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Thought for the Day: Honest Mistake in Giving/Receiving a Gift

I know, I know... you are super excited about your new understanding of how ownership is transferred.  Still, though, you are thinking that you mostly buy groceries and books without mishap and you don't feel close enough to death's door to worry just now about to protect a loved one from greedy heirs.  You express a wistful sigh... if only there was a more practical example... and one that didn't involve money... and between people who just want to do the right thing but also really want the transaction to be decided their way... if only... if only...

By George; you are in luck!  Shmuel was renovating his home study.  He bought new s'farim, updated some old ones (the wonder of laser printing!), and replaced his bookshelves.  It was beautiful.  Between the new and updated s'farim, he ended up with 10 s'farim that he no longer needed and didn't really fit in with the "feng shui" he was trying to achieve.  He put those s'farim in a box until he decided what to do with them.  Soon after, his friend Reuvein stopped by to say hello and Shmuel showed him around.  When Shmuel mentioned the extraneous s'farim, Reuvein asked if he could have them.  Shmuel is thrilled that his beloved s'farim have a good home.  Reuvein picks up the indicated box and starts to leave; only to return anon as it is now raining.  Reuvein asks Shmuel permission to leave the s'farim with Shmuel; Shmuel happily agrees; Shalom for all of Yisrael.

Reuvein returns the next day (now a bright and sunny) to bring home his new s'farim.  Shmuel, has a funny look on his face.  Shmuel relates that while moving the box out of the way, he noticed it felt heavier than he remembered.  He looked in the box and saw not 10, but 15 s'farim!  Oops; something is wrong, as he really had wanted to keep some of those s'farim.  Reuvein counters, though, that he had already acquired the s'farim; Shmuel had given them to him and he had lifted and pulled the box toward him.  There is no question, therefore, that Reuvein has performed מעשה קנין/an act that demonstrates his ownership of the property.  The only question, then, is what was Shmuel's precise intention?  There are three possibilities, and it depends on how we understand Shmuel's offer to give Reuvein that box of s'farim.

  1. Shmuel meant that box; he only mentioned that number of s'farim as ancillary information so Reuvein would have an idea of how much room he would need.
  2. Shmuel meant 10 s'farim; he only mentioned the box to let Reuvein know where they are.
  3. Shmuel meant the particular box in which he had specifically placed only the 10 s'farim that he meant to give away.

If Shmuel meant (1), then Reuvein has acquired the entire box of s'farim, regardless of contents.  If Shmuel meant (2), then Reuvein has only acquired the 10 of the s'farim in the box.  Case (3) is particularly interesting, because it means that Reuvein picked up the wrong box, and therefore his מעשה קנין is completely ineffective.  It is no different than picking up a blender at the appliance store before you have paid; the action could work, but the seller had no intention to sell.  That makes this case really interesting, because most of our rules about who has the upper hand in a monetary dispute revolve around who is the מוחזק/current possessor of the item in question.  Here, though, precisely who is the מוחזק is also a question.

The poskim tend to treat this like scenario (2) because it represents a compromise between the extreme positions of all or none.  Compromise is always good, but in this case we are more or less forced into that position because of the uncertainties.


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