The Power of Denial and More Bava Basra 147-149

147

The Power of Denial

Our Gemara on Amud Beis explains the reasoning behind the extra legal power granted to a person on their deathbed to make gifts without requiring physical acts of acquisition (kinyan) to signify the transfer of ownership. In such cases, words alone suffice to effectuate the transfer:

The halakha that the gift of a person on his deathbed does not require an act of acquisition is merely by rabbinic law, instituted lest he see that his will is not being carried out and he lose control of his mind due to his grief, exacerbating his physical state.

Because this individual is in precarious health, the rabbis sought to avoid causing additional anguish or stress. They therefore dispensed with the usual legal formalities and requirements, ensuring the person could have peace of mind, confident that their estate would be allocated according to their wishes.

Rav Zalman Sorotzkin (Aznayim LaTorah, Bamidbar 27:9) makes an ironic observation about human nature in this context. Imagine this person’s state of mind: He is about to meet his Maker, and yet he is consumed with worry over his finances. Could anything be more absurd? Granted, there is a certain altruistic element to this concern—ensuring debts are repaid, children are provided for, and loyal friends are properly remembered. However, there is still something almost ridiculous about fretting over money or possessions when preparing to enter the ultimate reality of divine truth. One might assume this person would trust that God would take care of these matters and he need not dwell on them excessively. At the very least, if he made reasonable efforts and encountered frustration, these concerns should not top his worry list.

Yet, the human capacity for denial seems boundless. Psychologically, this behavior might reflect what is called a displaced feeling. Displacement is an ego defense mechanism wherein the mind unconsciously redirects a painful or overwhelming emotion into a more manageable but related issue. For example, someone whose house burned down might fixate on the loss of a particular family photograph, as the raw pain of the larger catastrophe—the close brush loss of life or the home itself—feels too overwhelming to confront directly. Similarly, this person may be channeling the unbearable reality of their impending death into a more tangible and less existential concern: the organization of their estate.

One of the remarkable qualities of Chazal is their sensitivity to human suffering. They did not dismiss or psychologize a person’s subjective pain, even when it seemed irrational or misplaced. A striking example of this comes from Sanhedrin (75a), where the Gemara describes a man so lovesick that doctors attested he would die if he could not fulfill his desire. The rabbis deliberated extensively over the matter, taking his emotional state seriously and without cynicism. They did not dismiss his suffering by saying, “It’s all in your head” or suggesting he simply study more mussar. They treated his pain as real and valid.

This same empathy is evident in the halakha regarding a dying person’s gifts. Though it may seem absurd to worry about financial matters at such a critical moment, the rabbis recognized the subjective reality of this concern. They sought to ease this person’s mind, even in the face of what might appear as misplaced priorities. For Chazal, alleviating human suffering—even in its most irrational forms—was a paramount value.

148

Brewing Heresy

Our Gemara on Amud Beis continues discussing the status of deathbed gifts. One feature of these gifts is that if the person miraculously recovers, the gifts are reversed, as it is assumed the person most likely did not intend to give them away if he were going to survive. However, strong evidence is required to support this assumption, and thus the rule only applies if the person gives away all of his possessions, leaving nothing behind. Such actions clearly indicate someone who believes he no longer need anything in this world. If the person recovers, we assume he had an implied condition: that the gifts were made only because he thought he was going to die. However, if the person leaves even a small portion of his possessions for himself, it suggests he may have been hedging, intending to give away most of his assets but saving a bare minimum for himself in case of recovery. And that means at the time that he gave the gift, he knew full well and already anticipated that he might recover and gave it anyway.

This principle seems straightforward, but complications arise when a person enumerates various gifts to multiple recipients, which in aggregate include all their possessions. Does this mean only the final gift—the one that left him with no assets—is reversible, as it was the act that definitively left him with nothing? Or should we view all the gifts from that session as part of a single transaction, implying that all of them are reversible if the person recovers?

The Mishna (146b) states that if a person on his deathbed granted all his property to others but reserved any amount of land for himself, the gift remains valid even if he recovers. If no portion was reserved, the gift is invalidated upon recovery, because it would seem that it did not even occur to him that he was going to recover hence he gave it all away, but with a clear implied condition that this is only because he was ill and not expecting to survive.

Rav Yosef bar Minyumi, quoting Rav Naḥman, explains: If a person on their deathbed writes a deed granting all their property to others, the manner in which the property was divided is crucial. If it appears that they intended to divide their entire estate among various recipients, then if they die, all recipients acquire their gifts. If they recover, however, they can retract all the gifts, as per the Mishna’s ruling.

Rav Yosef Engel (Beis HaOtsar, pp. 116–117) explores a Talmudic inquiry in Chullin (39b) regarding whether one can infer intent from subsequent actions. For example, if a person slaughters an animal with the intent of offering it as a sacrifice to an alien god, the meat is forbidden and must be destroyed. But what if the person slaughtered the animal without expressing intent and only later sprinkled its blood while making an idolatrous declaration? Does the later statement reveal that their original intent was idolatrous as well? On the one hand, the proximity and connection between the sprinkling and the slaughter make this a reasonable assumption. On the other hand, since heresy is a severe degradation of one’s status as a Jew—a status established by prior behavior and family—the presumption of innocence (status quo) should apply until proven otherwise.

The Gemara in Chullin connects this issue to a dispute between Rabban Shimon ben Gamliel and the Sages regarding a person who initially remains quiet but later objects to a gift being transferred to them. Rabban Shimon ben Gamliel holds that a person’s ultimate actions reveal their original intent. In this case, the person’s later objection shows they never wanted to accept the gift, even if they initially remained silent.

Rav Engel applies this principle to the case of Molech worship analyzed in Sanhedrin (64b). While one incurs the death penalty for sacrificing a child to Molech, a person who sacrifices all their children is exempt, as it says: “Of your offspring,” implying but not all your offspring.

Why is a person exempt despite committing the seemingly graver sin of sacrificing all their children? One explanation is that capital punishment allows for atonement and repentance, and this sin is so severe that it places the sinner beyond the possibility of atonement (Rabbenu Bechaye, Vayikra 20:2). This parallels the case in Makkos (5b), where false witnesses are not punished if their perjury is discovered only after the court has already executed their victim. Alternatively, I suggest, there is a simpler explanation: sacrificing all one’s children to Molech is fundamentally irrational and does not align with the idolatrous logic of currying favor with a deity. Lehavdil one sacrifices a portion (like Bikkurim or tithes) to sanctify and bless the rest; so even though it is idolatry, we can understand the rationale of sacrificing some children in order to bring blessing upon the others. However, sacrificing all one’s children is an act of derangement rather than deliberate idolatry, and not punishable under that particular penal code.

Tosafos (Sanhedrin ibid.) asks: How is it possible to exempt someone who sacrifices all their children? After all, the person becomes liable for the death penalty after sacrificing the first child, as the others are still alive. Tosafos offers two answers:

1.If the person had only one child, sacrificing them constitutes sacrificing “all.”

2.If all children were sacrificed in a single act, it is treated differently.

Rav Engel questions why Tosafos does not simply invoke the principle that “ultimate actions prove original intent.” If all sequential deathbed bequests are treated as a single act, demonstrating an implied condition of imminent death, why not apply the same reasoning to Molech worship? The final act of sacrificing the last child could reflect the intention behind the first.

Rav Engel anticipates a potential distinction: financial matters versus spiritual matters. Perhaps one should never assume heresy until explicitly proven. However, Rav Engel rejects this, noting that the Gemara in Chullin draws no distinction between financial and spiritual changes of intent when it offers the dispute between Rabban Shimon Ben Gamliel and the sages as a parallel discussion.

Yet, Rav Engel does not explain why this distinction is not made. Would it not be reasonable to assume that a person’s heretical act is a new development rather than an ongoing state? I propose that heresy differs fundamentally from other sins. While most sins are impulsive or situational, heresy represents a culmination of corrupt attitudes and beliefs, long fomenting beneath the surface. This may explain why idolatrous intent is punishable (Kiddushin 40a, Ben Yehoyada), while sinful intent in other areas is not. Unlike other sins, heresy is not an act of passion but the result of a deeply rooted ideological deviation.

149

You Can’t Take It With You

Our Gemara on Amud Beis further discusses the status of a deathbed gift and whether such a gift is automatically retracted if the person miraculously recovers. To assume an implied condition that would reverse an explicitly granted gift, there must be unambiguous evidence that this was the giver’s intention. Therefore, the rule only applies if the person gave away all his possessions, leaving nothing behind. Such actions indicate someone who has no expectation of survival, making it possible to nullify the gift based on a false pretense. But if the person left any material possessions, it suggests he may have anticipated surviving and chose to give the other assets away regardless. (See Rashbam here, De-Mikarkaei.)

Leaving behind any assets, therefore, signals the possibility that the person thought he might survive. Consequently, the prior gifts are valid, as they were given with the knowledge that recovery was a possibility. However, this reasoning only holds if there is no alternative explanation for why the person retained some assets. If a more likely explanation exists, then we would have no grounds to assume the person expected to survive while still intending to make the gifts.

Our Gemara on 148b considers the case of a person on their deathbed who bequeathed their entire estate to charity. If the person recovers, should the gift be reversed? Or is charity different—perhaps the person wanted the donation to go through no matter what? This could be because people generally do not wish to retract a mitzvah, or because the person may believe his recovery was a result of the merit of his donation.

Rav Sruly Bornstein, in his Daf Yomi shiur (prior cycle 148), raises a question: Why does the Gemara focus only on a case where the person donated all his assets to charity? Even if he donated only a portion of his possessions—say, up to 80%—we might still attribute this to his adherence to the prohibition against giving more than one-fifth to charity. As it is taught in Kesuvos (50a):

“In Usha, the Sages instituted that one who dispenses his money to charity should not dispense more than one-fifth…lest he render himself destitute and need the help of others.”

Thus, even in the charity scenario, holding back some possessions should not necessarily indicate the person believed he might survive. If so, why does the Gemara only consider the situation where the entire estate was donated?

In reality, there are exceptions to this one-fifth threshold. Since its purpose is to prevent donors from impoverishing themselves, someone who does not expect to survive does not need to adhere to this limit. Indeed, the Shulchan Aruch (YD, 249:1) rules that a person on his deathbed may give all his possessions to charity (provided this does not bypass his children’s inheritance; see CM 282:1).

However, this explanation only works according to the Shulchan Aruch. Another opinion, cited by Rabbi Akiva Eiger (ibid, quoting the Sheiltos), holds that even on one’s deathbed, no more than one-third of one’s estate should be given to charity.

A possible resolution is that even the Sheiltos might distinguish between routine deathbed situations and cases where the person is struck suddenly and violently ill. An elderly person nearing the end of life due to old age might not feel compelled to take extraordinary measures for a reprieve, as he does not view himself as dying from a curable illness but from the natural progression of age. However, someone on his deathbed due to a sudden illness might feel justified in giving away all their assets to charity, as he seeks any merit they can muster.

We are taught (Rosh Hashanah 16b) that charity can overturn a heavenly decree. The Chofetz Chaim (Ahavas Chessed 20:3) rules that the 20% threshold does not apply when charity is given to save a life. We might then argue, how much more so (kal v’chomer), when one’s own life is at stake and should be allowed to give whatever he feels it would take.

If this reasoning is valid, it would imply that spiritual efforts aimed at invoking supernatural life-saving effects fall under the same halachic rubric as actions permitted in emergencies, even if they would ordinarily be forbidden. This is reminiscent of an unusual halachic ruling permitting someone to send a telegram on Shabbos to request a certain tzaddik to pray for a terminally ill person. This topic will be explored further in our upcoming blog post, Psychology of the Daf, Bava Basra 153.