Beth Din has the power to invalidate gifts, upon application made by a complaining interested party. Since Beth Din is being asked to construe the gifts contrary to their plain meaning, such authority vested in Beth Din should be used sparingly, if at all. It should be exercised only if there is some Talmudic and halachic basis for such extraordinary exercise of judicial discretion setting aside an apparently valid gift. Before voiding a gift, Beth Din must ascertain beyond a reasonable doubt that when he made the gift, the donor, Reuven, lacked the proper information to have the requisite intent to make the gift.

The example given in the Talmud and most often cited in the codes is that of Reuven's son and sole heir, Yaakov, having gone overseas. Reuven is notified that Yaakov died and was buried overseas. Reuven, having no other close heirs, makes a gift of his entire estate to Shimon, a non-relative. Thereafter, Yaakov comes home, very much alive. Reuven regrets having given away all of his assets, since he would like Yaakov to have them. Based on these compelling facts, Beth Din presumed that the gift would not have been made had Reuven been aware of the fact that Yaakov was alive. Consequently, Beth Din revoked the gift. In all cases where the gift is revoked because it was given without proper information, all the profits derived from the assets from the time of the making of the gift until its revocation belong to Shimon. The reason is that the donor really desired the gift had the facts been as he thought they were. There is also authority that the profits must be returned to Reuven.

In addition to the case found in the Talmud, another example given is one in which Reuven had several sons and one, Shimon, went overseas and was reported to have died there. Before his death, Reuven divided his property among the other sons. After Reuven's death, Shimon appeared, alive. It was held that the other sons must divide the gift they received with Shimon proportionately, according to the amounts they received from their father, Reuven.

Another example: Assume that Shimon, who is not really Reuven's cousin, produces forged documents purporting to show that he is Reuven's cousin. Based on these forged documents, Reuven transfers all of his assets as a gift to Shimon. Reuven there- after ascertains the truth: that Shimon is not really his cousin but rather a convicted thief who has swindled many other people. The gift to Shimon is revoked because Beth Din may presume that if Reuven had known that Shimon was not really his cousin, he would not have made the gift.

Another example: Assume that Reuven has no children and makes a gift of all of his assets to Shimon. Thereafter, a son is born to Reuven. Here, too, the gift will be rescinded since had Reuven known that he would have offspring, he would not have made the gift. This case differs from the previous cases since there, the facts existed but were not known to Reuven. In this case, the facts do not yet exist; nevertheless, Beth Din considered this situation to be similar to the prior cases.

The doctrine of being able to set aside a gift is applicable only if the gift is of all of the assets of the donor. If the donor reserved some assets for himself, whether real estate or personal property, the gift cannot be revoked by Beth Din. It is presumed by Beth Din that the amount that he reserved was for the benefit of his son should he return alive, or to provide for any eventuality should it turn out that the gift was made in error.

There is an authority that holds that if a critically ill donor reserves for himself the right to use the property while he is still alive, the gift cannot be revoked on the basis of mistake of facts. For example, Reuven gives a deed of all of his assets to Shimon to take effect immediately provided that Reuven has use of those assets as long as Reuven is alive.

There is an opinion that if the donor left himself with less than the amount required to live on, it is the equivalent of having given away all of his assets, and the gift can be attacked.

Even if the donor reserved for himself some assets, the gift can still be set aside by the complainant on the basis of mistake of fact, provided the property has not yet been given to the beneficiary named in the gift.
There is authority that the gift cannot be revoked by Beth Din if it was made by a healthy person, that is, someone not critically ill and in apprehension of imminent death. It is only if the donor is critically ill and has given away by gift all of his assets that the gift can be attacked. But if he was healthy and gave away all of his assets, the gift cannot be attacked on the basis of the lack of requisite intent based on mistake of material facts.

'It seems to me to be the better view that the laws of this lesson applies to both persons who are critically ill and those who are healthy.

According to some authorities, the laws of this lesson have been extended to the situation where Reuven gifted all of his assets to Shimon after having to flee the country because of fear of enemies or another, similar reason. If thereafter, Reuven works out his differences with his enemies, or they die, he can demand that the gift he made to Shimon be revoked.

Reuven and Shimon are brothers who inherited a parcel of real estate from their father. Shimon resided in the community where the real estate was located, and Reuven resided far away. The brothers decided to sell the real estate, and Shimon advised Reuven that to facilitate the sale, he should transfer, by deed of gift, his share of the real estate to Shimon. Shimon sold the real estate to a purchaser. The community where the real estate was located gave certain extra benefits to sellers of real estate. Reuven claimed that he was entitled to half of those extra benefits since his deed to Shimon was only for the purpose of facilitating the sale to the third party; Shimon replied that the benefit was solely his since Reuven had deeded his share to Shimon prior to the sale to the third party. Beth Din ruled in favor of Reuven since his transfer of his interest to Shimon was solely for the purpose of making it easier to sell the real estate to the third party. In short, Beth Din found lack of intent to make a gift; the deed was one of convenience only.

Assume that Reuven has several sons. He makes a gift solely to his son Shimon, and to the exclusion of his other sons, to take effect after Reuven dies, but the gift is deemed to be made to Shimon and his other brothers, and Shimon is considered to be a trustee on behalf of himself and his brothers. Beth Din may make such a determination if it concludes that this was the intent of their father, Reuven.

The subject matter of this lesson is more fully presented in Volume VII Chapters 246 of"A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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