Rav and Shmuel debate a number of topics relating to gifts given on one’s deathbed. If one gives a gift with a kinyan chalipin (symbolic) – are we concerned that he added the kinyan in order to override the laws of one on one’s deathbed and only wanted it to be effective with a shtar (document) or do we assume it was done just to strengthen the gift? If one gave to one person and “zika lo” (various different interpretations what that is) and then gave to another and “zika lo,” does the first one acquire it or the second? If one says I am giving this to you “in my life and in my death,” what is meant by that statement? The mishna and the following gemara discuss cases where it is unclear whether the gift was given on one’s deathbed or when one was healthy or the gift was given on one’s deathbed and later the person died but it is unclear if they died from the illness at the time or they got better (in which case the gift should be cancelled) and then subsequently died?
Various stories are brought regarding women on their deathbed who gave property to one son and then changed their minds. The rabbis rule debated what the ruling should be – can one change one’s mind or once one gives away all their possessions and subsequently dies, the first statement they made is valid? A case is brought by a woman who keeps getting sick and giving an orchard of hers to a brother each time. One time, he tricked her into doing it in a way that would work – he had her leave over a bit and did a kinyan. However Rav Nachman ruled that since she said she was giving it to him because she thought she would die, once she got better, the kinyan was ineffective. At this point the gemara clarifies the case in the mishna and explains that while there are those who understand the mishna in its simple reading, Rav Nachman and others hold that the mishna was referring only to cases where a kinyan was effected, meaning that if one gave away not all of his possessions and then died or got better, if the gift was given without a kinyan, the person would not acquire the possessions. Additionally, if one did do a kinyan and didn’t give away all of one’s possessions but stated that it was because the person thought they were dying, then if they got better, the gift would be returned to him/her. Rav and Shmuel debate the case of one on one’s deathbed who gives away all of one’s possessions and adds a kinyan. Did one intend for a shtar (document) to be given and since they died before it was given, it can no longer be given and the whole thing is invalid – or are we not concerned about that possibility? Their opinions here seem to contradict their opinions elsewhere and then gemara responds that the situations are different in each of the cases and therefore they don’t contradict each other.
A question is brought against Rav Yosef who claimed that “kol shehu” means a tiny bit. The question is brought from a source regarding the first shearings where “kol shehu” means a particular amount. When one gives another moveable property, what is included? It depends on the wording – “moveable property,” “all moveable property,” “anything that moves.” Are slaves considered property (karka) moveable items (metaltalin)? Five cases are brought where the halacha will only be applicable if ALL of one’s property is included. And in all of them, except one(ketuba), property could mean moveable and non-movable items. The gemara derives from various sources all different types of things that would be included in the word “nechasim” – property.
What language must be used in order for a gift stated on one’s deathbed will be a valid gift? If one sells all of one’s property on one’s deathbed, is it a valid sale if they recover from their illness? If one admits on one’s deathbed that one owes money, do we believe the admission or is it possible they are just trying to show people that the inheritors don’t have a lot of money? A story os brought of Issur the convert and how he was able to use this as a solution to passing on his possessions to his son (who was conceived before his conversion and therefore did not fall into the category of an heir). The mishna says if one divided up one’s possessions on one’s deathbed but left over land of any amount, and then recovers, the gift is valid. Rav Yehuda says that “any amount” actually means an amount worthy of sustaining him/her. Rav Yirmiya says that even if one left over movable items worthy of sustaining. Rav Zeira supports their opinions and Rav Yosef questions them based on the wording in the mishna (“land” and “any amount”). Abaye supports Rabii Zeira from a mishna in Peah where land actually includes movable items.
One cannot transfer intangible items – like the right to live in a house or the right to future fruits from a tree. Even on one’s deathbed. However, the question is asked – if one transfers the tree to one person and the fruits to another, does that work – as he is potentially just “leaving over” the fruits and not including them in his sale. And if that doesn’t work, would it work in a case where he sells the tree but retains rights for himself to the fruits? If one divides up one’s property and possessions on one’s deathbed and then becomes healthy again, even if those were all of that person’s known possessions, one should be concerned that maybe the person has other possessions in another country and therefore the gift is a good gift. This seems to contradict the mishna. How can this be explained? If one gives away money on one’s deathbed and then changes one’s mind about part of the funds, does that cancel the entire first gift or only part?
What kind of assumptions can we make about a declaration on one’s deathbed? If he/she gives away all of his/her property and then gets better, we can assume that he/she didn’t mean to give away all their possessions. But if they left over something for themselves, we can then assume the gifts are valid. This is based on “umdana” – assessing what they thought even though they didn’t say so explicitly. The gemara tries to match the opinion in our mishna to tannaim who said the same thing regarding other cases in other places in order to determine who the author of the mishna is. Various sources are brought to derive where we learn that a gift of a one on our deathbed is valid. Rav Nachman says it has validity on a rabbinic level in order not to upset the person on their deathbed. The gemara questions that from another case where it seems Rav Nachman holds that is valid on a Torah level.
The Mishna says that when one sends gifts (unique gifts called shushbinot that are reciprocal and can even be demanded in court) to another for his wedding through one of his sons and then subsequently dies, when the gift is returned at that son’s wedding, it gets divided by all the sons (heirs) evenly. A contradiction is brought from a braita and three explanations are given. If the gift is given to the father of the groom and then upon return to the other family, the father is no longer alive, the sons have to share the expense of returning the gift (it isn’t all the responsibility of the groom who got married previously). Various issues are raised through these discussions including cases where a woman is betrothed and never married – does she have to return the kiddushin money or not? Is there a distinction made between the kiddushin money and other gifts that were given from the groom’s family to the bride? What are the laws that govern the shushbinot gifts? If one doesn’t attend the wedding, how much can one deduct from his gift? The gemara ends with drashot about the difference between Torah scholars who learn mishna vs. those who learn Talmud. And others about middot – which are those that will make a person happy and which of those will cause them to lead an unhappy life. Some of these sources view having a happy life as a good thing whereas others don’t view it in a positive light.
How are estate profits divided if only some or one of the heirs invested either time or money in improving it? What are the factors that affect the law? What about doctor bills for one of the heirs – are they paid for from the sick person’s share or from everyone’s? Reciprocal marriage gifts (which were common in those days and could be demanded in a court) – how are they divided? On what do those laws depend? Three cases are brought in which either no kinyan was done but an exception was made and it is considered as if a kinyan was done or where a document was written and yet we don’t do what it says int he document. These are called “halachot without a reason.”
If one includes in one’s statement, I will be giving to you and your donkey, is the kinyan effective? If one says, I will give my wife and my sons my possessions, does she get 50% or an equal share with all the sons?
Rav Sheshet holds that a fetus can acquire items. He brings a source to support his opinion but it is rejected. A source is brought to reject Rav Sheshet’s opinion. But it too is rejected as it can be explained as referring to something else. The debate continues regarding whether a fetus can acquire items or not. And the gemara concludes that we hold that it cannot, however our mishna is an exception since it is to his own son.