The Mishna (146b) presents the law of a shekhiv mera – someone who is on his deathbed – who commands that his property be distributed. Although under ordinary circumstances property cannot be transferred without a formal kinyan (a formal act of taking ownership), according to the Mishna a shekhiv mera can do so simply by making a statement. What is the source of this unusual law?
The Gemara on our daf brings a series of amora’im, all of whom claim that the law of matnat shekhiv mera is of biblical origin. Among the sources that are offered to support this claim are two stories in navi –
- When King Ḥizkiyahu was on his deathbed, the navi Yeshayahu told him that he was destined to die and suggested to him that he command his house (see II 20:1).
- When Aḥitophel realized that his support of Avshalom’s rebellion against King David was doomed to failure, he returned home, commanded his house, and committed suicide.
In contrast, Rava quotes Rav Naḥman as teaching that the law of matnat shekhiv mera is of rabbinic origin, shema titraf da’ato alav – lest he become insane.
Several explanations are offered regarding Rav Naḥman’s teaching. One explanation brought by the Rashbam is that he may become insane if he believes that his final wishes will not be fulfilled. Rabbeinu Gershom follows this approach and adds that there are circumstances that will not allow for standard kinyanim to be performed, and we must work to accommodate the needs of the shekhiv mera. Others suggest that we are concerned lest the dying man may lose his sanity and be unable to complete his final requests in a formal way.
The Gemara concludes that even if this law is not biblical, the Sages gave it the strength of biblical law, allowing the dying man’s wishes to be carried out in the face of other claims. Tosafot suggest that even those amora’im who quoted biblical passages in support of the position that matnat shekhiv mera is from the Torah, recognize that it is of rabbinic origin, but because of the strength of the rabbinic enactment they looked for hints in the Torah that could be used to support it.