Siman 245

One who writes in a deed, "I have given such-and-such a field to so-and-so," or "such-and-such a field is given to him," or "behold it is his," behold, this person acquires it when the deed reaches his hand, for all of these are present-tense language, indicating that he transfers ownership now through this deed. Even "I have given" is present-tense language, as it is written: "I have given the money for the field, take it from me." And even though it can also be interpreted as past-tense language, it would be an admission that he already gave it to him and is giving him this deed as proof. However, if it is written in the deed in future-tense language, such as "I will give it to him," even though witnesses testified regarding it, the recipient has not acquired it, for this is only language of a promise that he will give it to him, and the witnesses are testifying to this—that he promised him—and it is like mere words and he may retract. And even in present-tense language, it is only effective in a deed, but in mere speech where he said before witnesses "my field is given to you," it is nothing unless they performed a kinyan from his hand, for speech alone is not an acquisition. And there are those who say that speech in the present tense is certainly nothing, but when he said "I have given," even though it is not an acquisition, nevertheless it is an admission that he already gave it to him, and the admission of a litigant is like a hundred witnesses, and the recipient may take it. And this is specifically when it is explicitly proven according to the language of the listeners that it is language of admission regarding the past, but the language of "I have given" alone is also present-tense language, as has been explained, and one does not extract from the possession of the holder with this language [it appears to me]. And there is no difference in all of this between a gift and a sale.

With the phrasing "I will give," it is not effective even if they performed a kinyan from his hand, for it is a kinyan of words; for just as a kinyan of a shtar with the phrasing "I will give" is not a kinyan but rather a verbal promise, so too is a kinyan sudar. And some say that a kinyan sudar is effective with the phrasing "I will give," for a kinyan of words only applies when one performs a kinyan to go or to divide and the like, but a kinyan of "I will give" is a kinyan on this field or on this object to acquire it now; for if not so, why would he accept a kinyan now? For granted regarding a shtar, even if it is not a kinyan now, it nevertheless serves as evidence in the hand of the recipient that he promised to give to him, and he will be able to show it in public so that the giver will be ashamed and be compelled to give to him; but what is the relevance of a kinyan on a mere promise? Rather, he certainly intended to transfer ownership to him now. And with "from now," it is obvious that whether with a shtar or with a kinyan, the phrasing "I will give" is effective, for since he said to him "from now," he says explicitly that this is not a promise, but rather that he transfers ownership to him through the shtar or through the kinyan. And so there is one who says that if he wrote to him in a shtar, "Such-and-such field shall be given to you" or "shall be yours," he has acquired it, even though there is a future tense in this; for since there is also a present tense, perforce this is not a promise for the future, but rather such is the way of the language. And furthermore, even the phrasing "I will give" can be interpreted as "I will give through this shtar" and "that you shall acquire through it." And the proof is that in the Gemara [Gittin 40b] there is one who indeed holds so; and granted that we establish that the hand of the giver is on top and perhaps it was only a promise, but when there is also a present tense in this, then "from now" it is obvious that the recipient has acquired.

According to the first opinion that the kinyan of "I will give" is not effective, if so, in all matchmakings where they write in the tenaim that this one obligates himself to give and that one obligates himself to give, even if they performed a kinyan from their hands, it is not effective according to this opinion. And so wrote Mahariw, that one who writes to his wife at the time of the matchmaking to make for her a large ketubah, she has not acquired it as long as he has not written it for her, for this is a kinyan of "I will give." Our teacher, the Rema, wrote that therefore they were accustomed to make new tenaim at the time of the chuppah, and these are the "latter tenaim" that some write, and this is effective because he writes in a language of obligation and acceptance upon himself, such that he is liened for it immediately even in a thing that has not yet come into the world, as has been explained in siman 60, or that he acquires with a kinyan sudar from now. And why do they not do so in the "first tenaim"? Because they are afraid lest one of the parties retracts; therefore they do not obligate themselves except for the penalty due to the shame, but in the body of the dowry and the gifts they do not wish to obligate themselves then [Sma]. And in our time, when most people do not write "latter tenaim," and nevertheless we have not heard that the dayanim do not obligate the parties to fulfill what they promised, it must be said either that we hold the law according to the latter opinion, or that we are witnesses that the intention of the parties at the time of the tenaim is to lien their persons for this, or that the intention of the future tense is for the present, as has been explained in the previous section, that "I will give" is not certainly proven to be a mere promise, but rather that based on this writing they obligate themselves now to give. And it is a simple custom in our time to obligate based on the tenaim all the obligations that the parties undertook, and one must not change this, for everyone who obligates himself does so based on the custom. And see Even HaEzer siman 51 [it appears to me].

One who says, "I gave such-and-such a field to so-and-so," and the latter says, "You did not give it to me"—and it is not that he is refusing the gift, but rather that he is telling the truth that he does not know of this—we say that both of them are telling the truth, and this giver acquired it for him through another person. We follow the words of the giver, and he cannot retract, even when he says afterward, "I gave it to you yourself, and since you deny it, the admission of a litigant is like a hundred witnesses." For the giver is not believed to retract his admission, and we hang the matter on the fact that he acquired it for him through another, for in this way the words of both of them are true. And this is more plausible than him providing an explanation for his words that he gave it to him directly, for in that case he contradicts the recipient. And even though we maintain regarding explaining one's initial words that one may claim and then retract and claim, as written in siman 80, nevertheless here he is not believed for the reason that has been explained [it appears to me]. And if the giver has creditors, they do not collect from this field as long as he has other assets to pay from. But if he does not have them, he is not believed in his admission to the detriment of the creditor, since the debt preceded it and the land was until now in his possession [Tur]. And it appears to me that in such a case, even if the recipient admits that he already gave it to him before the debt, he is not believed, for since it was until now in the possession of the giver, we fear a conspiracy [and therefore the Tur wrote this practical difference, and not like the explanation of Rashi, and the difficulty of the Taz is settled; and delve into this].

If he said, "I wrote such-and-such a field to so-and-so and I placed the deed in his hand," and the other says, "You did not give it to me," if the recipient of the gift himself says this, his admission is equivalent to a hundred witnesses, and the giver consumes its produce. And even though regarding the giver there is also an admission of a litigant, it is possible to say that he erred, thinking that since it was his will to give it to him, he certainly gave it to him; this is not the case with the recipient, for had he taken it, he would not say that he did not take it [Sma]. Furthermore, he is the possessor. And if the recipient died and it is the son of the recipient who says, "You did not give this field to my father," and he says, "I wrote and gave it to him," the produce is placed in the hand of a third party until the matter is clarified, for perhaps the heir erred and thought that his father did not receive it, when in truth he did receive it. And this is specifically when the son says, "I was present at that occasion when you say you gave it to my father, and I know that you did not give it to him." Nevertheless, we place the produce with a third party and we do not say "the admission of a litigant is equivalent to a hundred witnesses," since the son did not receive the deed in his hand, but rather says regarding his father's receipt that he did not receive it, and it can be said that perhaps he erred and thought he did not receive it, when in truth he did receive it. But if he does not say that he was present at that occasion, the law is as in the previous section, and we say that he acquired it for his father through another. Therefore, even though the son says that he heard from his father that he did not receive it, nevertheless we say perhaps even the father did not know of this, that he acquired it for him through another [Taz]. And all this is when there is no heir but him, but when there are other heirs, he is not believed in any case regarding their portion to disadvantage them [it appears to me].

A deed of gift in which it is written how a certain person said to us, "Write and sign against me with any language of merit and give to a certain person," and it is not mentioned in the deed that he gives, but only that he commanded to give—this is nothing. For he commanded to give, but he did not give, and what does his command to the witnesses avail? And thus they must write: how a certain person said to us, "Be witnesses for me that I have given, etc., and write and sign, etc.," or how a certain person said to us, "Be witnesses for me that I am giving, etc., and write and sign, etc."

A recipient of a gift whom a creditor comes to collect from, and he said, "It is not a gift in my possession, rather I am a guardian over it," or if he said, "It was a deposit from its beginning," he swears a shevuat hesset and it returns to its owners, and the creditor does not collect from it. And even though he should not have been believed with an oath to the detriment of a creditor regarding a matter in which he is the possessor, nevertheless, since it is known that this land was not his previously and witnesses do not testify that it was given to him as a gift, therefore he is believed with his oath that it is not his. And the oath is when the creditor claims with certainty, but if he claims, "Perhaps it is yours," he only requires an acceptance. And it appears that if the giver claims, "I gave it to him," he is not believed with an oath to divest the creditor, even though regarding the giver himself he would be believed as has been explained; nevertheless, to divest his debt, he is not believed.

If the giver claims, "You are a guard over it," or if he said, "I was coerced into the waiting," or "It is stolen in your hand," and this one says, "You gave it to me as a gift of your own free will," if the recipient held it for the years of chazakah, then when the gift is movable objects and they are in the hand of the recipient, the recipient swears a shevuat hesset and remains with his gift. The details of this law were explained in siman 140 and 146; see there.

Reuven gave his field to Shimon as a gift and wrote him a deed of gift, and afterwards Shimon returned the deed of gift to Reuven and also performed a mechilah for him; nevertheless, the gift is not canceled by this. For since he already acquired it through one of the kinyanim, it does not return to the giver until he returns and transfers it to him also through one of the kinyanim. The return of the deed is not effective, and mechilah also is only relevant regarding a monetary obligation, where the mechilah stands in place of payment; however, regarding an object, mechilah is not relevant, as I wrote in siman 241.

A recipient of a gift who said, after the gift came into his hand, "this gift is canceled," or "it shall be canceled," or "I have no desire for it," it is nothing; rather, it is his if the gift is land, and if his creditor comes, he may collect from it, for this language implies the future, and he has already received it and taken possession of it. But if he said, "it is void," or "it is not a gift," his words stand, for this language implies the past, and since he admits that it was void previously—that he never intended at all to acquire it—the admission of a litigant is like a hundred witnesses, and it returns to the giver. And some say that this is specifically when he does not cause a loss to others, but if he causes a loss to others, such as if he has a creditor who has the right to collect from it, he is not believed [Tur]. And some say that he is believed even when he has a creditor [ibid.], and our teacher, the Rosh, of blessed memory, agreed with this opinion. The reason is because the land was not in his possession until now. And it appears to me that this is specifically when he said so before the creditor came to collect it, but if he said so after the creditor claimed it, it appears that he is doing this to smuggle his debt and he is not believed, as I wrote in section 7. According to this, it is possible that the two opinions do not disagree, but rather the first opinion deals with when he speaks after the claims of the creditor. And that which we said, that the language "I have no desire for it" said nothing, this is regarding land; but regarding movable property that is under his hand, this language is the language of hefker, and whoever is first among them acquires it. But land is not "under the hand" of a person, and this language regarding land is not the language of hefker, but rather that he does not wish for the gift to be sustained [Rashi, Keritot 24a]. And it appears that also the language "it is canceled" or "it shall be canceled" regarding movable property is the language of hefker, just as in the nullification of chametz, which they touched upon from the law of hefker. However, there is no proof from chametz, for it is not in a person's domain during Pesach, but rather the Scripture made it as if it is in his domain regarding the matter of violating "it shall not be seen," therefore a revelation of intent is sufficient to remove it from his domain, which is not the case with something that is truly his [Ran, beginning of Pesachim]. And see what I wrote in section 13, that a gift also is not equal to his own property, and according to this, it is effective just as with chametz.

The Tur wrote in the name of the Rosh: One who writes his property or gave a gift to a certain person, and the recipient said immediately, "I do not want it," he has not acquired it and it returns to the hand of the giver. But if he was silent at first and afterward said, "I have no desire for it," if the giver is healthy, he does not merit it until the deed reaches his hand; and since he said, "I have no desire for it" before it reached his hand, it returns to the giver. And if the giver is a shekhiv mera, his words are considered as written and delivered, and immediately upon being silent he has merited it; and when he later said, "I have no desire for it," he has made it hefker, and whoever is first to it merits it if they are movables. And if it is land, it does not leave his possession because of this. Thus far his words. And some say that regarding a shekhiv mera, silence is not considered like acceptance except when he is silent after the death of the giver; but that which he was silent during the lifetime is nothing, since the kinyan is after death [Nimukei Yosef].

The Rambam, of blessed memory, wrote in the fourth chapter of Hilkhot Zekhiyah: One who receives a gift and acquired it, and after it came into his hand and he was silent, he retracted and said, "I do not want it," or "I am not receiving it," or "Behold it is void," or if he said, "This defect has appeared to me in it," he has said nothing. Just as the giver cannot retract, so too the receiver cannot retract after he has acquired it. And this gift regarding which the receiver said, "I do not want it" after it came into his hand, behold it is hefker, and whoever is first to it acquires it, for the receiver made it hefker after he acquired it. But if he was crying out from the beginning, the receiver did not acquire it and it returns to the original owners. Thus far his words. And he holds that even when he spoke with a phrasing for the future, granted that it does not return to the giver because the receiver already acquired it, nevertheless he also does not merit it from now on and behold it is hefker, as with movables according to the previous opinion. And even though regarding his own property, if a man says, "I do not want them" or "they are void," they certainly do not leave his domain, as is proven in the Rambam, chapter 15 of Hilkhot Edut, law 4, see there; nevertheless, regarding a gift, even though he already acquired it, this phrasing is like hefker. Our teacher, the Rema, wrote that nevertheless, if he has a creditor, he collects from it, for it is not within his power to make it hefker and cause a loss to the creditor. And even if it is an oral loan, since he has no means to pay except from this, it is not within his power to harm him by his making it hefker [Taz]. And if he has the means with which to pay, and it becomes hefker and the creditor acquires it from the hefker, he cannot exempt him from his debt with this, for why should the creditor be worse off than another, as it is not like the one who wanted to exempt the receiver from his debt in such a case [Ktzot HaChoshen]. And that which the Rambam wrote, that when he retracts on account of a defect it is also hefker, this is only regarding a visible defect that he certainly saw previously and was reconciled to, and now he retracts; but regarding a defect that is not visible, it is simple that it returns to the giver, for behold he says explicitly that on account of the defect that was revealed to him he does not want to receive it, and it is a gift in error and returns to the owners [Sma]. And regarding past tense phrasing, the Rambam also admits that it returns to the giver, and the phrasing "I do not want it" that the Rambam wrote, this itself is the phrasing "I have no desire" that we have written [ibid.].

If one acquired the gift for him through another, and when the recipient heard he remained silent, and afterwards he cried out and said "I do not accept it," this is a doubt: whether the one who remained silent already consented and now is retracting—and behold this is hefker according to the opinion of the Rambam, and according to the first opinion it remains in his possession in a gift of land—or whether he remained silent because he had not yet received it, and why should he cry out then, and now his end has proven his beginning that even from the start he did not want it, and it returns to the giver. Therefore, if another man preceded and acquired it for himself, we do not remove it from his hand in the case of movables, and according to the Rambam even in land, for perhaps the recipient acquired it, and since he said "I do not want it," behold he has made it hefker, and this one who preceded and took from the hefker has acquired it. And if the first owners returned—and he is the giver—and they seized it from the hand of this one who preceded and acquired it, we do not remove it from their hand, for perhaps the recipient did not acquire it. And even though in siman 139 it was explained regarding the law of "whoever is stronger prevails" that if one seized it, the subsequent seizure of the second from him is of no avail, it is different here; since the giver is known as the previous owner, therefore he can seize it even afterwards, and according to this, from him there is no longer the ability to seize [Sma]. And there is one who disagrees with the essence of this principle and holds that in every legal doubt, when one has seized, the second can afterwards seize it from him, and so on forever; and only there in the law of "whoever is stronger prevails," where the sages relied on the fact that he to whom it truly belongs will exert himself to seize it, therefore the subsequent seizure of the second from him is of no avail because we say that the first who seized it is as if it became known that it is his [Taz]. But according to the reason written by the Rosh in the third chapter of Bava Batra, that the sages of blessed memory did not want them to be in quarrels and strife all their days, this reason applies to all seizures like the first opinion, and in truth it is a dispute of the great authorities [see Shach ibid.], and if the second seized it we do not remove it from him in any case. However, the Rosh disagrees with the essence of this law and holds that it is not a doubt at all, and in a case where he was silent and in the end cried out, he certainly acquired it previously and now he is retracting; therefore in movables it is hefker and in land it shall return to the giver according to the first opinion [and so it appears in the Mordechai, the fourth chapter of Gittin, see there].

Our teacher, the Beit Yosef, wrote regarding the previous law that there are those who say that if it was the gift of a shekhiv mera, since he remained silent at the time he heard, he acquired it. Our teacher, the Rema, took issue with him, for there is no one who distinguishes in this law between a shekhiv mera and a healthy person, and it also does not seem correct to distinguish in this matter; since he granted it to him through another, the law of a healthy person is like the law of a shekhiv mera. The Acharonim agreed accordingly, and the words of our teacher, the Beit Yosef, were printed in error and belong to what preceded, regarding the law we explained in section 11. However, there are those who say that this is the opinion of the Rosh that we cited, that it is not a case of doubt, and he holds that it only speaks of a shekhiv mera and not a healthy person [Sma].