Bava Basra, Chapter 9, Mishnah 6. The previous Mishnah digressed from the topic and dealt with gifts sent as sivlonos to a bride before her wedding. Now we return to the central theme of the chapter: how a person's assets are distributed after his death (or not after his death), outside the basic rules of inheritance and bequest explained in the previous chapter.
Who is a "shechiv mera":
A shechiv mera is a person who is on his deathbed. "Shechiv" - implies lying down, and indeed he is bedridden; "mera" - from the word for bad or illness, as he believes he is going to die. We have already discussed this in the past: it is a special rabbinic enactment that a shechiv mera can distribute his assets and his estate by speech alone, orally, and this distribution is binding based on the principle that the words of a shechiv mera are considered as written and delivered - his words are treated as if he wrote them in an official document and delivered them with a binding act of acquisition. The reason for this enactment is to minimize the anxiety and stress of the sick person while he is in this dangerous situation, lest he die or lest this hasten his death, and therefore they put his mind at ease so that at the very least he can set his financial affairs in order.
The rule is that a shechiv mera who relied on this mechanism of speech alone, and orally distributed his assets to whomever he wanted, and ultimately did not die - the gifts are void. This is because he gave all these out of the belief that he was about to die, relying on the special rabbinic enactment that speech would be effective; and since he did not die, everything returns to its previous state. If he wishes to give gifts, he will be required to use the standard, official mechanisms of acquisition.
The case of the Mishnah: A gift with a complete act of acquisition:
Our Mishnah does not discuss that, but rather a case where the person was a shechiv mera and believed he was on his deathbed, but did not rely on speech alone; instead, he performed a binding, official act of acquisition. For example: he had a farm in Montana and wanted to give it to his favorite nephew. He either wrote a deed of gift and delivered it to the nephew, or, when the nephew is not around, instead of a deed of gift he performed a kinyan sudar (an acquisition via a garment) in front of two witnesses: he lifted a handkerchief and transferred the rights to the field. In this case, the document is not a contract of gift but a document of proof, which states: "Reuven and Shimon are witnesses that this person, who is lying on his deathbed, gave the field to his nephew" - a document confirming that the farm was given as a gift to the nephew.
The Mishnah asks: What is the law when the giver of the gift ultimately does not die, and he claims: "It is true that it was a binding act of acquisition, but I only gave it because I thought I was going to die; and since I did not die, it is not binding"? Do we say that this gift was given based on a mistaken assumption and therefore he can retract it, or do we say: it is a binding gift, which took effect through a complete act of acquisition and standard mechanisms, and the recipient of the gift acquires it.
We must distinguish: If the giver explicitly said, "I am only giving this to my nephew because I am about to die," or even, "I am tending to die, and I want to give this to my nephew and not to my sons, and therefore I am giving it now as the gift of a shechiv mera" - it is clear that the motive for giving is his tendency to die. But if he did not say any of these things, how will we know what motivated him? We must, as it were, decipher his thoughts: perhaps he gave a complete gift, and at the time he gave it he wanted it to take effect even if he did not die. How would we know?
Regarding this the Mishnah says: "Shechiv mera shekasav kol nechasav la'acherim veshir karka kol shehu" - a shechiv mera who wrote all his assets to others and retained any amount of land - a person who is on his deathbed, or believes he is on it, who wrote all his assets to others (he gave his property to his nephew instead of his sons), but retained something for himself. Simply put, this refers to the retention of land of any amount, but land is not strictly necessary: he could have said, "I am giving everything except what is in my wallet, and that I am keeping for myself." And how much is "any amount"? Usually, it means any quantity at all, even worth one dollar, and we will return to this in the halachah, as the Rishonim and Poskim disagree about the matter.
Since he retained something for himself - "Matnaso kayemes" - his gift stands: even if he recovers, the very act of retention clearly proves that he did not give the gift because he thought he was going to die. After all, if he truly thought so, why would he retain anything for himself? What good would it do him? Therefore, we assume that it was a complete gift, the document is valid as written, the nephew acquires the gift, and the uncle cannot retract it.
Conversely: "Lo shiyer karka kol shehu - ein matnaso kayemes" - if he did not retain any amount of land, his gift does not stand. If the giver did not retain anything for himself but gave everything, his gift does not remain in effect, because a person does not empty himself of all his assets. It is therefore clear that what motivated him was his thought that he was going to die, and by virtue of that he gave the gifts; and since he did not die, it turns out that they were given based on a mistaken assumption, and they are not gifts at all.
It is worth noting parenthetically and sharpening the distinction: A person who made a sale and the circumstances changed afterward - cannot retract it. But here we are dealing with a gift, and regarding a gift we say that it clearly stemmed from the fact that he thought he was going to die, and were it not for that, he would not have given it.
Summary of the first part according to halachah:
If he explicitly stated that he is giving the gift because he is about to die, and ultimately he did not die - the gift is invalid, even though a complete kinyan was made.
If he gave via a complete kinyan and distributed all his property without saying anything - it is clear that he thought he was about to die, even though he did not state it explicitly. Once again, the gift is invalid, and he can retract it if he recovers from his illness.
The novel ruling of the Mishnah: If he left some property for himself - he presumably did not think he was going to die, for otherwise, why would he leave anything for himself? We do not have absolute certainty about this.
Granted, there might be another answer, and he could say: "I left over property because I was happy for the normal rules of inheritance to take effect, and I did not distribute everything so that the remainder would pass to my regular, natural heirs and not to my nephew." However, we do not know this. What is revealed to us is that he left property for himself, and since we do not know why he did so, we must assume that the gift is valid, since he performed a complete kinyan.
How much must he leave over?
The approach of the Rif: "Any amount" literally means any amount whatsoever, and the Mechaber rules this way in the Shulchan Aruch. Even if he did not leave over land but rather five dollars in his wallet: What are the five dollars for? It must be that he thinks he might not die, and therefore the gift is valid.
The approach of the Rosh: He must leave himself enough property to support himself if he does not die - a field from which he can earn a living and survive, or enough cash in his wallet to live off the savings for the rest of his life. If not, we have no proof that he thought he would live, for what good will five shekels do a person if he stays alive? Therefore, if he did not leave enough for his livelihood, the amount left over is no proof that he thought he would not die, and his gift is invalid. The Rema rules in accordance with the Rosh, leaving us with a significant dispute.
The second part of the Mishnah: An ambiguous document:
The Mishnah continues and introduces a slightly different case, where legal documents were written. Let us assume a person gives a gift to his nephew in Montana from his house - perhaps from his sickbed, perhaps from his deathbed, we do not know - and the document sent to the nephew uses ambiguous language: "In light of the unfortunate circumstances, I am giving you the farm in Montana." If he had explicitly written "Since I am on my deathbed and about to die," it would be clear that the gift was only given because he thought he was about to die, and therefore, if he did not die, he could retract it. On the other hand, if there were no ambiguity in the document at all but rather a standard gift, and now he comes to Beis Din and says, "I want the farm in Montana to return to me," the nephew will reply: "What are you talking about? The document is binding, and the farm is mine. You simply changed your mind and are making up an excuse that you thought you were about to die - and who says that was the case?"
However, the document under discussion here is an ambiguous document, which could be interpreted to mean he acted under the assumption that he was about to die, but it is not stated explicitly. Now the giver wishes to retract, and they come to Beis Din with the question of who owns the farm. The uncle claims: "The farm in Montana is mine; I only gave it as a gift to my nephew because I thought I was about to die." The nephew replies: "You are making this up. You have regrets, and now you are having second thoughts about giving it - but at the time you gave it, what is mine is mine, and you cannot take it from me."
The question, then, is on whom the burden of proof lies: when there are no witnesses before us and nothing to rely on, is it upon the uncle, the giver of the gift, who claims that a mistake was made here and that he thought he was about to die, or upon the nephew, who says, "A document is a document and is binding," and the uncle is merely changing his mind?
And so the Mishnah states: "Lo kasav bah shchiv mera" - he delivered a document that is generally binding upon the beneficiary, and it was not explicitly written in it that the motivation for giving was the uncle thinking he was about to die. "Hu omer shchiv mera hayah" - the uncle claims in Beis Din: "I thought I was about to die and therefore I gave it, and since I did not die - I want to return the gift to myself." "Vehen omrim bari hayah" - the recipient, the nephew, replies: "You are making this up; at the time you gave it you were not on your deathbed, and you knew you were not on your deathbed, and only now you have changed your mind and are seeking to claim that you were a shchiv mera."
According to Rabbi Meir: "Tzarich lehavi re'ayah shehayah shchiv mera" - the burden of proof is upon the uncle, the giver, to prove that he thought he was about to die. The Sages disagree and say: "Hamotzi mechavero alav hara'ayah" - the nephew, who is seeking to extract from his uncle and keep the property in his own hands, is the one who must bring proof that the uncle was not a shchiv mera at the time he wrote the document. The dispute is therefore regarding who bears the burden of proof.
The foundation of the dispute:
The rule is that we leave property in its established status quo, and the chazakah prevails. However, here two chazakos, two status quo situations, are competing with each other:
Chazakah d'hashta - the current status quo, which Rabbi Meir focuses on. Beis din says: We look with our own eyes and see before us a healthy uncle and a binding document, and we must assume that this is the status quo. Whoever wishes to change what we see before our eyes - since this uncle is healthy now - bears the burden of proof, and the uncle must show that even though he is healthy now, he thought then that he was dying.
Mara kama - as we encountered in this topic at the beginning of the chapter: the last known owner, and regarding land - the last undisputed owner, is the one in possession. The status quo stands to his credit, and whoever comes to change this must bring proof. This is roughly the argument of the Sages: we know that the uncle was the owner; the nephew claims the document is binding, and the uncle replies that it is not binding, and explains the ambiguity in the document - that by saying "in light of the unfortunate events" he meant that he thought he was going to die. The burden of proof is therefore on the nephew, to show that the uncle was actually not a shechiv mera at that time; otherwise, the uncle, being the mara kama, can contest the document and claim that the gift was not meant to be binding. And again: we are dealing with a gift, and not a sale.
The halachah follows the Sages, meaning that the one seeking to extract property in this case is the nephew, and the burden of proof is on him. If he wishes to keep the plot of land given to him as a gift, he must bring proof that the uncle did not actually think he was a shechiv mera and that he was about to die.