Lesson 44: Matot-Masei

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• Haluyot as entities
• Contradictions between attributes and contradictions between entities
• A floating halut

Summary

In this week’s essay we deal with the laws of conditions, and from there move on to discuss the nature of haluyot (halakhic legal effects or statuses). According to halakha (Jewish law), one may stipulate a condition when applying a halut. This is learned from the episode of the sons of Gad and Reuben. This is valid only if the condition is stated in a form recognized by halakha, that is, if it satisfies the formal rules governing conditions. Those requirements, too, are learned from the same biblical passage.

Halakha distinguishes between two kinds of conditions: an “if” condition, in which the halut begins only when the condition is fulfilled, and a “from now” condition, in which the halut begins from the moment the act is performed, though it remains contingent on fulfillment of the condition. According to Maimonides, the formal rules learned from the episode of the sons of Gad and Reuben are relevant only to an “if” condition, and not to a “from now” condition.

When a person stipulates in a way that does not conform to the formal rules of conditions, the act takes effect regardless of the condition: the condition is void, but the act remains valid. This ruling is understandable if we assume that an “if” condition creates a mechanism that uproots the halut after it has already been created. The reason is that the condition is created by speech, and speech cannot uproot an act. Only if that speech is performed in the special form derived from the laws of conditions does it acquire the force of an act, and only then can it uproot acts, or nullify acts that generated halakhic consequences.

We will argue that the verbal declaration of the condition creates a legal-halakhic mechanism whose function is to uproot the halut. One possibility is that until the condition is fulfilled, the halut does not yet arise at all. Another possibility is that the halut does arise, but it “floats” above the object and does not yet attach to it until the condition is fulfilled.

In the final chapter we suggest an interesting implication of the claim that halut is an entity and not merely a halakhic attribute. First, following Rabbi Shimon Shkop, we argue that a “from now” condition does not merely reveal retroactively a state that already existed from the time of the act; rather, it participates in producing the halut itself. It follows that the status of a woman divorced conditionally, during the interval between the act and the fulfillment or non-fulfillment of the condition, is an intermediate one, in which two contradictory haluyot rest upon her. Only when the condition is fulfilled does one of those two possibilities become fixed as the one that will continue to accompany her.

To explain how it is possible for two contradictory haluyot to rest upon one woman at the same time, we argue that saying that a woman bears “the halut of marriage” is fundamentally different from saying that she is married. The former is a metaphysical claim; the latter is the halakhic implication of the former. As a result, it is possible for the same woman at one and the same time to bear two contradictory haluyot, such as marriage and divorce, even though it is certainly impossible for two contradictory laws to bind her simultaneously. We show how the relevant laws for her in such a state are to be derived.

On Conditions and on Halut

A Look at Halakhic Metaphysics

Introduction

This week’s essay will deal with the laws of conditions. Conditions are part of every legal system, but in halakha there is an elaborate network of requirements that the stipulating party must satisfy if the condition is to be valid. Almost all of them are learned from the biblical condition made with the sons of Gad and the sons of Reuben. As we shall see, a condition usually accompanies the application of a halut, and therefore some of the laws of conditions reflect the halakhic understanding of the concept of halut. That understanding is the goal of the inquiry we will undertake here.

A. The Condition of the Sons of Gad and the General Laws of Conditions

Outline of the chapter

Throughout Numbers 32, the Torah describes the negotiations of the sons of Reuben, Gad, and half the tribe of Manasseh with Moses. They ask him to give them an inheritance in the Transjordan, east of the Jordan, because the land there is suitable for their abundant livestock. Moses becomes angry because he suspects that they are trying to evade the war for the conquest of the Land of Israel.

Those making the request calm Moses and promise him the following, in verses 16-19:

They came near to him and said: “We will build here sheepfolds for our livestock and towns for our children. But we ourselves will go armed in the vanguard before the children of Israel until we have brought them to their place, while our children remain in the fortified towns because of the inhabitants of the land. We will not return to our homes until each of the children of Israel has inherited his inheritance. For we shall not inherit with them on the other side of the Jordan and beyond, for our inheritance has come to us on this eastern side of the Jordan.”

At that point Moses is convinced, and he stipulates a condition with them, in verses 20-24:

Moses said to them: “If you do this thing, if you arm yourselves before the Lord for battle, and every armed man among you crosses the Jordan before the Lord until He has driven out His enemies from before Him, and the land is subdued before the Lord, then afterward you may return, and you shall be clear before the Lord and before Israel, and this land shall be yours as a holding before the Lord. But if you do not do so, then you will have sinned against the Lord, and know that your sin will find you out. Build cities for your children and sheepfolds for your flocks, and do what has gone out from your mouths.”

There is a duplication here. Moses does not suffice with stating that these territories will be given to them only if they fight alongside the rest of the nation for the conquest of the Land of Israel. He spells out both what will happen if they fulfill the condition, “if you do this,” and what will happen if they do not, “but if you do not do so.” From here the Sages derive the rule that a condition is not valid unless it is doubled.

Those making the request accept this stipulation, in verses 25-27:

The sons of Gad and the sons of Reuben said to Moses: “Your servants will do as my lord commands. Our children, our wives, our livestock, and all our animals shall remain there in the towns of Gilead, while your servants will cross over, every armed man of the army, before the Lord for battle, as my lord has spoken.”

This formulation is abbreviated; it contains no doubling.

Moses then turns to the Israelites and informs them of the agreement that has been reached for the future, in verses 28-30:

Moses gave command concerning them to Eleazar the priest, to Joshua son of Nun, and to the heads of the ancestral houses of the children of Israel. Moses said to them: “If the sons of Gad and the sons of Reuben cross the Jordan with you, every armed man for battle before the Lord, and the land is subdued before you, then you shall give them the land of Gilead as a holding. But if they do not cross over armed with you, then they shall obtain holdings among you in the land of Canaan.”

Here Moses does not make do with an abbreviated formula, because this is the stipulation itself being stated. Earlier there was only a preliminary agreement determining the content of the condition, but now the stipulation is stated explicitly, takes effect in practice, and becomes binding from this moment onward.

After that, those making the request also undertake the commitment:

The sons of Gad and the sons of Reuben answered: “What the Lord has spoken to your servants, so shall we do. We will cross over armed before the Lord into the land of Canaan, and with us shall be the holding of our inheritance across the Jordan.”

The wording here is not doubled, but it is likely that this is only an abbreviated description and not a full quotation of what they said. It is also possible that once Moses had already stipulated with them in doubled language, it was enough for them to assent in any wording that clearly conveyed agreement.

Immediately afterward, Moses gives them their inheritance, and they at once build their cities there, in verses 33-42:

Moses gave to them—to the sons of Gad, to the sons of Reuben, and to half the tribe of Manasseh son of Joseph—the kingdom of Sihon king of the Amorites and the kingdom of Og king of Bashan, the land with its cities within its borders, the cities of the land round about. The sons of Gad built Dibon, Atarot, and Aroer; Atrot-Shofan, Jazer, and Jogbehah; Beth-Nimrah and Beth-Haran, fortified cities and sheepfolds. The sons of Reuben built Heshbon, Elealeh, and Kiriathaim; Nebo and Baal-Meon, whose names were changed, and Sibmah; and they gave names to the cities that they built. The sons of Machir son of Manasseh went to Gilead, captured it, and dispossessed the Amorites who were there. Moses gave Gilead to Machir son of Manasseh, and he settled in it. Jair son of Manasseh went and captured their villages and called them Havvot-Jair. Nobah went and captured Kenath and its dependencies and called it Nobah after his own name.

The concept of a condition

The Sages expanded the use of the procedure described in these verses and determined that the procedure of stipulation can be applied in many halakhic contexts. Still, not every context allows stipulation. Usually a condition accompanies the application of a halut, such as kiddushin (halakhic betrothal), ownership, divorce, designating produce as terumah (priestly dues), and the like. The will of the stipulating party is that the halut should take effect only if some condition is fulfilled, and if it is not fulfilled, the halut should not take effect. The Sages call these two parts of the arrangement “the condition”—that is, the thing that must be fulfilled—and “the act”—that is, the halut.

The formal rules governing conditions

Like the requirement of doubling the condition, almost all the formal rules of conditions—and according to some views literally all of them—are learned from the condition of the sons of Gad and the sons of Reuben. At the beginning of chapter 6 of Mishneh Torah, Laws of Marriage, Maimonides defines the four requirements of a valid condition:

One who betroths a woman on condition: if the condition is fulfilled, she is betrothed, and if it is not fulfilled, she is not betrothed—whether the condition came from the man or from the woman. Every condition in the world, whether in kiddushin, in divorce, in buying and selling, or in other monetary matters, requires four elements.

These are the four elements of every condition: the condition must be doubled; its affirmative clause must precede its negative clause; the condition must precede the act; and the condition must be something possible to fulfill. If even one of these is lacking, the condition is void, as though there were no condition at all. The woman will be betrothed or divorced, and the sale or gift will take effect immediately, as though he had made no condition at all, since one of the four elements was lacking.

The condition must be doubled, as we have seen. Its affirmative clause must come before its negative clause, meaning that “if you do this” precedes “but if you do not do so.” The stipulation must precede the act itself: “If you go out to battle, then you will receive the inheritance,” not “You will receive the inheritance if you go out to battle.” And the condition must be something possible to fulfill; one may not stipulate, for example, on condition that the other party travel to the moon.

There are two additional requirements for a valid condition that Maimonides does not list here: the condition may not contradict what is written in the Torah—for example, conditioning a sale on the law of overreaching not applying, or betrothing a woman on condition that she be permitted to other men—and the act must be one that can be carried out through an agent, for whatever cannot be done through an agent cannot be conditioned when one performs it. Presumably this is because these are not requirements of wording, but general halakhic requirements.¹

Two types of condition

Notice that the building of the cities, described at the end of the chapter above, took place long before the entry into the land, that is, before the condition was fulfilled. How could they build those cities if the condition had not yet been fulfilled? Here we see another halakhic principle: a condition can work backward in time. If Shimon fulfills the condition, he acquires the property from the moment of the stipulation, and if he does not fulfill it, that acquisition is void retroactively.

The Sages tie the mode of operation to the wording of the condition. When the stipulating party uses the language of “if“—that is, “if you do such-and-such, I will give this to you”—the halut is valid only from the moment the condition is fulfilled, not retroactively. But if he adds that the halut should take effect “from now,” or if he uses the formulation “on condition that“—which is treated like “from now“—then the transfer or halut is valid retroactively. Maimonides writes as follows in Laws of Marriage 6:15-16:

One who betroths on condition: when the condition is fulfilled, she is betrothed from the time the condition is fulfilled, not from the time she was betrothed. How so? If he says to a woman, “If I give you two hundred zuz this year, you are betrothed to me with this dinar, and if I do not give it to you, you are not betrothed,” and he gave the dinar into her hand in Nisan and gave her the two hundred zuz in Elul, she is betrothed from Elul. Therefore, if a second man betrothed her before the first man’s condition was fulfilled, she is betrothed to the second. The same law applies in divorce and monetary matters: only when the condition is fulfilled does the bill of divorce become effective, or the sale or gift take effect.

When is this so? When there was a condition and he did not say “from now.” But if he said to her, “You are betrothed to me from now with this dinar if I give you two hundred zuz,” and later he gave her the two hundred zuz, then she is betrothed retroactively from the time of the kiddushin, even though the condition was fulfilled only much later. Therefore, if another man betrothed her before the condition was fulfilled, she is not betrothed to the second. The same law applies in divorce and monetary matters.

Qualifications

There are two main qualifications to the laws of conditions:

1. A few views maintain that all the laws of conditions were stated only with respect to personal-status law and not with respect to monetary law. Maimonides and most halakhic decisors reject those views, since the main laws of conditions are learned from the condition of the sons of Gad and the sons of Reuben, which was itself a condition in a monetary matter. Thus Maimonides writes there, in 6:14:

Some later Geonim have said that a person must double his condition only in divorce and kiddushin, but in monetary law he need not double it. It is not fitting to rely on this, for the doubling of the condition, together with the other four elements, was learned by the Sages from the condition of the sons of Gad and the sons of Reuben: “If the sons of Gad cross over…” and “If they do not cross over…” This condition was neither in divorce nor in kiddushin. So ruled the great early Geonim, and so it is proper to do.

2. Maimonides rules that the laws of conditions were stated only for a condition of “if” and not for a condition of “on condition that” or “from now.” Thus he writes there, in 6:17-18:

Whoever says “from now” need not double his condition, nor must the condition precede the act; even if the act preceded the condition, the condition stands. But he must stipulate something that can be fulfilled; if he stipulates something impossible to fulfill, this is mere empty talk and there is no condition. And whoever says “on condition that” is like one who says “from now,” and need not double the condition or place it before the act.

How so? If one says to a woman, “You are betrothed to me on condition that you give me two hundred zuz”; or, “This is your bill of divorce on condition that you give me two hundred zuz”; or, “This courtyard is given to you as a gift on condition that you give me two hundred zuz”—his condition stands, and the woman is betrothed or divorced, and the other acquires the courtyard, and they must give the two hundred zuz. If they do not give it, the woman is not betrothed, she is not divorced, and the other does not acquire the courtyard. This is so even though he did not double the condition, and even though he placed the act before the condition and put the kiddushin money or the bill of divorce in her hand, or the other took possession of the courtyard, and only afterward fulfilled the condition. For when the condition is fulfilled, the other acquires the courtyard and the woman is betrothed or divorced from the very first moment when the act was done, as though there had been no condition at all.

What happens when someone stipulates in a way that does not conform to the formal rules of conditions?

With respect to an “if” condition, for which one must stipulate in accordance with the formal rules of conditions, we may ask what the law is when someone stipulates in some other way. For example, what if he places the negative clause before the affirmative, or the act before the condition, or omits the doubling, and so forth?

The Talmud states in several places that in such a case the condition is void, but the act remains valid. For example, one who stipulates against what is written in the Torah has made a void condition. Regarding stipulation in monetary law, the Babylonian Talmud, Ketubot 56a, records a tannaitic dispute over whether the condition stands or falls:

We have heard that Rabbi Judah says: In monetary matters, a condition stands. For it was taught: One who says to a woman, “Be betrothed to me on condition that I owe you no obligation of food, clothing, and conjugal rights”—she is betrothed, but his condition is void; this is the opinion of Rabbi Meir. Rabbi Judah says: In monetary matters, his condition stands.

The meaning is that if a person stipulates against what is written in the Torah, or places the negative before the affirmative, and so forth, the act stands in any event and there is no effective stipulation accompanying it. For example, if a man divorces a woman on condition that she give him two hundred zuz, but phrases it this way: “You are hereby divorced and permitted to any man if you give me two hundred zuz,” then he has placed the act before the condition, and the condition is therefore void. In that case the act—that is, the divorce—is valid, and does not depend on whether she gives or does not give the money. That is the meaning of the formula, “the condition is void, but the act remains valid.”

This is a very difficult picture to understand, and examining it in the next chapter will open a window for us into the nature of conditions and of haluyot in general.

B. On Haluyot and Conditions

Introduction

In the previous chapter we briefly surveyed the issue of conditions and their sources in our Torah portion. In this chapter we will deal with the implications of the picture described above. We will see the significance of the sources brought for the formal rules of conditions, and what those sources add. In light of that, we will examine the meaning of conditions and the way they operate, and from there we will arrive at the nature of halut itself.

The basic difficulty

At the end of the previous chapter we noted that if a person stipulates in a way that does not satisfy all the formal rules of conditions, the condition is void and the act remains valid.² This law is problematic, as Tosafot observe on the sugya in Babylonian Talmud, Ketubot 56a, s.v. “She is betrothed”:

“She is betrothed and his condition is void”—this must be speaking where he doubled his condition, saying to her: “If you have no claim against me for food, clothing, and conjugal rights, you are betrothed; and if not, you are not betrothed.” For later it says that Rabbi Meir’s reason that the condition is void is that he stipulated against what is written in the Torah. But if he had not doubled the condition, it would already follow that according to Rabbi Meir the condition is void because of he requires a doubled condition, as stated in the chapter “Ha-Omer” in Babylonian Talmud, Kiddushin 61a. Yet this is puzzling: if so, why is she betrothed? He explicitly stipulated that if she does have claims against him for food, clothing, and conjugal rights, she is not betrothed.

Tosafot assume that the case must involve a doubled condition; otherwise Rabbi Meir would invalidate it regardless of the fact that it contradicts what is written in the Torah. Tosafot then ask: how can it be that when a man makes a doubled condition—namely, he betroths a woman if she waives food, clothing, and conjugal rights, and if she does not waive them, he does not want to betroth her—because of defective wording she nevertheless becomes betrothed to him even though he still owes her those obligations? In a case where he owes her food, clothing, and conjugal rights, he plainly did not intend to betroth her. Do we force a man to betroth a woman against his will? Kiddushin that a person does not want cannot take effect at all.

Rabbeinu Tam’s view is that someone who does not stipulate according to the formal rules of conditions does not seriously intend the stipulation. His intention to condition the kiddushin on her waiver of food, clothing, and conjugal rights was not serious, and in practice he did intend to marry her in any event. This explains the law well, but it is difficult to accept on its face. When someone stipulates and merely places the affirmative before the negative, or the like, it is hard to say that he was not serious. On the other hand, if one does not accept Rabbeinu Tam’s view, Tosafot’s difficulty returns in full force.

Rabbi Yitzhak’s approach

Tosafot here cite Rabbi Yitzhak’s answer to this difficulty:

Rabbi Yitzhak says that were it not for our learning from the condition of the sons of Gad and the sons of Reuben, we would have thought that no condition can nullify the act, and even if it is not fulfilled in the end, the act remains valid. But now that we learn from there that a condition is effective to nullify the act, we say that this is only where one is not stipulating against what is written in the Torah, similar to the sons of Gad and the sons of Reuben, who did not stipulate against what is written in the Torah.

Later authorities explain Rabbi Yitzhak to require a particular understanding of how a condition operates. First, he claims that even the disqualification of a condition that runs contrary to the will of the Torah is learned from the condition of the sons of Gad and the sons of Reuben, and not from reason alone or from some other source. We must therefore ask: what exactly did the source that teaches the formal rules of conditions add? What would have been the case without such a source? Put differently: if there were no source teaching that a condition can operate, it would still seem obvious that it should operate, since otherwise we would have to say that the condition is void and the act remains valid, and the result would be that a person brought about a halut he did not want. If so, why was a source needed at all to teach that a condition can operate? Only after clarifying that question can we ask two further ones: first, why are the formal rules of conditions required for a condition to operate? Second, what happens when those rules are not met?

Rabbi Yitzhak’s answer is that, without a source from the Torah, it would indeed have been impossible to stipulate conditions with respect to haluyot. The reason is that the condition is speech and the application of the halut is an act, and mere speech cannot nullify an act.

The simple understanding of a condition is that a person who makes an act conditional thereby applies a qualified or reserved halut. If the condition is fulfilled, the halut takes effect; if not, it does not. According to this understanding, the condition does not uproot an act that has taken effect, but from the outset prevents the halut from taking effect.

Rabbi Yitzhak, however, understands conditions differently. In his view, a person who stipulates a condition performs the act in any case. Apparently he holds that one cannot perform an act with respect to only one side of an alternative. But that person also wants the application of the halut to be accompanied by a legal mechanism able to uproot the halut that has been created, should the condition not be fulfilled. If the woman does not give him two hundred zuz, the kiddushin or divorce will be uprooted. Such a mechanism is impossible under ordinary halakhic rules, because speech cannot nullify an act. Speech cannot uproot an act.

At this point the passage concerning the sons of Gad and the sons of Reuben teaches a novelty: it is possible to stipulate a condition, meaning that there exists a legal-halakhic mechanism capable of uprooting existing haluyot even though it is created only by speech.

We can now understand the answer to the first of the two questions. Why are the formal rules of conditions needed in order for the condition to operate? Because ordinary speech cannot uproot the act, the Torah defines a special kind of speech which, if performed properly, has the power to uproot an act, that is, to remove an existing halut.

This also explains the answer to the second question. What happens when a person stipulated in some different form? The answer is that in such a case the condition is merely ordinary speech, and no special power was ever conferred upon it to uproot an existing act. Therefore the act remains valid, and the condition fails to uproot it. That is Rabbi Yitzhak’s explanation of why, when the formal rules are not satisfied, the act nevertheless remains valid.

It is true that on this account the halut remains in place against the will of the person who applied it. The reason is that anyone who attaches a condition to a halut must bring about that halut in any event, and only afterward uproot it through the mechanism of the condition. Therefore the person who stipulated the condition applied the halut in any case—even on the possibility that the woman would not waive food, clothing, and conjugal rights—and this is why he now finds himself “stuck” with that halut even though he does not want it.

A note: what happens in a “from now” condition?

Above we saw that, at least according to Maimonides, the formal rules of conditions are required only for an “if” condition and not for a “from now” condition. In light of our explanation of Rabbi Yitzhak, the distinction between the two cases requires clarification.

The simple understanding is that in a “from now” condition the halut takes effect immediately—hence the sons of Gad and the sons of Reuben inherited their territories at once—and non-fulfillment of the condition retroactively nullifies the existing halut. By contrast, in an “if” condition the picture seems the reverse: at first the halut does not exist at all, and fulfillment of the condition is what applies it from that moment onward.

We should now ask: in which case, according to Rabbi Yitzhak, would one more likely require the formal rules of conditions? Seemingly specifically in a “from now” condition, because there non-fulfillment of the condition must nullify an already existing halut. In an “if” condition, by contrast, there is no need to nullify an existing halut at all; one need only prevent it from taking effect in the first place.

Returning to “if” and “from now“

Perhaps we can now better understand the relation between the two kinds of condition in Maimonides’ view. How can an “if” condition apply the halut only from the time the condition is fulfilled? The act that applies the halut was performed and completed long before that. For example, suppose a man betroths a woman on day one with an “if” condition that she give him two hundred zuz by day four. She gives it and becomes betrothed from day four. But the act of kiddushin was done on day one and was already over. How then do kiddushin suddenly arise out of nothing on day four? This is what the medieval and later authorities call “the acquisition has expired.”³

We are therefore forced to conclude that the halut is created immediately when the act is performed, except that it does not yet rest upon the object or person. It, as it were, hovers above it,⁴ and its actual application depends on the fulfillment of the condition. When the person fulfills the condition, the halut “lands” on the object or person, and the act is thereby completed.

What does non-fulfillment of the condition do to the halut in such a picture? It not only prevents the halut from “landing,” but cancels the halut itself from the world. Afterward it no longer exists at all, even in a state of “hovering.” If so, there is indeed an element here of speech nullifying an act, because the speech cancels an existing halut, and therefore in an “if” condition the formal rules of conditions are required. Only when they are observed does the speech receive the force of an act, and only then is it capable of canceling an existing reality.

By contrast, in a “from now” condition, non-fulfillment prevents the very creation of the halut, and therefore the formal rules of conditions are not required. Here the speech does not annihilate an existing reality, but prevents its formation. It is true that the condition works retroactively in time, but beyond that novelty there is no cancellation of an already existing reality.⁵

Mere speech cannot nullify an act

The principle cited above categorically states that speech cannot nullify an act.⁶ This principle can be interpreted in at least two ways, and those two interpretations lead to two different understandings of its application to conditions.

In Responsa of Rabbi Akiva Eger, no. 48, he cites in the name of Shitah Mekubetzet on Babylonian Talmud, Nazir 11a, that in the case of a Nazirite commitment made conditionally there is no need for the formal rules of conditions. The reason is that naziriteship is undertaken through speech, and for the uprooting of speech, ordinary speech is sufficient. The formal rules of conditions are required only when we want speech to uproot an act. On its face, this conclusion seems to follow naturally from the explanation of Rabbi Yitzhak given above.

Rabbi Elchanan Wasserman, in Kovetz Shiurim part 1 on Ketubot, sec. 168 and onward, raises a powerful objection to Rabbi Akiva Eger and Shitah Mekubetzet. Once the naziriteship has taken effect, it is no longer considered speech but an act. One can uproot the verbal commitment as speech only so long as it has not yet produced its effect. But once it has applied the halut of naziriteship, we are faced with an actual existing reality. To uproot such a reality, mere speech should apparently not suffice. If so, even with naziriteship, for a condition to be effective in uprooting naziriteship we should have to require that it be formulated according to the formal rules of conditions.

Rabbi Elchanan Wasserman’s reasoning is that when we say “speech cannot nullify an act,” we mean the thing that was produced, not the mode of production. The “act” in this context is the halut of the vow. Speech cannot nullify a result that already exists in reality. It is irrelevant whether that result was produced through speech or through action. Rabbi Akiva Eger and Shitah Mekubetzet, by contrast, apparently hold that the term “act” in this context refers to the way the result came into being, not to the character of the result itself. If the result was produced through speech, then another speech can come and uproot it even when it already exists.⁷

Rabbi Elchanan Wasserman’s understanding seems more intuitive. The rule “speech cannot nullify an act” means that one cannot erase an existing reality by mere speech. Some would explain this by saying that speech lacks sufficiently settled intention to alter an actual state of affairs; others would explain it in metaphysical terms: the halut already exists in the world, and speech cannot alter an existing reality.⁸

But the view of Shitah Mekubetzet requires explanation. Why should it matter whether this reality was created through action or through speech? Why should the mode of creation matter once the reality created already exists in the world? It appears that Shitah Mekubetzet holds that the nullification of a halut does not act directly on the existing halut at all, but retroactively neutralizes its coming into being. In other words, existing haluyot cannot be canceled—not by speech and not by action. At most one can retroactively cancel the thing that created them, and then they fall away automatically. Therefore the way the cancellation works depends on the mechanism that created the halut being canceled—speech or action.

According to Rabbi Elchanan Wasserman, the mechanism of condition defined by Rabbi Yitzhak acts directly on the existing halut. According to Rabbi Akiva Eger and Shitah Mekubetzet, it acts on the mechanism that created that halut—for example, it cancels the act of kiddushin and not the result, namely the woman’s halut of kiddushin. The resulting picture according to Shitah Mekubetzet is that when a person applies a halut to an object or a person, the halut rests on that object or person together with the mechanism of formation that continuously operates and keeps it in force. The moment we neutralize the generating mechanism, the halut automatically disappears as well.

Another explanation

In light of all this, we may be able to understand Maimonides’ view in another way—and perhaps this is really the same explanation as in the previous subsection, only from a different angle.

In an “if” condition, the halut sits on the object or the person, but its existence continually depends on the mechanism that applied it. When we want non-fulfillment of the condition to cancel the halut, it must damage the mechanism that created the halut, and then the halut will disappear on its own. But if that mechanism is an act—the act of kiddushin, for example—then to cancel it we need speech that has the force of an act. For this reason the formal rules of conditions are required here. Only after the condition is fulfilled does the halut rest on the object or person independently of the mechanism that created it. At that point it is fully in force, and no speech can cancel it.

By contrast, in a “from now” condition, the explanation is similar to what we suggested above: the speech merely prevents the formation of the halut, and therefore it does not need to damage the mechanism that creates it. In such a case, ordinary speech is enough, and the formal rules of conditions are not required.

C. Halut as Entity

Introduction

In the previous chapters we treated halut as a kind of entity,⁹ and therefore its existence counts as an “act”¹⁰—that is, as an existing reality whose cancellation requires an act and for which mere speech does not suffice. In this chapter we will point to another interesting implication of the picture that presents halut as a kind of entity.

The conventional view of a “from now” condition

Rabbi Shimon Shkop deals extensively in his writings with conditions and their meaning. At the end of his novellae to tractate Gittin he even devotes a special pamphlet to the topic, Kuntres Ha-Tena’im. The pamphlet opens with several examples from the rulings of early authorities concerning the nature of a condition, and those rulings seem highly puzzling under the conventional understanding of a “from now” condition.

According to the conventional view, the condition is nothing more than a retroactive clarification. That is, if a man betroths a woman on condition that she give him one hundred zuz within a week, the act is valid and the woman is already betrothed; it is only that the information is not yet in our possession. When she gives the required sum, it becomes clear retroactively that she had been betrothed from the outset. If she does not give the sum, it becomes clear that she had not been betrothed from the outset. According to this view, the condition does not do anything to the act; it merely clarifies whether the act did or did not take effect. If the condition is not fulfilled, then the performer of the act intended that it not take effect, and so it did not take effect. If the condition is fulfilled, then he intended that it should take effect, and so it did take effect. Fulfillment or non-fulfillment of the condition does not itself do anything to the halut.

This view of a “from now” condition is the more intuitive one, because on it there is no need to posit causality that works backward in time. The cause does not appear later than the effect, because fulfillment of the condition is not a cause of the halut but only the disclosure of an existing state. Only the act itself is the cause of the halut.

Rabbi Shimon Shkop’s definition of a “from now” condition

Rabbi Shimon Shkop argues that this view cannot be reconciled with a number of rulings of the early authorities. Let us cite a few of them:

1. The view of the Savoraic sages concerning a man who gave his wife a bill of divorce on condition that she never drink wine all her life: if she drank after the husband’s death, the bill of divorce is not void. See the lengthy discussion in Responsa of Rabbi Akiva Eger, no. 126. On the face of it, her drinking merely reveals that she was not divorced from the outset, so why should the fact that the husband died make any difference? It would seem, rather, that drinking wine does something to the halut of divorce; and after the husband’s death, when the divorce can no longer be effected, the drinking is no longer relevant.¹¹

2. Maimonides rules in Laws of Divorce 9:11 that if a man conditioned the bill of divorce on his not coming for twelve months, and he died within those twelve months, she is not divorced until the entire stipulated period has passed. Maggid Mishneh explains there that according to Maimonides the condition requires actual fulfillment. But if his coming or not coming merely discloses missing information, then as soon as he dies we already know that he will not come, and it should already be clear that she is divorced. Why, then, must we wait until all twelve months have elapsed? We are forced to conclude that actual fulfillment of the condition does something with respect to the halut, and therefore actual fulfillment is required; it is not enough that we know with certainty that the condition will in fact be fulfilled.

3. The author of Sefer Ha-Ittur rules, as cited by Rashba on Gittin 77a, that if a man makes a “from now” condition in a bill of divorce, he can retract the divorce before the condition is fulfilled. But if the halut already exists and the condition only reveals this retroactively, then this resembles a person retracting after he has already completed the act—for example, after he has already betrothed or divorced. That certainly cannot help. Why, then, can he retract before the condition is fulfilled? We are forced to conclude that there is still something actively producing the halut, something not yet completed. The condition is not merely clarificatory; it is part of the active causes that apply the halut.

4. In Responsum Rashba 607, as cited in Beit Shmuel Even Ha-Ezer 40 and Mishneh LaMelekh on Laws of Divorce 6:3, it is ruled that one who betroths on a “from now” condition cannot divorce the woman before the condition is fulfilled. Here too we see that actual fulfillment of the condition is required for the halut to take effect. Before the condition is fulfilled, the woman is not betrothed, even in a “from now” condition.

Rabbi Shimon Shkop’s conclusion is that a “from now” condition does not merely reveal retroactively a state that existed from the moment of the act; rather, it produces the halut itself. As long as the condition has not been fulfilled, the halut has not taken effect at all, unlike the conventional view in which it exists but is merely unknown to us. Fulfillment of the condition produces the halut together with the act itself—the delivery of the bill of divorce or the kiddushin money. Therefore, in the period before fulfillment of the condition, the halut does not exist even in a hidden or latent way. It is created only at the moment the condition is fulfilled, but it takes effect retroactively. As stated, this is causality that works backward in time.¹²

Rabbi Shimon Shkop brings another source in support of his position:

• The Rosh rules in his responsa, sections 45 and 47, and this is codified in Tur and Shulhan Arukh, Even Ha-Ezer 143, that before the condition has been fulfilled, the condition itself can also be canceled, because speech can cancel speech.

If the condition were only clarificatory, what sense would there be in canceling it? On its face, nothing has been created that requires cancellation, and therefore it should not be possible to cancel it. The Rosh’s words imply that the stipulation does something. It creates a mechanism that allows a future cause to work backward in time and uproot the halut. That is exactly Rabbi Shimon Shkop’s proposal above.¹³

The status of the halut in the period before the condition is fulfilled

According to the view that sees the condition as mere clarification, the status of the halut is entirely clear. Until the condition is fulfilled or not fulfilled, the status of the halut is unknown to us, and it is revealed when the condition is fulfilled or canceled. But no change takes place in the normative sphere itself. The only change is in our knowledge of it. According to that approach, then, there are only two states in the normative sphere itself: before the act and after it. Fulfillment of the condition is not a substantive stage in the normative sphere.

According to Rabbi Shimon Shkop’s proposal, however, there are really three states and not just two:
1. Before the act is performed—the woman is married.
2. From the time of the act until fulfillment of the condition—the woman is in an intermediate state.
3. After fulfillment or cancellation of the condition—the woman is divorced or not divorced, depending on whether the condition was fulfilled.

What, then, is the status of the halut during this intermediate period?

Rabbi Shimon Shkop calls this state one of “doubt.” But he does not mean to say that the woman is possibly divorced, because doubt is an epistemic state, that is, a state of not knowing. Indeed, according to the conventional approach, the state during those days is a doubtful one, because we do not yet know the reality. According to Rabbi Shimon Shkop’s proposal, however, the state is a third, objective one, independent of whatever information we possess about it. His claim is that during those days the woman is both divorced and not divorced. In other words, she is in a state composed of the two future possibilities together—fulfillment of the condition, leading to full divorce, and non-fulfillment, leading to the cancellation of the divorce. It is not merely doubtful which of the two will come to pass, though of course for us there is such uncertainty. Rather, it is as though both exist until the subject of the condition, by his act, selects—or more precisely determines—one of them. Rabbi Shimon Shkop also describes such a state as “attenuated kiddushin,” somewhat analogous to a state of doubt.

The difference between attenuated kiddushin and doubtful kiddushin

The main difference between a state of attenuated kiddushin and a state of doubt is that with doubtful cases one must be stringent in matters of Torah law and lenient in matters of rabbinic law. If there is a doubtful marriage, then the woman must be stringent for herself—assuming there is no prior presumption to the contrary, and this is not the place to elaborate. But if a rabbinic doubt arises, she may be lenient.

By contrast, in attenuated kiddushin both possibilities rest upon her simultaneously, and the practical law is determined by the positive possibility. For example, during the period before the condition is fulfilled, two haluyot rest upon her: she is married and divorced at the same time. What law applies to her? If her husband dies, is she permitted to marry a priest? Conversely, if another man has relations with her, is he liable to death?

With respect to the prohibition against a priest, what matters is whether she is divorced. It is therefore clear that she is forbidden to a priest, since there is a side on which she is divorced, and that is the positive side. There is also a side on which she is not divorced, but the fact that she is not divorced does not mean that she must marry a priest; it means only that no prohibition rests on her in that respect. That is a negative or passive side. From the side on which she is divorced, however, a prohibition does rest on her, and therefore the overall result is that it is forbidden.

As for the prohibition on another man having relations with her, here too we must examine the two possibilities that rest upon her: there is the possibility that she is married, and there is also—not “or,” because this is not a mere doubt—the possibility that she is divorced. Here the picture reverses. A divorced woman is not under any obligation to have relations with a stranger; it is simply that no biblical prohibition rests upon her. That is the negative side. From the side of marriage, by contrast, it is clearly forbidden for her to have relations. That is the positive possibility. Therefore the bottom line is that we treat her as married, and it is forbidden for her to have relations with a stranger.

Another example is a case where both possibilities generate only a rabbinic problem. Had this been a case of doubt, we would have been permitted to be lenient. But here it is not doubt; both possibilities rest upon her at once, and therefore one must follow the positive side, whether it leads to stringency or to leniency.

Contradictory haluyot

The question that now arises is how it is possible for the woman’s status during the intermediate period to be composed of two mutually opposed states at the same time. How can a woman be married and divorced simultaneously? If she is married, she is not divorced; if she is divorced, she is not married. How is it possible that two contradictory haluyot—marriage and divorce—should apply to the same woman at the same time? And note thoroughly: the problem is not what practical laws should apply to her, for that question has already been solved above. The issue here is the meta-halakhic theory: how can two contradictory halakhic descriptions apply simultaneously to one and the same object or person?

Contradictions between attributes and contradictions between entities

We must note that contradiction always describes a relation between two attributes. A given food cannot be salty and sweet at the same time.¹⁴ Likewise, a room cannot be both lit and dark at the same time. The attribute “salty” is the opposite of the attribute “sweet,” and therefore both cannot describe the same object at the same moment.

But what about the claim that some dish contains both salt and sugar at the same time? Is there any obstacle to saying that? Is there any internal contradiction there? Clearly not. It is entirely possible for the same dish to contain both salt and sugar simultaneously. The question what the taste of that dish will be receives a more complex answer: usually it will be neither fully salty nor fully sweet, but something in between. In other words, contradictory descriptions cannot apply to the same object, but entities possessing contradictory characteristics can certainly coexist.

What is halut?

We can now propose an explanation for the presence of contradictory haluyot on one and the same object or person. When we say that the “halut of marriage” rests upon a woman, does that not simply mean that she is married? What is added by saying that a halut rests upon her beyond a description of her legal state?

In light of what we saw above, we can say that there is indeed a difference between the two claims. When we say that a woman is married, that is a claim describing her halakhic standing. She is married to a man with all the consequences that follow from that. But when we say that the halut of marriage rests upon her, we are describing a metaphysical state in which she is situated. It is as though some metaphysical entity called halut rests upon her.

The laws that follow from her being married are the outgrowth of the existence of that halut, but the two are not identical. The statement that the halut of marriage rests upon her is about metaphysical entities, not about halakhic norms. The statement that she is married is about the halakhic obligations and prohibitions imposed on her by virtue of the fact that this halut rests upon her. Thus “married” is an attribute—a description of the woman’s halakhic state—but “the halut of marriage” is a noun, the name of an entity that rests upon her.

Can there be contradictory haluyot?

In light of the previous two subsections, we can say that although a woman cannot be married and divorced at the same time, because those are contradictory descriptions of her, there is no obstacle at all to two haluyot resting upon her simultaneously: the halut of marriage and the halut of divorce. As stated, haluyot are entities and not attributes, and therefore there is no obstacle to the simultaneous existence of contradictory haluyot on the same object. Haluyot are never contradictory to one another. At most, there may be a contradiction between the laws derived from them.

For that reason, if we now ask what laws apply to a woman upon whom these two contradictory haluyot rest, the answer will be more complex—something between a married woman and a divorced woman, that is, attenuated kiddushin or divorce. This is exactly analogous to the case of salt and sugar. The laws are the attributes, and they are an outgrowth of identifying the entities involved in the situation.

And indeed, even where two contradictory haluyot rest upon the same woman, there is never any contradiction in the practical laws. As we saw, with respect to the prohibition on a priest, the halut of divorce prevails, because it is the positive side there. With respect to the prohibition of a married woman, what prevails is the halut of marriage, because it is the positive side in that context. There will never be two contradictory laws at one and the same time concerning the same woman.

This is an important implication of the fact that haluyot are entities and not attributes. Only such a conception allows us to understand Rabbi Shimon Shkop’s remarks about the woman’s status from the moment the act is performed until the moment the condition is fulfilled or not fulfilled.

Insights

1. From the episode of the sons of Gad and the sons of Reuben, halakha learns that it is possible to stipulate conditions when applying haluyot.
2. For the condition to be valid, several formal principles are required—the formal rules of conditions.
3. There are two kinds of condition: one in which the halut takes effect immediately, “from now,” and one in which it takes effect only in the future, “if.” According to Maimonides, the formal rules of conditions are required only in an “if” condition.
4. If one stipulates not according to the rules, the act remains valid and the condition is void. Rabbi Yitzhak explains this by saying that the condition is not the basis for applying the halut but a mechanism for uprooting it. Ordinary speech cannot do this, because speech cannot nullify an act, and therefore the formal rules of conditions are required.
5. Since the condition is a mechanism of uprooting, the question arises what the state is until the time when the condition is fulfilled or nullified.
6. Rabbi Shimon Shkop proposes that during that period there is attenuated kiddushin or divorce. This state differs from a case of doubtful halut.
7. We explained that the meaning of this is that, during that interval, the two contradictory haluyot both apply to the object together.
8. The significance of that claim is that halut is a thing and not an attribute. “Married” is a halakhic attribute, but “the halut of marriage” is a halakhic noun. Contradictions exist only between attributes, not between entities.
9. The mechanism of a condition can be understood as creating a floating halut that “lands” on the object when the condition is fulfilled.

Footnotes