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 also makes a Kinyan. The Gemara asks: does the fact that a Kinyan was made indicate that the Shechiv Mera wanted the gift to have the status of a healthy person's gift (a "Matnas Bari," which requires a Kinyan), or despite the Kinyan his gift stills has the status of a Matnas Shechiv Mera, as it is apparent that the Shechiv Mera is giving the gift due to his impending death? Rav maintains that the Shechiv Mera incorporates in his gift both aspects; it is like a Matnas Shechiv Mera in some ways and like a Matnas Bari in others. It is like a Matnas Bari in that the gift cannot be retracted if the giver recovers, but it is like a Matnas Shechiv Mera in that the giver can transfer the ownership of a loan owed to him, which only a Shechiv Mera has the ability to do. Shmuel does not accept Rav's position. He remains in doubt about whether the transaction is valid at all, because the Shechiv Mera may have intended for the 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 gives away all of his property or only part of it?

Also, the Gemara implies that the gift is recorded in a Shtar. Does the dispute between Rav and Shmuel apply only in a case in which the Shechiv Mera gives a gift with 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's question applies only in a case in which the Shechiv Mera gives 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, is valid only if a Kinyan is performed. Since the degree of efficacy of a Matnas Shechiv Mera b'Miktzas is already known, and the only possible case of such a gift is a case in which the Shechiv Mera makes a Kinyan, there is no basis for the Gemara to question what the Kinyan accomplishes. In contrast, when a Shechiv Mera gives a gift of all of his property, no Kinyan is necessary. Accordingly, in such a

case the Gemara can debate the status of the gift when it is given with a Kinyan. Since a Kinyan is not needed for a gift to take effect as a Matnas Shechiv Mera, the Gemara inquires how the added Kinyan affects the gift.

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

The Rashbam cites proof for this explanation from the fact that the Gemara compares this case to a different ruling of Shmuel, which states that a Shechiv Mera who writes a Shtar to give away his possessions may retract the gift if he recovers, even if a Kinyan was made. That ruling of Shmuel clearly refers to a case in which the Shtar was written without a Kinyan, since the Kinyan was made afterwards. Since the Gemara equates the case of that ruling to the case it discusses here, it is clear that the Kinyan in this case does not necessarily need to be written in the Shtar.

(b) The RIVAM and the RI (cited by Tosfos) reject the Rashbam's explanation based on a number of questions. They maintain that the Gemara asks its question only about a case in which the Kinyan was recorded in the Shtar. They admit that the other statement of Shmuel -- to which the Gemara compares this case -- deals with a Kinyan that is not recorded in the Shtar. However, they reject the Rashbam's proof for his explanation and argue that the Gemara's case here does not necessarily have to be the same. The Gemara cites Shmuel's ruling -- in the case of a Kinyan that is not written in a Shtar -- in order to challenge the ruling of Shmuel here. The Gemara reasons that if Shmuel maintains, in a case in which a Kinyan is written in a Shtar, that the written Kinyan diminishes the efficacy of the Matnas Shechiv Mera (since the Shechiv Mera may have 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). It would follow logically from Shmuel's opinion in the case of the Gemara here that the gift of a Shechiv Mera should be invalid in the case of Shmuel's other ruling as well. The Gemara therefore challenges Shmuel's ruling here from the fact that he rules in the other case that the Shechiv Mera's gift remains valid. (The Gemara answers that the gift is valid only when the Shechiv Mera specifies that the purpose of the Kinyan is to be "Meyapeh Kocho" for the recipient.) Since the Gemara does not state explicitly that the two cases are identical, Tosfos rejects the Rashbam's proof.

According to this approach, since the Gemara's question deals specifically with the issue of whether the Kinyan and the Matnas Shechiv Mera cancel each other out when they are recorded in the same Shtar, the Gemara's question is applicable whether the Shechiv Mera gives away all or part of his property. (Y. MONTROSE)

2) A "MATNAS SHECHIV MERA" IN WHICH THE DYING MAN IS "METZAVEH MACHMAS MISAH" AND MAKES A "KINYAN"

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, if the Shechiv Mera recovers, he may retract the gift (even a gift of only part, and not all, of his property) because it is clear that the gift is only on condition that he dies. If a person who is "Metzaveh Machmas Misah" also makes a Kinyan, does the Kinyan affect the gift in the same way that it affects a normal Matnas Shechiv Mera (when he is not "Metzaveh Machmas Misah")?

(a) RABEINU CHANANEL (cited by the RASHBA) and the RA'AVAD explain that a case of "Metzaveh Machmas Misah" does not differ from a normal Matnas Shechiv Mera, and in such a case a Kinyan negates the assumed intent of his statement.

(b) The RI MI'GASH (cited by the NIMUKEI YOSEF, 71b of the pages of the Rif) maintains that when a Shechiv Mera states explicitly that he is giving a gift because of his impending death, since the reason for the gift is so clear it overrides the presence of a Kinyan (even according to Rav). Consequently, if the Shechiv Mera recovers, the gift does not take effect and he retains his possessions. Similarly, even if a Shechiv Mera states at the time that he gives a gift that the gift should take effect "from now" (a phrase which causes a gift to take effect immediately and removes the status of a Matnas Shechiv Mera, in a normal case in which the Shechiv Mera is not "Metzaveh Machmas Misah"; see Insights to 151b), since he explicitly attributes the gift to his impending death he retains his possessions if he recovers.

The NIMUKEI YOSEF writes that it seems that according to the Ri mi'Gash, 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? After all, a Matnas Shechiv Mera takes effect only after the Shechiv Mera dies.

The KEHILOS YAKOV (Bava Basra #41) explains that there are two basic reasons for a Shechiv Mera's ability to retract his decision to give away his property. One reason is that the type of gift that he gives (Matnas Shechiv Mera) takes effect only after his death, and he therefore retains ownership of the property until he dies and may retract his instructions to give away his property as a gift. The second reason is 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.

When a Shechiv Mera gives a gift and specifies that it should take effect "from now," the first reason does not apply because the Shechiv Mera makes an explicit statement that the gift should take effect immediately, rather than after he dies. The only way in which such a gift could be retracted is if there is clear evidence (or "Umdena") that the Shechiv Mera gave the gift only because of his fear of death. However, even when there is such an "Umdena," it would allow the Shechiv Mera to retract his gift only if he recovers from this illness. He would not be able to retract the gift while he is sick because there is no "Umdena" that he intended to do so. 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)

3) GIVING THE SAME GIFT TO TWO DIFFERENT PEOPLE

OPINIONS: The Gemara discusses a case in which a Shechiv Mera writes a Shtar to give his property as a gift to one person, and then writes a different Shtar to give 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 and the property is given to the second recipient, 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 Mera writes a Shtar and is Mezakeh his property as a gift to one person, and then writes a different Shtar and is Mezakeh his property to another person ("Kasav v'Zichah la'Zeh, Kasav v'Zichah la'Zeh"). Rav says that the gift is given to the first recipient, because it has the status of a Matnas Bari (the gift of a healthy person, which takes effect right away). Shmuel argues and maintains that it is given to the second recipient, 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 the second case, and why does it cause the Halachah to be different (according to Rav)?

(a) The RASHBAM explains that "v'Zichah" means that the Shechiv Mera gives the Shtar to the recipient as proof of ownership. Rav maintains that this is considered as though he has performed an act of Kinyan, and thus the gift is like a Matnas Bari that takes effect right away, and the first person is Koneh the gift. Shmuel, on the other hand, maintains that handing over the Shtar is not like an act of Kinyan, and thus 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." If the term "v'Zichah" means that the Shechiv Mera gave the Shtar to the recipient, then it follows that in the first case of the Gemara, in which the Shechiv Mera was not "Mezakeh" his property to either recipient, the Shtar remained in the Shechiv Mera's possession. The Gemara says in that case that the second recipient acquires the Shechiv Mera's property because the gift given to him overrides the gift given to the first person (and Beis Din assumes that the Shechiv Mera changed his mind). The Gemara earlier (135b), however, says that Beis Din does not follow the instructions of a Shechiv Mera that are written in a Shtar ("Daitiki") that was found on his body after his death, since he may not have intended to give that gift until the Shtar was delivered to the recipient, in which case the Shtar is meaningless. If the Gemara's case of "Kasav la'Zeh v'Chasav la'Zeh" is a case in which the Shtar was never delivered, then the Shtar should be meaningless in that case as well. (See TOSFOS here.)

(The TOSFOS RID explains according to the Rashbam that Rav's position -- that the Shechiv Mera effects a Kinyan when he gives the Shtar to the recipient -- is true only with regard to a "Shtar Hakna'ah," a Shtar that effects the transfer of the property, as opposed to a "Daitiki," which merely records ownership. If a Shechiv Mera gives a "Daitiki" to one person, then he indeed may retract his gift and give it to a second person. The Tosfos Rid's understanding of the Rashbam may yield an answer to the question that the Rivam and the Rosh ask on the Rashbam. The only Shtar that is meaningless when it is found on the body of a Shechiv Mera is a "Daitiki," as the Mishnah states there (135b) explicitly. If a Shtar "Hakna'ah" is found on the body of a Shechiv Mera, however, then perhaps the Shechiv Mera's instructions are followed. According to the Tosfos Rid, the two cases of the Gemara here refer to a Shtar Hakna'ah, and the difference between the two cases lies in whether the Shtar was found on the Shechiv Mera's body or was already given to the recipient. The question asked by the Rivam and the Rosh is from the Gemara earlier, which discusses a normal Shtar that simply records ownership.)

(b) The RIVAM and ROSH themselves explain that "v'Zichah" means that the Shechiv Mera has the recipient acquire the property through an act of Kinyan performed by a third party ("Zachin l'Adam she'Lo b'Fanav") and he records this fact in the Shtar (i.e. that the recipient of the gift acquired the property through the agency of a third party). The first case, without "Zichah," is a case in which the Shechiv Mera merely writes a Shtar and gives it 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 hands over the Shtar (in the first case) or makes 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, the presence of a third party is not necessary.) (Y. MONTROSE)