One-Page Learn · The Halachos at a glance
הלכות זכיה ומתנה
Zechiyah u'Matanah 4-6
Sefer Kinyan · Ownerless Property and Gifts · when a gift becomes irrevocable, who may acquire it on your behalf, why a hidden gift is void, and how the law reads a giver who never stated his intent
100
Zuz that turn on a single verb
4
Cubits beside you that can acquire
1
Small cruse voids the wedding house
6
Zuz of feast, four repaid
Ch 4Irrevocable, and Who May Hold It For You
- Refusing after you acquire makes it ownerless. Once the gift has entered his domain and he stood silent, a later statement that he does not want it, or that he sees a blemish in it, does nothing. It is now hefker and the first to take hold acquires. Only a protest from the very outset leaves it with the original owner (4:1)
- A third party can acquire for you without your knowledge. Once the agent performs meshichah, receives the deed, or manifests ownership, the recipient has acquired and the giver can no longer retract, even though nothing reached the recipient's hand. He keeps the option to refuse, since a benefit may be conferred without consent and an obligation may not (4:2)
- Acquire, give, bring. Telling the agent to acquire the 100 zuz for Shimon, or to give them to him, is final; telling him to bring them leaves the giver free to retract until they arrive. If the giver dies first the money still goes to Shimon, because it is a mitzvah to carry out the instructions of the deceased (4:4-5)
- Agents, children and courtyards. The acquirer must be past majority and competent; a man, a woman, a married woman, a servant or a maidservant all qualify, a gentile never. A child who keeps a nut and discards a stone acquires for himself alone. A safeguarded courtyard, or the four cubits beside a man in an alleyway or an ownerless field, acquire for him; an unguarded field does so only if he stands there and declares it. A deed reading "I gave" transfers on delivery; "I will give" transfers nothing (4:6-11)
RememberA gift is like a bill of divorce in one respect: words cannot be relayed through a messenger, so witnesses told to draw up a deed must write it themselves and may not hand the task to a scribe (4:10)
Ch 5A Gift Must Be Given in Public
- Hidden gifts are void. Every gift, from a healthy or a sick giver, must be made publicly and conspicuously. Instructing witnesses to write the deed in hiding is worthless, because the giver is positioning himself to sell the same property afterward and take money belonging to others (5:1)
- The deed needs the formula. Unless it records that the giver told the witnesses to sit in the market place and the streets and write openly, or words to that effect, we suspect concealment and the recipient does not acquire. Where a hidden deed and a public deed cover one field, the public one takes it (5:2-3)
- A hidden gift works as a protest. In gifts we follow only the giver's intent, so a protest followed by a gift voids the gift even without duress. If a conspicuous gift is given and an earlier hidden gift then comes to light, both fail: the first for being hidden, the second because the first proves he never meant to give (5:4-5)
- Two deeds, two dates. Same date and no recorded hour: the judges award the field to whichever claimant they consider the proper owner. Both deeds mention a kinyan: whoever had his kinyan first acquires. One records a gift and the other a sale to the same man: the later does not cancel the earlier, since we assume it was added for the seller's responsibility or to block a neighbor's claim. Two of the same kind with nothing added: the second cancels the first, and produce and the royal levy date from it (5:6-9)
RememberThe man who told witnesses to hide and deed his estate to his son, then publicly deeded it to the bride who demanded it, left both of them with nothing (5:5)
Ch 6What He Kept Back Reveals What He Meant
- Retaining anything validates the gift. A father who signs over everything on a report that his son died loses the gift when the son returns alive. But if he kept back any property, land or movable, the gift stands, because a man who holds something back made a decision rather than acted on the report (6:1)
- All to one son, or to a wife, is only an executorship. Assigning the whole estate to one of several sons, healthy or dying, makes him an administrator who takes an ordinary share, even if he is an infant in a cradle; assigning it all to a wife makes her an executor for the heirs, even with a kinyan. Retain one item and each of them owns everything. The presumption does not apply to one son among daughters, to one daughter, or to a consecrated woman or a divorcee (6:2-5)
- A wife who receives the whole estate forfeits her ketubah. The document is torn, and if a creditor with a note predating the gift takes the estate she collects nothing. Being given even a little land alongside the children costs her the ketubah too, if she does not protest. Movable property alone, or land the husband retained, preserves it, and the Geonim held retained movables enough (6:8-11)
- Betrothal money and gifts. Whatever effects a consecration is never returned, even a thousand dinarim, and money given to consecrate one's own sister is a gift, since everyone knows such a consecration is void. Betrothal presents sent to the bride all return if the match collapses, except food and drink; if she retracts she pays for those as well, four zuz of six by the Geonim, and the whole cost of a customary engagement feast where he has witnesses to the expense (6:18-24)
RememberA father who marries off his eldest son in a house he designated transfers the house, a ruling the Rambam says resembles a halachah instituted without a reason; but one small cruse of his own left inside, or a storeroom kept back, and the son acquires nothing but the furniture (6:15-16)