Gifts.

By: Emil G. Hirsch , Julius H. Greenstone , Solomon Schechter

—Biblical Data:

The interchange of gifts was a custom common among the early Israelites in the ordinary transactions of life as well as at all family celebrations. The subordinate gave presents to his superior "to smooth his face" and to make him gracious (Ps. xlv. 13 [A. V. 12]). Gifts were also given to appease anger (Prov. xxi. 14), to procure admission to the palaces of nobles ( ib. xviii. 16), and to strengthen the bonds of friendship ( ib. xix. 6). One did not come before God (Ex. xxiii. 15), a prophet (I Sam. ix. 7; I Kings xiv. 3; II Kings viii. 9), or a king (I Kings x. 10) with empty hands. Still, the proverb "He that hateth gifts shall live" (Prov. xv. 27) was considered of great weight and was often quoted by later authorities.

Gifts were frequently offered as tribute by a conquered people to its conqueror (Judges iii. 15; II Sam. viii. 2, 6; I Kings v. 1; II Kings xvii. 3; II Chron. xvii. 11, xxvi. 8, xxxii. 23); hence the expression "to bring presents" often means to offer submission (Isa. xviii. 7; Ps. lxviii. 30). Jacob sent presents to Esau in the hope of appeasing his anger (Gen. xxxii. 14). Neglect to send gifts to kings by way of homage on the day of their ascension to the throne was considered an insult (I Sam. x. 27). Kings sent presents to each other at the conclusion of a treaty (I Kings xv. 18). They also frequently distributed gifts, either indiscriminately among their subjects (II Sam. vi. 19), or to favorites (Gen. xli. 42; II Sam. xi. 8), or to officers in recognition of their services (Esth. viii. 2).

Gifts played an important part in marriage ceremonies. Eliezer, the servant of Abraham, gave presents to Rebekah, the bride he chose for his master's son (Gen. xxiv. 22, 53). Solomon on marrying Pharaoh's daughter received some valuable gifts from her father (I Kings ix. 16; comp. Judges i. 14). In addition to the DOWRY ("mohar"), the groom gave presents ("mattan") to his bride-elect (Gen. xxxiv. 12). The custom for guests invited to the wedding to present the newly married couple with some gift extends to the present day. Among the Polish Jews such gifts are called "drosho-geschenk" (presents for the sermon) because they are presented soon after the groom delivers the lecture which he has prepared for the occasion.

In Ex. xxiii. 8 and in Deut. xvi. 19 it is forbidden to offer gifts as bribes ("shoḥad") to administrators of justice. Such gifts "blind the eyes of the wise" and pervert the words of the righteous (Ecclus. [Sirach] xx. 29; comp. Bribery ). It is also forbidden to bring as an offering upon the altar the hire given to a harlot ("etnan"; Deut. xxiii. 19 [A. V. 18]; Isa. xxiii. 17, 18; Ezek. xvi. 31, 34; Hosea ix. 1; Micah i. 7).

In the simple agricultural state it was natural that gifts should consist of grain, fruit, or cattle (Gen. iv. 3, 4; xii. 16; xxxii. 15, 16; xliii. 11; I Sam. xxv. 18); but money (I Sam. ix. 8; II Sam. xviii. 11; Job xlii. 11; comp. Matt. ii. 11), ornaments (Gen. xxiv. 22, 53), robes (Gen. xli. 42, xlv. 22; II Kings v. 22), furniture and utensils (II Sam. xvii. 28), armor (I Kings x. 25), and other costly articles were also given. These presents were usually conveyed either by servants (Gen. xxxii. 17) or on the backs of beasts of burden (II Kings viii. 9).

E. G. H. J. H. G. —In Rabbinical Law:

Property voluntarily conveyed or transferred without compensating consideration. Any person has the right to give away part or all of his possessions, as he may desire. The law governing the acquisition of gifts considers (1) whether the donor is in good health ( ), or (2) whether the donor is in ill health ( ), and varies accordingly.

• 1. The gift of a healthy person is valid only when the following conditions have been complied with: (a) The donor must be an intelligent, responsible being. An idiot can make no gifts. A minor, even though possessed of intelligence, and a deaf-mute can give away only movable property (Giṭ. 59a; Maimonides, "Yad," Mekirah, xxix. 1 et seq.; Caro, Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 225, 1 et seq.). A minor who shows no signs of intelligence, and an idiot can not acquire gifts. But a minor who has reached the age of discrimination, and a deaf-mute may be made recipients of gifts (Giṭ. 65a; Maimonides, "Yad," Zekiyyah, iv. 6, 7; Ḥoshen Mishpaṭ, 243, 14-17).

Validity of Gifts.

• (b) While a sale transacted under duress is valid, since it is presumed that at the acceptance of the money the seller becomes reconciled, in the case of a gift made through compulsion where this argument does not exist, the donor may afterward retract, if he has previously protested before witnesses, or if it is generally known that the gift was made under duress (B. B. 40b, 43b, 47b; Zekiyyah, v. 4; Mekirah, x. 1; Ḥoshen Mishpaṭ, 205, 1-7; 242, 1, 2). A gift, therefore, must never be made in secret, and the deed of gift, drawn up by the witnesses, must contain the phrase "and the donor told us, 'Sit down in the market-places and in the open squares and write a bill of gift openly and publicly'" (B. B. 40b).(c) If there is an evident cause for the donor's action, as when one, for instance, on hearing that his son has died, gives away all his possessions to another, he may retract when the cause is removed by the disproval of the report. If, however, he does not give away all his property, but retains some portion of it, showing thereby that he does not entirely believe the report, he can not retract (B. B. 146b; Zekiyyah, vi. 1; Ḥoshen Mishpaṭ, 246, 1).(d) The object presented must be in existence at the time of the transaction. A gift of the future produce of a tree or field, or of what a slave or cattle may bear, has no validity (B. B. 79b et al.; Mekirah, xxii. 1; Ḥoshen Mishpaṭ, 209, 4). Some authorities are of the opinion that the thing bestowed must be described in detail in the bill of gift, as in the case of a field, where all its boundaries must be given (ib. 241, 4; see Zekiyyah, iii. 5, and Maggid Mishneh ad loc.). The object must be in the possession of the donor at the time of the transaction. An expected inheritance can not be given away during the life of the testator (B. M. 16a; Mekirah, xxii. 5; Ḥoshen Mishpaṭ, 211, 1; 60, 6). Just as the object must be in existence at the time of the transaction, so must the donee be in existence. A gift to another's unborn infant is invalid; one to his own child, provided his wife is pregnant with it at the time the gift is made, is valid (B. B. 141b; Mekirah, xxii. 10; Ḥoshen Mishpaṭ, 210, 1).(e) The bill of gift must be so worded as to enable and empower the donee to take possession of the object during the life of the donor. A gift that can take effect only after the death of the donor is invalid. If, however, it contains the word ("from to-day"), or ("from now"), then the object itself belongs to the donee, but the fruit that the object may yield belongs to the donor during his lifetime (B. B. 136a; Zekiyyah, xii. 13-15; Ḥoshen Mishpaṭ, 257, 6; 258, 1, 2).(f) The gift as well as the sale is valid only when accompanied by one of the forms of acquisition. The testimony of witnesses is not necessary to establish the gift when both donor and donee testify to it. A gift may also be made through a third party, without the knowledge of the donee, but in this case the latter may refuse to accept it (Giṭ. 14a; Zekiyyah, iv. 2; Ḥoshen Mishpaṭ, 243, 1). The language of the donor in making a gift must be either in the past or in the present tense. If the term ("I shall give") be used, even though it be spoken before witnesses, and, according to some authorities, even though some form of acquisition has been complied with, the gift is not valid unless it contains also the word ("from now on"), which makes it immediately effective (Giṭ. 40b; Zekiyyah, iv. 11; Ḥoshen Mishpaṭ, 245, 1-4).
• 2. "The utterance of a person who is near his death is considered as if written down and delivered." "It is a commendable act to gratify the wishes of a dying person." Therefore, the Rabbis ordained that a gift by a person who deems himself in danger of death, either when suffering from a dangerous illness, or before going out on a sea-voyage or on a journey into the desert, or when convicted of a crime which makes him liable to capital punishment, should be valid even without any formality of acquisition, and should take effect soon after his death. The only condition necessary in such a case is that it shall be known to have been done in contemplation of death.Since this is merely an institution of the Rabbis for the purpose of quieting the mind of the ill, the donor is allowed to retract not only when he recovers from his illness, but also during his illness. A later wish or document always annuls a former one (B. B. 151a, 152b; Zekiyyah, ix. 15; Ḥoshen Mishpaṭ, 250, 2, 13-16). If, however, the donor says , the gift has the same validity as that of a person who is well, if the necessary conditions have been fulfilled (B. B. 135b; Zekiyyah, viii. 18; ḤoshenMishpaṭ, 250, 9). In all cases the court can collect, immediately after the donor's death, from the property thus given away money due to the widow by her marriage contract, or to the children of the widow for their sustenance, and all other debts that fall upon the property (B. B. 133a; Zekiyyah, viii. 8, 9; Ḥoshen Mishpaṭ, 252, 1; Shulḥan 'Aruk, Eben ha-'Ezer, 93, 20).

See Alienation and Acquisition ; Assignment ; Bequest ; Derelict ; Inheritance ; Orphans ; Widow .

S. S. J. H. G.