Bava Basra, Chapter 9, Mishnah 7. We have already mentioned several times the rabbinic enactment that allows a shechiv mera - a person on his deathbed - to transfer assets from his estate by speech alone, without a formal act of acquisition. The reason for this enactment is to avoid causing him excessive distress, which could hasten his death. In this Mishnah, we will learn that the Tanna'im actually had a three-way dispute regarding this: Does such an enactment exist, and if so - how does it work?
There appear to be four opinions before us, but in reality, there are three:
Rabbi Eliezer: There is no such enactment at all. There is no special validity to a verbal statement, not even that of a shechiv mera, and in all cases, a standard formal act of acquisition must be performed.
The Sages: They disagree with Rabbi Eliezer and state that such an enactment does indeed exist, and it operates exactly as we have learned. This is the accepted halachah.
Other Sages: The enactment exists, but it only applies on Shabbos, when it is rabbinically forbidden to perform formal acquisitions.
Rabbi Yehoshua: This appears to be a fourth opinion, but in fact, he is merely arguing against the third opinion. Fundamentally, Rabbi Yehoshua agrees with the second opinion - the accepted halachic view - that a shechiv mera transfers ownership through a verbal statement in all cases, whether on Shabbos or a weekday.
The wording of the Mishnah:
"Hamchalek nechasav al piv" - One who wishes to transfer his assets by speech alone, even from his deathbed. "Rabbi Eliezer omer: echad bari v'echad mesukan" - There is no practical difference whether the person is healthy or in life-threatening danger. "Nechasim sheyesh lahem acharayus niknin bechesef, bishtar uvachazakah" - Real estate properties are acquired through the standard methods of acquisition:
Bechesef - The transfer of money.
Bishtar - A deed of ownership, whether of a sale or of a gift.
Uvachazakah - Performing an act of ownership on the property, such as building a fence or the like.
"Veshein lahem acharayus ein niknin ela bimeshichah" - Assets that do not have a guarantee, meaning movable property, are acquired by taking physical ownership. Pulling (meshichah) is one example of this, where a person brings the object into an alleyway or into his private domain. There are, of course, additional methods that are not mentioned in the Mishnah:
Hagbahah - Lifting the object from the ground.
Mesirah - Handing over from hand to hand, such as the reins of an animal.
Kinyan chatzer - A person's domain acquires it on his behalf.
Kinyan sudar - A sort of symbolic exchange, where a person lifts a kerchief to transfer ownership, and this acquisition is effective for both movable property and land, for all types of assets.
The Mishnah does not discuss all of these, as it is not the topic of discussion. The main point of Rabbi Eliezer's statement is that only standard methods of acquisition must be used.
The incident with the mother of the sons of Rochel:
"Amru lo: maaseh b'iman shel bnei Rochel" - The Sages answered him and raised a difficulty against his view from an incident that came before a beis din, where the beis din ruled in accordance with their opinion rather than his, showing that the verbal statement of a shechiv mera has binding validity. A man named Rochel passed away and left a widow. The widow had assets, and she had sons and a daughter. Her desire was to give one of her expensive items to her daughter and not to her sons. When she fell ill, she said from her deathbed: "Tnu kvinah zo lebiti, vehia bishmoneh me'os zuz" - Give this kvinah to my daughter, and it is worth eight hundred zuz.
What is this 'kvinah'? The commentaries disagree on this:
The Bartenura: A sort of veil.
The Rashbam: A type of pin.
Tosafos: A kind of diadem or crown.
Either way, this was a valuable object whose worth reached twelve hundred dinars, a vast fortune. "Umeisah, vekiyamu es devareha" - The woman died, and the court upheld her words. Here you have a precedent, the Sages say to Rabbi Eliezer, where a woman's oral declaration was accepted as binding, and the object was given to the daughter and not to the sons.
"Amru lahen: bnei Rochel tikbarem iman" - Rabbi Eliezer replied that no proof can be brought from there. This phrase means that those sons deserved to have their mother bury them in her lifetime, meaning they were scoundrels who deserved nothing. In Rabbi Eliezer's opinion, the court did not rule in favor of the daughter based on the strict letter of the law, but rather because this was what those sons deserved. This was an exceptional case, not the rule, and the court acted in a way that is not usually done.
The third opinion - only on Shabbos:
"Beshabbos devarav kayamin, bishvil she'eino yachol lichtov" - According to this opinion, the rule of a person on his deathbed transferring ownership through mere speech is limited to Shabbos, when it is impossible to perform a formal act, write documents, and make acquisitions, and therefore speech is effective. "Aval lo bechol" - On a weekday, when formal acquisitions can be made, that is the only way it is possible and necessary to transfer ownership.
"Rabbi Yehoshua omer: beshabbos amru, kal vachomer bechol" - Rabbi Yehoshua disagrees with them, and in practice agrees with the second opinion, that a person on his deathbed transfers ownership through speech at any time. His argument: If on Shabbos, when acquisitions are not made at all, validity is given to an acquisition through speech - how much more so on weekdays, when it is permitted to make acquisitions, that speech will certainly be effective.
"Kayoze bo" - The law of zechiyah:
The Mishnah continues and brings a similar discussion on another topic: the law of zechiyah. The term is derived from the rule "zachin le'adam shelo befanav" - one can acquire rights for a person and benefit him even when he is not present. Zechiyah is a person's ability to transfer ownership to a third party, even though that third party is not present and did not authorize the one acquiring it on his behalf, provided that it is a benefit for him.
Thus, if Reuven is walking down the street and comes across an object that he thinks will be pleasing to his friend Shimon, he may lift the object and say that it belongs to Shimon, and the object becomes Shimon's through the acquisition of zechiyah. This is the practical halachic rule. It is worth noting that in Tractate Kiddushin it implies that zechiyah is effective on a Torah level, whereas here in our Mishnah it implies that it is only a rabbinic enactment, but this is not the place to get into reconciling these matters.
In any case, the same dispute that the Sages and Rabbi Yehoshua had regarding a person on his deathbed - whether something that applies on Shabbos applies all the more so on a weekday - repeats itself exactly regarding the law of zechiyah.
"Kayoze bo: zachin lekatan ve'ein zachin legadol" - In the opinion of the Sages, one can use zechiyah to acquire an object for a minor, because a minor cannot make an acquisition himself and does not acquire on a Torah level. However, one cannot acquire on behalf of an adult, who has reached the age of mitzvos, since he can make the acquisition himself and does not need zechiyah.
"Rabbi Yehoshua omer: lekatan amru, kal vachomer legadol" - Indeed they said this regarding a minor, as he needs a way to be able to acquire, but how much more so for an adult: If the minor acquires through zechiyah even though he cannot acquire with his own hands, certainly the adult, who can acquire with his hands, will also acquire through zechiyah.
In summary: The halachah is that a critically ill person indeed transfers ownership by speech alone, by Rabbinic enactment, and that a person can acquire property through a third party acting on his behalf even without having authorized them to do so, and this law is apparently on a Torah level.