Beginning with this lesson and continuing on for many lessons, we shall IYH be discussing gifts. The topic is divided into two parts:

(1) gifts made by a person whom the halachah considers to be healthy; that is, he is not terminally ill or making the gift in apprehension of imminent death. The fact that he is not medically healthy is not relevant; he is considered healthy for the purpose of making a gift; and
(2) gifts made by a person in apprehension of imminent death or while he is terminally ill. Such gifts are designated as gifts causa mortis.

Unless designated as gifts causa mortis, all gifts discussed in these lessons will be gifts made by a healthy person, as distinguished from gifts made by a person who is critically ill or in apprehension of imminent death.
A gift may be of an item such as real estate and/ or personal property under the control of Reuven, the owner. Or Shimon may be holding a camera for Reuven, and Reuven tells Shimon that the camera now belongs to Shimon. In this latter case, while owned by Reuven, the property is under the control of Shimon. In the former case, both ownership and control are with Reuven.

A gift might also be forgiveness of a debt. Shimon owes $100 to Reuven. Reuven forgives the debt, and he has thereby made a gift of $100 to Shimon. In these lessons, the donor of the gift shall be designated as Reuven, and the recipient of the gift shall be designated as Shimon; the thing being given by Reuven to Shimon is designated as "the item."
A gift, whether real estate or personal property, is acquired in the same manner as the item itself is acquired by purchase. Once Shimon, pursuant to the instructions of Reuven, has performed an act of acqui- sition, the gift item belongs to Shimon. It is not necessary that there be witnesses present when the act of acquisition is per- formed. It is never necessary for witnesses to be present for the validity of any commercial transaction (a gift being in the nature of a commercial transaction since it involves the transfer of ownership of prop- erty, whether real estate and/or personal property). However, it is advisable that there be witnesses present in all trans- actions so that if questions arise, either because the parties forgot the terms of the transaction, because of some other honest dispute, or because of a fraudulent assertion by one or both of the parties, the witnesses can testify as to the facts.

Ordinarily, with few exceptions, the owner- ship to the item is not transferred by words alone, and either party may rescind the transaction until the act of acquisition has been performed. For example, Reuven states to Shimon. "I hereby give to you my car as a gift," and Shimon states. "I accept the gift." Until Shimon performs an act of acquisition on the car, it still belongs to Reuven; Reuven can cancel the gift, or Shimon can refuse to accept it.
However, if the promised gift is not a large gift, and if Reuven rescinds it before Shimon performs an act of acquisition, Reuven may be designated as a person lacking faith. If it is a large gift, then Shimon does not really contemplate it being seriously intended and is not relying on it. It is for Beth Din in each case to examine the financial circumstances of Reuven and Shimon to determine if the gift in that situation shall be termed a large or small gift. Although Reuven is so designated for revoking his promise, the gift is nevertheless not effective.

Reuven can only give a gift of something that belongs to him; he cannot make a gift of something that belongs to Levi. For example, if Reuven tells Shimon that the house belonging to Levi is given to Shimon as a gift, the gift is not valid unless Reuven is Levi's agent. The gift is not valid even if Levi binds himself by kinyan to give the house as a gift to whomever Reuven designates and Reuven also binds himself by kinyan to Shimon that the house is given as a gift to Shimon. Since the house does not belong to Reuven, his binding himself by kinyan does not enhance Shimon's position. Since the property does not belong to Reuven, Reuven's words are a nullity and Levi's acceptance of the obligation still is a nullity.

Sometimes the forgiveness of a debt can act as a gift. Shimon owes Reuven $100. Reuven tells Shimon that he forgives the debt. What is said herein regarding forgiveness of a debt applies only to a money debt. It does not apply if Shimon has borrowed a book from Reuven and now owes him the return of the book. The forgiveness is valid, and Shimon no longer owes Reuven the $100, although the forgiveness was by words only and there is no act of acquisition performed by Shimon. If Shimon is not present when Reuven forgives the debt, Reuven may rescind the forgiveness until such time as Shimon becomes aware it; however, once Shimon is aware of Reuven's forgiveness, it becomes effective even if Shimon was not present. This holds true even if there were no wit- nesses or only ineligible witnesses present. The above rules also apply even if Reuven holds collateral security for the debt and/or an instrument of indebted- ness evidencing it. According to the majority view, once Reuven makes the statement of forgiveness and Shimon becomes aware of it, Reuven must return the collateral and/or the instrument of indebtedness that he is holding. The collateral and instrument of indebtedness are merely supportive of the underlying debt. If the under- lying debt is no longer in existence, the supports are no longer viable.

If the forgiveness is made in error or mistake, it is a nullity and Shimon still owes the $100 to Reuven, even if Reuven performs a kinyan forgiving the debt. Reuven pleads that he did not know all the facts when he forgave the loan. He thought that Shimon was poor, whereas in fact Shimon had, just before the forgiveness, won a lot of money in a lottery. But if Shimon wins the lottery after the loan is forgiven, then there was no mistake made when the loan is forgiven; what transpires thereafter is not relevant. If there is a dispute between Reuven and Shimon as to whether there was an error made by Reuven in forgiving the debt, then if it involves a forgiveness of money, the burden of proof is on Reuven; however, he may take a “hesseth oath” that the gift was made in error and win the case. If it involves a transfer of ownership by gift of an item that Shimon is holding as a bailee, then the burden of proof is on Shimon; however, he may take a “hesseth oath” that the gift was not made in error and win the case.

Assume that Reuven has deposited an item with Shimon to hold. Reuven tells Shimon that the item that he is holding is given to him as a gift, and Shimon states that he accepts the gift. The item then belongs to Shimon, without his having to perform an act of acquisition. This is another exception to the rule that transfer of ownership of the item is not made with mere words.

The subject matter of this lesson is more fully presented in Volume VII Chapters 241 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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