed to him by Nochrim. Since a Shechiv Mera's power (in this respect) is equivalent to that of an ordinary, healthy person, it follows that a Shechiv Mera also lacks the ability to give away a debt owed to him by a Nochri. The Avi'asaf's view clearly is based on the reasoning of Rav Acha (see, however, HAGAHOS MAIMONIYOS, Hilchos Zechiyah u'Matanah 10:1). According to Rav Papa, however, a Shechiv Mera's transaction is similar to the mechanism of inheritance and not to an ordinary Kinyan. Rav Papa, then, would maintain that a Shechiv Mera can give a Nochri's debt to another Jew (to whom the laws of inheritance apply). (Y. MONTROSE)

OPINIONS: The Gemara discusses a case in which the owner of a tree gives the tree to one person and its fruit to another person. The Gemara asks whether the owner has retained for himself the places on the tree from which the fruit grows. The Gemara then asks: if the Halachah in this case is that the owner did not keep for himself the places from which the fruit grows, what is the Halachah if he specifically states that he is giving away the tree "except for its fruit"? Perhaps in such a case the Halachah assumes that the owner kept for himself not only the fruit, but also the parts of the tree from which the fruit grows.

It is not clear from the Gemara whether the benefactor in the case is a Shechiv Mera or a healthy person. Also, the reasoning behind the questions is not clear.

(a) The RASHBAM states that the Gemara is continuing its discussion about a Shechiv Mera. It would not make sense for the Gemara to interject laws about Kinyanim of a healthy person, as that would be irrelevant here and would belong in a different Perek.

According to the Rashbam, the meaning of the Gemara is as follows. The Mishnah (146b) states that when a Shechiv Mera gives away some of his property but keeps some for himself, his instructions are carried out even if he recovers. The Gemara here discusses a Shechiv Mera who owns only one tree and gives the tree to another person without giving him its fruit or the places from which the fruit grows (that is, it is a Matnas Shechiv Mera b'Miktzas, a partial gift, since he does not give away all of his property). The Gemara asks, if the Shechiv Mera then decides to give the fruit to a second person, does the Halachah assume that he intends to retain the places on the tree from which the fruit grows (such as the branches)? If that is his intention, then his instructions are carried out and the gifts are given even if he recovers, since he kept something for himself.

The Gemara then asks: if the Halachah assumes that the Shechiv Mera does not retain for himself the places from which the fruit grows, what is the Halachah when he specifically states that he is giving away the tree "except for its fruit"? Since the fruit would not have been included in the gift even if the Shechiv Mera had not mentioned it, his addition of the words "except for its fruit" may indicate that he intends also to keep the places from which the fruit grows. The Gemara answers (according to the Girsa of the Rashbam) that this is the law of Rav Zevid -- that when a person adds unnecessary words to a transaction, he intends to add something to what he excludes from the sale.

(b) TOSFOS explains that the Gemara is discussing a normal transaction of a healthy person, and not a Matnas Shechiv Mera. If it were discussing a Matnas Shechiv Mera, then the Gemara should have included it in a later Sugya (149b-150a) which discusses how much the Shechiv Mera must keep for himself in order for his gift to take effect even if he recovers. Tosfos also questions the Rashbam's explanation from the Gemara later which concludes that if a Shechiv Mera retains for himself even movable objects, his gift still takes effect even if he recovers. According to the Rashbam's explanation, the Gemara here seems to require that land (or something attached to it, such as the branches of a tree) be retained by the Shechiv Mera.

The RI therefore gives a different explanation of the Gemara. The Gemara's question deals with a normal, healthy person who gives away a tree to one person and its fruit to another person. The Gemara asks whether the giver's intention, when he gives the tree to the first recipient, is to retain the places on the tree from which the fruit grows. If that is his intention, then he may give those places on the tree (along with the potential fruit) to another person or he may keep them for himself. If, however, he does not retain the places from which the fruit grows, then the fruit automatically becomes the possession of the recipient of the tree, and he cannot give the fruit to the second recipient. The Gemara then asks: if it is assumed that the original owner of the tree does not retain those parts of the tree when he gives the tree to one person and the fruit to a second person, what is the Halachah in a case in which he keeps the fruit for himself? Does he retain also the places on the tree from which the fruit grows? If his gift of the tree includes the parts of the tree where the fruit grows, then he cannot retain the fruit even for himself. The Gemara concludes that in such a case he does intend to retain those parts of the tree, as a person always leaves for himself as much as possible. (Y. MONTROSE)

OPINIONS: The Gemara discusses a case in which a Shechiv Mera gives away all of his property to Hekdesh, or he gives it all as charity to poor people, and then he recovers. The Gemara asks: is such a gift included in the law of the Mishnah (146b) which states that when a Shechiv Mera gives away all of his property and then recovers, his gift is annulled? The Gemara suggests that because he does such a great Mitzvah when he gives away all of his property to Hekdesh or Tzedakah, he intends for the gift to take effect even if he recovers. The Gemara leaves this question unanswered.

What is the Halachah in practice in such a case?

(a) The RIF, RAMBAM (Hilchos Zechiyah u'Matanah 9:19), RAN, and other Rishonim maintain that this Halachah is considered a monetary matter, and therefore the practical Halachah follows the rule that in a case of doubt in a monetary matter, the property remains in the possession of its original owner (in this case, the Shechiv Mera who recovered).

The Ran in Nedarim (7a) cites the Gemara in Chulin (134a) which implies that a doubt concerning a matter of Tzedakah is considered a doubt in a monetary matter. He also cites the Gemara in Yoma (8b) that applies the aforementioned principle to Ma'aser Ani as well. The SHULCHAN ARUCH (CM 250:3) follows this opinion.

(b) The RAMBAN, RASHBA (see also Ran), and SHITAH LO NODA L'MI maintain that Hekdesh and Tzedakah are not considered monetary matters, but rather are matters of Isur. In a case of a doubt concerning an Isur (when the Isur involved is an Isur d'Oraisa), the Halachah follows the more stringent possibility. Consequently, the Shechiv Mera who recovered is obligated to give the property to Hekdesh and Tzedakah.

(c) The ROSH maintains that the gift of the Shechiv Mera to Hekdesh or to Tzedakah is binding even if he recovers, for the following reason. In a normal case of a Matnas Shechiv Mera, there is an "Umdena" -- an assumption based on circumstantial evidence -- that the Shechiv Mera intends to give away all of his property only if he dies but not if he recovers. When a Shechiv Mera gives his property to Hekdesh or to Tzedakah, that Umdena is in doubt (it is a "Safek Umdena"). Perhaps when he gives all of his property to Hekdesh or to Tzedakah he indeed intends that the gift should be binding only if he dies. On the other hand, since a gift to Hekdesh or Tzedakah is a great Mitzvah, perhaps he intends to give an unconditional gift.

The Rosh explains that an Umdena can cancel a Kinyan (such as in a normal case of a Matnas Shechiv Mera, when the Shechiv Mera recovers) only when that Umdena is clear and certain. When the Umdena is in doubt, the person's action, and not the Umdena, dictates whether the Kinyan takes effect. Since the Shechiv Mera gave away all of his property to Hekdesh or to Tzedakah, the doubtful Umdena does not override the gift, and the gift takes effect even if he recovers. (See KOVETZ SHI'URIM here who discusses why a doubtful Umdena cannot override an action. One possibility is that it becomes like "Devarim she'b'Lev," an unspoken intent which does not override one's expressed words or actions. Another possibility is that it becomes like a Safek Tenai (because it is unclear whether he made the stipulation), and since he performed a definite (Vadai) action of giving away his property, the Halachah is in accordance with the principle of "Ein Safek Motzi mi'Yedei Vadai.")

The BEIS YOSEF (CM 250) is perplexed by the Rosh's explanation. In the Gemara's case, the Shechiv Mera's intent is clear -- it is clear that his gift is given only due to his impending death, like any other case of a Shechiv Mera who gives away all of his property. The only question is whether this Shechiv Mera had even greater resolve to complete the Kinyan since he performs a great Mitzvah by giving away his property to Hekdesh or to Tzedakah. (Y. MONTROSE)

The Rosh himself, however, has support for his view from the case discussed by the Gemara earlier. The Gemara says that when a Shechiv Mera writes "all of his property" to others and specifies which property he is giving to whom (i.e. he does not write the actual words "all of my property," but rather he distributes all of the property that Beis Din knows he owns (MAGID MISHNEH)), the gifts take effect even if he recovers, because he may own additional property abroad (in which case his gift would be a Matnas Shechiv Mera b'Miktzas). In that case, too, there is a doubtful Umdena: it is not clear if the Shechiv Mera intends to give away his property only on condition that he dies (because he has no other property), or if he intends to give an unconditional gift (because he has additional property abroad). The Gemara's ruling in that case (that the gifts take effect even if he recovers) indicates that, indeed, a doubtful Umdena cannot override an action (the giving away of his property).

That Gemara seems to be a clear proof for the approach of the Rosh. How do the other Rishonim understand that Gemara?

The NIMUKEI YOSEF (69b of the pages of the Rif, DH she'Kasav Kol Nechasav) writes that in the earlier case of the Gemara, the fact that the Shechiv Mera himself gave away his property and did not specify that he was giving away "all of my property" is a strong indication that he indeed owns property elsewhere which he is not giving away. Therefore, there is no Umdena at all that he gave away all his property only on condition that he would not live; on the contrary, the circumstances indicate that he wanted to give away only part of his property (and that he wanted it to be an unconditional gift).