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Gift

GIFT

A voluntary transfer of property or of a property interest from one individual to another, made gratuitously to the recipient. The individual who makes the gift is known as the donor, and the individual to whom the gift is made is called the donee.

If a gratuitous transfer of property is to be effective at some future date, it constitutes a mere promise to make a gift that is unenforceable due to lack of consideration. A present gift of a future interest is, however, valid.

Rules of Gift-Giving

Three elements are essential in determining whether or not a gift has been made: delivery, donative intent, and acceptance by the donee. Even when such elements are present, however, courts will set aside an otherwise valid gift if the circumstances suggest that the donor was, in actuality, defrauded by the donee, coerced to make the gift, or strongly influenced in an unfair manner. In general, however, the law favors enforcing gifts since every individual has the right to dispose of personal property as he or she chooses.

Delivery Delivery of a gift is complete when it is made directly to the donee, or to a third party on the donee's behalf. In the event that the third person is the donor's agent, bailee, or trustee, delivery is complete only when such person actually hands the property over to the donee.

A delivery may be actual, implied, or symbolic, provided some affirmative act takes place. If, for example, a man wishes to give his grandson a horse, an actual delivery might take place when the donor hires someone to bring the horse to the grandson's farm. Similarly, the symbolic delivery of a car as a gift can take place when the donor hands the keys over to the donee.

Delivery can only occur when the donor surrenders control of the property. For example, an individual who expresses the desire to make a gift of a car to another but continues to drive the car whenever he or she wishes has not surrendered control of the car.

A majority of states are practical about the requirement of a delivery. Where the donor and the donee reside in the same house, it ordinarily is not required that the gift be removed from the house to establish a delivery. If the donee has possession of the property at the time that the donor also gives the person ownership, there is no need to pass the property back and forth in order to make a legal delivery. Proof that the donor relinquished all claim to the gift and recognized the donee's right to exercise control over it is generally adequate to indicate that a gift was made.

In instances where delivery cannot be made to the donee, as when the person is out of the country at the time, delivery can be made to someone else who agrees to accept the property for the donee. If the individual accepting delivery is employed by the donor, however, the court will make the assumption that the donor has not rendered control of the property and that delivery has not actually been made. The individual accepting delivery must be holding the property for the donee and not for the donor.

In situations where the donee does not have legal capacity to accept delivery, such delivery can be made to an individual who will hold it for him or her. This might, for example, occur in the case of an infant.

Donative Intent Donative intent to make a gift is essentially determined by the donor's words, but the courts also consider the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor's property as a whole, and the behavior of the donor toward the property subsequent to the purported gift.

The donor must have the legal capacity to make a gift. For example, infants or individuals judged to be unable to attend to their own affairs have a legal disability to make a gift.

In addition, an intent to make a gift must actually exist. For example, a landlord who rents a house to a tenant does not have the intent to give such premises to the tenant, even though the tenant takes possession for an extended period of time. Similarly, a gift to the wrong person will not take effect. If an individual mistakenly gives gold jewelry to an imposter who is believed to be a niece, the gift is invalid because there was no intention to benefit anyone but the niece.

The intent must be present at the time the gift is made. For example, if one person promises to give a house to an artist "someday," the promise is unenforceable because there is no intent to make an effective gift at the time the promise is made. The mere expectation that something will someday be given is not legally adequate to create a gift.

Acceptance The final requirement for a valid gift is acceptance, which means that the donee unconditionally agrees to take the gift. It is necessary for the donee to agree at the same time the delivery is made. The gift can, however, be revoked at any time prior to acceptance.

A court ordinarily makes the assumption that a gift has been accepted if the gift is beneficial, or unless some event has occurred to indicate that it is not.

Types of Gifts

The two principal categories of gifts are inter vivos gifts and causa mortis gifts.

Inter vivos gifts Inter vivos is Latin for "between the living" or "from one living person to another." A gift inter vivos is one that is perfected and takes effect during the lifetime of the donor and donee and that is irrevocable when made. It is a voluntary transfer of property, at no cost to the donee, during the normal course of the donor's life.

A gift inter vivos differs from a sale, a loan, or barter since something is given in exchange for the benefit in each of such transfers. Whether the value given is a money price, a percentage interest or an equivalent item of property, or a promise to repay, the element of exchange makes such transfers something other than a gift.

There are a number of special types of inter vivos gifts. Forgiveness of a debt is a gift of the amount of money owed, and delivery can be accomplished by destroying the promissory note signed by the debtor and handing it over to him or her. A share of stock in a corporation may ordinarily be given to someone else by having ownership transferred to the person on the books of the corporation or by having a new stock certificate issued in the person's name. A life insurance policy can generally be given to someone by delivering the policy, but it is more expedient to express in writing that all interest in the policy is assigned, or transferred, to the donee and to notify the insurance company to that effect. Certain states require these formalities since insurance is strictly regulated by state law. Gifts of land can only be made by written transfer.

A donor can limit an inter vivos gift in certain ways. For example, he or she might give someone a life estate in his or her property. When the donee dies, the property reverts to the donor. A donor cannot place other restrictions on a gift if the restrictions would operate to make the gift invalid. If, for example, the donor reserves the power to revoke a gift, there is no gift at all.

Causa Mortis Gifts A gift causa mortis (Latin for "in contemplation of approaching death") is one that is made in anticipation of imminent death. This type of gift takes effect upon the death of the donor from the expected disease or illness. In the event that the donor recovers from the peril, the gift is automatically revoked. Gifts causa mortis only apply to personal property.

A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impractical. The delivery requirement is frequently relaxed when a causa mortis gift is involved, since a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The overt act aids a court in its determination as to whether a delivery has been made.

The difference between a gift causa mortis and a testamentary gift made by will is that a will transfers ownership subsequent to the death of the donor, but a gift causa mortis takes effect immediately. In most states, the donee becomes legal owner of the gift as soon as it is given, subject only to the condition that the gift must be returned if the donor does not actually die.

The requirements of a causa mortis gift are essentially the same as a gift inter vivos. In addition, such a gift must be made with a view toward the donor's death, the donor must die of the ailment, and there must be a delivery of the gift.

Gifts causa mortis are usually made in a very informal manner and are frequently made because dying people want to be certain that their dearest possessions go to someone they choose.

A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impractical. The courts only permit the donee to keep the gift if the donor clearly intended the gift to take effect at the time it was made. If the gift is made in writing in a will and is intended to become effective only after the donor dies, the gift is a testamentary one. The law in each jurisdiction is very strict about the features that make a will valid. One requirement, for example, is that the will must be signed by witnesses. If the donor writes down that he or she is making a gift, but the writing is neither an immediate gift nor a witnessed will, the donee cannot keep the gift.

The delivery requirement is frequently relaxed when a causa mortis gift is involved, since a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The overt act aids a court in its determination as to whether a delivery has been made.

A gift causa mortis is only effective if the donor actually dies. It is not necessary that the donor die immediately, but the person must die of a condition or danger that existed when the gift was made and without an intervening recovery. The donee becomes legal owner of the property in most states from the time the gift is made. The person must, however, later return the gift if the donor does not actually die. If the donor changes his or her mind and revokes the gift, or recovers from the particular illness or physical injury, the gift is invalid. A donor also has the right to require that debts or funeral expenses be paid out of the value of the gift.

further readings

Bove, Alexander A. 2000. The Complete Book of Wills, Estates, and Trusts. New York: Holt, Henry.

"Landlord's Estate May Include Tenant's Improvements to Lease Property." 2002. Tax Return Preparer's Letter (July).

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Gift

GIFT

Gifts and money are unconsciously associated with anal eroticism. In "On Transformations of Instinct as Exemplified in Anal Erotism" (1916-1917e), Sigmund Freud writes, "It is probable that the first meaning which a child's interest in faeces develops is that of 'gift' rather than 'gold' or 'money.' . . . Since his faeces are his first gift, the child easily transfers his interest from that substance to the new one which he comes across as the most valuable gift in life. Those who question this derivation of gifts should consider their experience of psycho-analytic treatment, study the gifts they receive as doctors from their patients, and watch the storms of transference which a gift from them can rouse in their patients" (pp. 130-131). The gift is meaningful because of its connection to the libido and eroticism. Freud's investigation led him to the discovery of the unconscious link with defecation and its relation to treasure hunting.

Karl Abraham (1916) examined the connection between excessive giving and anxiety. He investigated (1919) the transference meaning of the associationsoccasionally excessivepresented by the patient to the psychoanalyst as a gift. This attitude is an expression of narcissism and is characterized by its view of analysis as something governed by the pleasure principle.

What happens to the instinctual impulses of anal eroticism after the genital organization has been established? Freud in "On Transformations of Instinct as Exemplified in Anal Eroticism" (1916-17e) responds with the idea of the transformation of instinct. In this schema, gift equals excrement according to the symbolic language of the dream and daily life.

The first gift is excrement, a part of the infant's body he gives up only upon the mother's insistence and through which he manifests his love for her. Defecation and its relation to the object thus become the first opportunity for the infant to choose between bodily pleasure (narcissism) and object love (sacrifice).

Later in life the interest in excrement is transferred to an interest in gifts and money. The concepts of excrement, infant, and penis are poorly distinguished and are frequently treated as if they were equivalent; they can easily be substituted for one another. Freud perceived the identity of the infant with excrement in the linguistic expression: "to give a child." Similarly, Freud wrote in the "Wolf Man" (1918b), "By way of this detour demonstrating a common point of departure in their significance as gifts, money can now attract to itself the meaning of children, and in this way take over the expression of feminine (homosexual) satisfaction."

Freud views the transference relation of certain patients as a vague recollection of this problematic, arising whenever the patient wants to interrupt the unfinished treatment and place himself in a situation of disdain that originates in the outside world. The patient then replaces the urgent desire to have a child with promises of significant gifts, most often as unrealistic as the object of his past desire. This concept is developed in Beyond the Pleasure Principle (1920g).

Melanie Klein (1932-1975) demonstrated the importance of the theme of poison gifts as a source of depression and melancholy toward the object. "For the child gifts attenuate his guilt by symbolizing the free gift of what he wanted to obtain by sadistic means." In this same article, Klein clarifies the role of ambivalence and sees it as a step forward compared to archaic mechanisms. The gift provides access; it is a preliminary form of sublimation within the compulsions of reparation and restitution associated with obsessive behavior.

Dominique J. Arnoux

See also: Anality; Money in psychoanalytic treatment

Bibliography

Abraham, Karl. (1966). Examen de l'étape prégénitale la plus précoce du développement de la libido. Complete works, vol. 2, 1915-1925. (pp. 231-254) (I. Barande, Trans.) Paris: Payot. (Original work published 1916)

. (1979). A particular form of neurotic resistance against the psycho-analytic method. (pp. 303-311) In Selected papers of Karl Abraham, M.D. (Douglas Bryan and Alix Strachey, Trans.) New York: Brunner/Mazel. (Original work published 1927)

Freud, Sigmund. (1908b). Character and anal erotism. SE,9: 169-175.

. (1916-17e). On transformations of instinct as exemplified in anal erotism. SE, 17: 127-133.

. (1918b). From the history of an infantile neurosis. SE, 17: 1-122.

. (1920g). Beyond the pleasure principle. SE, 18: 1-64.

Klein, Melanie. (1975). The psycho-analysis of children. (Alix Strachey, Trans.) London: Hogarth Press. (Original work published 1932)

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gift

gift, in law, voluntary transfer of property from one person to another without any compensation for it and without any obligation of an agreement or contract. The one who gives is the donor; the one who receives the gift, the donee. There are two main classes of gifts, gifts inter vivos and gifts causa mortis. The former is an outright transfer of property, the ordinary type of gift. A gift causa mortis, on the other hand, resembles a legacy, or bequest made under a will. It is a gift made by a person in expectation of imminent death and is not complete until the donor dies. The donor in such a situation may make a gift by delivering the goods or note or whatever is the subject of the gift to the donee, but the donor retains full title to the gift and may revoke it at any time before his death. The ordinary gift inter vivos is complete and unconditional as soon as the delivery of the gift is made. The nature of the gift is of considerable importance in taxation. In both types of gifts, it is essential that there be an actual and full delivery of the article given as well as donative intent on the part of the donor. The delivery may be by handing to the donee or by giving it to some other person for the donee, but in all cases the delivery must be such as to take the property given out of the hands and the control of the donor. Commonly gifts are spoken of as involving both real estate and personal property. The law does not recognize a true gift of real estate, for real estate can be transferred only by deed or will. Gifts in law are only of personal property. A promise to deliver a gift in the future, or a promise to make a gift, unless under seal or made under very unusual circumstances, cannot be legally enforced. A gift should be distinguished from a barter or exchange, as the element of consideration (payment of some sort) necessary for the latter two is not present in a gift.

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gift

gift / gift/ • n. 1. a thing given willingly to someone without payment; a present: a Christmas gift| [as adj.] a gift shop. ∎  an act of giving something as a present: his mother's gift of a pen. ∎ inf. a very easy task or unmissable opportunity: that touchdown was an absolute gift. 2. a natural ability or talent: he has a gift for comedy. • v. [tr.] give (something) as a gift, esp. formally or as a donation or bequest: the company gifted 2,999 shares to a charity. ∎  present (someone) with a gift or gifts: the director gifted her with a heart-shaped brooch. ∎  (gift someone with) endow someone with (something): she was gifted with a powerful clairvoyance. PHRASES: the gift of tonguessee tongue. look a gift horse in the mouth find fault with something that has been received as a gift or favor.

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gift

gift in the gift of (of a Church living or official appointment) in the power of (someone) to award.
never look a gift horse in the mouth warning against questioning the quality or use of a lucky chance or gift; referring to the fact that it is by a horse's teeth that its age is judged. The saying is recorded from the early 16th century.

See also fear the Greeks bearing gifts, Greek gift, seven gifts of the holy spirit, the gift of tongues

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gift

gift XIII. — ON. gipt, corr. to OE. ġift payment for a wife, pl. wedding, OS. sundargift privilege, MDu. gift(e) (Du. gift fem. gift, n. usu. gif poison), OHG. gift fem. gift, poison (G. gift fem. gift, n. poison), Goth. fragifts espousal :- Gmc. *ʒeftiz, f. *ʒeb-, base of GIVE; see -T1.

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GIFT

GIFT / gift/ • n. Med. gamete intrafallopian transfer, a technique for assisting conception by introducing mixed ova and sperm into a Fallopian tube.

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GIFT

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gift

gift •Taft •abaft, aft, craft, daft, draft, draught, engraft, graft, haft, kraft, raft, shaft, understaffed, unstaffed, waft •backdraft • handcraft • aircraft •stagecraft • spacecraft • statecraft •needlecraft • priestcraft • witchcraft •kingcraft • handicraft • woodcraft •Wollstonecraft • bushcraft •watercraft • hovercraft • crankshaft •camshaft • layshaft • driveshaft •turboshaft • countershaft •bereft, cleft, deft, eft, heft, klepht, left, reft, theft, weft •adrift, drift, gift, grift, lift, rift, shift, shrift, sift, squiffed, swift, thrift, uplift •airlift, chairlift, stairlift •facelift • skilift • shoplift • Festschrift •spendthrift • spindrift • snowdrift •makeshift • downshift • upshift •aloft, croft, loft, oft, soft, toft •hayloft • Ashcroft • Cockcroft •undercroft • Lowestoft •tuft, unstuffed •Delft

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GIFT

GIFT (gɪft) Med. gamete intrafallopian transfer (for assisting conception)

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Gift

GIFT

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 that his son is still alive – since the circumstances show that he would not have given away all his assets if he had known that his son was really alive (bb 164b). Similarly, a gift made to the family of one's bride is returnable, if the marriage should fail to take place and the gift was not of a perishable kind (ibid.). So too, where it is customary for wedding gifts to be sent to a friend in order that the latter shall give his own similar gifts to the donor upon his own marriage; the latter may claim such from the former if they are not given, gifts of this kind being regarded as similar to loans (Yad, Zekhiyyah 7).

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.

[Shalom Albeck]

In the State of Israel

interspousal gift

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 the apartment to her husband. In that case too the husband must return his half-ownership of the apartment to the wife (see also under *Condition).

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.)]

bibliography:

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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