Translation:Shulchan Aruch/Choshen Mishpat/245

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Paragraph 1- If one writes in a document that he is giving such and such field to so and so or he writes that he already gave it to him or that it belongs to him, the recipient would acquire it once the document reaches him. If it was mere words, however, the recipient would not acquire unless he made a kinyan from the donor. This that we say that he would not acquire is only where he is giving the property now using any of these languages. If he said he gave the land as a confession, however, there are those who say he would acquire. See earlier 60:6. If he wrote in the document that he will give to him, however, even if the witnesses testify on it the recipient would not acquire, and even if he made a kinyan because it is a kinyan on words.

Paragraph 2- There are those who say that if a kinyan was made, “I will give” is effective. The Mahariv rules like the first view and thus writes that if one writes to his fiancée at the time of engagement that he will give her a large kesubah, she has not acquired any rights so long as he has not written her the kesubah. Thus, we have the custom to write new tenaim at the time of the wedding. See Even Haezer Siman 51.

Paragraph 3- There are those who say that if one wrote in the document “such and such field shall be given to you” or “shall be yours,” the recipient would acquire it.

Paragraph 4- There are those who say that if one said, “I will give so and so, effective now,” the recipient would acquire immediately, whether it was with a document or kinyan. If one said he gave such and such field to so and so, and the recipient says he did not receive it, we would trust the words of the donor because we can say he transferred possession to him via someone else, and the donor’s creditor would not be able to collect from the property so long as the donor has other properties in which he could collect from. If he has nothing else to pay the creditor with, however, his confession would not be effective to negatively impact the creditor.

Paragraph 5- If one said I wrote such and such field to so and so and gave him the document, and the recipient says he did not give it to him and the recipient is a gift-recipient, the confession of a party has the status of 100 witnesses and the donor would be able to consume the fields’ fruits. If it is the recipient’s son who says the donor did not give his father this field, and the donor says he wrote it and gave the father the document, we leave the fruits in the hands of a third party until the circumstances are clarified.

Paragraph 6- There are those who say that the foregoing only applies where the son says he was present when the donor said he would give to his father and he saw he did not give anything. If the son was not present, however, the law is the same as where the donor says he gave such and such field to so and so and the recipient says he did not give it. If a gift document says “write and sign for me in any language and give to so and so etc.” that is not a gift document given that the document does not mention that he is giving it but just that he instructed witnesses to give it.

Paragraph 7- If a creditor comes to collect from a gift-recipient, and the recipient says he does not own it but he is guarding it or that the gift was voided originally, he would swear a heses oath and return it to its owners. See below Paragraph 10.

Paragraph 8- If the donor claims the recipient was just a guardian or that he did not intentionally give it or that the recipient stole it, and the recipient claims he received it as a gift and he had possession for the required years of presumption or the gift was a movable item, the recipient would take a heses oath and be exempt.

Paragraph 9- If one gave a specific field as a gift to Reuven, and Reuven subsequently returned the gift document to the donor and waived the gift, the gift would not be void.

Paragraph 10- If one accepts a gift and takes possession, and when he receives it he is silent and then he subsequently says he does not want it, he does not accept it, the gift is void or he found a certain defect, he has not said anything that would revert the gift back to the donor. Rather, the gift is ownerless and whomever comes first will acquire it. If he has a creditor, the creditor may collect from it. If he objects originally, however, the recipient would not acquire it and it would revert to the original owner. This is all where the recipient used a language that implies he does not want the gift. If he uses language that implies he did not want the gift originally, however, even if he was originally silent he would be believed, even if it negatively impacts others, such as a case where he has a creditor. Because it was not in his possession until now, he is believed. If he says he does not want the item and the gift was a movable item, the gift is ownerless. If the gift was real property, because he was originally silent, his words are of no effect.

Paragraph 11- If the donor had someone else acquire it for the recipient and when the recipient heard he was silent but later objected and said he is not accepting it, it is unclear whether his original silence was because he wanted it and his subsequent objection was a retraction, or he was silent because he didn’t get anything yet and his subsequent objection is proof of his original intent. Thus, if a third party would come and acquire it for himself, we would not remove it from him because it is possible the recipient acquired it and once he said he doesn’t want it, he has made it ownerless and this third party that took it has acquired ownerless property. If the original owner went ahead and grabbed it from the third party that acquired it, we would not take it away from him because it is possible the recipient never acquired it because when he said he doesn’t want it, it proves what his original intent was and thus he never acquired it and it remains in the possession of the original owner. There are those who say if the gift was a dying-gift, once the recipient was silent when he heard about it, he has acquired the item. I have not seen anyone differentiate between a dying-gift and a healthy gift and it does not seem correct to me to make such a distinction because when one has a third party acquire on behalf of someone else, the recipient acquires a healthy-gift just as he does a dying-gift. The Rosh was also of the view that the recipient acquires in all cases.