The term "Gifts Causa Mortis" means a gift made in contemplation of death. In this and in the next few lessons, we shall be discussing gifts causa mortis. In halacha, gifts can be divided into two major categories:

(1) Gifts made by a person in good health. This category may include: (a) persons who are actually healthy; (b) persons who are ill but not critically ill and on their deathbed; and (c) persons who are critically ill but desire that the gifts that they make are to be treated as gifts of a healthy person;
(2) Gifts made by a person close to death: this category can be divided into two subcategories, (a) a gift made by a critically ill person (that is, a gift causa mortis), and (b) gifts made in apprehension of imminent death.
We shall deal only with gifts causa mortis. In Hebrew, these last two are designated as matnat shechiv meira and matana machmat mita, respectively.

Actually, these two subcategories, (2a) and (2b), are almost indistinguishable, except that gifts made under apprehension of imminent death must be so specifically designated, while the gift of the critically ill person may sometimes be implied even when not so specifically designated.

In addition to the two major categories of gifts (the gift of the healthy person and the gift causa mortis), there is also a hybrid gift category: the meritorious act of carrying out the instructions of a person who died, whether those instructions were given while he, the donor (the person who makes a gift), was healthy or while close to death. Not to complicate the situation we shall deal only with gifts causa mortis.

Lessons 199 through 202 dealt with the first major category, the gifts of a healthy person. (As is usual in halacha, categories often overlap, and thus some of the laws of gifts causa mortis [made in contemplation of death] are mentioned in the lessons dealing with gifts of healthy persons, while laws dealing with gifts of healthy persons are often discussed in the lessons dealing with gifts causa mortis.) The author of the Shulhan Aruch, Rabbi Yosef Karo was born in Spain in 1488, fled with his family to Bulgaria in 1492 during the expulsion of the Jews from Spain. He then lived in Safed, Israel, where he died in 1575. He wrote a commentary on the code of Rabbi Jacob Tur, called Beth Yosef: Rabbi Karo later condensed his commentary, and this condensed work became the Shulhan Aruch. To the Shulhan Aruch of Rabbi Karo, Rabbi Moses Issereles (Crakow, Poland, 1520-1572) added his glosses, and the entire work of Rabbi Karo plus the included glosses of Rabbi Isserles became the Shulhan Aruch.

When the Shulhan Aruch was written by Rabbi Yosef Karo, many of the concepts of modern-day wills did not exist, A person gave away his assets through gifts while yet alive, either as gifts causa mortis or as gifts of a healthy person, and that which remained with him was distributed to his heirs upon his death, according to the laws of intestate succession described in future lessons. (Intestate means dying without writing a will.)
According to Torah law, at the moment of death, all of the assets of the decedent pass to the heirs, according to the laws of descent enumerated in the Torah. By Rabbinic law, certain obligations accrue at the moment of death of the decedent such as the ketuba obligations to the widow and the liability of the estate of the decedent to provide for the daughters of the decedent.

These lessons outline the method wherein an attempt can be made by the person who is critically ill to dispose of some or all of his assets before the Torah laws of descent of assets will take effect upon his death. In view of the Torah scheme of distribution of assets upon the death of their owner, how does the gift causa mortis take effect when the donor dies? No act of acquisition is performed by the donees (the recipients of the gifts) during the lifetime of the donor to transfer ownership of the assets from the donor to the donee; under Torah law, the transfer of assets from the donor to the donee cannot take effect after the death of the donor. The Rabbinic enactment regarding gifts causa mortis provides that the gift takes effect after the death of the donor, and yet the gift is deemed acquired during the donor's lifetime, retroactive to the time that it was made by his declaration of the gift. It is not actually retroactive legally, for if it were, all of the profits and losses from the donor's assets should have accrued to the donees, which they do not. If there is a deed given to the donee, either before or after the death of the donor, in the case of a gift causa mortis of real estate, this may complicate the situation. Was it intended that the declaration of gift by the donor gives effect to the gift and the deed is given as mere evidence to enhance the legal position of the donee, or was it intended that the deed effect the gift? If it was the donor's intent that the delivery of the deed effects the transfer, then several questions arise:

(1) Did the deed reach the donee during the lifetime of the donor, and was it intended as the gift of a healthy person? If a deed intended to be effective upon delivery does not reach the donee or his agent during the lifetime of the donor, it is not effective.
(2) Was the deed part of a gift causa mortis? It may not qualify as such a gift if it was intended to take effect after the death of the donor, since a deed, to be valid, must be delivered and be effective during the lifetime of the donor.
(3) Was the deed intended only as evidence of a gift causa mortis, which was made by the mere declaration of the donor? I shall IYH, in future lessons discuss the declaration of a gift causa mortis that is accompanied by a deed or a kinyan.

The reason the Rabbis of the Talmud instituted the concept of gifts causa mortis will be explained in the next lesson. Some of the questions to be discussed in the next few lessons are: by whom can it be made? How is it made? What are its effects? When does the gift become effective? May it be rescinded partially or in whole? What if the critically ill person recovers? What if the critically ill person states that some, or all, of the assets in his possession belong to someone else? To how many donees may such gifts be made? What other persons are afforded the same treatment as critically ill persons regarding their gifts?

Regarding the last question, the Talmudic passages and subsequent codes deal with situations that were dangerous in those times (and may still be dangerous today), such as a sea voyage where there were pirates or simply the danger of becoming lost or being killed at sea or in a caravan voyage across a desert where there are bandits. Following the lead of the Shulhan Aruch, I shall also discuss sales and admissions by a critically ill person. We shall also discuss how many witnesses need be present when the gift causa mortis is declared; the role of the witnesses as merely witnesses or perhaps as judges who can distribute the gift.

The subject matter of this lesson is more fully presented in Volume VII Chapters 250 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

[The Parshat Haazinu Homepage]
[The TORAH tidbits Homepage] [How to use TORAH tidbits]
[About The OU/NCSY Israel Center] [About TORAH tidbits]
[www.ou.org]