require permission for possession to be taken. This applies even to an item that has been wrongfully seized. The scholars say: if the owner of property says to the usurper, “I have given you what you wrongfully seized,” the gift becomes binding merely by his statement, because the item is already in the usurper’s possession.

If the donor dies after making the gift but before the recipient takes possession of it, does the gift become binding? It does not become binding, because the recipient did not take possession of it, and the property returns to the heirs, since it was a gift that had not become binding. If he gives something as a gift but does not hand it over, then sells it, the sale is valid, because a gift becomes binding only upon possession. Once it becomes binding through possession, ownership is established from the time of the gift contract.

A comparable case is when I sell you an item: as long as we remain in the session of the contract, each of us has the option to rescind. Once we part, the sale becomes binding; yet the buyer’s ownership of the sold item begins from the time of the contract, not from the time the two parties part. Accordingly, if we say that a gift becomes binding only upon possession, then as long as the recipient has not taken possession, the donor may retract it. Once he takes possession, it becomes the recipient’s property, and his ownership dates from the contract. Thus, ownership is acquired by the contract, but the gift becomes binding only upon possession.

Accordingly, if it increases in value or produces an increase, that increase belongs to the recipient, and the donor must return it to him.

“The donor’s heir takes his place. Whoever releases his debtor from his debt using the wording of release, charity, gift, or the like, his liability is discharged, even if he does not accept. It is permissible to give as a gift every specific item that may be sold, as well as a dog that may lawfully be kept ……”

His statement, “The donor’s heir takes his place,” means with regard to delivering possession or withholding it. Thus, if the donor dies after the offer and acceptance but before handing the gift over, his heirs have the right to withhold delivery, and they also have the right to carry out the gift and hand it over.

It is understood from his statement, “the donor’s heir,” that the recipient’s heir does not take his place. Accordingly, if someone gives an item to another person as a gift, then the recipient dies before taking possession, the gift is invalidated, because it is no longer possible for him to take possession after his death.