Creating an Apotropus by Awarding Money
The gemara in Bava Batra (131b) describes a situation in which someone writes a contract awarding his entire estate to his wife or child. It would seem that this award should be considered acceptable by all opinions. While R. Yochanan ben Brokah and the Chakhamim debate whether a person can directly assign inheritance without an act of kinyan, as discussed in a previous shiur, in this instance, a shetar was written, presumably entailing a valid and classic form of kinyan. Yet the gemara asserts that the designee does not receive ownership of the estate, but merely apotropsut – stewardship or receivership. We can assume that the sole purpose of the outlandish award was to demonstrate affection for the designee and compel the family to respect the matriarch or brother. Based on this assumption, no monies are awarded and the designee becomes an apotropus.
The simple reading of this halakha suggests that we can ASSUME a particular intent, even if it is contrary to the actual action which was executed. The halakhic ability to assume a person's intent is referred to as “umdana” and has deep roots in Halakha. For example, under ordinary circumstances, a man must instruct both composition and delivery of a get; in certain cases, however, we can assume that he possesses intent to deliver the get even though this was not explicitly stated. If a person is being led to his death and instructs the composition of a get, we can ASSUME that he wanted its delivery as well and can act accordingly. In another example, if a person hears that his son died and awards all of his monies to others, but then subsequently discovers that his son is actually alive, he may recover the funds; we can ASSUME that the comprehensive delivery of funds was based on the false premise that his son had died. Perhaps our situation in Bava Batra about the recipient of monies really being designated for apotropus is similar. Although the dying person in this case awarded money, we can ASSUME that he meant to demonstrate love and encourage respect. He truly intended to create an apotropus and not to transfer ownership. In fact, in addressing the rules of umdana, Tosafot in Kiddushin (49b) cites this halakha as a model.
However, this simple umdana-based reading is difficult for two reasons. First, application of umdana to THIS situation may be more questionable than in the other cases we noted above. In the situation of a husband being led to his death, the umdana allows us to “complete” his partial request; he asked us to compose a get, and we can assume he wanted it to be delivered as well. In the situation of a person who awards his funds because he is under the impression that his son has died, an ERROR occurred, and we can employ an umdana to undermine an action based on false information. But can an umdana contradict an actual declaration of monetary award?
A second problem with the umdana approach stems from a gemara in Gittin (14a) (also Bava Batra 124a), which refers to this ruling as a “hilkheta be-lo ta'ama” – a halakha without apparent logic. This suggests that a simple umdana does not exist in our scenario. We cannot conclusively ASSUME that the person intended to assign apotropsut, and yet the Chakhamim determined that the receiver should be considered an apotropus nonetheless. The person’s intent was ambiguous; he may or may not have intended that his relative become an apotropus. Since assigning apotropsut does not CONTRAVENE his declaration and an apotropus must be designated in any case, the Chakhamim IMPOSE apotropus status – not as a result of a classic umdana, but rather as a legal intervention due to the uncertainty regarding the meaning of the person’s declaration.
A provocative statement of the Ba'al Ha-Ma'or in Bava Batra (131b) suggests this latter approach. The gemara describes a situation in which a father awards his estate to his baby child, concluding that even in this instance, the child becomes an apotropus (presumably when he matures into financial awareness). The simple reading suggests that even if his older brothers are financially capable and therefore have no need for an apotropus, the baby has been assigned as [future] apotropus. Indeed if we are certain through umdana that this was the father's intent, the baby child is considered a future apotropus even though his older financially savvy brothers do not require this service. The Ba'al Ha-Ma’or argues, however, that if the older siblings do not require apotropsus, this halakha does not apply the baby achieves full ownership. According to the Ba'al Ha-Ma'or, NEED is the basis for the halakha; in its absence, the halakha does not apply. If umdana provided concrete information about intent, NEED would play no role in determining this outcome. Evidently, in the view of the Ba’al Ha-Ma’or, the true factor is NEED, which compels Chakhamim to impose apotropsus as long as the language supports that as a POSSIBLE intention.
An interesting comment of the Yad Rama (Bava Batra 131) articulates this theory. He claims that the halakha only applies if the original language was ambiguous. For example, the father claimed that all his lands “ARE FOR” his wife or son. Since this language may intend acquisition or may intend apotropus, we impose the latter. If the target were non-relatives, we would transfer ownership based on the probability that he intends kinyan. However, if the dying person targeted spouses or children, the very possibility (though not compelling) that he intended apotropsut allows us to impose this (necessary) institution. The Yad Rama is clear that his declaration does not produce an inalienable umdana which compels our decision. If the father is absolutely clear that he intends kinyan, ownership clearly transfers, rather than mere apotropsut.
An even more radical opinion appears in a responsa of the Rashba (2:263), where he claims that EVEN if the person were quite clear that he intends kinyan, the designee would not acquire ownership, but instead would be assigned as apotropus. It would be difficult to imagine an umdana strong enough to convince us of intent DIAMETRICALLY opposed to a person’s statements. This position almost demands that we consider the apotropus status to be an IMPOSED law and not merely the product of reinterpreting the person’s statements.
It is possible that the gemara itself was debating this issue. Awarding monies to children or a wife can potentially generate a definite umdana. The soon-to-be deceased is interested in the remaining children honoring the recipient. In each case, halakha demands respect of the recipient. Halakha mandates respecting an older sibling as well as one’s mother. By contrast, if a person awards his monies to his fiancÃ©e or divorced wife, the halakha of apotropus does not apply. We must assume that the person had NO INTEREST in generating respect toward these women and hence we assume he intended monetary transfer and not apotropus. What would happen in marginal cases - situations in which no halakha of honoring applies and no definite assumption can be lodged, but there is a reasonable chance that the person wants to generate respect for the recipient by appointing him as an apotropus? For example, if a person awarded his estate to his daughter instead of his sons or to his wife instead of his brothers (assuming he is childless), would we determine apotropsut or enable kinyan? In these instances, there is no clear mandate to ASSUME that the husband/father intended to award his monies to solidify respect for these people. It is certainly POSSIBLE that he is interested in garnering respect for them, but not absolutely certain. If we require an absolute umdana, these cases would fail the test; if we merely require possibility (and the NEED per se allows us to impose apotropsut), the POSSIBILITY exists and we would institute apotropsut. The gemara in Bava Batra (121b) debates these cases and presumably the debate stems from the structural nature of this halakha.
An interesting query of Rava (Bava Batra 132a) may also reflect the question of how to understand this apotropsut. He questions whether this rule also applies to someone who awards all his monies when he is healthy. Without question, the umdana is more compelling regarding someone who awards funds prior to his death. He is concerned about his wife's standing with his children or about his child's standing among his siblings. Appointing that person as an apotropus, and specifically doing so by delivering all his money, is a perfect way to strengthen that recipients position in the family. The umdana suggesting this intention is therefore very compelling. A healthy person, in contrast, may not be as concerned with the standing of his wife and child because he assumes he will continue living and will be able to enforce/encourage this attitude personally. Would the halakha be applied in this instance as well? If the rule is less dependent upon the strength of umdana and more dependent upon the need for apotropsut and the POSSIBILITY of interpretation, perhaps it can extend to a healthy person's declaration as well. Rava's question regarding a healthy person may simply reflect the two different versions of this halakha.