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.
The following article was published this week. Click here to read. A 21st century beit midrash
According to the mishna, Does a tumtum get the lower amount (like the girls in a case where there is a lot of money and like the boys in the case where there is little money) or does he not receive anything at all? Why in the case in the mishna does the husband commit 200 if a girl is born and 100 if a boy is born – aren’t boys more preferred than girls? Three possible answers are brought. Two tannaitic sources are brought with cases similar to the ones in our mishna but without enough details so the gemara establishes the details of the cases discussed. A man on his deathbed gave all of his property to his unborn baby. Rav Huna says this doesn’t work because a fetus can’t acquire items. Rav Nachman questions him from our mishna where all the cases were giving a gift to a fetus. Rav Huna rejects the mishna and says he doesn’t know who the author is. The gemara then questions why Rav Huna couldn’t have given a different answer. It raises seven possibilities but then rejects them all.
Sons have rights to the inheritance but daughters have rights to sustenance from the estate. In the event that there aren’t enough funds, the Tanna Kamma gives the girls rights to the sustenance before giving rights to the sons. Admon disagrees and Rabban Shimon ben Gamliel supports his position. The gemara discusses how one calculates how much money is considered enough money in the estate in order for the boys to get their inheritance? Rabbi Yirmiya asks if other things enter into the calculation – the widow’s rights to sustenance until she gets remarried or dies, her daughter from a previous marriage in a case where the husband committed to supporting her for a period of time and a creditor from a loan who is owed money by the estate? What if there is a widow and only a daughter left to inherit and not enough money for both of them? How is a tumtum viewed regarding these laws – do they get inheritance rights or sustenance rights or neither? If a man on his deathbed left a pregnant wife and stipulated: if the baby is male give him this gift, if female… – what is the case if twins are born? If a tumtum is born?
In what way can one not accept a gift if one didn’t immediately say, “I don’t want it.” Different wordings of statements made on one’s deathbed are discussed and analyzed as to the exact intent of the person. The cases are concerning a gift given to one who anyway was “owed” money by the person – was the intent that the gift was in addition or in place of what was owed. Different situations are brought. If on one’s deathbed one says that someone owes him/her money, can witnesses document the statement without verifying? Are we concerned the court will act upon it without checking into it (therefore the witnesses can’t write it) or do we assume the court will do their homework (and therefore the witnesses can write it). If one left older and younger children, all get equal even if it means that some got married in the father’s lifetime and therefore got more money for the wedding. Can younger daughters demand dowry money from the husband of one the sisters who got married earlier if they used some of the joint inheritance money for their dowry. If a woman borrows money without a document and then gets married – since her husband has rights to her money, is he considered a “buyer” in which case, the creditor can’t collect thew loan or is he considered an inheritor and the loan can be collected. The gemara brings various cases which indicate both ways to which the gemara explains that it depends on the situation – whatever is in the best interest of the husband or if there is some other important consideration (providing for a widow).