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Shabbat Parashat Matot 5776

P'ninat Mishpat: A Loan or a Gift? part II

(ruling 74052 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: A few years ago, Shimon wanted to buy a home and asked his brother, Levi, for help. Levi gave him 60,000 shekels and then later another 100,000. Levi has put Shimon on notice that he wants Shimon to repay him the 100,000 shekels, which was a loan, when he has the ability. Shimon asked beit din to make a declaratory ruling that the money had been a gift. This, he says, is evidenced by the fact that there was no loan contract and is in line with the many gifts Levi had given Shimon over the years. Something had just caused Levi to “change his tune.” Levi says that originally Shimon had asked him for a loan for the entire cost of the home, but that he had agreed only to a more modest gift plus a loan. Levi described a discussion before the loan in which he had said that he was unable to give the 100,000 as a gift. Shimon says that occurred well after the money was given, and that, in any case, Levi had previously pledged the money as a present, without which Shimon would not have bought the home.


Ruling: [The main subject we saw last time was the different opinions in the poskim on whether the claim that money was given as a present is believed without a migo.]

It is possible that the claim that money was a present is a stronger one when the parties are close relatives. There is an apparent contradiction regarding cases where a man gives something of value to a woman with whom marriage does not take effect, whether the man can demand the object back or whether we assume it was given as a present. The Yeshuot Yaakov says that when the recipient is a sister, we assume it was a present, and when it is a woman who is not related, we do not assume it was a present.

On the other hand, we find several important sources that indicate that we do not assume presents even between close family members. When a father-in-law obligated himself to feed (“on his table”) his daughter and son-in-law for a certain amount of time and after it was completed, they continued eating there, the father can later charge them for what they ate and the children are not able to say that it must have been a present (Rama, Choshen Mishpat 246:17, based on Terumat Hadeshen 317). The Mahari Ibn Lev (I, 77) discusses someone who fed his young stepson, whom he treated like a son, for years. The son died as an adolescent, and the father sued his estate (the son had inherited a significant amount of money) to return the money he spent on him. The ruling was that although the two were close, we are to assume that money was given with the rights reserved to demand it back at a later time unless there is real evidence that it was a gift.

The distinction that explains the varied sources is that presents between relatives are common, but that when large amounts of money are involved, there have to be special indications that the money was a gift which the giver cannot demand to have returned (see article by Rav Yoezer Ariel in Techumin, vol. XXVII).

[Next time we will explore the possibility that Levi did not stipulate explicitly that he wanted the money returned but that this was his intention.]
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