Siman 241

One who gives a gift to his fellow, whether land or movable property, the recipient does not acquire it except through one of the methods by which a buyer acquires. That is, lands and slaves are acquired by deed or by chazakah, but money is not relevant to a gift. Movable property is acquired by hagbahah or by meshikhah, or by one of the other methods through which movable property is acquired. Kinyan sudar is effective for everything except for currency. Once he has acquired through one of those methods, even if not in the presence of witnesses, he has acquired if both of them admit to it, for in monetary laws witnesses were only created for liars, as it is written regarding guardians, "of which he shall say, 'This is it,'" which implies that the admission of a litigant is like a hundred witnesses [Rashi, Kiddushin 65b]. And that which is written, "by the mouth of two witnesses... shall a matter be established," this refers to a case of denial where his fellow denies him, and it is impossible to obligate others on one's own except by the mouth of witnesses. Therefore, regarding forbidden relations and all prohibitions that affect others, we learn from money in a case of denial [this is the intention of the Rashba there, and the difficulty of the Ketzot HaChoshen is settled]. Therefore, also in kiddushin, even though the man and the woman admit that he betrothed her between themselves, there is no kiddushin here at all, for perforce there is an obligation here toward others, as she becomes forbidden to everyone, and if another cohabits with her he would be liable for death, and it is impossible to obligate others without witnesses [this is the intention of Rashi there in the comment beginning "Hacha"]. Furthermore, there is a great difference between money and prohibitions, for in money each person can do with his money as he wishes, which is not the case with prohibitions; and even in kiddushin when both of them desire it, nevertheless when she is forbidden to him due to a negative prohibition or kareth, their will is not effective, and therefore no kiddushin can be completed without witnesses. But in money, when both parties agree, who can prevent them? Therefore, witnesses are not necessary. Also in prohibitions there is one thing that by Torah law does not require witnesses when he writes it himself, and that is a woman's get when he writes the get in his own handwriting [Gittin 86a], because the Torah made it dependent on his writing, as it is said, "and he shall write for her a scroll of severance" [Rashba]. And it is like money, for in the specific aspect of will it is similar to money, as it is in his power to divorce when he wishes and the matter depends only on him alone. And there is one who says that also in kiddushin the law is so, because it was compared to a get, as written in Even HaEzer siman 32. Know that even in money the matter is not completed by speech alone, but only by some kinyan, for mere words are nothing, except for a poor person who becomes obligated because of a vow, as written in Yoreh Deah siman 258. Also for a wealthy person regarding a small gift, if he said he would give, even though he can retract, he is nevertheless called "untrustworthy," as written in siman 204, but beit din does not compel in this [Mordechai, end of the fourth chapter of Bava Metzia]. And just as in money words without a kinyan are nothing, so too a kinyan without words—that if Shimon performed a kinyan sudar to give a certain object to Reuven, if he did not speak beforehand or at the time of the kinyan, "I am hereby giving this object to Reuven," even if he says his intention was to transfer it to him, it is not effective. Not only that, but even if another man said so at the time of the kinyan, such as Levi who said to Reuven, "Shimon's object is acquired by you," even though Shimon accepted a kinyan sudar to fulfill the words of Levi, it is nothing, even if Levi also accepted a kinyan sudar [Sma], for the object is not his and Shimon said nothing. And it seems to me that if Reuven the recipient said to Shimon, "Give me this object as a gift," and Shimon performed a kinyan sudar, the kinyan is effective since there was speech from one of the litigants. And know that what was explained at the beginning of siman 195, that speech is not necessary, that is when they spoke about it beforehand, as I have written. And regarding a waiver, speech is not necessary at all; rather, once there is an action that proves he waived it to him, his waiver is a waiver [Mordechai, chapter 3 of Bava Batra]. And this is not because a waiver in the heart is a waiver, for we have already written in siman 12 section 8 that a waiver in the heart is nothing, but rather since there is an action that proves it, it is like speech [so it seems to me]. But there is one who says that a waiver requires explicit saying, that he should say, "I hereby waive to you" [Rashbam 132b, comment beginning "u-mikulei"], or that he should say, "I have nothing against you" [Rashi, Kiddushin 16a, comment beginning "nima"], or that the defendant said to him, "Waive for me," and he answers him, "Let it be according to your words" [Mordechai, first chapter of Sanhedrin].

Mechila does not require a kinyan; for example, if one forgives his fellow for a debt he owes him, it is acquired through words alone. For specifically a gift, which is in the possession of the giver, it is impossible for it to be transferred from possession to possession through mere words, but regarding the mechila of a debt, where the money is in the possession of the recipient, the giver does not need to transfer it to him but only to remove his authority from it. When he says, "I hereby forgive you," he is removed from it, and automatically the recipient has merited them. Therefore, the Rambam wrote in the third chapter of Hilkhot Zekhiya that if Reuven had a deposit in the possession of Shimon and said to Shimon, "I hereby give you this deposit as a gift," this is a gift acquired through words alone, since the object is in the possession of the recipient. And even though the place of the object is acquired by the depositor and it is as if it were in his possession, nevertheless, the authority is only because of the object, as it is necessary that the place of the object belong to the depositor; and when the depositor removes his authority from his object, automatically his authority is also removed from the place where the object is placed, and the object and the place are removed together.

Our teacher, the Rema, wrote that there are those who say that even if he had a deed or a mashkon against him, nevertheless his mechilah is a valid mechilah with mere words, and the one who forgives must return the deed or the mashkon to him since he forgave his debt [Sma, and see what I wrote in siman 12, subsection 21]. The reason is that a mashkon is nothing more than a lien upon him, and a deed is nothing more than a lien upon his property; once he has forgiven him and the lien on his person is removed, automatically the lien on the property and the lien on the mashkon are removed, and he is obligated to return the deed and the mashkon to the borrower. There is one who says that this is a case of legal doubt (safeka de-dina) because in the Yerushalmi, first chapter of Gittin, there is a dispute regarding one who forgives a deed, as there is one who holds that it is not a mechilah until he returns the deed to him [Shach]. However, in my humble opinion, it appears that the primary view is like our teacher, the Rema, for we established in siman 66 that one who sells a debt-deed to his fellow and then goes back and forgives it, it is forgiven; thus, even when he sold the debt he can forgive it, and all the more so when the debt is his own. There is one who says that there it is effective mechilah because the deed is not in his hand [ibid. subsection 74], for the reason that mechilah is not effective with a deed is because we say that he did not forgive with a whole heart since he did not return the deed to him, and therefore when the deed is not in his hand, he forgave with a whole heart. This does not appear so, for on the contrary, there is more reason to say there that he did not forgive with a whole heart so as to cause damage to others. However, this is certainly so when he claims "I was mocking you," it is not a mechilah; and that which we said that it is a mechilah is when he admits or there are witnesses that he truly forgave him. According to this, it is a clear proof from there, and so agreed the great later authorities [Chelkat Mechokek and Beit Shmuel] in Even HaEzer siman 105 and siman 66, and so it is explicitly explained from the Rambam, chapter 10 of Ishut [law 10] and the end of chapter 17 there. There is further proof from the fact that there is a dispute in Ketubot [104a] regarding a woman who remained twenty-five years in her widowhood and did not claim her ketubah, that she forgave it; for there is one who holds there that even when the deed of the ketubah is in her hand it is a mechilah even without specification. As for the law, the Talmud ruled there that specifically when the ketubah is not in her hand it is a mechilah by default; in any event, we learn from there that in an explicit mechilah, the fact that the ketubah is in her hand does not hinder it. It is explicitly implied there that also regarding a creditor, when the deed is in his hand, mechilah is effective. Therefore, even if there is a dispute in the Yerushalmi, we follow our Talmud. Furthermore, it appears to me that the Yerushalmi also holds this way, for behold in the Yerushalmi Ketubot chapter 12, it ruled regarding the mechilah of a ketubah after twenty-five years even when the deed of the ketubah is in her hand, and it is more lenient in this than our Talmud. Therefore, it is possible to say that certainly when he forgave the debt, the Yerushalmi admits that the deed does not hinder, and the dispute is regarding one who forgives the deed; since he mentioned to him the mechilah of the deed, therefore there is one who holds that he must return the deed to him like other objects if he had forgiven them to him. There is one who says that certainly the debt is forgiven, but to compel him to return the deed and the mashkon he cannot do without a kinyan [Netivot HaMishpat]. This is not implied. However, in a mamrani it could be so, for even though he forgave him the debt, nevertheless anyone who produces it may collect with it and it is not designated for the lender alone, and in its sale mechilah is not effective, as I wrote in siman 66. See what I wrote in Even HaEzer siman 93, section 16, regarding mechilah in the heart.

There is one who is uncertain regarding a forgiveness of debt not in the presence of the borrower, whether it constitutes a forgiveness. And it appears to me that it is a forgiveness, and the proof is from a ketubah, where it has been explained that in an ordinary case it is a forgiveness, and this is no better than being not in his presence. However, this is specifically when the borrower became aware of his forgiveness and intended to acquire his money; but when he has not yet become aware of it, the lender may retract, for every kanyun requires intent, as I wrote in siman 189. And even though it is possible that regarding forgiveness a kanyun is not applicable, for when the lien of the lender is removed it remains in the hand of the borrower automatically, nevertheless, as long as it has not become known to the borrower, his lien has not been removed.

It has already been explained in siman 195 that a kinyan performed in the presence of those disqualified from testifying is a valid kinyan when both parties admit to it, since witnesses are not required at all. This is certainly true regarding mechilah, which does not even require a kinyan; for if he performed a kinyan for him in the presence of disqualified witnesses, it is a valid mechilah. Furthermore, even if he performed a kinyan for him with an object that is not effective for acquiring, such as performing a kinyan with a coin, nevertheless his mechilah is a valid mechilah since a kinyan is not required at all [Netivot HaMishpat]. We do not say that since he performed a kinyan for him, his intention was not to forgo the debt except through a kinyan, and since his kinyan is not a kinyan, the mechilah is also nothing—as we say regarding the gift of a shechiv mera in siman 250. For there it is different, as according to the law a kinyan is required, but the sages ordained that he should not need a kinyan so that his mind should not be troubled; and since the shechiv mera himself desired the kinyan, a kinyan is required according to the law. But mechilah does not require a kinyan at all according to the fundamental law [the Gra].

The language of mechila is only applicable to money that he owes him, or when he owes him an oath and he waived the oath for him. However, if he had an object in the possession of his fellow and said to him, "It is waived (machul) to you," it is nothing, for mechila is only relevant to something that is not in existence (einah be'ayin), such as a loan, which was given for expenditure, and he waives it so that he will not claim it from him. But regarding something that is in existence, one must use the language of a gift (matana), as I wrote in section 2. Therefore, even regarding money of a deposit, if the bailee is forbidden to use it, such as when it is bundled and sealed as written in siman 292, the language of mechila is not effective. But when he is permitted to use it, even if he has not yet used it, the language of mechila is effective, for it is similar to a loan [it appears to me]. And see what I wrote in siman 12 and siman 209. And regarding any mechila in error (be-ta'ut), he can retract it, even if they performed a kinyan from him, and similarly regarding a compromise (peshara) in error, as I wrote there; for anything done in error is as if it were not done. And if there is a denial between them, where the recipient says there was no error and the giver says there was an error: regarding movable property, the recipient shall swear a hesset oath since he is the possessor of his gift; and regarding land in a compromise or a gift, the giver shall swear a hesset oath, for the concept of chazaka is not relevant to land [it appears to me]. And what is called an error? When a matter is discovered afterward that, had he known it at the time of the mechila or the kinyan, he would not have done so. But if a matter was newly created after the mechila or the kinyan—for example, if he waived for a poor person or gave him a gift and afterward he immediately became wealthy—this is not an error, since at the time of the mechila and the kinyan he was poor. But if a matter was discovered that existed previously, even if the matter was hidden from both of them, nevertheless, since if the giver had known he would not have given or would not have waived, it is an error and he may retract, not like the one who disagrees in this [Zechut Yosef]. And it is not called an error unless it is a matter that is explicitly proven to be an error. But if the matter is not proven to be in error, even though it is possible that had he known he would not have waived or given, nevertheless, since it is not apparent to all that he certainly would not have waived or given, it is not called an error [Tur, end of siman 154]. Similarly, mechila is not effective for something that has not yet come into his domain [Nimukei Yosef, Perek Yesh Nochalin]. However, regarding something the sages enacted for the benefit of a person, he can withdraw and waive even before it comes into his hand [beginning of Perek HaKotev].

Our teacher, the Beit Yosef, wrote: One who waives to his fellow whatever he may take from his property may retract before he takes it, but after he has taken, what he has taken is taken. Thus far his words. And even though regarding a physical object the language of "mechilah" is not effective, nevertheless, since he took it and the owner remained silent, his intention was presumably to transfer ownership to him, just as with a thing that has not yet come into the world where a kinyan is not effective, and yet if he took it after it came into the world and the owner remained silent, he cannot remove it from his hand, as written in siman 209; so too here, regarding a gift given with deficient language, when he took it and the owner remained silent, he cannot remove it from his hand [the Gra]. And if it is because he could say that his intention was that he should take it and the owner would claim money from him, behold, regarding a claim, the language of "mechilah" is effective [see the Shach]. And this is specifically regarding movable property, but regarding land in such a case, even after he seized it, such as if he lived in it and established a chazakah in it, the owner may remove it from his hand, for land remains in the chazakah of its original owners [Sma]. And sometimes a mere statement is effective even regarding a physical object that is not in the hand of the recipient, such as one who says to his fellow, "The maneh or the object of mine that is in your hand, give it to so-and-so," and they were all together, for this is the enactment of the kinyan of ma'amad sheloshtan, as written in siman 126. And likewise, there is one who says that when they performed a kinyan from him, the language of "mechilah" is effective even regarding a physical object, and likewise regarding land after he established a chazakah in it, for when they performed a kinyan from him, they performed the kinyan from the essence of the matter [Taz]. And it is likewise implied from what is written in Even HaEzer siman 92, see there [for the halachah follows Rav Nachman at the beginning of the chapter "HaKotev"].

The Rambam wrote in the third chapter of Hilkhot Zekhiya: Just as a seller must define the sale, so too must the giver. How so? One who writes to his fellow, "A land from my property is given to you," or who wrote to him, "All my property is given to you except for a portion of them," since he did not define the thing that he gave to him and it is not known, he has acquired nothing. And he cannot say, "Give me the least of your properties," until he defines for him the place that he gave to him. But if he said to him, "A portion of such-and-hers in such-and-such field," since he defined the field, even though he did not define the portion, he takes that portion from the least of that field. Thus far his words. For the reason for an undefined thing is because his mind did not rely upon it; therefore, specifically when the general category is also undefined and it is not known to any person where his gift is. But when the general category is known, even though the specific detail is not defined, nevertheless his mind relied upon it, for he knows that in this field his gift is located. And there are some of our teachers who do not hold of this distinction, for since the type that he gave to him is known, even though the place is not known at all, it is a gift. And this is what our teacher, the Beit Yosef, wrote, that there are those who disagree and say that whether in a sale or in a gift, one can transfer an undefined thing. Thus far his words. But regarding an undefined thing in siman 209, where the essence of the type is undefined, they agree with the Rambam, and they do not disagree with him except regarding his equating the definition of the place to the definition of the type. And according to the custom that has spread to write in a kinyan of transfer "four amot of land" and they do not define the place where the land is, it is clear that we rule like those who disagree [Taz]. [According to what I wrote, it is well-settled that the Ra'avad did not disagree with him in the twenty-first chapter of Hilkhot Mekhira, and so too the Maggid Mishneh there, and so too the Beit Yosef in siman 209 did not mention that there are those who disagree; and the words of the Tur who wrote "and I have already written above etc." require great study; and see the Bach and Sma subsection 13].

Our teacher, the Beit Yosef, wrote that there is one who says that one who gives a gift to his fellow, it is not a gift unless it is in the mind of the giver that it shall be in the domain of the recipient to do with it whatever he desires. In what case is this said? When he gave it to him without specification, but it is recognizable from his thought that he does not intend to give it to him so that he may do with it whatever he desires. However, if he specifies, even if he gives it to him on the condition not to give it to another, or not to sell it, or not to consecrate it, or even on the condition that he shall not do anything with it except for a specific thing, it is a valid gift for that thing which he specified alone. Thus far his words. It is clear from this that when he gave him the gift without specification, even though he said nothing, since it is recognizable from his thought that he does not intend to give it to him so that he may do with it whatever he desires, but rather his primary intention is that the recipient shall do some thing to fulfill the will of the giver which the giver himself cannot do—like the case brought in Nedarim [48a] regarding a man who was forbidden by a vow from benefiting from his son, and afterwards the son made a feast in his courtyard and wanted his father to be there, and he said to his fellow, "The courtyard and the meal are given to you, and they are before you so that Father may come and eat." And the sages said that it is not a gift, for his meal proves regarding him that his entire giving is only so that his father should be able to be at the feast, and it is an artifice and is forbidden. And this is the system of the Rosh [chapter 4, siman 38], that even though he gave it to him without specification, nevertheless, since the matter proves that the intention was only for the sake of this thing, it is forbidden. And that which they said in the Gemara there, "so that Father may come and eat," is not specifically required, for even without this speech it is forbidden. However, there are some of our teachers who disagree on this and hold that the prohibition is only when he said so at the time of the gift, for then it is proven that he intended a complete condition that his father should eat; but if he did not say at the time of the act that his father should eat, even if he said so afterwards, it is a gift, for this is like "matters of the heart" [Ran and Rashba ibid.]. And according to the opinion of the Rambam in chapter 7 of Nedarim, even if he said afterwards, immediately after the gift, that his father should eat, it is not a gift because the meal proves this; but without any speech at all, it is like "matters of the heart" and it is a gift. And according to this, it is difficult regarding our teachers the Tur and the Beit Yosef, who here ruled like the Rosh, and in Yoreh Deah siman 221 ruled like the Rambam. And there is one who says that even according to the Rambam it is forbidden even without specification, since the matter proves that the gift is only for a mere artifice [there in the Beit Yosef in the name of Rabbeinu Yerucham]. And furthermore, it is to be wondered at, for according to what they ruled here, how do we sell much chametz before Pesach to a non-Jew, and based on this we also feed chametz to animals? For you have no greater artifice than this! Rather, certainly, since the sale is performed according to the law, we do not care about the artifice, as is written in Orach Chaim siman 448. And it is necessary to distinguish between a sale and a gift: for in a sale, since he makes a fixed transaction with him, we do not care about the artifice, for he certainly resolves in his mind that if he pays him the money, why should he not sell it to him? For in any case it is a complete sale. This is not the case with a gift; when he performs it as an artifice, behold, he has no desire at all to give it for free, and it is not a gift at all. And according to this, one must be careful in the sale of chametz not to give the chametz as a gift, but only as a sale. And even in a sale, if the artifice is clearly recognizable, such as if the animal is in the courtyard of the Jew, one should not feed it chametz based on the permission of the sale, and it is similar to the case of Nedarim [as mentioned above; and that which the great authorities questioned regarding the Tevuot Shor, who forbids feeding chametz to animals based on the sale, is well-settled; and delve into it].

This which has been explained, that when one specifies that he is not giving him the gift for all matters and he has no permission to do with it except for a certain thing, it is a gift for that thing alone—the reason is that it is no worse than one who transfers a portion in it to him and says to him, "I and you shall be partners in this," and so too here, it belongs to the recipient for that thing and for other matters it belongs to the giver [Sma]. This is provided that the thing is not for the benefit of the giver, for if it were not so, he is giving him nothing and it is not a gift at all, as I wrote in the previous section. Furthermore, it appears to me that when he gave it to him on the condition not to sell it or not to consecrate it, it is a gift and he has no permission to sell or consecrate; if the giver dies, he is permitted to sell and consecrate, for while he is alive he reserved this power for himself, but when he dies his power expires, and this is not property that he can bequeath to his sons, for this is nothing more than a mere condition, and automatically the recipient may do with it whatever he desires. And so it appears that during the lifetime of the giver, the creditor of the recipient does not take it for his debt, since he did not give him permission to remove it from his domain, but if the giver dies, he collects [and it appears to me that this depends on the two opinions brought by the Maggid Mishneh in chapter 8 of Laws of Divorce, law 11, and delve into this].

One who gives a gift on condition to return it, whether immediately or for a fixed time, or for all the days of the giver's life, or for all the days of the recipient's life, it is a gift for the fixed time, whether in land or in movable property, and he consumes the produce until that time, provided that he returns it to the giver at the fixed time. But if he does not return it, the gift is void. This is not a "kinyan of produce," which we establish is not like a "kinyan of the body," for this is a complete kinyan on the body, only that he stipulates with him that he shall return it to him; and when he returns it to him, he must transfer it to him with a new kinyan [the Rosh, chapter 3 of Sukkah]. This is a condition like all conditions. But if he said to him, "Let it be yours until such-and-such a time, and afterwards it shall be mine as at first," and not by way of a return of kinyan, this is not like a gift but like a mere borrowing [ibid.]. And some say that regarding a gift on condition to return it, if it died within the time, he is exempt; for even though he stipulated that he return it to him, nevertheless he is not like a borrower who is liable for accidents, but rather it is completely his, and he is exempt when it is lost. And there are those who disagree on this, for even though it is completely his now, nevertheless he is obligated to return it to him, and if he did not return it to him, the gift is void; therefore, even if it died due to work, he is liable, for he did not fulfill his condition [ibid.]. Nevertheless, the produce that he consumed he is not obligated to return to him, for at the very least regarding this matter his gift is not void; and some say he is obligated to pay [Mishneh LaMelekh].

Therefore, our sages, of blessed memory, said [Bava Batra 137b]: One who gives an ox to his fellow and said to him, "On condition that you return it," and he consecrated it and returned it, it is consecrated. The same applies if he sold it or gave it to others or liened it to a creditor [Nimukei Yosef]: if he merely returned it, even though the return is nothing since the other will come and take it, nevertheless, he has fulfilled his condition because he returned it. But if he said, "On condition that you return it to me," it is not consecrated, for he did not stipulate with him except that he return to him a thing that is fit for him; and all the more so his sale is not a sale, his gift is not a gift, and his lien is not a lien [ibid.]. And one must ask regarding this: according to what I wrote in the previous section, that he must afterwards transfer ownership to him, if so, even when he did not say "to me," how is his consecration a valid consecration? For it is impossible for him to fulfill his condition through the return because of the transfer of ownership which is nothing, since it belongs to the hekdesh. And similarly, when he sold or gave it to others, how can the return take effect? For a person cannot transfer ownership of a thing that is not his. The answer to this is that since he did not say "to me," perforce the condition was not that he should return it with a transfer of ownership, but rather a return to his domain for a brief moment in order to fulfill his condition. This is like one who says to him, "On condition that the ox stands in his courtyard for an hour," and the like; for if it were not so, he would have said "to me." Therefore, his consecration is consecrated, and in order to fulfill his condition, he returns it to his domain for a brief moment [it appears to me]. And there is one who wishes to say that this deals with a case where he consecrated it as a shelamim offering, such that the hide and the meat would be returned to him; according to this, this law would not apply in this present time. But it is impossible to say so—for why would the Tur and the Shulchan Aruch write it? And similarly, from the Talmud and the poskim it does not appear so at all. And some say that regarding hekdesh, even when he said "to me" and the consecration does not take effect, nevertheless, he redeems it for a perutah so that they should not say hekdesh leaves without redemption [ibid. in the name of the Ra'avad]. And this is only regarding hekdesh for the upkeep of the Temple; but the consecrations of this present time do not have the law of hekdesh at all, as I wrote in siman 95 [and with what I wrote, the difficulty of the Ketzot HaChoshen is settled; and see what I wrote in Even HaEzer, siman 28].

If he did not set a time for its return, but rather said to him generally that he should return it to him, the recipient may return it whenever he wishes, for every condition is in the hand of the one fulfilling it to fulfill whenever he wishes when they did not establish a time for the condition. However, if it is something that the giver needs, such as an etrog during the days of Sukkot, and he said, "on the condition that you return it to me," he must return it to him immediately, for presumably such was his intention: that the recipient fulfill his obligation of the mitzvah with it and return it to him immediately. And so too in any such case where the matter proves that he gave him the gift for a brief moment or for a limited time, he is obligated to return it to him immediately. And this is when he says "to me," but if he said, "on the condition that you return it," and did not say "to me," he may return it whenever he wishes, even after Sukkot, for it is no worse than if he consecrated it or sold it. And one who gives a gift on the condition to return it, and the giver then went back and waived the condition for him, it does not require a new kinyan [Chatam Sofer], and the gift is upheld from the first moment, for he has removed his condition and it is as if he gave it then without a condition.

Even though a gift given on condition that it be returned is considered a gift, nevertheless, one who swears or vows to his fellow to give him a gift, it is not effective if he gives it to him on condition that it be returned. For since he vowed to him, it was presumably based on the intent of the recipient, and he must give him an absolute gift. However, one who swears or vows in general to give a gift may give even on condition that it be returned, if he finds someone who will agree to this, and he fulfills his vow and his oath through this. And even in this case, it is specifically regarding a general gift, but one who vowed to give to a poor person, it is not effective on condition that it be returned [Shach Yoreh Deah siman 238], even if he did not specify to which poor person. And similarly, one who obligates himself to give a gift to a certain person, it appears to me that a gift on condition that it be returned is not effective, for every obligation is presumably because of some obligation he has toward that person or because of some favor he received from him, and he must give him an absolute gift. Furthermore, in the common language of people, when one obligates himself to a gift, the intention is for a complete gift.

One who says to his fellow, "This field, or this house, or this object is given to you on the condition that you give me two hundred zuz by such-and-such a time," and the giver dies within the time, or if he did not set a time at all, the gift is void. It is of no avail for him to give to the heirs, for since he said "to me," the intention was to me and not to my heirs, as I have written in siman 209 regarding a reservation. However, if the recipient dies, his children may give the two hundred zuz to the giver, for he did not say "you shall give" but rather "on the condition that you give," and his primary intention was to receive the two hundred zuz; thus, the heirs of the recipient may also fulfill the condition and give to him [the Gra]. And one who says, "This field is given to you on the condition that you give me such-and-such every year," and the giver dies, he does not need to give any more to his heirs. But regarding what he was obligated to the giver during his lifetime and did not fulfill, the gift is void, unless it appears that the giver was not particular about this, such as if he did not claim it from him. Similarly, if he did not violate the condition, such as if he converted it into a loan, or if it was not a condition upon which the gift was dependent—where he did not say "on the condition" but rather the recipient obligated himself to give the giver such-and-such every year and did not give it to him and died—he is obligated to give to his heirs [Netivot HaMishpat]. And one who makes a condition with his fellow to give him a certain object, if the object exists, he must give him specifically the object itself; and if it was lost, he may give him its value according to what it was worth. And even though regarding a get in such a case the giving of money does not avail, as is written in Even HaEzer siman 143, it is different there because we say that he intended to cause her distress, but here, what does it matter to me whether it is the object or the value of the object? And so too in every gift "on the condition to return," he may return the value of the object when the object is lost [Shach]. And even though according to the first opinion in section 11 when it is lost he is exempt anyway, that is when it is lost within the time he set; but after the time, he is certainly liable even for unavoidable accidents, for since he should have returned it and did not return it, he becomes like a borrower or like a robber and is liable for all responsibility [Netivot HaMishpat].

It has already been explained at the beginning of siman 207 that at the start of the transaction, whoever stipulates the condition, whether the seller stipulated or the buyer stipulated, the condition is valid. However, not at the start of the transaction, that which one stipulates for the benefit of the other is of no effect and is merely "words of persuasion." And in a gift, the law is also thus [Sma]. And anyone who gives a gift on a condition, whether the giver stipulated or the recipient stipulated and the recipient took possession of the gift, if the condition is fulfilled, the gift is established, and if the condition is not fulfilled, the gift is void and he must return the fruit that he consumed. And this is specifically when the condition is according to what is proper in the laws of conditions that were explained there. And there it was explained that some say that regarding monetary matters we do not require all the laws of conditions. And even according to the opinion of those who require the laws of conditions, if it is written at the end of the deed, "and we have performed a kinyan from him according to the stringency of all conditions and kinyanim made according to the enactment of the sages," nothing more is needed; for even if it was not done according to the laws of conditions, nevertheless, in this all the laws of conditions are included. And if it is not written so, and it was not done according to the laws of conditions, the condition is void and the gift is established, as I wrote there. And if there is a doubt in the interpretation of a condition, one fulfills the least of the interpretations and the gift is established [Ranach]. [That which the Ktzot HaChoshen wrote in subsection 14 does not appear correct to me at all, as I wrote in Even HaEzer siman 29 section 17, and so wrote the Netivot HaMishpat].

Reuven gave his property to his two sons and increased for this one and decreased for that one, and he imposed a condition: "on the condition that neither of them shall be able to sell anything until the younger son is twenty years old." If the older son arose and sold before the younger son was twenty years old, this older son who nullified the condition, his gift is nullified from the outset and remains in the possession of his father; for anyone who says "on the condition" is like one who says "from now." If the condition is fulfilled, the gift is established from the time of giving, and if it is not fulfilled, his gift is nullified. And when the father dies, he and his younger brother inherit, and the gift of the younger son remains established. This is specifically when it was done according to the laws of conditions or if it is written in the will "with the stringency etc." as I wrote in the previous section.

The recipient of a gift does not stand in regard to indemnity for his gift even though the giver collects it. How so? Reuven who purchased land from Shimon with indemnity and gave it to Levi as a gift, and a creditor of Shimon came and seized it from Levi—Reuven returns to Shimon and he cannot say, "What have I caused you to lose? Behold, they did not take it from you," because Reuven can say that when it was in the hand of Levi, it is as if it were in my hand, for this is my benefit when it is in the hand of the one to whom I gave it as a gift. And Reuven does not need to pay Levi what he seized from Shimon, for regarding a gift, indemnity is not applicable unless he transferred to him all his liens that he has on the land or if he obligated himself in indemnity.

If there was a condition in the gift and the recipient says that the condition was fulfilled and the giver says that it was not fulfilled: if the condition was regarding an action, such as "on condition that you do such-and-such a thing," or "go to such-and-such a place," or "give me such-and-such an object," or "speak with such-and-such a person," and the like, it is upon the recipient to bring proof that the condition was fulfilled. And if the condition was regarding the withholding of an action, such as "on condition not to do such-and-such a thing," and "not to go," and "not to speak," and "not to give," it is upon the giver to bring proof that the condition was voided. The reason is that every matter we establish upon its prior status, and we say that the matter remains as it was previously, and whoever says that something new has occurred from how it was before, it is upon him to bring proof that it is so. And a deed in which it is written "on condition that he cannot sell it," referring to the gift, its explanation is that if he transgresses and sells it, the gift is voided and returns to the giver. And even though the sale is void by virtue of the voiding of the gift, and if so we might say that its explanation is that he should not sell it and if he sells it the sale is void but the gift remains, it is impossible to say so; for if the gift remains and it is entirely his, why should the sale be void? Behold, it is in a person's power to do with his money whatever he wishes. Rather, certainly the gift is voided, and all the more so when he wrote "on condition that he shall not sell." [Tur section 15]: