Shechiv Meira and Death-Bed Transfers

  • Rav Moshe Taragin

           A previous shiur addressed the intervention in inheritance (yerusha) allowed by Rabbi Yochanan ben Berokah and questioned whether a person designates an inheritor or actually personally transfers his estate.  Despite the important differences between these two, they each entail a de-oraita form of yerusha based upon a pasuk (Devarim 21:16) describing some active role for a person in controlling his inheritance. 

 

            The ninth perek of Bava Batra describes a rabbinic legislation known as shechiv meira (a person on his deathbed).  Acknowledging the inevitable stress of a dying person, the Rabanan allowed him to verbally assign his estate to ANYONE.  Like Rabbi Yochanan ben Berokah's scenario he does not require an act of kinyan, but unlike Rabbi Yochanan's process he may allocate to anyone.  Two basic clauses were added to insure that this facility is employed only by a dying person: he must allocate his entire estate and he must not recover.  If the shechiv meira survives his allocation is nullified. 

 

YERUSHA OR MATANA

 

            Though the Rabanan instituted this mechanism known as shechiv meira for obvious reasons, a debate emerged as to its underlying mechanism.  The debate was captured in a series of correspondences between two Spanish poskim: the Rashba and the Ra'ah.  In his response, the Ritva, a talmid of both, records the disagreement between his two teachers.  The Ra'ah claimed that the Rabanan modeled shechiv meira after regular inheritance while the Rashba claimed that they flexed classic matana (gift) transfer and mapped it to shechiv meira.  The Ra'ah's claim is buttressed by the absence of any execution of maaseh kinyan – a scenario which reflects the atmosphere of yerusha.  Alternatively, the ability to distribute to ANYONE (and not merely family members) may suggest that the Rabanan merely adapted classic matana transfer and relaxed the need for a tedious maaseh kinyan. 

 

            The gemara (147a) records a dissenting opinion of Rav that shechiv meira acts on a de-oraita level.  Based on two verbs included in the inheritance description of Bamidbar 27 (you should transfer – ve-ha'avartem; you should give – u-netatem) Rav derives the Biblical ability of a shechiv meira to verbally transfer his estate.  Without question Rav viewed shechiv meira as a Biblical form of yerusha – even though it may be allocated to non-family individuals.  Tosafot attempt to mitigate Rav's position by claiming that even he believed that shechiv meira is Rabbinic and merely suggested a text which would hint at the prospect (asmakhta).  The overwhelming majority of positions though disagree with Tosafot and maintain that Rav believed in a Biblical source for shechiv meira.  However Rav's position is in the minority and the gemara concludes that shechiv meira is merely a rabbinic injunction. 

 

PROOFS

 

            Having developed the question "when the Rabanan legislated shechiv meira did they restructure yerusha or did they reconfigure matana?" we may now locate proofs.

 

            Presumably this issue was already debated amongst the Amoraim.  The gemara in Bava Batra (147b) disallows the transfer of 'residence rights' through the invocation of shechiv meira.  He may transfer the house itself, but cannot transfer the ABILITY to reside in the house without actually transferring the house.  Challenging this rule the gemara asserts that loans may be transferred through shechiv meira.  Why can a shechiv meira transfer inchoate loans (whose monies are not in his possession) but cannot transfer abstract assets such as the 'residence rights of a house'?

 

            Rav Pappa responds that loans may be INHERITED whereas residence rights may not.  A yoresh cannot inherit residence rights without inheriting the actual house.  By extension, a shechiv meira cannot transfer residence rights.  Clearly Rav Pappa employs yerusha as the yardstick for which articles may be transferred through shechiv meira: inheritable items only may be transferred.  Presumably, he maintained the logic of the Ra'ah which views shechiv meira as modeled upon yerusha. 

 

            Rav Acha brei d'rav Ikka responded differently: loans may be transferred by shechiv meira since loans can be transferred through classic kinyan.  The gemara in Gittin (13a) develops the process known as ma'amad shloshtan – a unique solution to transferring otherwise un-transferable loans.  If the debtor, creditor and targeted recipient of the debt are all present, the loan can be verbally reassigned to a new beneficiary.  Since loans are transferable under normal conditions (albeit exclusively through ma'amad shloshtan) they may be similarly transferred through shechiv meira.  Alternatively, since residence rights cannot, under any condition, be legally transferred they cannot be delivered through shechiv meira.  Rav Acha seems to model shechiv meira upon the template of matana employing classic transferability as the barometer for determining the efficacy of shechiv meira.

 

            An additional gemara which voices the underlying mechanism of shechiv meira describes the ability of converts to participate in this process (Bava Batra 149a).  The gemara narrates an attempt of Issur Giyora (a ger) to transfer his estates to his biological son Rav Mari (who is not actually his halakhic inheritor since he was conceived prior to his father's conversion to Judaism).  The gemara disqualifies shechiv meira as a method of transfer since a ger is not a participant in Biblical inheritance (assuming Issur the father bore no children subsequent to his conversion).  The Ra'ah cites this exclusion as further proof that shechiv meira was modeled upon yerusha; hence only yerusha–suitable candidates may effect shechiv meira.  The Ra'ah cites some debate as to whether the actual shechiv meira must be a yerusha-participant but asserts that all opinions require the RECIPIENT to be a potential inheritor.  As Rav Mari had no yerusha benefactors he was excluded from receiving shechiv meira transfers.

 

RASHBA

 

            The Rashba is forced to justify the gemara's insistence upon yerusha suitability for shechiv meira activity.  He claims (and the root of this defense is already latent in the Ramban) that only the actual shechiv meira need be yerusha-suitable.  Issur Giyora was disqualified from shechiv meira activity because HE was a convert.  Had he been a pedigreed Jew or, alternatively, had he possessed potential inheritors he could have directed shechiv meira delivery even to converts who were excluded from classic yerusha.  Even though shechiv meira is based upon classic matana transfer, since the moment of transfer occurs posthumously it can be invoked only by a person who will also participate in classic Torah inheritance. 

 

            Conceivably, this Rashba may be explained in two fashions.  Since the moment of transfer occurs after death it resembles yerusha externally even though its mechanics are based upon matana.  Given shechiv meira's external resemblance to yerusha it was instituted only for yerusha participants.  Mechanically, it may be expendable to all people but since it resembles yerusha, it was only legislated for yerusha participants. 

 

            Alternatively, the Rashba may have claimed that "mechanically" the process of shechiv meira can only be effected by yerusha candidates.  Since the transfer occurs after death it can be extended only to people who are involved in halakhic activities after death.  Yerusha participants are involved in halakhic activity of yerusha after death.  That halakhic posthumous capacity can be drafted to effect a matana-based transfer of shechiv meira.  A person without inheritors exhibits no halakhic activity after death and cannot drive a process of shechiv meira.

 

            Either way, the Rashba was faced with a difficult dilemma.  Assuming that shechiv meira is an adaptation of classic matana why should it be limited to yerusha participants.  Isolating the posthumous moment of transfer allowed the Rashba to justify that even a matana can be extended only to yerusha participants.