Study and Halachic Rulings – Lesson 26

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[Rabbi Michael Abraham] I’m not going into that now; it’s an analysis discussed by many later authorities (Acharonim). The question is whether the act itself… maybe in a moment I’ll come back to it as a side note. If anyone wants, in Pri Moshe there’s a discussion of the laws of acquisition by Segal, whom I knew in Bnei Brak, and there he goes into this at great length. In any case, the Rosh writes that with regard to something that has not yet come into the world, situmta will not help. Why not? Because with something that has not yet come into the world, the inability to transfer ownership does not stem from a lack of settled intent. That’s not the problem. Even if the parties have fully resolved in their minds to transfer ownership of the dates of the palm tree when they come, still it is not acquired. The problem is not settled intent. So if that’s not the problem, then what is the problem? The problem is simply that there is nothing there to transfer. It doesn’t exist in the world. I cannot impose a legal status of ownership when I don’t have the thing to which I am applying that legal status. It doesn’t exist. So how can I apply the legal status? Therefore, in this case there is a legal limitation. I cannot transfer ownership of such things not because the two sides don’t want to. They do want to; there is full settled intent. But there is no legal mechanism that implements it. That is basically the claim. And therefore situmta will not help with such a thing. Situmta helps when what is lacking is settled intent. If there is such a commercial custom, then apparently there is settled intent as well. But where the problem is a legal limitation, situmta will not help. The same thing applies to something that has no substance. The reason it cannot be acquired is not because of settled intent, but because there is nothing there to acquire; it is not a tangible thing. So what will situmta help? Situmta will not help. Situmta does not turn black into white. So this is an indication that there are things in Jewish law that express metaphysical facts, ontology, and not just conventions, not just normative agreements about what is permitted and forbidden and what belongs to whom and so on. Now from this perspective I return to condition. Now I say: look, once I put this in a broader context, suddenly I understand the concept of condition much better. Because basically, why did I ask earlier why in ordinary legal systems it is obvious that you can make conditions? Two parties to a contract can stipulate whatever conditions they want, so long as the transaction is formulated explicitly, matches the parties’ intentions, and does not harm anyone else; let them do what they want, there is freedom of contract. In Jewish law, no. If there were no novel teaching in the passage of Gad and the children of Reuben, we would think that you cannot stipulate conditions. Why? Because in Jewish law there are legal limitations. Even if the parties very much want it, the question is whether on the meta-halakhic, ontic, metaphysical level, it is really possible to create this reality. It could be that the laws of physics, so to speak, the spiritual ones, do not allow this reality to be created. So what difference does it make if both parties want it? What is the problem? Why really, here, in the case of something that has not yet come into the world or something with no substance, did I explain what the problem is? The problem is that there is no thing here; there is nothing for the legal status to rest on, because the thing does not exist. Or it has no substance, or it will only come in the future, so there is nothing for the legal status to rest on. So there the problem is this kind of legal physics. What is the problem with condition? Quite similar. Condition can also be formulated in two ways. One type, one problem, is the problem of reverse causality in time. You want a future event to change the present state. Right? Suppose you divorce a woman on condition that she not drink wine. So if she drank wine, then the divorce is uprooted, so she is not divorced. If she did not drink wine, then she is divorced. So it turns out that the future event changes the present state. Now the principle of causality seems to require that the cause appear or occur before the effect. It cannot be that a certain event causes things at a time prior to itself. The cause has to appear before the effect. In our case that does not happen. Now why does this not bother ordinary legal systems? Because they do not think that something real is happening. There is no cause producing an effect here. It is just a legal convention. If you say such a thing, then she will be divorced in this case and not divorced in that case. If both sides agree and everything is fine and it harms no one, peace be upon everyone, what is the problem? Why shouldn’t it take effect? This is not physics. In physics, the cause cannot appear after the effect, but there it is a convention. If we agree and the legislator recognizes it and there is no issue, both sides agree, everything is fine, what is the problem? Why shouldn’t it take effect? In the halakhic world… because that is not enough. Even if both sides agree and everything is formulated precisely as they want, it still may be impossible to do it. Why? Because the claim is that the legal status of divorce or ownership or any legal status we are creating here is a kind of reality, and you cannot produce a reality on the basis of a cause that will appear only later. Therefore it is impossible to make a condition were it not for the Torah’s novel teaching. That is one reason, the reason of reverse causality in time. One explanation, one reason. One explanation is that there is reverse causality in time here. A second explanation is the concept called “his act of acquisition has expired.” The source is the Ran in Nedarim 28. The Ran says there that if a person performs an act of acquisition now—say I sell you a certain book by pulling it, we agree between ourselves, you paid me, and now I say okay, acquire the book, so you pull the book and acquire it. What happens if we agree that the acquisition will take effect in a week? Pull the book now, we’ll go home, and in a week the book will be yours. In the meantime it remains mine. The Ran says you cannot do such a thing. His act of acquisition has expired. What does that mean? In a week you want the book suddenly to switch from my property to yours. How will that miracle happen in a week? The action that imposed that legal status of ownership was done today. That action is no longer in the world; it was done a week earlier and is dead. It has expired, it no longer exists. So how can this book suddenly, after a week, jump from being mine to being yours? For such a thing to happen there must be an action that causally brings it about. If the action was done and has already passed from the world, then the effect cannot suddenly appear after a week or after a year out of nowhere, by some hocus-pocus.

[Speaker B] “Be betrothed to me after thirty days”? “Be betrothed to me after thirty days.”

[Rabbi Michael Abraham] Right, it doesn’t work. It doesn’t work because his act of acquisition has expired.

[Speaker B] But there’s a Mishnah, no?

[Rabbi Michael Abraham] “From now and after thirty days”—and that’s a Talmudic discussion in Kiddushin 60, very complicated, why it nevertheless works, because the claim is that it is a continuing act. But in principle, “be betrothed in thirty days” does not work. She is not betrothed. So what happens is… I mean, it’s possible…

[Speaker B] Maybe you can see it as a condition, as though “after thirty days” is just the condition? No, condition is from the passage of conditions.

[Rabbi Michael Abraham] I’m speaking now before the Torah introduced the whole passage of conditions. So I’m saying: I do an action now and I want the legal effect to appear in a month. There is no such thing, because his act of acquisition has expired.

[Speaker B] But does the Rabbi understand that what’s written in Kiddushin, “after thirty days,” means only the condition—that thirty days is the condition?

[Rabbi Michael Abraham] No, I don’t understand it that way. What is written in Kiddushin is that it does not take effect. It’s not a condition. If you make it into a condition, then it can take effect, and that is exactly the Torah’s novelty. If you simply say it will take effect in thirty days, that won’t help me; she is not betrothed. The second problem with conditions, were it not for the Torah’s novel teaching, is that his act of acquisition has expired. What do I want? I want to do an act of divorce now, and in thirty days or a year or whenever the condition is fulfilled, then suddenly it will take effect. There is no such thing. In a year the act itself is no longer in the world; it has expired. It cannot work. What lies behind this problem of “his act of acquisition has expired”? Again, the ontic view. It basically says that something has to happen in reality. My act causes something in reality. And since it causes something in reality, this is not a convention, not an agreement. It is a result. Something happens in metaphysics. Once the cause has already occurred and the result did not happen, then it can no longer happen afterward either. But if it is only a convention, as in an ordinary legal system, then what is the problem? We make an agreement now and the legal effect will be in thirty days. As far as I know, there is no legal problem with doing such a thing. Both sides agree, everything is clear from the contract, so there is no problem. Why? Because from their perspective, if there is such a convention and both sides agreed, then if they agreed everything is fine. What more needs to exist? There is no additional legal limitation on these things. In Jewish law there is. Therefore, when I look at the concept of condition before the Torah’s novel teaching in the passage of the children of Gad and the children of Reuben, I would have thought that in general you cannot stipulate conditions because of Jewish law’s ontic conception of itself. That means that the physics does not allow this type of mechanism. Therefore, without the novel teaching of the children of Gad and the children of Reuben, I would think that even though Moses wants them to go in and fight, and even though the children of Gad want the inheritance on the other side of the Jordan, and even though both sides agreed to make one depend on the other through a condition, it still could not be implemented. Because there is no legal mechanism that can implement it. And this method is called condition—you can stipulate. And if you stipulate, then you succeed in implementing that rationale. So this basically means that from the standpoint of Jewish law, even if the rationale exists, that still does not mean it can be implemented, unlike other legal systems. And therefore the passage of the children of Gad and the children of Reuben is built in the way I described earlier. It presents the rationale, and after that it presents the stipulation. And from this the Talmud and the medieval authorities (Rishonim) learn that the Torah apparently came to teach us the very idea of condition, because without the Torah we would not have known. The Torah finds it necessary, after presenting the rationale, also to tell us that Moses implemented it by way of condition, because we would have thought that even if the rationale exists, it still cannot be implemented. The Torah has to innovate that although both parties agree, there is also a legal way to implement it. In the legal world you do not need that second novelty; if both parties agree, then what is the problem? Of course it is valid. In Jewish law, no. In Jewish law you need something additional: even if both parties agree, it is still not certain that such a thing is implementable, and for that you need the Torah’s novel teaching, which introduces the mechanism of condition. Now all these things—the claim, look at the continuation there, what you are quoting here is not correct, look at the continuation, that “from now and after thirty” is one story, or “on condition”; plain “after thirty” will not work. The Torah’s claim is that in such a case it does not bother me that there is backward causality in time, or that his act of acquisition has expired. Why really not? About that one can explain—there is a discussion in Beit Yishai by Rabbi Shlomo Fischer, siman 35. He explains there that when a person stipulates a condition, then some sort of mechanism is created; the stipulation creates some kind of demon, yes, a destructive force—he has all kinds of mystical concepts there—that continues to accompany this legal effect onward, so that in fact the story does not end until the stage where the condition is fulfilled or not fulfilled, and then there is no problem of “his act of acquisition has expired,” because it has not expired; the act still continues, there is still something left hanging and pending, and the condition either permits it or does not permit it. And that is the way the matter is solved. But you need a novel teaching from the Torah to say that such a thing is possible at all, and that is the point. Now look at a consequence—and by the way, this consequence is mentioned in every yeshiva class on conditions—but here I’m putting it into context and you can see much more sharply what this means. The claim is as follows: when a person stipulates a condition, there are various rules for how to stipulate properly; there is a standard formulation for the condition. The standard formulation requires seven conditions, for example doubling the condition, right? “If you cross the Jordan you will receive the inheritance; if you do not cross the Jordan you will not receive the inheritance.” The positive has to come before the negative: “If you cross the Jordan you will receive the inheritance, and if you do not cross the Jordan you will not receive”—first the yes, afterward the no. The condition must precede the act, not “you will receive the inheritance if you cross the Jordan,” but “if you cross the Jordan, you will receive the inheritance”; in the order of formulation the condition has to come first and only afterward the act. So we said: doubled condition, positive before negative, condition before act, something within one’s power to fulfill—that is the fourth rule of condition, meaning if a man stipulates with a woman that she ascend to the heavens, that is not a condition; she cannot ascend to the heavens. A stipulation contrary to what is written in the Torah; the condition and the act regarding one and the same thing; and something that can be done through an agent, meaning only something for which you can appoint an agent can also be made conditional—it doesn’t matter, those are the seven rules of condition. What happens if I made the condition in a non-standard way? I stipulated contrary to what is written in the Torah, I didn’t double the condition, the positive did not precede the negative, and so on, or it was something not within her power to fulfill. In that situation the condition is void but the act remains valid. Meaning, if I make a sale conditional… So the Talmud says this is a stipulation contrary to what is written in the Torah, and according to Rabbi Meir his condition is void. Rabbi Yehuda says that in monetary matters his condition stands, but let’s look at Rabbi Meir. Rabbi Meir says that his condition is void. What does “his condition is void” mean? I say to a woman: “You are betrothed to me on condition that I have no obligations to you of sustenance, clothing, and conjugal rights,” and I doubled the condition and everything, of course, I formulated it properly—but this is a stipulation contrary to what is written in the Torah. And one who stipulates contrary to what is written in the Torah, his condition is void. “His condition is void” means the act is valid, the condition is void. What does that mean? She is betrothed to me. And not only is she betrothed to me, but I owe her sustenance, clothing, and conjugal rights. And even though I owe her that, she is still betrothed to me. Even though I said that if I am obligated to you, I do not want to betroth her. But no, the condition is nullified and the act remains. This is an important point, and it is always so. Always, when we formulate the condition in a non-standard way, as the Talmud says, the condition is void and the act remains valid. Several medieval authorities (Rishonim) ask, in Ketubot 56 and elsewhere—the Ritva and Tosafot and others—how can this be? After all, the man did not intend to betroth her if he would owe her sustenance, clothing, and conjugal rights. If she wants from him sustenance, clothing, and conjugal rights, he is not interested in this betrothal; he did not intend to betroth her. So how can you tell him: she is betrothed to you against your will, even though you will owe her sustenance, clothing, and conjugal rights? I never intended to betroth her on that basis at all.

[Speaker C] Rabbi, maybe this is a constitutive rule? As though the sages determined, or the Torah determined, that if you do not fulfill the rules of conditions, then you are aware that for us the act remains valid and the condition does not, and on that basis you know in advance, and therefore…

[Rabbi Michael Abraham] What does it mean, “aware of that”? The Torah does not say that. The rule is that they established the rules of condition; the Torah only stated the rules of condition. Now I say, okay, what happens if he did not stipulate according to the rules of condition? One might have said: then the act is nullified and the whole story is irrelevant—betroth her again. But no, the Talmud says no: the act remains valid and the condition is nullified. Now the question that all the medieval authorities (Rishonim) struggle with is why. After all, every legal system in the world says that if you did not intend to betroth the woman, then she is not betrothed to you; if you did not intend to acquire something, then it is not acquired—or to transfer it, then it is not transferred. And here it is clear that he did not intend to transfer or to betroth, so how can it take effect? In other words, why do I need the novel teaching of the passage of conditions to tell me that if the condition was not fulfilled, then the transaction is nullified? This transaction cannot exist if the condition is not fulfilled, because on that basis I did not want it at all. And if, for example, I betroth a woman and I say to two witnesses that I do not intend to betroth her seriously, then she is not betrothed, even though I gave her a ring and said, “Behold, you are betrothed to me with this ring according to the law of Moses and Israel.” But before that I said to the two witnesses: I am just doing this act to make fun of her—then she is not betrothed. And if it is clear that I do not intend the act, the act in itself will not do the job. And here, after all, that is the situation. If it turns out that I am obligated to her for sustenance, clothing, and conjugal rights, I did not intend to betroth her, and I said that in front of the witnesses. So it is clear that I do not intend to betroth her, so how can one say that she is betrothed to me? That is basically the question of the medieval authorities (Rishonim). Some medieval authorities (Rishonim) explain that if a person stipulates contrary to what is written in the Torah, it is like something not within his power to fulfill—here he is making a joke. He does not really mean the stipulation; he means to betroth her in any case, and he is just jerking her around, confusing her. Okay, that is highly questionable—Rabbi Elchanan in Kovetz Shiurim already rejects it; it is very unlikely—but there are medieval authorities (Rishonim) who say it, Rabbeinu Tam and others. But there are other medieval authorities (Rishonim)—for example Tosafot there in Ketubot 56—who claim that this works, that it really works even though the man does not want to betroth her on that basis; she will nevertheless be betrothed to him. And why? He says as follows. The Torah is the one that introduced the whole passage of conditions. Now this can be understood in two ways—I’m again explaining it within the context I spoke about earlier, because he is very brief in his wording. The Torah’s novelty in the passage of conditions can be understood in two ways. One can understand that the Torah introduced the very fact that one can make a condition, but it limited that novelty to a case where I formulated it in the standard way. Only if I formulated it in the standard way can I make a condition, and why? Because only the Torah’s novel teaching enables me to make conditions at all, otherwise there is the problem that his act of acquisition has expired, reverse causality, and so on. So therefore only if I formulated it in the way the Torah says—only regarding that was the novelty taught, that I am not bothered by the expiration of the act of acquisition and by reverse causality. But if it was formulated defectively, in a non-standard way, then the novelty of condition was not taught. Therefore we basically understand the novelty of the passage of the children of Gad in the following way: the Torah is the one that introduced the passage of conditions, and you have only what its novelty gives you. Meaning, the passage of conditions was introduced only if you really say the condition the way the Torah wants you to say it. If not, then we return to the state that existed before the Torah.

[Speaker B] But Rabbi, why—how does the Rabbi explain—why there is no problem of lack of settled intent in betrothal?

[Rabbi Michael Abraham] How does the Rabbi explain?

[Speaker B] Again. Why is there no lack of settled intent in betrothal? How does the Rabbi explain?

[Rabbi Michael Abraham] No, no, I haven’t explained anything yet, I haven’t explained anything yet. Let’s continue. So the claim is basically—this is one possibility for explaining the novelty of the passage of the children of Gad. Another possibility is to say: no, the fact that one can stipulate is obvious; that the Torah does not need to introduce. Every legal system allows stipulation, that is obvious. The Torah came to teach a stringency. You think you can stipulate? Correct, but only if you use a standard formulation. The novelty is not that you can stipulate; the novelty is that with a non-standard formulation you cannot stipulate. The novelty comes to be stringent, not lenient. The first approach says that the novelty comes to enable stipulation. Without it I would not know that one can stipulate at all, and it enables it only if you used a standard formulation. That is a lenient novelty. I would have thought that you cannot stipulate at all; it comes to teach us that if the formulation is standard, then you can stipulate. The second possibility is the opposite. Even without the Torah I would know that you can stipulate. On the contrary, I would think that in every case you can stipulate. Then the Torah comes and makes it stricter, saying: no, no, only with a standard formulation can you stipulate. It comes to teach that if the formulation is non-standard, then you cannot stipulate. If I understand it in the second way, that the Torah’s novelty is not that you can stipulate—that I would have known already—then why really? Here I want to make the following claim. The mechanism of condition can be understood in two ways, says Rabbi Shimon Shkop in Kuntres Ha-Tena’im at the end of his novellae on Gittin. The usual way to understand it is “it becomes revealed retroactively.” Apparently this will take me a long time, but no matter. “It becomes revealed retroactively.” What does that mean? Suppose I divorce a woman on condition that she not drink wine for a year. If she did not drink wine throughout the year, then it becomes clear that she was divorced from the very first moment; she is divorced. This is called “it becomes revealed retroactively.” It means that not drinking wine, or fulfillment of the condition, does not create anything in reality; it only reveals information to me that I did not know until now. A parable for the matter: suppose I’m in Australia and my wife gives birth here in Israel. They tell me she gave birth, but I don’t know if it’s a boy or a girl. A month later I return to Israel and it turns out it’s a boy—I come to the redemption ceremony, right? So it becomes known to me that it’s a boy. Did the situation that the child who was born is a boy come into existence only a month later when I arrived in Israel? No, he was always a boy; I just didn’t know it. A month passed, I came to Israel, and then it became known to me, but that knowledge is only additional information for me; it did not change reality. Reality was already like that from the beginning. The common view regarding conditions is like this. Basically the woman is divorced from the start; I just don’t know it. I have to wait a year to see whether she drinks wine or does not drink wine. After a year in which she did not drink wine, the information that this woman is divorced reaches me. But nothing happened in reality. It is not that not drinking wine caused the divorce. The divorce was there all along; I just didn’t know it. I had to wait a year, and only then it became known to me that she had been divorced all along. So according to this conception, stipulation does not change anything in reality, nor does fulfillment or non-fulfillment of the condition. It merely brings to my knowledge information that was always true; I just didn’t know it. That is called “it becomes revealed retroactively.”

[Speaker B] Isn’t it a bit—isn’t it a bit hard to understand that?

[Rabbi Michael Abraham] What do you mean?

[Speaker B] What does that mean? Surely it’s definitely the reason she ends up divorced. It’s not the reason!

[Rabbi Michael Abraham] The reason is the get. It’s just that the get was given on condition that she not drink wine, because if she does drink wine I don’t want to divorce her. So after she did not drink wine, it became clear that what I truly wanted was fulfilled, and on that basis I did indeed intend to divorce her, and therefore she is divorced. Nothing here is happening retroactively along the timeline.

[Speaker B] It’s just settled intent, kind of, as the Rabbi says. Yes, exactly, it’s all settled intent.

[Rabbi Michael Abraham] No reverse causality happens on the timeline, because no, there are no cause-and-effect relations here; it just reveals the reality, that’s all. So that is the usual conception. I brought an example for it. In one of the panels where we sat to annul a marriage, I argued that there was this young couple who got married at age 18—a pair of fools, got married at 18. They set a date for the first night at the hotel; the groom never showed up. After a few days they found him in the United States living with another woman already in his own home. And the rabbinate, of course in its usual way, drove them crazy for years, and there was no get there, until they gave the husband a bribe so that he would give a get, and then they managed to persuade him to give a get. Bribe money. Yes, have you ever heard of a state institution bribing a person to obey the law? That can happen only in the rabbinate. In any case, they were very proud of it. Yes, it was published in all the newspapers with great pride, showing how devoted they are to all these women denied a get. So on that panel, during the years this took, I said that no get was needed at all. We annulled her marriage. Without a get. Why? Because she never consented on that basis. Meaning, if she did not receive a married life from him, he never even showed up to live with her, then obviously had she known that, she would not have consented to the marriage she entered. And since that is so, there is no marriage. And consequently no get is needed either. The marriage is void. Later I happened to speak with someone, never mind whom—I argued with various people who criticized this—and with one of them an interesting point came up. In fact, this action was not an action of a court. The court did not uproot the marriage here. After all, I could have answered her question as a halakhic decisor, not as a judge. I simply told her that she had never been married in the first place. She did not know it, but that was the reality even before we said anything. Because after all, she did not consent; if she did not consent, then she is not married. All we did was clarify that she really had not consented. But once we clarified that she really had not consented, then clearly she was not married even if we had never convened as a court and even if we had said nothing. It’s just that otherwise she would not have known that she was not married. But we did not perform an act that uprooted the marriage; this was not a causal act. We merely clarified what the correct information was, information that had always been there. Yes, that is an example of what I said earlier about condition. That is “it becomes revealed retroactively.” Rabbi Shimon Shkop says, for various reasons—

[Speaker D] Wait, but with a condition it’s very different. I mean, it’s substantially different. With a condition there isn’t some event that already existed then. So how did the get itself know whether to divorce or not divorce depending on something that will happen later?

[Rabbi Michael Abraham] In the case of the marriage too, that event did not already exist.

[Speaker D] No, I can say that she did not want such a man. Meaning, he was not the person she wanted. So she understood it differently. She did not want that kind of marriage.

[Rabbi Michael Abraham] What’s the problem?

[Speaker D] But a divorce that depends on whether it rains in a month—the rain does not exist today, neither in the sense of yes nor in the sense of no. Right.

[Rabbi Michael Abraham] But he did not want the divorce if it would rain. So if it rained, that means he did not want the divorce. It is exactly the same thing. There is no difference at all.

[Speaker D] But the rain has to be connected somehow to the event of the divorce for us to say he wants the divorce or doesn’t want it.

[Rabbi Michael Abraham] The wine drinking or the married life—is that connected? Of course not. These are completely different things. It’s just that she does not consent if it won’t happen. That is the difference between “on this basis” and mistaken transaction. A mistaken transaction is something that already exists at the moment of the transaction, but one of the parties does not know it. “On this basis” is a future mechanism. If I had known what would happen in the future, I would not have consented. And that too can void a transaction. There are various proofs. For example, one who sold his property on the basis of going up to the Land of Israel, and in the end things got messed up and he did not go up to the Land of Israel, then the transaction is void. But his not going up to the Land of Israel is a future matter. It is not that at the time of the transaction it was already known that he would not go up to the Land of Israel. And so on, it doesn’t matter.

[Speaker B] But now that’s mistaken transaction, Rabbi, right? It’s not by the law of condition.

[Rabbi Michael Abraham] Right. No. If the information exists at that time, that is mistaken transaction. But if it is a future matter, then it is “on this basis”; it is not mistaken transaction.

[Speaker B] But it’s not by the law of condition in marriage and… no.

[Rabbi Michael Abraham] “On this basis” is like condition. In transactions and in marriage and in everything.

[Speaker B] Mistaken transaction, plainly speaking, is not a condition.

[Rabbi Michael Abraham] Mistaken transaction simply means there was no consent. It has nothing to do with condition.

[Speaker B] She did not consent—there is no consent if she had known that she would not get married life, so to speak?

[Rabbi Michael Abraham] If she does not know something future, then that means there is a condition here: I consent on condition that I receive a married life. If it is information that exists now, then I say: I want to buy such an object. But this is not that object, I just don’t know it. It is simply a mistake; I did not consent. That has nothing to do with conditions. It is a condition about the past, if you want, but it is not really a condition. I simply bought a car, and the car has an engine, and it turns out it has no engine. It is simply not what I intended to buy; I did not consent. It is just a mistake. It is not related to saying that I bought the car on condition that it have an engine. That is not a condition. I bought a car. But if I say I bought a car and the engine died a month later—now I say: I bought a car on condition that there be some engine here that will keep working for me going forward. If I had known the engine would die after a month, I would not have consented to buy it. That is already a condition. Okay?

[Speaker D] If every condition works on the basis of “on this basis,” then we are back to the question why there are rules here and why you need a doubled condition and all those things.

[Rabbi Michael Abraham] The opposite. “On this basis” is built on the basis of condition; condition is not built on “on this basis.” And I am now asking the question about condition itself. Why is condition itself really different, like “on this basis,” and not just an ordinary mistaken transaction? That is basically my question. Why is condition not simply “it becomes revealed retroactively,” and that’s it? So Rabbi Shimon Shkop’s claim is that there is another mechanism here—not “it becomes revealed retroactively,” but what he calls “from now on, retroactively.” What does that mean? The claim is that the future event—the legal effect I impose in any case, and the future event, if the condition is not fulfilled, can uproot the legal effect that was imposed earlier, a month ago, a year ago. So notice: here there is already a cause that causally produces the effect, but the effect happened before the cause. This is called “from now on, retroactively.” Rabbi Shimon Shkop argues that the mechanism of condition is not “it becomes revealed retroactively” but “from now on, retroactively.” And he has many proofs. At least according to many medieval authorities (Rishonim), that is the case. About the Talmud itself one can argue, but in many medieval authorities (Rishonim) it seems to be “it becomes revealed retroactively,” while Rabbi Shimon shows from quite a few medieval authorities (Rishonim) that it is “from now on, retroactively.” Or in other words: condition, meaning non-fulfillment of the condition, causally uproots the legal effect that I applied in the past. It does not merely clarify that this was always the information, only I did not know it. It is an event with a causal effect on the past.

[Speaker C] But how can that be? After all, from a deterministic perspective the information really exists. It was basically already determined from the moment of the Big Bang what would happen.

[Rabbi Michael Abraham] So—

[Speaker C] The reality is just that you don’t know, and it’s only “it becomes revealed retroactively.”

[Rabbi Michael Abraham] Who said it is deterministic? Why are you assuming determinism?

[Speaker C] Why not? You said.

[Rabbi Michael Abraham] I’m saying that the engine—

[Speaker C] Whether it will die or not die, even according to the Rabbi there is no free choice of the engine here. Wine drinking—

[Rabbi Michael Abraham] About wine drinking, we agree? So let’s talk about that. Doesn’t matter.

[Speaker C] For someone who accepts—not accepts determinism. No.

[Rabbi Michael Abraham] I also have an answer about the engine; even with determinism it doesn’t matter. But I don’t want to get into those issues; those are different philosophical issues. Your question is good, but that is another discussion. There is a Nachmanides who actually says that this applies only to deterministic things—that is, the difference between deterministic and non-deterministic things is that here it is condition and there it is retroactive clarification by selection. That is the difference between retroactive clarification by selection and condition. But let’s not step on that minefield. In any case, Rabbi Shimon’s claim is that what is involved is that the non-fulfillment of the condition uproots the legal effect I applied in the past. Now if that is so, then look. According to the conception of “it becomes revealed retroactively,” then indeed there is no need to introduce the possibility of stipulating at all. It is obvious. Once the person did not consent, then he did not consent, end of story. What is the problem? So the legal effect never took hold. Therefore according to that conception it is clear that all the Torah introduced was a stringency: that condition of course works even without the Torah’s novelty, but the Torah introduced that you need the standard formulation. You may ask me why you need the standard formulation—why all of a sudden? If you did not intend it, you did not intend it. Because the standard formulation verifies that this is indeed your intention. According to this approach, incidentally, Jewish law is like all other legal systems. It is just a question of clarifying the parties’ intent. And the whole purpose of the standard formulation is to verify that this is your intention. And that is how it appears in several medieval authorities (Rishonim). But according to Rabbi Shimon Shkop, the Torah’s novelty is not just the rules of conditions, but the very possibility of stipulating itself. Because otherwise why would one think there can be backward causality and uprooting by a spent act of acquisition and everything we spoke about earlier? Therefore it is clear that the Torah introduced the very possibility of stipulating. But that is conditioned on your using a standard formulation. Meaning, everything starts with the question of how you understand the mechanism of condition. And therefore—and this is what the later authorities (Acharonim) discuss—but notice how this actually connects with the whole broader move about conditions, and it begins in the Torah itself, in the Torah’s own formulation. And now I say this: after all, I asked why really the condition is void but the act remains valid. For example, one who stipulated a doubled condition: “Behold, you are betrothed to me on condition that you have no vows, and if you do have vows you are not betrothed.” So he made a doubled condition and everything. Then why, if he stipulated contrary to what is written in the Torah, is the condition void and the act valid? Meaning, she is betrothed. She is betrothed to him even though he owes her sustenance, clothing, and conjugal rights. But if he owes her that, then on that basis he did not want to betroth her. So according to the medieval authorities (Rishonim) who understand this as “it becomes revealed retroactively,” then the question is indeed a difficult one. In plain reasoning, he did not consent—why should it take effect? So they really explain that if he stipulates—Rabbeinu Tam, for example, says—if he stipulates contrary to what is written in the Torah, then he merely intended to joke with her. He did not truly mean to make a condition. It is like stipulating something not in his power, that she ascend to the heavens.

[Speaker C] And he understands all the requirements of conditions in that way.

[Rabbi Michael Abraham] All of these requirements are really meant to clarify or verify that this is what he intends. That’s all. But once you understand that this is what he intends, then of course it is valid, and you don’t need the Torah’s novel ruling for that, just as in a regular legal system. In contrast, the Ri in Tosafot there argues: no, even if you did not intend to betroth her in a case where she would have a claim on you for food, clothing, and conjugal rights, she will still be betrothed, even though you would owe her food, clothing, and conjugal rights. And why? He says as follows: since the Torah tells us that this is ontic—and I’m putting all of this into the context in which I’ve placed things—since the assumption here is really an ontic, metaphysical assumption, that means that the future fulfillment or non-fulfillment of the condition cannot uproot a legal effect that I created now. Only the Torah introduced the novelty that this is possible, and that novelty was introduced only if you make the condition, formulate the condition, in a proper way.

Now, how does that work? In order to allow you to create a legal effect that depends on some future event, you actually have to apply the legal effect in any case. To say that the woman is divorced regardless, divorced full stop. But in parallel I create a mechanism that will uproot this divorce if she drinks wine during the coming year. The effect itself is not conditional on anything; the effect itself is that she is divorced, the legal effect itself is that she is divorced, period, whether she drinks wine or doesn’t drink wine. But if she drinks wine, that unconditional legal effect will be causally uprooted. The drinking of the wine uproots that legal effect. Not that on that understanding the effect was never applied from the outset. No—it was applied in any case. It’s just that the condition, the fulfillment of the condition, will uproot the effect. Why? Because only that way can a mechanism of condition be carried out; otherwise it cannot be done.

So what happens? When a person stipulates a condition, what does he really mean? He wants not to betroth her if she will have a claim on him for food, clothing, and conjugal rights, but he knows that this cannot be implemented except in the way that Jewish law allows. And what is that way? To betroth her in any case, and if there is food, clothing, and conjugal rights, then the betrothal will be uprooted, because only that way can it be done. So he too presumably intended to do it that way, because he wants this thing to be realized. And the Torah says: only this way can you realize it. So even though his interest, his rationale, is that he does not want to betroth her if she will have a claim on him for food, clothing, and conjugal rights, the legal method of implementation obligates him to betroth her in any case and, in parallel, create a mechanism that will uproot the betrothal if there will be an obligation of food, clothing, and conjugal rights.

Or with—one second—or with the tribes of Gad and Reuben: basically Jewish law obligates Moses and the sons of Gad to give them the inheritance in any case; only if they do not fight alongside Israel will we uproot that grant retroactively. Because otherwise it cannot be implemented. So that is what they intended.

Now what happens? The moment a person intended to apply the legal effect in any case, then it applies in any case. Except that the stipulation created a mechanism such that if the condition is not fulfilled, the legal effect will be uprooted. But you did not succeed in creating that mechanism, because you formulated it in a way that is not proper. Only a proper formulation succeeds in creating that mechanism. If you did not formulate it properly, you did not manage to build the mechanism, and then what happened? You performed the betrothal in any case, and the destructive force—yes, in the language of Rabbi Shlomo Fisher—the destructive force you did not create, because only proper formulation creates it. So what is left? The condition is void, and the act stands. She is betrothed to you in any case, whether or not there will be food, clothing, and conjugal rights, and the condition is void.

Or the inheritance: if Moses our teacher’s stipulation had been, say, without a double condition, with the positive not preceding the negative, then the inheritance would belong to the tribes of Gad and Reuben regardless of whether they fought alongside Israel or did not fight. The condition is void and the act stands. Ah, why? The parties didn’t want that. They didn’t want that. The answer is: no, they did want that. Their real interest, their rationale, was not that—but the legal implementation forced them to agree to the transfer in any case and, in parallel, to create a mechanism of uprooting by means of the condition. Once the condition does not meet the proper formulation, then the uprooting mechanism was not created. Once it was not created, then the legal effect exists in any case. The condition is void and the act stands. That is how the Ri explains it.

So in essence we see that this way of reading the passage, and the comparison to other legal systems, brings all the conceptual discussions—each of which on its own is discussed in all the yeshivot, these famous, old, worn-out topics—but it puts them into a certain context, one unified context. The question is whether you understand Jewish law as a regular legal system like any other legal system, in which case all you need to do is clarify the intentions of the parties. If the intentions of the parties are clear, then there is no obstacle to implementing the matter. Or whether you understand Jewish law as something that sees itself as expressing an ontic reality. And therefore in such a case the Torah has to introduce for me the very possibility of stipulation, not only the laws governing conditions. And then in such a case it is clear that even if the parties really did intend it, it still won’t help them. The result will go against your rationale.

But notice: it will go against your rationale, but not against what you did. And that is the Ri’s point. There is a gap between the rationale and what you do. Take Moses and the tribes of Gad, for example. Moses’ rationale was to give them the inheritance only if they participated in the fighting. That was the rationale; the Torah describes this very clearly. Now suppose Moses had not formulated it according to the laws of conditions, the wording was not proper—what would happen in that case? The inheritance would become theirs regardless of whether they fought alongside Israel or did not fight. Why? But Moses had no intention whatsoever to give it on that basis. No—there is a difference between the rationale and the contract. And that is the important point. In Jewish law, yes; in a regular legal system, no. Why? Because the rationale is your interest. What your interest is, that is not the legal technicians’ issue. What do you want? But the contract is subject to additional constraints besides what you want. There are also constraints of what Jewish law allows and what it does not allow.

Now there can be a situation in which the contract requires you to proceed in a way that does not really express your interest, because only in that way will you ultimately realize your interest. You basically want to betroth the woman only if there will not be food, clothing, and conjugal rights, but the only way to do that is to betroth her in any case and create a mechanism that will uproot the betrothal if the condition is not fulfilled. Because of the legal constraints—in Jewish law they are different from those of a regular legal system. And therefore you yourself, when you perform the legal act, agree that the betrothal will take effect in any case, or that the inheritance will be given to the tribes of Gad and Reuben in any case. That is what Moses our teacher said, even though it was not his interest, not his rationale. But because of the legal constraints he understands that he has no choice; he must do it that way. And now if he formulates the condition in a flawed way, in a way that is not proper, then he applied the legal effect in any case, and the mechanism that uproots the legal effect he did not create. Because only the proper formulation succeeds in creating that mechanism. And then what remains is that the legal effect applies in any case, even though that is not what he wanted.

What comes out here is a result that does not match the will of the parties. And I think that is the essence of this novelty that the Torah introduces in the passage of conditions. This idea that the condition is void and the act stands begins with how I read the passage. Once I understand the context, once I put it into a context, I suddenly see—once I read the passage—I understand that the passage comes to teach me that rationale is not enough. The legal mode of implementation is also very important. And the Torah has to tell me that only through the mechanism of condition can this rationale be legally implemented. From here it immediately follows that the Torah’s novelty is the very possibility of stipulation. But if the Torah’s novelty is the very possibility of stipulation, then that means that a condition does not work as retrospective clarification, but rather as something that works from now onward retroactively. Because retrospective clarification is not the Torah’s novelty; that is self-evident. And if it operates as from now onward retroactively, then clearly there can be a case where the condition is void and the act stands, and the result will not reflect what I wanted.

You see that all the discussions in the yeshivot, or in conceptual-yeshiva style thinking, which mostly address each one separately, actually all come together in a single move because I placed the things in context. I understand their root. Once I understand their root, then this whole story unfolds in a complete way. Meaning, everything is connected to everything. That is basically the claim.

Okay, one could go on at length here about this issue, but it took me much more time than I thought. But I think this is a good example to see, first, that one needs to do some conceptual analysis. What is the problem with the mechanism of condition? What would have happened without the Torah? Then to understand what the Torah’s novelty is, and that also emerges from analysis of the biblical text itself. What is the Torah’s novelty? And then to understand from that the Talmudic outcomes that the condition is void and the act stands. In what is it different? They are conventionalist, while it is ontic. And we saw other examples of that too. So placing it in context also connects to various other halakhic examples. If I had not put it in context, then the passage of conditions would have been the passage of conditions, and something not yet in the world, or something with no concrete substance, would have been something entirely different—they would not connect to one another. Therefore, putting things in context and doing conceptual and a priori analysis always basically gives you a broader view of things, and that naturally connects to other matters and gives you something that ties the theory together with many more concrete halakhic examples.

[Speaker B] Rabbi, just about what the Rabbi told me—what the Rabbi told me about “after thirty days,” that’s also Maimonides, right? It’s there in betrothal—there in the laws of betrothal: if one says, “Be betrothed to me after thirty days,” even though the money was used up within the thirty days, she is still betrothed after thirty days. Is that there also because of the law of condition?

[Rabbi Michael Abraham] I’ll look there. As far as I remember, that is only in the form of a condition.

[Speaker B] Okay, Laws of Marriage, chapter 7, law 10. Thank you very much.

[Speaker E] Can I ask a question? Yes. On this issue of condition, assuming it’s correctly formulated, can both parties uproot the act? Because the example I want to give is, say, that a buyer said that the purchase will be carried out only if he receives financing. And both parties agreed, and it was with a double condition, and everything was fine. Then the buyer decided he isn’t taking financing—can the seller cancel the transaction?

[Rabbi Michael Abraham] No, obviously—what do you mean? Both the seller and the buyer can stipulate conditions.

[Speaker E] No, the seller did not stipulate any condition. The seller accepted the condition that the buyer made, making the transaction contingent on receiving financing. It turns out that the buyer doesn’t need financing. Can the seller cancel the transaction?

[Rabbi Michael Abraham] The question is whether that is included in the condition. Here one now has to interpret the condition. If the interpretation of the condition is that this is in the seller’s interest, then the buyer will not be able to cancel the transaction.

[Speaker E] Not the buyer—the seller.

[Rabbi Michael Abraham] If the buyer sees it as his own rationale, and therefore one should write the rationale at the beginning of the contract in order to show that this stipulation is also for his benefit, not only for the seller’s benefit, then yes, then he will be able to cancel it. It’s a question of how you interpret the condition that was made. That is why it is very important to write the rationale at the beginning of a contract.

[Speaker C] Rabbi, I just didn’t understand exactly why we need this novelty, that the Torah introduced the possibility of making a condition. What is there here to introduce? What is illogical about it without the Torah’s novelty?

[Rabbi Michael Abraham] I said: either the causality is backwards, or his act of acquisition has already been exhausted.

[Speaker C] But what backwards causality? After all, I really didn’t know what would happen, but whatever will happen is already determined. So all that happened is that it was clarified retroactively.

[Rabbi Michael Abraham] The fact that she drank wine—the fact that she drank wine uprooted a divorce that had already taken place? How does that happen? How can that be?

[Speaker C] No, but if she drank wine, then that was basically already determined in advance. It already happened at the time of the betrothal. I just didn’t know it would happen.

[Rabbi Michael Abraham] What does it mean “determined in advance”? Were it not for the Torah’s novelty regarding conditions, what does “determined in advance” even mean? You performed a divorce, so there is a divorce, that’s all. What do you want—that a future event should suddenly cancel the divorce?

[Speaker C] No, but I made the divorce conditional on rain falling tomorrow. The fact that I don’t know whether it will rain tomorrow is my issue, but the rain is already determined in advance, whether it will happen or not happen. So I didn’t know, and now it has become clarified to me.

[Rabbi Michael Abraham] The claim is not that you didn’t know. The claim is that the rainfall uproots the divorce.

[Speaker C] What kind of idea is that? I don’t understand this approach of uprooting—it’s some strange metaphysical invention.

[Rabbi Michael Abraham] A strange metaphysical invention, maybe—but that is how many medieval authorities (Rishonim) and later authorities (Acharonim) learn it. That’s what I tried to show—that it emerges from the passage itself. Because according to the other side, the novelty stated in the Torah regarding conditions is unnecessary. As you said earlier: what, it’s obvious, self-evident—if the person didn’t want it, then it doesn’t take effect.

[Speaker C] So maybe the novelty is that the Torah requires it to be done specifically in this form, and if not? Why—

[Rabbi Michael Abraham] Why not?

[Speaker C] Why does the Torah require these derivations?

[Rabbi Michael Abraham] To clarify the intentions of the parties, as Rabbenu Tam says. But that is very forced. Because it doesn’t really clarify the intentions of the parties. If a person says, for example, “You are divorced if you do not drink wine,” and he didn’t say it as a double condition, you understand on your own that if she does drink wine then she is not divorced, right? Clearly that is what he meant. So as a clarification of what the parties intended, I don’t need a double condition. In fact this is a dispute between Maimonides and the Ran; Kovetz Shiurim brings it. But in the simple understanding, the intention of the parties is clearly evident.

[Speaker C] No, but supposedly the Torah determines that in order for us to have it—and the act still stands.

[Rabbi Michael Abraham] I’m saying: if it’s clear to me even without that, if it’s clear to me even without that, then why should I care now whether the wording is this way or that way? It’s clear to me what he meant. Why is the condition void and the act stands? That is the question of the medieval authorities (Rishonim), exactly this hesitation, because they assume like you. So Rabbenu Tam also remains with your view, but it’s forced. The Rif is right, in my opinion.

[Speaker F] Rabbi, can I ask a question unrelated to the class? Yes. I’m now reading the second book of the trilogy and also of course listening to the Rabbi’s lectures, and I’m trying to connect two topics. In the book I reached the chapters dealing basically with how much God is present, or with God’s withdrawal from the world on the individual level and on the collective level, and I’m trying to connect that to the autonomy that the Rabbi talks about a lot. My question is whether there is a connection between these things. Meaning, does the very fact that God has, over time, somewhat withdrawn from the world have to do with His demanding more autonomy from us? It seems that when we were born as a people in the wilderness after the Exodus from Egypt, we were very dependent on God and very much needed Him, right? And over time, little by little, He withdrew.

[Rabbi Michael Abraham] I wrote that there, didn’t I? I write that it’s like a child who grows up, and then the parents expect him to conduct himself independently.

[Speaker F] Right, that really speaks to me. I’m asking whether this is connected to autonomy—meaning, is our autonomy supposed to grow as God withdraws? Is there a connection between the two?

[Rabbi Michael Abraham] What does it mean that autonomy is supposed to grow? Define the concept for me.

[Speaker F] Our autonomy is supposed to be…

[Rabbi Michael Abraham] Spell it out, because as far as I’m concerned you’re just repeating the same sentence twice. Autonomy is supposed to grow when the Holy One, blessed be He, withdraws—obviously, that’s by definition. To the extent that He withdraws, I act more independently.

[Speaker F] Meaning, He expects us to have more autonomy because He withdraws.

[Rabbi Michael Abraham] Obviously. No, that’s the claim. I don’t really understand the question.

[Speaker F] No, okay, I just didn’t know if those two things are connected. Meaning, because the Rabbi speaks so much about autonomy and the value of autonomy, I’m asking whether this autonomous value gets more and more weight over time because God withdraws. Yes, obviously.

[Rabbi Michael Abraham] Yes.

[Speaker F] Okay. Meaning that, supposedly, God did not expect the Israelites in the wilderness to have autonomy, because they were dependent on Him.

[Rabbi Michael Abraham] Less so, yes. Okay. Anyone else? Okay then, Sabbath peace.

[Speaker B] Thank you very much, good night, Sabbath peace.