Responsa for Bava Batra 267:5
אמרו חכמים כל מתנה שאינה שאם הקדישה מוקדשת אינה מתנה:
the Sages said: Any gift which is not [of such a character] as would [allow it to] become sacred when [the recipient] consecrated it, is not a [proper] gift.<span class="x" onmousemove="('comment',' From this it follows that a gift which is dependent on certain conditions is not legally valid. Shammai, drawing an analogy between this case and that of Jonathan, where the father was manifestly determined that his sons shall have no benefit from his estate, disputed the legality of the return of the third to the sons. Though the father's condition was not explicit it was sufficiently implicit, in the opinion of Shammai, to render the gift to Jonathan entirely dependent on its fulfilment. Jonathan by his reply pointed out to Shammai that the gift to him could not possibly he regarded as conditional, since it was generally conceded that he was fully entitled to sell it and to consecrate it and to dispose of it in any way he liked. [For a different version of the story, v. J. Nedarim, v. 6]. ');"><sup>9</sup></span> Our Rabbis taught:<span class="x" onmousemove="('comment',' Suk. 28a. ');"><sup>10</sup></span>
Teshuvot Maharam
Q. A drew up a legal document in which he used the following words: "Effective as of today, but to be executed after our (meaning himself and his wife, L) deaths, our daughter R shall inherit an equal share with her brothers, those already born and those that might be born, in whatever will remain of my estate." After A's death, his children and his widow, L, interpreted the document to mean that A had appointed L trustee over his estate. When L proved a very inefficient, careless, and wasteful trustee, A's sons reached an agreement with L, whereby she was to receive forty marks for turning over the estate to A's sons immediately. Before relinquishing her trusteeship, L and her youngest son B (who was eighteen years of age) agreed to allow R's husband to take his wife's share of the estate immediately, without having to wait for L's death. A's two other sons object to this latter agreement.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
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Teshuvot Maharam
Q. A drew up a legal document in which he used the following words: "Effective as of today, but to be executed after our (meaning himself and his wife, L) deaths, our daughter R shall inherit an equal share with her brothers, those already born and those that might be born, in whatever will remain of my estate." After A's death, his children and his widow, L, interpreted the document to mean that A had appointed L trustee over his estate. When L proved a very inefficient, careless, and wasteful trustee, A's sons reached an agreement with L, whereby she was to receive forty marks for turning over the estate to A's sons immediately. Before relinquishing her trusteeship, L and her youngest son B (who was eighteen years of age) agreed to allow R's husband to take his wife's share of the estate immediately, without having to wait for L's death. A's two other sons object to this latter agreement.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
A. A's heirs were entitled to take over his estate at any time they wished to do so. The giving of forty marks to L in order that she relinquish her trusteeship, was entirely unnecessary, for A's document, while making the collection of R's share in A's estate dependant on L's death, did not appoint L trustee of said estate. Moreover, had A explicitly appointed L trustee of his estate, the court would have removed her at no expense to the heirs, since she had proven to be inefficient, careless, and wasteful. The second agreement is not binding on A's two sons since L, not being a trustee of the estate, had no legal power to dispose of part of the estate. B, however, was able to forego his own part of R's share, and his act is binding upon such part if R (or her husband) was in possession of her share at the time of the latter agreement. Thus R would be entitled to receive one third of her share (B's part of her share) immediately, while B's two brothers would manage the other two-thirds for their own profit and gain until L's death.
Although the brothers are entitled to manage R's share for their own profit, they are not permitted to sell or otherwise alienate any part of it; and their responsibility thereto would be that of a gratuitous watchman. Thus any increase that will accrue until L's death will belong to the brothers, while, any decrease of value caused by theft, loss or unavoidable accident will be suffered by R. Should the brothers be called upon to pay L her ketubah, one quarter of such payment should come out of R's share. R may not claim that her father has made her an outright gift, free of any lien or obligation, since A did not intend to give R a greater share than that of his sons. After L's death, R may exact an oath from her brothers to the effect that they did not retain for themselves anything belonging to her.
Q. L's trustee claimed that L's property which she had given to her husband, had been given only to gratify him, but had not been intended as an outright gift. Therefore, this property had belonged to L; and she gave it to her mother by right.
A. This property was not listed in L's ketubah, and was thus considered niksei melug regarding which a woman may not claim that her gift thereof to her husband was not actually meant to be binding but was given in order to gratify him (B. B. 50a). Therefore, the gift was binding, and she no longer had any claim to said property. She had no right to give it to her mother.
This Resp. is addressed to: "My teacher Rabbi Eliezer b. Ephraim."
SOURCES: Cr. 30; Pr. 243–4; Am II, 18.
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Teshuvot Maharam
Q. A says that B's mother before her death instructed B to give A one Mina out of her possessions, since she had owed money to A's mother and did not remember whether or not she had repaid the entire sum. B denies having received such instructions from his mother, and further claims that A's mother owed him more than one Mina. But A has witnesses who testify that after his mother's death B admitted having received these instructions.
A. Since B's mother did not take the required oath regarding her ketubah, she had no property of her own; even the clothes she wore on week-days belonged to the estate. Consequently B is unable to carry out his mother's instructions. B is under no moral obligation to repay his mother's debt since the mother herself had not been pressed for payment.
SOURCES: Cr. 76.
A. Since B's mother did not take the required oath regarding her ketubah, she had no property of her own; even the clothes she wore on week-days belonged to the estate. Consequently B is unable to carry out his mother's instructions. B is under no moral obligation to repay his mother's debt since the mother herself had not been pressed for payment.
SOURCES: Cr. 76.
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