כ״ט בסיון ה׳תשע״ז (June 23, 2017)

Bava Batra 152a-b: Putting it in Writing

As we have learned, a matnat shekhiv mera is a present given by an individual who is on his death bed. Unlike other examples of property transfer where the most basic requirement demands that a formal kinyan – an act of transfer – take place, in the case of matnat shekhiv mera ruled that no such kinyan is necessary. This rule was established in order to ease the concerns that rest on a dying person who wants to be sure that his will is carried out prior to his death.

Our Gemara discusses a case where in addition to his request that his money be given to others, the shekhiv mera arranged for a formal contract to be written that spelled out what was to be given away. In such a case, Rav argues that the present is certainly a good one since it works on two different levels – both as a normal present (even if he recovers the present is permanent and will not revert back to him) and as a matnat shekhiv mera (and he can even transfer loans that are owed to him, which ordinarily cannot be accomplished without a formal legal act). Shmuel argues, saying that he does not know how to rule in such a case, since the appearance of the contract seems to indicate that he does not want to invoke the matnat shekhiv mera rule, yet ein shtar le-aḥar mitah – a contract cannot take effect after death.

According to the Rashbam and other rishonim, the Gemara’s discussion would be the same whether a contract was written or if some other method of kinyan was used to transfer ownership of the property, and the Gemara used the expression of “writing a contract” only because that is the normal manner to formalize a kinyan. Others suggest, however, that the entire discussion would only apply to a situation where the kinyan was arranged through a written contract.

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