Shabbat Parashat Beshalach | 5770

In the past few weeks we have been learning in the Daf Hayomi the laws of a gift of a Shechiv Mera. We will try to summarize the main Halachot which are derived from what we have learned.

The definition of a Shechiv Mera

A Shechiv Mera is an ill person who has fallen to bed. The Sages instituted that a Shechiv Mera will be able to transfer ownership of gifts that he gives, without the requirement of a kinyan.  The reason for this institution is that the Sages were concerned that if the Shechiv Mera will think that his instructions are not binding, then he might suffer such psychological stress that will exacerbate his situation. Therefore, they instituted that he will be able to give presents simply by speaking.

The uniqueness of the present of a Shechiv Mera

There are two main differences between the present of a Shechiv Mera and the present of a healthy person:

1.      A kinyan is not required.

2.      The present comes into effect only after the Shechiv Mera passes away.  

Reneging on a present of a Shechiv Mera

Since the present of a Shechiv Mera comes into effect only after his death, he can renege on the present or give it to someone else. So too, if he recovers from his sickness, the present is automatically cancelled.

When does a gift attain the status of a Shechiv Mera's present

In two situations a gift given by a Shechiv Mera attains this special status of a Shechiv Mera's present:

1.       When a Shechiv Mera specifically states that he is giving a Shechiv Mera's present (Rambam Matana 8, 17, Choshen Mishpat 250, 9).

2.       When a Shechiv Mera gives away everything he owns.

However, if a Shechiv Mera did not give away everything that he owns, but left something for himself, and he did not state specifically that it is a Shechiv Mera's present, then this present has the status of a healthy person's present, and a kinyan is required.  If he made a kinyan in such a case, he cannot renege on it. The reason for this distinction is that, if the Shechiv Mera left a portion for himself, then we assume that he did not intend for this to be a Shechiv Mera's present which comes into effect only after his death, but rather a healthy person's present which is effective immediately.

According to the Rif (70a) and the Rambam (ibid 8, 15), even if the Shechiv Mera retained a small portion for himself, then it is considered a healthy person's present. However, according to the Rosh, this is so only if he left for himself enough to live off of. The Shulchan Aruch (250, 4) rules like the Rif and the Rambam whereas the Remma quotes the Rosh.

A present of a Shechiv Mera with a kinyan

Due to the unique properties of a Shechiv Mera's present, if the Shechiv Mera attempts to give a present for after his death with a kinyan, the present is void, as a kinyan is only effective for presents given while one is alive. However, if the kinyan was done only to strengthen the transaction and not as the means by which the transaction will come into effect, it does not detract and the present is valid.

Therefore, if a Shechiv Mera gives everything he owns, or even a portion, and specifically states that it is a Shechiv Mera's present, there is no need for a kinyan, and it might even detract. However, if he gives only part of his assets then a kinyan is required, as this has the status of a healthy person's present.

Metzave Mechamat Mita (one who gives away because his death is imminent)

If it is clear from someone's words or from the circumstances that he believes that his death is imminent and is therefore giving away his possessions; his present has the status of a Shechiv Mera's present. The main difference between a Shechiv Mera and a Metzave Mechamat Mita is that, for a Metzave Mechamat Mita, even if he gave only a portion of his assets it has the status of a Shechiv Mera's present, as it is clear that he gave only because he believed that his death was imminent.