The Gift of the Gravely Ill

Bava Batra (9:6) | Yisrael Bankier | 11 years ago

Most of the learning this week dealt with the laws of inheritance. The law of a gift of a gravely ill person – matnat schiv me’ra – was also raised. There are a number of unique laws that apply to such a gift that do not apply in the laws of acquisitions or gifts in general. 

The Mishnah (9:6) taught that if the shchiv me’ra gave away all his property then miraculously recovered, the gift is reverted. If however he left some property for himself, and gave the rest away by way of a contract, then if he recovers the gift stands. 

The Tifferet Yisrael outlines the laws that apply to a schiv me’ra. A partial gift (meaning that the schiv me’ra kept something for himself) requires a form of kinyan. If performed and the shchiv me’ra recovers, the gift is not returned. Without a kinyan even if he dies, it is meaningless. This is if the gift was given stam – like an ordinary gift. If however it was articulated that it was given as a matnat schiv me’ra – meaning to be given after death – then a formal acquisition is not required even for a partial gift.¹ Verbal instructions are enough. If the person recovers however, it is returned. 

If the schiv me’ra gave away his entire wealth (even to multiple people) a formal acquisition is not required². If the person recovered the gifts are returned. This is even if they were given on the condition that if he recovers it would not be returned. Only if an acquisition was performed and a stipulation was made would the gift not be returned as it is then considered like a gift from a healthy person. 

Finally if one gives instructions and states it is because he is going to die – metzave machmat mittah -then it does not require a kinyan even for a partial gift and is returned if the person survives.

There is a discussion in the Gemara whether matnat shchiv me’ra is biblical (147a) or rabbinic out of a concern tfor the stress that it may cause on the person in this precarious situation (147b). There is a case in the later Gemara involving issur the ger who was a schiv me’ra and wanted to give a large some of coins to Rav Mari³. No formal acquisition could be made. The Gemara explains that a matnat schiv me’ra could not be employed since Rav Mari was not a bar yerusha and a matnat schiv me’ra is like yerusha.⁴

We find from that Gemara that the matnat schiv mera was instituted by the rabannan and structured like yerusha (and indeed shares some similarities). The Yad Rama (149a) explains that a rabbinic law generally takes a similar construct of the biblical equivalent. Acquisitions require a formal act and are not performed with words alone. Similarly they cannot take effect after the death of one of the parties. The only construct that could be used was that of yerusha, which was the basis for the takana.

¹ The Tifferet Yisrael notes that if someone made an acquisition in such a case it would be detrimental unless it was stipulated that it was being performed to strengthen the recipient’s position.

² Even a matnat me’chaim (Bartenura)

³ See the Gemara and mefarshim for the explanation of their relationship.

⁴ The Shulchan Aruch rules that this exclusion is only for this particular case. Anyone else however could be the recipient of a gift from a schiv me’ra even if they were not related.

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