One-Page Learn · The Halachos at a glance
הלכות זכיה ומתנה
Zechiyah u'Matanah 7-9
Sefer Kinyan · Ownerless Property and Gifts · wedding money that is really a loan, and the gifts of a dying man, whose words transfer property with no act at all
5
Rules that fix what shushvinut is
0
Acts a deathbed gift requires
4
Situations deemed impending death
200
Zuz if the unborn child is a girl
Ch 7Shushvinut: The Loan Nobody Declared
- Wedding money is a loan, not a gift. Friends who send a groom money and then eat and drink with him have not made an outright gift, since it is plainly obvious that a man did not send ten dinarim so that the recipient could consume a zuz's worth; if the sender later marries and the money is not returned, a court expropriates it (7:1-2)
- Repayable only on a matching occasion. One who sent for a maiden cannot claim for a widow, nor the reverse, and a man who made a large public reception cannot claim from one who made a modest private affair: I will not do for you anything else than what you did for me (7:3-4)
- Attendance settles the account. Came and ate, nothing is owed; invited, or heard the public herald, and stayed home, the whole sum returns; not in the city or never notified, he deducts the cost of what the other once ate and returns the rest, and the Rambam adds that he has a justified complaint. A man of standing loses half of a large sum, a tightfisted man only the meal (7:5-8)
- Five rules define it. A court expropriates it; it falls due only at the matching time, which works as an unstated condition of the loan; interest is not involved, so one dinar may be returned as ten; the Sabbatical year does not cancel it; and the firstborn takes no double portion of it, since at the division of the estate it is only ra'ui (7:13)
- Kindness can never be relabeled a loan. Money pressed on a man whose finances failed, where the giver swore he would not have it refused, is a gift and irrecoverable unless he stated at the time that he was lending; jugs of wine or oil sent to a wedding cannot be claimed in court at all, because shushvinut applies to money alone (7:14-15)
RememberNobody said loan and the court still collects, because what everyone obviously understood is read into the transaction
Ch 8The Dying Man Whose Words Are Deeds
- Who qualifies, and who does not. A blind, lame or handless man, or one in pain in his head, eye, hand or foot, is a healthy person for every purchase, sale and gift. A sh'chiv me'ra is one weak throughout his body, whose strength has dwindled so that he cannot walk in the market place, confined to his bed (8:1-2)
- His speech needs no kinyan. His instructions transfer on his death, weekday or Sabbath, written or unwritten, as though already recorded and handed over; a Rabbinic decree given the force of Scriptural law so that a dying person will not become exasperated knowing his words are of no consequence. He need not appoint witnesses, since a person does not speak facetiously at the time of his death, and he may leave a gift to a child still in the womb (8:2-5)
- Nothing transfers before death. No recipient acquires land or movables until the sh'chiv me'ra dies, so the widow's ketubah and the daughters' maintenance are expropriated out of the property he apportioned (8:8-9)
- A kinyan in the document can destroy the gift. If the record recites a kinyan plainly, we suspect he meant to transfer only by document, and a document cannot transfer after death, so the gift fails; it survives only where the wording says the kinyan was made to amplify the gift. Likewise, compose a record and give him a maneh gives nothing if he dies before it is written (8:10-13)
- Everything, or something held back. All his property with nothing retained is retracted if he recovers, even with an amplifying kinyan, since no man gives away all he has while alive; retain land or movables and it is a healthy man's gift, effective from the writing and not retracted, provided a kinyan was made. Going out to sea, setting out with a caravan, being carried off in chains, or sudden severe illness all count as apportioning because of impending death, and all fall back if he is saved; a servant signed over keeps his freedom though the property reverts (8:14-24)
RememberThe small item he held back is the proof that he expected to live, and it changes the gift from a dying man's gift into a healthy man's gift
Ch 9Weighing Every Word He Used
- Four verbs transfer, three do not. Take, take hold of, acquire and obtain all transfer the estate, and so does inherit where the recipient is fit to inherit. May he benefit from it, may he stand in it, may he be supported by it transfer nothing at all (9:3-4)
- Refusal and silence. I do not desire it and he acquires nothing; stay silent and protest only later and he has acquired and cannot retract, because the words were already as if written and the property already transferred. Instructing that the gift be kept quiet until death does not make it a hidden gift (9:1, 9:13-14)
- Retraction, and the kinyan that ends it. He may change his mind until he dies, even after a proxy acquired on the recipient's behalf, but once a kinyan is made on top of it nothing further can be done. Retracting part of a gift of everything leaves the first recipient nothing whether he recovers or dies; consecrating all, declaring it ownerless or dividing it among the poor is retracted on recovery, while a sale made as a sh'chiv me'ra stands (9:15-21)
- Debts pass where gifts cannot. A convert cannot give his estate as a dying man's gift to a son not conceived in holiness, since with a potential heir gift language and inheritance language are identical, yet an acknowledged debt to that same son is paid, and so is a debt acknowledged to a gentile, while a gift to a gentile is not heeded, as though he had commanded a transgression with his property (9:7-10)
- The gift he never let go of. A deed of gift found tied to the dead man's thigh is of no consequence even when witnessed and carrying an amplifying kinyan, since we assume he changed his mind; so too a promissory note handed to a third party with no instruction beyond hold this. Where the document is silent about his health, the recipient must prove he was healthy or the giver swears a sh'vuat hesset and keeps the land (9:22-26)
RememberFree my servant is enforced against the heirs because a servant is obligated in mitzvot, while be supported by my estate transfers nothing to anyone