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Before dying, a sick man left the following will: "... I hereby command and transfer all of my property including money in bank accounts and future rights ... I give from today and one moment before my death to Yeshiva X." The natural inheritors questioned the will’s validity.
Ruling: Given the document’s wording and the fact that the deceased was sick at the time it was drafted, are we dealing with a matnat sh’chiv merah (a gift of one in mortal danger), which is valid without a kinyan? The language of "from today and one moment before death" indicates a conventional transfer of property, as a matnat sh’chiv merah takes place only after death.
Since the document was written in the accepted manner of wills, it should work as a kinyan situmta (a transfer based on the norms of society). However, situmata cannot transfer money in a bank account. That is because it is like a loan that is owed by people to the one who transfers his rights, upon which situmta does not work. This can be proven from a comparison to ma’amad shloshtan (the oral transfer of A’s property in the hands of B to C in the presence of all three parties). The Rashbam (Bava Batra 148a) says that ma’amad shloshtan was accepted practice among merchants, which the Rabbis instituted as a kinyan so that it would apply even when the rights transferred are in the form of a loan. Thus, without the special rabbinic institution, accepted practice (situmta) does not work in regard to loans.
One might claim that Israeli bank deposits are different, as, due to the heter iska, half of the deposited money is a pikadon (money that is to remain in the depositor’s possession). Situmta should work for at least that part. A firstborn does not receive a double portion regarding potential possessions such as a loan. There is a machloket whether a heter iska’s pikadon portion is considered actual or potential possessions (consider that in practice different physical money is withdrawn than was deposited) (see Pitchei Teshuva, CM 278:4). The same machloket determines whether situmta works for that portion of a bank deposit.
The gemara (Rosh Hashana 6a) says that one can become obligated in tzedaka orally. However, the deceased’s obligation to the yeshiva will not work because the money was only in the form of a loan due to him (Shulchan Aruch, Yoreh Deah 258:8).
Although the gift to the yeshiva does not work as a kinyan, the Achiezer (III, 34) says that it does work as an obligation of the inheritors to fulfill the deceased’s obligation (mitzva l’kayem divrei hamet). The normal requirement that the deceased give the money to a third party for safekeeping does not apply when the deceased obligated himself as a vow to do a mitzva. Therefore, the yeshiva should receive the funds as instructed in the will.
P'ninat Mishpat (834)
Rabbi Yosef Goldberg
1 - A Man Who Died Without Known Inheritors
2 - A Will To Bequeath Bank Accounts
3 - A Will That Was Not Publicized
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P'ninat Mishpat P'ninat Mishpat: Unsuccessful Transfer of Yeshiva – part V
based on appeal ruling 82138 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: A Contractor’s Leaving the Job in the Middle – part II
based on ruling 84013 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Late and Flawed Apartment
based on ruling 82174 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Problematic Lights?
based on appeal of ruling 84085 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
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Moreshet Shaul Hashem Is your Shadow – part I
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
P'ninat Mishpat A Non-Contractor in Changing Times – part I
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
Moreshet Shaul Our King on Rosh Hashana, Our Father on Yom Kippur.
Based on Aroch Siach, p. 221 (Rav Shaul Yisraeli)
P'ninat Mishpat A Non-Contractor in Changing Times – part II
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
Moreshet Shaul Hashem Is your Shadow – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
Parashat Hashavua Happiness for the Right Reasons
[With painful longing, we share these divrei Torah from our co-Rosh Kollel for close to 40 years, Harav Moshe Ehrenreich zt”l.]
