A Dramatic Change
‘Where His Son Traveled Overseas….’
(Bava Basra 132a)
A baraisa on our daf discusses a person who gifts all his possessions (in writing) to another after hearing that his son died while traveling overseas. He then learns, though, that the report was false. Can he rescind his gift?
The Tanna Kama rules that he may not (since he did not write, “I am making this bequest because my son died” – Rashi, s.v. “Mataneso Matana”). R. Shimon b. Menasya, however, rules that he may because there is an assumption – an “umdena” – that he only gave his possessions to another because he thought his son was dead. Had he known his son as alive, he would not have made the gift since he would have wanted his son to inherit him. R. Nachman informs us that the halacha is in accordance with R. Shimon b. Menasya.
This ruling is difficult, though, because we have a general principle that “devarim she’blev einan devarim – matters that are not verbalized have no validity” (Kiddushin 49b). Nonetheless, our case is an exception because we apply a different rule here, “azlinan ba’sar umdena” – we follow the obvious assumption that a father does not wish to disinherit his son and only made this gift based on what turned out to be false information.
A Limited Bequest
The Rambam (Hilchos Zehiya chap. 6:1) limits this halacha to a father who gifted his entire estate to another; if he only gifted part of it, the gift cannot be rescinded. The Rambam explains that excluding part of his estate indicates that he was unsure if his son was truly dead, and yet he made the bequest nonetheless.
On His Deathbed
The Ramban (cited by the Tur, Shulchan Aruch, Choshen Mishpat 246) limits such a bequest to a “shechiv mera,” a critically ill person. A person in good health who makes such a bequest obviously doesn’t care about his own welfare (for how can he live without property?) and therefore we assume he is indifferent to the welfare of his son as well.
The Ran, while essentially agreeing with the Ramban, argues that the individual can rescind the gift if he stipulated that he has a right to use his possessions until he dies. This stipulation indicates that he cares about his own welfare and presumably, therefore, cares about his son’s as well.
The Maharam Lublin (Siman 108, cited by Aruch HaShulchan, Choshen Mishpat 246:6) considers the case of a childless man who granted his entire estate to a friend and was subsequently blessed with a child. Based on the “umdena – assumption” of R. Shimon b Menasya, he rules that the bequest may be rescinded.