1)A SAFEK WHETHER THE GIVER WAS HEALTHY

(a)Gemara

1.(Mishnah - R. Meir): If Reuven wrote a gift document, and it did not say that he was sick, and he says that he was sick, and the recipients say that he was healthy, Reuven must bring proof;

2.Chachamim say, to take money from another, one (in this case, the recipients) must bring proof.

3.A gift document said 'he said to give...' It did not say 'he died from the sickness.' (The giver is now dead.)

4.(Rabah): We assume that he died from that sickness, and did not recover in between.

5.Objection (Abaye): Most people on sinking ships die, yet we are stringent, perhaps they are still alive. Most sick people recover, all the more so we should be stringent, perhaps he recovered (and the gift was nullified)!

6.(Rav Huna brei d'Rav Yehoshua): Rabah holds like R. Noson.

i.(Beraisa - R. Yakov): If a gift document did not say whether the giver was healthy or sick, the giver can take the property from the recipients (even if they already took it) without a proof (that he was sick at the time). They can take it only if they bring proof;

ii.R. Noson says, if the giver is healthy now, he must bring proof that he was sick. If he is sick now, they must prove that he was healthy.

7.154a (Mishnah - Chachamim): To take money from the giver, one must bring proof.

8.(Rav Huna, and Rava and R. Yochanan): He must bring witnesses (that Reuven was healthy when he gave the gift).

i.R. Meir holds like R. Noson (153b; we assume that Reuven was then like he is now, i.e. healthy). Chachamim hold like R. Yakov,

9.(Rav Chisda and Rabah bar Rav Huna, and Reish Lakish): The recipient must validate the document.

i.They hold that R. Meir holds that a lender need not validate a document if the borrower admits that he authorized it (but claims that he paid it): Chachamim hold that he must validate it. (If not, the borrower is believed to say that he paid, Migo he could claim that it was forged.)

10.Question (Abaye, against Rava): Why must the recipient bring witnesses?

i.Suggestion: Gift documents of healthy people usually say 'he was walking in the market... (i.e. healthy)', and this one does not.

ii.Rejection: Matanos Shechiv Mera usually say 'he was bedridden...', and this one does not!

11.Answer: Since we are unsure, we leave the money where it is, unless they bring proof.

12.Gitin 72b (Rav Huna): The Get of a Shechiv Mera is like his gift. Just like he can retract a gift if he recovers, also his Get.

13.Question (Mishnah): If one said 'this is your Get from today if I die from this sickness', and got up and walked in the market, then fell sick and died, we evaluate. The Get is valid only if he died from the initial illness.

i.Why must we evaluate the cause of death? Rav Huna says that if he gets better, he retracts. He got better!

14.Answer: (Mar brei d'Rav Yosef): The case is, he contracted a new sickness just when he was cured of the first sickness.

15.73a (R. Elazar): If a Shechiv Mera (gave a gift and) went from one illness to another (and died), the gift is valid.

(b)Rishonim

1.Rif: The Halachah does not follow Rava, for (he holds like R. Meir, and) we establish R. Meir to hold like R. Noson, and Chachamim hold like R. Yakov. The Halachah follows Chachamim. Rabah requires the recipient to bring witnesses (that Reuven was healthy when he gave the gift), for ha'Motzi mi'Chavero Alav ha'Re'ayah. This is better than the reasoning of Rav Chisda and Rabah bar Rav Huna, who hold that it suffices to validate the document.

2.Rosh (9:32): The Rashbam says that the Halachah follows Rabah, for he holds like R. Noson, who was a judge, and descended to the depth of judgment (the correct Halachah). The Rif rules unlike Rabah. It seems that in his text, Rava (not Rabah) said that we assume that he did not recover in between. This cannot be, for a case came in front of Rabah, and Abaye his Talmid questioned Rabah's ruling. Abaye was Rosh Yeshiva before Rava. In Abaye's lifetime, a case would come in front of Abaye, not Rava, and if they disagreed, Rava would question Abaye's ruling! Rather, Rabah said that we assume that he did not recover, and later retracted (and required the recipient to bring a proof). Had he not retracted, he would have said that it suffices to validate the document, so that R. Meir and Chachamim would hold like (himself, like) R. Noson.

i.Nimukei Yosef (DH Gemara): We must say that he wrote a Kinyan. If not, even if he was healthy, the recipient did not acquire! Witnesses can rely on women and slaves who attend to the giver and say that the sickness worsened and he died. Based on this, they may testify that he never recovered. They need not stay at his side until he dies. In matters prone to become known, we rely on Chazakah in monetary matters. If witnesses who signed did not specify that the giver was healthy, this is not considered Sheker, even though the recipient will lose if he cannot find witnesses that he was healthy. This is because when witnesses clarify their testimony, they do not uproot it. They are believed even if others recognize their signatures. When others recognize their signatures they are not believed to say that there was a Tanai in the document, for we see an unconditional document in which one is liable whether or not any Tanayim are fulfilled.

3.Rambam (Hilchos Zechiyah 9:22): If a gift document did not say if the giver was healthy or sick, and the giver claims that he was sick and recovered and wants to retract, and take the property, and the recipient claims that he was healthy, and he cannot retract, the recipient must bring a proof. If he cannot bring a proof, the giver swears Heses, and keeps the property.

4.Rosh (9:32): If the giver recovered, the gift is automatically Batel, even if we did not hear that he retracted. In Gitin we say that if a Shechiv Mera went from one illness to another, the gift is valid. This implies that if he recovered in between, it is Batel. Also, we challenged Rav Huna from a Mishnah that discusses a Shechiv Mera who gave a Get and recovered, even though it does not say that he retracted. This shows that recovery is automatic retraction. Rabah was not concerned for Abaye's question from the majority of sick people, who recover. Here is different, for we know that he died, so we are not concerned lest he recovered in between.

(c)Poskim

1.Shulchan Aruch (CM 251:2): If a Matnas Shechiv Mera does not say that the giver died amidst the sickness, and the witnesses are not around to ask them...

2.(Rema: Witnesses can rely on the giver or his servants who say that he sickness worsened and he died, to testify about this),

3.Shulchan Aruch (ibid): ... even if the giver died, the gift is Batel. Death is not a proof. Perhaps he recovered from the sickness he had at the time of the gift, and later contracted a different illness and died. Therefore, the property is in the Chazakah of his heirs, until the recipient proves that he died from the same sickness.

i.Beis Yosef (DH Matnas): We discuss a gift of all his property, from which a Shechiv Mera can retract. The Rambam rules like the Rif.

ii.Bedek ha'Bayis: The Tur says that the Rosh holds like the Rif. This is not necessarily so. Rather, it seems that he rules like Rava. In any case, since the Rif and Rambam agree, we rule like them.

iii.SMA (6): The Shulchan Aruch did not explain their claims, for even if they do not claim, we claim on behalf of them. The Tur explained their claims to teach that according to the Rashbam, even if he explicitly claimed (that he recovered and later fell sick and died), the heirs must bring a proof.

iv.SMA (9): The Tur says that the giver must swear in order to retract, but we hold that heirs swear only to collect, but not to exempt themselves.

v.Taz: There is no reason for the heir to swear! Even if he says 'perhaps he did not die from this sickness', the recipient must bring a proof! It seems that if the recipient says 'you admitted to me that you know that he died from this sickness', he must swear that he did not admit. The recipient has a claim against the heir from when (he claims that) he admitted to him.

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