1)

STIPULATIONS TO DIVERT PROPERTY [Shtar Mavrachas:Tanai]

(a)

Gemara

1.

78b: A woman about to have Nisu'in wanted to divert her property from her husband. She wrote a document giving her property to her daughter, had Nisu'in, and was divorced. The document came in front of Rav Nachman; he tore it up.

2.

79a - Question (Beraisa - R. Shimon ben Gamliel): If one wants to divert property from her husband, she writes to someone else a document of Pasim (she appeases the recipient to accept the property to divert it from her husband);

i.

Chachamim say, the recipient can keep the property and laugh at her, unless she wrote 'from today until I want.'

ii.

If she did not write this, the document is valid!

3.

Answer (R. Zeira): If the document gives all her property, it is invalid even if this was not written. If it gives part of her property, it is valid unless the clause was written.

4.

Question: If the receiver does not get the property, the husband should get it!

5.

Answer (Abaye): It is considered like property unknown to the husband. This is like R. Shimon (who says that the husband does not get unknown property).

(b)

Rishonim

1.

Rif: If one wrote a document of Pasim to divert property from her husband, the recipient can keep it, unless she wrote 'from today until I want.'

2.

Rosh (7:2): Rashi says that she told the witnesses that if she will be widowed or divorced, her daughter should not get the property. This is wrong. If so, we would fulfill her words even if she gave only part of her property, and Rava would not distinguish between a daughter and others! Also, if we can verify the signatures without the witnesses, they are not believed to invalidate what they signed.

i.

Hagahos Ashri: The Ri says that oral words can Mevatel a document if they were said at the time it was written. The Mordechai (Sof Hagahos Ashri on this Halachah; see Bach (2)) explains that Rashi disagrees.

3.

Rosh (ibid.): Also, Rav Bivi thought to validate a document to divert (Bava Basra 151a). Rav Huna brei d'Rav Yehoshua rebutted this, for she was Megalah Da'as (revealed her intent). Rav Bivi would not have erred if she stipulated! Rather, she did not stipulate. She merely said that she intended to marry. Even the opinion that Mavrachas acquires agrees that Giluy Da'as helps, e.g. one who sold his property with intent to go to Eretz Yisrael. This implies that Mavrachas is when there was no Giluy Da'as, just it is known that she is about to marry.

i.

Ran (DH Gemara): Rashi does not mean that she explicitly stipulated. Rather, she was Megalah Da'as. However, even this is wrong, for all agree in this case. The Ri Migash says that she did not say that she intends to marry. She gave a gift Stam, and married. In some cases the intent is clear even without Giluy Da'as, e.g. Mavrachas, and one who heard that his son died and wrote his property to others.

4.

Rosh (ibid.): If she wrote 'from today until I want', the gift takes effect from now, if she wants. Whenever she wants, she can be Mevatel it,

5.

Rambam (Hilchos Ishus 22:9): If before marrying, a woman wrote a document giving all of her property to a relative or a stranger, if she is widowed or divorced, the gift is Batel. Nevertheless, her husband does not eat the Peros, and does not inherit it if she dies, for she gave it before marrying. When she dies, the recipient acquires it totally. Even if she gave some or all of her possessions and wrote 'acquire from today until I want', in which case the recipient does not acquire fully until she wants, the husband does not eat Peros of the gift or inherit it if she dies.

i.

Ran (DH Ha): Rashi says that we asked against Shmuel, that if when she wrote all her property the recipient did not acquire, her husband should eat the Peros! The Rambam holds that Mavrachas acquires only if she dies in her husband's lifetime. We know that she intended for this. She did not explicitly say so, lest it anger her husband. We asked about when she wrote 'acquire from today until I want', and died without saying that she wants. Since the recipient never acquired, her husband should acquire! Regarding Peros it is like unknown property. He knew that if he requests Peros, she will say that she wants the gift to be valid.

ii.

Beis Shmuel (EH 90:30): According to the Rambam and Ran, she eats the Peros until she says that the gift should be valid. The Rosh and R. Chananel hold that the recipient eats until she is Mevatel the gift. (The Beis Shmuel (31) says that the Rambam agrees that the recipient eats the Peros. The note in the margin says that these words apply to 29, Mavrachas without a Tanai.)

iii.

Ran (ibid.): We ask only about inheritance. We did not ask about a (regular) Mavrachas, for then the recipient keeps the property, so surely her husband does not inherit her. The Rambam rules that also when she stipulated 'from today until I want', her husband does not inherit her. Presumably, he learns from the Gemara, which says that she must write this to divert the property. I do not understand why it works. Even though a husband does not eat Peros of unknown property, he inherits it. If not, her husband gets nothing, and she would be allowed to sell l'Chatchilah! Perhaps here is different, for her gift is a Giluy Da'as that her heirs should inherit it, not her husband. The Rambam rules that a husband's inheritance is mid'Rabanan, so a Giluy Da'as suffices to uproot it. Others say that Mavrachas or the Tnai 'from today until I want' do not uproot his inheritance. However, it enables her to sell it or give it, e.g. through Matanas Shechiv me'Ra. I disagree regarding Mavrachas, but I agree that he inherits after the Tanai, all the more so according to the opinion that he inherits mid'Oraisa. Regarding Peros, the recipient keeps what he ate. Such a mistaken pardon is valid.

iv.

Ri'az (in Shiltei ha'Giborim): Mavrachas or the Tnai causes her husband to despair, therefore he does not eat Peros or inherit her.

v.

Chelkas Mechokek (EH 90:25): According to the Rosh and R. Chananel, the recipient acquires until she objects, therefore her husband does not inherit.

(c)

Poskim

1.

Shulchan Aruch (EH 90:7): If before marrying, a woman wrote a document giving all of her property to a relative or a stranger, if she is widowed or divorced, the gift is Batel. Nevertheless, her husband does not eat the Peros. Even if she gave some or all of her possessions and wrote 'acquire from today until I want', in which case the recipient does not acquire fully until she wants, the husband does not eat Peros of the gift or inherit it if she dies.

i.

Beis Yosef (DH v'Chosav ha'Rosh): The Ran (DH Shtar) says that the Rif, Rashi and the Rambam explain that when she writes 'from today until I want', if her husband seeks to take the property, she says that she wants the gift, and the recipient acquired retroactively. If the recipient seeks to keep the property, she says that she does not want. This is like 'on condition that my father will want' (Kidushin 63a). The Rambam holds that this means that he will say yes. At that time it works retroactively, even if the gift is Metaltelim and it is in a Reshus ha'Rabim. R. Chananel and the Rosh say that the recipient acquires immediately, but she can Mevatel it whenever she wants.

ii.

Korban Nesan'el (50): The Rosh says that the recipient acquires immediately because he holds that 'on condition that my father will want' means that he will not protest.

iii.

Beis Yosef (DH u'Mah she'Chosav Mes): The Ramah says that if she died after her husband and never retracted, the recipient keeps the gift. We follow the Rosh, who says that her heirs get it, for he is Basra.

iv.

Beis Shmuel (33): The Rosh said so only when she gave all her property. Then, surely she intended that it return after her husband dies. The Tur says that the Rosh says so even when she gave only part. What is his source?!

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