Q&A: A Question About the Laws of Conditions
A Question About the Laws of Conditions
Question
Rabbi, the Tosefta in Kiddushin, chapter 3, halakhah 7, brings that Rabbi Shimon ben Elazar says in the name of Rabbi Meir: if the father wants, she is betrothed; if he does not want, she is not betrothed, because the intercourse took place only by virtue of the original betrothal. By contrast, the Talmud in Bava Metzia 94a brings that Abba Halfta of Kefar Hanania said in the name of Rabbi Meir: a condition stated before the act is a valid condition; an act stated before the condition is not a valid condition. In your opinion, is there a contradiction here between the sources in Rabbi Meir’s view? Seemingly, according to the Tosefta this is a retroactive condition, since the intercourse does not create the acquisition but rather creates an unclear status, and only the father’s determination gives the act binding legal effect. Thank you.
Answer
See Maimonides, Laws of Marriage 6:17, who writes:
All who say “from now” need not repeat the condition, nor place the condition before the act; rather, even if they placed the act before the condition, the condition is valid. But one must stipulate something that is possible to fulfill; if one stipulated something impossible to fulfill, this is like empty talk and there is no condition there. And anyone who says “on condition that” is as though he said “from now,” and does not need to repeat the condition or place it before the act.
So we see that with a “from now” condition there is no need for the formal rules of conditions, and in particular not for the rule that the condition must precede the act. And as is well known (and as he writes here), a condition phrased as “on condition that” is a “from now” condition.
And therefore there is no difficulty at all. The Tosefta is dealing with a condition of “on condition that” (this is explicit there), whereas in the Bava Metzia passage it is a condition of “if” (see Maimonides, Laws of Marriage 6:2).