GIFT, the transfer of legal rights without any consideration or payment. It is essentially no more than a sale without payment and all the principles of the law of sale apply (see *Sale).
The Da'at of the Parties
The decision (gemirat ha-da'at) of the parties to conclude a gift transaction – the intention of one to give and the other to receive – is established by means of an act of kinyan, i.e., by the performance of one of the recognized acts whereby property is acquired (see *Acquisition, Modes of). Upon performance of the kinyan, ownership of the property passes from the donor to the donee and neither may any longer withdraw from the transaction. The test as to whether or not the gemirat ha-da'at exists is an objective one, namely: if the parties performed an act customarily performed by people in order to conclude such a transaction and if in the particular circumstances of the case there existed no reason why most people would not conclude the transaction, the gift will be effective (Kid. 49b). A gift may be conferred on a person without his knowledge, because it is assumed that he agrees to get a benefit, the rule being that "a benefit may be conferred on a person in his absence, but an obligation may only be imposed on him in his presence" (Git. 11b). Similarly, the gemirat hada'at of the parties does not require a consensus ad idem between the parties. If it is manifest that the donor made up his mind to effect the gift, whereas the donee has not made up his mind to receive it, the latter may retract but the former may not, since the gemirat ha-da'at of a party to a transaction precludes him from retracting from it. Consequently, when a person confers a gift on another through a third party, the donee may refuse to accept it until it has reached his hands, even if he has heard of the intended gift – but the donor may not withdraw, since the person acquiring the gift on behalf of the donee performed a kinyan whereby the donor's decision to conclude the transaction was made (Yad, Zekhiyyah 4:2). If the donee should discover a defect in the gift, and it is of such nature that people would generally not want such a gift, the donee may retract even after the gift has come to his hands (Kesef Mishneh, Zekhiyyah 4:1, concl.).
When it is manifest to all that there was an absence of gemirat ha-da'at on the part of both parties, the transaction will be void. A person cannot transfer to another, by way of a gift, something which is not yet in existence, or which is not his own; nor can a gift be conferred on someone who is not yet born; nor can a gift be conferred of something which one owns but which is not at the present time in his possession, such as where the owner has been robbed (see *Theft and Robbery). According to some scholars, however, even these kinds of gifts may validly be conferred in certain circumstances (see *Sale). Similarly, if a person promises a valuable gift to another verbally, but without a kinyan, so that the latter does not rely on the promise, there would not even be any moral sanction against him if he should withdraw (BM 49a).
If it is clear, notwithstanding an act of kinyan, that the donor did not really intend to effect the gift (for example, he was compelled to make the gift under duress), it will be void. Even if there was no duress, but prior to the gift the donor had declared before witnesses that he was not making it of his own free will, the transaction will also be void, even if the witnesses were not themselves aware of any duress exercised against him, because by his declaration he manifests an intention of not making the gift (Yad, Zekhiyyah 5:4; see *Ones). Moreover, as a gift must be made openly and publicly, an undisclosed gift is invalid, since "the donor is not presumed to have made up his mind to a gift, but is scheming for the loss of other people's property" (ibid. 5:1). Similarly, if a person makes a written disposition of all his property to one of his sons, the latter does not acquire it all since the assumption is that the father intended to do no more than appoint this son administrator so that his brothers should accept his authority. This is also the case if he made a disposition in favor of his wife. However, where he disposes of only part of his assets to his wife or son, or where he expressly states that an absolute gift is intended, the gift will be effective (ibid. 6:2–4). A gift by a woman before her marriage by way of a written disposition in favor of a person other than her prospective husband becomes ineffective if the latter should die or be divorced from her, since the disposition of her assets to another was made in order to keep these from her husband in the event of his inheriting her (ibid. 6:12). On the other hand, one who gives money for kiddushin (*marriage) which is known to be invalid, e.g., to one's own sister, intends to do so for the sake of gift (Kid. 46b). According to another opinion he gives the money as bailment.
A deaf-mute, an idiot, and a minor lack the legal capacity to make a gift, since they have no da'at, but the scholars prescribed that minors or deaf-mutes, depending on the degree of their understanding of the nature of the transaction, may effectively make certain gifts, by virtue of the rule of "for the sake of his sustenance" (Yad, Mekhirah 29; see *Sale). According to many opinions, they may also receive gifts, even in terms of biblical law (Tos. to Kid. 19a). The sages also prescribed that someone may acquire and receive a gift on behalf of a minor, even if the latter is no more than one day old (Rashbam to BB 156b).
Conditions of the Gift
The donor may make the gift conditional upon certain terms, failing which the gift will be void (see *Conditions). As in the case of a sale, the stipulating party must impose his conditions in such a manner as to make it clear and known to all that he intends in all seriousness that the gift be considered void if the conditions should not be fulfilled and that he is not merely making a statement at large (Yad, Zekhiyyah 3:6–7). When it is apparent from the circumstances that he intends to make his gift subject to the happening of certain events, the condition will be operative even if not expressly stated and, at times, even if not stated at all (Tos. to Kid. 49b). Thus a gift would be void if made by a person who transfers all his assets to another on hearing of his son's death, but subsequently finds out
The donor may stipulate that the gift is to be returned, in which event the gift is valid but the recipient is obliged to return it after the expiry of the stipulated period. During this stipulated period, however, this gift is the property of the recipient, like all his other property; but after the stipulated period, the recipient must return the property to its former owner, and failure to do so will amount to the nonfulfillment of a condition, voiding the transaction of a gift ab initio (Sh. Ar., ḤM 241:6). Similarly, the donor may stipulate that he is making a gift, first for the benefit of one person and then for another (see *Wills). Where the true intention of the donor is in doubt, his ultimate purpose may be deduced with the aid of the rule that "he who gives a gift gives in a liberal spirit." Thus if one says, "give to so-and-so a house capable of holding 100 barrels," and it is found to hold 120 barrels, the donee will have acquired the whole house (BB 71a). Generally, no responsibility is imposed in connection with the gift, and if it should be foreclosed, the donee will have no recourse against the donor, unless expressly provided for between the parties (Yad, Shekherim 13:1).
In the State of Israel the rules of gift are ordered in terms of the Gift Law, 1968, consisting of six material paragraphs. On the question of the degree of its reliance on Jewish law, see Elon in bibliography.
In the State of Israel
Issues involving the Gift Law frequently arise in the rabbinical courts in the context of division of property between a husband and wife in the course of divorce (see *Divorce; *Joint Property).
In File 2319/42, 13 PDR 144, the wife claimed that she was entitled to 50 percent of the rights in the apartment, based on the fact that the apartment was registered in the Land Registry Office in the name of both spouses. The husband claimed that the apartment was purchased with his money and that it was mistakenly registered in the wife's name as well, since he did not know at the time that she was mentally ill, and upon becoming aware of her mental illness he had immediately filed for divorce. The District Rabbinical Court in Tel Aviv ruled that, even if the apartment was purchased exclusively with the husband's money, he could not have done so without the loan that he received from the Housing Ministry, and this loan is only granted if the apartment is registered in the name of both spouses. Consequently, registration of the apartment in both of their names must be regarded as an unconditional gift made by the husband to his wife. The rabbinical court accordingly held that half the apartment did indeed belong to the wife.
An additional question in this field arose before the Supreme Court in the case of Boehm (HCJ 609/92 Boehm v. The Rabbinical Court of Appeals, 47(3) PD 288). A petition was filed to reverse the decision of the Rabbinical Court of Appeals, ruling that the apartment of a couple divorced as a result of the wife's infidelity would belong solely to the husband, because the half-interest in the apartment given by the husband to his wife was given on the condition that she not betray her husband. Even though this condition had not been expressly written or stipulated orally, the rabbinical court inferred that there had been an implied condition to that effect, based on the parties' presumed intention. (In addition, the Court ruled that the husband's offer to give the wife 30% of the value of the apartment as a compromise was not binding upon him once the wife refused the offer.) The appellant's argument was that the decision violated civil law principles in effect in the State of Israel, regarding equal rights of women as expressed in the Woman's Equal Rights Law, 5711 – 1952, and provisions of the Gift Law, 5728 – 1968, with respect to the possibility of revoking a gift. It also contradicted the provisions of the Basic Law: Human Dignity and Freedom.
The Supreme Court (per Justice Menachem Elon) ruled that, "as a factual finding had been made that the apartment was purchased with the husband's money, and that legally, the act constituted an interspousal gift, the Court's task was solely to ascertain what the parties presumably intended to accomplish by that act." As such, the issue did not concern the woman's equal rights or basic rights (p. 294 of the decision, ibid.). In addition, the Court ruled that, since the rabbinical court has jurisdiction to decide the matter, it must rule according to Jewish law. On the basis of these findings, the Court denied the petition, holding that the rabbinical court ruled according to Jewish religious law and that, accordingly, this gift must be viewed as a conditional gift. "He did not make the gift with the intention that she should leave him (i.e., the gift was given on the condition that if she leaves him he would not confer her any rights)" (ibid.).
Justice Elon noted further that, even under the provisions of the Gift Law, a gift may be given conditionally, and one can infer that such a condition exists on the basis of the presumed intention of parties, as evidenced by the circumstances. Indeed, in a number of cases the Supreme Court ruled regarding interspousal gifts, that circumstances occasionally indicate that the gift was given conditionally, and once the judicial forum has construed the gift contract as being conditional, the condition becomes an integral part of the contract. By the same token it is clear that the rabbinical court was entitled to interpret the contract as including a condition, pursuant to Jewish law.
The Supreme Court further stated in its decision that the rabbinical court had ruled that a gift between spouses is given on the condition that they will not divorce, even in the reverse situation – i.e., where the wife gave half-ownership in
A GIFT FROM A LIVING PERSON AND A WILL
The Supreme Court also considered the laws pertaining to gifts under Jewish law in the case of Abergil (CA 2555/98 Abergil v. The Estate of Ben Yair, 53(5) PD 673, per Justice Yitzchak Englard). In that case, a man gave his house as a gift to the appellant, by means of a written deed of gift signed by witnesses and certified by a notary. His intention was for the gift to be effective according to both the laws of the State and Jewish law. The giver wrote in the gift deed that he was giving his apartment as a gift to the appellant "from this time while I am alive until one hour before my death." The Supreme Court discussed the use of this formulation in halakhic literature. Its purpose is to effect conveyance of the gift in such a manner that title in the gift would be given at the time of the conveyance of the deed of gift, while its proceeds – the right to use the gift – would not be conveyed until after the death of the giver (ibid., p. 681).
The Supreme Court notes that the "Jewish legal tradition … does not allow a person to bequeath property to "one who is not competent to inherit from him" and similarly does not allow for "disinheriting of an heir" (Sh. Ar, ḤM 281, A). Hence, the only permissible way under Jewish law to allocate an estate in deviation from the rules of inheritance is through a living gift – that is, by using language of a gift and not of inheritance. Consequently, the Court ruled that in essence this was a will pursuant to the Israeli law: "From a substantive perspective, and pursuant to the Succession Law, a gift that becomes effective upon death of the donor is a will … the essence of the transaction must be viewed as a true will within the meaning of the civil Succession Law. Therefore, since the will did not conform with a number of requirements prescribed by the Succession Law, 5725 – 1965, such as the requirement that the will not benefit any one person involved in drafting it (section 35 of the Law), it is void." The Court also stated that according to these holdings, "a Jewish person wishing to dispose of his estate in accordance with halakhah must ensure that he complies with the provisions of the civil law regarding wills and that there are formulations that satisfy the requirements of both legal systems" (ibid., p. 686; see also under *Wills; *Succession).
See also, HP 138/98, Medina v. Medina (Haifa Dist. Ct., Judge Yaakobi-Shvili), regarding a fictitious gift; Civil File 443/94, Mizrachi v. Mizrachi (Jlm. Dist. Ct., Judge E. Rubinstein), regarding a gift that is subject to an implicit condition.
[Menachem Elon (2nd ed.)]
M. Bloch, Das mosaisch-talmudische Erbrecht (1890), 40ff.; idem, Der Vertrag nach mosaisch-talmudischen Rechte (1893), 87–90; Gulak, Yesodei, 1 (1922), 39, 76 n. 3, 118, 129ff.; 2 (1922), 159–63; Gulak, Oẓar, xxii, 38, 182–91, 346f.; Herzog, Instit, index; ET, 1 (19513), 165f., 216f., 219, 291; 3 (1941), 203; 5 (1953), 400–3; 6 (1954), 89–92, 550f., 606f., 613f., 619, 625–31; 7 (1956), 30, 43f., 57, 170–3; 8 (1957), 435f.; 9 (1959), 161f.; 10 (1961), 64–66; 12 (1967), 140–6; B. Cohen, in: Wolfson Jubilee Volume, 1 (1965), 227f.; M. Elon, in: ILR, 4 (1969), 96–98. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:101f., 133, 327, 346, 476, 481, 536, 572; 3:1404, 1412, 1450; idem, Jewish Law (1994), 1:113f., 149f., 416f.; 2:580, 586, 652, 705; 3:1673, 1681f, 1724; idem, Jewish Law (Cases and Materials) (1999), 398–404; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), 2 (1986), 255–65; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat, ve-Italyah (legal digest) (1997), 185–87.
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