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Bava Basra, 152

1) A "MATNAS SHECHIV MERA" COMBINED WITH A "KINYAN"

OPINIONS: The Gemara discusses the case of a Shechiv Mera who gives instructions to give a gift, and he makes a Kinyan. Does the fact that he made an act of Kinyan indicate that he wanted the gift to have the status of a gift of a normal, healthy person (a "Matnas Bari," which requires a Kinyan), or does it still have the status of a Matnas Shechiv Mera, as we assume that he is giving the gift due to his impending death? Rav maintains that the Shechiv Mera incorporated in this gift both powers - the power of a Matnas Shechiv Mera and the power of a Matnas Bari. It has the power of a Matnas Bari in that he cannot retract the gift if he recovers. It has the power of a Matnas Shechiv Mera in that he may transfer the ownership of a loan owed to him, which only a Shechiv Mera has the ability to do. Shmuel, on the other hand, remains in doubt whether the transaction is valid at all, because perhaps the Shechiv Mera intended for his gift to take effect after his death through the mechanism of a normal Kinyan, but a normal Kinyan cannot take effect after the death of the benefactor.

What exactly is the case of the Gemara? Is the Gemara referring to a case in which a Shechiv Mera gave away *all* of his property, or only part of it? The Gemara implies that he wrote this gift in a Shtar. Does the dispute between Rav and Shmuel apply only in a case in which the Shechiv Mera gives a gift through a Shtar, or does it apply to any transfer of property executed by a Shechiv Mera through a Kinyan?

(a) The RASHBAM and RABEINU CHANANEL explain that the Gemara is discussing only a case in which the Shechiv Mera is giving away *all* of his property. They prove this from the previous Gemara which states that a Matnas Shechiv Mera b'Miktzas, a Shechiv Mera's gift of *part* of his property, needs a Kinyan in order to be valid. If there was no Kinyan, then the gift is not valid at all. In contrast, when a Shechiv Mera gives a gift of *all* of his property, no Kinyan is necessary. Accordingly, the only room for doubt is when a Shechiv Mera gives away *all* of his property *with* a Kinyan. Since he did not need a Kinyan for the gift to take effect as a Matnas Shechiv Mera, the Gemara is inquiring how the added Kinyan affects the gift.

They explain further (see also RAMBAN and RASHBA) that this question applies not only in a case where the Kinyan was recorded in the Shtar, but even when the Shechiv Mera gave the gift without a Shtar (that is, he verbally declared that his property should be given to so-and-so (and his word is binding according to the law of Matnas Shechiv Mera), and then he performed a Kinyan on that same transaction).

This explanation is supported by the Gemara which compares this case to a different ruling of Shmuel. Shmuel rules that a Shechiv Mera who wrote a Shtar giving away his possessions may retract the gift if he recovers, even if a Kinyan was made. In that case, the Shtar was written without a Kinyan, since the Kinyan was made afterwards. We see, therefore, that the Kinyan in this case does not necessarily need to be written in the Shtar itself.

(b) The RIVAM and the RI (cited by Tosfos) reject the Rashbam's explanation based on a number of questions, and they maintain that the Gemara's question involves *only* a case in which a Kinyan was written in the Shtar. They admit that the other statement of Shmuel -- to which the Gemara compares our case -- is not discussing a Kinyan written in a Shtar. However, this does not prove that our case is also discussing a Kinyan that is not written in a Shtar. Rather, when the Gemara cites Shmuel's ruling in the case of a Kinyan that is not written in a Shtar, it does so in order to challenge the ruling of Shmuel. If, in a case in which a Kinyan is written in a Shtar, Shmuel maintains that this harms the power of the Matnas Shechiv Mera (since perhaps the Shechiv Mera intended to give the gift after his death through a normal Kinyan), then certainly when the Shechiv Mera makes a Kinyan outside of the Shtar the gift should not be valid (even if the Shechiv Mera dies). Once we see that Shmuel maintains that a Kinyan undermines the status of Matnas Shechiv Mera even if both were explicitly documented, it should follow that a Kinyan should certainly undermine the transaction (i.e. its status of a Matnas Shechiv Mera) when the Kinyan is not documented in a Shtar, and yet Shmuel is still saying that the gift *is* valid if the Shechiv Mera dies! (To this the Gemara answers that the gift is valid only when the Shechiv Mera specified that the Kinyan was for the sake of being "Meyapeh Kocho" for the recipient.) Since the Gemara does not openly compare the two cases with each other, the Rashbam's proof is not a valid proof.

According to this approach, since the Gemara's question specifically deals with whether or not the Kinyan and the Matnas Shechiv Mera cancel each other's power in the same Shtar, this case is applicable whether he gave away all or part of his property. (Y. Montrose)

OPINIONS: Rav and Shmuel argue about the status of a gift given by a Shechiv Mera with a Kinyan (see previous Insight). Does their dispute also apply in a case in which the Shechiv Mera explicitly states that he is giving the gift because of his impending death ("Metzaveh Machmas Misah")? Normally, in such a case, the Shechiv Mera may retract the gift (even a gift of only part, and not all, of his property) if he recovers because it is clear that he gave the gift only on condition that he die. If he makes a Kinyan in a case of "Metzaveh Machmas Misah," does that affect the gift the same way that it affects the gift in the case of a normal Matnas Shechiv Mera (without "Metzaveh Machmas Misah")?

(a) The RASHBA in the name of RABEINU CHANANEL and the RA'AVAD say that a case of "Metzaveh Machmas Misah" is not different from a normal Matnas Shechiv Mera, and in such a case the Kinyan would nullify the assumed intent of his statement.

(b) The RI MI'GASH (cited by the NIMUKEI YOSEF, page 71b of the pages of the Rif) explains that when a Shechiv Mera explicitly mentions his impending death as the cause for his generosity, since the reason for the giving of the gift is so clear it overrides the presence of a Kinyan (even according to Rav). Consequently, if he recovers he retains his possessions. Similarly, even if he stated at the time that he gave the gift that the gift should take effect "from now" (a phrase which -- when stated in a case of a normal Matnas Shechiv Mera in which the Shechiv Mera does *not* mention his death -- makes the gift take effect immediately and removes the status of a Matnas Shechiv Mera; see Insights to 151b), since he explicitly mentioned his impending death, he retains his possessions if he recovers.

The NIMUKEI YOSEF says that according to the Ri mi'Gash it seems that while the Shechiv Mera is still alive (but has not recovered from his illness) he may change his mind and retract the gift. This seems to follow the common understanding that since the gift is contingent upon his death, he may retract it as long as he is still alive. However, the RE'AH and the RITVA argue that he cannot retract the gift as long as he has not recovered.

Why can he not retract the gift before his death? The gift has not yet taken effect, since a Matnas Shechiv Mera only takes effect after death!

The KEHILOS YAKOV (Bava Basra #41) prefaces by explaining that there are usually two basic reasons for why a Shechiv Mera may retract his decision to give away his property. First, since the type of gift that he gives (Matnas Shechiv Mera) takes effect only after his death, he retains ownership of the property until he dies, and thus he may retract his word to give away his property as a gift. Second, we understand that he wants the gift to take effect only because he knows (or thinks) that he is about to die. Thus, if he recovers, he may retract the gift.

In the case of a Shechiv Mera who gives a gift and specifies that it should take effect "from now," the first reason does not apply, because he explicitly said that the gift should take effect now and not only after he dies. The only way that he could possibly retract such a gift is if there is clear evidence (or "Umdena") that his fear of death was the real reason for why he gave it. (In the normal case of a Matnas Shechiv Mera, where he did not say "from now," he may retract the gift not just because it is clear that he gave it only with intention that he would die, but because it has not yet taken effect at all, since it takes effect only after his death.) However, while he is still ill (before he dies), he may not retract the gift when he said "from now," because the "Umdena" tells us nothing about his intention before he dies; our knowledge that he wants the gift to take effect only if he dies only gives us reason to allow him to retract *if he recovers from this illness*, and *not* to retract the gift while he is sick. This is the reasoning of the Re'ah and Ritva.

According to this logic, the gift is merely conditional, "Al Tenai," and that is why the recovery of the Shechiv Mera might nullify the gift. If the Shechiv Mera does not recover, then there is no reason to invalidate the gift. (Y. Montrose)

152b

OPINIONS: The Gemara discusses a case in which a Shechiv Mera writes his property as a gift to one person, and then writes it as a gift to another person ("Kasav la'Zeh v'Chasav la'Zeh"). The Gemara says that it is obvious that the second gift overrides the first, because of the rule that a Shechiv Mera may retract his Matnas Shechiv Mera and give his property to someone else.

The Gemara then discusses a case in which a Shechiv writes and is Mezakeh his property as a gift to one person, and then writes and is Mezakeh it to another person ("Kasav v'Zichah la'Zeh, Kasav v'Zichah la'Zeh"). Rav says that the first person acquires the gift, because it has the status of a Matnas Bari (the gift of a healthy person, which takes effect right away), while Shmuel says that the second person acquires the gift, because it has the status of a Matnas Shechiv Mera (which the Shechiv Mera may retract and give to whomever he wants).

What is the meaning of "v'Zichah" in this second case, and why does it make it different than the first case?

(a) The RASHBAM explains that "v'Zichah" means that the Shechiv Mera handed over the Shtar to the recipient as proof of ownership. Rav maintains that since he handed over the Shtar to the recipient, it is as if he performed an act of Kinyan and thus it is like a Matnas Bari that takes effect right away, and the first person is Koneh the gift. Shmuel says that handing over the Shtar is not like an act of Kinyan, and thus the giving of the gift retains the status of a Matnas Shechiv Mera.

The RIVAM and the ROSH argue that this cannot be the meaning of "v'Zichah." The Gemara previously discussed a similar case in which the Shechiv Mera wrote his property to one person and then wrote it to another (without being "Mezakeh" it). If that case is referring to when the Shechiv Mera did *not* give the Shtar to anyone, then how can the Gemara say that it is obvious that the second recipient is Koneh the gift because the gift given to him overrides the gift given to the first person (and we assume that the Shechiv Mera changed his mind)? The Gemara earlier (135b) says that we do not follow the will of a Shechiv Mera as written in a Shtar ("Daitiki") that was found on his body after his death, since perhaps he never intended to give it until the Shtar was delivered to the recipient, and thus the Shtar is meaningless. If so, in the Gemara's previous case here the Shtar should also be meaningless since it was never delivered! (See TOSFOS here.)

(The TOSFOS RID explains that the Rashbam holds that the giving of the Shtar to the recipient is considered like a Kinyan (according to Rav) only when the Shtar is a Shtar "Hakna'ah," i.e. the Shechiv Mera writes that the Shtar is *effecting* the transfer of the property and it is not merely a "Daitiki," which *records* ownership. If he handed over a "Daitiki" to one person, then he indeed may retract his gift and give it to a second person. According to the way that the Tosfos Rid understands the Rashbam, perhaps the question of the Rivam and Rosh on the Rashbam is no question. The Halachah that a Shtar found on the body of a Shechiv Mera is meaningless applies only when that Shtar is a "Daitiki," as the Mishnah states there (135b) explicitly. If it is a Shtar "Hakna'ah," then perhaps we indeed follow the Shechiv Mera's command that is written in the Shtar. The first case discussed by our Gemara is discussing a "Shtar Hakna'ah," like the case that follows, and thus we cannot compare this Gemara to the Gemara earlier which is discussing a normal Shtar that simply *records* ownership.)

(b) The RIVAM and ROSH themselves explain that "v'Zichah" means that the Shechiv Mera had the recipient *acquire the property through the act of Kinyan* of a third party ("Zachin l'Adam she'Lo b'Fanav") and wrote this fact in the Shtar (i.e. that he had the recipient of the gift acquire the property through the agency of a third party). The case without "Zichah" is when he wrote the Shtar and handed the Shtar over to the recipient.

(From the words of RABEINU GERSHOM and the GE'ONIM, it seems that the Halachah is the same even if the Shechiv Mera handed over the Shetaros (in the first case) or made a Kinyan (in the second case) directly to the recipients and not through a third party; see AYELES HA'SHACHAR. The S'MA (CM 250:42) indeed explains that even according to the Rosh this is not a specific detail of the case, and the same applies without a third party.) (Y. Montrose)