Bava Basra - Daf 151
- A שכיב מרע can retract from a gift even if he does not recover, and even to give it to another
Rami bar Chama’s mother, who was a שכיב מרע, wrote all her possessions to him in the evening, but in the morning, she changed her mind and wrote them to her son Rav Ukva bar Chama. Rami bar Chama came before Rav Sheishess, who established him as the owner of the property, but Rav Ukva bar Chama came before Rav Nachman, who established him as the rightful owner. Rav Sheishess protested to Rav Nachman that since the mother died and did not recover, her retraction should be ineffective!? Rav Nachman responded that Shmuel said: כל שאילו עמד חוזר – anyone who, if he recovers, can retract, חוזר במתנתו – can retract from his gift even if he does not recover. Rav Sheishess argued that perhaps this was only said לעצמו – when repossessing his property for himself; לאחר מי אמר – did he say so even where he gave it to someone else? Rav Nachman responded that Shmuel explicitly said a שכיב מרע can retract, בין לעצמו בין לאחרים – whether it is for himself or for someone else.
- דברי שכיב מרע ככתובין וכמסורין דמו
Rav Amram Chasida’s mother had a pouch filled with שטרות. When she was dying, she said: ליהוי לעמרם ברי – “This should be for Amram, my son.” Rav Amram’s brother came before Rav Nachman, and argued that the gift should be ineffective: והא לא משך – he did not make [a kinyan of] משיכה in her lifetime, and did not acquire the pouch!? Rav Nachman responded: דברי שכיב מרע ככתובין וכמסורין דמו – the words of a שכיב מרע are considered like they are written and handed over to the recipient, even without making a kinyan.
- מצוה מחמת מיתה can also retract from his gift, and does not require a kinyan
Rav Dimi’s sister, who was ill, gifted her orchard to Rav Dimi. Since she had retracted several times before, Rav Dimi designed the gift in a way that she could not retract, by having her retain a portion, and by making a kinyan. Still, Rav Nachman required him to return it, because witnesses heard her bemoaning her impending death. Clearly, she was instructing to give away her property because she thought she would die, ומצוה מחמת מיתה חוזר – and one who explicitly instructs because of an impending death can retract (despite retaining some property and making a kinyan). Rav Nachman said that a שכיב מרע who gives away part of his possessions is like an ordinary gift, so he cannot retract, and a kinyan is required. This second point is challenged from a Mishnah where a mother gifted her brooch to her daughter before her death, וקיימו דבריה – and [the Sages] upheld her words and awarded the brooch to the daughter, although she had not made a kinyan!? The Gemara answers that it was a case of מצוה מחמת מיתה, where she indicated her gift was because she thought she would die, and therefore a kinyan was not required. Although Rav Huna brei d’Rav Yehoshua required a kinyan for a מצוה מחמת מיתה, the halachah is that a kinyan is not required.
