12th CYCLE DEDICATION
KESUVOS 78 (8 Kislev) - Dedicated l'Iluy Nishmas: Shoshana Raizel bas Reb Yisrael Leib -- Mrs. Rose Shaw -- on the seventh Yahrzeit of her passing, by her grandson, Yisrael Shaw and family (Jerusalem).

78b----------------------------------------78b

1) THE WIDOW'S INTENTION BEHIND THE GIFT SHE GAVE
QUESTIONS: The Gemara records the case of a widow who wanted to prevent her new husband from acquiring all of her property. To this end, she gave away all of her property as a gift to her daughter so that her husband would not receive it. Later, when her husband divorced her, Rav Nachman ruled that her property returns to her and does not belong to her daughter, because she gave her property to her daughter only to keep it away from her husband.
How did Rav Nachman know that she gave her property to her daughter only in order to keep it away from her husband? RASHI explains that she informed the witnesses (who signed the contract of the gift) that she was giving the gift only in order to keep the property away from her husband, but she did not intend for her daughter to keep it in the event that her husband dies or divorces her.
According to Rashi, the Gemara refers to a case in which the woman specified at the time of the gift that she was giving away her property only in order to prevent her husband from getting it. TOSFOS, the ROSH, and other Rishonim ask a number of questions on Rashi's explanation.
1. The Gemara later (79a) says that Rava would have agreed with Rav Nachman's ruling had the woman gifted her property to a stranger. However, since she wrote it to her daughter there is reason to believe that she really intended that her daughter keep it. According to Rashi, who says that she explicitly told witnesses that she was not giving it to her daughter to keep but only to prevent her husband from taking it, what difference does it make whether the recipient is her daughter or a stranger? The Kinyan should not be valid because she revealed that her intention was that it not be valid!
2. The Gemara concludes that the recipient of the "gift" does not receive the property only when the woman gives away all of her possessions; she certainly would not leave herself penniless, and thus she presumably does not intend to give it all away. When she gives away only part of her property, the Gemara says that the recipient does keep it. According to Rashi, however, if the woman specified that she was giving it away only to prevent her husband from getting it, why should the property belong to the recipient?
3. Rav Anan questioned Rav Nachman's ruling even in the case in which the woman gifts her property to a stranger. According to Rashi, what doubt could there have been if the woman expressly stated that she was giving the gift only to keep it away from her husband? In fact, the Gemara in Bava Basra (151a) states clearly that the Gemara here refers to a case in which the woman did not reveal her intentions at the time she gave the gift. If she would have revealed her intentions at the time she gave the gift, there would have been no question that the Kinyan does not take effect. Why, then, does Rashi assert that she did reveal her intentions?
ANSWERS:
(a) The TOSFOS RID asserts that there is a printing error in the text of Rashi, and the words of Rashi should read, "She did not tell the witnesses [of her intentions]," instead of, "She told the witnesses."
However, all of the Rishonim quote the words of Rashi as they appear in our text.
(b) The RAMBAN cites other Rishonim who explain that there is a difference between a case of a woman who specifies that she is giving the gift in order to keep it away from her husband (the case of the Gemara here) and a case of a woman who specifies the inverse, that she does not want the gift to belong to the recipient for any other purposes (the case in Bava Basra). In the case of the Gemara here, since the woman states only one side of her conditional gift, it is not clear that she does not want the property to belong to the recipient if the husband does die. Perhaps she intends to give it away in order to prevent the husband from getting it, and she does not mind that the recipient takes full possession of it even when the husband later dies.
However, Rashi seems to say that she states even the inverse condition, that she does not want the recipient to acquire the property if the husband dies.
(c) The RITVA suggests that the woman told the witnesses of her intentions at the time they signed the Shtar, before she actually gave the Shtar to her daughter to give her the gift. Since she did not specify her intent at the time that she gave the gift (in front of the recipient), there is a doubt about what she had in mind at that moment. Perhaps she changed her mind and decided to give the property away completely. In contrast, the Gemara in Bava Basra refers to a case in which the woman specified at the time that she gave over the Shtar that she intended to give the gift unconditionally. This is also the way the PNEI YEHOSHUA and others explain the words of Rashi.
Why does Rashi not explain like all of the other Rishonim, that the woman specified nothing at the time she wrote the Shtar or when she gave it over to her daughter (and we merely assume that she does it in order to keep her property away from her husband, since she gave away all of her property, as the Gemara says later)?
Perhaps Rashi is bothered by the question the Rishonim ask on the Sugya from the Gemara in Kidushin (49b). The Gemara there discusses the case of a man who sold all of his property because he was leaving to Eretz Yisrael. However, he did not mention his intentions at the time of the sale. His plans then changed and he was unable to go to Eretz Yisrael. Although he claims that he sold his property only on condition that he would leave town, the Gemara rules that since he did not express his intent explicitly, his unspoken intent is not effective -- "Devarim sheb'Lev Einam Devarim." Similarly, when a woman gives away all of her property, why should we assume that her intention is to give it away only in order to prevent her husband from receiving it? Since she does not verbally state her intent, her intent should be considered "Devarim sheb'Lev" and be ineffective.
The Rishonim cite the RI MI'GASH who answers this question by saying that in the case of the Gemara here, the woman gave away all of her property and immediately afterwards became married. The timing of her marriage clearly reveals what her intentions were when she gave away her property. This is an "Umdena," evidence based on circumstance which makes her intent evident to all. An "Umdena" has the status of a verbal statement and is not considered "Devarim sheb'Lev" (see Insights to Nedarim 79:1).
Rashi may not accept this answer because the "Umdena" is based on an action which occurs after she gives away her property. At the time she gives away her property there is no way of knowing why she is giving it away. Therefore, her intentions should remain "Devarim sheb'Lev."
The Ritva (79a, DH Amar Abaye) also seems to be bothered by this question. He writes that the Gemara's ruling applies only when she gives away all of her property after she committed herself to marrying the man ("Shiduchim"). Under such conditions there is an "Umdena" at the time of the giving of the gift that she intends only to keep her property away from her husband and not to give it away unconditionally.
Rashi, however, maintains that although she is engaged to be married, this is not a strong enough "Umdena," and although she gave the gift after she committed herself to get married, there is no way to associate her giving of the gift directly to her forthcoming marriage such that it can provide clear evidence that she gave her property away because of the marriage.

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