Lecture from 26 Tammuz 5767

Table of Contents

• Maimonides’ approach to conditions of me’achshav and conditions of im
• The condition of the children of Gad and the children of Reuben and the proof from the passage
• The nature of a condition in Jewish law and the scope of its application
• Agency, a “monkey act,” and the connection between agency and conditions
• The “laws of conditions” in Maimonides and the consequences of not meeting the rules
• The approaches of the Geonim and Maimonides’ rejection regarding a doubled condition in monetary law
• Stipulating against what is written in the Torah and the dispute between Rabbi Meir and Rabbi Yehuda
• The difficulty raised by Tosafot and Rabbenu Tam on “his condition is void but the act stands”
• Rabbi Yitzhak’s answer: the Torah’s novelty that a condition can undo an act
• Explaining the mechanism of im and me’achshav through a “hovering legal effect”
• A legal effect as an entity and its implications for understanding intermediate states in a condition

Summary

General Overview

The text presents a distinction in Maimonides’ approach between two types of conditions: a me’achshav condition, in which the legal effect takes hold retroactively from the time of the act once the condition is fulfilled, and an im condition, in which the legal effect takes hold only from the time the condition is fulfilled. According to Maimonides, the laws of conditions—such as a doubled condition, stating the positive before the negative, and putting the condition before the act—are mainly required in a condition of im, whereas in a condition of me’achshav most of them are unnecessary, because the mechanism is different. The text connects the source for the laws of conditions to the passage of the children of Gad and the children of Reuben, explains when it is even relevant to make a condition or appoint an agent, and analyzes Tosafot’s difficulty with the rule “his condition is void but the act stands,” along with Rabbi Yitzhak’s answer that without the Torah’s novelty a condition could not undo an act.

Maimonides’ approach to conditions of me’achshav and conditions of im

Maimonides distinguishes between a condition stated with the wording “on condition that,” which is a condition of me’achshav, and a condition stated with the wording “if,” which is a condition of im. He illustrates this in betrothal: when one says, “Behold, you are betrothed to me from now” on condition that you give two hundred zuz, then if the condition is fulfilled the betrothal takes effect retroactively from the time the perutah was given, and if the condition is not fulfilled there is no betrothal. He rules that when the condition is “if” without me’achshav, the betrothal takes effect only from the time the condition is fulfilled; therefore, if another man betroths her before the condition is fulfilled, she is betrothed to the second. He adds that the same law applies in bills of divorce and in monetary matters, and emphasizes that in a condition of me’achshav there is no need for a doubled condition or for placing the condition before the act, though the condition must still be something that can actually be fulfilled.

The condition of the children of Gad and the children of Reuben and the proof from the passage

The text suggests that the fact that Moses tells Joshua and Elazar, “If they do this, give it to them,” fits the understanding that this is a condition of im rather than a condition of me’achshav, because the wording “give it to them” implies that the transfer is not absolute from now. It explains that according to this, the children of Gad and the children of Reuben are building now, but they still do not yet acquire the inheritance; only after fulfilling the condition does the inheritance “become yours.” It notes that this is apparently evidence against understanding the condition in the passage as me’achshav, and suggests that Maimonides reads the verses as a condition of “if,” so there is room to derive from them the laws of a doubled condition. It adds that if they do not cross over as shock troops, then “they shall take possession among you in the land of Canaan,” implying a kind of removal and transfer to the land of Canaan.

The nature of a condition in Jewish law and the scope of its application

The Sages create a broad halakhic mechanism called a condition, and it applies in contexts such as division of the land, property, marriage, divorce, and betrothal. A condition is relevant only where a person creates a halakhic legal effect: if the condition is fulfilled, the legal effect takes hold, and if the condition is not fulfilled, the legal effect does not take hold. Actions that have no “legal expression” do not belong to the framework of conditions, so there is no meaning to “murdering on condition” or “putting on tefillin on condition” in the sense of creating a legal effect. The text notes disputes about making a condition regarding intention in commandments, and cites “the condition of the Avnei Nezer” concerning matzah on the Seder night as an example of a question that is not agreed upon.

Agency, a “monkey act,” and the connection between agency and conditions

Agency does not apply to everything. In matters that are “matters of one’s own body” or a “monkey act,” where there is no legal significance, it is not possible to appoint an agent. The text defines agency as relevant only in a legal act in which the person himself is required, so the agent can act “in my name” only when there is creation of a legal effect. It argues that there is a conceptual connection between agency and conditions, and cites the rule that “something that cannot be done through agency also cannot be done with a condition,” with reference to the Talmud in Ketubot regarding halitzah. The reason, it explains, is that in something that has no legal act, neither agency nor conditions are relevant.

The “laws of conditions” in Maimonides and the consequences of not meeting the rules

Maimonides rules that every condition—whether in betrothal, divorce, buying and selling, or other monetary law—requires four things: a doubled condition, stating the positive before the negative, placing the condition before the act, and a condition that can be fulfilled. He explains that these are formulation requirements that define the relationship between “the condition” and “the act,” where “the act” is the legal effect a person creates and “the condition” is what must happen in order for him to want that legal effect. He rules that if one of the four is missing, then “the condition is void” and the act takes effect immediately as though he had made no condition at all, so the betrothal or sale takes effect in any case. The text notes additional requirements not mentioned there by Maimonides, such as “one who stipulates against what is written in the Torah—his condition is void,” and the rule that “something for which agency is impossible also cannot be made conditional,” and explains that Maimonides there is focusing mainly on the way the condition is formulated.

The approaches of the Geonim and Maimonides’ rejection regarding a doubled condition in monetary law

Maimonides cites the view of “some later Geonim,” according to whom there is no need to double a condition except in bills of divorce and betrothal, but not in monetary law. He rejects this and rules that it is improper to rely on that view, because doubling the condition and the other four requirements are derived from the condition of the children of Gad and the children of Reuben, which is a monetary condition concerning the inheritance of the Land of Israel and does not deal with divorce or betrothal. He notes that this is how “the great early Geonim” ruled, and that this is the proper practice.

Stipulating against what is written in the Torah and the dispute between Rabbi Meir and Rabbi Yehuda

The text brings from the Talmud in Ketubot the dispute in the case of someone who says to a woman, “Behold, you are betrothed to me on condition that you have no claim upon me for sustenance, clothing, and conjugal rights.” According to Rabbi Meir, “she is betrothed and his condition is void,” while according to Rabbi Yehuda, “in a monetary matter his condition stands.” It explains that sustenance and clothing are monetary matters, whereas conjugal rights are not a monetary matter, and presents the understanding that this dispute concerns whether one may stipulate against the Torah in a monetary matter. It emphasizes that according to Rabbi Meir, when the condition goes against the Torah, the condition is nullified but the act stands, so the woman is betrothed and the husband remains obligated in sustenance, clothing, and conjugal rights.

The difficulty raised by Tosafot and Rabbenu Tam on “his condition is void but the act stands”

Tosafot asks how it is possible to say “she is betrothed and his condition is void” if the husband explicitly stipulated that if he would be subject to obligations of sustenance, clothing, and conjugal rights, she would not be betrothed. It concludes that the case must be one where he doubled the condition. Tosafot asks: if the man does not want the betrothal on the side where these obligations apply, how can the act stand by force when the condition is void? The text brings Rabbenu Tam’s view, which explains this through an assessment of intent: a person does not seriously intend to make a condition that goes against the Torah, and therefore his words about the condition are just empty chatter, and the betrothal takes effect. The text questions whether this assessment also fits cases of technical defects in the laws of conditions, such as failure to double the condition or changing the order of formulation, where it is clear that the person really did intend to make a condition.

Rabbi Yitzhak’s answer: the Torah’s novelty that a condition can undo an act

Rabbi Yitzhak explains that without the derivation from the condition of the children of Gad and the children of Reuben, one might have said that no condition ever undoes the act, and the act remains valid even if the condition is not fulfilled. He defines the Torah’s novelty in the laws of conditions as an exceptional power by which speech can uproot an act, contrary to the rule that “speech does not come and nullify an act.” He states that once the Torah introduced this power, it operates only when the rules learned from the passage are fulfilled. If those rules are not fulfilled, we return to the basic state in which speech cannot uproot the act, and therefore “the condition is void but the act stands.” The text formulates this by saying that the act creates the legal effect “in any case,” while the condition is a mechanism that may uproot that legal effect if it is not fulfilled—and only speech that conforms to Jewish law can do that.

Explaining the mechanism of im and me’achshav through a “hovering legal effect”

The text raises a difficulty regarding a condition of im, where the legal effect takes hold only in the future, because the act that creates the betrothal is done now, and the future cannot create a new legal effect out of nothing. This resembles the problem of “the acquisition has ended.” It suggests that, in the language of later authorities (Acharonim), this can be described as the creation already now of a legal effect that does not yet “sit” on the woman but remains a “hovering legal effect,” and only when the condition is fulfilled does it “land” and apply in practice. According to this, in a condition of im the laws of conditions are needed in order to give speech the power to hold the legal effect in this state or to dissipate it if the condition is not fulfilled. By contrast, in a condition of me’achshav the understanding is that if the condition is not fulfilled, it becomes clear retroactively that the legal effect never took hold in the first place. So there is no uprooting of an act here, only retroactive clarification, and therefore Maimonides rules that there is no need for the laws of conditions beyond the requirement that the condition be capable of fulfillment.

A legal effect as an entity and its implications for understanding intermediate states in a condition

The text concludes with the idea that a “legal effect” is conceived as an entity and not merely as a normative description, distinguishing between saying “the woman is a married woman” and saying “the legal effect of married status rests upon her.” It brings a conceptual example: salt and sugar can exist together as a mixture of entities without contradiction, whereas descriptions like “sweet” and “salty,” if treated as absolute opposites, do not coexist in quite the same way. It attributes to Rabbi Shimon Shkop the claim that in the period before the condition is fulfilled in a condition of im, both sides exist together—“betrothed and not betrothed,” or “divorced and not divorced.” The text clarifies that it rejects the formulation of this as a “doubt” and presents it instead as the definite coexistence of both sides. It argues that the practical ruling tends toward the personal-positive side and not toward the side of absence, and suggests that a practical difference may emerge in distinguishing between Torah-level laws and rabbinic laws.

One more moment before that—don’t give it to them. After all, we’re building now. So why all of a sudden now? This actually—well, I don’t know, maybe I’ll already mention it now, if you’re really getting into that point. Maimonides has his own approach: as I said earlier, there are two kinds of conditions. There’s a condition of “from now,” and there’s a condition of—what does a condition of “from now” mean? Say I betroth a woman on condition that she give me two hundred zuz in a week. So if I say, “You are betrothed to me from now on condition that you give me two hundred zuz in a week,” then the moment she gives me the two hundred zuz a week later, she was already betrothed to me from now. One consequence, for example, is that if someone had relations with her in the meantime, then he had relations with a married woman. On the other hand, if I say, “You are betrothed to me if you give me two hundred zuz,” not “from now,” but “if you give me two hundred zuz,” then she becomes betrothed only from the moment she gave the two hundred zuz. That is a legal effect that takes hold only after fulfillment of the condition. A “from now” condition is usually expressed with the phrase “on condition that.” Meaning, “You are betrothed to me on condition that you give me two hundred zuz.” The expression “on condition that” means: you are betrothed now, it’s just contingent on your giving the two hundred zuz. By contrast, “if” means basically: if you give it, then you will be betrothed—but it starts from there. Okay?

Now, Maimonides’ position is that for a “from now” condition, you don’t need all the laws of conditions. You don’t need a doubled condition, you don’t need any of that. Only for a condition of “if” do you need the laws of conditions. Now this brings us back once again to the biblical passage, because all the laws of conditions—including the doubled condition—are learned from here. Okay? And here, if the condition was a “from now” condition, then according to Maimonides you don’t need a doubled condition at all. So how can you learn doubled condition from here if we’re dealing with a “from now” condition? Seemingly this is proof that this condition was not “from now.” And maybe that fits all the comments you made earlier: on the one hand, he lets them start building now, right? They already started building now—that’s also what they asked for. And he makes a doubled condition with them. A doubled condition means this is something that will only take effect later, because otherwise you don’t need a doubled condition. And indeed, when he comes to Joshua, and when he turns to Joshua and Eleazar, he says to them: if they do this, then give it to them. What does “give it to them” mean? They’ve already built the cities now. What does “give it to them” mean? Because it’s a condition of “if.” A condition of “if” means: you can build now, that’s fine, but in truth what you’re building isn’t yours yet, and even after you fulfill the condition it isn’t yours retroactively from now. For the time being you’re building, as it were, on ownerless property, right? When you fulfill the condition, it will become yours.

And therefore Joshua—Moses says to Joshua and Eleazar, if they fulfill the condition, give it to them. What does “give it to them” mean? Moses gave it to them now. What does “give it to them” mean? No, because this is a condition of “if” and not a condition of “from now.” “If they do not cross over as shock troops with you, then they shall receive holdings among you in the land of Canaan”—meaning, they’ll dispossess them and bring them to the land of Canaan. So don’t give them this place to build. There’s no choice—I think that’s the only explanation that emerges here, and on the contrary, it may actually be a pretty good source for Maimonides. Maimonides says that in a “from now” condition you don’t need the rules of conditions. At first glance that seems contradicted by this passage here. Maimonides apparently reads it differently. Maimonides says: no, this is an “if” condition, not an “on condition that” condition. And in fact, if you read the wording carefully, I think it’s very, very understandable this way. On the one hand they build now, but on the other hand Moses says to Eleazar and Joshua: if they do it, give it to them. What does “give it to them” mean? I already gave it to them now. If they do it, don’t take it away from them—maybe he could have said that. What does “give it to them” mean? It wasn’t transferred to them yet. So yes, apparently there’s no choice but to conclude that this is a condition of “if.”

All right, I jumped ahead a bit, but I just wanted us to look at the verses and see what the verses themselves say. Okay, the Sages of course expanded what appears in the verses here and created a complete halakhic mechanism called a condition, and of course it can be applied in many halakhic contexts—not just in dividing the land, not only in monetary contexts, but also in personal-status contexts, divorce, betrothal, and so on. In fact, the common denominator of all the areas to which a condition applies is always a situation in which a person imposes some halakhic legal effect. Okay? He imposes a halakhic legal effect, and he can make that effect contingent on some condition. If the condition is fulfilled, the effect takes hold; if the condition is not fulfilled, the effect does not take hold. An act that has no legal expression whatsoever, that doesn’t impose any legal effect—a condition is irrelevant to it. You can’t murder conditionally. What does it mean to murder conditionally? If the reality is that you murdered, then you murdered. You can’t, I don’t know, put on tefillin conditionally. What does it mean to put on tefillin conditionally? There’s nothing conditional there. You’re not imposing any legal effect; there’s nothing here that’s in your hands. Sabbath desecration—there’s a big dispute whether you can make the intention in tefillin conditional. Can you desecrate the Sabbath intentionally on condition? No, of course not, definitely not. What does intentional “on condition” even mean?

But if you—if you—if you, say, are dealing with a commandment, not murder—let’s speak about a commandment—you want to make the intention for the commandment conditional. If it’s like this, then I intend to fulfill my obligation, and if not, then not. There are all kinds of conditions. The well-known condition of the Avnei Nezer regarding matzah on the Passover night—that’s a major dispute; it’s not at all agreed that you can make conditions, even regarding the intentions involved in a commandment. Because intention in a commandment is also not a legal effect. The side that allows making a condition on intention in a commandment apparently understands that the intention basically turns the commandment into a kind of legal effect—an effect of having fulfilled one’s obligation. Because I intended, therefore I fulfilled the obligation of the commandment, and that’s like imposing a legal effect, and therefore I can in fact make it conditional.

Another question that comes up in this context is agency—actually no, that’s something else, I’m mixing things together here. In those same contexts they also discuss agency. Agency too doesn’t apply to everything. There are things that are called a mere monkey’s act—that is, an act with no legal significance. In such a case agency is irrelevant. I can’t appoint an agent to—I don’t know—pray. Things that are inherent to one’s own person. Tosafot Rid and others explain this differently. I can’t appoint an agent to do an act that imposes no legal effect. Only in something that requires some legal action, where I myself am required, can I send an agent to do it in my place. Meaning: agency does not apply to something that imposes no legal effect—it’s just a monkey’s act, and the concepts of agency don’t belong there.

And in fact there is a connection between agency and conditions. We know that something to which agency does not apply also cannot be done conditionally. The Talmud in tractate Ketubot discusses this regarding halitzah. Why? What’s the idea behind it? The idea is that something to which agency does not apply is simply something that does not produce a legal action. And if it doesn’t produce a legal action, and therefore agency doesn’t apply to it, then conditions also don’t apply to it. So these two concepts are actually very closely related in their underlying idea. It’s not just some technical point that whatever doesn’t admit agency also can’t be made conditional. Rather, it’s because there is no legal action here—it’s a monkey’s act. There’s no action to which agency belongs, or to which one can attach a condition. So to sum up: the concept of condition always accompanies the imposition of legal effects or legal actions—actions with legal consequences, or consequences of legal effect. “Legal” is maybe a bit too narrow, because it can also be halakhic. For example, terumah may not have so much direct legal significance—though it has indirect legal implications because it becomes the priest’s property—but broadly speaking it has consequences in the realm of prohibition, not legal ones. And still, you can appoint an agent and you can make terumah conditional. Because terumah is also a kind of legal effect. You designate that grain which you separate, and a terumah status comes to rest upon it. So since you are imposing a legal effect, you can make a condition and you can also appoint an agent.

Now if there are two etrogim, and you’ve got a situation where you’re uncertain which one is valid, which is invalid, which one is lacking—can you say in such a case: one is especially beautiful but maybe invalid, and one is simple but definitely valid, and it isn’t clear—you make a condition that if this one counts for fulfilling the obligation… This is connected a bit to the question whether one can in general make conditions about the intention to fulfill one’s obligation. The Avnei Nezer and Rabbi Chaim assumed that of course one can—there, in Rabbi Chaim—but it’s really not so simple.

Okay. So what are the rules of conditions? Here I brought you a few laws from Maimonides so we can see what the rules are that are supposed to accompany every halakhic stipulation. “One who betroths on condition—if the condition is fulfilled, she is betrothed; and if the condition is not fulfilled, she is not betrothed, whether the condition was made by the man or by the woman.” In betrothal, both the man and the woman can make a condition. Why? Because betrothal depends on the woman too. She can say: I agree to be betrothed to you on condition that such-and-such. Right? In divorce, the woman can’t make conditions. Why? Because nothing depends on her. Only in something that depends on you can you say, “I agree on condition,” or “I perform the action on condition.” If it doesn’t depend on you, you can’t make conditions.

“In every condition in the world, whether in betrothal, divorce, buying and selling, or the other monetary laws, four things are required in the condition.” In the language of the later authorities, this is called “the rules of the condition.” And these are the four things required for every condition: first, it must be a doubled condition, as we saw before. Second, its positive clause must precede its negative clause. What does that mean? First you have to say what happens if yes, and only afterward what happens if no. Third, the condition must precede the act. So first of all, you have to say: if you do such-and-such, then you will receive the inheritance. It is not correct to say: you will receive the inheritance if you do such-and-such. In other words, the condition has to be stated before the act is stated. In the language of the Sages, every conditional sentence has two components: the condition and the act. The “act” means the legal effect I want to impose, and the “condition” means what you have to do—or what has to happen—for me to want to impose that legal effect. That is called the condition. So “the condition precedes the act” means that first I have to state the condition that must be fulfilled, and afterward I state the legal effect that I am imposing contingent on that condition.

Up to this point we’re talking about… the wording or the performance? No, no—the wording. The wording. These are forms for phrasing the conditional sentence. Where were we? That the condition precede the act, and that the condition be something possible to fulfill. Right? If I say to someone, “on condition that you go up to the moon,” that has no significance. “If one of these is missing, the condition is void, as if there were no condition at all, and she is betrothed or divorced, and the sale or gift takes effect immediately, as though he had made no condition at all, since one of the four elements of the condition is missing.”

Meaning: the rules of conditions are requirements without which the condition is not valid. Okay? What happens if I stipulate not according to the rules of conditions—not doubled, or something like that? Then the act stands. Notice this well—we’ll come back to it later: the act stands, and it stands in any event. It is not contingent on anything. In other words, if I betrothed a woman on condition that she give me two hundred zuz, but I didn’t make a doubled condition, or the positive did not precede the negative, or something like that, then the woman is betrothed in any case—whether she gives me the two hundred zuz or whether she does not. If the condition wasn’t complete? Yes. Meaning, the condition is nullified and the act remains in force. One might have thought the act would be nullified—but no, the act remains and there is no reservation of a condition. Meaning, the act stands in any case.

Are the rules of conditions from the Torah because of the case of the Gadites and Reubenites? Yes. Most of the medieval authorities (Rishonim) learn that the rules of conditions have to match what was there—precisely in those respects. You don’t have to copy it word for word; the Sages extracted from Moses’ formulation the essential principles. You don’t have to reproduce Moses’ exact wording, but the positive must precede the negative, the condition must precede the act, there must be a doubled condition, and it must be possible to fulfill—that is, it has to be something practical. Fine, I think so.

There are actually additional requirements for a condition to be valid. Maimonides doesn’t bring them here. One is that it must not be a condition contrary to what is written in the Torah. If one makes a stipulation against what is written in the Torah, his condition is void. And regarding monetary matters, that is a dispute between Rabbi Meir and Rabbi Yehuda. These aren’t things intrinsic to the form of the condition; they’re the rules that accompany the condition. Right. What does that mean—what is a condition? Right. And here another requirement is what I mentioned earlier: something that cannot be done through an agent also cannot be made conditional.

Now why aren’t those two brought here in Maimonides in the straightforward presentation? Because they don’t relate to the modes of phrasing the condition. Meaning, those are simply general rules about what can be made conditional at all. That’s something else. Maimonides here wants to tell me how to formulate a condition properly, and for that there are only four requirements. With one caveat: what he says here—that it must be something possible to fulfill—that too isn’t exactly a question of wording. Right? When he says you can’t make a condition that she go to the moon, that’s not a question of wording. That’s a rule telling you what can be used as a condition, what can be set up as a condition. So at first glance I might have expected Maimonides not to bring that either. But I still think it’s somewhat different. Because we tell a person: listen, when you betroth a woman, you have to build the condition in a certain way, and know that the condition you make has to be something feasible. The requirements that say it has to be something that admits agency, or that it can’t go against the Torah—those are much more peripheral requirements; they don’t have to accompany every stipulation. It’s true there are things you can’t make conditional. That’s why Maimonides didn’t bring them here.

Maybe because often when you make an unfeasible condition with someone, what you really mean is that you have no intention of doing it at all. It’s just empty talk, in short—just declarations. It may be that he simply wants to torment her. We’ll get to that later, right, that will come later.

In any case, as I said before, there are two kinds of conditions: a condition of “from now” and a condition of “if.” That’s how Maimonides writes in law 15–16. Look there. “One who betroths on condition—when the condition is fulfilled she is betrothed from the time the condition is fulfilled, not from the time she was originally betrothed.” Right? From when is the woman betrothed? He gives her a perutah and says, “You are betrothed on condition that you give me two hundred zuz.” She comes a week later and gives him the two hundred zuz. From when is she betrothed? Maimonides says: from the time she gave the two hundred zuz, not from the moment she received the perutah. Okay?

How so? “One who says to a woman, ‘If I give you two hundred zuz this year, you are hereby betrothed to me with this dinar; and if I do not give you, you shall not be betrothed’”—a doubled condition. “And he put the dinar into her hand in Nisan, and he gave her the two hundred zuz that he had stipulated with her in Elul—she is betrothed from Elul. Therefore, if another betrothed her before the first one’s condition was fulfilled, she is betrothed to the second,” because she was not yet betrothed, and he took effect on her; now the first betrothal in Elul can no longer take hold. “And similarly regarding bills of divorce and monetary matters, the bill takes effect, or the sale or gift takes effect, at the time the condition is fulfilled.” When does that apply? “When there was a condition and he did not say ‘from now’”—that is, in a condition of “if,” as we said earlier.

But if he said to her, “You are hereby betrothed to me from now with this dinar if I give you two hundred zuz,” and after some time he gave her the two hundred zuz, then she is betrothed retroactively from the time of the betrothal, even though the condition was fulfilled only much later. Therefore, if another betrothed her before the condition was fulfilled, she is not betrothed. And the same applies to bills of divorce and monetary matters. Or in betrothal too, what if afterward he didn’t give it? That’s another question. Simply reading it, it seems yes—that if afterward the condition is not fulfilled, then the second betrothal does take effect. Maimonides is speaking about a case where the condition ultimately is fulfilled.

All right. There are two qualifications to the laws of conditions. The first qualification is a view that Maimonides himself brings there in law 14: “Some of the later Geonim said that a person need only double his condition in bills of divorce and betrothal, but in monetary law he need not double it.” That view is very puzzling. Why? Because where do we learn a doubled condition from? Maimonides says—from monetary law! Certainly not from divorce and betrothal. He says only divorce and betrothal? We’re talking about the inheritance of the Land of Israel. But he says only in divorce and betrothal did they relate to it that way. Okay. “And it is not proper to rely on this opinion,” says Maimonides, “for the doubling of the condition together with the other four matters were learned by the Sages from the condition of the Gadites and the Reubenites: ‘If the Gadites cross over… and if they do not cross over…’ And this condition was neither in bills of divorce nor in betrothal. And so ruled the early Geonim, and so it is proper to do.” Meaning, Maimonides rejects this; it’s an isolated opinion.

Maimonides also rules, as I said earlier, in the next law, 17–18: “Whoever says ‘from now’ need not double his condition, nor need he place the condition before the act; rather, even if he places the act before the condition, his condition stands. But he must stipulate something that is possible to fulfill.” Meaning, this requirement—that it be something possible to fulfill—is of course a requirement that exists also in a “from now” condition, not only in a condition of “if.” How does that fit with the four conditions he established? That is only in a condition of “if,” not in a “from now” condition. In a “from now” condition there are no such requirements. That’s what he says. Okay? Only in a condition that takes effect from the moment the condition is fulfilled. In a condition that takes effect from now, there’s no problem; you can formulate it however you want, as long as it’s clear what you mean. It’s not exactly a condition, sort of—it’s more part of the… We’ll talk about that in a moment. We’ll talk about that in a moment.

How so? “He says to a woman, ‘You are hereby betrothed to me on condition that you give me two hundred zuz’; ‘This is your bill of divorce on condition that you give me two hundred zuz’; ‘This courtyard is given to you as a gift on condition that you give me two hundred zuz’—his condition stands, and the woman is betrothed or divorced, and this person acquires the courtyard, and they will give the two hundred zuz. And if they do not give, she will not be betrothed, nor will she be divorced, nor will the other acquire the courtyard, even though he did not double his condition, even though he put the act before the condition, and gave the betrothal money or the bill of divorce into her hand, and this one took possession of the courtyard, and only afterward completed his condition. For when the condition is fulfilled, this one will acquire the courtyard and this one will be betrothed and this one divorced from the first moment when the act was done, as though there had been no condition at all.”

In short, that’s the example in practice. There’s some problem in the wording here, but I won’t get into that now. In Maimonides it comes out a bit as if this isn’t just a problem of wording but of actual implementation. What you thought earlier, it seems to me—I told you that it’s obvious this is only about wording. That is agreed by all the medieval authorities (Rishonim). But in Maimonides’ wording here there’s some indication that it has to be in the actual implementation too. But let’s leave that aside; that’s a complication in itself.

All right. So what really happens when a person does not make the condition according to the rules of conditions? He puts the condition before the act—or the act before the condition—and so on. We already said earlier: the condition is void and the act stands. One source for this is the Talmud in tractate Ketubot 56; I brought it there. “And we have heard Rabbi Yehuda say that in monetary matters his condition stands. As it was taught: one who says to a woman, ‘You are hereby betrothed to me on condition that you have no claim upon me for sustenance, clothing, and marital relations’—she is betrothed and his condition is void; these are the words of Rabbi Meir. Rabbi Yehuda says: in monetary matters, his condition stands.” Okay? Sustenance and clothing are monetary matters; marital relations are not monetary.

But doesn’t that go against the Torah? What? Doesn’t that go against the Torah? Yes, it does go against the Torah. That’s exactly what he’s saying: that in monetary matters you can make a stipulation even against the Torah. Meaning, you can stipulate against the Torah? You can stipulate against the Torah. I can say, “You are betrothed to me provided that I will not be obligated to support and clothe you.” She is waiving the right? And she has to waive the right. If she doesn’t waive it, she is not betrothed. That’s the condition. If you don’t waive it, you are not betrothed. And that’s part of the whole thing.

So is that really a matter of waiver? That’s a complication in itself, because “on condition that the Sabbatical year not release my debt” or “release it during the Sabbatical year”—that’s a complication of its own; we won’t get into it here. In principle, at least in betrothal, it is clear that it is a matter of specific waiver. Why? What, don’t you have some case where it isn’t? Regarding what? A woman can’t make a permanent waiver? After the betrothal? No, she doesn’t waive it each time. She waives it at the foundation: in this betrothal there is no obligation at all of sustenance and clothing. You could perhaps say she waives this and something else—I don’t know. No, that’s a different passage. You can waive marriage-settlement conditions when one side corresponds to the other and they can waive them. Right now I’m talking about sustenance, clothing, and marital relations—that’s Torah-level, not part of the marriage settlement. The marriage settlement is rabbinic, at least according to the accepted Jewish law.

Anyway, there is a dispute here whether in monetary matters one can stipulate against what is written in the Torah. Again, that topic is complicated and we won’t get into it here. What matters for us is what happens when he did it incorrectly. Meaning, if he stipulated—sorry, just one second—we’ll get to the famous Tosafot right here, and then things will become clear.

In any case, what is written here is that a person cannot stipulate against what is written in the Torah. If he stipulates against what is written in the Torah, then the condition is void and the act stands. We also saw that in Maimonides earlier; this is one of the sources in the Talmud. In monetary matters there is a dispute between Rabbi Meir and Rabbi Yehuda. But even according to Rabbi Meir, for example, who does not distinguish between monetary matters and anything else—what happens if you stipulate against what is written in the Torah? You have violated one of the rules of conditions. Then what is the result? The act stands and the condition is void. Okay? Meaning, she is betrothed to him whether he will be obligated in sustenance, clothing, and marital relations or not—it makes no difference; she is betrothed in any event.

Now, that is a hard statement. A very hard statement. We’ll get to that in a moment. Tosafot—the next source I brought you—asks the following: “she is betrothed and his condition is void.” Tosafot is speaking according to Rabbi Meir’s view. According to Rabbi Meir, who says that even in monetary matters the condition is void—you can’t stipulate against what is written in the Torah, even in monetary matters. So what is Rabbi Meir actually telling us? If I now betrothed a woman on condition that she has no claim on me for sustenance, clothing, and marital relations, then the condition is void and the act stands—meaning, she is betrothed to me and I owe her sustenance, clothing, and marital relations. Right?

Tosafot asks: how can that be? It must be that the case is one in which he doubled his condition, where he said to her: “If you have no claim upon me for sustenance, clothing, and marital relations, then you are betrothed to me, and if not, do not be betrothed.” It must be that this is a case of doubled condition. Why? Because the Talmud later says that Rabbi Meir’s reason why the condition is void is because he is stipulating against what is written in the Torah. But if he didn’t double his condition, then according to Rabbi Meir the condition would be void anyway simply because Rabbi Meir requires a doubled condition, as is said elsewhere. After all, Rabbi Meir is the father of the position that requires a doubled condition. So if in fact this were a case where he had not doubled the condition, why invoke the fact that he stipulated against the Torah? The condition would be void anyway just because it wasn’t doubled. There’d be no need to reach the point that it’s against the Torah. Rabbi Meir is the father of the position that says you need a doubled condition.

Wait, wait, wait—but aren’t those two things different in weight? A doubled condition or this specific issue—why, what difference does it make? No. I’ll give you an example. According to Rabbi Yehuda, who says you can stipulate against what is written in the Torah—if this were a case of a non-doubled condition, then he would have needed to invalidate it because it wasn’t doubled. Right. In Tosafot there are such things—but why not? Tosafot proves that necessarily this is a case in which he did double the condition. In other words, even when he doubled the condition, if it goes against the Torah, the condition is void and the act stands, right? Even when he doubled the condition—that is Tosafot’s proof. This has to be true, because if it were only in a case where he had not doubled the condition, then obviously the nullification of the condition would be because it wasn’t doubled, not because it was against the Torah. Rather, necessarily, this is a case even where he did double the condition, and nevertheless Rabbi Meir tells us that the condition is void and the act stands. Right?

Then Tosafot says: and this is astonishing. If so, why is she betrothed? He explicitly stipulated that if she has a claim upon him for sustenance, clothing, and marital relations, then she is not betrothed. What are we really saying? This man doesn’t want to betroth her; he doesn’t want this woman. He says: if I owe her sustenance, clothing, and marital relations, I don’t want her. And what do we tell him? Ah, you’re stipulating against what is written in the Torah—she is your wife whether you like it or not, and you owe her sustenance, clothing, and marital relations. But on the side where I owe her sustenance, clothing, and marital relations, I never wanted to betroth her at all. So how can you tell me that against my will she is betrothed? How can it be that the condition is void but the act stands? How does the act stand? I don’t want her.

Could one say here that when a person says to a woman that he wants to betroth her, and then he says something that is contrary to the Torah, then that’s just empty chatter? Yes, just empty chatter. If he says he wants to betroth her, then he betroths her. Why? What do you mean—he doesn’t have that intention? No. He doesn’t want to betroth her, and nevertheless he betrothed her? So that’s a kind of presumption. No, if it were an unequivocal presumption—well, in a minute we’ll see whether it’s his intention or not. That is Rabbeinu Tam’s approach. If he had made a condition that wasn’t against the Torah, what would be the problem? On the side where the condition is fulfilled, she is his wife; and on the side where it is not, then not. But here you want to say she is his wife even though what he wants is not fulfilled. Meaning, he says: if you want sustenance, clothing, and marital relations from me, then I don’t want you. And now you tell him: you’ll pay her sustenance, clothing, and marital relations, and she is your wife. What do you mean? On that side, I didn’t betroth her at all. I don’t want her. I didn’t betroth her at all on that side. Not because of the laws of conditions, but simply because there is no intention of betrothal. If I perform an act of betrothal without intending to betroth, the act is void; that isn’t an act of betrothal, regardless of the laws of conditions.

This question is based on the assumption that conditions are self-evident. But if we say that conditions are an innovation, after all he did intend the act of betrothal. So that is Tosafot’s answer—we’ll see in a moment. So indeed, on the face of it, this question is very difficult. Rabbeinu Tam’s view is that in fact we are dealing here with a presumption about his intention. Meaning, what you suggested earlier—that if a person says to a woman a condition like this against the Torah, he simply does not mean it seriously. It is obvious that a person does not seriously intend to make a betrothal contingent in a way that involves a transgression, in a way that goes against the Torah. Therefore it is obvious that he intends to betroth her, and he is just babbling nonsense. He was just playing games with this condition—“on condition that you have no claim on me for sustenance, clothing, and marital relations.” That’s what Rabbeinu Tam says. Then everything is just a presumption about his intention—that’s one thing.

The question is whether that really is our assessment of the intention of a person who makes such a condition. I have major doubts. There are cases where yes, and there are cases where not. If it is clear that the person did mean it seriously, and he did not double the condition, or he did not—understand: if a man betroths a woman on condition that she give him two hundred zuz, or on condition that—I don’t know—something very important to him, all right, two hundred zuz is important. Okay? And he didn’t double the condition. Leave aside the issue of going against the Torah; just suppose he didn’t double the condition. Then what? She doesn’t have to do anything for him and she’ll still be his wife? He doesn’t want her! How can that be? And what, are we going to say he lacked resolve to betroth her? You can maybe say that in a case of stipulating against what is written in the Torah, because who wants to go against the Torah? It’s not likely; he didn’t mean it seriously: “I’ll betroth you without sustenance, clothing, and marital relations.” But where he merely put the act before the condition, or failed to double the condition—applying Rabbeinu Tam there is very difficult. What, a person didn’t mean it seriously just because he didn’t formulate it according to all the rules? So what? It’s pretty clear that he does intend to make the betrothal contingent on that thing. What do you mean?

And here we always come back to this issue of what exactly is “the condition” and what exactly is “the act.” After all, many times a transaction has two sides—meaning, the whole transaction is one big condition. I’m selling the field on condition that you give me two hundred. A transaction isn’t a condition. No, no, that’s something else. When I transfer a field to you on condition that you give me two hundred zuz, that’s not a sale, that’s a condition. But that’s the payment. I’m giving you the field as a gift—no, no—on condition that you give me two hundred zuz. A sale is not “on condition.” A sale is selling in exchange for two hundred zuz. But if someone formulates it as a condition—I sell you the field on condition that you sell me the Rolls-Royce—then that’s a gift: that you give me the Rolls-Royce. One consequence, for example, would be that when he gives you the money it still isn’t acquired by him. It isn’t an act of acquisition, because the money here is not payment-money that acquires the field; the money here is merely fulfillment of a condition. But then how did I acquire the thing itself? You need an act of acquisition. That’s all. For example, there are various approaches as to whether money really has the status of acquisition money. In Jewish law, say on the Torah level, money does acquire—or does not acquire—and exchange does, and so on.

All right. So that is Tosafot’s question, and on its face it is a difficult question. Rabbeinu Tam’s answer may perhaps be said regarding a stipulation against what is written in the Torah, or simply with a condition involving something impossible altogether, like going to the moon. But with “condition before act,” “doubled condition,” “positive before negative,” I think it’s quite difficult.

The view of the Ri. Tosafot brings here the Ri’s answer, and this really begins our issue. The Ri says: had we not learned from the condition of the Gadites and the Reubenites, we would have thought that no condition can nullify an act; and even if the condition is not ultimately fulfilled, the act still stands. Now that we do learn from there that a condition is effective to nullify an act, we say that this is only when one is not stipulating against what is written in the Torah, like the case of the Gadites and the Reubenites, who did not stipulate against what is written in the Torah.

The Ri breaks this question down into three stages. He is basically saying that in order to answer Tosafot’s question, we need to ask ourselves a far more fundamental question: why do we need a Torah innovation at all for the laws of conditions? Isn’t it obvious? Every legal system in the world, as far as I know, has conditions. Every legal system in the world has conditions; you can make things conditional. Why should we need special innovations? If I betrothed a woman conditionally or sold something conditionally—then what? Without special Torah law, would the condition be void and the act stand? Then the condition would be as though it had never been said at all? Like any other unreal thing? From our perspective that would not be genuine resolve. And therefore what? Therefore the act would be void? The question is: what would you say—that the transaction is void, or that the transaction stands and the condition is void? That’s the question.

So the Ri says that this question parallels the question that troubled Tosafot here. Tosafot’s question here is another question; it arises after the law of conditions has already been innovated. But it wasn’t done according to the rules the Torah prescribed. So Tosafot asks: how can it be that in such a situation we rule that the act stands and the condition is void? Why? The act too should be void; he doesn’t want her as a wife. The act should be void—how can the act stand?

The Ri says: let’s ask you exactly the same question more deeply. The Torah innovated laws of conditions. Why was that innovation needed? What would have happened without the Torah’s innovation? Would I not have understood on my own, even without a Torah innovation, that if I made a condition, then if the condition was not fulfilled, I never wanted to transfer anything in the first place? Obviously it wouldn’t be transferred. If a Torah innovation is needed, that implies that there is something novel in the laws of conditions. Meaning, without the Torah’s laws we could not have made conditions at all. That itself is a great novelty—the novelty is that this is a novelty. Meaning, without the Torah’s laws we could not have had conditions. What would have happened without the Torah’s laws? A man would say, “You are hereby betrothed to me on condition that you give me two hundred zuz,” and she would be betrothed to him regardless of whether she gave him two hundred zuz or not. That is what would have happened had the Torah not innovated the novelty of the laws of conditions. We’ll soon see why. We’ll soon see why.

After the Torah innovated the laws of conditions, it tells us: if he made a condition, then the condition is effective. And if she did not give him the two hundred zuz, she is not betrothed. But that is only if he formulated the condition the way the Torah taught, with all the rules. If you didn’t meet the rules, then the Torah’s innovation—that a condition is effective—was never innovated in that case, because that innovation was only given if you do it according to the pattern established by the Torah. So if you didn’t do it according to the pattern established by the Torah, to what situation do we return? To the situation as though no condition had been made at all. Essentially to the situation that would have existed had the Torah never innovated the laws of conditions at all.

Now we really have to understand why, in such a situation, the act stands in all events. So look: there is a hint to this in the Ri’s language, and later authorities expand it further. He says, “No condition nullifies the act.” We would have thought—had we not learned from the condition of the Gadites and the Reubenites—that no condition can nullify an act. We would have thought that a condition has no power to nullify an act, because the very concept of condition contains a great novelty. The novelty is that speech comes and uproots an act. The rule we have is: speech does not come and nullify an act. Speech cannot uproot an act. If I performed a certain act, speech cannot uproot it. He gives the woman a perutah. He says nothing—then she is betrothed, no? Though from the context it’s clear what he means. What are you saying? Without the speech, the act of giving has no significance. Correct: the speech gives character to the act of transferring the perutah. So why do we accept, according to the Ri, the statement “You are betrothed to me,” but we don’t accept the part “if you do such-and-such”? It’s part of the same speech, the same speech that gave meaning to the act. No, but he says that once the act already exists, speech cannot uproot it. But the speech wasn’t completed; the speech is missing something. The speech said: listen, I’m giving you this, and if you do such-and-such you’ll be betrothed. The condition doesn’t hold back the act; the act itself is complete, and the condition is something else. That’s the point I want to get to in a moment; I think that’s an important point.

What really lies behind the Ri’s words is that an act of transfer or imposing a legal effect conditionally works in a way we would not at first think. At first glance we think as you described: that the speech basically tells me on which side I carried out the act. If the condition isn’t fulfilled, then it turns out there was no intent of betrothal at all; no act was done. It’s like giving her a perutah without saying “you are betrothed to me”—exactly what you brought up. The Ri innovates and tells us that this is not the point, not the mechanism of a condition. The mechanism of a condition is this: we actually transfer the thing in any event—or impose the legal effect in any event; it doesn’t matter. The role of the condition is to uproot the legal effect if the condition is not fulfilled. That is the role of the condition.

Meaning, it is built like this: the condition is not a preliminary requirement for the effect itself to take hold. The effect takes hold in any case. But the Torah’s innovation of condition tells us that we have the power, by means of speech, to determine that if the condition is not fulfilled, our speech will uproot the act that was done. The act is done on both sides. But if I made the speech according to Jewish law, then it has the power to uproot the act that was done. That’s how the Ri understands the mechanism of condition.

Why is it really like this? It seems to me that what the Ri is really trying to say is that there is no such thing like what we said earlier regarding making the intentions of a commandment conditional. There is no such thing. If you perform an act, then that act has to take effect. There is no such thing as: this act is an act of betrothal, so an act of betrothal imposes betrothal, period. What does it mean: betrothal on this side, and on that side not? In practical terms, are you doing an act of betrothal now or not? If you are doing an act of betrothal, then it is betrothal. But we said that part of the act of betrothal is done through speech. So how do you split it this way or that? How do you divide his speech? Obviously why did he give her the money? He gave her the money for the sake of betrothal. Meaning, on the side where the betrothal is nullified, she will have to return the money to him, right? The perutah he gave her. The giving of the perutah is clearly for the sake of betrothal. It’s just that there is a possibility that he doesn’t want the betrothal, in which case he’ll get the perutah back.

So the Ri says: when you perform an act whose meaning is betrothal, that act imposes betrothal. Period. Now, if you say a condition, then without a Torah innovation I would say: too bad. You did betrothal. Speech cannot uproot an act. The Torah innovates that in certain circumstances one can by speech uproot an existing act. But the Torah does not say that the condition suspends the imposition of the legal effect. It leaves the Ri’s understanding in place. Meaning, the legal effect takes hold on both sides in any case. But speech can uproot the act if you formulate it according to all the rules of conditions.

Now you’ll ask: but we asked—didn’t the man not want to betroth her? What do you mean, he didn’t want to betroth her? He did want to betroth her. It’s just that on the side of sustenance, clothing, and marital relations he didn’t want to betroth her. When he imposed the legal effect, he has to understand that if you want to impose a legal effect conditionally, this is how it works. True, this is forced on him; he didn’t intend that. But what did he intend to do in the end? Even if he is unaware of it, that is not important. That is what he actually did. He imposed the legal effect in any case. He just wanted the condition to uproot the legal effect if the condition was not fulfilled. But if you didn’t make a doubled condition, or you stipulated against what is written in the Torah, or something like that—you didn’t formulate the condition properly—then the Torah’s innovation that speech can uproot an act was not said with regard to this. So the act remains in force against your will. There’s nothing to do. You did perform an act, even though you didn’t want that result. You intended the act. You intended to perform an act of betrothal. So you’re stuck—you performed an act of betrothal. In a sense, it’s like “things in the heart are not legally binding.” You performed the act; you didn’t manage to get yourself out of it. Words do not remove the force of acts.

The interesting point is that Tosafot here is actually very clear—especially this Tosafot. Tosafot here, in this major discussion, is worded very, very clearly, unlike many Tosafot passages. Even though there is still a lot to dig into. Meaning, what I did just now includes a lot of elaboration from the later authorities beyond the wording itself. Not all of it is absolutely necessary, but never mind.

Let me now return to Maimonides, because there really was a good point here, and maybe it will make the picture clearer. Earlier we mentioned that Maimonides distinguishes between a condition of “if” and a condition of “from now.” A condition of “from now” takes effect from now, and a condition of “if” takes effect only from the moment the condition is fulfilled. Where would you have said, based on pure logic, that you need a doubled condition—or the rules of conditions? According to the Rif and Tosafot, it really is like that. In what? In a “from now” condition or an “if” condition? Where is it more logical? Why? Because if you make a “from now” condition—what does “from now” mean? It means I actually acquire it from now, right? Now I want that if the condition is not fulfilled, it should be uprooted. Ah, you want it uprooted? Then we need the rules of conditions. There are rules for how you do that—that is what the Ri is teaching us. One second—what happens in a condition of “if”? In a condition of “if,” nothing has happened yet, has it? No legal effect has yet taken hold. The legal effect will take hold only if the condition is fulfilled. So what’s the problem? You shouldn’t need the rules of conditions, you shouldn’t need anything. Everything is fine. I don’t need to uproot any act. The act won’t take hold in the first place unless the condition is fulfilled. So what is the problem? That’s basically what you asked before. Right. So what’s the problem? In that case, the Ri’s logic should lead us to the opposite distinction from Maimonides’. Specifically in a “from now” condition it makes more sense to require the rules of conditions than in a condition of “if.” Why? Because in a “from now” condition we specifically want the speech to uproot an act. Why? Because the act takes effect already from now. And I want that if the condition is not fulfilled in the future, then the act should be uprooted. But for speech to uproot an act, we need the rules of conditions.

What happens in a condition of “if”? I’m not uprooting anything; there is no legal effect at all. The legal effect takes hold only when the condition is fulfilled. The condition suspends the taking effect of the legal effect in the first place. So what problem is there in making it conditional? Why would we need the rules of conditions there? I’m not uprooting anything. This is the reverse of the logic. So Maimonides seems to take what the Ri said in an even stronger direction. Meaning, so much novelty is needed for canceling an act that if the act was really done, it actually can’t be canceled. And it can’t be canceled… But in a “from now” condition it can be canceled. That’s what a “from now” condition does. What is a “from now” condition? Can’t you really make conditions? Can’t you cancel an act according to Maimonides? But he says you can. In a “from now” condition I say: “You are hereby betrothed to me from now on condition that you give me two hundred zuz.” I didn’t double the condition. If she doesn’t give me the two hundred zuz, the betrothal is void—even though she is betrothed from now. How did the speech uproot the act? An act was definitely done: “You are hereby betrothed to me from now.” Wait—and in that case you really can apply conditions even without the rules of conditions? Yes, you don’t need the rules of conditions. And that is the reverse of what logic would suggest. I would have expected that precisely there we would need the rules of conditions.

No, there is a logic to it. Because if the act, the legal effect, has already… Look, I think the point is this. The point is this. A condition of “if” cannot be taken literally. Let’s start with the condition of “if.” A condition of “if” cannot be taken literally. What did I actually describe in a condition of “if”? In a condition of “if” I say: I give you a ring and say, “You are hereby betrothed to me on condition that within a week, say, by a week from now, you give me two hundred zuz.” Fine? A week later she comes and gives me the two hundred zuz, and the betrothal takes effect from then—from that week later, right? That is a condition of “if,” not “from now.” Fine? What was the act that imposed the betrothal? What was the act of betrothal? A woman is acquired in three ways—by three… The statement and the giving. The statement and the giving. But the two hundred she gives—isn’t that the giving? But her giving can’t betroth her. The money has to belong to the husband, right? It must be the husband’s giving of the money. But what—you did the act now, and the betrothal takes effect a week later. Who performs it a week later? The woman? In the language of the Talmud this is called “his acquisition act has already ended.” There is no such thing. If you do an act now, and the legal effect doesn’t take hold now, then it will never take hold. There’s no such thing. Either it takes effect now, or too bad—the act is over. What do you mean that in a week the legal effect will suddenly take hold? The act is over. What do you mean that in a week out of nowhere she’ll suddenly become a married woman? What does that mean? The act that imposed the legal effect was already performed now. So either it succeeded in imposing the legal effect—and then it takes effect now—or it didn’t succeed in imposing the legal effect, in which case there’s nothing. What happened a week later? She gives me two hundred zuz and becomes betrothed? What? That doesn’t make sense at all.

But apparently you can’t really do a halakhic fast-forward. Fast-forwards are very problematic. In the simple sense it isn’t possible. Suppose I’m starting now to manufacture a pair of shoes for you or, I don’t know, a car, and I’m taking the money now, and I’m already making a lease agreement on a car that in Japan they haven’t even yet extracted the steel from the ground for. Okay, then indeed you can’t really do that. At most you can obligate yourself… They can obligate themselves to sell to you, and even that is a major question. How valid is that? Maimonides has indications that yes, but in the straightforward understanding it’s not valid. Obligations in general are very problematic in Jewish law.

But if she didn’t give him the two hundred zuz, then presumably—obviously not. But is that uprooting an act? No. At first glance, it’s nothing. Before speaking of uprooting, let’s first make it happen at all. No, because according to “from now,” there is an act here. A legal effect was created, there was… No, wait, I haven’t yet reached the conclusion. For now I only asked a question. I’m saying: let’s leave aside, for the moment, the uprooting of the legal effect and everything we said before. Let’s think: how is a condition of “if” built? How is it built? Even before questions of uprooting and all that. A valid condition—doubled, positive before negative, not against the Torah, everything is fine—how is it built? Surely it can’t be that an act I do now did nothing, and then a week later some legal effect suddenly appears. What does that mean? The act had to impose the legal effect. If I said, “You are hereby betrothed to me”—I gave her a perutah and said, “You are hereby betrothed to me after thirty days,” with no condition at all—there’s no such thing. You can say “from now and after thirty days,” and then there is a Talmudic debate about exactly how she is betrothed, whether it grows gradually into place, so to speak, like a status that develops over time, somewhat like fruit tree status. But “betrothed after thirty days” as such—there’s no such creature. That is exactly what is meant by “his acquisition act has already ended.”

But specifically in betrothal, don’t you need the words and the perutah he gives her to do the betrothal? But in other things—not specifically betrothal—if someone says a condition, “If you reach the top of that mountain, then the car is yours.” From when is it his? You transfer the car on condition that he reach the top of the mountain. What’s the difference? No, I’m making a condition. Fine, you transfer the car on condition that he reach the top of the mountain. Yes, if you don’t reach the top of the mountain then the car isn’t yours, but from when is the car yours? From the moment he reaches it—if you said “if,” then from the moment he reaches the top of the mountain. Right. But that can’t be. When did you perform the act of transfer? I don’t know—when he reaches the top of the mountain. Then perform an act of transfer then. If you didn’t, then that isn’t a condition. Then you merely obligated yourself to transfer it to him. An obligation is something else. A condition always qualifies the act of transfer itself; that’s what I meant at the beginning of the lecture. A condition always accompanies the act of transfer itself. If you say, “Listen, if you get to that mountain, I promise I’ll sell you the car,” you can write that on ice—it’s worth nothing, because you didn’t transfer anything to him. That’s not a condition, it’s nothing. It’s simply nothing. Those words are worthless. You owe him nothing. There is only perhaps some moral obligation in terms of salesmanship or something, but no real legal effect.

In betrothal, apparently what betroths the woman is his act; the man has to perform an act and say, “You are hereby betrothed to me.” Yes—meaning, not other things. Her two hundred zuz don’t betroth her. But in other cases maybe not necessarily the act… Each case has to be examined on its own. I’m saying that in principle, in every case of condition, I perform an act now. No, but this is how it works in all areas. Whenever you make a conditional act, the initial act is the one that ordinarily imposes the legal effect. Now you merely want to suspend it, to tie it to some condition. But always, the act that imposes the legal effect is that first act that you performed. Whatever the condition does there will never itself be some sort of act that can impose the legal effect. Do you understand? Therefore it will always be the same situation; this isn’t unique to betrothal.

It seems to me there’s no choice but to conclude that a condition of “if” doesn’t work the way we thought. It is not some delayed legal effect that suddenly jumps in after a week. Rather, something is indeed created now. Now, Rabbi Soloveitchik, in Beit Yishai, formulates it—I saw this years ago, I don’t have it at home now so I don’t remember exactly—he writes something like: there is a floating legal effect. Meaning, you create the legal effect, but it does not yet rest on the woman. In other words, you created the legal status of betrothal when you gave her the ring, but it has not yet settled upon her. Of course, because if a second man comes… Yes, right—if a second man comes and betroths her, it may be displaced. Now, once she gives you the two hundred zuz, her two hundred zuz cannot create a legal effect, because a woman is betrothed only in three ways. So the legal effect, as it were, descends and clothes itself upon her, and then she becomes a married woman. Where is that legal effect in the meantime? It’s floating. Somewhere. A floating legal effect. It’s floating somewhere. Pure words—what do you mean “floating”? Like some kind of mist? Yes, metaphorical mist, obviously. Even metaphorically it’s hard to accept—what do you mean? It rests on her. He wants to say there’s a distinction between creating the legal effect and applying it to the woman. Those are two different things. First of all, you have to create such a legal object as the status of a married woman. Immediately after the condition? If he says “You are hereby betrothed after thirty days,” then why didn’t the floating status land after thirty days? Because only a condition can create a floating legal effect. That’s the novelty of the mechanism of condition. That itself is the novelty—this mechanism, the legal effect in suspension. Therefore only with a condition of “if” do you need this. Later on, yes; he already gave her the perutah. Yes, he put it in her hand and made the condition, right? And that created a legal effect of betrothal regarding her. No, but it’s not on her yet. It’s not on her, because if a second man comes and betroths her, then she is not betrothed to the second—provided she fulfills the condition. Right? That’s it. So a legal effect of betrothal has been created, but it hasn’t yet settled on the woman. The condition sort of holds the legal effect up above, so it doesn’t descend onto the woman. Once she fulfills the condition, then nothing is stopping the legal effect, and it falls onto the woman.

But in reality it already fell on her—she’s holding the ring in her hand. Not the perutah—the legal status of betrothal. The legal status of betrothal is a legal concept; it isn’t the perutah. The perutah was certainly given to her. But is every condition like that? Yes, that’s what he wants to claim: that there’s a difference between creating the legal effect—if I remember his wording correctly. But either way, in my opinion we have no choice but to say something like that. It can’t just be some invention of Rabbi Soloveitchik. You have to say something like that, because otherwise you have the problem that the act of acquisition has already ended. You simply can’t understand any other way a situation where the act is over now, but the legal effect takes hold only from thirty days later onward. There’s no such thing. Medieval or later authorities struggle over this floating legal effect? Those are the kinds of questions more typical of the later authorities. I don’t know of medieval authorities who discuss it explicitly. There are medieval authorities from whom such views might be inferred indirectly, but I don’t know anyone who formulates it that way. Maybe they thought one could see it behind the lines, but I don’t know of anyone who said it outright. Those formulations belong to the later authorities. The style of thought—not the exact terminology, but the whole legal-conceptual framework—that’s definitely later, not the medievals. The medievals think much more intuitively; they don’t enter into such formal definitions.

In any case, that is his claim. Now that is in a condition of “if.” What happens in a condition of “on condition that,” meaning “from now”? In a condition of “on condition that,” I in fact create the legal effect and it also rests immediately on the woman, right? Except for one thing: it is contingent on her fulfilling the condition. Now notice carefully: if she does not fulfill the condition, then it isn’t that she was betrothed until the point where she failed to give the two hundred zuz, and from then onward she stopped being betrothed. Rather, what happens? It is uprooted retroactively. But again, if a second man comes and betroths her, then he committed a transgression this time. What? On the assumption that the condition will eventually be fulfilled. If the condition is not fulfilled, then not. The legal effect already exists now. So what? If the condition is not fulfilled, then the legal effect is uprooted retroactively—she was never a married woman at all. But in the meantime, during the week—“on condition that in a week you give me two hundred zuz.” Yes. What happens during that week in the middle? Suppose someone else comes and betroths her. If she gives me the two hundred zuz—wait, wait, not that she has two hundred zuz right now, but in a week she’ll give it to me. Yes. Right now we don’t know. We wait. I don’t know—someone comes now and betroths her; I don’t know what his status is. In a week we’ll see. If she gives me the two hundred zuz, then she is my wife and he had relations with a married woman. If she doesn’t give me the two hundred zuz, then she is his wife. And if she—what? Yes, if a child was born, then there are hard problems of illegitimacy there. So yes—it’s suspended. Right now we wait.

Now notice what comes out. Now everything fits. If we are talking about a condition of “if,” then what does the condition do in a condition of “if”? In a condition of “if,” what happens is that the speech does not allow the legal effect to settle on the woman. And if the woman does not fulfill the condition, then that floating legal effect just dissipates. Right? It disappears from the world. To cancel an existing entity, you need speech accompanied by the rules of conditions, because not every speech cancels an act. And that applies specifically in a condition of “if,” because in a condition of “if” the speech cancels an entity that was created. But in a condition of “on condition that,” in a condition of “from now,” no legal effect was really created on the side where the condition is not fulfilled, because there it was null from the outset, not from some later point. So it turns out that retroactively it is clarified that the legal effect never took hold. Not that it was uprooted—it never took hold. It turns out it never took hold. So you don’t need the rules of conditions, because I didn’t uproot an act. On the contrary, specifically in a condition of “if” I uproot an act. The opposite of intuition.

Didn’t we explain earlier that there was an act? No, the “act” here means the legal effect, not the physical act of betrothal. That itself is a novelty, by the way. This is the whole conceptual discussion. This is really a dispute among medieval authorities, since you asked. I probably won’t have time to get there, so I’ll just say it briefly. At the beginning of tractate Nazir, on page 11, there is a dispute between Rabbi Akiva Eiger and the Shitah Mekubetzet. Rabbi Akiva Eiger raises a difficulty against him—never mind—and the Kovetz Shiurim supports him. The Shitah Mekubetzet says there that a person can make naziriteship conditional and you don’t need a doubled condition. Why don’t you need a doubled condition? Because naziriteship is speech. How do you become a nazirite? You say, “I am hereby a nazirite.” Naziriteship is only speech. So since it is only speech, another speech can also cancel that speech. You don’t need the rules of conditions, you don’t need the Torah’s innovation. If that is so, then you don’t need a doubled condition, you don’t need anything—in other words, even in a condition of “if” you don’t need the rules of conditions in naziriteship.

Rabbi Elchanan Wasserman is very surprised by this Shitah Mekubetzet. Yes, Rabbi Akiva Eiger goes into this there. Rabbi Akiva Eiger is basically with the Shitah Mekubetzet. Rabbi Elchanan is astonished by this Shitah Mekubetzet, and he says: what do you mean? The status of naziriteship certainly exists. So what if it was created by speech? In reality there is something here. And if speech cannot uproot a reality, what difference does it make that this reality was once created by speech? What are they arguing about? Just to answer you: the dispute is over this question—when we say “speech does not come and nullify an act,” what exactly is that “act” that speech cannot cancel? Is it the physical act that created the legal effect, or is the legal effect itself called an “act”? If you say that the legal effect itself is called an act, then that is exactly our position. If you say that the “act” really means the thing that created the legal effect, then it’s something else. That does not fit with what I’m saying now. So it depends on that dispute among the later authorities there.

In any case, for our purposes, the bottom line is that we initially asked why the logic seems reversed. Specifically in a condition of “if,” it seems at first glance that the speech doesn’t have to uproot any act, since nothing has yet taken effect. It only takes effect from that later point onward. So why do we need the rules of conditions? I said that what requires the rules of conditions is the ability of speech to uproot an act. But in a condition of “if,” no act seems to have taken effect. And on the contrary—in a condition of “on condition that,” an act does seem to have taken effect. And despite that, in a condition of “on condition that,” according to Maimonides, you do not need the rules of conditions. Why? So I said now as follows: the logic is actually very simple. In a condition of “if,” an act definitely is being canceled—the speech uproots an act. Why? Because if it didn’t uproot an act, then how could the action take effect after thirty days at all? Clearly something was created already at the first moment. We called it a floating legal effect—something like that was created. Now the speech comes and dissipates that floating legal effect. Speech does not nullify an act. Not only that—how can you keep it floating the whole time so it doesn’t descend? You need something here to hold back the legal effect. That is the Torah’s innovation: a condition can do that. If you formulate it with the rules of conditions, then a condition can do that. If you did not formulate it with the rules of conditions, what happens? Then the legal effect takes hold immediately. It does not float. It goes straight onto the woman and is not contingent on anything. Why? Because to hold that legal effect up above requires power. Speech alone can’t do that. It has to be speech that works according to the rules of conditions, because otherwise there is no Torah innovation here that it can hold the legal effect up above.

By contrast, in a condition of “from now,” the condition means that the legal effect never took hold. It doesn’t operate then; it already operates today. So if the condition was not fulfilled, the woman was never betrothed. It is not that something was uprooted; nothing was uprooted. It was simply clarified that there was nothing to uproot in the first place. So you don’t need the rules of conditions there, because the speech is not uprooting an act.

I’ll give an example. There’s a Rosh in tractate Nedarim—now I remember. The Rosh in Nedarim asks about a vow. The Talmud says there that a vow is “something that has a way to become permitted.” There’s a rule that something which at some stage will become permitted is not nullified, and there are other stringencies too; in cases of doubt you have to be stringent, and so on. So this is “something that has a way to become permitted,” that’s what the Talmud says. The Rosh asks: a vow is not something that has a way to become permitted. Why does a vow have a way to become permitted? Because I can go to a sage and ask to be released, and he releases me from the vow, right? Says the Rosh: but if I go to a sage and he releases me from the vow, the vow is permitted retroactively. What turns out? That there was never a vow in the first place. But on the side where there is a vow, then it is an everlasting vow. Right? There is a possibility that it turns out there never was a vow. That is not called “something that has a way to become permitted.” “Something that has a way to become permitted” means, for example, something prohibited on Yom Kippur, or on Passover—leavened food on Passover. There are opinions about exactly how that works, but in the simple sense, leavened food on Passover is “something that has a way to become permitted,” right? Why? Because after Passover it will be permitted on the Torah level. Leavened food that remained over Passover is only rabbinically prohibited. So on the Torah level it becomes permitted after Passover. Right? That is “something that has a way to become permitted.” It was prohibited for seven days, and afterward it is permitted. But a vow—if I go to a sage and ask for release, it turns out there never was a vow at all. After all, he releases it retroactively; he doesn’t say, from now onward it’s permitted. What does the sage do? He shows me that I never really made a vow. On that side, there was no vow at all. So how is it “something that has a way to become permitted”? That is the Rosh’s question.

This is one of the innovations—whether from now onward or retroactively, Rabbi Shimon has a well-known discussion of it. Never mind; I only want to use this as an example, so you can see why, for example, in a “from now” condition I say there is no need to uproot an act at all. This is not speech uprooting an act. It is speech saying there was never an act to begin with. There is no uprooting here; nothing needs uprooting. Just as we see there in the Rosh, the sage is not uprooting something. This is not “something that has a way to become permitted”—it never was there in the first place.

I’m almost done. Did you pray the afternoon prayer? Fine, I’ll finish in one more minute. There is actually one very interesting point here—I’ll say it in one sentence, if you’ll allow me, because there is something very interesting behind all this. What comes out is that a legal effect is, as it were, a certain kind of entity. Right? A legal effect isn’t just some statement. A legal effect is an entity. I once discussed this with my students when we learned Rabbi Shimon on conditions. I didn’t get to it here. Rabbi Shimon wants to claim: what happens in the time period before the condition is fulfilled, in a condition of “if”? What happens during the period before the condition takes effect? He wants to claim that during that period the woman is both betrothed and not betrothed simultaneously, or both divorced and not divorced simultaneously. And after the condition occurs, one of those possibilities becomes clarified. So they asked me: what, that’s just empty words? If she’s divorced, then it’s not true that she’s not divorced. Can you say two opposites at once? Can a woman be both a married woman and unmarried at the same time? What does that mean? If she is married, then she is not unmarried; if she is unmarried, then she is not married. So what happens if another man comes in the meantime? Right, same issue.

So I said to them: what’s the difference between saying “the woman is a married woman” and saying “the legal status of a married woman rests upon the woman”? What’s the difference between those two statements? You say, “the woman is a married woman,” or you say, “the legal status of a married woman rests upon her.” At first glance that sounds like the same thing. But it’s not exactly the same. “The woman is a married woman” describes her halakhic status—the halakhic state that she is married, therefore relations with her are forbidden, and so on. But “the legal status of a married woman rests upon her” describes, as it were, her quasi-ontological state. Meaning, there is some entity called the legal status of a married woman resting upon her—that very legal effect that was floating around before, yes, now rests upon the woman. That’s an entity. The legal effect is a kind of entity.

What practical difference does that make? I’ll give you one. If I say that in a given soup or cooked dish there is both salt and sugar—is there any problem with that? No problem. There can be both salt and sugar. Maybe it isn’t tasty, maybe there’s some culinary problem, but no logical problem. Right? There can be both salt and sugar. But can I say that the dish is both salty and sweet at the same time—fully salty and fully sweet, not half-and-half? That doesn’t make sense, right? What’s the difference? The difference is that “salty” and “sweet” are descriptions, whereas salt and sugar are things, entities. Contradictions always exist between descriptions, never between entities. Meaning, entities never contradict each other; descriptions contradict each other. Something cannot be both fully sweet and fully salty—again, I mean fully, not partly. But something can contain both salt and sugar, right? No problem. They don’t contradict. One entity is an entity and another entity is an entity; there is no contradiction. Descriptions can contradict one another; entities do not.

So when I say a woman is both a married woman and not a married woman, I’m talking nonsense. But if I say that resting upon the woman is both the legal status of a married woman and the legal status of a divorced woman, that can be said. It’s like a dish containing both salt and sugar together. But now you’ll ask me: so what is the law concerning that woman? Law is already in the realm of descriptions. Fine—on the law I’ll answer you. What is the law? The law is always like this: you always follow the positive status, not the negative absence. Meaning, if I now performed an act of divorce conditionally, then until the condition is fulfilled the woman is both divorced and not divorced. So if you ask me: is she permitted to a priest? Say afterward she became widowed—is a priest allowed to marry her? No, he is forbidden. Why? Because she has a side on which she is divorced. On the side where she is not divorced, it’s not that the priest is obligated to marry her; there simply is no prohibition. So there is always a positive side, an active side, and a passive side. There is an actual status and a mere absence of status. “Divorced” is a positive status; “not divorced” is just absence, right? One second. So always the positive side is what determines the law. Meaning, both entities exist together. When you ask me what her halakhic description is—whether it is correct to say about her that she is a married woman—the answer is: not in a simple sense; she is something in between, depending on the issue. Regarding having relations with her, then clearly what is the positive legal status? That she is a married woman. Because “divorced” in that context only means there is no prohibition, but no one is obligated. There is just no prohibition. But the “married woman” side generates an actual prohibition, so what determines the law is the positive side. By contrast, regarding a priest, the opposite is true. There the fact that she is divorced is the positive legal status; the fact that she is not divorced is just absence. So what determines the law there is specifically the positive legal status.

Rabbi Shimon Schkop expresses it as though during the period until the condition is fulfilled the situation is one of doubt, but that is a mistake; it’s not an exact formulation. It is not doubt. It is both this and that with certainty. And what practical difference does that make? In Torah-level law it usually comes out the same way anyway, because stringency will generally follow the positive status in either case. But what about rabbinic law? In rabbinic law, in a case of doubt we go leniently. But if both statuses are actually present together, then we will still go stringently even in rabbinic law, because from the side of the positive status she is definitely forbidden, and this is not because of doubt. So even in rabbinic law we will go strictly. Okay?

So it is not the same thing as a situation of doubt. Here, for example, is a consequence of the idea that in halakhic thought a legal effect is an entity. Saying that a woman has a legal status resting upon her—the legal status of a married woman—that is not the same as saying that the woman is a married woman. That is the result. The result of the legal status of a married woman resting upon her is that her halakhic status is that she is a married woman, and then relations with her are forbidden and all the rest. But that is only the consequence; that is not the thing itself.

The same is true in property acquisition, by the way. One can prove this in all halakhic legal effects. Halakhic legal effects are not merely normative statements. They are not just statements of what is permitted or forbidden and so on. There are some realities here, and from those realities halakhic consequences follow. This can be shown in other contexts too—in ownership status and many other things—but that’s for another time. More power to you.