Conditions – Lesson 5

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[Rabbi Michael Abraham] So if we understand the requirement that one’s animal rest in this way, then what does that actually mean? It means that when my animal does labor on the Sabbath, I have violated a Torah-level prohibition. Why? Because basically, just as my own body does labor on the Sabbath, that is my periphery; this is a more distant periphery, but it is still my periphery. Therefore, the requirement that one’s animal rest is not a prohibition punishable by stoning; it is a Torah prohibition, but not one punishable by stoning—like a Torah-level rabbinic-rest-type prohibition for those who claim such a category exists, or kiddush, havdalah, whatever; there are Torah laws beyond the prohibition of labor on the Sabbath. Okay? So the requirement that one’s animal rest is also part of the issue. It is a Torah prohibition, not a liability to stoning. So what does that mean? That when my periphery desecrates the Sabbath, it is as though I desecrated the Sabbath.

And if I come back to our topic, then this is really the claim. The claim is that when I own something, first of all that means there is a metaphysical bond between me and it. That bond has various implications. Usually it also has monetary implications. If I renounced the monetary implications, the bond still remains, until I sever that too—whether through a bill of divorce, or by renouncing ownership of the object itself, or whatever it may be—and then there will be implications in the realm of prohibition and so on.

Now, maybe I’ll sharpen this a bit more. Why can’t I prove this from items from which benefit is prohibited? There is a dispute among the medieval authorities (Rishonim) over whether, when I have something of mine from which I am forbidden to derive benefit—say, orlah, fruit from the first three years, fruit that grew in my field, in my orchard—those orlah fruits are forbidden for me to benefit from. The question is whether they belong to me. So there is a dispute among the medieval authorities (Rishonim): is there ownership over things from which benefit is prohibited?

On the face of it, that also reflects what I’m saying here, because according to what I’m saying, the moment you have no possible use of something, you can no longer be its owner. But there the situation is actually the opposite. Because the one who says that there is ownership over things from which benefit is prohibited—wait, the one who says there is no ownership over things from which benefit is prohibited—what is he really saying? That if you do not have usage rights, then there is no ownership. He identifies ownership with usage rights, unlike what I said before. And the one who says there is ownership over things from which benefit is prohibited—exactly, no, and that does not contradict, but it also does not necessarily support what I said before. Because it could be that the rights are still yours; you’re just forbidden to make use of them. Pork is also forbidden for me to eat—so does that mean it is not mine? The Torah forbids it; “a lion crouches upon it,” yes, a lion is crouching on it—the Torah does not let me approach the thing. It is mine, but it is mine from the perspective of monetary law. From the standpoint of ownership, it is mine; there is just a prohibition against making use of it. So the discussion of ownership over things from which benefit is prohibited actually somewhat challenges the conception I’m speaking about here. Fine, for that we’d have to get deeper into the topic of prohibited benefit; I won’t go into that here. What?

[Speaker C] A full Talmudic discussion on one side.

[Rabbi Michael Abraham] On the other hand, that certainly isn’t right. And we do not multiply disputes unnecessarily. You don’t create disputes beyond what you have to. So if according to one position it is clearly not correct, and according to the second position it is open-ended, it is reasonable to say that even according to the second position it is not correct, because why create a dispute between them on a point we don’t have to. Okay? Fine, that’s a different issue.

In any case, I want to bring an interesting different implication of this. Rabbi Shimon Shkop asks: what is the status of a woman when I divorce a woman conditionally, say to take effect in 30 days? What is the woman’s status during the interim period? This already starts in the Mishnah: “what is she during those days?” It doesn’t matter right now. Rabbi Shimon Shkop claims that in that situation the woman is married and divorced simultaneously. She is both a married woman and a divorcee. Until at the end of the 30 days there is some collapse of the wave function, yes? There is some decision whether she is divorced or a married woman.

Once I taught this topic in Yeruham, this issue of “what is she during those days,” and I told them this Rabbi Shimon. So they said to me: what do you mean she is both a married woman and a divorcee? If she is a married woman then she is not divorced; if she is divorced then she is not a married woman. What, is she both triangular and circular? These are two contradictory things. How can you say such a thing?

For me, that comment was really illuminating, because it had not even occurred to me that there was any problem here. I said it as though it were obvious and intended to move on in the lecture. And then they stop me: wait, something here doesn’t make sense. You’re saying she is both a married woman and a divorcee at the same time? What does that mean, both a married woman and a divorcee? If she is a married woman, she isn’t divorced; if she is divorced, she isn’t a married woman. “Divorcee” means someone who is not a married woman. So what, she is both a married woman and not a married woman simultaneously? How can you say such a thing? And what was more troubling was: how could it be that I myself didn’t notice this? You get too used to saying things, and you don’t think that what you’re saying is actually very problematic.

Then I thought about it there for a bit, and the penny dropped, following which I wrote that article on legal/metaphysical statuses. I told them: I have a good friend whom I once came to with a question. I asked him: is there anything that has no opposite? I couldn’t find one; I looked for something that has no opposite. I found nothing. He looks at me and says: what do you mean? A dove has no opposite. What is the opposite of a dove? Or a chair, I don’t know, a floor. What’s the opposite of… are there not plenty of things that have no opposite?

And again I asked myself: wait, there are so many things, and I couldn’t find even one example—how can that be? Then I realized that I was looking for a property that has no opposite. Objects do not have opposites. Opposition is a relation between properties, not between objects. That is to say, salty is the opposite of sweet. Sugar is not the opposite of salt. Sugar and salt are just two things; they are not opposites. They have opposite properties. So a relation of opposition is a relation between properties, not between entities. Okay?

Suppose I say that a dish is both completely salty and completely sweet. It could have both saltiness and sweetness in it, but a dish that is both completely salty and completely sweet—that is an internal contradiction. It cannot be. But a dish that contains both salt and sugar—there is no problem with that, right? So in fact opposition is a relation between properties, not between entities.

So if that is the case, let’s return to Rabbi Shimon Shkop. When Rabbi Shimon Shkop says that a woman is both a married woman and a divorcee, clearly you cannot say that she is both a married woman and a divorcee. But you can say that the legal/metaphysical status of a married woman and the legal/metaphysical status of a divorcee both apply to her simultaneously. Because to say that the status of a married woman and the status of a divorcee both apply to her—that is a statement about a fact; it is not a legal norm. There is a metaphysical bond of divorcee and a metaphysical bond of married woman. So yes, think of these legal statuses as a kind of backpack that the woman carries on her back. There are two kinds of backpacks: a divorcee backpack and a married-woman backpack. Two backpacks.

Now if each such backpack appears on its own, we know what the implications are. Right? If she is a married woman, all the rules apply—whom she is permitted to, whom she is forbidden to, what must be done, and so on. If she is a divorcee, again we know: forbidden to a priest, permitted otherwise, and so on. We know everything. What happens when she has both backpacks on her? When she has both backpacks on her, there are implications that point in opposite directions. Then you have to decide what the law will be on the normative level—what law will apply to this woman.

Rabbi Shimon Shkop defines that situation as a doubt: she is in doubt a married woman, in doubt a divorcee. But clearly it is not a doubt, and he also does not mean doubt. It is both this and that. Rather, not “in doubt a married woman, in doubt a divorcee”; she is both this and that. From the side of the divorcee within her, she is forbidden to a priest; from the side of the married woman within her, after the husband dies she would be permitted to a priest. Okay? So in terms of implications she will be forbidden to a priest. Why? Because a divorcee is forbidden to a priest; a married woman is not “required” for a priest—there is simply no prohibition. Wherever there is a positive rule and a negative rule, the positive rule always prevails. That is to say, if she is forbidden to a priest from one side and permitted to a priest from the other side, in the bottom line she is forbidden to him. Forbidden for certain, not out of doubt. She is certainly forbidden. If there were a doubt about this, it would not be a double doubt; it would be one doubt. Yes? Or if this were, for example, a rabbinic law—if this combination were in a rabbinic law—it would still be prohibited, even though in a rabbinic doubt we generally rule leniently. Because this is not a doubt; it is both this and that. Okay?

But there is no problem at all on the normative legal level in determining the consequence. The consequence will always be the positive one. The negative consequence is canceled in the face of the positive consequence. Therefore, on the normative level, when you ask me whether she is permitted to a priest or forbidden to a priest, the answer is: she is forbidden to a priest, from the side of the divorcee within her. All right? You ask me whether she is forbidden to a High Priest as a widow? The answer is: she is also forbidden to a High Priest. Because as a widow she is forbidden to a High Priest, and as a divorcee she is also forbidden to him; that is obvious. Okay?

So therefore, if you ask whether she is permitted to the world, after all maybe she is a divorcee and maybe a married woman—the answer is no, she is forbidden to the world from the side of the married woman within her. As a divorcee she would be permitted, but from the side of the married woman within her she is forbidden to the world. So there is no problem at all on the normative legal plane in determining what her status is.

So notice what we got here. We got that it is possible to say of a woman that she is both a married woman and a divorcee simultaneously. Because when I say that, I am not speaking about the legal implications; I am speaking about the metaphysical state. What legal/metaphysical statuses are on her back? On her back she has the status of a divorcee and the status of a married woman. Both exist. You ask me what the implications are? In the implications there cannot be a contradiction. It cannot be that she is both permitted to a priest and forbidden to a priest; there is no such thing. But in the implications, indeed, no contradiction will arise. There will always be one implication that is dominant, that swallows the recessive implication. Okay? And then she will be forbidden to a priest, forbidden to the world, and so on. No problem at all.

That is really the meaning. Now, you can say this only if I understand that the laws in Jewish law are the result of a metaphysical bond, of a legal status that exists in reality. Because if to say that “the status of a married woman applies to this woman” is merely shorthand for the set of laws that pertain to her, and there is no statement here about reality, then you cannot say that a woman is both a married woman and a divorcee. But if I say that a woman is both a married woman and a divorcee, then I have said that both statuses apply to her. Now in terms of the halakhic implications, you do the accounting for each implication and see what it means. Each implication is a separate discussion. It could be that for some implications we look at her as a married woman; for other implications we look at her as a divorcee.

No, no. Rabbi Shimon Shkop is also aware of that kind of doubt. In other places we see, for example, in the case of betrothal that cannot lead to intercourse. Betrothal that cannot lead to intercourse: I give a perutah to a father and I say to him, “One of your two daughters is betrothed to me,” and I did not specify which one. So there is a doubt, yes, there is a doubt. Now what happens? Yes, exactly, this is an ontological doubt, really. Why? Because in this case there is not one woman who is betrothed to me and I just don’t know who she is while the Holy One, blessed be He, knows. No. Neither of them is the one who is betrothed to me. Each of them is betrothed to me in some fainter sense. But both of them are betrothed to me simultaneously in some quantum-like, faint way. Okay?

And Rabbi Shimon stands on this point, and therefore he argues: this is not a doubt; he calls it a certainty-doubt and not a doubtful-certainty, to use the yeshiva language. But this is what it is. It is not a doubt in the ordinary sense. A doubt in the ordinary sense is when I do not know; I lack information and the Holy One, blessed be He, knows. But here the doubt is in reality itself; even the Holy One, blessed be He, does not “know” what the truth is. Yes, here too: is she divorced or a married woman? Even the Holy One, blessed be He, cannot tell you whether she is divorced or a married woman. It is not that you don’t know whether it is this or that. For the time being, she is both this and that. Okay? That is the meaning.

And that is a very clear implication of the conception I mentioned before: that Jewish law sees halakhic determinations, halakhic norms, as an expression or reflection of a metaphysical state. But it begins on the metaphysical plane.

Let me show you this in Rabbi Shimon’s own words: “Rather, since he wants that if the condition is fulfilled she will be betrothed from now, and conversely she will be as an unmarried woman, he thus wants that from now until the fulfillment of the condition she should be in a state of doubtful betrothal and divorce. And regarding any doubt, whenever one acts from the outset on the side of doubt—whether acquisition or right or creating a prohibition—in such a way that the act is on the side of doubt, accordingly the meaning of the condition that creates betrothal or divorce from now is that until fulfillment there are weak betrothal and divorce, as is the law in a doubt; and when the condition is fulfilled they become complete, and when it is not fulfilled they are nullified entirely.”

You see? He does not speak—he calls it a doubt, but it is not a doubt. It is weak betrothal, because she is both a married woman and a divorcee simultaneously. So there is weak betrothal, which gets determined in the end. If the condition is fulfilled, she becomes fully divorced; if the condition is not fulfilled, then she becomes fully betrothed. But it is not a doubt. It is not a situation where—he calls it a doubt, but he does not really mean doubt.

What this means for our purposes is basically that the concept of condition, at least according to Ri, and Rabbi Shimon certainly follows him—I brought Rabbi Shimon at the beginning of the booklet on conditions, together with all the medieval authorities (Rishonim) he cites there; by the way, they all seem to go in the direction of Ri. In Maimonides there is some contradiction, as we saw, but in principle they all go in the direction of Ri: that the concept of condition is the application of a completely metaphysical status, not just hypothetically. Afterward comes the “demon” of Rabbi Shlomo Fischer and uproots the status if the condition is not fulfilled; and if it is fulfilled, then the demon itself dissipates and disappears and the status becomes finalized—spelled with a tet, yes? Meaning: the status is completed. And that is precisely the reflection of that same metaphysical conception that we see here: that one who conditionally divorces a woman has in fact created a situation in which she is both betrothed and divorced; both statuses are resting on the woman. You created a metaphysical situation here, and the condition basically causes it to collapse either in this direction or in that direction. That is Rabbi Shimon’s formulation of Rabbi Shlomo Fischer’s demon. Okay, that is really the claim.

Up to here, with this I have finished the introduction to matters of conditions. Now I want to move on to stipulating contrary to what is written in the Torah. I remind you of the framework, the outline. The order of the discussion is: first we learned a bit what a condition is, what the mechanisms of condition are. Now I move to stipulating contrary to what is written in the Torah—why one cannot stipulate contrary to what is written in the Torah. In the third stage I will discuss what happens when you stipulate contrary to what is written in the Torah in monetary matters, where according to Rabbi Yehuda the condition stands even though you are stipulating contrary to what is written in the Torah. And in the fourth stage I will discuss what happens when you stipulate contrary to what is written in the Torah in a formulation that is not against the Torah but against the person, in monetary and non-monetary matters—we’ll have to examine what happens there. So these are four stages. We are now moving to the second stage. Up to now I finished the first stage.

So in the second stage we are discussing stipulating contrary to what is written in the Torah. And regarding stipulating contrary to what is written in the Torah, we saw the Talmudic discussion in Ketubot 56; let me recall it for a moment. Ah, no—before the Talmudic discussion in Ketubot, first there is the Talmudic discussion in our chapter; that is the reason we are dealing with all this. “It was stated: one who says to his fellow, ‘On condition that you have no claim of overreaching against me’—Rav said: he still has a claim of overreaching against him, and Shmuel said: he has no claim of overreaching against him.”

So let me just remind you: here we turn to the Talmudic discussion in Ketubot. The Talmudic discussion in Ketubot basically says as follows: One who betroths a woman on condition that she has no claim against him for food, clothing, and conjugal rights—according to Rabbi Meir, she is betrothed and she does have a claim against him for food, clothing, and conjugal rights; the condition is void and the act stands, because he stipulated contrary to what is written in the Torah. According to Rabbi Yehuda—because if she is betrothed, and she has no claim, and he has no obligation toward her for food, clothing, and conjugal rights—because in a monetary matter, his condition stands. Conjugal rights are a matter disputed among the medieval authorities (Rishonim), but food and clothing, which are monetary obligations—you can do that, and the condition stands. The act stands and the condition stands according to Rabbi Yehuda. What? No, no, he is not violating a prohibition; he is stipulating that way, and she can refuse if she wants.

So that dispute basically assumes that one cannot stipulate contrary to what is written in the Torah. Rabbi Yehuda only argues that since this is a monetary matter, you can; but Rabbi Meir says there is no difference, and therefore you cannot. That is to say, for our purposes at the moment I am setting aside the fact that this is a monetary matter; for our purposes, this is the example of stipulating contrary to what is written in the Torah. Okay? Someone who stipulates: “on condition that you have no claim against me for food, clothing, and conjugal rights,” like “on condition that you have no claim against me for overreaching,” and so on.

Now the Talmudic discussion here on 51a says: “It was stated: one who says to his fellow, ‘On condition that you have no claim of overreaching against me,’ Rav said: he still has a claim of overreaching against him, and Shmuel said: he has no claim of overreaching against him.” Again, this is stipulating contrary to what is written in the Torah, right? Why did Rav say he still has a claim of overreaching and Shmuel say he does not? Because he is stipulating contrary to what is written in the Torah, and in a monetary matter his condition stands, so the transaction stands and there is no claim of overreaching—exactly what he wanted. Rav says he does have a claim of overreaching—why? Because Rav holds that even though this is a monetary matter, one cannot stipulate contrary to what is written in the Torah, and therefore what? The condition is void and the act stands. What does that mean? The sale stands, but the condition that there be no overreaching is void; there is overreaching. Okay?

The Talmudic discussion says: shall we say that Rav speaks like Rabbi Meir and Shmuel like Rabbi Yehuda? For it was taught: One says to a woman, “Behold, you are betrothed to me on condition that you have no claim against me for food, clothing, and conjugal rights”—behold, she is betrothed and his condition is void; these are the words of Rabbi Meir. Rabbi Yehuda says: in a monetary matter his condition stands. On the face of it, they are disputing according to the tannaitic dispute of Rabbi Meir and Rabbi Yehuda. Later the Talmudic discussion rejects this, and that takes us into the fourth stage of the topic, which we will yet get to. Okay? But this is the case of stipulating contrary to what is written, another case of stipulating contrary to what is written in the Torah.

Before I go on, I want to sharpen the case further—what exactly are we talking about when we talk about stipulating contrary to what is written in the Torah. The Talmudic discussion in Gittin 84 says as follows: “They raised a question: ‘This is your bill of divorce on condition that you eat pork’—what is the law?” On the face of it, this is stipulating contrary to what is written in the Torah. “This is your bill of divorce on condition that you eat pork.” Abaye said: it is the same thing. Rava said: it is possible that she will eat and be flogged. What does that mean?

The context of the discussion there is a matter that is not in her power to fulfill. Remember? We saw the discussion, we talked about it. That is, we didn’t actually see it there, but we did discuss the issue: someone who stipulates “on condition that you ascend to the sky,” okay? “That you dive into the ocean,” I don’t know—things that cannot be done. Okay? So what happens? A matter not in her power to fulfill—the condition is void and the act stands. That is one of the laws of conditions: it has to be something in one’s power to fulfill. That is the context of the discussion.

Now the Talmudic discussion says: what about “this is your bill of divorce on condition that you eat pork”? Abaye said: it is the same; it is the same as a matter not in her power to fulfill. Pork is prohibited, so it is not in her power to fulfill; it is the same thing, and therefore the condition is void and the act stands. Rava said: not so; it is in her power to fulfill—it is possible for her to eat the pork and be flogged. So it is not correct that this is a condition not in her power to fulfill. Okay? That is their dispute.

The Talmudic discussion asks: they raised an objection: “This is your bill of divorce on condition that you eat pork; if she was a non-priestly woman, on condition that you eat terumah; if she was a nazirite, on condition that you drink wine—if the condition was fulfilled, this is a valid bill of divorce, and if not, it is not a bill of divorce.” So what do we see? That such a condition can be made. According to Rava this is fine, why? Because Rava said that such a condition really does stand. For Abaye it is difficult. Abaye would say to you: did you think this is according to everyone? This follows the Rabbis. It is a tannaitic dispute, never mind; it follows the tanna with whom I did not agree. Fine?

The Talmudic discussion asks: but let it be disqualified because it is stipulating contrary to what is written in the Torah, and anyone who stipulates contrary to what is written in the Torah—his condition is void. What does the Talmudic discussion mean here? After all, this is stipulating contrary to what is written in the Torah, right? So the condition should be void. Against whom is the objection directed? Against Rava and against Abaye? Therefore also against Abaye. After all, you, Abaye, say it is not a valid condition because it is not in her power to fulfill. Leave that aside—agree with Rava that it is in her power to fulfill. Not to fulfill? Because it is stipulating contrary to what is written in the Torah, the condition is void—not because it is not in her power to fulfill.

If you remember, in Kovetz Shiurim, Rabbi Elchanan Wasserman brought from this Talmudic discussion a proof that stipulating contrary to what is written in the Torah is not due to its being beyond her power to fulfill. Remember Rabbenu Tam and Ritva, who ask why the condition is void and the act stands when one says “on condition that you have no claim against me for food, clothing, and conjugal rights”? He says there that this is like empty talk because it is not in her power to fulfill. Rabbi Elchanan Wasserman challenges them from this Talmudic discussion here. Here we see that “not in her power to fulfill” and “stipulating contrary to what is written in the Torah” are two separate categories. Fine, we brought this when I discussed the dispute with Bari and Rabbenu Tam and Ritva.

So what the Talmudic discussion says here is basically that this is stipulating contrary to what is written in the Torah; therefore the condition should be void here. The Talmudic discussion says: no. And again, no—both according to Abaye and according to Rava. This is not the category of stipulating contrary to what is written in the Torah. Regarding whether it is in her power to fulfill, that is the dispute between Abaye and Rava, but it is clear that this is not the category of stipulating contrary to what is written in the Torah. Why? The Talmudic discussion gives two answers.

Rav Ada son of Rav Ika said: when we say that one who stipulates contrary to what is written in the Torah has a void condition, that is in a case such as food, clothing, and conjugal rights, where he is uprooting it. But here, she is uprooting it. When I stipulate contrary to what is written in the Torah and I say to her, “Behold, you are betrothed to me on condition that you have no claim against me for food, clothing, and conjugal rights,” who is uprooting what is written in the Torah? I, the one making the stipulation. I want to create betrothal without food, clothing, and conjugal rights, but the Torah says that betrothal must include food, clothing, and conjugal rights. So who uprooted what is written in the Torah? I did; it has nothing to do with the woman. Such a condition, where I uproot what is written in the Torah, is void; you cannot make such a condition. But here, in the case of “This is your bill of divorce on condition that you eat pork,” she is the one uprooting it. Did I tell her to eat pork? I only said to her: if you eat—if you eat pork, there will not be a divorce; if you do not eat pork, there will be a divorce. Now you decide whether to eat pork or not. So who uprooted what is written in the Torah? The woman. So if the woman uprooted it, how does that uproot my condition? My condition does not uproot what is written in the Torah; my condition is just what I said. If the woman decides to uproot what is written in the Torah, what does that have to do with me? Okay? Therefore Rav Ada son of Rav Ika says that “on condition that you eat pork” is not called stipulating contrary to what is written in the Torah. What is? “On condition that you have no claim against me for food, clothing, and conjugal rights.” Why? Because here I am uprooting it. And in stipulating contrary to what is written in the Torah, when you want to uproot, it can only be where I myself make a condition in a way that uproots something from the Torah. If I make a condition in a way that uproots something from the Torah, you cannot do that, and the condition is void. But if afterward the woman decides to uproot it, what does that have to do with the condition I stipulated? I stipulated a condition, and she will do what she decides. If she decides to uproot what is written in the Torah, does that mean I uprooted something written in the Torah? That my condition uprooted what is written in the Torah? Of course not.

Ravina challenged him: is she uprooting anything except in order to fulfill his condition? It turns out that he is the one uprooting it. After all, why did she eat pork? She ate pork in order to fulfill the condition he imposed, not because she independently decided to eat pork. So what? It is still her decision. Ravina’s statement is very strange. Apparently what he means to say is that the woman did not eat pork here out of her own free choice; there is some connection to the husband’s stipulation. So you cannot say that what he did is totally detached from the later uprooting of Torah law that occurred. And that is enough for this condition to be void, okay, under the rule of stipulating contrary to what is written in the Torah.

Therefore—fine, in my opinion this is still forced—but therefore Ravina offers another explanation. And I am not at all sure that Rav Ada son of Rav Ika, in the previous explanation, also meant this. Rather, Ravina said: when we say that one who stipulates contrary to what is written in the Torah has a void condition, that is in a case such as food, clothing, and conjugal rights, where he is certainly uprooting it. But here, did he tell her that she cannot avoid eating? Let her not eat, and let her not be divorced. So he makes it depend on whether this is certainly uprooted or not certainly uprooted.

You understand that this is very, very similar to the formulation of Rav Ada son of Rav Ika. If he uprooted it, then it is certainly uprooted; and if she uprooted it—what if, say, he were to make the betrothal conditional on his own eating pork? Not on her eating pork. That would be a practical difference, right? Because according to Rav Ada son of Rav Ika, then he uprooted it, not her; and according to Ravina, there is no certain uprooting here because afterward he can decide whether to eat or not eat, so this would not be stipulating contrary to what is written in the Torah. So that would seemingly be a practical difference. But I do not think that is what he means.

In my opinion, what Ravina means is that if a person betroths a woman on condition that she has no claim against him for food, clothing, and conjugal rights, then he is essentially creating betrothal in a way the Torah does not want—partial betrothal. The Torah did not define such betrothal. Betrothal is something that includes food, clothing, and conjugal rights. There is no such betrothal; you cannot create such betrothal. Because it is partial betrothal. Where did we ever find half-betrothal? The Torah defined the concept of betrothal: either you do it or you do not. You cannot do half-betrothal. Therefore this is called stipulating contrary to what is written in the Torah.

Notice, according to this—or perhaps even before that—if I say, “Behold, you are divorced on condition that you eat pork,” the divorce is a complete divorce. What does that have to do with her eating pork? It is a prohibition; it is unrelated. Even if I uprooted it, and even if it is certainly uprooted, I do not care; but it does not impair the legal status of divorce as the Torah defines it. She is fully divorced; I just want her to eat pork in order for her to be divorced. That is not stipulating contrary to what is written in the Torah.

According to this conception, stipulating contrary to what is written in the Torah means that you are trying to do something in a way that the Torah defined as impossible. The Torah did not define such a legal status at all. The legal status of betrothal is when it includes food, clothing, and conjugal rights. This is not a penalty imposed on someone who wants to act against the Torah, whereby the Torah nullifies what he does. It is not a penalty. Rather, if you want to create a legal status that is not the legal status defined by the Torah, there is no such thing; you cannot do it. There is no such betrothal—how will you create betrothal? Yes, the Talmudic discussion in Nazir 11—we’ll get to it later—the Talmudic discussion in Nazir 11 says: “I am hereby a nazirite only with respect to wine; I am permitted to become impure and permitted to cut my hair. Only with respect to wine.” There is no such thing; so that is not naziriteship. Naziriteship involves all three things. You cannot create half-naziriteship. There is no such definition in the Torah. You can vow to forbid wine to yourself—that’s a vow; it has nothing to do with naziriteship. But naziriteship is defined very clearly in the Torah. You cannot do something that the Torah did not define at all and call it naziriteship; it is not naziriteship. The same here. You cannot create betrothal in a way that the Torah did not define, betrothal without food, clothing, and conjugal rights. That is stipulating contrary to what is written in the Torah.

And again, stipulating contrary to what is written in the Torah is not a sanction. It is not that if you did not behave properly, then we will uproot what you did. That is not the point. There is simply no way to do it. The Torah defined betrothal in this way. To do something else is to invent a new halakhah; do whatever you want. In our halakhah, such a thing does not exist. In our halakhah there is betrothal with the whole package. That’s it. Either you do that or you do not do that. Decide. You cannot do half-betrothal. That is the meaning of stipulating contrary to what is written in the Torah according to Ravina.

By contrast, one who says, “Behold, you are divorced on condition that you eat pork”—the divorce I created is divorce exactly as the Torah defined it. There is nothing here of partial divorce. I attach it to a prohibition. What Ravina basically wants to tell us is that the focus is not the prohibition involved. It is not that there is a prohibition against not giving a woman food, clothing, and conjugal rights. No. The problem is not the prohibition; the problem is that there is no such betrothal. But if she eats pork, there is such a divorce—it is divorce. She is forbidden to eat pork; she can decide whether to eat pork or not. That is unrelated.

Now understand that if this is really so, it could be that Rav Ada son of Rav Ika also meant the same thing. Yes, look again: “When we say that one who stipulates contrary to what is written in the Torah has a void condition, that is in a case such as food, clothing, and conjugal rights, where he uproots it. But here, she uproots it.” What does “he uproots it” mean? It means that when he tries to create the betrothal, he uproots the Torah because he creates partial betrothal. And when he tells her that she should uproot something, that has nothing to do with the betrothal. Uproot whatever you want, but I did not make partial betrothal here; I did not do something that the Torah never defined at all.

So it could very well be that Rav Ada son of Rav Ika also agrees with Amemar and Ravina. In the plain meaning of the Talmudic discussion, it seems not. In the plain meaning of the Talmudic discussion, it seems there is a dispute. I am not one hundred percent sure there really is a dispute. If one sees it as a dispute, then there are indeed two different conceptions here of the notion of stipulating contrary to what is written in the Torah. What would happen if I stipulate contrary to what is written in the Torah in a way where it is certainly uprooted, but she is the one uprooting it, not me? One would have to think of a situation—I don’t know—but in a way where she is the one uprooting it. That would be a practical difference. Because if indeed the legal status is a partial status, then I do not care that she is the one doing the problematic part; bottom line, there is no such legal status. Why should I care who is to blame for its being only partial? You cannot create such a legal status; it is not a punishment on you. But if you understand Rav Ada son of Rav Ika as saying, “You are trying to go against the Torah, and we won’t allow you,” fine—that applies if you are going against the Torah. But if she is doing something against the Torah, why should that uproot my condition? What does that have to do with it?

And we will see both of these things later, when we discuss the connection to the issue of whether if one acts improperly, the act is effective or ineffective. The Talmudic discussion at the beginning of tractate Temurah asks what happens if I try to do something that involves a prohibition. Can such a thing be done, and the Torah merely forbids it? Or does the very fact that it is forbidden mean that you simply will not succeed, that it is impossible—that the Torah does not allow that thing to happen at all if it is prohibited? This seems very closely related to the conception of stipulating contrary to what is written in the Torah. We will see later whether this is related or not; it could depend on how one understands Ravina and Rav Ada son of Rav Ika.

I just want to make one closing comment that sharpens what I mean when I speak about Ravina in terms of a partial legal status. Earlier I mentioned this law of betrothal that cannot lead to intercourse. Yes, when I betroth—I go to the father and give him a perutah and say, “One of your two daughters is betrothed to me,” without specifying which one. The Talmudic discussion says this is betrothal that cannot lead to intercourse. Why? Suppose they are Rachel and Leah. I am forbidden to have relations with Rachel, because maybe Leah is my wife and then Rachel is my wife’s sister, and I am forbidden to her. I am also forbidden to have relations with Leah, because maybe Rachel is my wife and Leah is my wife’s sister. So in practice I am forbidden to both of them out of doubt. And since that is so, this is betrothal that cannot lead to intercourse. There is a dispute between Abaye and Rava whether such betrothal can take effect or not.

Of course one cannot have relations with them, and therefore one must divorce both of them, but the question is whether one needs to divorce them at all, or whether they are not married and therefore no divorce is needed. But clearly a divorce is needed, even if—Abaye says that this is betrothal and therefore one must give both of them a bill of divorce, out of doubt to both. Rava says this is not betrothal at all; betrothal that cannot lead to intercourse is not betrothal. Here, by the way, this is the qof in ya’al kagam—the law follows Abaye regarding betrothal that cannot lead to intercourse. What did Rava say? Yes, this is the qof of ya’al kagam, this is betrothal that cannot lead to intercourse, so the law follows Abaye that the betrothal does take effect.

Now I want to ask you a question. It is well known what happens if a priest betroths a divorcee. The betrothal takes effect; he violated a prohibition. What happens if someone betroths his sister? The betrothal does not take effect. Betrothal takes effect in cases of ordinary prohibitions but not in incestuous relations. In incestuous relations, betrothal does not take effect because the prohibition is too severe. Fine? But in cases of ordinary prohibitions there is a dispute between Rabbi Akiva and the Rabbis; in practice we rule like the Rabbis. In cases of ordinary prohibitions the betrothal takes effect. Why is that not called betrothal that cannot lead to intercourse? Yes, betrothal that cannot lead to intercourse. He is forbidden to have relations with her. I can also have relations with my wife’s sister—there is a prohibition. So why is that betrothal that cannot lead to intercourse?

Tosafot says there a very interesting thing. I’m not going into the whole topic because this is just an example here. Tosafot says as follows: when a priest betroths a divorcee, the betrothal is complete betrothal, only it was done in violation of a prohibition. The prohibition was not created by the act of betrothal; a divorcee is forbidden to a priest. When I performed the betrothal, the betrothal is ordinary betrothal, and the prohibition remains as it was—before and after.

In betrothal that cannot lead to intercourse, the act of betrothal itself created the prohibition. After all, those two women were permitted to me beforehand. Only because I betrothed one of them did the other become forbidden to me as my wife’s sister. The prohibition was created by the act of betrothal. Betrothal that cannot lead to intercourse is not betrothal where afterward there happens to be some prohibition against the woman; rather, it is betrothal where the prohibition was created by the act of betrothal. Betrothal that creates a prohibition concerning the woman is not betrothal, because the point of betrothal is to permit the woman to me. If the betrothal creates a prohibition, if the betrothal itself created the prohibition—not that I betrothed a woman who was independently forbidden to me, but if the betrothal itself created the prohibition—then according to Rava that is not an act of betrothal. An act of betrothal is supposed to permit the woman to me, so the act of betrothal itself cannot be what forbids my wife to me. That is not betrothal according to Rava.

I brought as an example for this that case from Keritot. One who divorces his wife on an eternal condition: “on condition that you never go to your father’s house,” or one who gives a bill of divorce tied to a string while he holds the string in his hand. It says there that she is not divorced because “this is not severance.” The severance has to happen completely. That is to say, if you divorce a woman, the divorce must cut the bond between the two of you, sever the connection between you entirely. And if you make a condition for a week, a month, a year, okay, then after a year it turns out that it has been severed. But if you create a bond that forever obligates her in something, and as long as there is some possibility that she could return to you, then that bond never fully matures—or the severance, sorry, never fully matures. The Talmudic discussion says: this is not severance. He did not sever between himself and her.

An act of divorce is an act that must sever the bond between husband and wife. If the act does not sever the bond between husband and wife, then in a certain sense it even creates the bond, because conditional divorce means that by means of the divorce I am constantly preserving some connection between myself and the woman. But the role of divorce is to disconnect me from the woman. If the divorce created a connection between me and the woman, then it is not performing an act of divorce. The same applies to betrothal that cannot lead to intercourse, according to Rava. Betrothal is an act that is supposed to permit this woman to me. If the act itself created the prohibition of that woman to me, then it is not an act of betrothal. It is an act whose result is the opposite of what an act of betrothal is supposed to do.

Something like that is what I want to say in our case. When I betroth a woman, and this betrothal is supposed to exempt me from food, clothing, and conjugal rights, that is not betrothal. Betrothal is supposed to obligate me in food, clothing, and conjugal rights. If I wanted some side exemption from food, clothing, and conjugal rights, maybe I could betroth her and then we would have to discuss what happens with that side exemption. But betrothal that I want to exempt me from food, clothing, and conjugal rights—that is not betrothal. The Torah never defined such a thing as betrothal at all. And therefore that is why this is stipulating contrary to what is written in the Torah.

Now the question is: why is the condition void and the act stands? We already discussed that. That is Ri and Rabbenu Tam. On the face of it I would say: fine, then there is no such betrothal, period. And we already saw this. Because Ri says that you have to apply it in any event, and only if the condition is not fulfilled do you uproot it. Right? You apply it in any event. So in that situation, what comes out is that the betrothal takes effect in any event, and the condition is uprooted. What? But in a condition, what are you doing? You are basically creating betrothal in any event. You only want that if the condition is not fulfilled, then the betrothal should be uprooted, right? So if so, I first apply the betrothal. Now let’s see whether the condition is not fulfilled. It will not be fulfilled because you obligated yourself in food, clothing, and conjugal rights. Right—but such a condition cannot be fulfilled. Therefore the betrothal remains. Exactly what Ri said in Tosafot in Ketubot. Okay? That brings us back to the question we discussed there.

Okay? So for our purposes, this is basically what it means. According to Ravina at least, when you betroth a woman through partial betrothal, that is called stipulating contrary to what is written in the Torah. You are creating half-betrothal. Not because of the prohibition you are committing. There is no prohibition here at all. Betrothal means giving food, clothing, and conjugal rights. And that is not the prohibition. If you tie it to a prohibition, that is not stipulating contrary to what is written in the Torah. The betrothal is full betrothal. The prohibition is a separate prohibition. The woman can decide whether to violate it or not. Even if she cannot decide, even if certainly she will violate it—it does not matter. Bottom line, if the betrothal is complete, then it can take effect. And the condition is a separate condition. Okay, so up to here we have only defined what stipulating contrary to what is written in the Torah is at all, what exact case is under discussion. Now we will have to see why indeed one who stipulates contrary to what is written in the Torah has a void condition, and then we will continue.