STIPULATIONS THAT APPLY EVEN AFTER THE GIVER DIES [Tana'im: posthumous]
(Beraisa - R. Yehudah and R. Shimon) Question: If Reuven bought a field from his father Yakov, and was Makdish it; and Yakov died, it is considered a Sedeh Achuzah. "Asher Lo mi'Sedeh Achuzaso" is a field that was not proper to be an Achuzah.
R. Meir says, if Reuven bought a field from his father Yakov, and Yakov died, and then Reuven was Makdish it, it is considered a Sedeh Achuzah;
"Asher Lo mi'Sedeh Achuzaso" alludes to a field that was not inherited when he was Makdish it, but he inherited (permanent rights to) it.
Gitin 83b (Rava): If one said 'this is your Get on condition that you do not drink wine for the rest of my life', this is not Krisus (divorce). If he said 'the rest of Ploni's life', this is Krisus.
Question: 'The rest of Ploni's life' is Krisus, for Ploni may die, and the Tanai will be over. The same applies to 'the rest of my life'!
Correction (Rava): Rather, '... for the rest of your life' is not Krisus. 'The rest of my life or Ploni's life' is Krisus.
Rambam (Hilchos Mechirah 11:1): If one was Makneh land or Metaltelim and made Tana'im that can be fulfilled, whether the seller or buyer stipulated, the sale stands only if the Tana'im were fulfilled.
Mishneh l'Melech: If one was Makneh on condition that the recipient not do a certain matter, if the Tanai extends past the life of the giver, what is the law? Perhaps the Tanai applies only in the giver's lifetime. It seems that this depends on the argument about divorce on condition that she not drink wine after the husband dies. Some say that this disqualifies the Get. Some disagree. (The Magid Mishneh brings these opinions in Hilchos Gerushin 8:11.) It seems that we learn from there to monetary laws, e.g. one who gave a gift to his son, who is his lone heir, on condition that he not do something. Perhaps this is like a Get. This affects a creditor who lent to the father after the loan. He collects from the gift only if the gift is Batel, and the son inherited it. If he transgressed the Tanai, all agree that the gift is Batel.
Question: If Reuven gave land to his son on condition that no lien of a debt will take effect on it, and he had no other son, and after he died his son borrowed, can the lender collect from it?
Answer (Rosh, Teshuvah 74:3): The Tanai is valid, since Reuven left for himself rights in the land. If a creditor will come to collect it, the gift is Batel retroactively, and the land is Reuven's. After Reuven died, his son inherited all Reuven's rights to the land. After the gift becomes Batel, the son inherits it. A creditor collects from land that the borrower acquired after the loan, for he wrote 'd'Akni (what I will acquire).' This is whether he lent before or after Reuven died.
Question: A man had a married daughter destined to inherit him. How can he give to her, in his lifetime or after death, land and other property and documents, on condition that her husband not acquire anything, not the property itself or rights to Peros or Peros of the Peros. She should have full Reshus to sell all or some of it without her husband's Reshus.
Rashba (Teshuvah 106 attributed to the Ramban): He can give property that he has now, or now and after death. The father has no rights to the land itself; he kept only the Peros (Bava Basra 136a). He can stipulate 'I gave on condition that her husband has no Reshus in it at all, in the property itself, Peros or Peiri Peros forever, only what you put into his mouth, and you will wear and benefit from it.' It does not help to say just 'on condition that your husband has no Reshus' until he specifies something. Rav and Shmuel argue about this in Nedarim (88). This refers to a daughter who does not inherit. In her father's lifetime and after his death, she acquires only due to the gift. If she inherits, after her father dies she totally acquires due to inheritance. The property is like Nichsei Melug. Even if one bought a field from his father, and his father died, and he was Makdish it, it is like a Sedei Achuzah, and not like a Sedei Miknah. We do not say that when he was Makdish it he did not own it due to inheritance, rather, due to a gift (i.e. purchase - PF). This is because when the father died, he acquired all his father's rights to it. If he was Makdish it before his father died, R. Meir says that this is like a Sedei Miknah. R. Yehudah and R. Shimon argue only because they expounded a verse.
Ran (Gitin 43b DH Harei): Bahag wrote that if Shimon gave a Get and said '(do not drink wine) the entire life of Ploni', and she married Reuven immediately and had children before and after Shimon died, and she drank in Plonis lifetime after Shimon died, the Get is Batel retroactively and her first children are Mamzerim. Rabanan disagreed. Since she did not transgress in Shimon's lifetime, only after he died, once he died, the Tanai was Batel. The Get is not Batel retroactively. Tosfos says that it is Batel. This is primary. If not, even a Tanai 'your entire life' would be Kerisus, for the Tanai lasts only as long as the life of the Megaresh.
Or Some'ach: The Mishneh l'Melech learns from Gitin to Mamon. It seems that here all agree, for the Safek is only regarding a gift to the son, for regarding others, even after the giver dies, the recipient acquires only due to the gift. Divorce is different. After death, the marriage ceases. The Yavam forbids her to remarry, but he does not inherit the Ishus (marriage). Therefore, if the Tanai is Batel after death, this does not prevent the Get from being uprooted retroactively, and she will need (Yibum or) Chalitzah. The Safek is regarding a son, for after death he does not need the gift. The Mishneh l'Melech concludes that they are different, for one cannot sell his wife to another. Ishus is a Kinyan only to himself. From the beginning, when he divorced, the Get affects his Ishus, which is a Kinyan only for his lifetime. Therefore, if there is a Tanai that she must guard for his entire lifetime, divorce did not help for this. One can give a gift permanently to whomever he wants. If he sold or gave to his son, this is permanent, therefore he can make a permanent Tanai, which must be fulfilled even after his death. If he transgressed after death, the gift is Batel, and creditors collect it. If one bought his father's field and was Makdish it after his father died, it is like a Sedei Achuzah, for initially he had only Kinyan Peros. Even if this is like Kinyan ha'Guf, the Gemara wanted to say that it is unlike a Sedei Achuzah, especially at a time when there is no Yovel, and all his rights are from his purchase. Get is different, for he stipulated about something that pertains to him only in his lifetime, but he cannot give it to another. We find in CM 111 that a gift is Batel even after the father dies (and his son inherits him).
Shulchan Aruch (CM 111:4): If one gave land to his son on condition that there will be no lien on it, if he has no other son and the father died, a creditor of the son collects from it.
Shulchan Aruch (EH 85:11): If a man gave a gift to his daughter, and stipulated (so that her husband has no rights to it), and he died and she inherited him, the gift is Batel and her husband acquires (rights to) it like other Nichsei Melug.
Shulchan Aruch (143:21): If a man gave a Get to his wife and said 'on condition that you do not go to your father's house until the time Ploni', even though it is a Kosher Get and a valid Tanai, no one should seek to give a Get with such a Tanai, for it is hard for her to refrain, and t hgt will be Batel and her children will be Mamzerim.
Avnei Milu'im (4): The Ran and Rashba (83a) brought a proof for Bahag from a Tanai 'your entire life.' I say that this is not a proof. The Rabanan said 'since she did not transgress in his lifetime, only after he died, once he died, the Tanai was Batel.' Why didn't it suffice to say 'once he died, the Tanai was Batel'? They came to refute the 'proof' against them. They added 'since she did not transgress in his lifetime', which applies only to a Tanai 'the entire life of Ploni', for in the husband's lifetime the Tanai is not Batel at all. She will totally fulfill the Tanai in Ploni's lifetime the entire life of her husband. The Tanai does not permanently bind her, for if Ploni dies before her husband, she may drink wine in her husband's lifetime. 'On condition that you never drink wine' is not Kerisus, for she is always stuck to him (to fulfill the Tanai). If you will say that she may drink after he dies, for the Tanai will be Batel, if so we find Bitul of the Tanai in his lifetime. I.e. not drinking wine in his entire lifetime is not fulfillment of the Tanai, since he stipulated 'never.' Therefore, she is still tied to him, so it is not Kerisus. Rather, you must say now, in his lifetime, that she will drink after he dies, and she will not be tied to him. This is Bitul of the Tanai in his lifetime, since to make it a Get we must say now that the Tanai will be Batel after his death. Regarding 'as long as Ploni is alive', we need not discuss Bitul of the Tanai in her husband's lifetime. She can fulfill it his entire life (and drink after Ploni dies).