Lesson # 208 (Gifts - part ten) • Gifts Made in Contemplation of Death In the last few lessons we have been discussing how a gift causa mortis, made in contemplation of death is made. In this lesson we discuss how such a gift is rescinded. A gift of a critically ill person that is being treated as a valid gift of a healthy person that became effective with a delivery of a deed for real estate, a kinyan, or any other act of acquisition for real estate or personal property during the donor's lifetime cannot be rescinded by him during his illness, nor is thegift rescinded if he recovers. Whenever a gift causa mortis is rescinded, the assets of the donor belong to him, and when he dies, it belongs to his estate and the assets will be distributed to the donor's natural heirs. If the gift is treated as a gift causa mortis because the donor gave away all of his assets, or even if he gave away less than all of his assets but specifically designated his gift as being made under apprehension of imminent death, then if the critically ill person recovers from this illness, the gift is automatically rescinded, even if he does not formally rescind it. Beth din will take judicial notice that a person does not divest himself of all of his assets unless he is certain he is going to die. Beth Din presumes that if he recovers, he wants the gift rescinded even if he does not so state. This holds true even if the donee or someone in his behalf performed an act of acquisition on the gift; or the donor stipulated when he made the gift that he would not rescind the gift; or the donee had already taken possession of the assets after performing an act of acquisition, such as performing a hazakah on real estate or lifting or pulling or drawing the article. But these acts were performed, not as the actual act of acquisition, but rather to enhance the position of the donee of the gift causa mortis. The same holds true if a kinyan was performed, not as an act of acquisition, but to enhance the donee's position. However, if the donor binds himself with a kinyan undertaking not to rescind the gift, even if he recovers from his illness, there are two opinions. One opinion is that the gift cannot be rescinded by him because it is treated as the gift of a healthy person. The other opinion states that the donor can still rescind the gift. If there is a partial recovery from the criticalillness during which time he makes the gift causa mortis, and the death of the donor is from that illness, then the gift causa mortis remains in effect when the donor dies. However, if it is deemed that he recovers from the illness during which time he makes the gift causa mortis and then dies from another illness, thegift causa mortis made during the first critical illness is automatically rescinded. The rescission resulting from the recovery of the donor also applies to a forgiveness of a debt. Reuven, in making a gift causa mortis, included in the gift a forgiveness of the $100 that Shimon owed to him. Reuven recovers or, while yetill, rescinds all or part of the gift or the forgiveness of the debt. In such a case, the debt is still owed to Reuven by Shimon. The donor, Reuven, may rescind a gift causa mortis at any
time, even if he is still critically ill, by any of the following methods: In all these methods, the entire gift is rescinded whether the donor rescinded all or only part of the gift causa mortis. The halachah extends the ability of making gifts causa mortis to others who stand in positions similar to that of the critically ill person. If a person is about to immediately depart on an ocean voyage or set out with a caravan across a desert, or if he is led out, handcuffed, to be executed or suddenly becomes deathly ill, his status is the same as a critically ill person regarding the making of gifts causa mortis. The donor may rescind the gift; if he returns safely or recovers, the gift is automatically rescinded, and if he dies, the gift vests in the donees. Each Beth Din can evaluate the situation to see if the donor falls under any of the categories listed or other categories that Beth Din considers to be the equivalent of a person critically ill. Reuven, who is critically ill, sells some or all of his
assets, and a proper act of acquisition is performed. If he sells all of his
assets, the money he received from the sale is still in his possession, and
he recovers, he may rescind the sale provided he does so immediately and
specifically. If, when he recovers, he does not have the money to return to
the buyer, he cannot rescind the sale. If he dies from this illness, the
sale is final and his heirs cannot rescind the sale, even if the money their
father received is still intact. If he sells the assets very cheaply, the sale will be treated as a gift causa mortis, and all of the laws of a gift causa mortis apply. There is a general principle in halachah that it is a meritorious act to fulfill the wishes made by a person while he was alive and who is now dead. Thus if a person who died had, during his lifetime, expressed the fact that he wished a gift of a certain asset of his to be given to Shimon, his wish should be complied with. If the decedent makes a vow that he will give a gift to Shimon and dies before he makes the gift, there is no obligation on the heirs to honor that vow, since a vow is not a thing that can be bequeathed to heirs. However, if he made a vow in the present tense, such as, "I vow that this watch is given to Shimon," and dies before the watch is actually delivered to Shimon, The heirs must give the watch to Shimon. 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. [The Parshat Lech
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