We continue the topic of how gifts are acquired. Just as a seller of an item must be specific regarding the item that he is selling, so must a donor of a gift be specific regarding the gift. If it is not specific, there is probably a lack of the requisite intent on the part of Reuven to make a gift. For example, if Reuven, the donor, writes a deed to Shimon, the beneficiary, and the deed states that Reuven gives to Shimon "a portion of my land," or, "I give you all of my land except for one part", Shimon acquires nothing, since Reuven did not specify the exact gift he is making, and the extent of the gift cannot be ascertained from the words of the deed. Shimon does not have the option to demand the least valuable part of Reuven's property, since Beth Din cannot state that this is Reuven's intent. Without the owner's requisite intent, there cannot be transfer of ownership. However, if Reuven writes, "I hereby give to Shimon an area of two acres in my field A," this is sufficient to make the deed effective. Beth Din will award to Shimon two acres from the least valuable portion of field A. There is also an opinion that Beth Din will try to ascertain the intent of Reuven even where the words are not specific.

Whenever a gift is made on condition (regardless of whether the condition is made by Reuven, or by Shimon), and Shimon performs an act of acquisition of the gifted item, if the condition is complied with, the gift is effective; however, if the condition is not complied with, the gift is retroactively ineffective. The condition must be stated prior to, or contemporaneously with, the act of acquisition performed by Shimon. Once he has performed an act of acquisition, no condition can be added.

There are different types of condition that may be made by Reuven when he gives a gift to Shimon. A general gift to Shimon is his to do with as he pleases, that is, he has full dominion over the item once he acquires it with an act of acquisition. The halachah does not recognize any implication that Shimon is not the full owner of the item, to do with as he pleases, even if somehow there seems to be an implication that there is some limitation to Shimon's unlimited authority over the gift. The foregoing applies if the gift is made without any explicit conditions attached thereto.

However, Reuven can explicitly place any conditions he wants on the gift that he gives to Shimon, and the conditions will be effective. Assume that Reuven gives a gift to Shimon, whether real estate or personal property, upon the condition that, say, Shimon return the gift to Reuven immediately, or after any specified period of time, or that Shimon keep it during his lifetime only, or only during the lifetime of Reuven or any other person or persons. Shimon must perform an act of acquisition when he acquires the gift, and Reuven must perform an act of acquisition when he reacquires it. The gift is valid provided that it is returned to Reuven as stipulated in his condition. If the gift is destroyed, lost, or stolen from Shimon, he may return the money value of the gift to Reuven. In essence, Shimon has a gift of the use of the item during this specified time. If the condition is not complied with and the item not returned as stipulated, the gift is retroactively ineffective and Shimon must return to Reuven any profits made from the gift. For example, on January 1, ‘92, Reuven gave Shimon a field as a gift, conditioned upon its return to Reuven three years hence, on January 1, ‘95. During the three years, Shimon cultivated the field, sold the produce, and made a profit of $100. Shimon fails to return the field to Reuven on January 1, ‘95. Not only will Reuven prevail in Beth Din and receive back the field, but Shimon will have to pay to Reuven the $100 profit he made while he owned it. If Reuven makes the gift to Shimon "on condition that you return the item" and does not specify a time or does not specify "to me," then Shimon may return the gift at any time he wishes. However, if it is known that Reuven requires the item at a specific time, this is implied in the gift given on condition of return, and Shimon must return it to Reuven at that time.

The prime example of this law is seen is the following situation. Every male Jew must have an etrog, a lulav, and two other prescribed species of leaves during Sukkot, to be waved at several specified times during the synagogue prayers. There is also a requirement that the four species belong to the user. Assume that Reuven and Shimon have adjacent seats in the synagogue; Reuven has the four species, and Shimon does not. After Reuven completes the first waving, he makes a gift of the four species to Shimon so that Shimon may do the appropriate waving with them. The gift is made so that they will belong to Shimon when he does the waving with them. When Reuven gives them to Shimon, he states that it is a gift on condition that they be returned, without specifying when. The halachah presumes that it means before the next part of the synagogue service that requires the waving of the four species, which is immediately after the first waving. If Shimon does not return the four species to Reuven, the gift from Reuven to Shimon is retroactively ineffective, the waving of the species by Shimon is regarded as a nullity, and the four species belonged to Reuven continuously.

On January 1, Reuven gives a gift of land to Shimon on condition that "You give to me $200 on or before February 1." Or no date for performance by Shimon was stated and Shimon did not give the $200 to Reuven before the latter died. Reuven dies before February 1 and before receiving the $200 from Shimon. The gift fails, since the condition was not complied with. Reuven had stated "to me," and this was not done.

However, if Shimon died before February 1 and before giving the $200 to Reuven, Shimon's heirs may give the $200 to Reuven, and the gift is effective. The intent of Reuven was not that Shimon personally give the $200 to Reuven but rather simply that the $200 should be given to him.

Reuven gives a gift of a field to Shimon on condition that Shimon pay to Reuven $5 a year. Assume that Shimon makes the annual payments while Reuven is alive. Then Reuven dies. Assume that all of the annual payments were made to him while he was alive, or that he died before the first payment was due. Thereafter, Shimon does not have to pay the $5 to Reuven's heirs; the gift becomes effective as an unconditional gift. If Shimon does not make the payments as they are due, the gift is retroactively ineffective.

If Reuven pleads in any case that Shimon did not comply with the condition, the burden of proof is on Shimon to prove that the condition was complied with.

The subject matter of this lesson is more fully presented in Volume VII Chapters 241 of "A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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