Friday, January 29, 2010

Gifts of a Shechiv Meira

Gift Paradigm for Shechiv Meira

Rav Nachman says that although a shechiv meira need not perform a formal acquisition to transfer his property to others, he may not accomplish a transfer that has no parallel in normative transfers. Therefore, a shechiv meira may not transfer future usage or fruits of property, since there is no way for a healthy person to accomplish such a transfer.

The Gemora explains that a shechiv meira can transfer a loan due him, either because this can be transferred through inheritance, or because a loan can be transferred in the presence of the three parties – the debtor, creditor, and third party taking over the loan.

Tosfos (148a Shechiv Meira) explains that although one may transfer a debt or use of property via an agav acquisition (as an ancillary to a real estate transfer), that is not considered a normative paradigm on which a shechiv meira’s command can be patterned. A transfer with agav is based on an acquisition of another item, and is not an acquisition of the debt or use per se, and therefore is not a valid paradigm for a shechiv meira, who wishes to transfer the debt or use itself. When the Gemora cites inheritance as a precedent, it is not considering that an acquisition from a healthy person, but rather a paradigm of transfer, analogous to a shechiv meira, who transfers upon death.

Tree vs. Fruits
The Gemora discusses one who gets branches of a tree, when one splits a palm tree and its fruits between two people, or when he gives someone only the palm tree, but retains the fruits. It is unclear what the parameters of the question are, nor the ramifications of the answer.

The Rashbam quotes those who say that the Gemora is discussing a regular sale, and is asking whether the recipient of the fruits receives the branches or not. The Rashbam rejects this explanation, since this chapter does not deal with sales. Such a question should have appeared in the chapter that deals with sales of fruits.

Rather, the Rashbam and Tosfos say the case is a shechiv meira who commanded to distribute a palm tree. The Rashbam says that the palm tree is all the shechiv meira owns, and the ramification of the branch ownership is whether the shechiv meira has retained any property, or given it all away. If he has given the branches to the recipient of the fruits, he has not retained any land, and therefore his gift is a full gift, which he can void if he recovers. If he has kept the branches, he has retained land, and his gift is a partial gift, and is valid even if he recovers.

Tosfos (148a Iba’ya l’hu) disputes this explanation. Tosfos objects that if the ramification is in classifying this as a partial or full gift, the Gemora should have raised this question later, when discussing the topic of what a shechiv meira leaves over. Furthermore, this ramification may not be relevant for classifying a partial or full gift. The Gemora cites an opinion that the property left over may be movable. In that case, when the shechiv meira retained the fruit, it is a partial gift whether he retained the branches or not. The Gemora also cites an opinion that the property left over must be enough to support the shechiv meira. In that case, even the branches will not make the gift partial.

Rather, Tosfos says the question is based on the statement of Rav Nachman (147b) that a shechiv meira cannot give someone fruits from a tree, since there is nothing tangible and existent to transfer. The Gemora therefore asks whether giving the fruits includes the branches, which will make the gift effective, or does not include the branches, and therefore is not effective. Similarly, the Gemora asks whether a shechiv meira’s retention of the fruits includes the branches, and therefore is effective, or does not include the branches, and therefore is not effective.


Shechiv Meira
A shechiv meira is a person that is deathly ill and might not recover. If he would give away any of his possessions, they are automatically acquired by the receiver of his gift as soon as he dies, even without making any formal kinyan (Choshen Mishpat 250:1). The reason being, since the health of the shechiv meira is precarious, we don’t want to cause him unease (that he might die before the person formally made a kinyan to receive his gift, and his inheritors might not honor his wishes to give away this gift) which would adversely affect his health.

The gift does take effect until the shechiv meira dies, for if he gets better, then he probably would want back his money.

How sick does one have to be in order to be considered a shechiv meira? The Shulchan Aruch (Choshen Mishpat 250:5) quotes Rambam that the litmus test is if his entire body is so devoid of strength that he can’t get out of bed.

We learned in the Mishna (146b) that a shechiv meira that gave away all his possessions and did not exclude anything, his gift is not valid if he recovers. Our Gemora has a question regarding a shechiv meira that did not exclude anything and gave everything to hekdesh, and then recovered. The Gemora similarly asks in cases of hefker and tzedakah. The Gemora does not resolve these questions.

There is a dispute amongst the Rishonim whether the shechiv meira that recovered may keep his money or not. Rambam and Rimah hold that he can, and does not have to give it to hekdesh, hefker or tzedakah, while the Rosh, Tur and Mordechai argue that his gift was valid.

The halachah is that the gift is not valid if the shechiv meira recovered (Choshen Mishpat 250:3).