Shabbat Parashat Beha'alotcha| 5764
A Conditional Will - Condensed from Piskei Din Rabbani’im XVII, pp. 355-359
Case: A request was made to certify a will which transferred money to inheritors both by means of an admission that certain property belongs to them and by means of the will’s benefactor obligating himself in the elements of the will. The issue is that both the admission and the obligation were done on condition that the benefactor could back out until soon before his death. Is such a will valid?
Ruling: Does an admission work if it is conditional? The gemara (Nedarim 27b) relates: “A man handed over his proofs (in the form of a document) to beit din and said, ‘If I do not return within 30 days, my proofs shall be invalid’. He was unable to return within 30 days. Rav Huna said that his proofs were invalid.” Tosafot (ad loc.) explains that the documents became invalid based on the admission that his proofs were false. Several other rishonim concur with this explanation, from which it emerges that one can admit something, even when it is tied to a condition which will be determined in the future. However, the Ran (ad loc.) says that only an unconditional admission can stand on its own. In order for the invalidation of his document to work conditionally, one requires a kinyan sudar.
Further investigation shows that it depends what the condition limits. If there is admission of an obligation and the obligation is conditional, then it is valid even according to the Ran. Only if the obligation is complete but the admission is conditional is there a problem with the admission (based on Shut Ri Migash 97, 135). It is unclear which category the will in question belongs to. We normally rule that a document that can be interpreted in two ways is interpreted in the way that is less advantageous to the one who needs it to extract money (see Shulchan Aruch, Choshen Mishpat 42:9 and Shach ad loc.:20).
The Maharit says that an obligation that the obligator can renege on is not valid, as appears to be in our case. However, the Chemdat Shlomo (EH 62) says that the ability to renege is a problem only if that ability is permanent. Then, there is, in effect, no obligation, as there is never a time that it can be acted on. However, if there is time before his death that the obligation is final, then the obligation is valid and takes effect at that time. The Rashba seems to totally reject the Maharit’s limitation on conditional obligations, as long as the effect of the obligation is retroactive from the time of the performance of the obligation.
One can’t accept the will based on the concept of situmta (that accepted practices of agreement are binding) because this will was done without witnesses, and Israeli law required witnesses. Even though the law has subsequently been changed and a will can be accepted without witnesses, since at the time of the will’s execution it was not the accepted practice, situmta is not applicable.
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