Lesson # 215 (Gifts - part XVII) • Gifts Causa Mortis of a Proselyte Maimonides (Rambam) writes in Hilchot De'ot (6:4) that "When one loves a convert who has come to rest under the wings of the Shechina (Divine Presence), he fulfills two commandments (mitzvot)": (1) the commandment to love one's neighbor, and We find in tractate Baba Mezia (59b), "Our Rabbis taught: He who wounds the feelings of a proselyte transgresses three negative injunctions, and he who oppresses him infringes two... It has been taught Rabbi Eliezer the Great said, Torah warned against the wrongdoing of a proselyte in 36 or, others say, 46 places." (See also Devarim 24:14) All Israelites for all future generations stood at Mount Sinai when the Torah was given. R. Acha the son of R. Raqba, asked R. Ashi, "What about proselytes?" He answered, "Though they were not present, their guiding stars were present." R. Eliezer said, "Whoever befriends a proselyte is considered as if he created him" (Gen. Raba 84:4). Maimonides, in his introduction to the Mishneh Torah, states that some of our greatest Sages in Jewish history were descendants of proselytes such as Shemaya and Avtalyon (the teachers of Hillel), Rabbi Akiva, Rabbi Meir, and his student Onkeles, the official translator of the Torah into Aramaic. The list goes on. Proselytes in all generations, including the present, have made a tremendous religious impact on Judaism. One needs only to look around us today to see the remarkable contributions they make for the entire community. This lesson continues the topic of gifts causa mortis, gifts made in contemplation of death. The gift of a proselyte differs from gifts made in contemplation of death by other Jews. The Rabbis made gifts causa mortis similar to inheritances - if heirs cannot inherit, then the gift causa mortis to such a person also fails. According to halacha, a proselyte becomes as a newly born person, that is, at the moment of conversion he has no heirs nor does he have legal relationships with his former family. Unless he bears children after he converts, he has no inheritors since offspring born to him before he converted are no longer considered his children. Thus, he cannot make a gift causa mortis to his former relatives. For example, if his children converted at the same time, before or after he converted, they are still not considered his legal relatives. This law alleviates the possibility of people permitting sons born or conceived before he converted to inherit his assets. Sylvester and Mary, non-Jews married to each other, conceive a child together. Thereafter, the couple converts to Judaism (before the baby is born) at which time Sylvester adopts the name Avraham and Mary adopts the name Sarah. Soon after their Jewish wedding, Sarah gives birth to a baby boy whom they name Yitzchak. Yitzchak, however, is not Avraham's legal heir since he was conceived as a non-Jew. Avraham then becomes critically ill. Since Yitzchak cannot inherit from Avraham, he cannot receive a gift causa mortis. (Avraham can give Yitzchak a gift of a healthy person, if they comply with the requirements, such as having Yitzchak perform an act of acquisition on Avraham's assets or by kinyan.) Considering his ill health, can Avraham give a gift causa mortis to anyone else besides his son Yitzchak? There are two opinions related to the validity of this gift. One opinion holds that the gift is valid, even if given to another proselyte; the second denies the legality of this gift causa mortis, regardless of the donee's identity. If the proselyte conceives a child after conversion, he now has heirs. He may then make a gift causa mortis to any person, including a child conceived or born before he was converted. Although a critically ill proselyte cannot give a gift causa mortis to a son conceived (or any other person for that matter) before his conversion, he can make an admission that he owes money to anyone (whether or not the donee is Jewish), including his son to whom he could not give a gift causa mortis. The admission may be that he owes money to that person or that he holds an object belonging to him, even though, as with all admissions, it is known that the admitter does not owe the debt. A related question relates to gifts causa mortis by a person born out of wedlock. (In Jewish Law), being born out of wedlock does not make a person a bastard. Instead, in halacha he is called a shetooki, or "one who is silenced." When asked to identify his father, he is silenced or silent. Since his father is not known and he dies without any descendants alive, he is heirless. Even if his mother names the father, the situation does not change. Occasionally in halacha, her naming the father is believed. Nevertheless, these situations have nothing to do with the laws of gifts. If the father is known and she states that he is Jewish, then there are heirs through the father. An opinion exists, however, that his status regarding gifts causa mortis is the same as that of a proselyte and cannot be valid. If the father is known (if the mother names him and he admits to being the father), then a shetooki can make a gift causa mortis. Another opinion states that the shetooki is the same as any other Jew regarding his authority to make a gift causa mortis. The words of the proselyte will be adhered to under the concept of fulfilling the wishes of the dead if the criteria are present for such compliance, such as the assets held in the possession of a third party. Another dissent holds that even if all criteria for the meritorious act of fulfilling the words of the dead are present, the concept does not apply to proselytes. The subject matter of this lesson is more fully discussed in
Volume VII Chapter 256 of A Restatement of Rabbinic Civil Law by E. Quint.
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