Parashat Bnei Gad and Reuven: A. A Look at Conditions (Column 642)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

I have now begun teaching the topic of conditions (tnai) in Halacha. As an opening, we looked at the section about the sons of Gad and Reuben, from which we learn the matter of conditions and their particulars. I noticed that the structure of the passage is interesting, and from it one can grasp several significant points regarding Halacha in general and the mechanism of conditions in Halacha, and I decided to share that here. In the next column I will present some halakhic conclusions that follow from what we see here. So—let’s learn some Tanakh.

What Is a Condition?

In every legal system there exists the possibility to stipulate conditions upon legal acts (the conferral of legal effects). The purpose of a condition is to qualify the act/effect and make it depend on something that will or will not occur. For example, to divorce a woman on condition that she will drink—or will not drink—wine during the next ten years. For this to take effect, Halacha requires that the formulation of the condition satisfy seven requirements (=the “laws of conditions,” mishpetei ha-tnai): a doubled condition; the affirmative stated before the negative; the condition stated before the act; that it be a matter within the party’s power; that one not stipulate against what is written in the Torah; that it be a matter that can be performed by agency; and that the condition and the act not be one and the same matter.

Let us take an example of a properly formulated condition: “If you drink wine—this is your bill of divorce; and if you do not drink—you are not divorced.” There is a doubled condition here, since he states both what will happen if the condition is fulfilled (she is divorced) and what will happen if it is not (she is not divorced). The affirmative precedes the negative, since he states first the positive side and then the negative. The condition precedes the act, since in each of the two sides he states the condition first and only then the outcome (what will happen if the condition is or is not fulfilled). It is within her power to fulfill, for she can drink or refrain from drinking wine. He is of course not stipulating against what is written in the Torah. Divorce is a matter that can be done by agency (one can divorce via an agent). And there is no “condition and act in one and the same matter,” since he makes the divorce depend on something external (that she drink wine) and not, for example, on her returning the document of divorce to him—something that would make the condition contradict the act itself and render it void.

Based on various statements in the Talmud (see, for example, Gittin 74b–75a and elsewhere), it is commonly thought that the mechanism of conditions and the halakhic requirements regarding them (the laws of conditions) are derived from the stipulation with the sons of Gad and Reuben. It is true that not all the laws of conditions are agreed to be learned from that passage, but still, in general, it is clear that the section about the sons of Gad and Reuben is the biblical source for the laws of conditions. Let us take a closer look.

Parashat Bnei Gad and Reuven

The Torah tells of the sons of Gad and Reuben who came to Moses and asked for an inheritance east of the Jordan. He conditioned the grant of that territory on their arming themselves and going to war to conquer the land together with their brothers from the other tribes. As a first step, I suggest you read the passage as a whole (Numbers 32):

Now the children of Reuben and the children of Gad had a very great multitude of cattle; and they saw the land of Jazer and the land of Gilead, and behold, the place was a place for cattle. The children of Gad and the children of Reuben came and spoke to Moses and to Eleazar the priest and to the leaders of the congregation, saying: Ataroth, and Dibon, and Jazer, and Nimrah, and Heshbon, and Elealeh, and Sebam, and Nebo, and Beon—the land which the LORD struck before the congregation of Israel is a land for cattle, and your servants have cattle. And they said: If we have found favor in your eyes, let this land be given to your servants for a possession; do not bring us over the Jordan. And Moses said to the children of Gad and the children of Reuben: Shall your brothers go to war while you sit here? And why do you discourage the heart of the children of Israel from crossing into the land that the LORD has given them? Thus did your fathers when I sent them from Kadesh-barnea to see the land. They went up to the valley of Eshkol and saw the land, and they discouraged the heart of the children of Israel from coming into the land that the LORD had given them. And the LORD’s anger burned that day, and He swore, saying: Surely none of the men who came up out of Egypt, from twenty years old and upward, shall see the land that I swore to Abraham, to Isaac, and to Jacob, because they did not wholly follow Me—except Caleb son of Jephunneh the Kenizzite and Joshua son of Nun, for they wholly followed the LORD. The LORD’s anger burned against Israel, and He made them wander in the wilderness forty years, until the whole generation that did evil in the eyes of the LORD was consumed. And behold, you have arisen in place of your fathers—a brood of sinful men—to add still more to the burning anger of the LORD against Israel. If you turn away from following Him, He will again leave them in the wilderness, and you will bring ruin upon all this people. They drew near to him and said: We will build sheepfolds here for our flocks and cities for our little ones. But we ourselves will hasten, armed, before the children of Israel until we bring them to their place; and our little ones shall dwell in the fortified cities because of the inhabitants of the land. We will not return to our houses until every man of the children of Israel has inherited his portion. For we will not inherit with them on the other side of the Jordan and beyond, for our inheritance has come to us on this side of the Jordan, eastward. Moses said to them: If you will do this thing—if you will arm yourselves before the LORD for war, and every one of you armed will pass over the Jordan before the LORD until He has driven His enemies from before Him, and the land is subdued before the LORD—then afterward you shall return, and you shall be clear before the LORD and before Israel; and this land shall be for you as a possession before the LORD. But if you will not do so, behold, you have sinned against the LORD; and know that your sin will find you out. Build for yourselves cities for your little ones and folds for your sheep, and do that which has proceeded out of your mouth. The children of Gad and the children of Reuben said to Moses, saying: Your servants will do as my lord commands. Our little ones, our wives, our flocks, and all our cattle shall be there in the cities of Gilead; but your servants will pass over, every one armed for war, before the LORD to battle, as my lord says. Moses commanded Eleazar the priest, Joshua son of Nun, and the heads of the fathers’ houses of the tribes of the children of Israel concerning them. Moses said to them: If the children of Gad and the children of Reuben will pass with you over the Jordan, every one armed for battle, before the LORD, and the land is subdued before you, then you shall give them the land of Gilead for a possession. But if they will not pass over, armed with you, then they shall be settled among you in the land of Canaan. The children of Gad and the children of Reuben answered, saying: What the LORD has spoken to your servants, so will we do. We will pass over, armed, before the LORD into the land of Canaan, and our inheritance shall be with us beyond the Jordan. Moses gave to them—to the children of Gad, to the children of Reuben, and to the half-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 their borders, the cities of the land all around.

Notice that the matter of the stipulation recurs several times throughout the passage, and at first glance it is not clear why. To explain this, I will now divide the passage into paragraphs and explain this division and the meaning of each paragraph in its context. From this we will see that one can learn several important principles about conditions.

The First Paragraph: The Context

This paragraph deals with the context. It is the preface to the entire sequence:

Now the children of Reuben and the children of Gad had a very great multitude of cattle; and they saw the land of Jazer and the land of Gilead, and behold, the place was a place for cattle. The children of Gad and the children of Reuben came and spoke to Moses and to Eleazar the priest and to the leaders of the congregation, saying: Ataroth, and Dibon, and Jazer, and Nimrah, and Heshbon, and Elealeh, and Sebam, and Nebo, and Beon—the land which the LORD struck before the congregation of Israel is a land for cattle, and your servants have cattle. And they said: If we have found favor in your eyes, let this land be given to your servants for a possession; do not bring us over the Jordan. And Moses said to the children of Gad and the children of Reuben: Shall your brothers go to war while you sit here? And why do you discourage the heart of the children of Israel from crossing into the land that the LORD has given them? Thus did your fathers when I sent them from Kadesh-barnea to see the land. They went up to the valley of Eshkol and saw the land, and they discouraged the heart of the children of Israel from coming into the land that the LORD had given them. And the LORD’s anger burned that day, and He swore, saying: Surely none of the men who came up out of Egypt, from twenty years old and upward, shall see the land that I swore to Abraham, to Isaac, and to Jacob, because they did not wholly follow Me—except Caleb son of Jephunneh the Kenizzite and Joshua son of Nun, for they wholly followed the LORD. The LORD’s anger burned against Israel, and He made them wander in the wilderness forty years, until the whole generation that did evil in the eyes of the LORD was consumed. And behold, you have arisen in place of your fathers—a brood of sinful men—to add still more to the burning anger of the LORD against Israel. If you turn away from following Him, He will again leave them in the wilderness, and you will bring ruin upon all this people.

Here the basic desires and interests of the sons of Gad and Reuben are explained. It is stated that they had much livestock and that the territory east of the Jordan suited them. Therefore they come and ask Moses not to cross the Jordan and to settle there. Moses is very angry about their shirking participation in the war to conquer the land. He sees in them a continuation of the spies who spurned the land. That was his “interest.”

Note that in his words Moses explains to them that such shirking is improper, but he has no problem with the very fact that they do not want to enter the Land and prefer to settle east of the Jordan. Apparently he was not exactly a religious Zionist. From his perspective that in itself is fine; what troubles him is only the moral problem of participating in the war. Well then, it turns out he wasn’t Haredi either. It suddenly occurred to me that he belonged to the “third identity” (a modern religious person. See the Manifesto). Welcome to the club. Who said this is some new invention?! By the way, that’s not a joke. If you think about it, this really is the spirit that emerges from Moses’ stance here.

The Second Paragraph: The Proposal

This paragraph describes the proposal of the sons of Gad and Reuben:

They drew near to him and said: We will build sheepfolds here for our flocks and cities for our little ones. But we ourselves will hasten, armed, before the children of Israel until we bring them to their place; and our little ones shall dwell in the fortified cities because of the inhabitants of the land. We will not return to our houses until every man of the children of Israel has inherited his portion. For we will not inherit with them on the other side of the Jordan and beyond, for our inheritance has come to us on this side of the Jordan, eastward.

The sons of Gad and Reuben immediately understand the point I explained above: Moses has no principled problem with their request; he only wants to ensure that they do not shirk the war. Therefore they propose the obvious solution: We will not shirk the war, and then you can grant us the territory east of the Jordan. The upshot is that the eastern bank of the Jordan is the inheritance of the modern religious. (Not for nothing is “Modern Orthodox” most prevalent in the U.S. and not in the Holy Land. For now.)

The Third Paragraph: Moses’ Response

In this paragraph Moses accepts their proposal:

And Moses said to them: If you will do this thing—if you will arm yourselves before the LORD for war, and every one of you armed will pass over the Jordan before the LORD until He has driven His enemies from before Him; and the land is subdued before the LORD—then afterward you shall return, and you shall be clear before the LORD and before Israel; and this land shall be for you as a possession before the LORD. But if you will not do so, behold, you have sinned against the LORD; and know that your sin will find you out. Build for yourselves cities for your little ones and folds for your sheep, and do that which has proceeded out of your mouth.

Here Moses yields to their request. We now must examine what exactly he says to them: Is this the first appearance of the well-known condition of Moses to the sons of Gad and Reuben?

Let me preface with the Mishnah in Kiddushin 61a, which presents a dispute among the Tannaim regarding a doubled condition. The halacha follows Rabbi Meir, who requires doubling the condition. That is, it is not enough to say that they will receive the land if they participate in the war; he must state both sides of the condition: If they cross the Jordan they will receive the territory, and if they do not cross they will not receive it.

In light of this, if we return to Moses’ words here, it would seem that his statement presents a doubled condition: If they cross the Jordan and fight, they will receive the requested territory; and if not—then their sin will find them out. But note that Moses does not say that if they do not cross they will not receive the territory; rather, only that if they do not cross, they will be sinning and may be punished. He merely rules that it would be improper to do so. Why would it be improper? For two reasons: because it is unworthy to shirk participation in the war (the moral issue), and because they did not fulfill what they promised Moses (the legal issue).

If so, the conclusion is that this paragraph does not present a condition but an imposition of obligation and a rebuke for failing to meet it. To understand better the difference between the two, I must first clarify the normative meaning of conditions.

Between a Condition and a Prohibition or Obligation

When a person stipulates a condition with another, the condition does not create an obligation upon the other. For example, consider a woman divorced on condition that she not drink wine for ten years, and now, after eight years, she is debating whether to drink or not. She may decide as she wishes—to drink or not drink. Of course, each decision will have consequences, but she is under no obligation either way. Now imagine that this woman has already remarried and borne children. At some point (still within the ten years from her first divorce) she debates whether to drink or not. Is it permissible for her to drink wine in such a case? Is there not a prohibition involved? For if she drinks wine, her divorce from the first husband will be annulled, and it will turn out retroactively that her relations with the second were licentious relations, and her children are rendered mamzerim. It would seem, in such a case, that it is forbidden for her to drink wine.

But that is not reasonable. How can a husband prohibit his wife from doing something? Is he her God, able to impose prohibitions and obligations upon her? One must understand that a stipulation does not impose a prohibition; it sets a qualification on the legal effect being conferred. The husband confers the legal effect of divorce, and therefore he can qualify it by a condition. But the decision whether to fulfill the condition is in the hands of the one upon whom the condition is placed (the “conditioned party”), not the one who sets it (the “stipulator”). At least in the ordinary case, the conditioned party is under neither a prohibition to violate the condition nor an obligation to fulfill it. It is, therefore, more reasonable that the woman may drink wine even in a case where she has a husband and children. True, the drinking will render the children mamzerim and her relations licentious retroactively, but the act of drinking itself is permitted. Those consequences are produced by what the husband did, but that cannot constrain her. As we have seen, a condition does not generate prohibitions and cannot dictate to the conditioned party what to do.

One could of course argue that there is an interpersonal prohibition here, since the drinking would render the children mamzerim and ruin them. Very likely that would be prohibited; but the prohibition here is not one of sexual prohibitions. It derives from the consequences that violating the condition produces. Even the rendering of her relations into licentious relations retroactively is not necessarily a prohibition. The Torah forbids engaging in licentious relations, but there is not necessarily a prohibition to render a relation that was permitted at the time into licentious retroactively. That is a consequence, but not necessarily a prohibition.

A Brief Look at the Mechanism of Conditions

To understand this further, let me preface with a general point regarding conditions. When one sets a condition that operates retroactively, such as a divorce “on condition that she not drink wine,” then if she drinks wine—the divorce is nullified retroactively. If she does not drink—the divorce stands retroactively (the later authorities discuss which formulation is correct: a “fulfilling condition” or a “nullifying condition.” I will not enter into that here).

The simple conception of this mechanism is that it is a case of “it is revealed retroactively” (igla’i milta le-mafre’a): if she drank wine, it is revealed retroactively that she was never divorced. On this view, until now we were simply living under a mistaken assumption, and from the moment we see that she drank, the reality becomes clear that she was never divorced. Clearly, according to this view, it would appear that it is forbidden for that woman to drink the wine, since drinking the wine reveals that her relations were licentious already at the time, and licentious relations are forbidden. One could say that that was an onus (compulsion), since she did not then know that she would drink in the future and that the relation was licentious, but still, there is a prohibition here.

But R. Shimon Shkop, in his Kuntres ha-Tena’im (the final section of his novellae to Gittin), shows from several determinations of the early authorities that they understood the notion of retroactive condition differently. It is a mechanism he calls “from now and onward retroactively” (mi-kan u-le-haba le-mafre’a), not “revealed retroactively.” His claim is that at the moment the get is given, the woman is immediately and fully divorced. If she does not drink wine, the divorce remains as is, and that is the end of it. But if she does drink wine, then the drinking causally abolishes the divorce retroactively. It uproots it. Note that the drinking does not reveal that she was never divorced, as in the first conception. On this conception, she was divorced at the time; but the drinking uproots the divorce and returns her to the status of a married woman. This is a causal influence backward along the timeline: the cause (drinking wine) is later than the effect (the uprooting of the divorce). Explaining this fully exceeds our scope here, and one can see a full treatment in the fourth volume of the series Talmudic Logic (Logic of Time in the Talmud).

In any case, for our purposes it seems that if one conceives the condition as “revealed retroactively,” then there may be an argument that the woman’s drinking is forbidden, since it reveals that the relation was licentious already at the time (true, then it was under compulsion, but the drinking now is voluntary—drinking in accordance with law is not compulsion). But according to the conception of “from now and onward retroactively,” the drinking is not forbidden. The relation truly was permitted at the time, and it is the drinking that renders it forbidden retroactively (and does not reveal that it was forbidden from the outset). It is quite reasonable to say there is no prohibition to render a permitted relation into a forbidden one, so long as at the time it was permitted. There is a prohibition to engage in a forbidden relation, but here the relation was already done in the past permissibly, and we are merely rendering it prohibited from now and onward retroactively.

I will now bring another example to illustrate the matter further.

“Saving a Blessing”

In Logic of Time in the Talmud, chapter 20, we discussed several examples of retroactive effects. One is the case of “saving a blessing,” which I will present here.

As is known, there is a prohibition to recite a blessing in vain (Berakhot 33a). Some opinions hold that this is a biblical prohibition (“Do not take [the name of the LORD in vain]”), while most hold that it is rabbinic (the reliance on “Do not take” here is merely an asmakhta). Now, there are situations in which a person recites a certain blessing, and in the end something occurs that clarifies that the blessing was in vain. For example, a person recited a blessing over a fruit and decided in the end not to eat it (he changed his mind). Another case is someone who separated terumah and then asks to have it annulled (he went to a sage who revokes the separation and turns the terumah and the whole pile back into tevel). In that case, it turns out that his blessing over the separation—or over the eating—was in vain. A similar question arises with respect to the rabbinic annulment of betrothal (hefka’at kiddushin), where it also turns out retroactively that the nuptial blessings were in vain. In all these situations one must examine whether, in such cases, the blessing is indeed considered a blessing in vain. After that, we must examine whether there is a duty to “save” the blessing (e.g., to proceed to eat; or not to annul; etc.). As we will now see, these are two distinct questions.

It is fitting in this context to quote the Rema, Orach Chayim 432:2, who writes regarding the search for leaven:

Gloss: The custom is to place pieces of chametz in places the searcher will find them, so that his blessing not be in vain (Mahari Brin). Nevertheless, if he did not place them, it does not invalidate, for every person’s intention with the blessing is to remove leaven if found (Kol Bo).

He reports a custom to place crumbs so that the blessing not be in vain. He himself does not see this as a binding principle, since the blessing is over the act of searching itself, and the search was indeed conducted. Therefore, even if none was found, there is no blessing in vain here. But imagine we ruled like that custom—i.e., that this is indeed a blessing in vain—still there would be no proof from here for our matter. The Rema addresses the question of whether to ensure in advance that the blessing not be in vain. But we are dealing with whether there is an obligation to “save” a blessing that has already been recited. In such a case there is room to say that what’s done is done, and there is no obligation to change course in order to “save.”

A primary source for this discussion is the Ritva, Hullin 106b, who writes:

One who washed his hands for eating and recited the blessing over washing the hands, and afterwards changed his mind and did not eat now—there is nothing wrong with that, and we do not obligate him to eat so that his blessing not be in vain; for since he washed his hands, the blessing over the washing—over which he blessed—has been completed. At that time his intention was to eat. Thus I discussed before my master, may his light shine, and he agreed with my words.

He holds there is no transgression at all, and there is no obligation to go back and eat. Still, two points in his words are important to note:

1. The reason he gives is that there is no prohibition in such a blessing, for he blessed over the washing and indeed performed the washing. It follows that if there were a prohibition, perhaps there would be an obligation to “save” the blessing. That is, he does not claim there is no obligation to save a transgression; he claims only that in this case there is no transgression (and thus nothing to save). This is just like the case of searching for chametz in the Rema: since there is no prohibition, the question of saving does not arise.
2. It emerges from his words that such a blessing is not prohibited only because there was, in fact, a washing (as the Ritva wrote—that after all he washed his hands). But if the blessing had nothing at all to rest upon—for example, he blessed over a fruit and then changed his mind and did not want to eat it—there, if he does not eat, the blessing is certainly in vain. It would then follow that in such a case he would be obligated to eat the fruit in order to “save” the blessing, just as we saw in the Ritva.

However, some later authorities understood the Ritva to mean that there is no obligation to save a blessing—that is, refraining from eating is not prohibited even if this produces a blessing in vain. And this is exactly as I wrote above regarding the condition: A woman is permitted to drink wine even if the result will be that her children become mamzerim and her relations retroactively licentious. The rationale is the same: there is a prohibition to recite a blessing in vain, but there is no prohibition to render a good blessing into a blessing in vain. Likewise, there is a prohibition to engage in licentious relations, but there is no prohibition to render a permitted relation into a licentious one.

To complete the picture, I will add that in Responsa Mishpat Kohen (by R. A. I. Kook), §39, which discusses the question of the annulment of betrothal, one can see a middle view. He raises the question: How were the Sages permitted to annul betrothal—doesn’t that render the blessing a blessing in vain? He writes that the Sages can “uproot” a matter of the Torah by passivity (shev ve-al ta’aseh), but this raises the question whether such uprooting is called an act (kum va-aseh) or passivity. The transgression of a blessing in vain is an act, but the act of blessing has already been done, and by their annulment the Sages are only rendering it a transgression. This can be considered a transgression by passivity. This is a middle conception between the two possibilities we raised: the transgression is indeed the act already done (=the blessing), not the current act (=the annulment). But because it is imposed retroactively, that very transgression is deemed a transgression by passivity and not by action. That is, in his view, if a person blessed, there is a transgression if he does not eat, but it is a transgression by passivity, because the transgression lies in the (now-in-vain) blessing and not in the act of eating. If he did not bless and ate, of course that is a transgression by action.[1] From these interpretations arise one view that there is no transgression in the drinking of the wine (perhaps even if there is a transgression in the relation), and another view that there is a transgression in the relation and therefore an obligation to save it. According to R. Kook, there is a transgression in the drinking, but the transgression is not the relation; rather, it is the drinking, and thus he writes that it is a transgression by passivity.

Back to the Third Paragraph: Obligation, Not Condition

We can now return to the third paragraph in the section of the sons of Gad and Reuben and understand why it does not deal there with a condition. Moses tells them that if they do not cross, armed, they will be sinning. But a stipulation does not create a sin. His claim is not by force of a condition, but because the act itself is improper (both because they promised and because of the very duty to share the burden of war with the rest of Israel). This is a clear indication that despite the formulation, which closely resembles a doubled condition, this is not truly a condition. If it were a condition, then the sons of Gad could choose not to cross the Jordan and would not be sinning; they would simply not receive their territory east of the Jordan, and that would be it. When Moses tells them they would be considered sinners, he is in effect instructing them to cross the Jordan, and they obligate themselves to do so. Therefore, if they do not cross, they sin. This is the imposition of a duty to do so, with responsibility attached—not a legal stipulation.

If so, in the third paragraph it becomes clear that the sons of Gad obligated themselves to cross the Jordan; but as yet there is no condition that “if they cross they will receive the territory, and if not—then they will not.” At this stage, apparently, even if they would not cross, they would still receive the territory—only that this would be sinful on their part.

The Fourth Paragraph: The Sons of Gad Accept the Arrangement

In the fourth paragraph the sons of Gad take this upon themselves:

And the children of Gad and the children of Reuben said to Moses, saying: Your servants will do as my lord commands. Our little ones, our wives, our flocks, and all our cattle shall be there in the cities of Gilead; and your servants will pass over, every one armed for war, before the LORD to battle, as my lord says.

Here the sons of Gad agree. Does this mean there is a legal stipulation? Not necessarily. A contract also requires the agreement of both parties. Therefore, even if there were a regular condition here, they would need to agree to it. But, as we have seen, this is not a stipulation about the grant of the territory, but an obligation to participate in the fighting (as we saw, a stipulation alone would not create an obligation). Their agreement is to this principle, not to a contract with a condition. Alternatively, they agree to the idea of conditioning one upon the other, but there is still no actual stipulation here.

The Fifth Paragraph: The Stipulation and the Consent

In the fifth paragraph Moses instructs the people (he is no longer addressing the sons of Gad and Reuben):

And Moses commanded Eleazar the priest, Joshua son of Nun, and the heads of the fathers’ houses of the tribes of the children of Israel concerning them. Moses said to them: If the children of Gad and the children of Reuben pass with you over the Jordan, every one armed for battle, before the LORD, and the land is subdued before you—then you shall give them the land of Gilead for a possession. But if they do not pass over with you, armed, then they shall be settled among you in the land of Canaan.

Here a proper doubled condition appears, as is customary: If they cross—they will receive the territory; and if they do not cross—they will not receive it. This indeed looks like a bona fide doubled condition.

The sons of Gad and Reuben respond and agree:

And the children of Gad and the children of Reuben answered, saying: What the LORD has spoken to your servants, so will we do. We will pass over, armed, before the LORD into the land of Canaan; and with us shall be the possession of our inheritance beyond the Jordan.

As noted, a contract (with or without a condition) requires the agreement of both parties, and therefore the stipulation set by Moses also required the sons of Gad and Reuben to agree. Now, beyond their commitment to participate in the war, they also agreed that if they do not uphold that commitment, then not only will they be sinners, but the territory will also not be granted to them.

An Aside: Which Kind of Condition Is This?

At the end of the process, Moses gives them the territory:

And Moses gave to them—to the children of Gad, to the children of Reuben, and to the half-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 their borders, the cities of the land all around.

It appears that the grant was immediate; that is, they already received the territory now, even though the act still depends on fulfillment of the condition (participation in the war) in the future. Seemingly, this is a “from now” condition (me’achshav). This is difficult, however, according to Maimonides (Hil. Ishut ch. 6, hal. 17–18), where he rules that in a “from now” condition the laws of conditions are not required (e.g., one need not double the condition or formulate it according to the technical rules). His claim, following the Geonim, is that those laws were stated only regarding a prospective “if” condition whose act takes effect only upon fulfillment, and not regarding a retroactive (“from now and onward retroactively”) or “revealed” retroactivity condition, whose act takes effect from now. The Maggid Mishneh and Lechem Mishneh there, however, note that some early authorities (Tosafot and the Rosh) disagree with Maimonides and the Geonim on this (and the Ramban and Rashba are in doubt).

In any case, according to Maimonides an odd result follows: although the laws of conditions are learned from the sons of Gad and Reuben, the condition in that section would be a “from now” condition—precisely the kind of condition to which, according to him, the laws of conditions do not apply.[2]

The General Structure of the Passage

Let us now summarize the structure we saw. It is quite clear that what we have here is not mere repetition of stipulations, but a description of the context, then the rationale, and finally the contract. Think of a standard legal contract, which usually begins with clauses such as: “Whereas Reuven desires X, and whereas Shimon desires Y, Reuven and Shimon have decided to sign a contract that sets forth A, B, C.” Before entering the legal formulations, one first presents the rationale—what are the parties’ interests, and what do they seek to achieve. Here too, the Torah describes the reason for the matter: the sons of Gad and Reuben need that territory for their herds. The other party to the contract is Moses (as representative of the people of Israel), who is concerned about shirking the fighting (the rascal—he doesn’t understand that in the army one might deteriorate…). Once we have understood the background, we can begin to formulate the contract. But the contract itself also begins by presenting the rationale and the goals of the parties: whereas the sons of Gad want the territory, and whereas Moses wants their participation in the fighting, it is decided to sign a contract between the parties—and this is the third stage in the passage—which stipulates as follows: the territory will be granted to the sons of Gad and Reuben on condition that they cross the Jordan and participate in the fighting.

It follows that the stipulation is the legal solution that implements the parties’ desires described at the beginning of the contract—exactly what an attorney is supposed to do when drafting a contract between parties. That is, after the context comes the rationale (the parties’ desires), and finally the contract. The formulation of the condition appears in this entire passage only once: in the fifth paragraph—and only there. That is the stage that describes the contract itself, the legal implementation of the rationale.

There is, however, another important point here. We saw that beyond the contract between the parties, there is also what is morally forbidden and permitted: it is forbidden to shirk involvement in the fighting. That is, the sons of Gad must fight not only in order to receive the territory, but also because that is what is morally right. To ensure that this is done, Moses makes the grant of territory conditional upon it. They now have two motivations to participate in the fighting: the contract and the territory it promises them (a motivation of interest, but not a moral or legal obligation), and the moral motivation (the duty to participate in the fighting with the rest of Israel—this, of course, is a full obligation, but unrelated to the contract). The contract serves to prod them to do what is right. That is, the condition is a mechanism whose aim is to bring about the parties’ interests, but also their moral commitment.

In this sense, there is a condition here that does not resemble ordinary conditions. In ordinary conditions we saw that the condition does not create a normative obligation upon the conditioned party; fulfilling or not fulfilling the condition is up to that party. The condition merely sets the consequences for each decision (whether the legal effect will take hold or not). Here, by contrast, there is an obligation to participate in the fighting. It is not merely fulfillment of a condition. True, even here the condition does not create the obligation—it only ensures its fulfillment by the sons of Gad and Reuben. This raises the question of how to define, in this agreement, the various parts: what is the act and what is the condition.

Condition Preceding the Act

One of the laws of conditions we mentioned is that the condition must precede the act. In Hil. Ishut 6:4, Maimonides and the Ra’avad dispute the meaning of this requirement, but the common view among the early authorities (and so I explained above) follows the Ra’avad: this is a requirement about the formulation—that one must state the condition first and then the act. In the case of the sons of Gad and Reuben, Moses indeed states first: If you cross the Jordan (the condition), you will receive the territory (the act), and if not—then not. But in light of what we have seen, the picture is not so simple. Is the grant of territory truly the act here and participation in the fighting the condition? There are two goals the parties want to achieve: Moses wants participation in the fighting, and the sons of Gad want the territory. This is essentially a bilateral contract, not a contract with a condition. So why is the grant of territory the act and the participation in the fighting the condition? Why is it the sons of Gad’s side that determines the definition, and not Moses’ side?

In an ordinary condition, the act is the object of the transaction. For example, “I sell you a parcel on condition that you speak well of me to the authorities.” The sale of the parcel is the act; the speaking is the condition, since it serves as consideration for the act. The object of the contract is the parcel. True, the seller wants the speaking, and from his perspective that is the point of the transaction; but in legal definition, that is the condition, not the act. If the initiative had come from the other side, he would have stipulated: “If you sell me the parcel, I will speak well of you to the authorities,” and then indeed the sale of the parcel would be the condition. The initiative determines what the object of the transaction is, and the “consideration” is the condition. I will note that we saw something similar in the series of columns that dealt with kinyan kesef vs. sheveh-kesef. In column 525 there, I explained that the initiative defines what counts as the “merchandise” and what counts as the “money” in a sale. The party who triggers and initiates the deal—the goal and interest of that party is the merchandise; what the other party receives is the money.

Thus, in the case of the sons of Gad, the initiative was theirs. Therefore, it is clear that the object of the contract is the transfer of the territory, and that is the act. Participation in the fighting is the condition set by Moses—that is, the “consideration.” Therefore, this is the condition and not the act. True, the sons of Gad are morally obligated to participate in the fighting irrespective of the stipulation and prior to the contract. But the contract did not create that obligation. The contract merely serves as a lever to ensure fulfillment of that obligation. Therefore, from the perspective of the condition and the contract, it is clear that the territory is the act and the fighting is the condition.

In the next column I will address the halakhic ramifications of this picture. We will see that this structure of the passage reflects the fundamental mechanism of conditions, thereby resolving various misunderstandings about them.

[1] This reminds me of a claim of the Turei Even, who discusses what would happen if the Sages would “reduce” the prohibition of bal tosif (do not add) and instruct people to add something to a mitzvah. Would that be a transgression by action (since they instruct the addition to the mitzvah) or a transgression by passivity (since they merely reduced the prohibition of bal tosif)? The practical difference is whether they are permitted to uproot the prohibition of bal tosif, for the Sages only uproot matters of the Torah by passivity.

[2] This somewhat resembles the view that Maimonides cites in the same chapter (Hil. Ishut 6:14), that the laws of conditions apply only in betrothal and not in sale. He himself argues against them that the laws of conditions are learned from the sons of Gad—and there it concerns sale, not betrothal.