1) GIVING AWAY ONE'S PROPERTY WITH A MISTAKEN ASSUMPTION
QUESTION: The Gemara discusses a case in which a man's son went overseas, and the father heard that his son died. Consequently, the father gave his entire estate to others. His son then returned alive. Rebbi Shimon ben Menasya states that the man may retract the gift that he gave on the grounds that he gave it based on a mistaken assumption (i.e. that his son was dead).
Does the same Halachah apply in a case in which the man had no children, and he gave away his property to others assuming that he would never have children, and, later, he was blessed with a child? May he revoke the gift in order to give the property to his child?
ANSWER: The KOVETZ SHI'URIM writes that this Halachah applies only when the man had a son at the time that he gave his estate to others. If he had no children at all when he gave away his estate to others on the assumption that he would never have children, and, later, he was blessed with a child, then he cannot retract the gift. Since -- at the time that he gave the gift -- he indeed had no children, there were no mistaken assumptions, and thus he has no grounds on which to retract his gift. The subsequent birth of a child is a later development which did not exist at the time he gave the gift.
However, TOSFOS in Kesuvos seems to contradict this view. Tosfos (Kesuvos 47b, DH she'Lo Kasav) writes that a person who bought a cow which died shortly after the purchase may not claim that the sale was a "Mekach Ta'us," a transaction in error. This is because the death of the cow was a later development which occurred after the time of the sale. Tosfos there proves that this ruling applies only in the case of a sale, since a sale depends not only on the intention of the buyer, but also on the will of the seller ("Da'as Makneh"), and the seller is not willing to accept responsibility for a later mishap. In contrast, in the case of a gift, the transaction depends only on the intention of the benefactor. Hence, when circumstances change (to the benefit of the giver of the gift) after the gift was given, it is deemed to be a transaction made in error, and the Kinyan is annulled.
In the case of the Gemara here, the father is giving a gift, and therefore he should be able to retract the gift even if he had no children at the time that he gave it and was later blessed with a child!
Perhaps the case which the Kovetz Shi'urim discusses is different. In that case, there is no particular event that occurred to which one can point and say that it was based on that event that he gave away his property. In contrast, when a man gave away his property after he heard that his son died, it is clear that he gave away his property based on that information. That is not so clear when a man has no children and he gives away his property to others; it is not clear that he is giving away his property to others for the sole reason that he has no children to inherit his property. While it is true that he might not have given away his property had he had children, it cannot be assumed (unless he explicitly states otherwise) that he certainly would not have given away his property to his close friends had he known that he would have children. (It is evident that a person does not think about future children from the Rishonim (see RITVA, NIMUKEI YOSEF) to 142b, who write that the concept of "Kerovah Da'ato Shel Adam Etzel Beno" applies only to a child who has been conceived but who has not yet been born, but not to a child who has not yet been conceived.)
2) WHEN DOES A WOMAN FORGO HER KESUVAH
QUESTION: The Gemara (end of 132a) cites the Mishnah in Pe'ah (3:7) which states that when a husband allots all of his property to his sons with the exception of a small portion which he allots to his wife, her acceptance of that portion is interpreted as implicit consent to forgo her claim (the Shibud of her Kesuvah) on all of the rest of her husband's property (which he has allotted to his sons). The Gemara asks how the wife showed her consent to forgo her claim on his property. The Gemara records the answers of three Amora'im as to how the woman showed her consent to forgo the Shibud on his property. Shmuel answers that the Mishnah there refers to a situation in which the wife was present when her husband gave away his property and wrote that he was giving only a small portion to her. Her silence (and lack of protest) is interpreted as a sign that she forgoes any claim to the rest of the property.
The Gemara challenges the answer of Shmuel (as well as the answers of the other Amora'im). According to Shmuel, the Tana Kama of the Mishnah in Pe'ah and Rebbi Yosi in that Mishnah are saying the same thing! Rebbi Yosi states that either an explicit statement that she forgoes her Shibud, or her silence when the husband writes in her presence that he is giving to her only a small portion of the property, indicates that she forgoes her right to collect her Kesuvah. The words of Rebbi Yosi imply that the Tana Kama (with whom Rebbi Yosi argues) requires both that the husband write to her in her presence that he is giving her only a small portion, and that the woman explicitly state that she forgoes the Shibud. This contradicts the explanation of Shmuel, who explains that the Tana Kama maintains that the woman's silence alone is enough to indicate that she forgoes the Shibud.
The Gemara continues and quotes Rav Nachman who says that when a husband makes his wife a partner with his sons in the allotment of his property to them, the wife loses her right to claim her Kesuvah from the rest of the property.
This statement, however, clearly seems to be in agreement with the explanation given by Shmuel, which the Gemara just refuted! How does the Gemara reconcile this statement with its challenge to the explanation of Shmuel?
(a) The ROSH says in the name of RABEINU CHANANEL that when the husband allots to his wife a portion equal to the portions he allots to his sons, the Tana Kama agrees that she consents to forgo the Shibud even without explicitly stating so, since she benefits considerably. Only when he gives her only a small portion does the Tana Kama require that she explicitly express her consent to forgo the Shibud.
(b) The CHIDUSHEI HA'RAN cites RABEINU CHANANEL who explains that since the husband made his wife a partner with his sons in the property, the Tana Kama agrees that she presumably consents to the gift and forgoes the Shibud even if she does not explicitly say so. This is because a person would not agree to become a partner with others without full desire to do so.
(c) The RASHBAM (DH Shutaf) explains that Rav Nachman is ruling like Rebbi Yosi, and not like the Tana Kama, in the Mishnah in Pe'ah. Accordingly, the Gemara is saying that it is a sign of the wife's consent to forgo her Kesuvah when she is silent at the time that her husband makes her a partner together with the sons to receive his property, in accordance with the view of Rebbi Yosi. The Gemara rejects Shmuel's explanation of the Tana Kama of that Mishnah, but his ruling is still true according to Rebbi Yosi.