Lesson # 212 (part 4 - Gifts - part XIV) Words Indicating a Gift

We shall begin this week's lesson with a discussion of gifts made by a person who is critically ill (gifts causa mortis) that are made on condition. The condition must be complied with for the gift to take place. For example, Reuven, who is critically ill, declares "Give $100 to Shimon if he marries my daughter Sarah". The condition is validly stated; if Shimon marries Sarah he will be given $100, and if he does not, he will not be given the $100.

But if Reuven does not make the gift conditional, Beth Din will not impose a condition, even if two things are stated together such that one might think they are actually conditional. For example, Reuven, who is critically ill, declares, "Give Shimon $200, and he shall marry my daughter". Since he mentioned the money first and then the marriage to his daughter, this is deemed to be two independent gifts to Shimon (the $200 and the daughter), the choice being Shimon's to take both or only one. Thus, Shimon may take the $200 without marrying Reuven's daughter.

If Reuven mentions the daughter first: "Give Shimon my daughter and give him $200," then it will be deemed to be a conditional gift; that is, if Shimon marries Reuven's daughter, he will receive the $200, and if he does not marry her, he will receive nothing.

Even in the situation where he mentions the money first, if the witnesses testify that it was obviously Reuven's intent that the gift to Shimon be conditioned upon him marrying Reuven's daughter, Beth Din will impose the condition. For example. before Reuven made his declaration, he stated that he anticipated that Shimon would marry his daughter and that therefore, he would like to give him a gift of $200.

Reuven declares a gift causa mortis: "Give $200 to Shimon so that he may buy a scrap business with the money". Shimon dies before the gift is given to him. The $200 is given to the heirs of Shimon, although they will not buy the scrap business. The gift will be deemed to be unconditional; there was merely an aspiration on Reuven's part that Shimon would buy the scrap business.

There is a dissent that holds that the purchase of the scrap business is a condition and that unless the heirs of Shimon buy the business, they will not receive the $200.

There must be some criteria to define the extent of the gift.

Reuven, who is critically ill, declares a gift causa mortis, giving to Shimon a house capable of containing 100 bales of grain. After Reuven dies, the house is measured, and it is found that the house can contain 120 bales of grain. It is held that the entire house belongs to Shimon, since it is apparent from the declaration of Reuven that he had this house in mind. Although it is larger, this is attributed to the fact that the donor of a gift should give generously. Thus, it was not the intent of Reuven that Shimon obtain an area in the house encompassing space to hold 100 bales of grain, and that the remaining area (capable of containing 20 bales of grain) go to the heirs of Reuven.

It is not usual for a house to be divided into parts. The result will be similar if the gift is the same but in this case, Reuven owns several houses, the smallest one capable of containing 120 bales of grain; Shimon will be given this smallest house. If there are two houses, one holding 120 bales of grain and the other holding 80 bales, Shimon will receive the house holding 80 bales. The law presumes that the heirs are the owners of all of the estate of the decedent who made the gift, and the burden of proof is on the donee to show that the donor intended the larger house.

Reuven, who was critically ill, declared in a writing, "Shimon is to be given one of Reuven's apartments selected by Shimon to live in, whether it is the upper apartment or the lower apartment". Shimon selected neither the upper apartment nor the lower apartment, but rather the middle apartment. It was held that the selection made by Shimon would be honored. When Reuven first stated that Shimon could have any apartment he selected, it was controlling; the latter part of his declaration, that he could have the upper or lower apartment, was only by way of example, and was not meant to limit Shimon's selection. The Beth Din will examine each declaration to see if the intent was to delineate the specifics to limit the general opening of the declaration.

The results are different when dealing with gifts of personal property.
As was stated above, it is not usual for a house to be divided, and thus, the intent of the donor was to give the entire house. However, it is not unusual to divide personal property that is capable of being divided. But if the personal property cannot be divided, such as a piece of furniture, it will be treated the same as a house. For example, if Reuven declares, as a gift causa mortis, "Give to Shimon that purse, which contains $100," and it is found that the purse contains $200, Shimon will be given $100. Similarly, Reuven declares, as a gift causa mortis, "Give to Shimon that keg, which contains twenty gallons of wine," and it is found that the keg contains thirty gallons, Shimon will be given only twenty gallons of wine.

There is a custom that the father of the bride makes a gift of a dowry to his daughter that will be included in her kethuba for the use of her husband. It was also the custom that the kethuba listed the value of the dowry as twice its actual value in order to add prestige to the bride. Reuven, the critically ill father, declares, as a gift causa mortis, "Give to my daughter $400 to be included in her kethuba as her dowry". Was it his intent to give her $400 and to include in the kethuba $800, or to give her $200 so that the kethuba would state $400? It was held that the gift was of $200; the kethuba was to state $400, which was the father's intent.

Reuven, who is critically ill, declares, "Give to my daughter Rivka $300 worth of furnishings as her dowry". At the time, Rivkah was not engaged to be married. Reuven did not mention when the gift should be given. Should the $300 be given to her upon his death to purchase furnishings that can be used when she gets married, enabling her to determine when to purchase the furnishings? Or should the money be given to her upon her getting married, or close to the marriage, for her to buy furnishings then? There are legal differences depending on which interpretation is given. In the case of the latter interpretation, if she dies without having married, her heirs do not inherit the $300; if the former interpretation, her heirs will inherit the $300.

Also, if there is a rise or fall in the value of the dowry under the former interpretation, the daughter loses or gains; under the latter interpretation, she does not share in the gains or losses of the $300. Also under the former interpretation, if the daughter takes the $300 and uses it for other purposes, the gift is nevertheless valid.

With this lesson we have concluded the discussion of the words indicating a gift causa mortis. IYH next week w shall discuss invalid gifts causa mortis and in cases where it is not certain who the donee is, how do we ascertain the intent of the donor who is dying.

The subject matter of this lesson is more fully presented in Volume VII Chapters 253 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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