A Dramatic Change
‘Where His Son Traveled Overseas…’
(Bava Basra 132a)
The baraitha on our daf relates the following case: A certain person’s son traveled overseas. He subsequently heard that his son had died, upon which he gifted all his possessions (in writing) to others.
The report proved false as his son soon returned. He sought to overturn the bequest. The tanna kama ruled that the gift remains in effect (Rashi s.v. “Mataneso Matana” explains the reason being that he did not write in the will “since my son has died I am making this bequest”).
R. Shimon b. Menasya disputed this ruling and posited that the father may rescind the gift – because it is our assumption – an “umdena” – that such a gift was made only because he thought his son was dead. However, when he finds out that his son is indeed alive, his wish is that his son inherit him. R. Nachman informs us that the halacha follows R. Shimon b. Menasya.
The difficulty with this ruling is our general principle (Kiddushin 49b), “Devarim she’b’lev einan devarim – “matters that are not verbalized have no validity.” Indeed, where such would normally be the rule, our case is the exception – because we apply here a different rule: “azlinan ba’sar umdena” – we follow the obvious assumption, in this case that a father does not wish to disinherit his son. Thus the gift was actually conditional and only so bequeathed for in this case he thought his son had died.
A Limited Bequest
Rambam (Hilchos Zehiya chap. 6:1) limits this halacha to where the father gifted his entire estate to another; however, if he omitted some possessions from the gift, he may not nullify the bequest. Rambam explains that since he excluded part of his estate, he indicated that he was unsure of the sons’ death, and nevertheless he made the bequest.
On His Deathbed
Ramban (cited by the Tur, Shulchan Aruch, Choshen Mishpat 246) limits such a bequest to a “shechiv mera,” a critically ill person. However, if the person is in good health, we assume that he is one who lacks concern for his own personal conduct and welfare, and by extension he is seen as indifferent to his own children’s welfare.
Lifetime Estate
Ran (to our daf), while essentially in agreement with Ramban that a healthy individual cannot rescind a bequest even upon learning that a son is still living, demurs in the following situation. If the individual attached the stipulation that he has the continued right to use of his possessions until such time as he dies, in that event he may nullify the bequest should the report of his son’s death prove to be false – the reason being that through the stipulation he has exhibited concern for his own welfare.
Childless Man
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 nullified.
