Translation:Shulchan Aruch/Choshen Mishpat/250

Paragraph 1- The gifts of a dying man does not require a transfer using one of the methods of kinyan because the words of a dying man are as if they are written and handed over. There is no distinction between a case where he instructed to give the property immediately after he dies or where he instructs his inheritors to give it at a later date. If the deceased did not instruct to give anything but just appointed guardians and gave them permission to divvy out his properties based on what they want and whatever they do should be like he did it, there are those who say his words are of no effect because as soon as he dies, his properties to go his inheritors and his gift is void. There are others who say his words are valid.

Paragraph 2- If a dying man wrote over all his properties to another and did not exclude anything, even if they made a kinyan, if he later became completely healthy, the gift would automatically be void. Even if the donor made a condition at the time of the gift that he cannot retract, when he becomes healthy he may retract, unless they made a kinyan from him. If he did not completely heal but went from one sickness to another and he did not get up or walk while leaning on his cane in the market, his gift would be valid, even if he walked in his house with his cane. If he got up between the sickness he gave out his properties on and the sickness he died from, and he walked while leaning on his cane, we evaluate based on the doctors. If he died because of his first sickness, his gift is valid. Otherwise, the gift is not valid. If he walked in the market without a cane, no evaluation is necessary. Rather, his original gifts are void.

Paragraph 3- When is this true? Where he gave a gift. If he confessed about his properties that they belong to so and so, however, such party would acquire, and even if the donor got up, he would not be able to retract. If he said I want these movable items to be Shimon’s, that is considered gift language. If he said these movable items go to Shimon or are Shimon’s and in my possession, however, it would be a language of confession. If the donor consecrates all his properties and did not exclude anything, or if he made them ownerless or gave them to the poor, if he gets up it would all be void, just like the rules of one who gifts a gift. Even if the poor people took possession, we would remove from them. This not like those who disagree on this. The laws of hekdesh are the same in that he can retract just like with respect to a gift. If one sold his properties while dying and only some were sold, the sale would be valid, just like by a healthy person. If he sold all of them and the actual sale money is still in existence and he got up, he may retract. If he spent the money, he would not be able to retract.

Paragraph 4- All of the foregoing was only said where the donor gives all his properties and does not exclude anything. If he excluded anything, however, it has the status of a healthy-gift which can only be acquired via kinyan. It doesn’t have to be a kinyan. Rather, it can also be pulling, handing over, lifting, each item based on what kinyan is needed, depending on whether it is real property or movable items. Only such a gift would handing over be effective. With respect to a dying-gift that can be retracted, however, taking possession would not help at all. See later Paragraph 16. Even if he dies, a kinyan would be necessary. Thus, if he got up, he would not be able to retract. How much of an exclusion is necessary? Even any amount, whether real property or movable items. There are those who say we need an exclusion that is enough for support.

Paragraph 5- One who is blind, lame, had amputated limbs or had an ache in his eye, hand or leg or something similar, has the status of a healthy person for all purchases, sales and gifts. One who is sick where his entire body is weak and his strength is gone because of the sickness so much so that he cannot walk on his legs in the market, and he has fallen on the bed, however, is referred to as a dying man, even if he did not say that he is giving out his properties because he is sick. There are those who say that only the first three days would he have the status of a dying person. Once three days has passed or his sickness took a turn for the worse even within the first three days, however, he would have the status of one giving out property because of death which will be discussed later in Paragraph 7 and Paragraph 17.

Paragraph 6- If one became mute and is unable to speak and he motioned to gift a gift, we would check him the way we would check him for a divorce document as discussed in Tur Even Haezer Siman 121. If he responds in the negative to a negative question and positive for a positive question, his gift would be valid. If not, it will not be valid. If the will of a dying person did not state that the individual had his sanity, we would still not be concerned. That which we have the custom to write it is just to enhance the document. The gift of one who is passing away is valid.

Paragraph 7- When is it true that a dying-gift that has exclusions can only be acquired in a kinyan and that if he gets up he cannot retract? Where he gives without specifying. If he explicitly said he is giving because he is dying, however, or even if he didn’t specify but it is clear from his words that he is giving because he is dying, such as where he is complaining about his death or something similar, even if there was an exclusion the gift would be acquired with just words and no kinyan once the donor dies and if he gets up, he may retract, even if there was a kinyan on some of the property.

Paragraph 8- If one goes out to sea or on a caravan or with a prisoner’s collar or he was in danger, which means his sickness took a turn for the worse and was very heavy on him, in all four of these cases he has the status of one divvying property because of death and his words are as if they are written and handed over and we would follow them if he died. If he was saved or got up, even if they made a kinyan he can retract, just like anyone who gave because of death.

Paragraph 9- When is it true that a dying-gift of a portion of the properties requires a kinyan? In a standard case. If he explicitly gave some of his properties as a dying-gift, however, no kinyan is required and if he gets up he may retract. If he does not get up, the recipient would acquire this portion. If there is a kinyan, he would only acquire if it was written in a way to bolster his power. Similarly, if he wrote away all his properties and explicitly said that he is giving all effective now and is transferring possession while he is alive, it is like any other healthy-gift that once the document reaches the recipient or they made a kinyan from the donor, he would acquire everything and the donor cannot retract. There are those who say that the same would apply in a dying-gift where they wrote that he is transferring effective today, and it has the status of a healthy-gift and a kinyan is required. Thus, one must be careful in a dying-will not to write that he is giving as a healthy gift or effective today if the donor didn’t say so. If he did say, one is prohibited from changing and it would then have the status of a healthy-gift and can only be acquired with a kinyan. We do not say in this case that it is a scribe’s error. If there was no kinyan, the gift is void. This is what appears correct to me.

Paragraph 10- If a dying person gave away properties that as far as the public knowns is all the properties that he has, it would have the status of a partial gift and a kinyan would be required. If they made a kinyan from him and he got up, he cannot retract. We are concerned that he may have other properties overseas unless the donor says that these are all my properties or it was established that he had no other properties other than these, and then it will be a gift on all properties.

Paragraph 11- In a dying-gift of all properties, there is no distinction between a case where he gave to one person or to two as one. Thus, if a dying person divvies his properties to two or three people and did not make a break between any of them and gave this to so and so, and this to so and so, and he died, they would all acquire, even without a kinyan. If he got up, he would retract all of them, even if there was a kinyan, because they are all one gift without any exclusion. If he made a break between one and another, it is as if he changed his mind on the earlier gifts, but not on the last. It would have the status of a partial dying-gift which needs a kinyan, even if the donor dies. Thus, if he were to get up, he would not be able to retract. If there was no kinyan, they would not acquire even if he dies. The last gift has the status of a full dying-gift and would acquire if the donor dies, even without a kinyan. Accordingly, if the donor gets up, he would retract.

Paragraph 12- If a dying person gave all his properties and retracted on some of them, the assumption is he retracted all of them. Even if he gave to two recipients on one document and retracted one of them, the second gift would also be void. If he explicitly said he only retracting some of them, however, the first recipient would acquire the remainder even though it is a partial gift and no kinyan was made, because at the time he gave it, it was a gift on everything and no kinyan was necessary. There are those who say that is only where he retracted and gave that partial amount to others. If he retained that partial amount for himself, however, even the remaining gift would be void unless they made a kinyan from him. If one wrote some of his properties to others and some to his inheritors, and he retracted the portion going to inheritors, the gift going to others would not be void because that which was given to inheritors is just a standard inheritance. Thus, if he gave all his properties to one person, and retracted and gave some to a second, the first recipient would not acquire, even if the donor died, because he retracted. The second gift would have the status of a partial dying-gift. Thus, if there was a kinyan, the recipient would acquire, even if the donor did not die. If there is no kinyan, even if the donor died he would not acquire. If the donor gave some to one with a kinyan, and the rest to a second, the first would acquire even if the donor did not die, and the second has the status of a full dying-gift and if the donor died, the recipient would acquire even without a kinyan. If the donor got up, the recipient would not acquire, even with a kinyan.

Paragraph 13- If a dying person wrote away properties to another, and then wrote to another, the latter recipient would acquire because he may retract until he dies if he specified it was a dying-gift, as was discussed in Paragraph 9, whether it was a full or partial gift, and whether he retracted for himself or another party. Even if he wrote and acquired on behalf of the first, and wrote and acquired on behalf of the second, the latter would acquire because a dying person that acquires still has the status of a dying-gitf. See above Paragraph 4. Grabbing would be of no effect. If he wrote, and the property arrived at the recipient, however, the Tur implies it would be effective. Where he got that from requires clarification. If a dying person wrote and acquired and they made a kinyan from him, however, nothing that follows a kinyan has any effect, and the donor cannot retract, whether for a third party or for himself, and whether he gave everything or only some properties.

Paragraph 14- If one divvied out his properties because of death, even if he wrote, acquired and they made a kinyan from him with all the forms of kinyan, he may still retract. If he said explicitly that he is giving it as a healthy gift, effective now and they made a kinyan from him, however, the recipient would acquire. There are those who say that this is only true where he explicitly said he was giving it because of death. If it was just assumed he was giving it because of death, such as where he said, “woe that I am dying,” however, the rules are the same as a dying gift.

Paragraph 15- If a dying person wrote all his properties to his slave, he may retract the properties but not the slave because a rumor already went out that he is free. If he explicitly wrote, “effective today, if I die,” he can retract.

Paragraph 16- If Reuven and his wife made a condition that if he dies while she is alive, his brothers would receive 2/3 of his money and she would receive 1/3, and the document reached the brothers, and Reuven got sick and instructed to give from the 2/3 to others, and he then died and the brothers want to void the instruction because they acquired 2/3 of the money, their argument is of no effect and the instruction is valid.

Paragraph 17- A full dying-gift that is given with a kinyan would not transfer, even if the donor dies. Even if the gift was written in a document and the document was given to the recipient while the donor was alive, the recipient would not acquire because the donor may not want the transfer to occur without a kinyan, and a kinyan cannot be done after death. If he explicitly said that the kinyan was only made to bolster the recipient’s rights, such as where he wrote, “and this kinyan is meant to add to the gift,” the recipient would acquire. Similarly, if the donor wrote that this document should work in whatever way is effective, it is as if he wrote it was to bolster his rights, and the recipient would acquire. There are those who say that the same is true where one divvies with a kinyan because of death, and its status would be the same as a dying-gift where the kinyan would hurt the recipient’s rights unless it was made to bolster his rights. There are those who say that if the donor did not request the kinyan, but the recipient did, it is like a bolstering of rights. Similarly, if the donor said after the kinyan was made that the gift should be fulfilled, it is like a bolstering of rights. If the donor transferred movable items via real property, the recipient would not acquire the movable items, notwithstanding the fact that he would acquire the real property after death, because it is as if he transferred the movable items with the real property of the transferor. If the donor said, “these movable items are for so and so and to bolster his right I am giving it to him via real property,” the recipient would acquire. If a dying person instructed that so and so and so and so should be guardians on his properties, and they made a kinyan from him, his words would be effective and no bolstering of rights is needed. Similarly, if they made a kinyan from him that he is transferring effective now or today, even if he explicitly said the gift should not be valid until after death, his words would be effective and no bolstering of rights is needed.

Paragraph 18- Similarly, if the dying person instructed to write a document for the recipient with the transfer and he died, we would not write and give because he may have only wanted to transfer with a document and there can be no document after death unless he was just bolstering his rights with the writing, such as where he said, “give and also write for him.” If he did not bolster his rights, even if the document was written while the donor was alive, we would not give the document after death.

Paragraph 19- This that we said that even if the recipient receives the document, he would not acquire until his rights were bolstered, is only where the document is not written with will language but with gift language, where it says, “my field is given to you” and the document is given to the recipient, in which case the handing over of the document is like the kinyan and a bolstering of rights is necessary. If the document was written with will language, the way one instructs his household, however, in which case the document is only a proof, if the document reaches the recipient while the donor was alive, the recipient would acquire. Similarly, if the donor wrote in his own handwriting, “my field is given to so and so,” it only has the status as a will and the recipient would acquire without a bolstering of rights.

Paragraph 20- If the donor wrote to one recipient and made a kinyan to him, and then wrote to a second person and made a kinyan to him, there are those who say the second would acquire even without bolstering of rights and even if the document did not reach him while the recipient was alive. Similarly, if the donor wrote, handed over and acquired for a recipient, and then wrote, handed over and acquired for a second recipient, the second recipient would acquire, even without bolstering of rights, because the kinyan of the second recipient was not intended to detract. The donor just figured he cannot give him less of a kinyan than he gave the first recipient.

Paragraph 21- This that we said that if the dying person instructs to write a document for the recipient with the transfer we are concerned he may have only wanted to transfer with a document is only in such a case. If the dying person was getting his items in order, and finished his will and instructed to write it, however, he is only instructing to write it as a memorial and he wants to transfer immediately and no bolstering of claims is needed. It was already explained in Paragraph 19 that we need the will to reach the recipient while the donor is alive. A will that has a kinyan written in it is like another other gift-document where a bolstering of rights is required. In a place where the custom is that everyone transfers with just a will and they do not have intention to transfer with a document, no bolstering of rights is needed. If one wants his inheritors to do this and this with his properties, that is considered a dying-man’s will because that which he wants was only made to strengthen the words.

Paragraph 22- There are those who say that there is no difference between a case where the donor says “write and give to him,” and one where he says “give and write to him.” There are those who say that this that we need a bolstering of rights is only where he says “write and give a maneh to so and so,” because the implication is write a maneh for so and so and give him the document. If he says “give a money to so and so and write a document for him,” however, because he did not mention to give him the document, his intention when instructing to write the document was just for a memorial and not to transfer with the document. Similarly, if a dying person said to give a maneh to so and so and after kidei dibur he says write and give him the document, we presume that he is not retracting the original gift but just wants to bolster the recipient’s rights so he has a proof. The witnesses write that the donor instructed them. They do not write, “and he said to us to write and give” because it would result in a voidance of the gift.

Paragraph 23- If a healthy person said write and give a maneh to so and so and the donor died, we do not give it, even if his rights were bolstered. There are those who say that this is because the donor said to write and give. If he said to give and did not say to write, however, we would give because there is a mitzvah to fulfill the deceased’s words. There are those who say we do not apply the principle of it is a mitzvah to fulfill the deceased’s words unless the money was given to a third party. See later Siman 252.

Paragraph 24- If a healthy person said “write and give this field to so and so,” and the donor is alive, we would write and give so long as he has not retracted before the document reaches the recipient’s hands. If the donor had died, however, we would not write and give unless they made a kinyan from him.

Paragraph 25- If someone died and a document was discovered tied to his hip, even if it had witnesses and they made a kinyan from him in order to bolster the recipient’s rights, it is meaningless because we say he wrote it and changed his mind. If he gave it to another on their behalf, whether one of the inheritors or not, everything in the document would be valid like all other dying-gifts. Similarly, if one wrote a loan-document against himself in another’s name or in the name of one of his children, and he gave the document to a third party and said this should be by you and did not explain anything, or he said leave this by you until I tell you what to do, and he then died, it would be of no effect. In the case of a healthy-gift with a kinyan, the recipient would acquire.

Paragraph 26- If one gave his movable items to another, effective now and after death, without specification, and after he died the inheritors demand he prove these items were his at the time he gifted them and maybe he purchased them later, their claim would be of no effect because we assume they were found here and that is where they were. See above 60:6.