Parashat the Children of Gad and Reuben: B. Halakhic Implications (Column 643)

In the previous column we examined the structure of the story of the tribes of Gad and Reuben and the stipulation Moses made with them. I explained that the Torah found it important to present the process in detailed stages: first the context, then the rationale (what the parties want on the legal level), and finally the mode of implementation—by way of a stipulation. I distinguished there between the different stages, and we saw that the description of the rationale resembles the description of the stipulation, though there are differences between them. In the context there is not really a double condition presented, but rather a commitment to participate in the fighting. By contrast, a condition does not impose an obligation on the one being conditioned, but only limits the legal effect (i.e., the granting of the inheritance is conditioned on participation in battle). In our case Moses adds the stipulation in order to prod the tribes of Gad and Reuben to stand by their commitment. This is done within the framework of the contract they conclude, in which it is agreed to transfer the inheritance east of the Jordan (the act) only if the tribes of Gad and Reuben take part in the fighting (the condition).

What, in fact, is the Torah trying to teach through this detailed structure? Why was it so important to distinguish between these stages and to repeat again and again the point that the granting of the inheritance is in exchange for participation in battle? One might say that all of this appears here incidentally, merely because in practice there was a stipulation and the Torah is only describing it. But the repetitions and the detail hint that there is something more here. The Talmud and the Rishonim understood that all this appears here intentionally to teach the idea of a stipulation and the manner in which it must be implemented (the laws of conditions—mishpetei ha-tena’im). The assumption is that without the Torah’s innovation we would not know that a stipulation is an available mechanism in halakhah, even though in ordinary legal systems it is taken for granted that one can attach conditions. To understand this better, I must first preface an important distinction between halakhic law and ordinary legal systems.

Halakhah and Law

At the beginning of any legal contract there appears a rationale that contains the goals and interests of both parties. The contract itself expresses the legal path to realize those goals. If one manages to find a suitable legal path to implement the parties’ rationale—a contract is made, in which the “how” is detailed. Is it possible that no legal path will be found to do so? In other words, could it be that although the parties desire something, there is no valid contract that realizes it? If that is the situation, then beyond clarifying the parties’ interests and desires, in order to draft a valid contract one must check that a valid legal path exists to do it. This is the meaning of the Torah’s innovation in the story of the tribes of Gad and Reuben: there is a legal path to carry out such desires. That path is the stipulation. I will now explain why the possibility of stipulating is not as trivial as one might think.

In ordinary civil law, freedom of contract is the norm. Two parties who seek certain interests from each other can conclude whatever contract they wish in order to realize them. If it is clear from the contract what each party undertakes, then the contract is valid. This means that the law as such does not impose restrictions on the kinds of contracts; therefore, in principle, anything one wants can be realized. The only problem within this framework of thought is to express it clearly in the contract and clarify precisely what the parties desire—and that is the lawyer’s job. Sometimes, indeed, there are cogent (mandatory) statutory requirements, i.e., provisions that cannot be contracted around because they are dictated by the legislature and not left to the parties’ will. For example, an employee’s waiver of his basic rights is not possible. Those rights are mandatory provisions of the law (even if the employee signs that he waived such rights, it does not stand, and the employer must grant them). But these are not limitations that derive from the absence of a legal mechanism; rather, they reflect the legislator’s desire to protect the weaker side. The legislator implicitly assumes that the party who “waived” his rights didn’t truly want to, and therefore does not allow it. Thus, such provisions are still an expression of the parties’ will, not a limitation due to the lack of a legal way to effect the parties’ will. I will not address such limitations here. My question is whether there can be legal limitations on freedom of contract as such: can a legal system say that although both parties clearly desire something, there is no legal possibility to realize it?

I think that in law, in principle, this does not exist. By contrast, in halakhah the situation is different. There are limitations on contracts that stem from the legal mechanisms themselves. That is, there are things that cannot be done within halakhah despite the parties’ desire and agreement, simply because there is no valid legal mechanism that accomplishes it. For example, in halakhah one cannot transfer title in an object that has not yet come into existence (davar she-lo ba la-olam). Simply put, this is not due to the parties’ intentions (though some explained it as a lack of “gemirat da’at”—finalized intent—but in my view this explanation is highly dubious), but because halakhah does not allow acquiring such a thing even if they want it. The same applies to transferring rights in an intangible (davar she-ein bo mamash)—again, some explained the problem as one of “gemirat da’at,” but I do not find that convincing either. I will go even further. Halakhah recognizes new forms of acquisition that are practiced in society or a given guild, and accepts their validity (kinyan sitomta—the merchants’ custom). Some Rishonim wrote that even if there is a prevalent custom to transfer title in a non-existent object or in an intangible, it is not halakhically valid. The reason is that where the issue is “gemirat da’at,” a clear custom attests to a finalized intent by the parties, and thus such consent is valid. But in matters not related to finalized intent, rather to a halakhic limitation—something not performable at the legal level—then a custom cannot help. A custom cannot make the impossible possible. What lies behind the halakhic limitations on acquiring non-existent or intangible things is not the parties’ intentions but a halakhic constraint, and halakhah does not view a custom that recognizes such acquisitions as something valid.

In several places in the past (see, for example, in my article “What Is a Chalut?”, in my article on acquisition in halakhah, in my article “Deception and Intellectual Property,” and more) I pointed out that the root of the matter lies in the ontic-metaphysical conception underlying halakhah. Law tends to view legal acts as conventions—agreements between individuals or society at large—and once they are agreed upon through the accepted path (legislation) they receive legal force. But precisely for that reason their force does not attest to any truth, only to the agreement of society; nothing more. By contrast, the halakhic conception (at least as I understand it) assumes that legal acts reflect a metaphysical reality. Thus, for example, when one creates a halakhic effect such as ownership, that is actually an expression of some change in reality itself and not merely a legal convention acknowledging a result. When Reuven sells a field to Shimon, it is not only a social convention that the field is now Shimon’s and not Reuven’s. Something happened in reality itself. The act of acquisition creates an abstract entity—chalut (legal effect)—that now “rests” upon the asset, or upon the woman, or upon the heave-offering, etc., and thereby they become connected to another person or receive a different halakhic status. These are examples that halakhic norms reflect a meta-legal reality (ideas, if you will). From this I explained in the articles cited that there is a difference between saying “the woman is betrothed (mekudeshet)” and saying “I imposed upon her the halakhic effect of betrothal.” The former is not identical to the latter but rather its consequence. The same difference obtains between saying “I bought a field” and saying “I imposed upon it the legal effect of ownership.” The first is a consequence of the second. In my articles I elaborated on this and showed several implications.

In any case, if this is the situation, we can better understand the two examples given above. One cannot impose ownership upon an intangible even if both parties absolutely desire it, because there is nothing for the legal effect to “rest” upon. The thing does not exist in the world, so nothing can be attached to it (no legal effect can be imposed). The same holds for something not yet in existence. The limitations are metaphysical—as if there are spiritual laws of nature that do not allow the creation of such a legal effect even if both parties want it. Just like someone who wants to be present in a fire and not be burned, or to fly through the air—he cannot. The laws of nature do not allow it. Since halakhah views legal norms as expressions of a factual meta-halakhic reality, it is no wonder that halakhah contains limitations on legal states. Not every meta-legal reality can necessarily be created. In halakhah it is not like ordinary legal systems that see laws as conventions (and therefore anything we decide will be valid—there are no built-in legal limitations there).

Application to Stipulations

From such a perspective, one might have thought that even if the parties truly wish to create a contract that includes a condition (i.e., this is the rationale that would appear at the contract’s outset and clarifies that this is indeed the parties’ will), still it cannot be implemented because halakhah does not allow it. There is no such contract in halakhah; therefore their intentions will not be realized. We saw that in an ordinary legal system, once you present the rationale there is no barrier to creating a contract. But in halakhah you might present a rationale and discover there is no legal way to implement it.

I think this is the innovation learned from the “Parashat Tena’im”: after presenting the parties’ rationale, the Torah rules that there is indeed such a contract. There is a way to realize these desires. That is why the Torah insists on detailing all the stages we saw: after presenting the rationale, Moses innovates that this rationale can be implemented in halakhah—by the mechanism of a condition. The stipulation appears here not merely as a description of what happened, but to teach us that there is a mechanism of condition in halakhah. Therefore the Talmud and Rishonim see this passage as the source for the laws of stipulations, and they, of course, assume that such a source is needed. That is, without the source we wouldn’t know that one may make stipulations or how to do so.

What Was the Problem?

On the face of it, this is puzzling. In every legal system in the world it is accepted that one may make conditions; they did not require the Torah’s innovations for this. So why does halakhah require such an innovation? Why should we not derive it logically: if a person expressed that he did not want the contract unless some condition is met, then given that the condition was not met, there is no party will here and the contract is not valid. Think of a case where a man divorced his wife on condition that she not drink wine. If she did drink wine, in such a case he did not wish to divorce her, so how could one think that she is nevertheless divorced? Why do we need the Torah’s innovation that one may stipulate? This need can be explained in several ways; I will bring two.

A. Retroactive Causal Effect

If a condition operated by the mechanism of “igla’i milta le-mafrea” (a later clarification of what had always been the case), then indeed it would seem that the mechanism of the condition is simple and requires no innovation: it simply becomes clear retroactively that this was the parties’ will. There is no causal influence backwards in time. But we saw that—at least according to R. Shimon Shkop—the condition operates by the mechanism of “mi-kan u-le-haba le-mafrea,” namely there is causal influence backwards along the timeline (where the cause is later than the effect). The wife’s drinking wine uproots the divorce that took place in the past. We also saw that halakhah views itself in an ontic-metaphysical manner.

If the condition were merely a convention, as ordinary legal systems assume, then if the parties want such a contract there is no reason they could not do it. But if halakhah is based on creating meta-legal facts in reality (the spiritual realm), then there is something factual here that is brought about by a future cause. There would indeed be room to say that such a mechanism cannot be created, and therefore a condition is impossible. It is possible that this is the Torah’s innovation in the story of Gad and Reuben: there is such a meta-legal mechanism. In effect we learn from here that in the meta-legal realm there can be causal influence that runs backwards in time. Moreover, the Torah’s very need to innovate the possibility of a condition hints that R. Shimon Shkop was right and a condition is not merely a retroactive clarification of existing information, but a reversal of a fact from future to past; thus there really is a problem of reverse causality in conditions. The Torah innovated that it is nevertheless possible.

B. “Kaltah Kinyano” (“The Acquisition-Act Has Concluded”)

Another way to understand the difficulty in the mechanism of conditions is based on the principle called “kaltah kinyano.” The source is the Ran on Nedarim 28b. He explains there that after an act has concluded, one cannot return to it and affect its results:

For from here we learn in monetary law that if one says to his fellow: “Go, take possession, and acquire the field,” or “It shall be given to you from now until I go up to Jerusalem,” and then the giver reacquires it from him before he goes up to Jerusalem, the recipient can reacquire it, for this is what he told him: “It shall always be yours until I go up to Jerusalem,” and from now and for that later time, when he reacquires it from him, he gives it to him. But this is specifically where he said to him “from now.” If he did not say “from now,” the buyer does not acquire, because since his acquisition is by possession, and that act of possession which he performs now has already ended after he reacquired it from him, this is like saying: “Pull this cow, but it shall not become yours until after thirty days”; if it is not in his possession after thirty days, he does not acquire. So too here: since that second acquisition does not take effect from now, but only after he later reacquires it from him, by that time that prior act of possession has already ended, and it is impossible for him to acquire. Thus, when we say that wherever he did not say to him “from now,” he did not acquire.

He writes that if Reuven stipulated that the act of acquisition or possession of land taking place now would have legal significance only from the moment he goes up to Jerusalem—that is, the legal effect of the acquisition would not begin at the moment of the acquisition or possession but at some future moment—then no acquisition takes place at all. The field is not acquired by Shimon, neither now nor when Reuven goes up to Jerusalem. The Ran explains this case with the concept of “kaltah kinyano.” His claim is that once the act has been performed there are only two possibilities: either the result occurred (the legal effect was imposed) immediately upon performance of the act, or—if there is some problem—then nothing happened at the time of the act. But it cannot be that after the act was performed nothing happened, and suddenly at some later time the acquisition will be imposed out of nowhere. Such “hocus-pocus” is impossible because the act that could generate the legal effect has already concluded and is no longer in the world. Just as after I sold a field to Shimon I cannot, a week later, come back and say I cancel the sale. Once the act has concluded it is fixed, and its consequences are no longer accessible to me. In other words, for something to happen at some future moment, an act must be done at that future moment. It cannot occur by virtue of an act already done in the past that has concluded. Again, this too is apparently connected to the ontic conception of halakhah (though not necessarily). After facts have been established and created, that is the reality. There is no way to touch a fact without doing another act (with the parties’ consent, just as such consent was required in the original act). The Gemara on the following page in Nedarim (29a, the sugya of Bar Pada) writes that inherent sanctity (kedushat ha-guf) does not lapse by itself; that is, a legal effect does not change without an act.

If we now return to conditions, without the Torah’s innovation it would seem that a stipulation would be impossible. A condition attempts to make a change in the results of an act long after it has concluded. That cannot happen, for “kaltah kinyano.” In Batei Rivka, in her article on the annulment of oaths, the author noted this problem with respect to vows and oaths as well. Without the Torah’s innovation that a vow can be undone, it would not be possible—precisely because of “kaltah kinyano.” (Here too the explanation is uprooting retroactively, i.e., reverse causality along the time axis. See Shiurei Rabbi Shmuel, Makot §415, which compares the mechanism of “mi-kan u-le-haba le-mafrea” in vows and in conditions.)

One more remark. In a comment to the previous column, the writer “Ha-Shelita” noted that later authorities explain the difficulty in conditions as the impossibility of imposing a halakhic effect “in two directions” (i.e., that it will apply if A occurs and will not apply if B occurs). I do not think this explanation stands on its own. That itself requires explanation: why should it be impossible to impose an effect in a bifurcated manner? Simply put, the explanation is one of the two I brought here.

Back to the Torah’s Innovation Regarding Conditions

In any case, we arrive at the conclusion that without the Torah’s innovation we would not know that one may stipulate—either because there is reverse causality or because “kaltah kinyano.” Therefore the Torah innovates the possibility of a condition. My claim is that this innovation is embedded in the structure of the chapter. We saw that after the chapter describes the parties’ rationale and interests, it devotes another paragraph to describing the mode of implementation. This is not just repetition in order to recount what happened. The Torah wants to teach us that there is indeed a way to implement that rationale. The way to do so is the stipulation, and the Torah innovates that a stipulation is indeed possible despite the problems of “kaltah kinyano” or reverse causality. It is no wonder, then, that for a stipulation to be valid it must be made in a very specific formula: in accordance with the rules of conditions. Only thus can a reverse causal mechanism be created. If we do not formulate the condition in such a way, the Torah’s innovation does not apply, and the condition cannot be created. If so, the parties’ will cannot be realized (even though it is clear that this is their will).

In other words: the Torah innovates that when a person makes a condition, a mechanism is created that accompanies the legal effect until the moment the condition is fulfilled or not, and therefore the acquisition does not conclude (it is not “fixed”). Both parties are still in the execution stage of the act until the moment the condition is fulfilled or not; therefore it is still possible to change the results of the past act. Implicitly, the claim is that when a person makes a condition, an additional suspended “something” is created that accompanies this legal effect, and that allows us to still touch it, make changes in it, or uproot it at a future time after the act has ostensibly concluded. In Beit Yeshai, vol. I, §35, R. S. Fischer describes this pictorially: the stipulation creates a “demon” and a “destructive force.” The demon’s task is to hold the legal effect generated by the act so that it does not “land” upon the person or object, and the destructive force executes the stipulation. According to him, giving the bill of divorce created the legal effect of divorce, and the demon holds it hovering in the air. The moment the condition is fulfilled, the destructive force eliminates the demon and the effect “lands” with a great crash upon the woman. But if the condition is not fulfilled, then the demon destroys the hovering effect and the results of the act dissipate. These are, of course, figurative expressions meant mainly to illustrate the ontic dimension in both the legal effect and the stipulation upon it. One needs a mechanism that prolongs the act which created the effect until the stage of the condition, and that is what enables retroactive operation after the act has already concluded (because in truth it has not concluded).

We may now say that this innovation of the Torah depends on the person formulating the condition as the Torah requires. In any non-standard formulation, the Torah’s innovation is absent, and thus the condition cannot come into being. The Torah’s innovation applies only to a condition formulated according to the rules of conditions.

Further Clarification: What Exactly Is the Innovation in the “Parashat Tena’im”?

In principle there are two readings of the innovation in the “Parashat Tena’im” (in the fifth paragraph of the passage, as I showed in the previous column):

• The possibility of making conditions is self-evident, as in any legal system. The passage comes to innovate that a condition is effective only if the rules of conditions are met. Without that, the condition does not apply. That is, the passage comes to be stringent, to say that although the possibility of conditioning is self-evident, halakhah invalidates certain formulations of a stipulation. The innovation is not the possibility of stipulating but rather that it is limited. The purpose of the passage is to innovate the rules of conditions. On this understanding, the innovation of the story of Gad and Reuben is a stringency.
• The Torah comes to innovate the very possibility of making conditions. But this innovation is limited to a formulation that follows the rules of conditions. Here the Torah is lenient and innovates the very possibility of stipulating, albeit limited to the standard formulation. This is a (qualified) leniency.

The difference between the two possibilities lies in what the situation would be without the Torah’s innovation. Possibility A assumes that even without the Torah we would know logically that one can stipulate (just as any legal system allows conditions). Possibility B assumes that without the Torah we would not know that one can make conditions at all. Why, then, in other legal systems is it self-evident? For the reason described earlier: ordinary legal systems are built on conventions and are therefore concerned only with the parties’ intentions. If their intent is clear, there is no reason to limit their ability to realize it in a contract. But in halakhah, clarifying the parties’ intentions is not enough. Halakhah has ontic constraints and therefore does not necessarily allow the realization of certain intentions. Thus, without the Torah’s innovation, perhaps we would not even grasp the very possibility of conditions within halakhah. This means that if the Torah had not innovated the possibility of conditions and a person nevertheless made one, then even if his intentions are clear the condition would be void—either because one cannot act backwards in time or because one cannot act once the acquisition has concluded (“kaltah kinyano”). In any case, the upshot is that the Torah innovates that it is indeed possible in halakhah (if one formulates the condition properly, in accordance with the rules of conditions).

These possibilities may depend on how we understand the mechanism of conditions. If we are dealing with “igla’i milta le-mafrea,” then as we saw above, the possibility of a condition is a simple logical point (as among the nations). There is no reverse causality and no problem of “kaltah kinyano.” Indeed, if the condition is not fulfilled, it is clear that the stipulator did not intend to impose the effect, and therefore it truly does not apply. All this happens even without the Torah’s innovation simply because the legal effect requires the will of the one imposing it. The innovation of the “Parashat Tena’im” according to this view can only be a limitation on the possibility of stipulating—namely, that it is effective only when the condition is formulated according to the rules of conditions. This is View A, under which the innovation is a stringency. But if the mechanism of a condition is “mi-kan u-le-haba le-mafrea,” then one must innovate even the very possibility of conditioning (otherwise the problems of “kaltah kinyano” and reverse causality arise). According to this understanding, the Torah innovated the very possibility of stipulating conditions, but here too it limited it to a formulation in accordance with the rules of conditions. Only with such a formulation does the innovation of conditions apply, and “you have only what was innovated.”

One can be precise from Gittin 75a–b and parallels in favor of the second possibility. The Gemara there discusses the following condition:

The Rabbis taught: “This is your bill of divorce, but the paper is mine” — she is not divorced. “On condition that you return the paper to me” — she is divorced. What is different in the first clause and what is different in the second clause? Rav Ḥisda said: This follows Rabban Shimon ben Gamliel, who said: She may give him its monetary value; here too, it is possible that she can appease him with money. Abaye challenged him: Granted that Rabban Shimon ben Gamliel said this where the object itself is no longer present; but where it is still present, did he say so? Rather, Abaye said: This follows Rabbi Meir, who said that we require a doubled condition, and here he did not double his condition. Rava challenged him: Is the reason only that he did not double his condition? Had he doubled his condition, would it not be a valid divorce? After all, from where do we derive all conditions? From the condition of the tribes of Gad and the tribes of Reuben. Just as there the condition preceded the act, so too every condition must precede the act—to exclude this case, where the act preceded the condition. Rather, Rava said: It is because the act preceded the condition. Rav Adda bar Ahava challenged him: Is the reason only that the act preceded the condition? Had the condition preceded the act, would it then be a valid divorce? After all, from where do we derive all conditions? From the condition of the tribes of Gad and the tribes of Reuben. Just as there the condition concerned one matter and the act concerned another matter, so too in every case—to exclude this case, where the condition and the act concern the same matter. Rather, Rav Adda bar Ahava said: It is because the condition and the act concern the same matter.

Without entering all the details of the sugya, I have underlined the two sentences from which this can be inferred. The Gemara states there, with regard to two of the rules of conditions (“condition before the act” and “condition and act concerning two different matters”), that since we learned the entire matter of conditions from the tribes of Gad and Reuben, it is clear that this was innovated only when the condition is formulated as it was there. “You have only what was innovated.” From the Gemara’s wording it is already clear that the assumption is that we learned the entire matter of conditions from Gad (not only the rules). And, of course, even in the substantive reasoning the Gemara brings we see that because the entire matter of conditions is learned from there, you have only what was innovated. This logical move depends on the assumption that we learned from Gad not only the rules but also the very possibility of stipulating—that is, a leniency, as in View B above.

Note on the Double Condition

In passing I will note that the Gemara above mentions another of the rules of conditions: that the condition must be doubled (tenai kaful). But regarding this rule the Gemara does not preface with “mikdi…”—i.e., it does not say there that since we learned the whole matter of conditions from Gad and Reuben, we must double the condition. Why is it that specifically for the double condition this phrasing does not appear? Perhaps because the need to double the condition does not stem from the learning from Gad and Reuben but from another source, or from logic.

Indeed, the Gemara in Nedarim 11a explains that this need stems from logic. Without getting into the details of the sugya there, I will cite the relevant line:

If it is Rabbi Meir—is it really the case that he does not hold that from a negative you may infer a positive? For we learned: Rabbi Meir says, every condition that is not like the condition of the tribes of Gad and the tribes of Reuben is not a valid condition.

We see that R. Meir’s demand to double the condition stems from a logical consideration: from a negative you cannot infer a positive. Therefore, if one states only the positive or only the negative, we cannot know the other side of the condition. Hugo Bergman, in his Introduction to Logic, cites a student who noted that this distinction is rooted in a logical principle: when I say “If X then Y,” does it follow that “If not-X then not-Y”? Certainly not. If X is a sufficient condition for Y, this does not mean that “not-X” is a sufficient condition for “not-Y.”[1] For example, if a working fan is a sufficient condition for wind, does that mean that when it is not working there will be no wind? There may be wind from another source (natural breeze or another fan). Therefore R. Meir demands that each person double his condition.

There is room to discuss whether his intent is to say that this truly does not logically follow—that when a person says, “Here is your bill of divorce on condition that you do not drink wine,” it really is not clear that his intent is that if she does drink, then the divorce will not take effect. Seemingly that is indeed his intent. From the standpoint of interpreting his words and intent, this certainly seems so; therefore it is more reasonable that the rules of conditions require a formulation that proves this from the wording itself. This is not required to clarify the speaker’s intent but as a halakhic requirement of a proper formulation. If from the formulation itself the result does not follow logically, then even if the stipulator’s intent is clear, the condition is void. True, all this can seemingly be said only according to the view that the double condition is not learned from the story of Gad and Reuben. If this is not about clarifying intent, whence do we know that the speech must be self-containedly clear? Perhaps this derives from the very law of verbal articulation (hafla’ah). As with vows and oaths, speech is required for them to take effect; so too with conditions. And if speech is required, logic dictates that the speech must be self-evident.

I will note that some Rishonim write that where the matter is obvious to all (“what is in his heart and in everyone’s heart”), there is no need to double the condition (see Tosafot, s.v. Devarim she-ba-lev, Kiddushin 49b). But this does not necessarily contradict what I argued here. Where the matter is obvious to any observer, it is as if it were stated explicitly. But where the matter is “clear,” yet does not emerge with complete clarity from the formulation and context, then in practice it has not been said, and therefore the rules of conditions have not been met. In such a case the condition is void. This still requires study.

This matter is disputed among the Rishonim. In the Nedarim passage cited we saw that R. Meir’s position derives from the logical principle that from the positive you cannot infer the negative. But in the Rambam it appears he did not rule this way. In KoSh, Bava Batra §437–8 (and also vol. II §42), it is demonstrated that according to the Rambam this has no connection to the dispute whether “from the positive you infer the negative,” but is rather one of the rules of conditions learned from the conditions of Gad and Reuben:

437) [folio 132a] The Rashba further answered there that since he did not stipulate according to the law, he revealed his intent that he is not particular about it; see there. But from the words of the Ba'al Ha-Maor in chapter 2 of Beitzah it appears that this is a scriptural decree: if one stipulates, it must be according to the laws of conditions. And so too it appears from the words of the Maggid Mishneh in chapter 6 of the Laws of Marriage in the name of the early Geonim. But this is difficult, because regarding “I will not eat non-sacred food for you,” the Gemara in Nedarim 11 brings the dispute of Rabbi Meir and the Rabbis regarding a doubled condition, where they disagree whether we say “from the positive you may infer the negative.” But what is the proof? Perhaps Rabbi Meir also holds that from the positive you may infer the negative, and nevertheless he requires a doubled condition by scriptural decree, analogous to the tribes of Gad and Reuben. I asked this matter of my revered teacher, Rabbi Ḥayyim Ha-Levi of blessed memory, and he answered that the dispute about “from the positive you may infer the negative” is whether the negative is included in the language of the positive. If so, when he says only the positive, it is as though he said both the positive and the negative, and it is therefore automatically doubled. The other opinion holds that although we understand the negative as well from his words, nevertheless it is not included in his actual wording and is not considered that he explicitly stated the negative, and so it is not analogous to the tribes of Gad and Reuben. And with respect to a vow we require verbal articulation with the lips, and therefore it depends on the above dispute. End of his words.

438) [folio 132a] However, in the novellae of the Ran on Gittin 46 regarding one who divorces his wife because she is barren, where for Rabbi Meir we require that he double his condition, he asked: Why is a doubled condition different from all the other laws of conditions, which we do not require there? He answered that for a condition relating to the past we do not require the laws of conditions at all, and nevertheless Rabbi Meir holds that we require doubling because from the positive you cannot infer the negative. And here there is no reason of verbal articulation with the lips, and it is proven that according to Rabbi Meir we do not understand the negative from his words at all. According to this it must be said that Rabbi Meir’s requirement of a doubled condition rests on two reasons: (a) that we require an analogy to the tribes of Gad and Reuben, as explicit in the Mishnah in Kiddushin 61; (b) that from the positive you cannot infer the negative. And this is also compelled by the fact that Rabbi Meir requires a doubled condition even with “on condition,” and there we do not derive from the tribes of Gad and Reuben according to the Geonim, because it is like “from now.” The Rambam rules like Rabbi Meir in this matter—that we require doubling by the law of condition analogous to the tribes of Gad and Reuben—and in the other dispute he rules like Rabbi Yehudah, that from the positive you may infer the negative, where the laws of conditions are not required. So too he wrote in his Commentary to the Mishnah on the chapter “Ha-Omer,” that we do not rule like Rabbi Meir in requiring doubling in “on condition.” And likewise in one who divorces his wife because she is barren, and in “I will not eat non-sacred food for you,” he ruled not like Rabbi Meir, for in a dispute between Rabbi Meir and Rabbi Yehudah, the halakhah follows Rabbi Yehudah—except in the laws of conditions, where he ruled like Rabbi Meir, because Samuel instituted it that way in the divorce document of a deathly ill man.

From the first passage it appears exactly as I argued: because of the logical principle that from a negative you do not infer a positive, then even when the meaning of the condition is “clear,” the condition must be doubled. The logical principle underlies the learning from Gad and Reuben (were it not so, we would not learn it from there; I remind the reader of Tosafot in Ketubbot regarding chalitzah, cited in the previous column, which explains that we do not learn from Gad what lacks internal logic). In other words, because R. Meir holds that from the positive you do not infer the negative, it follows that a statement of the positive alone does not include the negative in its wording. Therefore, even if the stipulator’s intent is clear without doubling the condition, one must still double it.

However, according to the Rambam, the double condition is indeed learned from the story of Gad and Reuben, since he rules like R. Meir and at the same time rules that “from the positive you do infer the negative.” Seemingly, in his view there is a complete disconnect between the logic and the learning from Gad and Reuben. But even this is not necessary. Perhaps his claim is that logically you do not infer the negative from the positive, and therefore we learn from Gad that the condition must be doubled. Yet at the same time, with respect to a person’s intent, from the positive we do infer the negative.

Implication: The Condition Is Void but the Act Stands

The Gemara in Ketubbot 56a brings a dispute between R. Meir and R. Yehudah whether one can condition against what is written in the Torah in matters of money:

For it was taught: If one says to a woman, “Behold, you are betrothed to me on condition that I have no obligation toward you for sustenance, clothing, and conjugal rights,” she is betrothed and his condition is void—these are the words of Rabbi Meir. Rabbi Yehudah says: In a monetary matter, his condition is valid.

According to R. Yehudah, in monetary matters one may condition against what is written in the Torah, and so is the halakhic ruling.

Tosafot (s.v. Harei zo) there raise a difficulty:

“She is betrothed and his condition is void” — necessarily this is speaking where he doubled his condition, i.e., he said to her: “If I have no obligation toward you for sustenance, clothing, and conjugal rights, then you are betrothed to me; and if not, do not be betrothed to me,” for later it says that Rabbi Meir’s reason that his condition is void is because he conditioned against what is written in the Torah. But if he did not double his condition, let it follow that his condition is void according to Rabbi Meir because he requires a doubled condition, as stated in Ha-Omer (Kiddushin 61a).

Up to this point Tosafot demonstrate that the case assumes the groom doubled his condition. But in light of that, the ruling here is very difficult:

And this is surprising: if so, why is she betrothed? After all, he explicitly stipulated that if she will have against him the rights of sustenance, clothing, and conjugal relations, she is not betrothed.

If he conditions against what is written in the Torah, his condition is void. What does that mean? That she is betrothed without the condition (the condition is void and the act stands). Tosafot argue that even if such a condition is nonstandard, we should have voided the betrothal, not the condition. On the branch that he undertakes to provide food, clothing, and conjugal rights, he did not intend to betroth her at all—so how can we rule that she is betrothed despite his not intending to? R. Yehudah as well agrees that in principle a condition is void if it contravenes what is written in the Torah; he only holds that in monetary matters this is not considered conditioning against the Torah and the condition therefore stands. In other words, Tosafot’s question challenges both R. Yehudah and R. Meir. Essentially they are challenging the entire law of conditioning against what is written in the Torah (for R. Yehudah—only in prohibitions; for R. Meir—even in monetary matters): how can it be that the condition is void but the act stands, when if the condition is not met he did not intend the act to stand? Can we determine that the woman is betrothed to him without his wishing to?

We saw above that apparently there will be a difference here between the “igla’i milta le-mafrea” conception—under which it is clear that on the branch that the person did not intend, the act certainly will not apply—and the “mi-kan u-le-haba le-mafrea” conception, under which this is not at all obvious. Indeed, among the Rishonim a view is brought here that says this explicitly.

Tosafot ha-Rosh here (and the marginal Tosafot Yeshanim) cite R. Tam’s explanation:

Rabbeinu Tam says that the reason is this: any condition that a person makes in order to stipulate against what is written in the Torah—his intention is not that the condition should truly stand, but rather he is merely speaking extravagantly, by way of jest; and this is similar to the case in Gittin: “This is your bill of divorce on condition that you descend to the abyss or ascend to the heavens,” etc.—it is nothing more than extravagant speech, and the divorce is valid.

He explains that such a condition is void because the stipulator did not truly intend it. It is like a person exaggerating in speech (a condition impossible to fulfill). Such a condition is void because he did not seriously intend it (according to him, this appears to be logic, not something learned from Gad and Reuben). Note well: he claims the stipulator did not seriously intend the condition (not the act); i.e., his intention was to betroth in any case. His assumption is that if indeed the stipulator did not intend to impose the act if the condition is not met, then it would be impossible for the act to take effect. This is precisely the “igla’i milta” conception, which aligns with View A above (that conditions would have been known logically, and the innovation of the Gad and Reuben passage is a stringency).

But further in Tosafot (and in Tosafot ha-Rosh) they cite R. Yehudah’s answer:

Rabbi Yitzḥak says that were it not that we learn from the condition of the tribes of Gad and the tribes of Reuben, I would have said that no condition can ever nullify the act, and even if it is not ultimately fulfilled, 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 when one is not stipulating against what is written in the Torah, analogous to the tribes of Gad and the tribes of Reuben, who did not stipulate against what is written in the Torah.

R. Yehudah argues that the law of conditioning against what is written in the Torah is learned from the story of Gad and Reuben, but he writes that even the very ability to condition is learned from there. It appears he understands the Torah’s innovation in the Gad and Reuben passage as View B above (unlike R. Tam): that the passage innovated the ability to make conditions—a leniency. I noted that this fits the “mi-kan u-le-haba le-mafrea” conception. We saw that this also emerges from the sugya in Gittin 74b.

R. Yehudah is essentially saying: the story of Gad and Reuben teaches us the very ability to stipulate. Without that innovation, conditions would not be valid. But this innovation is qualified, for a valid condition is only one formulated properly. Only with respect to such a condition was the innovation—that a condition can uproot an act (backwards in time, after “kaltah kinyano”)—said. What happens if a person makes a nonstandard condition? In such a case the condition is void and the act stands. How does this resolve the difficulty? Why should the act stand—after all, he did not intend to betroth her if she is entitled to food, clothing, and conjugal rights?

Later authorities (e.g., KoSh ad loc., and many others) explain that in order for a condition to operate, a person intends to condition according to the rules the Torah sets: namely, to impose the act in any case, and to create a condition that will uproot the act if the condition is not fulfilled. In any other form he cannot succeed in realizing his will (because halakhah—unlike ordinary legal systems—does not allow such a will to be realized due to legal constraints of reverse causality, etc.). That is, when a person conditions, he thereby demonstrates that he intends to impose the legal effect in any case, and in parallel his stipulation creates a condition (the “demon,” the “destructive force”) that ensures the effect will be uprooted if the condition is not met. This is the only mechanism that will enable him to realize his will (to impose an effect in a bifurcated way). But an error occurred here, for he did not formulate the condition properly. What happens then? The act is imposed in any case—for that is indeed what he intended—but the destructive force and the demon that could uproot it if the condition is not fulfilled do not come into being. Therefore the result is that the act stands in any case and the condition is void. Note that this is true even though the stipulator’s desire was that in such a scenario the betrothal not take effect (since the condition was not fulfilled). Due to halakhah’s constraints he is nevertheless forced, despite his will, to impose the betrothal in any case, and his mistake in formulating the condition caused this to be fixed.

This sharply expresses the distinction I made in the previous column between rationale and legal-halakhic implementation. According to R. Yehudah, the groom’s rationale and interest are clearly that he does not want the betrothal if she has claims upon him for food, clothing, and conjugal rights. But the contract capable of realizing this obligates him to betroth in any case (and to create a condition that can uproot the act if the condition is not fulfilled). The outcome is contrary to his interest as it appears in his rationale, but it does conform to his legal will (i.e., the contract that implements the rationale and to which he agreed).

Note that all this is a direct result of the paragraphing in the story of Gad and Reuben. We saw that the Torah innovated the “Parashat Tena’im,” implying that without this innovation conditions would not be valid in halakhic law. From this it follows that if a person stipulates in a nonstandard way, the Torah’s innovation—that the condition can uproot the act—has not been said; consequently, the act remains in force: the condition is void and the act stands. This is so even though it is crystal clear that the stipulator wanted the act itself to be void in such a case (since the condition was not fulfilled).

A Note on the Rambam’s View

In the comment referenced above to the previous column, the writer asked why the Rambam holds that in a “from now” condition (me-achshav) the rules of conditions are not required. For there too the person is imposing a legal effect in a bifurcated way, and therefore the Torah’s innovation is needed; and as stated, that innovation applies only if the person formulates the condition properly. If so, when he did not formulate it properly, the result should be that the condition is void and the act stands, both in a “from now” condition and in an “if” condition. Yet according to the Rambam, in a nonstandard “from now” condition, the condition stands—i.e., if the stipulatee does not fulfill it, the act is void.

According to the approach developed here, we can explain that the Rambam understands a “from now” condition as operating via “igla’i milta le-mafrea,” not “mi-kan u-le-haba le-mafrea.” We saw that under the “igla’i milta” mechanism, there is no need for the Torah’s innovation, for the condition’s validity follows from logic. Here there is no problem of “kaltah kinyano” and no reverse causality, and thus a condition would be valid even without the Torah’s innovation (as assumed under View A above). Therefore there is no need to formulate the condition in a standard form. All that is required is clarifying the parties’ will. We saw that this is apparently also R. Tam’s position. R. Yehudah, in contrast, apparently holds that a “from now” condition operates via “mi-kan u-le-haba le-mafrea,” and thus, according to him, even there the rules of conditions are required.

So far we discussed the “from now” condition. What about an “if” condition? We saw in the previous column that according to all Rishonim—both the Rambam and those who disagree with him—an “if” condition, which applies prospectively, requires the rules of conditions (their dispute concerns the “from now” condition). Seemingly here there is no problem of reverse causality, for the legal effect applies only from the time the condition is fulfilled and not retroactively. So why, in an “if” condition, must one specifically use the standard formulation? In Beit Yeshai it is explained that even in an “if” condition (and, according to the Rambam, specifically there) one must create the “demon,” for the act has already been done; how will the legal effect apply at the time the condition is fulfilled? In my terms: although there is no problem of reverse causality here, there is a problem of “kaltah kinyano.” Therefore, here all agree that a standard formulation according to the rules of conditions is required so that the Torah’s innovation will operate. The proper condition creates the “demon,” i.e., the mechanism that enables us to alter the situation after the act has already been done.

[1] It does imply that “not-Y” is a sufficient condition for “not-X.” This is the rule of denying the consequent.