Conditions – Lesson 9

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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[Rabbi Michael Abraham] Are you saying all the rules of conditions? It’s not so simple. Meaning, regarding a doubled condition, that’s clear. A lot of the medieval authorities (Rishonim) write that the Talmud itself ties it to “from a yes you infer a no.” But Rav Chaim already said that according to Maimonides you see that it’s not so. In other words, a doubled condition is not connected to “from a yes you infer a no.” Maimonides rules both of them: you need a doubled condition, and he also rules that “from a yes you infer a no,” and still you need a doubled condition. So even there, even a doubled condition is not necessarily meant to clarify his intention. As for the other rules of conditions — the yes before the no, the condition before the act, and all the other things — there are places where it also seems that they probably understand this merely as clarifying intent, just so it should be clear what he means. But the simple understanding is not like that. The simple understanding is that these are the formal rules of conditions; it doesn’t depend on his intention. Now, we talked a bit about Tosafot in tractate Kiddushin on page 49, where he says that if these are matters in his heart and in the heart of every person, then you don’t need the formal rules of conditions. And apparently that really does look like it’s only meant to clarify. But that’s not necessarily so. Because it could be that once the conditions or the circumstances show that this is in fact what you mean, then it’s as if you made all the formal rules of conditions — not because they aren’t needed, but simply because you spoke not with your mouth, but through the context. Okay, fine, so these are things we talked about.

In any case, the Rashba belongs to that camp of medieval authorities (Rishonim) who say that one who makes a stipulation against what is written in the Torah, his condition is void because he is merely speaking emptily. We saw that Rav Elchanan objects to this: it plainly goes against the Talmud; the Talmud seems to show that speaking emptily and making a stipulation against what is written in the Torah are two different laws, the Talmud in Gittin. But that is the path the Rashba takes.

And then he says: “And Rabbi Yehuda, who said that in monetary matters his condition stands, that does not mean that he holds that one who stipulates against what is written in the Torah, his condition stands. For we hold that one who stipulates against what is written in the Torah, his condition is void.” He doesn’t dispute the law of stipulating against what is written in the Torah. He agrees that one who stipulates against what is written in the Torah, his condition is void. “And we also hold like Rabbi Yehuda, who said that in monetary matters his condition stands” — even though he is not generally ruled like in Jewish law, in this matter he is ruled like, that in monetary matters the condition stands, even though he too agrees that stipulating against what is written in the Torah is generally void.

So then why in monetary law not? So he says: “Rather, Rabbi Meir holds that when he says, ‘on condition that you have no claim against me for sustenance, clothing, and marital relations,’ he means that she has no law of sustenance, clothing, and marital relations against him. And necessarily she does have against him the law of sustenance, clothing, and marital relations, for Scripture obligated him in it.” In other words, Rabbi Meir holds that the intention of the stipulation is that you should not have the right — in my language — that you should not have the right to sustenance and clothing. I am performing kiddushin, but only on condition that you have no right to sustenance and clothing. That you cannot do; the Torah gave the woman the right to sustenance and clothing, “for Scripture obligated him in it.” “And similarly, when one says, ‘on condition that you have no claim of overcharge against me,’ it is as if he says that you have no law of overcharge against me.”

That is Rabbi Meir, and therefore he sees this as stipulating against what is written in the Torah, and his condition is void. “And Rabbi Yehuda holds that he does not mean the law of sustenance or the law of overcharge, but money. There is here a waiver of money.” Meaning: that she should waive the money of the overcharge that she has against me, or that she should waive the money of sustenance and clothing that she has against me. And money can be waived, and this is like someone saying to his fellow, “tear my garment and be exempt,” for there is here a waiver of money, and it stands. “But if he said to him, ‘tear my garment on condition that I have no law of damages against you,’ his condition is void, for necessarily Scripture imposed upon him the law of damage.”

Meaning, the dispute between Rabbi Meir and Rabbi Yehuda is not a dispute about the laws of conditions at all. It is a dispute over how we understand the stipulation of the person who says, “You are betrothed to me on condition that you have no claim against me for sustenance, clothing, and marital relations.” Rabbi Meir understands that the person means to say that she should have no right to sustenance and clothing. That he cannot stipulate. The Torah gives her that right. That is like stipulating against what is written in the Torah in the area of prohibition; it’s the same thing. But Rabbi Yehuda understands the stipulation differently, the meaning of the stipulator’s words. He claims that the stipulator means that he is asking her to waive it, or that he is making it conditional on her waiving it — not that she should not have a right to sustenance and clothing. That is no problem; she can waive it. Exactly what I said earlier.

[Speaker C] He saw.

[Rabbi Michael Abraham] Through divine inspiration, what I’m about to say. He says that the dispute between Rabbi Meir and Rabbi Yehuda is not about the laws of conditions at all. It is simply a dispute in understanding the intent of the person making the stipulation. Did the stipulator mean this, or did he mean that? There’s a big practical difference. What happens if the person fully clarifies his intention? If he fully clarifies that he is making it conditional on the woman waiving it, then Rabbi Meir would agree that the condition stands. Or if two witnesses came and testified, or if there were some indication that this was his intention, then according to Rabbi Meir his condition stands. And conversely, if for Rabbi Yehuda there were indications that the person did not mean to stipulate with the woman but to stipulate against the Torah, then the condition would be void even according to Rabbi Yehuda. In other words, there is no dispute in the laws of conditions between Rabbi Meir and Rabbi Yehuda. That is the Rashba’s claim.

And really what stands behind that statement is what I said earlier: since in monetary law we are dealing with rights, my obligations are grounded in the woman’s right. The woman has a right to sustenance and clothing, and therefore I must provide sustenance and clothing. So on either side, this is both the most flexible and the most rigid. It’s the most flexible in the sense that if the woman waives her right, there is no problem at all. And if I stipulate with her that she should waive her right, that is also fine. She can waive it; she can choose not to waive it. He stipulates with her that she should waive her right. Therefore, if I had stipulated with her that she waive her right, then Rabbi Meir too would agree that the condition stands. Because that is not stipulating against what is written in the Torah at all. And on that point that I made at the beginning, neither Rabbi Meir nor Rabbi Yehuda disagrees: monetary law is different from the rest of Torah law. If I stipulate that you should waive it, Rabbi Meir also agrees that the condition stands. He only claims that when one simply says to a woman, “on condition that you have no sustenance, clothing, and marital relations from me,” that is not what the stipulator means. He means that there should not be here a law of sustenance, clothing, and marital relations. That he cannot stipulate. And Rabbi Yehuda also does not fundamentally disagree with him. He simply thinks that this is not the stipulator’s intention. If that had been his intention, he too would agree that the condition is void. But that is not his intention. His intention is that she should waive her rights.

So the distinction I made earlier regarding Choshen Mishpat, and the explanation for why there is a difference in stipulating between monetary law and the rest of Torah law, is actually agreed to by both Rabbi Meir and Rabbi Yehuda. That is what the Rashba claims. Both Rabbi Meir and Rabbi Yehuda. Because one could have said that what I said earlier is true according to Rabbi Yehuda, and therefore Rabbi Yehuda said that in monetary matters his condition stands. But what Rabbi Meir disputes is not the understanding of the stipulator’s intention; rather, he does not agree that such a thing is not considered going against the Torah. Even if I stipulate with the woman that she should waive it for me, as long as I tie the kiddushin to that waiver — in effect saying, there is kiddushin here only if you waive it — then de facto I have created kiddushin without sustenance, clothing, and marital relations. And therefore Rabbi Meir would not accept even the mechanism of stipulating with the woman that she waive it, and not only stipulating against the Torah. But the Rashba does not understand it that way. The Rashba claims that this cannot be. It is so obvious to him that even Rabbi Meir cannot disagree with it. This distinction is so obvious to him. Everything Rabbi Meir disputes is only the understanding of the stipulator’s intention.

“And this is the way of our rabbis, the authors of Tosafot, as they wrote in tractate Gittin. And see also that specifically in monetary matters his condition stands, because it can be waived. But a non-monetary matter, such as bodily suffering, namely marital relations, cannot be waived, and he stipulated with her only to speak emptily. All the more so when he stipulated with her concerning something that is not in her power to waive, such as ‘on condition that you not be bound to a yavam’ —” to a yavam — “that she is betrothed and the condition…” Not because this is prohibition and not money. That’s usually how people tend to think, because it’s prohibition and not money. Marital relations are prohibition, and sustenance and clothing are monetary obligations. But no, not for that reason. Rather because marital relations are bodily suffering, and one cannot waive that. It is simply a certain type of monetary-type obligation, if you want to call it that, over which one cannot waive. And once it cannot be waived, then it also cannot be made conditional. Okay? So it is not because marital relations belong to Yoreh De’ah and sustenance and clothing belong to Choshen Mishpat. No. Marital relations too are a right of the woman; it’s just that this is the kind of right that she cannot waive. A cogent right, in legal language. Okay? Yes, exactly.

Therefore the Rashba is basically saying — and this is so clear to him that you can see it in every direction — when he excludes marital relations, he excludes it not because it is prohibition rather than money, but because it cannot be waived. And when he explains Rabbi Meir, why Rabbi Meir disagrees with Rabbi Yehuda, it is not because Rabbi Meir truly disagrees with Rabbi Yehuda, but because he interprets the stipulator’s intention differently. Why? Because the Rashba claims that this principle is so obvious that no one can disagree with it. Anything you can waive — obviously I can stipulate concerning it. Who could disagree with such a thing? It sounds very logical. If you really can waive it, then what is the problem with my making the matter conditional on your waiving it? What’s the problem? As I said earlier, I am not stipulating against the Torah; I am not saying that you do not have the right. You do have the right. I am only asking that you not exercise it. Asking, demanding, stipulating that you not exercise it.

When he says at the end, “on condition that she not be bound to a yavam,” why is that different from “on condition that you eat pork”? It sounds similar. The Torah says she is bound to a yavam; the Torah says it is forbidden to eat pork. So really this is a prohibition. “On condition that you not be bound to a yavam” is not like marital relations, right? Let’s say marital relations are different from sustenance and clothing; but they are not fundamentally different. Marital relations too are in Choshen Mishpat, but since it is an obligation she cannot waive, then you cannot stipulate it away. But “on condition that you not become bound to a yavam” is like — no — like “on condition that you eat pork.” Why is it different? It isn’t different. What? To be bound to a yavam? That is an obligation, not a right. She is forbidden to marry unless she has been released from her bond to the yavam. That is an obligation upon her; it is not a right that she has. Yes — if I die childless, then she cannot marry unless she received chalitzah or yibbum. That’s not the same thing.

Why? Because “on condition that you eat pork” is unrelated to the concept of kiddushin. You have the option to eat pork or not eat pork. But “on condition that you not be bound to a yavam” does not mean, again, it does not mean “on condition that you not undergo yibbum.” In principle she can avoid yibbum, but she cannot marry without addressing the yavam bond — meaning it cannot be that she has no yavam bond. Okay? This is a stipulation against the Torah; it is not a stipulation with the woman. And in that sense it is not like eating pork. Because kiddushin inherently include a bond to the yavam if the husband dies childless. And if you want to make it without a yavam bond, then that is like kiddushin without sustenance, clothing, and marital relations — not waiving them, but without sustenance, clothing, and marital relations, without the rights of sustenance, clothing, and marital relations. Rabbi Yehuda too agrees that you cannot stipulate that. Partial kiddushin is against the Torah. Kiddushin without becoming bound to a yavam is against the Torah.

But divorce on condition that she eat pork — that is not against the Torah. It does not impair the concept of divorce in any way. She can eat pork; she can choose not to eat pork. Okay? Here I’m saying more than that. She can also in practice become bound to a yavam or not become bound to a yavam, but if I stipulate that there not be a yavam bond — not that in practice she not undergo yibbum, but that there not be a yavam bond — that is a condition against the Torah. It is not the same thing.

[Speaker B] Maybe the concept — I thought that… what?

[Rabbi Michael Abraham] Like they were saying before. Okay. You’re saying: if I divorce the woman on condition that it be permitted to eat pork, not on condition that she eat pork, on condition that it be permitted to eat pork. Right, but there it’s not because of stipulating against what is written in the Torah. Here too it isn’t. I don’t know — presumably because pork is forbidden. What? Yes, right.

And Nachmanides in Bava Batra 126 actually ties this to our topic later on. He says: “Even though here, regarding sustenance, clothing, and marital relations, it is in her power to waive” — including marital relations, by the way, unlike the Rashba, at least apparently — “since he said to her ‘on condition,’ it is as though he said to her: on condition that I not be obligated to you for sustenance, clothing, and marital relations — and behold, he is obligated to her. But if he said: on condition that you waive for me sustenance, clothing, and marital relations, it stands. And it is similar to what we say: on condition that the Sabbatical year not remit my debt. And the Talmud distinguishes” — this is the Talmud on our page, page 51 — “between saying, ‘on condition that the Sabbatical year not remit me,’ and ‘that it not remit me during the Sabbatical year.’ Rabbi Meir holds that even though you say ‘you have no claim against me,’ it is nothing unless he waives it for him, and it is not in his power to say that he should not become obligated to him.”

Yes. Meaning, it seems that he means like the Rashba. That is, you can waive it, but you cannot say that there should not be such a right in the first place. “Rabbi Yehuda holds that it is in his power to say that he should not become obligated to him, for he waives it. And in a monetary matter one may waive it, because the Torah only said that he should be obligated if this one wants it.” In my words, the Torah said that you have a right; the Torah did not say that I must pay no matter what. You have a right. Yes, that’s what he means when he says, “that he should not become obligated except by this one’s will,” meaning if you do not waive your rights.

Regarding Rabbi Meir, I’m not completely sure that he is saying exactly what the Rashba says. The Rashba hangs it entirely on interpretation — what did the stipulator mean? Rabbi Meir holds that he is stipulating against what is written in the Torah. Here one could also say that even if you ask her to waive it, according to Rabbi Meir that too is stipulating against what is written in the Torah. Meaning, he disagrees with Rabbi Yehuda, but not about the intention of the stipulator’s words, as the Rashba said. No: even if his intention is like Rabbi Yehuda, meaning that he intends that she waive it, according to Rabbi Meir even such a thing cannot be done; that is stipulating against what is written in the Torah. Because de facto you are imposing kiddushin here without sustenance, clothing, and marital relations. You are effectively trying to create kiddushin without sustenance, clothing, and marital relations. The Torah does not want there to be kiddushin without sustenance, clothing, and marital relations. If the woman then waives it afterward, no problem — that is perfectly fine. Meaning, if I betrothed the woman, no conditions, and afterward she says, you know what, I waive for you sustenance, clothing, and marital relations — “I do not want support and I will not work,” all sorts of things like that — okay, then there is no problem at all. Waiving is always possible. But when you do it by way of a condition on the kiddushin, then yes, you are making it conditional on her waiving it, but practically, since you are making the kiddushin conditional on her waiving it, you have in effect created kiddushin without sustenance, clothing, and marital relations. She cannot choose not to waive it, because if she does not waive it, then there is no kiddushin. So in any case she will not receive those sustenance, clothing, and marital-relations rights.

Okay, so if that is what Nachmanides means, then it is not the same as the Rashba in Rabbi Meir’s opinion. The direction is similar, yes, but it is not the same thing. Because he is claiming that Rabbi Meir does not disagree with Rabbi Yehuda about what the stipulator meant, as the Rashba said. No: even if his intention is like Rabbi Yehuda, that he means that she should waive it, according to Rabbi Meir even such a thing cannot be done; that is stipulating against what is written in the Torah. Because de facto you are creating kiddushin here without sustenance, clothing, and marital relations.

It is somewhat similar to what some commentators say — we discussed this in previous sessions — about the Talmud in tractate Nazir page 11, someone who takes on naziriteship on condition that he be permitted to become impure through the dead or to drink wine. Now there too, obviously this is not a question of waiver. There is no one standing opposite him to waive for him the prohibition of impurity or of wine. But still, there are medieval and later authorities who understand that the Talmud there, where it says this is stipulating against what is written in the Torah, is talking about a condition. I said that this is not certain; maybe the expression “stipulating against what is written in the Torah” just means that you cannot go against the Torah. It does not necessarily mean there an actual law of conditions. Tosafot there show that it really is a law of conditions, but in the Talmud itself one could have argued.

But even if it is a condition, one can still ask: why is that stipulating against what is written in the Torah? I am only saying that if I become obligated regarding wine and impurity, then I do not want to be a nazir. I did not tell the Torah what to do, right? If the Torah decides to obligate me anyway in sustenance, clothing, and marital relations, then I did not intend to be a nazir. What is the problem? It is like “on condition that you eat pork,” with the woman. No — if I condition the naziriteship on this, then de facto I have essentially accepted naziriteship without impurity and without wine. Even though the mechanism is the mechanism of a condition, still, since I am conditioning the act itself with these reservations about impurity and wine, this is a partial legal effect. It is like a reservation. Okay?

The Ritva writes one step further. The Ritva is in Kiddushin page 19. “And even so Rabbi Meir holds that this is considered stipulating against what is written in the Torah,” yes, he too explains Rabbi Meir, what Rabbi Meir disagrees with Rabbi Yehuda about: “because he is not yet obligated to her in these matters, and waiver does not yet apply to them, and therefore this is a condition. But after she is married, he agrees that she can waive them for him.” What does he mean? He too is offering another explanation of Rabbi Meir’s view.

Meanwhile everyone agrees about Rabbi Yehuda’s opinion — Nachmanides, Rashba, Ritva, everyone — that Rabbi Yehuda says one may stipulate in monetary matters against what is written in the Torah because I am stipulating with her that she should waive it; I am not stipulating against the Torah. The dispute among them, or their differences, is in how they explain Rabbi Meir. According to the Rashba, Rabbi Meir also agrees with Rabbi Yehuda; he just interprets the stipulator’s intention differently. According to Nachmanides, maybe it is the same as the Rashba, but I said perhaps not. Perhaps he means that even if this is a stipulation with the woman that she waive it, de facto it is still considered stipulating against what is written in the Torah, because you want to create kiddushin without sustenance, clothing, and marital relations. The Ritva says something else. The Ritva says that this is considered stipulating against what is written in the Torah because he was not obligated to her in these things before the kiddushin. Yes — a debt that comes into existence… exactly. You cannot waive an obligation that has not yet come into existence.

So what? I am asking that she waive it for me later, when it comes into existence. Why not? I am betrothing her on condition that she waive it for me afterward, once the obligation comes into existence. What? Maybe… But the whole point is that he wants her to waive it now. But if he had said that she should waive it afterward, then it would have been fine. I don’t think so, because look at his wording: “because he is not yet obligated to her in these matters, and waiver does not yet apply to them, and therefore this is a condition.” What does he mean by “and therefore this is a condition”? One could have said that the whole mechanism here is a mechanism of withdrawal, not a condition at all. I ask that the woman withdraw from these rights of sustenance and clothing. That’s all. If you agree, excellent; if not, fine. This is not a mechanism of condition at all. Parallel to the reservation we saw in the Talmud in Nazir, only here a reservation on the woman’s side. She will withdraw from the right to sustenance and clothing. So he says: but it is impossible to withdraw from this right when the right does not yet exist. Therefore, necessarily, this is a condition and not a withdrawal.

What do you mean? You are making it conditional now on her waiving it later or withdrawing later, I don’t care, afterward. If you had said to her, “waive it for me now,” in principle that would be fine — except that the obligation does not yet exist, and you can’t waive it. So it could have worked if you said “waive it for me now.” But it doesn’t work, because the obligation does not exist; you cannot waive something that has not yet come into the world. So what? Then apparently what you are really saying is: I am stipulating with you now that you will waive it for me later, and I am making the kiddushin conditional on your waiving it. And if you do not waive it for me, then I do not want to betroth. Ah — that is a condition, not a withdrawal. If it could be done now, then it would be a withdrawal; it would not involve the mechanism of condition at all. It would simply be a withdrawal from rights. People sign a contract and someone gives up rights — he can give them up, what’s the problem. But if one cannot now give up the rights, then what I am actually doing is making it conditional on her giving them up when they come into existence. But that is already a condition, not a withdrawal. And a condition of that sort, according to Rabbi Meir, cannot be made.

Now the question is: why? Why can’t it be done? What’s the problem? True, it is a condition — but it is a condition like pork, or not even like pork; it’s even less than that. She can give it up — what’s the problem? It is not forbidden to give it up. So the Ritva — not the Rashba, sorry — does not explain. He says, “after she is married, he agrees that she can waive it for him.” He adds that later too. So if he agrees that she can waive it for him, why can’t I make it conditional now that she waive it for me later? She can waive it — it is not even a prohibition. On the contrary, he is explaining Rabbi Meir: why is this called stipulating against what is written in the Torah? Meaning, because it cannot be withdrawal, therefore necessarily it is a condition. And therefore this is stipulating against what is written in the Torah, and his condition is void. He is coming to explain Rabbi Meir.

I think what he is saying is what I said earlier, like a condition against a cogent right. What does that mean? If I say to her, look, the kiddushin will not take effect unless you waive for me sustenance, clothing, and marital relations when they come into existence in the future — yes, that is basically what he is saying. Now, she cannot give it up now. If afterward she does so voluntarily on her own initiative, there is no problem at all. The whole problem is when I make it conditional that she will do it later. Why is that problematic? It is problematic because de facto these are kiddushin without sustenance, clothing, and marital relations. Because the moment I make the kiddushin conditional on her — she is allowed to waive it — but if I make the kiddushin conditional on her waiving it, then de facto I have created kiddushin without sustenance, clothing, and marital relations. Because if she does not waive it, then there is no kiddushin, right? So in any case she does not get sustenance, clothing, and marital relations. Right? So in fact I made kiddushin here without sustenance, clothing, and marital relations. Rabbi Meir says: that is stipulating against what is written in the Torah. I don’t understand.

[Speaker B] Why don’t you say that since it depends on waiver, she can’t waive it?

[Rabbi Michael Abraham] Because if she — no. If she can waive it now, then that is perfectly fine. No, no, because my exemption from that point is because of the waiver, not because of the kiddushin. The kiddushin are with sustenance, clothing, and marital relations. The reason I am exempt from sustenance, clothing, and marital relations is because she waived it for me. That’s fine, just as she can waive it afterward. If she waives it for me after the marriage, is that a problem? No — here, he himself says that she can waive it for him after the marriage. So if she could have waived it beforehand in terms of the laws of waiver, then that would also have been fine. Because in terms of the kiddushin, I undertake sustenance, clothing, and marital relations; it’s just that she waives them. So my exemption is because she waived it, not because I was never obligated. But if I betroth her on condition that she waive it, then de facto I am exempt not because of her waiver — not because of her waiver. I am exempt because these kiddushin are kiddushin that do not include sustenance, clothing, and marital relations. And the proof is that even if she does not waive it, I am exempt. Because if she does not waive it, then there is no kiddushin, since she did not waive it, the condition was not fulfilled, and again I do not have to give it to her. So it does not depend on her at all; it is not because of the waiver.

No — if she waives it beforehand, then I am exempt because she waived it, not because of the kiddushin. The kiddushin are not partial kiddushin lacking sustenance, clothing, and marital relations; she simply waived them. And if it were possible to waive them beforehand, then she waived them beforehand. But the exemption is because of the waiver, because she waived it. Not because the kiddushin do not include sustenance, clothing, and marital relations. That is completely different.

Again: not that the kiddushin would be canceled; we just would not perform kiddushin, yes. But that is like a woman who doesn’t consent. If she doesn’t consent, there is no kiddushin. That is not a problem. It is like — the Talmud in Kiddushin speaks about kiddushin not fit for intercourse. So what is kiddushin not fit for intercourse? Someone gives a perutah to the father of two daughters and says to him, “One of your two daughters is betrothed to me,” without specifying which one. Now what happens? Since I have a doubt — say Rachel and Leah — maybe Leah is my wife, but then Rachel is my wife’s sister, and I’m forbidden to have relations with Rachel. If Rachel is my wife, then Leah is my wife’s sister, and I’m forbidden to have relations with Leah. So practically I am forbidden to have relations with both of them because of the doubt of my wife’s sister. So this is kiddushin not fit for intercourse; I cannot have relations with either of them. And kiddushin not fit for intercourse — there is a dispute between Abaye and Rava whether this is kiddushin or not kiddushin. Fine. In Jewish law we rule like Abaye, that it is kiddushin. Yes, that’s the famous rule. So the law follows Abaye that it is kiddushin, but according to Rava it is not kiddushin. But this is called kiddushin not fit for intercourse.

What about a priest who betroths a divorcee? Is that kiddushin not fit for intercourse? Kiddushin do take effect in cases prohibited by negative commandment. In forbidden sexual unions carrying excision, kiddushin do not take effect, but in cases prohibited by negative commandment kiddushin do take effect. Why do they take effect? Is this not kiddushin not fit for intercourse? Intercourse is forbidden; he is forbidden to have relations with her. Or let’s go further: if someone betroths his sister. Is that kiddushin not fit for intercourse? According to Abaye, would the kiddushin be valid? Betroths his sister? No, right? Kiddushin do not take effect in cases carrying excision. Right. But from the standpoint of kiddushin, they would take effect, right? This is not kiddushin not fit for intercourse. Why not? Why is a priest and a divorcee, or someone who betroths his sister, not kiddushin not fit for intercourse, but one who betroths one of two sisters is kiddushin not fit for intercourse?

The answer, as appears from Tosafot there on the spot, is that kiddushin not fit for intercourse refers only to a case where the prohibition of relations with her is because of the kiddushin. Not where there is some prohibition of relations and therefore a problem with the kiddushin. No. Kiddushin of a kind that, instead of permitting intercourse, create a prohibition of intercourse — that is not kiddushin. The problem is not that one cannot have relations with her. One also cannot have relations with his sister. A priest also cannot have relations with a divorcee. That is not the concept of kiddushin not fit for intercourse. Kiddushin not fit for intercourse means when you performed an act of kiddushin that, instead of permitting relations for you, forbids relations for you. Which is the opposite. It is like severance in a bill of divorce. A bill of divorce that does not create severance is not a bill of divorce. Kiddushin that do not create the opposite of severance — connection — are not kiddushin.

Now here, the reason I am forbidden to have relations with both of them is because of the act of kiddushin that I performed. That is what created the prohibition. How can it be that I perform an act of kiddushin that creates a prohibition upon me to have relations with my wife, instead of permitting me to have relations with my wife? According to Rava, that is not an act of kiddushin. Okay. So here too — I brought that as an example — if she waives it for him, if it were possible to waive before he did the kiddushin, then he would be exempt from sustenance, clothing, and marital relations because of the waiver, not because of the kiddushin. The kiddushin are full kiddushin. There is waiver. Assuming one can waive even before the kiddushin. That is parallel to betrothing his sister, where he is forbidden to have relations with her, but not because of the kiddushin is he forbidden to have relations with her. The kiddushin are full kiddushin; it is just forbidden for him to have relations with her. Therefore there you need another reason why kiddushin do not take effect, namely cases of excision.

But in kiddushin on condition that she waive it in the future, then she is in effect obligated to waive it by force of the kiddushin themselves. So de facto these are partial kiddushin. And therefore the condition is void and the act stands according to Rabbi Meir. By the way, what does Rabbi Yehuda hold? We discussed Rabbi Meir; what does Rabbi Yehuda hold? Rabbi Yehuda says: I am stipulating regarding the waiver. Fine, but even then, there is still Rabbi Meir’s reasoning, that these are partial kiddushin. He says no, these are not partial kiddushin. There is a condition here. It is not a reservation. That is their dispute. When I betroth on condition that she waive it for me, I am performing full kiddushin on condition that she waive it. True, she must waive it, and if not — but practically why am I exempt in the end? That is the question. Why in the end am I exempt from giving her sustenance and clothing according to Rabbi Yehuda? Because she waived it, not because the kiddushin never obligated me to give sustenance and clothing. Meaning that Rabbi Yehuda only argues that even if the condition is about a future waiver, what difference does it make? My exemption is still because she waived it, not because the kiddushin do not obligate me. That is not called stipulating against what is written in the Torah.

So according to this, according to the Ritva, that is the dispute between Rabbi Meir and Rabbi Yehuda. The dispute is whether kiddushin on condition that she waive it for me in the future are considered partial kiddushin or kiddushin with a condition like any other condition. Or in other words: the fact that I am exempt from sustenance and clothing — am I exempt because she waived it? Or am I exempt because these are kiddushin that do not obligate sustenance and clothing at all, according to Rabbi Meir? That is the dispute. And then it is not like the Rashba. Because according to the Rashba, everyone agrees that if these are kiddushin dependent on a future condition, then there is no problem at all that she waive it. Even Rabbi Meir agrees to that. Rabbi Meir only interprets this kind of stipulation as a stipulation intended against the Torah and not against the woman. According to the Ritva, that is not so.

Okay. In any case, according to all these explanations, there is no dispute here about the laws of conditions. Right? It is not a dispute about the laws of conditions between Rabbi Meir and Rabbi Yehuda. It is not about the formal wording of conditions, the condition of the sons of Gad and the sons of Reuven, how we derive what it means to stipulate against what is written in the Torah. No. Stipulating against what is written in the Torah is that thing we discussed in previous sessions. On top of that, you ask whether a given case is called stipulating against. And my exemption is not because the kiddushin do not obligate me, but because the woman waived it for me. And that is fine. So this is a halakhic dispute, not a dispute over his intention as the Rashba says, over the stipulator’s intention. It is a halakhic dispute, but not in the laws of conditions. The dispute is how you understand the relationship between the condition and the act. When there is a condition that limits the act, is that considered that you performed a partial act, or is it considered that you performed a full act, only with a condition that removes part of its effect? Okay? That is really the dispute.

But Rav Shimon, in his lengthy discussion in Ketubot section 67, in his novellae to Ketubot section 67, says the following. He now claims — he argues against everything we have seen until now. What have we seen until now? The whole discussion is only about the question: I am not stipulating against the Torah; I am stipulating with the woman that she waive it. Okay? And according to Rabbi Yehuda that works. What does Rabbi Meir hold? Either Rabbi Meir holds that even stipulating with the woman is considered a limitation of the kiddushin and therefore is stipulating against what is written in the Torah, or Rabbi Meir holds that the stipulator intended to stipulate with the Torah and not with the woman, and therefore it does not take effect — but stipulating with the woman is fine. But everyone understands that such a thing could only work if you are stipulating with the woman. And if you are stipulating with the Torah, it is obvious that it does not work. According to everyone — Rabbi Meir, Rabbi Yehuda, the Ritva, the Rashba, Nachmanides, everybody. Nobody disputes that. Meaning, if you stipulate with the Torah that the law of sustenance, clothing, and marital relations should not apply, that cannot work. Right?

So Rav Shimon claims yes. Rav Shimon claims that Rabbi Yehuda is not speaking about a stipulation regarding waiver; he is speaking about a stipulation on the Torah law itself. And nevertheless he says that in monetary matters his condition stands. “Now, however, I have considered that this matter of condition concerns the legal effect of the Torah law.” He is stipulating against the Torah; he is not stipulating with the woman that she waive it. “For if not, we cannot understand at all this wording that they said in the Talmud in Nazir, that one who stipulates on condition that he may drink wine and become impure through the dead” — where the meaning there is that it should be permitted to him to drink wine — “the Talmud said that his condition is void because he is stipulating against what is written in the Torah,” because he is stipulating against what is written in the Torah.

What do we see there? So far, what do we see from there? What does that have to do with us? First of all, maybe it does. Why? Because there it is obvious that he is stipulating with the Torah itself. Right? There is no one there to waive for this nazir his impurity and wine. Right? So “stipulating against what is written in the Torah” means stipulating with the Torah. So Rabbi Meir, who says in our case that a certain thing is called stipulating against what is written in the Torah, is apparently talking about stipulating against the Torah. Then Rabbi Yehuda too, who disagrees with him, is apparently talking about stipulating against the Torah, not about stipulating with something else. Of course, the Rashba explicitly says otherwise. They dispute what the stipulator intended, and he understands that they are discussing the same case. There is a dispute between Rabbi Meir and Rabbi Yehuda, and they are discussing the same case. So if it is a case where the person stipulated about waiver, what does that have to do with Nazir? If you are talking about a case related to Nazir, then at least according to Rabbi Meir it must be that you are stipulating with the Torah, not with a waiver. But if so, then what about Rabbi Yehuda against Rabbi Meir? Rabbi Yehuda, who disagrees with him, has to be talking about the same case. What, is Rabbi Yehuda talking about a different case? Then it is not a dispute. They are talking about the same case. So he too is talking about when you stipulate with the Torah. So Rabbi Yehuda permits or validates the condition even when you are stipulating against the Torah, not when you are stipulating with the woman that she should waive it.

You can argue with that, as I said earlier, yes. It could be as the Rashba says. They are speaking about the same case in the sense that the person said the same words. That is what “same case” means. But Rabbi Yehuda holds that he stipulated with the woman, and Rabbi Meir holds that he stipulated with the Torah — two interpretations of what he said. But he apparently assumes not; when they say the same case, it means the same case.

[Speaker B] But if a woman can waive it—

[Rabbi Michael Abraham] So why would that contradict this? No problem — say that it is waiver. But if she waives it, let her waive it. But what did he stipulate? He stipulated with the Torah. But if—

[Speaker B] she agrees? Yes, why can he agree on…? On the Torah? No—

[Rabbi Michael Abraham] Then that has nothing to do with the Torah. That is stipulating with the woman that she waive it, not with the Torah. With the Torah you cannot stipulate. If she agrees to that? She agrees. So what? But the Torah does not agree. There is a law.

[Speaker B] Right, but if she waived it… then—

[Rabbi Michael Abraham] Then you are not stipulating with the Torah. You are stipulating with the woman. The Torah wants her to have a right. Are you stipulating about the very existence of the right, or about the exercise of the right? Let’s put it that way — not with the Torah and with the woman. Are you stipulating about the existence of the right itself, or about the exercise of the right? That there should not be, that she should not be entitled to sustenance and clothing. Not that she should not exercise it, but that she should not be entitled to it. No, apparently you cannot stipulate against the Torah. All you can do is that the woman does not exercise it. The Torah has no problem with the woman not exercising her rights, but the rights have to exist; she has such rights. About that you cannot stipulate. No — she will have the right, she just won’t exercise it. No, if you say that she should not have the right, then you are stipulating against the Torah, not with the woman. You cannot do such a thing. Obviously she has the right. She can choose not to exercise it because it is only a right, and a right I can waive. But when I waive a right, that does not mean I do not have the right. I have the right; I just decide not to exercise it, to give it up. But if she decides that she—

[Speaker B] does—

[Rabbi Michael Abraham] want it, then—

[Speaker B] because she made it conditional.

[Rabbi Michael Abraham] Yes. Not afterward. Yes, yes, because the condition stands. So—

[Speaker B] ostensibly it comes out that she consents to the kiddushin on that basis.

[Rabbi Michael Abraham] According to the Rashba — what? If she doesn’t — if she consents to the kiddushin—

[Speaker B] and afterward says that she wants it, then would the kiddushin really be canceled?

[Rabbi Michael Abraham] I’m not sure the kiddushin would be canceled, because maybe it won’t help her that she suddenly wants it, since she already waived it. She cannot retract after she waived it. Not because the kiddushin obligate her, but because she already waived it. It has already taken effect. So if this were—

[Speaker B] a condition beforehand, a condition that she waived the Torah and the commandments. And if he betroths her, he betroths her so that she would have such a right, and she agrees that it not be exercised — that there should be both kiddushin and also that there be the right.

[Rabbi Michael Abraham] No, it comes with the right, only it won’t be realized. That’s not the same thing. She has that right, but it can’t be realized. Suppose, for example, you borrowed money from me. You have to pay me back, and I waived it for you. Okay? Never mind the Torah law that there is an obligation of repayment, that repaying a debt is a commandment. Now can I later retract and say, “I’m not waiving it, I changed my mind”? No. I waived it. This is not before the loan. Once she agreed to the betrothal, once the act of betrothal was done, both the waiver and the betrothal took effect. Once the betrothal took effect, that means that she—and she didn’t protest while it was happening—she could have protested, and then I wouldn’t have done the betrothal. If I did the betrothal and she didn’t protest, that means the act of waiver that she made beforehand now came into effect; now the obligation already exists. After that she can’t retract, because she already waived it. Yes, at the time of the betrothal—what do you mean afterward? Yes, together with the betrothal. So he says: and it seems from the words of Tosafot, who asked that the naziriteship should be void because his condition is not fulfilled, and they answered this with their own answers. And Nachmanides, in the chapter “Yesh Nochalin,” wants to answer that there it is without a double condition, yes, and therefore the condition is void but the act stands. What does he bring from Tosafot? Tosafot understands there that this really is an act of stipulation. I had said that one could have understood there that the nazir accepts naziriteship except for impurity and wine. That would be a reservation. So why does Ravina there in the Talmud say that this is “stipulating against what is written in the Torah”? Because the principle of stipulating against what is written in the Torah is not really a principle in the laws of conditions. You can’t create something against the Torah; if one did it, it has no effect, something like that. The expression is “stipulating against what is written in the Torah,” but it’s not really talking about conditions. With whom are you stipulating? It’s strange in the first place to understand naziriteship as a condition. With whom are you stipulating? What are you stipulating? But we did talk about “Yesh Nochalin”; we mentioned several examples like that, and they also appeared in Pe’ah, right? Someone who stipulates that his forgotten sheaf he won’t leave for the poor—the Mishnah in Pe’ah. What kind of stipulation is that? The Torah says you do have to leave it for the poor. What are you stipulating? So the expression “stipulating against what is written in the Torah” can perhaps be understood as someone who cannot act against the Torah. It doesn’t necessarily refer to the laws of conditions. If that were so, then there would be no proof to bring from the Talmud in Nazir for our case, because the Talmud in Nazir is not talking about the laws of conditions. But he says: Tosafot asks there that the naziriteship should be void because his condition is not fulfilled. Meaning, Tosafot understood the Talmud there as dealing with an actual condition in the plain sense. The expression “stipulating against what is written in the Torah” is really accurate there; it’s not just borrowed language. Okay? And if so, how can it be called stipulating against what is written in the Torah? That means he is stipulating with the Torah itself, not about waiver. Okay? And according to this, it seems to me that the Talmud’s reason is to explain why his words are ineffective in making him permitted to drink—wine, that is. The whole story there in the Talmud—what is the Talmud trying to explain? It’s trying to explain why it doesn’t help him exempt himself from drinking wine, why it doesn’t help him be permitted to drink wine. But seemingly, this is obvious. If someone says, “I am hereby a nazir on condition that all the laws of the Torah will be permitted to me,” you don’t need a reason why his words are ineffective in permitting him all the prohibitions of the Torah. Does that need explaining? Obviously, if you’re a nazir then you’re forbidden to drink wine. What we should have explained is why the naziriteship is not void because his condition was not fulfilled. That’s what needed explanation. But if he is already a nazir, then of course it’s clear why he’s forbidden to drink wine. That’s not what you need to explain to me. You need to explain why, despite the fact that he’s forbidden to drink wine, he is still a nazir and the naziriteship did not disappear. After all, on that basis he didn’t want to take on naziriteship. And about that the Talmud gives no reason at all; only the medieval authorities explained the reason. The Talmud goes to the trouble of explaining why he is forbidden to drink wine, but it doesn’t bother explaining why he is still a nazir. Okay? Basically what he is saying is that from the Talmud there it seems that the whole discussion is really about the question of stipulating against the Torah, and the question is whether what you stipulated works or not. The act stands, yes, the act stands, but the question is whether what you stipulated is fulfilled or not fulfilled. That’s the discussion there. Or in our case: someone betroths a woman on condition that she has no claim on him for food, clothing, and conjugal rights. So basically I am stipulating with the Torah. Ah, what does it mean, stipulating with the Torah? The Torah said that if she is betrothed, then there is food, clothing, and conjugal rights; he is obligated in food, clothing, and conjugal rights. So he says: no, you see from the Talmud in Nazir that there can be a situation where he is a nazir and still it requires explanation why he is forbidden to drink wine despite being a nazir. The same thing here as well, apparently: she is betrothed, and we still need explanations why he is obligated in food, clothing, and conjugal rights, or why he is not obligated. So what Rabbi Yehuda says, that he is not obligated in food, clothing, and conjugal rights, does not contradict the fact that you stipulated with the Torah. That’s what he wants to say. You stipulated with the Torah, not with the woman, and still Rabbi Yehuda says you will not be obligated in food, clothing, and conjugal rights. How can that be? The Torah said that in betrothal one is obligated. How can that be? So he says as follows. Here he gets to his favorite idea. And therefore it seems to me in explaining the matter—this is somewhat similar to what we said before—that in such a case one might say that he can stipulate that the law of drinking wine should not take effect upon him. The law of drinking wine should not take effect upon him—not waiver; with wine waiver doesn’t even make sense. Why? Since he stipulated that if it takes effect, the naziriteship will be void, and therefore the law cannot take effect upon him, because if it takes effect, it will be voided. And any legal effect that cannot take effect does not take effect, like “on condition that you do not marry” according to the Tosafot we cited. Right, this is Rabbi Shimon’s well-known principle: any legal effect that, if it takes effect, it does not take effect—then it does not take effect. In the yeshivot they say this. You know this? There’s, for example, a Talmud in Gittin that discusses someone who divorces his wife on condition that she not marry so-and-so. Fine. Now she went and married so-and-so. If she went and married so-and-so, then the divorce is void. If the divorce is void, then she is the wife of the first husband, so her marriage to so-and-so doesn’t take effect because she is a married woman. But then she didn’t marry so-and-so. If she didn’t marry so-and-so, then the condition was fulfilled, so the divorce is valid. And if the divorce is valid, then she is not a married woman, so she is married, and then the divorce is void—and back and forth. A loop. So Rabbi Shimon wants to make the following claim. I made a big fuss over this Rabbi Shimon: he wants to claim that there is a rule saying that any legal effect which, if it takes effect, does not take effect—meaning, if it uproots itself—then it does not take effect. A legal effect that uproots itself cannot take effect. So then he says: suppose the woman was divorced on condition that she not marry so-and-so. Does the divorce take effect? Yes, everything is fine; the taking effect of the divorce does not uproot it. Fine. Now she went and married so-and-so. What happened? The moment she married so-and-so, the divorce was voided. Once the divorce was voided, she is a married woman with respect to the first husband, and that uproots the marriage to the second, the betrothal to the second. Meaning, the legal effect of the marriage, of the betrothal to the second—if it takes effect, it uproots itself, so it cannot take effect. Right? She can’t marry the second. She can’t marry, not because of the condition—that’s not the condition. Usually, with a condition, you can marry or not marry, it just has consequences. If you marry, the divorce is void; if you don’t marry, the divorce is valid. In this case, she cannot marry, because this is a legal effect that cuts off the branch it is itself sitting on. A legal effect that, if it takes effect, uproots itself, cannot take effect. That’s the rule. And what comes out is that she is actually divorced from the first and cannot marry the second. But notice: why can’t she marry the second? Not because she is the first husband’s wife—she is divorced from the first. So what’s the problem? So why can’t she marry the second? It’s a kind of internal contradiction. In the accounting it came out that what… the reason she can’t marry the second is because she is the first husband’s wife. And then you say, no, no, she isn’t the first husband’s wife. The divorce is valid; she is not the first husband’s wife. She cannot marry the second because those betrothals would uproot themselves. A kind of Jewish law rule—not because she is the first husband’s wife, but because that’s the Jewish law rule, and therefore she cannot marry the second. So with this one can solve a lot of halakhic paradoxes, contradictions. I wrote about all kinds of halakhic loops like this that can be solved in this way. Even loops from the Ittur—you know, an inevitable consequence that one does not want, in the end one never wants it, otherwise he’d be stoned. Every inevitable consequence is one he doesn’t want, so how can that be? Or “no yoke came upon it,” in the Talmud in Bava Metzia on page 30, “no yoke came upon it”—that only means willingly. It’s always unwillingly, because he doesn’t want to lose the value of the cow or calf. So all these loops, and many more, and all kinds of paradoxes of the kind with divorce that I brought earlier, can be solved with this principle of Rabbi Shimon. An interesting principle. There are also some additional assumptions here that need to be brought out, but I won’t get into that here. For our purposes, what does he want to say? He says the same thing here. When I say I want to be a nazir without becoming obligated, without becoming forbidden, with respect to drinking wine or impurity, then I become a nazir and I will not become forbidden in drinking wine and impurity. Why? Because the prohibition on drinking wine and impurity uproots itself. The moment I become forbidden in wine and impurity, the naziriteship is uprooted, and once again I am not forbidden in wine and impurity. So whichever way you look at it, I am not forbidden in wine and impurity. This is a prohibition that uproots itself. Therefore, in principle, the legal effect does take effect. The Talmud is not bothered by why the legal effect of naziriteship takes effect. All the Talmud is dealing with is only the question of why, despite the fact that the legal effect takes effect, I am permitted or forbidden regarding wine and corpse-impurity. And that is what he asked earlier: why is the Talmud explaining why he is forbidden regarding wine and corpse-impurity? Obviously—he’s a nazir. Maybe explain to me why he is a nazir. That’s the question that should be discussed. But no, the fact that he is a nazir is obvious. Because whether he is forbidden or permitted regarding wine and corpse-impurity is not because of the naziriteship, but because that prohibition fails to take effect. Therefore he will not be forbidden in drinking wine and corpse-impurity. He says: and the same thing here. Likewise, one who stipulates, “on condition that you have no claim on me for food, clothing, and conjugal rights”—that is, that the law obligating him in food and clothing should not take effect, and if it takes effect, then the betrothal will be void and there will be no betrothal. Consequently there will be no law of food and clothing. After all, if the law of food, clothing, and conjugal rights takes effect, that will void the betrothal. If it voids the betrothal, then once again I am not obligated in food and clothing. So whichever way you look at it, I am not obligated in food and clothing, because if that obligation takes effect, it uproots itself, and therefore it does not take effect. So according to Rabbi Yehuda, the betrothal takes effect, but he did not obligate himself in food and clothing, even though he stipulated with the Torah itself, not with the woman. Why? Because the legal effect of food and clothing, the moment it takes effect, uproots itself, so it does not take effect. And if it does not take effect, then he is not obligated in it, even though she is betrothed to him. Usually—now let’s continue a moment with Nazir—and this is not like the other laws of the Torah. He has it in his power to bring it about that the Torah’s law not take effect, that’s what he says. And it is not like the other laws of the Torah, where obviously it is not in his power to permit what the Torah forbade. But here, since by means of his condition the act would be voided, and consequently the Torah law would also be void, therefore even though it is not in his power to permit what the Torah forbade, nevertheless it is impossible for the Torah law to take effect. And about this the Talmud said: in every place the Torah law takes effect, because a person cannot stipulate to uproot Torah law even in such a case. And there is no other option here: either the naziriteship must be complete, or there is no naziriteship at all. But for the naziriteship not to take effect only with respect to the law of drinking wine—that is against the will of the Torah. And similarly in betrothal according to Rabbi Meir. What about Rabbi Yehuda? So that was really the question. But according to these two ways of explaining the first view—why the condition is void and the act stands, or the opposite—since he stipulated that if the condition is not fulfilled, the act will be void, they answered this. And Rabbi Yehuda holds that in a monetary matter this is not an uprooting of Torah law if she also agrees to it, and just as he can waive it later, so too this is not against the will of the Torah if his act is effective in preventing the Torah law from taking effect upon him with respect to the obligation of food, clothing, and conjugal rights. This is similar to what you wanted to say earlier. He says: once the woman can waive it, then basically the Torah has no problem with there being a betrothal in which I don’t pay her food, clothing, and conjugal rights. Because obviously the woman can waive it. So it comes out that if I stipulate with the Torah—not with the woman, with the Torah—that there should be no food, clothing, and conjugal rights, Rabbi Yehuda says, only Rabbi Yehuda holds this way, that this is not called stipulating against what is written in the Torah. Because if I can do it—it’s like a kind of “since” argument, or “it is in his power.” After all, basically they could have done this even without stipulating against what is written in the Torah; the woman could waive it. Once she can waive it, then even if I do it as part of the stipulation in the betrothal itself, fine, that isn’t called going against the Torah, because this Torah law could have been bypassed some other way too. That isn’t called going against Torah law. But Rabbi Meir holds that it is. Rabbi Meir holds that you are going against the right, not against the realization of the right. And the right itself you cannot uproot. But Rabbi Yehuda says no: if this is a right that cannot be realized, then this is not called going against the Torah. In Nazir this can’t work. Even Rabbi Yehuda would agree that in Nazir it doesn’t. Because in Nazir there is no one who can waive impurity and drinking wine for me. Therefore, if I did this there, I am basically trying to create a partial naziriteship, and that doesn’t work. That is against the Torah. Maybe there is an example of this. There is a well-known dispute between the Ketzot and the Mahari ben Lev regarding a litigant’s admission. The Ketzot claims that it is credibility; the Mahari ben Lev claims that it is something else, not credibility. Okay. There are many objections—you can’t explain the Mahari ben Lev that way; it can’t be. It seems to me that what the Mahari ben Lev really wants to say is a mechanism quite similar to what we saw here. What he wants to say is that since I could give it to you as a gift—after all, I admit to you concerning something—I could also give you some gift. Since I could have given it to you as a gift, I also have credibility. A kind of “it is in his power.” Not credibility in the sense of miggo—not like a miggo; rather “it is in his power,” as the Rosh writes, that “it is in his power” is not miggo. Rather, if I can bring about that result by my own hands, then I am also believed to say that it is true. Okay? So similarly—this is only an analogy—but similarly, the Mahari ben Lev also says it is credibility. It’s not true that he doesn’t say it is credibility. He only argues that the credibility is not built on some kind of strong miggo, or something of the sort that people usually understand, but rather it is based on the fact that I can bring about that result myself as well, by giving you a gift. He doesn’t say it is by the law of gift; rather, since I can give you a gift, therefore I have credibility. Here too, basically, it is a fairly similar principle. What Rabbi Yehuda says is that if we can arrive at this by means of waiver, then basically we can create a betrothal in which I do not give her food, clothing, and conjugal rights. So to apply that—to stipulate the betrothal itself on the basis that there will be no food, clothing, and conjugal rights—that is not called going against the Torah. Fine. This is really a completely different direction. Tosafot wants to argue against everything we have seen in the medieval authorities until now. Tosafot wants to claim that stipulating against what is written in the Torah means stipulating with the Torah, according to Rabbi Yehuda. You stipulate with the Torah, and nevertheless it can still work. But according to the view of

[Speaker B] Rabbi Shimon, there too the waiver takes effect as well? After all, if we really say that he really is stipulating with the Torah, and nevertheless his condition stands and he waived it for her—when does that waiver take effect?

[Rabbi Michael Abraham] On the contrary—according to what he says here, it should also work there. Because if he can waive—no, according to Rabbi Shimon…

[Speaker B] If we assume that we are saying this is stipulating with the Torah, where is there a waiver here, and when?

[Rabbi Michael Abraham] He waives it afterward; he gives her the gift afterward, he gives her that money afterward as a gift. Who is “he”? The creditor waives, the creditor stipulates, and the creditor waives. What do you mean? I didn’t understand.

[Speaker B] The creditor stipulates on condition that the Sabbatical year not cancel my debt. Okay.

[Rabbi Michael Abraham] No, if he decides that this is… we’ll talk about it next class, but if he decides that he is not paying—not that he is not waiving, but that he is not paying—then the loan becomes a deposit. I gave you the money, but I didn’t agree to lend it to you. It’s a deposit, and a deposit is not canceled. A deposit is not canceled. So I didn’t give you the money as a loan; I didn’t agree to lend it to you if you won’t let the Sabbatical year cancel it—if you do let it be canceled. Once it’s a deposit, you have to return it to me as a deposit.

[Speaker B] And what did the Torah say?

[Rabbi Michael Abraham] Yes, so that’s the topic for next class, which we’re going to discuss. The phrase is: the Sabbatical year shall not cancel my debt, the Sabbatical year shall not cancel my debt during the Sabbatical year—that’s the passage on page 51. Okay, that’s enough for now. The deposit—you have to return it to me as a deposit. Yes, so that’s the topic for next class that we’ll discuss. Meaning: if the Sabbatical year cancels my debt, the Sabbatical year shall not cancel my debt during the Sabbatical year. That’s the passage on page 48. Okay, be well.