Conditions – Lesson 2
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- The section of the children of Gad and the children of Reuven as a contractual structure and a double condition
- A condition does not create a prohibition but qualifies legal effect
- The Ritva’s example and the distinction between violating actively and by passive omission
- The Torah’s novelty in the laws of conditions and the repetition of the section
- Maimonides: the seven rules of a condition and the order of study
- “Applicable to agency”: Tosafot and the logic behind it
- Double condition: dispute among Tannaim, logic, and formalization
- Kovetz Shiurim in the name of Rabbi Chaim: from the positive you infer the negative, and the need to verbalize it
- The Ran in Gittin and Maimonides: double condition as a formal requirement versus interpretation of intent
- Why the Torah had to introduce a novelty for conditions: retroactive clarification versus “from now on, retroactively”
- Two fundamental problems: reverse causality and “his act of acquisition has expired”
- The result of an invalid condition and the difficulty with “the condition is void but the act stands”
- Ketubot: the view of Tosafot and Rabbenu Tam on “stipulating against what is written in the Torah”
Summary
General Overview
The lecture summarizes the progress in studying the laws of conditions from the section of the children of Gad and the children of Reuven, and emphasizes that the Torah repeats the formulations of the condition in order to teach a novel legal mechanism, not merely to tell history. The difference is clarified between a moral or normative obligation and a legal condition, which does not create a prohibition but only qualifies legal effect, and it becomes clear that only in the place where the “contract” is actually concluded in the section does a true double condition appear. After a review of the rules of conditions in Maimonides and in the Talmud, the views of Tosafot and Maimonides are presented, along with the logical discussion of “from the positive you infer the negative,” and two foundational conceptions are shown regarding how a condition works: retroactive clarification versus “from now on, retroactively.” Finally, the fundamental question is raised of how it can be that when a condition is invalid, the act still stands, and this is connected to a dispute among medieval authorities (Rishonim) and to further discussion ahead.
The section of the children of Gad and the children of Reuven as a contractual structure and a double condition
The section is built as a rationale of interests and negotiation, followed by the formulation of a legal contract in which Moses stipulates a condition. The double condition appears only where the contract itself is concluded, not in the rationale sections where the parties’ wishes are stated. The wording “and if you do not cross over… then your sin will be added” is not a double condition, because it does not say “you will not receive the inheritance,” and it also uses the language of sin and prohibition, which is not the language of conditions. Moses does not object to the very request for inheritance beyond the Jordan; he objects to non-participation in the war, and the children of Gad and the children of Reuven agree to participate and ask that the inheritance be given to them in return.
A condition does not create a prohibition but qualifies legal effect
In a condition there is no meaning of “doing something wrong” in the very failure to fulfill the condition, but only the result that the legal effect does not take hold or is cancelled. One may say to a woman, “This is your bill of divorce on condition that you do not drink wine,” and she is permitted to drink wine; only the result regarding the legal effect changes. Even if drinking the wine would cause the divorce to be retroactively void and would create severe consequences regarding later relations and children, the very act of drinking wine is not a prohibition under the laws of a married woman. The reason is that the one making the condition is not the Holy One, blessed be He, and has no authority to impose prohibitions, but only to qualify the legal effect that is in his hands.
The Ritva’s example and the distinction between violating actively and by passive omission
The Ritva is cited regarding someone who washed his hands with a blessing and then changes his mind and does not eat bread, and the question is whether he must eat in order to “save the blessing” from becoming a blessing in vain. One possible reading implies that if a prohibition of a blessing in vain would indeed arise, there would be a need to save it; but some explain that there is no obligation to save blessings, and the problem exists only in actively reciting an unnecessary blessing. A comparison is presented between turning an act that was permitted into a result of prohibition and actually committing a prohibited act, and the explanation focuses on the distinction between legal obligation by force of a condition and moral or normative obligation.
The Torah’s novelty in the laws of conditions and the repetition of the section
The repetitions and precision of wording teach that the Torah wants to teach the very concept of a condition and the rules for formulating it, because without this novelty it would not have been clear that there is a legal mechanism that allows an agreed rationale to be realized through a conditional legal effect. It is emphasized that it is not enough that all parties understand what they want; a legal tool is needed that makes it possible to implement it. A key point is established: the Sages and the medieval authorities (Rishonim) understand this as a special novelty of the Torah, and yet a logical explanation is still needed for why such a novelty was necessary.
Maimonides: the seven rules of a condition and the order of study
Maimonides details the topic of conditions in the laws of marriage and divorce, even though they apply to all legal effects, and he presents standard rules of formulation. The four highlighted rules are: the condition before the act, the positive before the negative, a double condition, and something within one’s power to fulfill. In addition, stipulating against what is written in the Torah, applicability to agency, and condition and act concerning the same matter are mentioned. The planned order of continuation is presented: first the rules of conditions, then stipulating against what is written in the Torah, then stipulating against what is written in the Torah in monetary matters, and finally the sugya of “on condition that the Sabbatical year not cancel my debt” on page 51.
“Applicable to agency”: Tosafot and the logic behind it
The Talmud in Ketubot states that a condition is effective only in a matter that can be carried out through an agent, and the case of halitzah is discussed, which is not subject to agency and therefore cannot be made conditional. Tosafot asks why this rule is learned at all and why the learning is not limited just to land, as in the case of the children of Gad and the children of Reuven, and answers that from that case we learn only things that have a rationale. Tosafot explains that the ability to appoint an agent shows that the act is “so much in his control,” and therefore there is also logic that it is in his control to qualify the legal effect by means of a condition; but where control is limited and there is no agency, there is no power to stipulate.
Double condition: dispute among Tannaim, logic, and formalization
The Mishnah in Kiddushin 61 brings Rabbi Meir, who requires a double condition “like the condition of the children of Gad and the children of Reuven,” versus Rabbi Chanina ben Gamliel, who holds that there, it had to be said for a local reason and not as a general requirement. The Talmud in Nedarim ties Rabbi Meir’s view to the logical position that “from the positive you do not infer the negative,” and this is explained in terms of a sufficient condition and a necessary condition: there is no necessary logical reversal from the positive to the negative. On the other hand, it is explained that ordinary human language and understanding of intent may be enough for the other side to understand, and the question of requiring a double condition may be a formal requirement that the wording be “self-contained” and not dependent on context.
Kovetz Shiurim in the name of Rabbi Chaim: from the positive, and the need to verbalize it
Kovetz Shiurim (Bava Batra 137) asks why the Talmud in Nedarim proves Rabbi Meir’s view from double condition; perhaps Rabbi Meir agrees that “from the positive you infer the negative,” but still requires duplication by scriptural decree. In the name of Rabbi Chaim HaLevi it is explained that the dispute is whether the negative is included in the wording of the positive itself, so that saying only the positive counts as saying both sides, or whether we only understand the negative from his intent, but it is not included in his actual words and therefore is not considered explicit expression. It is established that in Nedarim one needs “to utter with the lips,” and therefore the dependence on this dispute comes from the requirement of formulation, not only from understanding intent.
The Ran in Gittin and Maimonides: double condition as a formal requirement versus interpretation of intent
The Ran (Gittin 46) distinguishes that a condition about the past does not require the laws of conditions at all and is similar to a mistaken transaction, yet Rabbi Meir still requires a double condition because he does not infer the negative from the positive. From this comes the claim that the Ran sees double condition as a tool to clarify intent and not merely as formalism. By contrast, it is argued that Maimonides rules that “from the positive you infer the negative” and nevertheless still requires a double condition in the laws of conditions, which shows that for him it is a formal requirement of proper formulation, “similar to the children of Gad and the children of Reuven.”
Why the Torah had to introduce a novelty for conditions: retroactive clarification versus “from now on, retroactively”
The foundational question is presented: if for a certain possibility he did not intend to apply the legal effect, why would a condition not work even without a special novelty in the Torah? A common conception is presented that a condition is retroactive clarification, in which the future event merely reveals information that was always true, similar to later knowledge about an already existing reality. By contrast, the approach of Rabbi Shimon Shkop is brought, according to which a condition works “from now on, retroactively,” so that the future event creates a legal change retroactively and does not merely reveal reality. An example is given regarding someone who had relations with a woman divorced conditionally, where according to “from now on, retroactively” the point of view depends on the time of judgment until the condition is fulfilled.
Two fundamental problems: reverse causality and “his act of acquisition has expired”
According to “from now on, retroactively,” the condition creates the difficulty of causal action running opposite to the direction of time, where a later cause produces an earlier result, something that would not be accepted without a novelty in the Torah. Another problem is “his act of acquisition has expired,” cited from the Ran in Nedarim 28b, according to which one cannot acquire after a lapse of time by virtue of an act of acquisition that has already “ended,” as in “pull this cow, but it will not become yours until after thirty days.” From here it is argued that conditions too pose the difficulty of how a future legal effect relies on an act that is no longer present in the world, and the novelty in the section of the children of Gad and the children of Reuven allows a mechanism that overcomes both problems within a proper legal formulation.
The result of an invalid condition and the difficulty with “the condition is void but the act stands”
It is established that when a condition is formulated improperly, the result is that the condition is void but the act stands, for example a bill of divorce or betrothal that takes effect regardless of the condition. A fundamental question then arises: how can the legal effect stand when the one stipulating explicitly defined that he did not want the legal effect on a certain possibility, and this is tied to understanding the mechanism of a condition. The question is later connected to the sugya of “stipulating against what is written in the Torah” in Ketubot and to clarifying how the medieval authorities (Rishonim) resolve the contradiction between explicit intention and the validity of the act.
Ketubot: the view of Tosafot and Rabbenu Tam on “stipulating against what is written in the Torah”
Tosafot in Ketubot explains that the case of “on condition that you have against me no claim of food, clothing, and conjugal rights” must, according to Rabbi Meir, be formulated as a double condition, otherwise the condition would fall for a different reason. Tosafot asks that if he did duplicate the condition, how can it be that “she is betrothed and his condition is void,” since he explicitly stipulated that if obligations toward her remain, she is not betrothed. In the name of Rabbenu Tam it is brought that since he is stipulating against what is written in the Torah, this is “as though he is merely speaking loosely,” and he does not seriously intend a stipulation that contradicts the Torah. It is said that next time another dispute will be presented, and it will be connected to the question whether a condition is retroactive clarification or a formal mechanism of “from now on, retroactively,” and there will also be a call to Beit Yishai to explain how the mechanism solves the problems of reverse causality and the expiration of the act of acquisition.
Full Transcript
[Rabbi Michael Abraham] Okay. So, a summary of where we stand. We went a bit over the section of the children of Gad and the children of Reuven, and we saw there that the Torah repeats several times the condition that Moses makes with them. Right, the topic this semester is really conditions, so we’re talking about conditions.
[Speaker B] The condition of the children of Gad and the children of Reuven, right.
[Rabbi Michael Abraham] Right. Simply speaking, we learn the rules of a condition and the law of condition from the section of the children of Gad and the children of Reuven. So we went through the section and saw that it’s really divided into a number of parts. Briefly, what I said was that the first part is the rationale, like in a legal contract. A legal contract always begins with, yes, “whereas Reuven wants such-and-such, and whereas Shimon wants such-and-such, the two therefore agreed to enter into a contract,” and now the contract is presented. Basically, in the section of the children of Gad and the children of Reuven, the first part is that rationale, the interests of the parties. The second part is the stipulation that Moses our teacher makes, and there he is really addressing the Israelites in general, not the children of Gad and the children of Reuven. And there, and only there by the way, does a double condition appear. Even though it looks as if it appears elsewhere in the section, we analyzed it carefully and saw that that’s not true. It appears only in one place. The double condition appears only where the actual contract itself appears. In the rationale, only what each side wants appears, but nowhere there is there really a formulation of a double condition. There is one thing that resembles a double condition, but it is not really a double condition. Because what it says there is that if you cross the Jordan, you will receive your inheritance,
[Speaker B] “and you shall be settled among them,” right,
[Rabbi Michael Abraham] and if you do not cross the Jordan, then your sin will be added to you. It does not say that you will not receive the inheritance. So that is not a double condition. More than that, it also says there that you will be in the wrong if you do not cross the Jordan, right, “your sin will be added,” or something like that, I don’t remember the exact wording. But in a condition — and I explained this at greater length last time — there is no such thing as being in the wrong when you don’t fulfill the condition. You are entitled to do whatever you want. All the condition does is qualify the legal effect. If I divorce a woman on condition that she not drink wine, she may drink wine. She is under no prohibition not to drink wine. It’s only that if she drinks wine, then the divorce is cancelled. But you can’t say to her, “You’re doing something wrong, don’t drink wine.” I said even more than that: even if she remarried and already has children from a second husband, and if she drinks wine then the divorce is void, her relations become illicit relations and the children become mamzerim, still, simply speaking, there is no prohibition on drinking wine. Because there is no prohibition against turning a relation that was permitted when it was done into an illicit relation. There is a prohibition against engaging in illicit relations. But when the relation was permitted, there is no prohibition against turning a permitted relation into an illicit one. And the idea behind this is that the one making the condition is not the Holy One, blessed be He. The one making the condition cannot tell a woman what is permitted to her and what is forbidden to her. You are not her owner. All you can say is under which possibility you apply the legal effect and under which possibility you do not apply the legal effect. Because the legal effect is in your hands. What is in your hands, you can also qualify. You can say: this way I do it, this way I don’t do it. You cannot tell a woman what she is permitted or forbidden to do. Of course there may be an interpersonal prohibition here — she turns her children into mamzerim, she makes their lives miserable. There is an interpersonal prohibition here. But there is no prohibition from the standpoint of the laws of a married woman. Meaning, a condition does not create prohibitions. The result created by the condition — namely that the divorce is void — may bring about a prohibition. Fine. But the act itself of drinking the wine obviously contains no prohibition at all. I don’t remember whether I brought this up last time; I wrote two columns on the site afterward, after last week’s lecture. So there I elaborated a bit more. There is a Ritva — did I bring the Ritva? I don’t remember anymore — regarding saving a blessing. The Ritva says: someone who washes his hands before eating bread and in the end changes his mind and doesn’t want to eat bread — is he obligated to eat bread in order to save the blessing on the hand-washing, so that it won’t be a blessing in vain? He already
[Speaker C] washed his hands.
[Rabbi Michael Abraham] Right, but you don’t wash your hands without then eating bread. What did you wash for? So in the Ritva it says no, but the Ritva’s reasoning, simply speaking, seems to be because the blessing was not a blessing in vain, exactly like you said. After all, he did wash his hands. It seems from the Ritva that if it really had become a blessing in vain, then yes, you would have had to save it. You would have had to eat. That’s how it sounds. There are those who explain the Ritva differently and say that there is no obligation to save blessings. It is forbidden to recite an unnecessary blessing. But if you recited a blessing properly, and afterward a situation arises in which it turns into an unnecessary blessing, there is no prohibition in doing that, exactly like the case of the relations that I mentioned earlier. That would be a violation by passive omission. Illicit relations are a violation through active commission, and an unnecessary blessing is also an active prohibition; it’s not a passive one. Yes, but I turned the blessing into an unnecessary one — I didn’t recite an unnecessary blessing. That’s a passive violation, because all I did here was not perform an active act of an unnecessary blessing; I turned a blessing that had been recited into an unnecessary blessing, so he calls that a passive violation. But as I said earlier, in the simple understanding, in my humble opinion there is no prohibition at all here, neither passive nor active.
[Speaker B] Since the act of the blessing has to be an act done immediately before the act, and since you refrained from eating, then basically you were passive.
[Rabbi Michael Abraham] Right, and therefore it’s an unnecessary blessing due to your passivity. Exactly. Right. Meaning, the violation here is not the unnecessary blessing or the relation that happened then, but rather the action I took now — except I didn’t act, right — so that’s something else. Okay. In any event, for our purposes, I only brought this in order to sharpen the difference between obligation by force of a condition, what we might call a legal obligation, and a normative obligation. For example, with the children of Gad and the children of Reuven, Moses our teacher wanted them to cross the Jordan not as a condition. It was a moral demand: you have to take part in the fighting. “Will your brothers go to war while you sit here?” Meaning, yes. So I said there in the piece I wrote that you can see that on the fundamental level, first of all, the children of Gad and the children of Reuven see that what bothered Moses our teacher was not that they wanted an inheritance beyond the Jordan — that’s not the point, he has no issue with that — but I’m not willing for you not to participate in the war. Meaning, he was not a Religious Zionist, meaning he didn’t care if they lived outside the Land; on the other hand, he was also not Haredi, meaning he was not willing for them not to participate in the fighting. Right, so the children of Gad and the children of Reuven say: okay, if that’s the point then we’ll participate, but if we participate, give us the inheritance. Now then, why do they really have to participate? The condition does not impose on them a duty to participate. Don’t participate — it’s just that if you don’t participate, you won’t receive the inheritance. Right? Because the stipulation does not create an obligation. The obligation is a moral obligation not because of the condition — that you can’t evade taking part in the war. The condition serves Moses here as leverage to motivate them to fulfill their moral duty, but what motivates them is not an additional prohibition against violating the condition; there is no prohibition against violating the condition. It’s just that they won’t receive the inheritance they want — that’s the motivation, not the prohibition. Okay? That’s an important point, because if the section says that Moses our teacher tells them, “If you cross you will receive, and if you do not cross, your sin will be upon you,” then that means this is not a condition. He’s just telling them: listen, it’s not okay if you don’t cross the Jordan, you have to fight. Therefore it is not a double condition, even though it looks like one. In the next stage, when Moses later, as part of the rationale — in the next stage, when the contract is concluded — there it is already formulated as a double condition: if you cross, you will receive the inheritance, and if you do not cross, you will not receive the inheritance. There it is already a double condition, and there we really are not speaking the language of permitted and forbidden, sins and not sins; rather, there, if you do not cross, you will not receive the inheritance, that’s all. Now do your own calculation. So that was just to sharpen the structure of the chapter. Then it comes out that the chapter is built in such a way that its first part presents the rationale, the whole negotiation and what they want and what he wants and everything; once all that is clear, now they move on to conclude the contract. Now why do we need all this? After all, everyone already understands that Moses wants this and the children of Gad and the children of Reuven want that, so why is there then a need to say, okay, now he made a condition and to go over the whole thing again, but this time in the form of a legal condition? The answer is: because the Torah wants to teach us here the concept of a condition, not just to describe what happened between Moses and the children of Gad and Reuven. If the Torah only wanted to tell us what happened there, there would be no reason at all to repeat all these stages again and again and again — we already know. You want this and he wants that, and then just write, yes, they made a condition. Why then do you need to write, no, “if you cross then such-and-such, and if you do not cross then not such-and-such”? It is not for nothing that the Talmud and the medieval authorities (Rishonim) learn from here all the rules of conditions. The fact that the Torah repeats and makes separations between the parts and so on — what’s the idea here? The idea is that even if there was a clear rationale for the children of Gad and the children of Reuven and for Moses our teacher, it still wasn’t certain that this rationale could be implemented. Who says there is a legal mechanism that can implement this rationale? So the Torah says: there is such a mechanism. That mechanism is called a condition. And then it teaches us how to formulate a condition. And all these repetitions in the Torah tell us two things. A: that there is such a thing as a condition, and that this is how it has to be done. B: that apparently, if this had not been introduced by the Torah, we would not have known it. The fact is that the Torah took the trouble to tell us this in order to teach us that there is such a thing as a condition. Now this itself is not simple. What is the novelty here? Every legal system in the world recognizes the concept of stipulation. What’s the problem? More than that, I’ll ask: suppose I made the divorce conditional on her not drinking wine. Okay? Now suppose she drank wine, and the Torah had not written the section of the children of Gad and the children of Reuven. In the case where she drank wine, I did not intend to divorce, right? Factually, I did not intend to. Now if I did not intend to divorce, then there is no divorce. Divorce depends on the will of the husband who is divorcing.
[Speaker B] A condition is basically something that comes and undermines the act that has already been done.
[Rabbi Michael Abraham] Yes, but what do you want — that she should be divorced even though I didn’t want it?
[Speaker B] Understand that now a transaction is concluded and we perform an act — I hand you a bill of divorce. Seemingly I read “and he gave into her hand a scroll of severance,” and that’s it, the divorce has taken place.
[Rabbi Michael Abraham] But I didn’t intend to divorce. Suppose I gave her a scroll of severance and didn’t intend to.
[Speaker B] Can I insert a condition into the act?
[Rabbi Michael Abraham] No, no, not a condition into the act. I’m asking: suppose I gave
[Speaker B] her
[Rabbi Michael Abraham] the bill of divorce and did not intend to divorce. I told two witnesses, “I do not intend to divorce her, I just gave her a bill of divorce.” Is she divorced or not?
[Speaker B] If there really was no intention, then no.
[Rabbi Michael Abraham] Right. Here too there wasn’t. After all, in the case where she drinks wine, I did not intend to divorce. So what’s the problem? And I said it — I said, if she drinks… Now true, there is no mechanism of condition and the Torah didn’t prepare one — all true. So what? Still, if she drank wine, I did not intend to divorce her. If I did not intend to divorce, then she should not be divorced. So why do we need the Torah’s novelty? What would I have thought without it? Why should she be
[Speaker E] divorced against his will?
[Rabbi Michael Abraham] Why not? It’s not retroactive; after all, when I gave the bill of divorce I already said that if she drinks wine I do not want to divorce her. It’s not that I regret it afterward. I already determine before the act — even before I gave the bill of divorce I said, listen, but this is only if you don’t drink wine. Otherwise, this bill of divorce was not given to you at all for any divorce.
[Speaker B] The question starts with this: he comes and says, I perform the act — the question starts with whether there is retroactivity to the act, that it can be cancelled once the condition…
[Rabbi Michael Abraham] Yes, but I’m saying again: seemingly that’s not required. It’s not required, because if in the case where she drinks wine I did not intend to divorce, then how is that different from a case where I told two witnesses, “I do not intend to divorce her; I just gave her a bill of divorce”?
[Speaker B] Whether she drank wine or didn’t is not revealed at the time of the act.
[Rabbi Michael Abraham] So what? It was revealed afterward. But regarding that possibility I did not intend to divorce. Why should I care?
[Speaker B] So intention can be effective even if it is only revealed afterward?
[Rabbi Michael Abraham] Of course. The intention existed at the moment of the act.
[Speaker B] That I intend, still…
[Rabbi Michael Abraham] Again, the intention existed at the moment of the act. Not afterward. It’s just an intention of this sort: only if she does not drink wine. Now afterward we’ll see whether she drank wine or not, but if she drank wine then it is clear that from the outset I did not intend it. That doesn’t do anything retroactively; it only reveals to me something I didn’t know until now. But it was always true. So what’s the problem? Why shouldn’t that work? Okay? So this is the question. This is really the key question. Why do we need the Torah’s novelty for the laws of conditions at all? Why do the Sages and the medieval authorities (Rishonim) understand that it is the Torah that introduced the rules of conditions, the law of condition? Meaning, without that, it would not exist. So from the structure of the section I showed why this is true. From the structure of the section it is very clear from the repetition and the detail and the changes in wording that it is important to the Torah to introduce the laws of conditions. Meaning, the Torah understands that without introducing it, it would not work. Still, in logic we need to explain it. Why, why is this novelty needed? Okay? But before I move on to explain that point — which is really the focus of the first lectures — I want to complete the introduction. We went over Maimonides in chapter 6 of the Laws of Marriage, where Maimonides basically spells out — he has four chapters, two in the Laws of Marriage and two in the Laws of Divorce — where he spells out all matters of conditions. He chose to do this in bills of divorce and divorce and in betrothal, even though it is true also of transactions and all acquisitions and all legal effects and so on. But in chapter 6 we saw several important points. First of all, we saw that there is what is called the rules of a condition. Meaning, there are proper, standard ways to formulate a condition. You have to formulate the condition in a standard way. There are seven rules called the rules of a condition. Four rules appear in Maimonides at the beginning as the four rules of a condition, namely: the condition before the act — first you say the “if,” and then what will happen. The positive before the negative — first, “if you cross the Jordan, you will receive”; if you do not cross, you will not
[Speaker E] receive.
[Rabbi Michael Abraham] A double condition — you have to say both the positive and the negative. And that it be something within one’s power to fulfill, within her power to fulfill or within his power to fulfill. Meaning, if he says to her, “on condition that you ascend to heaven,” then it is not a condition. Okay? So those are the four. After that Maimonides hints at something else: stipulating against what is written in the Torah. If you stipulate against what is written in the Torah, it is not a condition. That is the fifth rule besides the first four. There are another two. One of them is that the condition has to be in a matter that is applicable to agency — a matter for which agency is impossible, it is impossible to stipulate on it. And the seventh matter is condition and act concerning the same matter. When I give her the bill of divorce on condition that she return the bill of divorce to me, the paper itself, that is condition and act concerning the same matter. It doesn’t work. Fine? Then afterward they say maybe that applies only with “if” and not with “on condition that” — not important right now, I won’t get into the details — but in principle, when the condition contradicts the act, then the condition is not a condition. It contradicts the act. You have to transfer the bill of divorce to her, and you want her to give you back the paper. Therefore, therefore it is not a condition. So we have here seven rules of conditions. Of six of them I spoke last time. Six. The first four, stipulating against what is written in the Torah — I said that was the next part of the series so I didn’t go into the details at all, we’ll still discuss it — and condition and act concerning the same matter.
[Speaker B] Rabbi Yehuda says with regard to monetary matters, no?
[Rabbi Michael Abraham] Monetary matters we’ll get to later. That comes after we discuss stipulating against what is written in the Torah; then we’ll move to stipulating against what is written in the Torah in monetary matters. There is an order to the Mishnah. We are here in a progression. I spoke about this last time. The progression is first of all to speak about the rules of conditions in general. Then I move to stipulating against what is written in the Torah, and afterward I move to stipulating against what is written in the Torah in monetary matters. And after that, I’ll speak about the distinctions on page 51, the sugya on page 51 in this chapter — which is the reason we’re dealing with all this — about stipulating “on condition that the Sabbatical year not cancel my debt,” “that the Sabbatical year not cancel my debt,” meaning exactly how one stipulates against what is written in the Torah, which is yet another twist within stipulating against what is written in the Torah in monetary matters. Okay, so we still have the seventh rule of condition left: a matter that can be done through an agent. So look here.
[Speaker E] Okay,
[Rabbi Michael Abraham] So the Talmud in Ketubot — the source for these things is the Talmud in Ketubot. Let’s enlarge it a bit. The picture has arrived. “That can be fulfilled by means of an agent.” “And if you should say,” says Tosafot, “what logic is there here, that we learn from there only regarding what has logic, for after all, if we learn from there that a condition is effective only in the transfer of land…” Tosafot says: why specifically must it be a condition in an act that can be carried out by means of an agent? Tell me, because we learn it from the condition of the children of Gad and the children of Reuven, and there it was transfer of land, and transfer of land can be done by means of an agent. Yes, but what we learn from the condition of the children of Gad and the children of Reuven are only things that have logic to them. Things that have no logic, we do not learn from there. For example, otherwise if we were learning from there, then maybe you could stipulate only with sale of land — or really transfer of land, not sale of land — and not with anything else. Okay, now mine is apparently okay too. Fine. “That can be fulfilled by means of an agent.” No, we are speaking only of acts that can be performed by means of an agent. For example, the Talmud in Ketubot speaks about the fact that halitzah must be done by the person himself; you cannot do halitzah through an agent. From this, says the Talmud, if so, then you also cannot make halitzah conditional. Because an act that cannot be done by means of an agent cannot be made conditional. That is another one — that is the seventh rule of condition. Okay? Tosafot asks: there has to be logic in this matter. Because something without logic cannot be one of the rules of a condition. You’ll say, why? After all, we learn it from the condition of the children of Gad and the children of Reuven — why do we need logic? It doesn’t come from logic, it comes from the condition of the children of Gad and the children of Reuven. Tosafot says no: even from the condition of the children of Gad and the children of Reuven, what we learn is only those things that have logic, that we have a rationale for. Why? Because otherwise, for example, why not say that conditions are effective only in the transfer of land? That’s what happened with the children of Gad and the children of Reuven. How do you know that in betrothal you can make a condition? Or in divorce, or in one kind of transaction or another, or whatever it may be? Clearly, where there is no rationale there is no reason to distinguish between acquisition of land and betrothal or divorce. Any application of a legal effect can be made conditional. Meaning, only things that make sense can be learned from the condition of the children of Gad and the children of Reuven. And more generally — this is just as an aside — this is a correct rule in all derivations, and it’s a very common mistake. Even something that has a source in the Torah must have a rationale. People always think that if I learn it from the Torah, then it’s a scriptural decree, so no rationale is needed. On the contrary: if there were rationale, it would be obvious — what do I need the Torah for? I would say it from logic. “Why do I need a verse? It is logical.” Right? Not true. Even something learned from the Torah necessarily must have logic behind it. If there were no logic, we wouldn’t learn it. And something written explicitly in the Torah is written, so even if I don’t know the rationale, it says, “You shall not plow with an ox and a donkey together.” But when someone — some sage from the Talmud or whoever it may be — learns something from the Torah, how does he learn it? “You shall fear the Lord your God” — to include Torah scholars. Why not include elders? Because you understand logically that Torah scholars somehow resemble, in one way or another, at least to the smallest degree, the Holy One, blessed be He, and therefore I include them. There must be some logic, otherwise how did you learn it? Why not learn that only land works? Why not learn that for a condition the names have to be only Gad or Reuven? If the stipulator is someone else, then there is no condition. The Torah allows only people named Gad or Reuven to make a condition. No one would ever think of saying such a thing. Why? Because even when you learn something from the Torah, obviously you need some logic for why it is learned that way. Of course one can ask: fine, if I have logic, then why do I need to learn it from the Torah? Let me just learn it from logic. The answer is that many times, when I have logic, that logic by itself is not enough for me to derive from it the relevant law. There is logic, but it is not decisive enough for me to infer a halakhic conclusion from it. Then the Torah comes and says: this logic is enough. For example, the Meiri — the Talmud in the chapter of the rebellious son says that we do not apply the law of a rebellious son to a daughter. There is no law of a rebellious and wayward daughter. So the Talmud says that this is a scriptural decree. In the Jerusalem Talmud it says this explicitly, but also in the Babylonian Talmud: it is a scriptural decree. Now the medieval authorities explain this scriptural decree. They say that a daughter is not inclined to rob people, and the law of the rebellious son is based on where he is headed, because in the end he will come to rob people. So the Meiri asks about this: if it has an explanation, then why call it a scriptural decree? So he says that even a scriptural decree has an explanation. Why? What’s the idea? So I add, of course — I’m abbreviating there — but what does he mean? Suppose there were no such derivation from the Torah, and my logic tells me that daughters do not go on to rob people in the end. Okay? Would that be enough to say, okay, if so, then there is no law of a rebellious and wayward daughter? I could also say that good sons perhaps also do not go on to rob people in the end, so maybe there too there should be no law of a rebellious son. There are logical grounds for distinctions, but that does not mean the logic is decisive enough for me to derive a halakhic conclusion from it, certainly where we do not expound the reason for the verse.
[Speaker B] It starts falling apart piece by piece.
[Rabbi Michael Abraham] Right, you can’t know where yes and where no. So what? Therefore the Torah says: take this logic — this logic is good enough. You may derive the halakhic conclusion from this logic. The same thing with the children of Gad and the children of Reuven. What? That is true of every scriptural decree that is not written explicitly. If it is written explicitly, I think there is still logic to it, but there it is not certain that any human being would also understand that logic. It is written in the Torah, so I know that this is what must be done. But anything that some sage derived and learned from the Torah — why did he learn this and not that? Why didn’t he learn the opposite? I mean, you could learn many things from the Torah. Clearly he had some rationale behind these things. It’s just that this rationale probably was not sufficiently absolute to serve as a sufficient basis for that law, to make the Torah source unnecessary. You need the Torah source, and the logic only tells me what I am learning from that source. Yes, of course — not only possible, necessary. The question of authority remains in place. It may be that something established by a count requires another count to permit it, and only the Sanhedrin can change what the Sanhedrin established. But on the fundamental level, obviously.
[Speaker E] Why do you
[Speaker B] require a rationale for a condition?
[Speaker E] Yes,
[Rabbi Michael Abraham] In Jewish law, we rule that we do not derive the reason of the verse, unlike Rabbi Yehuda. Rabbi Shimon does derive the reason of the verse, yes. In any case, for our purposes, that’s what Tosafot says. But again, this whole deriving of the reason of the verse here is not connected to the issue at all. This is, again, a common mistake—that deriving the reason of the verse applies only to things explicitly written in the Torah. Because of that, many questions raised by the medieval authorities (Rishonim) and later authorities (Acharonim) fall away if you understand this, because they all ask: why are you deriving the reason of the verse in this kind of exposition? For example, at the beginning of Bava Kamma, the Rif, followed by Maimonides and the Rosh, gives a rationale for why tooth and foot damage are exempt in the public domain. Yes? Why… because you don’t have to be on guard all the time. The public domain belongs to everyone. Watch your own produce. There are different formulations in Maimonides and in the Rif, but broadly speaking that’s the rationale. So the Yam Shel Shlomo asks there, if I remember correctly: what do you mean, you’re deriving the reason of the verse? There’s even a practical difference here regarding a plank, a dispute between the Rif and Tosafot. What happens if there is a plank, a long board, with one end in the private domain and one end in the public domain, and the animal walks in the public domain, moves the plank, and that causes damage in the private domain on the other end? The question is whether that is called damage in the private domain, for which you would be liable, or not. So he says: since the animal has the right to walk in the public domain, then even if the damage occurred in the private domain, since it walked in the public domain in its normal way, where it has the right to be, he is exempt. Meaning, you are deriving the reason of the verse. If I were to say that the exemption is just in the public domain without deriving the reason of the verse, I would say here you’re liable, because the damage happened in the victim’s courtyard, not in the public domain. And this law is disputed by the Rif and Tosafot. So the Yam Shel Shlomo asks on the Rif: the Rif says he is exempt—why? What is this, that you’re deriving the reason of the verse? But I don’t think he’s right. Why? Because deriving the reason of the verse applies only to things explicitly written in the Torah. But in places where I interpret the Torah or expound the Torah, behind that there was some logic by which the sage arrived at that conclusion, that sage who made the exposition. And therefore there it’s obvious that we do derive the reason of the verse. Meaning, only with things explicitly written in the Torah do you not derive the reason of the verse. Fine, for our purposes: Tosafot says that since we learn from the case of the children of Gad and the children of Reuben, that still isn’t enough, because we learn from there only things for which we have a rationale. Then the question comes back: so why can you stipulate only concerning something that can be carried out through an agent? What is the rationale for that? Tosafot says: “And one can say that this is the reason: since the act is so fully in his control that he can carry it out through an agent, it stands to reason that it should likewise be in his power to render it dependent on a condition. But halitzah, which is not in his power to carry out through an agent, is likewise not in his power to make conditional; and even if the condition is not fulfilled, the act remains valid. And therefore, by reason, everyone agrees that we require that it be possible to carry it out through an agent, in analogy to the children of Gad and the children of Reuben.” What is he saying? He’s saying that something for which I can delegate authority to an agent means that I’m the master of it. I can do everything. And if the power is in my hands, I can also delegate it to an agent. Once I’m the master of it, I can also limit the legal effect that I’m creating. I can decide whether I create it or don’t create it—it’s my right. Since I’m the master of it, I can also make it conditional. And conversely, going out to war is the condition; receiving the inheritance is the act. Moses could give them the inheritance through an agent—not only could he, he actually did. The people of Israel gave them the inheritance, not Moses. Moses had already died. Moses had already died, so in effect his agent gave them the inheritance. So there it’s obviously like that. In any case, what does that mean? That Tosafot is basically saying there is a rationale to the rule of something that can be done through an agent. If it can be done through an agent, that means you’re the master of it, the authority is entirely yours, and the proof is that you can delegate it to someone else. Something that cannot be done through an agent apparently means your control over it is limited. You can’t transfer the authority to an agent because even your own authority isn’t complete. And anything that he himself cannot do, he cannot appoint an agent to do. Meaning, if he himself is not the master of it, he also can’t appoint an agent. Can’t hear? Yes, the children of Gad and the children of Reuben. Tosafot claims that this too is learned from the children of Gad and the children of Reuben. Maybe, I don’t know. Or Maimonides says that this rationale is good enough even without the children of Gad and the children of Reuben; it follows from reason. But Tosafot says: if I’m right in what I said, that only those four things are learned from the children of Gad and the children of Reuben—I’ll comment on that further on. But Tosafot certainly says this is learned from the children of Gad and the children of Reuben. And since there is a rationale here, you can learn it from the children of Gad and the children of Reuben. So it is learned from the children of Gad and the children of Reuben. All right? Tosafot basically says that almost all, or all, of the laws of conditions—even if they have a rationale—ultimately are learned from the condition of the children of Gad and the children of Reuben. The fact that they have a rationale does not make the source from the children of Gad and the children of Reuben unnecessary; it only means that if there is a rationale, then it can be learned from there. Okay? So that’s the rationale Tosafot gives. And therefore Tosafot says, “And therefore, by reason, everyone agrees that we require that it be possible to carry it out through an agent.” Meaning, this law of conditions is completely agreed upon. Unlike a doubled condition. A doubled condition—the Talmud in Kiddushin 61a brings a tannaitic dispute: whether one must formulate a doubled condition or not, Rabbi Hanina ben Gamliel and the Rabbis. Okay? So that’s Rabbi Meir. Yes, it’s a dispute whether one needs to formulate a doubled condition or not. And immediately Tosafot continues here: “But regarding a doubled condition, and regarding condition and act involving two separate matters, it appears from Mi She’Ahazo that only Rabbi Meir holds this, and not the Rabbis. And in that regard there is not such a strong rationale to learn it from there; therefore they disagree with him.” Tosafot says: among the laws of conditions, some are disputed. A doubled condition is explicit in the Mishnah as a matter of dispute. “Condition and act in one matter,” Tosafot says, seems from the Talmud to depend also on the dispute between Rabbi Meir and the Sages, that same dispute about a doubled condition. Why are those two things disputed, whereas “it must be possible to carry it out through an agent” is agreed by all? Because “possible through an agent” is a simple rationale: only something in your control can be made conditional. A doubled condition, or condition and act in one matter—that’s a rationale too, but not an unequivocal one; you can argue about it. And in a moment I’ll get to the argument about it. But that’s what Tosafot says. Therefore, on that there is a sage who says we learn it from the condition of the children of Gad and the children of Reuben because he thinks there is a rationale in it; but there is another sage who says no, there is no rationale in it, and although in the condition of the children of Gad and the children of Reuben it was so, we do not learn from there because there is no rationale in it. So what comes out is this: there are things that have a simple rationale and are agreed by everyone; there are things that have a rationale but it isn’t decisive, and those can be disputed; and there are things that have no rationale at all, so even though they happened to appear in the condition of the children of Gad and the children of Reuben, we do not learn from that to the general law of conditions. It just happened to be there, but that doesn’t really make it a true law of conditions. Okay, let’s look at a doubled condition. The Mishnah in Kiddushin 61a brings a dispute: Rabbi Meir says, “Any condition that is not like the condition of the children of Gad and the children of Reuben is not a condition, as it says, ‘And he said to them: if the children of Gad and the children of Reuben cross over,’ and it is written, ‘But if they do not cross over armed,’ etc.” Rabbi Hanina ben Gamliel says: “The matter had to be stated, because otherwise it would imply that even in the land of Canaan they would not inherit.” Rabbi Hanina ben Gamliel is basically saying: this isn’t teaching a doubled condition; you don’t need a doubled condition. So then why did Moses formulate the condition in a doubled way? Not in order to teach that every condition must be doubled, but because otherwise we would have thought that they would receive no inheritance at all if they did not cross over—not in the Land of Israel and not across the Jordan. All right? In any case, there is a dispute here between Rabbi Meir and Rabbi Hanina ben Gamliel on the question whether a doubled condition is required or not, and the basis of the matter is whether we learn this from the section about the children of Gad and the children of Reuben. Now what is the idea behind it? What is the rationale behind the requirement of a doubled condition? This rationale appears in the Talmud in Nedarim 11: “Who is the author of our Mishnah?” Never mind now which Mishnah there. “If it is Rabbi Meir—does he not hold that from the positive you do not infer the negative, and from the negative you do not infer the positive? For we learned: Rabbi Meir says any condition that is not like the condition of the children of Gad and the children of Reuben is not a condition. Rather, it is Rabbi Yehuda.” What does the Talmud say? That Rabbi Meir, who requires a doubled condition—
[Speaker D] The basis—
[Rabbi Michael Abraham] —the basis for this is a logical basis, because in his view, from the positive you do not infer the negative. So if Moses our teacher had said, “If you cross the Jordan, you will receive the inheritance,” and had stopped there, I would not know that if they did not cross the Jordan, they would not receive the inheritance. Therefore he had to mention both conditions. Meaning, the whole idea of requiring a doubled condition is rooted in a logical rationale: one side does not necessarily imply the other side. There is a book by Hugo Bergmann called Introduction to the Theory of Logic, and there he mentions, when discussing a sufficient condition and a necessary condition, “if X then Y”—yes, in logical implication, “if X then Y” is basically a sufficient condition. For example: if the fan is on, then there is wind, right? That means the operation of the fan is a sufficient condition for there being wind. Can I conclude from this that if the fan is not on, then there is no wind? No. There might be natural wind, there might be wind from another fan, right? Meaning, the fact that if there is a fan there is wind does not mean that if there is no fan there is no wind. The property of a sufficient condition is that you cannot reverse it. Meaning, “if X then Y” does not mean “if not X then not Y.” And that is basically what Rabbi Meir says. Rabbi Meir says you need a doubled condition—why? Because if you said, “If you cross the Jordan, you will receive the inheritance,” that does not mean that if they do not cross the Jordan, they will not receive the inheritance. If you cross, I promise you’ll receive it; if not—who knows, maybe you will and maybe you won’t. If you want to say that if not, they won’t receive it—meaning, to make it a real condition—you have to say both sides, both the positive and the negative. That’s where the whole idea of a doubled condition comes from. One might have thought that the whole issue of a doubled condition is really based on reason—this is logic—so why do we need the children of Gad and the children of Reuben? On the other hand, Tosafot we saw earlier understood it differently. He understood: since there is a rationale here, therefore they learned it from the children of Gad and the children of Reuben. Now why? What is the idea? The idea is very simple. Suppose I come and say to you: if you cross the Jordan, you will receive the inheritance. Surely it is obvious that I meant that if you do not cross the Jordan, you will not receive the inheritance. That doesn’t follow by strict logical deduction from what I said originally, but in context, from normal human intention, it is obvious to all of us that this is what he meant, right? So Rabbi Hanina ben Gamliel says: leave aside the issue of whether from the positive you logically infer the negative. On the logical level, you are right. But practically, when a person says this, everyone understands that he means both sides. Therefore Rabbi Hanina ben Gamliel says: you don’t need to double the condition. True, in logic it doesn’t work. More than that—I’ll tell you—even Rabbi Meir, who argues that because of this one must double the condition, that doesn’t necessarily mean he disagrees that when a person said the positive, the negative is understood from it. He is saying only this: it may well be that his intention is indeed understood. If he said the positive, it is clear to us that he intended the negative. But there is a requirement—and that is learned from the condition of the children of Gad and the children of Reuben—that the speech itself must express this. Otherwise the condition is not valid. And that is not fulfilled here. Meaning, true, the person intended it, but what he actually said, in and of itself, yes, it does not necessarily imply it. From the wording he used, the negative does not follow. He stated only the positive. His intention is clearly both the negative and the positive. Rabbi Meir may not disagree that from the negative we infer the positive, and from the positive the negative, in terms of human intention. He is saying only that there is a requirement in the formulation of the condition, that the formulation be self-contained and intelligible from within itself. Meaning, what is written in the condition must give me all the information—not the context and not anything like that.
[Speaker B] And is this connected to “the Torah spoke in human language” or not?
[Rabbi Michael Abraham] Because if it didn’t, then it turns into—
[Speaker B] No, it’s not connected to the Torah, it’s logic. Yes, if you were to say “the Torah spoke in human language,” then when you say “from the positive you infer the negative,” that’s just how people speak—
[Rabbi Michael Abraham] No, but the Torah didn’t say “from the positive you do not infer the negative.”
[Speaker B] The Sages say that. I’m talking about speech—when you speak—
[Rabbi Michael Abraham] Then that’s not “the Torah spoke”; that’s human speech in human language.
[Speaker B] Yes, “the Torah spoke in human language.”
[Rabbi Michael Abraham] No, you’re talking about the language of people themselves. What does that have to do with the Torah?
[Speaker B] These are divine words, like speech between people.
[Rabbi Michael Abraham] I understand, but where is there divine speech here?
[Speaker B] The divine speech tells you, “If they cross,” right? Yes.
[Rabbi Michael Abraham] No, but in the Torah—
[Speaker B] —the doubled condition is written!
[Rabbi Michael Abraham] In the Torah the doubled condition is written; it doesn’t write only one side. What?
[Speaker B] So if we were to say no—if they don’t cross—
[Rabbi Michael Abraham] No, why was a doubled condition written? I think that in the Torah a doubled condition is already written. The whole question is whether I learn from that that every person who makes a condition must formulate a doubled condition. Yes. So why is that connected to “the Torah spoke in human language”? The Torah already wrote a doubled condition; that has nothing to do with human language. On the contrary, in human language you don’t need to say a doubled condition. It is enough to say one side, and I basically understand that you mean the other side as well. The Torah wrote the doubled condition to tell you that despite the fact that in human language I would understand the other side, in the laws of conditions you must use a formulation that is necessary from within itself. Yes, but that has nothing to do with “the Torah spoke in human language.” On the contrary, even if the Torah did not speak in human language, it would still be so. In any case, so… all right, but according to both, that’s the point. So the point is that maybe even Rabbi Meir does not disagree with these things, and in a moment I’ll show where the practical implication is. So in short, from here two possibilities open up. One possibility is like Tosafot we saw above in Ketubot. He says: true, there is a rationale here, but the rationale by itself is not enough. The proof is that there is a dispute among the tannaim. The rationale only enables me to learn it from the condition of the children of Gad and the children of Reuben. But that is only for the one who accepts the rationale. One who does not accept the rationale will not learn it from there. Someone else can come and say: no, once there is a rationale, then this should be agreed upon by all, and then you don’t need the source from the condition of the children of Gad and the children of Reuben at all. Then the question arises: so why does the Talmud itself tie it to the condition of the children of Gad and the children of Reuben if there is a rationale? In a moment we’ll see that the commentators ask this question. Maimonides—in Kovetz Shiurim on Bava Batra 137, which you have here… I keep forgetting every time to share also in… yes. So Maimonides… yes. So Kovetz Shiurim on 137 in Bava Batra says as follows. All right? “It is difficult, for regarding ‘non-sacred food I shall not eat from you’”—that is the topic in Nedarim—“what does the Talmud in Nedarim 14 mean, that the dispute between Rabbi Meir and the Rabbis is about a doubled condition, and they disagree whether we say ‘from the positive you infer the negative’? And what is the proof? Perhaps Rabbi Meir also holds that from the positive you infer the negative, and nevertheless he requires a doubled condition by scriptural decree, in analogy to the children of Gad and the children of Reuben.” Who says Rabbi Meir claims that from the positive you do not infer the negative, and therefore you need a doubled condition? It could be that… from the positive you do infer the negative, but from the condition of the children of Gad and the children of Reuben we learn that you need a doubled condition. That’s the Tosafot we saw above. Right? And according to the Tosafot we saw above, this question falls away. Because Tosafot says that although there is a rationale, the rationale does not replace the condition of the children of Gad and the children of Reuben; it only says that if there is a rationale, then you can learn it from the condition of the children of Gad. He assumes that once there is a rationale, the source becomes unnecessary—you can learn it from the rationale. Just listen to what Rabbi Chaim answered him. He too assumes that. “And I asked this of his holy honor, our teacher Rabbi Chaim HaLevi, of blessed memory,” yes, Rabbi Chaim, “and he answered that the dispute about ‘from the positive you infer the negative’ is whether the negative is included in the wording of the positive. If so, when he states the positive alone, it is as though he stated both the positive and the negative, and therefore it is already doubled. And the other opinion holds that even though we understand the negative from his words, nevertheless it is not included in his language and is not called an explicit statement of the negative, and therefore it is not analogous to the children of Gad and the children of Reuben. And regarding a vow, we require articulation with the lips, and therefore it depends on the dispute about the positive.” What is he saying? He is basically saying this: in human intention it is obvious that from the positive you infer the negative. If a person states the positive, clearly you hear the negative as well. But both in vows and in conditions there is a requirement about the formulation, not only to clarify your intention. There are requirements concerning the formulation itself. And “from the positive you infer the negative,” “the condition must precede the act,” all these things come as requirements for a proper formulation. He says: part of proper formulation is that the wording itself contain both sides—not only that I understand what the person meant; that I understand anyway. But the formulation of the condition itself must contain both sides. Then he says: according to Rabbi Meir, who requires a doubled condition in the laws of conditions, what do we see? That in his view, stating the positive logically does not state the negative. The person’s intention is clearly also for the negative, but logically it does not contain the negative. Since that is so, then in vows too—and this is the sugya in Nedarim 11—according to Rabbi Meir you also have to say both sides. You must say both sides because in vows too there is a requirement of explicit articulation; it is not enough that we understand what he means—he has to state what he is saying. And the question whether he stated it depends on whether it follows logically from what he said. It is not enough for me that he intended it. By contrast, Rabbi Hanina ben Gamliel, who disagrees with Rabbi Meir and says that from the positive you infer the negative, says that this is considered as though you said it as well. And therefore, since human intention is also included in what you said, and because of that you do not need to formulate a doubled condition, then in vows too, although there is a requirement of explicit articulation, this counts as explicit articulation. That’s exactly what I said earlier, right? He is basically claiming that in human language everyone agrees that if a person stated the positive, we also hear the negative. That’s the point. The whole question is whether you formulated it properly according to the technical requirements of the laws of conditions. He says: but in the Ran’s novellae on Gittin 46, regarding one who divorces his wife because she is an aylonit, where according to Rabbi Meir we require him to double the condition—the Ran asks: why is a doubled condition different from all the other laws of conditions, which are not required there? There you don’t need all the laws of conditions, but a doubled condition you do need. So the Ran asks: why? What is different about a doubled condition? And he answers: for a condition about the past, we do not require the laws of conditions at all. If the woman is an aylonit, her being an aylonit already existed before the marriage. This is not a condition she has to fulfill after the marriage. Exactly—it’s a mistaken transaction. “For a condition regarding the past, we do not require the laws of conditions at all. Nevertheless, Rabbi Meir holds that one still requires doubling, because from the positive you do not infer the negative.” Even for a past condition, you need a doubled condition. Why? Because you need to know that if she is an aylonit, he does not want her. Meaning, it is not because of the laws of conditions that you need the doubled condition, but in order to clarify what he really wants. What do you see from here? That this is not formal. Exactly. Meaning, the Ran, unlike Maimonides, understands that “from the positive you do not infer the negative” means that if you stated the positive, I am genuinely not sure you intended the negative—not like we said according to Maimonides, that it is only a formal requirement. All right? “And here there is no rationale of articulation with the lips, and it is thus proven that according to Rabbi Meir we do not understand the negative from his words at all—even in interpreting his intention, we don’t know.” Not like Maimonides, who says it is only a formal requirement. Okay? “According to this, one must say that Rabbi Meir’s requirement of a doubled condition rests on two reasons: we require analogy to the children of Gad and the children of Reuben, as stated explicitly in the Mishnah in Kiddushin; and this is also proved by the fact that Rabbi Meir requires a doubled condition in vows as well. And Maimonides rules like Rabbi Meir in requiring doubling as a law of conditions in analogy to the children of Gad and the children of Reuben, but in the other dispute he rules like Rabbi Yehuda, that from the positive you infer the negative where the laws of conditions are not required.” Maimonides rules that from the positive you infer the negative, but on the other hand he rules like Rabbi Meir that in the laws of conditions you need a doubled condition. That is conclusive proof for what he said: that this is basically a formal requirement in the laws of conditions; it has nothing to do with interpreting human intention. That is Maimonides’ view, and the Ran apparently disagrees with him. All right? Okay, now let’s try to understand—up to this point, these are… up to this point we have gone through the laws of conditions. The seven laws of conditions, aside from what is written in the Torah—I said that would be the next chapter, so for the time being I haven’t gone into it. The basic question is: why do we need this novel Torah rule at all? We see all the time that this is a special innovation of the Torah, and therefore you need defined rules for how to formulate it. Why do we need this innovation? Why, if the Torah had not introduced the laws of conditions, would it be impossible—impossible—to make a condition? As I said earlier, if you didn’t intend it, why should the legal effect take hold? As in every legal system in the world. So one could say—as the later authorities usually explain—that were it not for the Torah’s innovation, we would think that you cannot create legal effects in alternative branches. You cannot create a legal effect for this side, but not create the legal effect for that side. Either you created it, or you didn’t create it.
[Speaker F] What does it mean “in alternative branches”?
[Rabbi Michael Abraham] I’ll get to that in a second. So, it’s impossible—you cannot create legal effects in alternative branches. For example, you know the Avnei Nezer’s condition with the afikoman: you eat the afikoman, and you want to eat the afikoman after midnight. So you say: I’m eating the afikoman before—I’m eating it before midnight—and I say: if the law is that one may eat the afikoman after midnight, then what I am eating now is not the afikoman, but just part of the meal, yes? And afterward, that will be the afikoman. And if the afikoman has to be eaten by midnight, then what I am eating now is the afikoman, and then after midnight, when I eat the afikoman, that will not really be the afikoman; it will just be ordinary eating. And after midnight that is permitted, because the commandment of afikoman is only until midnight, and “one may not eat anything after the Passover offering afikoman”—that is only until midnight. So that’s a condition. Now many decisors disagree with the Avnei Nezer and claim that you cannot make such a condition. Either you fulfill a commandment or you don’t; you cannot fulfill a commandment conditionally—but conditionally that you didn’t. That’s exactly the meaning. Because in transactions, when you create legal effects, the law of conditions was newly introduced. The Torah introduced the law of conditions. But in principle the reasoning is that you cannot do things in alternative branches. And for things regarding which the Torah did not introduce that innovation, like fulfilling commandments, there the original reasoning remains: you cannot fulfill commandments in alternative branches. Okay? That’s just an anecdote. In any case, of course this itself still needs explanation. Why indeed can’t you create legal effects in alternative branches? After all, what did I say earlier? I said this: suppose I divorce a woman on condition that she not drink wine. And suppose she drank. In that branch I did not want to divorce her at all. So what do you want to tell me—that she is divorced even though I did not want to divorce her? But I did not intend to divorce her. How can it be that if the Torah had not introduced the laws of conditions, then there would be no condition? Now we have to understand—maybe an important point that will also come up later—when someone formulates a condition improperly, what is the legal result? It is void; it is—
[Speaker B] He did nothing.
[Rabbi Michael Abraham] What is not valid? Suppose I divorced a woman on condition that she not drink wine, but I formulated it improperly. So what is her status now? Divorced. Is she divorced or not divorced? The condition is void.
[Speaker B] If the condition is void, then she is divorced?
[Rabbi Michael Abraham] She is divorced. The act stands and the condition is void.
[Speaker B] No—
[Rabbi Michael Abraham] —not that she is not divorced at all; it makes no difference whether she drinks or doesn’t drink; that too was a possibility. Is there a defect in the act of divorce? Then she is not divorced—that’s obvious. But I’m saying: if he performed a valid act of divorce, but formulated the condition in a defective, improper way, then the condition is void and the act stands. Meaning, she is divorced regardless of whether she drinks or does not drink. And that raises the question: how can that be? After all, in the branch where she drinks wine, he did not intend to divorce her. So why should the divorce take effect? Why do we need the Torah’s innovation for this? You’re telling me that you can’t create legal effects in alternative branches—what do you mean? I’m not creating legal effects in alternative branches. I create a legal effect when I wanted to create the legal effect. If I didn’t want to, then the legal effect does not take hold. And the fact that this becomes clear only later in time—so what? That was already true at the moment of the divorce. So this idea too—that you cannot create legal effects in alternative branches—is itself a claim. It needs explanation. Why not? So look, maybe I’ll jump ahead a bit, because we’ll get into this more explicitly later, but it’s important to me already here. When we understand the concept of a condition—I’m speaking now about a “from now” condition. There are two types of conditions; we saw this in Maimonides last lecture. You can make a “from now” condition, meaning: “You are divorced from now if you do not drink wine for two years,” or, “You are divorced if you do not drink wine for two years.” When I said “if,” the meaning is that from the moment she does not get divorced—once the condition is fulfilled, namely that she did not drink wine—then she is divorced. All right? An “if” condition and an “on condition that” condition. What means “from now.” “On condition that” is from now. Anyone who says “on condition that” is considered as if he said “from now.”
[Speaker B] But what is the difference over the two years if he—
[Rabbi Michael Abraham] Says “from now” or after a time? Yes. So he says, “Anyone who says ‘on condition that’ is considered as if he said ‘from now.’” All right? Therefore these are the two kinds of conditions. And we saw that Maimonides says that for an “if” condition you need the laws of conditions, whereas for an “on condition that” condition you do not. Except for something in his power to fulfill, which applies even to a “from now” condition. But there are other medieval authorities (Rishonim)—I mentioned this in the previous lecture—who say that you need the laws of conditions both for “on condition that” and for “from now.” What? There is a condition that she be divorced from now, provided she does not drink wine for two years. And there is a condition that says: if you do not drink wine for two years, then from two years from now and onward you are divorced. That is an “if” condition, yes. This—
[Speaker B] Is this connected to the sugya of retroactive clarification?
[Rabbi Michael Abraham] Wait, wait. I hope we’ll get to the relationship between condition and retroactive clarification later in the series. Let’s not get tangled up now; I’m deliberately building this step by step, because otherwise we’ll get lost here. So the point is this. One could understand—and this is usually how people understand—that a condition is basically retroactive clarification. Meaning: if she drank wine, it turns out that from the start there never was a divorce here. If she did not drink wine, then it turns out that from the start there really was a divorce here. Or in other words, basically nothing happens when she drinks or doesn’t drink wine. Nothing in the world changes. What changes is not the world, but what I know about the world. The Holy One, blessed be He, knows this from the start. I am the one lacking information. Once the two years pass and she either drank or didn’t drink wine, now the information is available to me. Think, for example, of the following extreme case. Suppose I am in Australia, abroad. Meanwhile my wife gives birth here in Israel. And I received a message that my wife gave birth. But I don’t know whether it’s a boy or a girl. After a month I return to Israel, and it turns out that it’s a boy. So is it a boy only from the moment it became known to me? It was a boy from the moment he was born. I just didn’t know it during that month. When I arrived in Israel, it became known to me. But reality does not change a month later. My information about reality changed. Okay? The accepted conception of conditions is this. It’s the same thing. In conditions too, nothing happens two years later backward in time. There is no reversal of the timeline here. What happens in two years? In two years, I too know what the reality had always been. Up until those two years, I simply lacked the information. That’s all. This is called the conception of retroactive clarification. All right? Retroactive clarification means it becomes clear that in truth I simply didn’t know reality—that was the truth. Okay? An illustration: I sat several times on a panel for annulling a marriage. And for example, there was a case where we annulled the marriage of a woman—two foolish kids; she got married at eighteen, and they booked a hotel for their first night. The husband didn’t even show up for the first night at the hotel. They found him a few days later abroad, already living with another woman in some craziness. Anyway, I argued that she didn’t need a bill of divorce. But the terminology—
[Speaker E] A known bill of divorce case—there was one who ran away.
[Rabbi Michael Abraham] In the United States there are a lot of well-known bill of divorce cases of men who ran away. No, no, no, that was from the sixteenth century—this happened now. It happened a few years ago. So my claim was that a woman did not consent to marriage on that basis. Even though the Talmud says “it is better to dwell as two than to dwell alone”—even if all sorts of bad things are discovered afterward, does the woman always want the marriage? First of all, it’s not certain that this is true today. But beyond that, “better to dwell as two” means that if she got the “as two,” the partnership, then even if the husband is problematic and so on, she did get a relationship, and a relationship is what she wants. But here she didn’t even get the relationship. He didn’t even come for the first night. On that basis it is obvious she would not consent. Everything she consents to is for the sake of the relationship, but she does not consent to give up the relationship itself. After all, the whole thing she gives up is for the sake of the relationship. Therefore it is clear that here she doesn’t need a bill of divorce at all. The marriage is void. And then I told her—I had various arguments with people, never mind, it got into the press—in any case, my claim was that this whole act isn’t even an act of a religious court. I could have told her this simply as a halakhic authority: you are not actually married. You didn’t know that, and now I’m telling you. It’s not that the court uprooted a marriage. Rather, I told her the reality—that she was never married to begin with.
[Speaker B] Like an invalid witness?
[Rabbi Michael Abraham] No, not because of that. No. I’m not some great authority, I’m not the great court of the generation where all marriages are made subject to my authority. Rather, I’m just a halakhic teacher; I’m simply telling her: listen, such a marriage is not valid, that’s all. Think what would happen if that marriage had been performed with an invalid witness. Obviously not. The woman comes and I say to her: oh, it was with an invalid witness? Then you’re not married. I didn’t uproot anything; I simply told her the reality that she didn’t know, that’s all. And I claim that here too: you did not consent, therefore you were not married. I didn’t do anything, I only told her that this is the situation. And in the accepted conception of conditions, that is what happens in conditions. What happens in conditions is that the future event merely reveals to me the reality that had always been true. It’s just that I—not the Holy One, blessed be He, but I—don’t know it; I need to wait until the condition is or isn’t fulfilled, and then I know. What do I know? That from the very beginning it was not a bill of divorce, or it was a bill of divorce.
[Speaker B] Yes, something similar—they took and narrowed it and it wasn’t sanctified for him.
[Rabbi Michael Abraham] They also wanted to validate a bill of divorce, yes, and it got somewhat messed up along the way. No, they didn’t use “the Sages uprooted it”; they used two mechanisms. One mechanism was this mechanism, which later they backed away from, never mind. A mechanism of “on that basis she did not consent.” And the second mechanism was conferring a bill of divorce through an agent.
[Speaker B] We’ll make such an agent—on that basis he never marries her at all.
[Rabbi Michael Abraham] Both are problematic, but never mind—that whole thing stirred up a lot of controversy. Rabbi Uriel Lavie. In any case, by the way, their ruling is based on my ruling. One of the judges there was a friend of mine. One of the judges there was Yehuda. He’s a friend of mine. I sent him my ruling, which of course nobody agreed with, but I think they used… anyway. In any case, for our purposes, the question still is why we do not… So I want to make the following claim. On the theoretical level, the accepted conception of conditions is that this is retroactive clarification. But Rabbi Shimon Shkop proves from several places—and we’ll see this in more detail later—that it is from now onward retroactively, not retroactive clarification. Or in other words, in legal language there are three different mechanisms. There is retroactivity, there is prospectivity, and there is retrospectivity. What does that mean? Retroactivity means retroactive clarification. That is, once the condition is or isn’t fulfilled, the reality that had always been true becomes revealed to me; nothing changes when the condition is or isn’t fulfilled. Prospectivity is an “if” condition. That is, if the condition is fulfilled, then the legal effect takes place from the moment the condition is fulfilled, and if the condition is not fulfilled, then the legal effect does not take place. Retrospectivity means that if the condition is fulfilled, the legal effect is uprooted retroactively. This does not reveal to me a reality that had always been true; it changes reality causally. But the cause appears on the timeline later than the effect. In a moment we’ll look at it from a temporal vantage point—but I’ll get there. But that’s the claim. Meaning, something really did happen in reality; it’s not like retroactive clarification. Retroactive clarification means only that my knowledge of reality changed, depending on whether the condition was or wasn’t fulfilled. Here the claim is that if the condition was or wasn’t fulfilled, the legal effect was either uprooted or finalized. But the future event created or brought about a legal result in reality, even though this happens from now. Meaning, the future cause produced a present result—which is some kind of miraculous legal hocus-pocus that happens in Jewish law, and this is what Rabbi Shimon Shkop calls “from now onward, retroactively.” From now onward—when the condition is fulfilled—it takes effect retroactively. It is not retroactive clarification, where it had always been true and I just didn’t know it and now I know it. No, it happens only from now onward, but retroactively. One implication, for example: suppose someone had relations with that woman. The woman was divorced on condition that she not drink wine. No, this is an “on condition that” case. Suppose the woman was divorced on condition that she not drink wine, someone had relations with her, and afterward she drank wine. So if she drank wine, she was really a married woman, right? Or let’s formulate it the other way: afterward she did not drink wine. Then it turned out she was retroactively divorced. So everything was fine. Suppose she was divorced on Sunday, he had relations with her on Monday, and the condition not to drink wine lasted a week. The week passed, and on the following Sunday it became clear that she had been divorced, so everything was fine. If this is retroactive clarification, then everything is fine—because it simply became clear that she wasn’t a married woman. So what if we didn’t know that then? That was the truth. So there is no problem; everything is fine. But if this is “from now onward, retroactively,” then in principle, suppose on Tuesday you could execute him, because he had relations with a married woman. On Sunday she becomes divorced retroactively. But on Sunday she becomes divorced—not that it is revealed that she had always been divorced; she becomes divorced. So in principle you could flog someone, execute someone, something like that, up until Sunday. If they were to judge him the next Monday, after the condition had already been fulfilled, then they could no longer execute him. Because by the next Monday he is already in a status where we know that retroactively she was not a married woman; she was divorced.
[Speaker B] We’ll wait, we’ll wait, we’ll wait. No, I’m saying, you can wait.
[Rabbi Michael Abraham] I’m speaking only on the conceptual level. If you didn’t wait, then you were right. Okay, every point of view depends on the day from which you are looking. That is what is called “from now onward, retroactively.” Exactly like that. Right. So maybe I’ll devote a kind of philosophical session to this too—how to understand this in terms of the logic of time.
[Speaker E] But maybe later on.
[Rabbi Michael Abraham] In any case, that’s relevant to our issue. Why, why is this important? Because if the condition really works as retroactive clarification—what? Not the other way around—then there’s no innovation of the Torah here. Then there’s no innovation of the Torah. Because on that basis, obviously I never intended to divorce her in the first place. It’s just that until now we didn’t know what the status was—fine, now we know. So why would we need a special innovation of the Torah? But if not, then we’re dealing here with a situation in which a future event uproots a legal effect that existed now, from now onward retroactively. How can such a thing happen? That I would never have imagined were it not for the Torah’s innovation. So if a condition works as retroactive clarification, then there really is no innovation of the Torah. If a condition works as from-now-on retroactively, then it’s a major innovation of the Torah. You’ll ask: according to the principle of retroactive clarification, then why do we understand the innovation of conditions from the passage of the descendants of Gad and Reuben? Seemingly it’s unnecessary. The answer is that according to this view, what was innovated was not the very possibility of making a condition. What was innovated is that you can make a condition only in a valid formulation. If you don’t do it in the proper formulation, then you can’t make a condition. So what was innovated is really a stringency, not a leniency. We would have known that you can make a condition even without that; the Torah came to limit the possibility of making conditions and say: you can make a condition only if you formulated it according to the laws of conditions. That’s an innovation in the stringent direction. According to the conception of from-now-on retroactively, then without the Torah we would not have known that conditions are possible at all. The Torah introduced a leniency: you can make a condition—but in a specific way. You can make a condition, provided that you used a valid formulation. Okay? Those are two different things, and later we’ll see disputes among the medieval authorities (Rishonim) and so on, so it’s important that you keep this—keep this picture in mind. Okay. Now I want to understand what the problem is with an act according to the from-now-on retroactively model. If I understand it as from-now-on retroactively, then the innovation is in the very possibility of making a condition, not only in the laws of formulation; the very possibility of making a condition is itself an innovation. Okay, so here you can point to—one second—you can point to two kinds of problems. Two kinds of problems. The first problem, the obvious one, is acting backward in time. How can you perform an act backward in time? Meaning: how can it be that a future cause produces a present effect? That contradicts logic. A cause always has to precede the effect. Okay? If the cause comes after the effect, that’s an innovation. Without the Torah we wouldn’t know such a thing. Okay? But of course that’s only if there really is a relation here of cause producing effect, and therefore that applies only in from-now-on retroactively. Retroactive clarification is not cause and effect; there, I simply came to know something now that I didn’t know before. What? That’s how people usually think, but it can’t be right. It can’t be right because if it were so, then there would never be a time gap between cause and effect, and clearly there is a time gap. There is a cause, an effect, and that effect is a cause for the next effect, and so on—but it unfolds across a timeline. If everything were simultaneous, then even if you made a chain of very many causes and effects, it would all be simultaneous. That’s infinity. Meaning, it has to unfold across a timeline. Fear and love, yes. So that, yes, Aristotle basically thought that way; it’s part of Zeno’s paradoxes, yes. Fine, maybe I’ll also talk about that later, in the philosophical part. But for now we’re here. So that’s one possible problem: you’re basically performing a causal act in the direction opposite to the arrow of time. The cause is later than the effect. For that you need an innovation of the Torah. Without the Torah’s innovation I wouldn’t know that you can do such a thing. And of course that’s only if you assume the condition is a causal act. But if the assumption is that it is retroactive clarification, then it’s not a causal act; then it’s only that the information wasn’t available to you, and now it has become known.
The second thing, the second problem, is what’s called “his act of acquisition has expired.” Look here at the Ran in Nedarim 28b. Again, I did the—I just disconnect it every time when I’m not using it so the attention won’t be there, but… let’s continue, no point wasting time.
[Speaker B] Here, here, now it’s on.
[Rabbi Michael Abraham] Yes, now you can already see the light—the light at the end of the tunnel. Yes, okay. So the claim is as follows: “From here we learn regarding monetary law that if one says to his fellow: ‘Go, take possession, and acquire this field,’ or, ‘It shall be given to you from now until I go up to Jerusalem,’ and he then goes back and acquires it from him before he went up to Jerusalem, the recipient returns and acquires it, because this is what he said to him: ‘It is yours forever until I go up to Jerusalem,’ and from now and for that later time when he acquires it from him, he gave it to him. However, this applies specifically when he said to him ‘from now’; but if he did not say to him ‘from now,’ he does not acquire it. For since his acquisition is by taking possession, this possession that he performs now has already expired after the other reacquired it from him, and it is like ‘Pull this cow, but it will not become yours until after thirty days,’ where if it is not in his possession after thirty days, he does not acquire it. So too here: since that second acquisition does not take effect from now but only after he returns and acquires it from him, at that moment that prior act of possession has already expired, and it is impossible for him to acquire it.”
So what is he saying? He’s saying this: suppose I tell you, pull this cow, and in a week it will be yours. There’s no such thing. Why not? Because you want to acquire it by force of that pulling. But that pulling, a week later, has already expired—it’s no longer in the world; it happened now. So now one of two things: either the acquisition takes effect because of the pulling, in which case it happens immediately; and if it didn’t take effect, it’s dead. You want to acquire it in a week?
[Speaker B] Then do a new act that will acquire it.
[Rabbi Michael Abraham] So his courtyard acquired it for him?
[Speaker B] I didn’t understand. At the end of that week, is the cow in his courtyard?
[Rabbi Michael Abraham] If he wants to acquire it by courtyard-acquisition, no problem—let him do an acquisition then. But if you want him to acquire it by force of the original act of acquisition, then your act of acquisition has expired. Okay? That’s basically the Ran.
For our purposes—I’ll still talk about “if” and “from now”; here he’s speaking about “if” and not about “from now,” but right now I’m talking about both. For our purposes, what does this mean? When I make a condition—and again, I’m speaking only according to the view that this is from-now-on retroactively, not retroactive clarification—when I make a condition I’m basically saying this: I’m giving her the bill of divorce now, but you will be divorced only in a year, for example, with an “if” condition. Your act of acquisition has expired. You can’t do such a thing. Because the act that divorces her is an act that was done now. Finished. A minute later, that act is no longer in the world. So how can it suddenly, out of nowhere, make her become divorced a year later, with no act doing that? But seemingly if it happens from now, then that’s okay. And no: if it’s from-now-on retroactively, then it means that in a year something will happen that produces a result backward in time. That too can’t be done, and also by that point his act of acquisition has expired. If it’s only retroactive clarification, then there’s no problem of “his act of acquisition has expired” in a “from now” condition. In an “if” condition, yes. But if it’s from-now-on retroactively—then the problem exists also with a condition of “on condition that,” not only with a condition of “if.” Because in a year, when she fulfills the condition and you want that to change the status of now—by what power? There is no act; by then the act is no longer in the world. So the act of acquisition has expired.
So therefore, for both reasons—both because there is either action backward in time or the problem that the act of acquisition has expired—without the Torah’s innovation I would not know that conditions are possible at all. Only because of the Torah’s innovation can one make conditions. And therefore the Torah repeats, in the passage of the descendants of Gad and Reuben, what we saw in the previous lesson—it repeats again and again in order to show how such a contract is made. If you made the condition in the proper formulation, then this hocus-pocus can happen: the future thing changes what happened now, or the future thing takes effect even though the act of acquisition has already expired. Both problems are solved because of the Torah’s innovation. And we still need to understand, even after the Torah’s innovation, how those problems are solved—but those are the two problems that the Torah solved. How are the problems solved after the Torah’s innovation? That’s the Beit Yishai that I sent you; look at it next week in the email, okay? He basically discusses the question of how these problems are solved after the Torah’s innovation, because even when the Torah introduced the innovation, you still need to understand: okay, but how does it work? After all, the act has expired. So he claims that all kinds of demons and destructive forces are created there, and there’s a whole mystical system there. But it doesn’t matter; you can look at it as a metaphor—what he means is that some legal mechanism is created. Okay? In any case, I’ll still talk about that, but you can look at it next week. I’m just putting it in context. For our purposes, that’s the point: this is why we need the Torah’s innovation. There are two problems with a condition. One, causal action backward in time, and therefore I would not know that one can make conditions without the Torah’s innovation. Two, the act of acquisition has expired, and therefore you can’t make even a prospective condition—even an “if” condition you can’t make—because the act has expired; the legal effect can’t suddenly pop into existence in a month. Only because of the Torah’s innovation is it possible. That’s why we need the Torah’s innovation.
And then basically the claim is that according to the conception of from-now-on retroactively, without the Torah I would not know that conditions are possible at all. The passage of the descendants of Gad and Reuben says: no, we solved the two problems of reverse causality and the expiration of the act of acquisition by means of making a condition—but it has to be done in a proper formulation. If the proper formulation wasn’t used, then with regard to that the Torah did not introduce the innovation that a condition can work, right? In contrast, according to the conception of retroactive clarification, then the Torah’s innovation is not required for the very possibility of making a condition. I can make a condition even without the Torah having innovated it. But—but—the Torah says yes, but only if you did it according to the proper formulation. Why? Apparently according to this conception, the role of the proper formulation is really to verify that this is what you intended. But if this is really what you intended, then obviously the condition will work; you don’t need the Torah’s innovation. The Torah merely says how to clarify your intent in an unambiguous way. And later we’ll see disputes among the medieval authorities (Rishonim), where some of them explain that the whole point of the laws of conditions is only to clarify the intention of the one making the condition. For example, with a double condition, we already saw such a dispute between Maimonides and the Ran. Right? The Ran says that the whole point of a double condition is only to make clear that this is really what you meant, because otherwise I wouldn’t know that you really intended the negative as well and not only the positive. According to Maimonides, no; according to Maimonides, I know what you intended, but you still need a double condition—formalization, yes, exactly—because that’s the proper formulation. So this definitely may be related to that dispute as well.
Now the point is basically this, and here I come to the major implication of the matter. We saw what happens if I make a condition in an improper formulation.
[Speaker B] Then the condition is void, but the act remains valid.
[Rabbi Michael Abraham] Right? The big question is why. After all, in the end, if the condition was nullified, then on that basis I did not want the legal effect to take hold. How can a legal effect be forced on me even though I didn’t want it? That is really the question. So under retroactive clarification, the explanation will apparently have to be that in some way you did intend it. Under from-now-on retroactively, we’ll need some formal explanation. And now we’ll see that this is a dispute between Ri and Rabbenu Tam. Not now—we won’t get to that now—we’ll only get to the question at least. So look. The Talmud in Ketubot discusses someone who makes a condition contrary to what is written in the Torah in monetary matters. What does it say? Someone who betroths a woman on condition… that she has no claim on me for food, clothing, and conjugal rights. That she has no claim on me for food, clothing, and conjugal rights. Yes. He wants to perform betrothal without the obligation of food, clothing, and conjugal rights, against the Torah. Fine? So the Talmud says this is someone who makes a condition against what is written in the Torah. And according to Rabbi Meir, his condition is void. According to Rabbi Yehuda, his condition stands. Why? Because this is a monetary matter. And according to some of the medieval authorities (Rishonim), this applies only to food and clothing, not to conjugal rights. Conjugal rights are not a monetary matter, but food and clothing are monetary obligations, and in monetary matters one may make a condition even if it goes against the Torah. We’ll also discuss that at length later. For our purposes here, several medieval authorities (Rishonim)—the Ritva, Rabbenu Tam, Tosafot, and others—ask: something here doesn’t fit. Let’s look from Rabbi Meir’s perspective. See the Tosafot. Tosafot on the words “She is hereby betrothed,” there in Ketubot. “She is hereby betrothed, and his condition is void”—that’s Rabbi Meir, yes. “Necessarily, the case is one in which he doubled the condition.” Meaning, he said to her: “Behold, you are betrothed to me on condition that you have no claim on me for food, clothing, and conjugal rights; and if you do have a claim on me for food, clothing, and conjugal rights, then you are not betrothed.” Fine? “For later it says that Rabbi Meir’s reason that his condition is void is because he makes a condition against what is written in the Torah. But if he did not double the condition, then let that itself be enough: according to Rabbi Meir the condition is void because a double condition is required,” as it says there. Rabbi Meir is the father of the whole position that requires a double condition.
Now how can that be? If we’re not dealing with a case where he doubled the condition, then the condition is void and the act remains valid because he didn’t double the condition. Therefore it’s obvious that we’re talking about a case where he did double the condition. What? Yes, that’s Maimonides. This is difficult for Maimonides. And Maimonides says no—sorry, for Maimonides it’s not difficult from here. Maimonides says that in fact he did not double the condition because this is “on condition that,” and with “on condition that” you don’t need to double the condition. But according to the medieval authorities (Rishonim) who say that you do need to double it here too, Tosafot explains that basically we’re speaking about a case where he did double it, only the Talmud didn’t quote the whole wording. So Tosafot says we’re dealing with a case where he doubled the condition. If we’re talking about a case where he doubled the condition, now something here is unclear. “And this is difficult: if so, why is she betrothed? After all, he explicitly made it conditional that if she has a claim on him for food, clothing, and conjugal rights, she is not betrothed.” Exactly what I asked earlier, right? He made this conditional on that—leave aside the laws of conditions. He said: if you have a claim on me for food, clothing, and conjugal rights, I do not want to betroth her. And what do you say? She is betrothed to you and you owe her food, clothing, and conjugal rights because the condition is void. The condition is void and the act remains valid. But how can the act remain valid if I didn’t want it? After all, I had no intention to betroth her on the side where she does have a claim on me. At most, you could tell me that since you did it improperly, she is not betrothed in any way. But how can you say that she is betrothed in every way? You can say the act is void. But how can you say that the act remains valid and the condition is void? The act remains valid unconditionally, the condition is void? But that wasn’t his intention. What? One second—now we’re getting there.
So look at the Ritva, who says regarding betrothal with a condition and not etc., and with a double condition he said etc.—so the Ritva asks the same thing. Rabbenu Tam appears here in Tosafot Yeshanim on the page: “And one can say that since one makes a condition against what is written in the Torah, it is considered as mere empty words.” He didn’t really intend that she should waive food, clothing, and conjugal rights. The Torah said no. “On condition that a circle be a square”—a circle is not a square—so in short, you don’t seriously intend the condition. In which direction is Rabbenu Tam going? Retroactive clarification. Why? Because he understands that the requirement of a double condition, and the requirement of all the laws of conditions, and the case of making a condition against what is written in the Torah, and all of it, are only there to clarify that this is his intention. Only to clarify his intention. But if that really is his intention, then obviously the legal effect cannot take place—that is obvious to him. Right? But we’ll still say in the next lesson, we’ll see that Ri there in Tosafot disagrees with him and offers a different answer. And all the later authorities discuss this Ri, because it’s very fundamental. And the underlying basis is that in his view this is not retroactive clarification. Even if it is perfectly clear that his intention is that he does not want this betrothal, he will still have betrothal even though it is perfectly clear that his intention is that he does not want this betrothal. And that is because of the from-now-on retroactively model—we’ll see that next lesson. Okay? So that’s only the…
[Speaker E] What? The mechanism afterward, or the mechanism beforehand? Exactly. And the nullification doesn’t—and the nullification—
[Rabbi Michael Abraham] No, the mechanism of nullification was not created. Exactly. Okay? So we’ll see next time. No, next time you’ll already go over the Beit Yishai, but fine, that’s a little earlier than I had planned. But it doesn’t matter; I’ve already given you the context. Basically, the Beit Yishai shows how the mechanism of from-now-on retroactively solves the problems of the expiration of the act of acquisition and reverse causality. Thank you very much. Be well.