Friday, January 29, 2010

One Gift to Two People

The Gemora discusses a case where a shechiv mei’ra gave the same gift to two people and both these people were zocheh (a legal acquisition). Rav says that the first person is zocheh, while Shmuel argues that the second one is zocheh. The halachah follows Shmuel (Choshen Mishpat 250:13).

The Rashba (Shu”t Chelek 2 Shaila 293) was asked what to do in a peculiar case. The story was that a father, Yaakov, gave his son Reuven a field as a gift while in complete health (matnas bari), stating that it is Reuven’s “from today and after I die,” which means that the field itself would immediately belong to Reuven, but the “fruits” (the profits) would belong to the father until he died, and only then would it be transferred to Reuven.

Years passed and Yaakov realized he was nearing his end, so he drew up a will dividing his inheritance among his children. Interestingly enough, the very field that was previously given to Reuven, Yaakov stated in his will that it would belong to Shimon. At the end of the will, Yaakov added a clause that if any of the children would contest any part of the will, than he would forfeit his part to the inheritance that he had received. So the question is: who does this field belong to?

The Rashba answered that logic would dictate that Yaakov simply forgot about the gift he gave Reuven years ago, and Shimon should never have received this field, and more importantly we should disregard the clause. However ,since there is a possibility that he did remember and Yaakov decided to give this field to Shimon, this causes a serious problem for Reuven, for although the field is rightfully his, if he opens his mouth, he loses the rest of the inheritance. On the other hand, says the Rashba, Shimon cannot keep the field either, for it clearly belongs to Reuven, since Yaakov cannot take away a matnas bari through any means. Therefore we have reached an impasse; Shimon cannot claim the field because it’s not his, and neither can Reuven, because of the clause. The only way out, concludes the Rashba, is that Reuven’s inheritors can claim the field (once Reuven dies), if in fact Reuven never contested the will. This is because the only thing stopping Reuven was that Yaakov added a clause in the will, which effectively muzzles Reuven’s mouth, but not his inheritors.