QUESTION: The Gemara cites a Machlokes between two Beraisos regarding what
is done with money that someone sent to his friend, saying to the Shali'ach,
"give this money to my friend," and the intended recipient died before the
money reached him. One Beraisa says that the money is returned to the
sender, and another Beraisa says that it is given to the heirs of the
Rav Aba bar Mamal suggests that both Beraisos agree that saying "Holech"
("bring [this gift to so-and-so]") is *not* like saying "Zechi" ("make an
acquisition [on this gift on behalf of so-and-so]"). The Beraisa that
maintains that the money is given to the heirs of the recipient is referring
to a case where the benefactor was a Shechiv Mera (on his deathbed).
RASHI (DH b'Shechiv Mera) explains that since the words of a Shechiv Mera
are "k'Kesuvin u'k'Mesurin" (as if they are written [in a contract] and
given over), and when a Shechiv Mera says "Holech" it is like he says
"Zechi," therefore the recipient acquired the money before he died (that is,
he acquired it at the time that the money was given to the Shali'ach).
Hence, the money goes to his heirs. Rashi reiterates a number of times in
the Sugya that when a Shechiv Mera says "Holech" it is like "Zechi."
Why does Rashi not explain simply that when a Shechiv Mera says something,
it is as if it is already given over ("k'Kesuvin u'k'Mesurin") without
adding that when he says "Holech" it is like "Zechi?" The law of "Divrei
Shechiv Mera k'Kesuvin u'k'Mesurin Dami" is not related to the principle of
"Holech k'Zechi;" even if the Shechiv Mera says merely, "I want my money to
be given to so-and-so," without saying "Holech" ("bring" or "give" it to
him), then it is "k'Kesuvin u'k'Mesurin" and we must honor his request and
give it to the recipient!
ANSWER: Rashi was bothered by a number of questions. First, if the Kinyan of
the Kinyan is taking place because of the words of the Shechiv Mera, then it
should make no difference whether or not the recipient was alive when the
benefactor (the Shechiv Mera) gave over the money to the Shali'ach! What
matters is that the recipient was alive when the benefactor *said* that he
wants the money to be given to the recipient, since it is his Amirah, his
words, that make the Kinyan! Why, then, does the Gemara say, in the words of
Rav Zevid, that the recipient is Koneh if he was alive "at the time that the
money was given to the Shali'ach?" The Gemara should say that the recipient
is Koneh if he was alive "at the time that the benefactor *said* to give him
the money!" (MAHARSHA)
In addition, there is a rule that although the words of a Shechiv Mera are
considered to be written and given over ("k'Kesuvin u'k'Mesurin"), they only
take effect *after* the death of the Shechiv Mera, and not retroactively
(Bava Basra 137a). If the Kinyan here is working through this special
mechanism of "Divrei Shechiv Mera," then why do we give the money to the
heirs of the recipient when the recipient died before the Shechiv Mera died?
The recipient was not Koneh the money while he was alive, and the money
should go back to the sender (or to the sender's heirs), as TOSFOS asks!
(RASHASH, KARNEI RE'EM, MAHARAM SHIF)
To answer these questions, Rashi explains that since we see that the words
of a Shechiv Mera are "k'Kesuvin u'k'Mesurin" after the Shechiv Mera dies,
for the reason that we are so certain that the Shechiv Mera wanted the money
to be delivered to the recipient, when the Shechiv Mera says "Holech," we
assume that he is adding that word in order to be Makneh it to the recipient
even earlier -- before he dies (unlike a normal "Holech" which is not like
"Zechi"). Therefore, the moment that the Shali'ach receives the gift, he is
Zocheh on behalf of the recipient.
If, as Rashi says, the Shechiv Mera's "Holech" is like "Zechi," then why
does Rashi write later (15a, DH v'Yesh Omrim) that the sender may change his
mind before the Shali'ach delivers the money and *not* give the money to the
intended recipient? We should say that the recipient was already Koneh the
money through the Zechiyah of the Shali'ach! (See also MORDECHAI.)
The answer is that the only reason "Holech" is like "Zechi" in this case is
because the gift of a Shechiv Mera ("Matnas Shechiv Mera") is a stronger
Matanah than a normal Matanah, and therefore we assume that he wants the
recipient to be Koneh through his word "Holech" being like "Zechi." Even
though a Shechiv Mera's words are "k'Kesuvin u'k'Mesurin," nevertheless a
Shechiv Mera can change his mind before he dies. Therefore, the power of
"Holech" is no greater than the normal words of a Shechiv Mera, and we
assume that the Shechiv Mera wants to give the gift retroactively from that
point, on the condition that he does not change his mind before he dies.
(MAHARAM SHIF; see RASHASH.)