Siman 242

One who gives a gift due to duress, where they coerced him to give, it is not a gift, as is written in siman 205; for regarding a gift, if it is merely known that he was under duress, the gift is void even without the delivery of a moda'a, and it is not similar to a sale, see there. And even if he accepted upon himself property guarantee in the document, it is not a gift since they coerced him into this. Similarly, the delivery of a moda'a voids the gift even if we do not know if he was under duress according to what is written in the delivery of the moda'a; for even if the moda'a is a lie, nevertheless, since he revealed his intent that he does not desire the gift, it is void, and how can we force a person to give a gift? Therefore, one who delivers a moda'a regarding the giving of a gift, the witnesses write the moda'a for him even though they do not know of his duress. And it is not similar to a sale, for in a sale we suspect him that now he is pressed for money and is forced to sell, and afterwards when things are easier for him, he will produce the moda'a and void the sale; therefore, they do not write unless they know of his duress. But regarding a gift, since he does not want it, the gift is certainly void, and there it was explained further regarding this.

And if he submitted a moda'a and then nullified it, if we do not know of his duress and he nullified it of his own will without duress, it is a valid nullification. However, when we recognize his duress, the nullification is of no effect, for even without any moda'a at all, as long as we know that he is under duress regarding his gift, it is not a gift even without a moda'a. And similarly, even if we know that his duress has ceased and he did not nullify the moda'a, the gift is nothing unless his duress has ceased and he nullified the moda'a. Therefore, it is customary to write a nullification of moda'ot in gift contracts.

Our sages, of blessed memory, said [Bava Batra 40b]: Every gift, whether from a healthy person or from a shekhiv mera during the first three days of his illness—whose legal status is not like one who commands due to death, as I wrote in siman 253—must be open and publicized so that it is apparent that he gives it of his own free will. And it is not only if he said to the witnesses, "Hide yourselves and write it," where it is certainly clearly evident that he does not desire its giving and is coerced in this; but even if he said to them plainly, "Write it," it is nothing unless he said to them, "Write it and sign it in public," or similar expressions to these, so that it is evident that he gives it willingly. And all the more so when they write explicitly that he gives it of his own free will. And why were they concerned for this? Because most people do not give gifts; therefore, they were concerned that perhaps there is some coercion in this [it appears to me]. Therefore, any deed of gift in which it is not written that the giver gave it willingly, or that he said to the witnesses, "Sit in the marketplaces and in the streets and write this gift openly and publicized," or similar expressions to these, we concern ourselves that perhaps it is a hidden gift and was written without will, and the recipient did not acquire it. And even if they performed a kinyan from the giver, and even if the recipient seized and took possession of the gift, we remove it from his hand if the giver contests it, because the deed is flawed and we establish it in the possession of the giver, and even regarding a gift of movables. However, according to the opinion of the Rambam in the fifth chapter of Zekhiya, regarding movables, when he has seized them we do not remove them from his hand [the Gra]. But land always remains in the possession of the original owner. And even if the recipient claimed that he gave them to him as a complete gift and commanded to write so in the deed, and the witnesses forgot to mention this in the deed, it is not effective [Taz], unless the witnesses testify so.

If he gave the recipient possession immediately through a visible act of taking possession, it appears that he gave it to him of his own will; for if not so, who forced him to give him possession of his gift from now? For to us there is no known duress, rather we only concern ourselves because it was not written with publicity. Therefore, if it is written in the deed, "take it and possess it from now," it is as if it were written, "write it and sign it in public." And so some say even without "from now," and it was written in secret, if the giver gave the recipient possession of the gift, or even if the recipient himself took possession of it in the presence of the giver and he did not protest, he has acquired it. For the matter is revealed that he did not intend it as a hidden gift, and his intention was to transfer it with a complete kinyan, and that which he wrote it in secret was for some reason, such as so that others would not envy him or the like; for if not so, why was he silent when the recipient took possession of it? And so the Rif, of blessed memory, would judge.

And likewise, if he did not command to write it in public but commanded to sign it in public, it is valid. And even if he did not command to give it to him with witnesses of delivery in public, it is valid. And likewise, if he commanded to give it to him with witnesses of delivery in public, even though he did not command to write and sign it in public, it is valid, for in any case there is a disclosure of intent that it is with a willing soul. But if he did not command to sign or to deliver in public, even though he commanded to write it in public, it is of no avail, for the writing of the document is nothing, and the primary thing is the signing or the delivery [as is implied in the Tur].

One who commands due to death, meaning after three days of his illness, does not need to say to write and sign in public, or even to say that they should reveal the gift. Rather, even if it is written without specification, we do not concern ourselves that perhaps it is a hidden gift, for when a person contemplates his death, he does not perform an act of cunning due to fear or whatever reason it may be, and all his words are spoken in truth. And so too, a shekhiv mera prior to three days, when he said "do not reveal this gift until after death," this is a valid gift, for at the time that he transferred it—which is after his death—he commanded to reveal it. And all the more so regarding one who commands due to death explicitly. And such is the way of people: when they give a gift of a shekhiv mera, it is not their desire that it be known among the living until after their death, so that no one will challenge them during their lifetime.

If it was written in the deed of gift that the giver commanded us to write with every language of merit according to the enactment of the sages, nothing more is required; but if it was not written "according to the enactment of the sages," it is not effective [Beit Yosef in the name of the Ramban]. However, if other languages of strengthening the power of the deed are written in it which indicate his will, it is certainly effective.

Even though it has been explained that even an unspecified instruction is not effective when it was not explicitly written that he commanded to sign or to deliver in public, nevertheless, some say that nowadays we are not concerned with an unspecified instruction. This is because it is customary to write in all deeds of gift language of publicity, and therefore when he commands to write a deed of gift without specification, his intention is that they should write according to the custom of the scribes, and it is as if he said "write it and sign it in public." Nevertheless, ab initio it is good to state it explicitly. And it appears that if he commanded the witnesses to write that the recipient has permission to perform a validation of the beit din or to validate it in the secular courts, or if he himself wrote this to him, there is no greater publicity than this.

But when he explicitly commanded to write and sign the gift in secret, even nowadays it is nothing. And thus our Sages, of blessed memory, said that a hidden gift does not even function as a moda’ah to cancel a revealed gift that follows it. How so? If he gave a field to one person as a hidden gift, and afterwards gave that same field to another person as a revealed gift, the second person acquires it. We do not say that since he gave that field previously as a hidden gift, he has revealed his intent that he does not desire to give it, and presumably there is some duress such that he is forced to give it against his will, and therefore let the first be a revelation of intent regarding the second that he is under duress, so that neither this one nor that one should acquire it. For it is not so; on the contrary, we say that to the first he did not want to give it, and to the second he did want to, and therefore he gave it to him in public. In what case does this apply? When there is no other proof here that his intent was to cancel the second. But if there is another proof here, both are void, and the first functions as a moda’ah for the second.

How so? As in the case that occurred with one who desired to marry a certain woman, and she did not want to marry him until he wrote to her all of his property. When his eldest son heard, he came before his father and cried out before him regarding his desire to write to her all of his property. The father said to witnesses: "Go and hide yourselves and write to my son all of my property as a gift." Afterward, he wrote to the woman all of his property as a revealed and publicized gift. The case came before the sages and they said that both of them do not acquire: the son, because it was a hidden gift; and the woman did not acquire because the matters prove that he wrote to her against his will and is like one under duress, for behold, the gift to the son, even though he did not acquire, nevertheless it serves as a disclosure of intent that it is not his will to give to her, for it was for this purpose that he commanded the witnesses to write to him. And one should not ask: why do we need a reason for the cancellation of her gift due to the disclosure of intent of the son's gift, for even without this we know of his duress, that he only gives to her because she did not want to marry him without the gift? For in truth, this is not considered duress, as it is only called duress when he is coerced by others, such as when they force him according to some matter; but in a case where he is "coerced" by his own soul's desire, and if he did not want to fulfill his passion he would not be forced to this, this is a complete will, for through his passion to marry her he resolved in his heart to give to her. Therefore, without a moda'ah it would be impossible to cancel her gift, and only the gift to the son, which is an explicit disclosure of intent, is like the delivery of a moda'ah regarding the woman's gift, and the gift is canceled unless he cancels the moda'ah, as written in siman 205. And even though there are some of the great authorities who hold that even without the son's gift her gift is canceled because we see his duress, that he is forced to this because of his desire to marry her, the halacha is not so. And so our teachers, the authors of the Shulchan Aruch, agreed: that any duress that comes by way of his own soul's desire is not considered duress without the delivery of a moda'ah.