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Table of Contents
- Background: conditions, stipulating against what is written in the Torah, and monetary matters
- Stipulating with the person versus stipulating with the Torah
- Overcharging in the chapter HaZahav, page 51: the dispute between Rav and Shmuel
- Reservation versus condition: Rabbi Akiva Eiger, pe’ah, nazir, and kiddushin
- Linking Rav and Shmuel to the dispute between Rabbi Meir and Rabbi Yehuda, and the Talmud’s rejections
- Rav Anan: the formulation of the condition in overcharging and stipulating with the person
- Tractate Makkot: the Sabbatical year and applying Rav Anan’s distinctions
- Jewish law rulings and the paradox of “Rav in prohibitions and Shmuel in monetary law”
- Inheritance as an irrelevant condition: Bava Batra 126b
- Conjugal rights: money or prohibition, and waiver according to the Rashba and the Ritva
Summary
General Overview
The text summarizes a line of study on the laws of conditions and stipulating against what is written in the Torah, leading into the topic in the chapter HaZahav, page 51, dealing with a condition in a transaction that the laws of overcharging should not apply. It presents the dispute between Rabbi Meir and Rabbi Yehuda regarding monetary matters, the question whether this is a stipulation against the Torah or against the person by means of waiver, and Rabbi Akiva Eiger’s reading, which classifies many cases as reservation rather than condition. It then brings the dispute between Rav and Shmuel regarding overcharging, the Talmud’s attempts to link it to the tannaitic dispute and its rejections in both directions, Rav Anan’s innovation regarding the wording of the condition, and the comparison to the topic of the Sabbatical year in Makkot. Finally, the text discusses the status of conjugal rights in relation to food and clothing through the Rashba, the Ritva, Rashi, and Maimonides, and also raises a methodological question about ruling Jewish law when each side places the dispute on a different plane.
Background: conditions, stipulating against what is written in the Torah, and monetary matters
The text presents that the novelty of the section on conditions from the passage of the tribes of Gad and Reuven is needed in order to establish the mechanism of a condition, and that different mechanisms were proposed for how a condition works. It clarifies the law of one who stipulates against what is written in the Torah through two conceptions: one conception sees this as the impossibility of acting against the Torah, and another sees it as a rule within the laws of conditions. It brings the dispute between Rabbi Meir and Rabbi Yehuda regarding stipulating in monetary matters against what is written in the Torah, where according to Rabbi Yehuda the condition stands, and in practical Jewish law the decisors rule like Rabbi Yehuda. It then presents two directions for explaining this: one direction ties it to waiver by the other party, so that this is not really a stipulation against the Torah, and another direction sees monetary law as an area in which one can stipulate even with respect to the Torah, as in what is attributed to Rabbi Shimon Shkop.
Stipulating with the person versus stipulating with the Torah
The text defines as a central theme in the topic the distinction between stipulating with the person and stipulating with the Torah, and emphasizes that this recurs throughout the whole discussion of stipulating in monetary matters. It presents the possibility that the Rabbi Meir–Rabbi Yehuda dispute is about how to interpret the intent of the one making the stipulation—whether he means to stipulate with the person, or whether such a stipulation is inherently considered an uprooting of Torah law—while describing the case of kiddushin “on condition that she has no claim against him for food, clothing, and conjugal rights” as creating a qualified legal effect within the kiddushin themselves. It sharpens the point that this distinction shapes how one reads the topic of overcharging in the chapter HaZahav and the question whether the condition depends on waiver, knowledge, or a certain uprooting of Torah law.
Overcharging in the chapter HaZahav, page 51: the dispute between Rav and Shmuel
The text brings the topic: “One who says to his fellow, ‘On condition that you have no claim of overcharging against me,’” where Rav says, “He does have a claim of overcharging against him,” and Shmuel says, “He does not have a claim of overcharging against him,” and explains simply that this is a dispute over whether the condition is void or valid. It explains the laws of overcharging: less than one-sixth has no consequence; at exactly one-sixth the sale stands and the money is returned; more than one-sixth the sale is void. It emphasizes that the condition is meant to leave the sale standing even when there is a discrepancy that would trigger the law of overcharging. It clarifies that according to Shmuel the condition removes the laws of overcharging even where the discrepancy is more than one-sixth, and therefore the sale stands, whereas according to Rav the condition is void and the laws of overcharging apply.
Reservation versus condition: Rabbi Akiva Eiger, pe’ah, nazir, and kiddushin
The text brings Rabbi Akiva Eiger, who argues that the statement “on condition that you have no claim of overcharging against me” is a reservation and not a condition, because the seller is “excluding” the laws of overcharging from the transaction and applying a partial transaction that is not dependent on any future act by the other party. It compares this to kiddushin “on condition that she has no claim against him for food, clothing, and conjugal rights,” and notes that Rabbi Akiva Eiger raises a difficulty from Tosafot, from whom it seems that this is a condition, even though according to his reading it is a reservation. It presents a scale: in pe’ah this is a clear reservation, because there is no legal effect being made conditional and there is no second party to waive anything; in the case of a nazir there is a legal effect but no second party; and in the case of conjugal rights or a sale there is both a legal effect and a second party, yet one can still argue that this is a reservation, because it does not depend on a future event but rather shapes the transaction from the outset.
Linking Rav and Shmuel to the dispute between Rabbi Meir and Rabbi Yehuda, and the Talmud’s rejections
The text brings the Talmud’s suggestion to link the dispute as follows: Rav follows Rabbi Meir and Shmuel follows Rabbi Yehuda, on the basis of the baraita in Kiddushin, “On condition that you have no claim against me for food, clothing, and conjugal rights,” where Rabbi Meir says, “She is betrothed and his condition is void,” and Rabbi Yehuda says, “In a monetary matter, his condition stands.” It explains that the expression “Shall we say” appears as a challenge requiring an answer as to why the Amoraim are not merely reflecting an earlier tannaitic dispute. It presents Rav’s rejection, according to which he can align even with Rabbi Yehuda, by distinguishing between kiddushin, where “she knew and waived it,” and overcharging, where “how did she know so that there could be waiver,” and connects this to reasoning similar to asmachta, where an obligation is not fully formed when a person relies on hope or lack of knowledge. It presents Shmuel’s rejection, according to which he can align even with Rabbi Meir, by distinguishing that in kiddushin “he is certainly uprooting” the law, whereas in overcharging “who says that he is uprooting anything,” and analyzes that both sides use the same axis of certainty, but one ties it to waiver with the person and the other to uprooting with respect to the Torah.
Rav Anan: the formulation of the condition in overcharging and stipulating with the person
The text brings Rav Anan’s statement in the name of Shmuel: “On condition that you have no claim of overcharging against me—he has no claim of overcharging against him; on condition that there is no overcharging in it—there is overcharging in it,” and understands this as a distinction between a condition directed toward the person’s claim and a condition that seeks to uproot the application of Torah law. It analyzes that this is meant either to reconcile Shmuel with Rabbi Meir or, alternatively, to be understood as a limitation within Rabbi Yehuda’s own view, and emphasizes that the commentators tend to understand that Rav Anan limits Rabbi Yehuda’s permission only to cases where the stipulation is with the person and not with the Torah. It brings the objection from the baraita of “one who trades in trust,” which accepts “on condition that you have no claim of overcharging against me”; Abaye’s answer, which concludes that Rav and Shmuel are indeed parallel to the tannaitic dispute; and Rava’s answer, which distinguishes between a general statement and a specified statement in which the seller explicitly says that the object is not worth the price, in which case “he has no claim of overcharging against him.”
Tractate Makkot: the Sabbatical year and applying Rav Anan’s distinctions
The text brings the topic in Makkot 3b: “One who says to his fellow, ‘On condition that the seventh year not cancel my debt’—the seventh year cancels it,” and presents the parallel between the Sabbatical year and overcharging. It shows that according to the distinction between certainty and lack of certainty one can reconcile Shmuel, but with respect to ruling Jewish law like Rabbi Yehuda one needs Rav Anan’s distinction between “on condition that the seventh year not cancel me” and “on condition that you not cancel for me,” so that in one case one is uprooting the law of the seventh year, and in the other one is creating a personal undertaking not to cancel. It concludes that from here there is proof that Rav Anan is not just a reconciliation for Rabbi Meir but primarily a framework within Rabbi Yehuda’s view: stipulating against the Torah is ineffective even in monetary matters, while stipulating with the person may be effective.
Jewish law rulings and the paradox of “Rav in prohibitions and Shmuel in monetary law”
The text raises a methodological paradox: Rav presents the discussion as monetary-contractual, while Shmuel presents it as a matter of prohibition involving the uprooting of Torah law, whereas the general rule is that Jewish law follows Rav in matters of prohibition and Shmuel in monetary law. It argues that after Rav Anan it turns out that Shmuel too is operating on the plane of stipulating with the person, and then the ruling can follow the rule “the Jewish law follows Shmuel in monetary law.” It adds a discussion of the rulings of Maimonides and the Shulchan Arukh, noting that Maimonides rules, “One who says to his fellow, ‘On condition that you have no claim of overcharging against me,’ he does have a claim of overcharging against him,” and suggests that this may be interpreted as a stipulation against the Torah and therefore void even according to Shmuel as understood through Rav Anan. It also raises the possibility that a notation error caused confusion regarding assigning the ruling to Rav.
Inheritance as an irrelevant condition: Bava Batra 126b
The text brings the Talmud in Bava Batra: “One who says, ‘This particular man, my son, is a firstborn…,’ he has said nothing, because he stipulated against what is written in the Torah,” and asks why this does not seem like a normal condition, since there is no conditional act here but rather inheritance that comes into being on its own. It brings the Talmud’s answer, which can also be established according to Rabbi Yehuda through the distinction, “There she knew and waived; here he did not waive,” and emphasizes that here waiver is not relevant on the part of the heir, nor is waiver relevant for something that has not yet come into the world. It explains that in such cases, “stipulating against what is written in the Torah” means the impossibility of acting against the Torah, and not necessarily within the framework of the laws of conditions.
Conjugal rights: money or prohibition, and waiver according to the Rashba and the Ritva
The text concludes with the question of the status of conjugal rights in relation to food and clothing, and presents that one can see the axis either as “money versus prohibition” or as “there is a party before whom waiver is possible versus there is no such party.” It brings the Rashba in Ketubot 56, who emphasizes the wording “on condition that you have no claim against me” as a stipulation with the person, cites the view of the Tosafists that “specifically in money his condition stands because it can be waived,” and adds that conjugal rights involve “physical distress” and “cannot be waived,” and therefore “he only spoke with her in order to put her off with words.” It brings the Ritva, who attributes to Rashi and Maimonides the position that “conjugal rights are not a monetary matter,” disagrees, and argues that “all bodily benefits are considered like money for this purpose,” and brings wording from Rashi’s first edition that distinguishes between food and clothing, which may be waived, and conjugal rights, which may not be waived.
Full Transcript
[Rabbi Michael Abraham] Okay, this is the last time, so now at long last we get to the chapter HaZahav. We basically saw what a condition is, what the mechanisms are, that there’s a dispute, but there are different mechanisms that can explain how it works. Why we need the novelty of the Torah passage about conditions, from the section of the tribes of Gad and the tribes of Reuven. After that I moved on to stipulating against what is written in the Torah. I saw that there are, we saw that there are conceptions according to which this is not a law within the laws of conditions at all, but simply that you can’t act against the Torah, and there are conceptions that see it as a law within the laws of conditions. After that we moved to the third stage: one who stipulates against what is written in the Torah, one who stipulates in monetary matters against what is written in the Torah—the dispute between Rabbi Meir and Rabbi Yehuda. According to Rabbi Yehuda, his condition stands. In practical Jewish law, the decisors rule like Rabbi Yehuda, that his condition stands. We also saw there two principal directions for explaining it—different shades, but two principal directions. One direction is basically that this is a stipulation in which the other party waives the claim for me, and therefore in practice this is not a stipulation against what is written in the Torah. It’s not the difference between monetary law and prohibition in some essential sense; rather, in monetary matters there is the possibility of waiver, and therefore when I make the stipulation there, I am not stipulating against what is written in the Torah. The question is what the dispute is between Rabbi Meir and Rabbi Yehuda: whether it’s about interpreting the person’s intent, or whether Rabbi Meir sees even a stipulation with the person as a stipulation against the Torah. Because in essence what you’re doing here is making some kind of condition that, as part of itself, qualifies the legal effect. Say, for example, someone who stipulates with a woman on condition that she has no claim against him for food, clothing, and conjugal rights—so it’s not that he’s asking her to waive it later; rather, he wants the kiddushin to take effect in such a way that built into that very legal effect is that she has no claim to food, clothing, and conjugal rights. So in effect you are applying a partial legal effect. This is not some request for future waiver. Say, if he had conditioned it on her waiving food, clothing, and conjugal rights in a week, that would, according to everyone, be fine. So that’s one possibility. A second possibility is that perhaps the law of stipulating in monetary matters against what is written in the Torah is different because money really is different from prohibition—not because of waiver, but maybe because it is subject to waiver, and therefore in principle I can stipulate even against the Torah and not only against the person. That’s Rabbi Shimon Shkop with his loop, yes, for example. So the claim in the end is that in monetary matters, in practical Jewish law, his condition stands. According to Rabbi Meir, in monetary matters his condition is void. But it’s not actually clear whether Rabbi Yehuda’s novelty is a novelty in the laws of stipulating against what is written in the Torah—that in monetary matters you can do it; on that it’s clear that Rabbi Meir disagrees—or whether Rabbi Yehuda’s novelty is about stipulating with the person. And there it isn’t clear whether Rabbi Meir also disagrees with that, because after all, stipulating with the person is not stipulating with the Torah. It may be that Rabbi Meir is only saying that the interpretation of the one making the stipulation is that he does not mean to stipulate with the person but with the Torah, or that in an essential sense this is called a qualified legal effect, as I said earlier. So that’s with regard to stipulating in monetary matters, when within the discussion of stipulating in monetary matters this actually brings us to the question of whether you are stipulating with the person or stipulating with the Torah. This appears throughout the whole line of discussion about stipulating in monetary matters, right? How all the time this question keeps entering—are you stipulating with the person or with the Torah, is it possible or impossible, what does Rabbi Meir say, what does Rabbi Yehuda say—it’s all combinations. But this distinction between stipulating with the person and stipulating with the Torah is really the main theme we’re talking about in this topic of stipulating in monetary matters. And that’s what our topic is really about. What? How is that connected? No, no—the topic in the chapter HaZahav, page 51. That was really the reason I did this whole series, because the issue is an issue in HaZahav. So now we actually arrive at HaZahav. Let’s see it.
It was stated: one who says to his fellow, “On condition that you have no claim of overcharging against me.” Somebody basically sells an item to his fellow, and… and the laws of overcharging are that if I sold it to him at too high a price or too low a price, then one can demand cancellation of the sale. If it’s less than one-sixth, then nothing happens. If it’s more than one-sixth, then the sale is void and the money is returned. If it’s exactly one-sixth, then the sale stands but the money is returned. Okay, those are the laws of overcharging in general. Now a person comes and says: I want to sell you a certain object, but I’m making a condition that the laws of overcharging won’t apply here. You will have no claim of overcharging against me. Meaning, even if the price is too high—say you are the buyer—even if the price is too high and you discover that it’s more than one-sixth, I still want the sale to remain valid. Because if not, then I didn’t sell it. Meaning, I’m not prepared to sell it in a way that the laws of overcharging will apply. What? If it’s too low, you can’t cancel? What do you mean too low? Too low, you mean more than one-sixth below. Yes, on both sides. The stipulation can come from either direction. Again, only the seller might say: don’t come to me with complaints if it’s too high. If the stipulation is only in that direction. The buyer could say: don’t come to me with complaints if it’s too low. It doesn’t matter. All these stipulations are basically the stipulations we are talking about here, and on this Rav and Shmuel disagree. Rav says: he does have a claim of overcharging against him. What does that mean? That the condition is void. Right? He stipulated that there should be no overcharging; the condition is void. The act stands, meaning the sale stands and the condition is void—there are laws of overcharging. And Shmuel says: he does not have a claim of overcharging against him. So what does that mean? The condition stands. Right? So that’s the simple reading.
Now, we already saw in previous classes Rabbi Akiva Eiger and others discussing whether such a thing is even a condition at all, or maybe it’s a reservation. Why? Because he is basically selling it to him excluding the laws of overcharging. I remove the laws of overcharging from this transaction. I am making a partial transaction. Okay? After all, I’m not asking you to do something; rather, I am applying a different transaction from the standard transaction the Torah expects. It’s not that I condition the transaction on some future thing that you will do. It doesn’t depend on you. The moment we made the transaction, you have no claim of overcharging. Meaning, even if you don’t want to waive it, that doesn’t matter, because it is built into the transaction itself. Therefore Rabbi Akiva Eiger says that this is a reservation. It is not a condition. He is simply making a partial transaction, not a transaction conditioned on some future thing. And why is that? Because what you are doing here really is changing the terms of the transaction itself. You are not making the transaction depend on some future event, some future thing the other party will do. Just as also in kiddushin, “on condition that she has no claim against him for food, clothing, and conjugal rights,” it’s the same thing. Rabbi Akiva Eiger basically argues there too that this is a reservation, not a condition. He raises the difficulty that Tosafot seem to imply that this is a condition. In the Talmud, simply speaking, that’s how it appears. And in the Talmud, I said that when one stipulates against what is written in the Torah, sometimes it may mean that you cannot act against the Torah—reservations don’t work. But Tosafot tie it to condition law. Tosafot see this as a condition, and then if one is stipulating against what is written in the Torah, how can the condition be void while the act stands, and all those things? So that is Rabbi Akiva Eiger’s difficulty. But he would understand that also in kiddushin, “on condition that she has no claim against him for food, clothing, and conjugal rights,” that too is a reservation and not a condition. So here too it’s the same. Right? It isn’t a future condition; it is something that shapes the current transaction differently. This is a partial transaction.
But I said there are several features that need to be discussed when we discuss the relation between reservation and condition. One feature, for example—the clearest case is pe’ah. Right? The Mishnah in Pe’ah that says: I harvest, and I say, “on condition that what I forget will not have the law of forgotten sheaves.” Now that is certainly a reservation, not a condition. Why? Because first of all, I am not applying any legal effect at all. I am just harvesting. What, can I stipulate that the prohibition of pork should not apply to me? What are you talking about? A condition is when I am applying some legal effect and I want to apply it with a qualification—only if this happens or that does not happen. But here I’m not applying anything, so what exactly am I conditioning? Maybe this reflects what we saw—that a condition exists only in a matter with respect to which you can appoint an agent. Something where you are performing a legal act for which, for example, you could appoint an agent—there you can make a condition. But if you’re just harvesting, then what? That if the condition doesn’t occur, then you didn’t harvest? You did harvest. That’s one feature. A second thing: even if there were some legal effect here, with whom are you making this condition? There is no second party from whom you are asking waiver. What, are you asking representatives of the tribe of the poor to stand here and waive the forgotten sheaves for you? There is no second party you are standing before, as there is, say, in kiddushin, where there is the woman, so I ask her to waive food, clothing, and conjugal rights for me. But in pe’ah there is no one standing opposite me. And therefore, how can one even see such a thing as a condition? Therefore Rabbi Akiva Eiger says this is a reservation.
But in the case of a nazir, for example, there on page 11, “on condition that I will not be forbidden regarding impurity or wine.” What? Exactly. Why? Because there is a legal effect here. After all, I applied the legal effect of naziriteship, and I can say that I do not intend to be a nazir unless something happens. On the other hand, there is no one opposite me. Here too, in that sense, it is like forgotten sheaves—there is no one opposite me who can waive for me. With forgotten sheaves you can still say that the tribe of the poor waives for me. In naziriteship, who waives for me? What is this, the Holy One, blessed be He? I am standing before the Torah, before the Holy One, blessed be He; there is no one here from whom I ask waiver. Therefore, with a nazir, this is not like pe’ah in the sense that I am applying a legal effect, but it is like pe’ah in the sense that there is no second party who can waive for me. Or what do I mean when I say there is no second party? I don’t mean to say that therefore it is not a monetary matter; I mean to say that therefore it is a reservation and not a condition, because I am not making it dependent on some future event. I am simply applying naziriteship itself in a partial way, not saying that if something happens in the future then I am not a nazir. That’s the second thing.
What happens with conjugal rights? With conjugal rights, neither of those things applies. I make a condition exactly—I’m saying conjugal rights are the least like a reservation. Meaning, there is still room to see it as a reservation, but it is already on the lowest level. Say that forgotten sheaves are the most reservation-like possible, nazir is second, conjugal rights are third. Right? Because with conjugal rights I am actually applying a legal effect. What legal effect? A sale, a transaction, right? I am selling you something, and on that basis I did not sell it to you. So there is something on which to make a condition, because I am applying a legal effect. There is a second party to the transaction from whom I can expect waiver. What? Right, it is like kiddushin, and therefore in this matter too, in conjugal rights or kiddushin, this really is the third level. So why does Rabbi Akiva Eiger himself want to argue that even… what? What? We’ll see in a moment, that’s the continuation of the topic. But Rabbi Akiva Eiger wants to argue that even this third level is a reservation and not a condition, because at the end of the day you are not really making it depend on something future. You want to apply a transaction that already now has no conjugal-rights obligation in it. True, there is a second party here, but you are not asking the second party to do something next week; rather, you are saying: I want to make a transaction with you in such a way that the law of conjugal rights will not apply here. What? The condition of the tribes of Gad and Reuven. Yes. Say: if you do not drink wine for thirty days, or something like that. The moment you qualify or limit the legal effect itself that you are applying, then this is not a condition—it is simply a partial legal effect. Therefore Rabbi Akiva Eiger argues that even the third level—conjugal rights—this too is a reservation and not a condition.
And again, the fact that the Talmud here links this to stipulating against what is written in the Torah, and in a moment we’ll see that it ties it to kiddushin on condition that there is no food, clothing, and conjugal-rights obligation—that is not proof, because Rabbi Akiva Eiger would argue that the expression “stipulating against what is written in the Torah” that appears here is the same as the Bartenura on forgotten sheaves. The meaning is simply that you cannot work against the Torah; it is not really because this belongs to the laws of conditions. Okay? But as we saw in Tosafot in Ketubot, and almost everyone, they do not explain it that way; they really do speak in terms of the laws of conditions. Regarding the views other than Rabbi Akiva Eiger, there is room to discuss how far they go. Would they also say in forgotten sheaves that this is condition law? Would they also say in nazir that this is condition law? Or only at this third level? So here there is room for hesitation. But Rabbi Akiva Eiger goes along the entire front; from his point of view, everything is reservation.
Okay. Now here, regarding overcharging, we need to understand what exactly the significance of the discussion is. Say that I sold you… what? No, it’s like overcharging apparently, no? What’s the difference? Hm? Yes, that’s a loan, yes, he takes a loan. So the Talmud in Makkot brings both the seventh year and overcharging. The Talmud here brings only overcharging. There is a parallel topic in Makkot—we’ll see, I hope we’ll get to that later. But here we need to understand a bit what exactly the case is. Say I sold to you and there was overcharging here; I sold it at a price that was more than one-sixth away from the market price. Okay, so what am I actually saying? If you have a claim of overcharging against me, then the sale is void. Right? But in any case the sale will already be void under the laws of overcharging. So what difference does it make? Specifically regarding overcharging, it isn’t so clear what exactly the discussion is about.
So one could have said that we are talking about exact one-sixth overcharging, where the overcharging is exactly one-sixth. Then under the laws of overcharging, the sale is not void. If the condition were to succeed in taking effect, then the sale would be void. If you demand this one-sixth of money back, the sale itself would become void. Meaning, in the case of overcharging of more than one-sixth, when you demand that the sale be voided, then indeed it will be voided. Thank you very much, so you have responded to my demand. What is the meaning that the condition is void? That the act is void. Yes, the stipulation has no meaning. But one can say that perhaps we are talking about exact one-sixth overcharging, where I demand the money from you, the sale stands, and as a result of the stipulation I say: if you demand the money, then the sale itself will be void. What? Yes, that is overcharging, just without cancellation of the sale. There are several laws of overcharging. More than one-sixth—then the sale is also void. Exactly one-sixth—the sale stands but the money is returned. Less than one-sixth—nothing happens.
But the truth is that this is not entirely precise, because let’s try to think for a moment about Rav’s view. Rav says there is overcharging; the condition is void. Shmuel says there is no overcharging; the condition stands. Okay? Now what happens in a case of more than one-sixth? There there will be a dispute between Rav and Shmuel. He sold it to him at more than one-sixth above the proper price. So according to Rav the sale is void, right? According to Shmuel the condition is void and therefore what? The sale is void because of overcharging. Right? So what is the dispute? Okay? Meaning, according to Rav this sale will be void because of the laws of conditions, yes? And according to Shmuel it will be void because of the laws of overcharging. But in practice it will be void either way. But no—according to Shmuel the sale is not void; the sale stands. Because it says he has no claim of overcharging against him. Not that the condition is void, not that the act is void—the condition stands. And then that means that the laws of overcharging do not apply. No—you succeeded in uprooting the laws of overcharging. Right? He has no claim of overcharging against him, that’s what Shmuel says. So that means the sale will not be void, even if the gap is more than one-sixth. That is exac… the stipulation achieved its purpose. You wanted to say that the sale should remain valid even if the discrepancy is a quarter of the price, more than one-sixth. Shmuel says: you succeeded; this is not stipulating against what is written in the Torah. Meaning, the condition is valid. What does it mean that the condition is valid? He has no claim of overcharging against him. Meaning that if it is more than one-sixth, then the sale stands, even though not by the laws of overcharging and not by the laws of conditions. Fine? The condition stands, and therefore the sale stands, and he has no overcharging claim. What? No, that’s why I’m saying: according to Shmuel, apparently it ought to be void because of the laws of overcharging—but no, that’s exactly what the condition came to accomplish, that there should be no laws of overcharging here. Okay? So there is actually a dispute between Rav and Shmuel. According to Rav the sale is void, and according to Shmuel the sale stands when the measure is more than… now I’m talking about more than one-sixth. Earlier I said maybe we should talk about exactly one-sixth, but no—even in more than one-sixth there is a dispute here. It’s just that there is still room to discuss, according to Rav, who says the sale is void, why it is void. Is it void because of the laws of conditions, or is it void because of the laws of overcharging? According to Rav it says that he does have a claim of overcharging against him—the sale is void, the condition is void—so it is void because of the laws of overcharging, not because of the laws of conditions, because the condition is void. Okay? So it comes out like this: according to Rav the sale is void because of the laws of overcharging; according to Shmuel the sale stands. In any case, there is no opinion here that says the sale is void because of the laws of conditions. Fine? Why? Because what could void the sale because of the laws of conditions? If you demand from me cancellation of the sale because of the laws of overcharging. Fine?
[Speaker C] But if you demand that there is no overcharging,
[Rabbi Michael Abraham] It’s impossible—according to Shmuel it’s impossible because there is no overcharging claim, and according to Rav it’s possible because there is overcharging, but the condition is void, so the fact that there is overcharging will not void the sale, because the condition doesn’t stand. So in fact there’s a novelty here even when the overcharge is more than one-sixth, not only in the case of exactly one-sixth overcharging. Even when the overcharge is more than one-sixth there’s a novelty here. The novelty is that there is no situation here at all of canceling the sale by the laws of conditions. Either the sale will be canceled by the laws of overcharging, or according to Shmuel the sale won’t be canceled at all. Now the Talmud says: shall we say that Rav follows Rabbi Meir and Shmuel follows Rabbi Yehuda? Right, they connect it to a tannaitic dispute. As it was taught: if one says to a woman, “You are betrothed to me on condition that you have no claim against me for sustenance, clothing, and conjugal rights,” she is betrothed, but his condition is void—these are the words of Rabbi Meir. Rabbi Yehuda says: in a monetary matter, his condition stands. So they connect the dispute between Rav and Shmuel to the dispute between Rabbi Yehuda and Rabbi Meir. Rabbi Yehuda and Rabbi Meir disagree on the question whether, if someone makes a condition against what is written in the Torah in a monetary matter, his condition stands or not. The Talmud apparently understands for the moment that here too this is making a condition against what is written in the Torah in a monetary matter, and therefore Shmuel, who says the condition stands, goes like Rabbi Yehuda, while Rav, who says the condition is void—that there is overcharging—goes like Rabbi Meir. Meaning that even in monetary matters the condition is void. And again, according to Rabbi Akiva Eiger, this isn’t really a stipulation. “Making a condition against what is written in the Torah” means you can’t go against the Torah. Fine? But in the simple, accepted understanding—Tosafot in Ketubot and almost everyone else do not explain it that way—and this really is the law of stipulations.
Now, there’s what you mentioned earlier: there’s a passage in Makkot 3b. The Talmud there also brings the case of “on condition that the Sabbatical year not cancel my debt.” I lend you money on condition that the release of debts in the Sabbatical year not apply. Fine? And it sees those two cases as similar cases. Overcharging and the Sabbatical year are two similar cases. Here in our passage that doesn’t appear. So we’ll see that later.
Now the Talmud rejects this. And the Talmud says—because when the Talmud says, “Shall we say Rav follows Rabbi Meir and Shmuel follows Rabbi Yehuda,” that’s really a difficulty. Because whenever the Talmud says “shall we say it depends on a tannaitic dispute,” the idea is: there’s an amoraic dispute, and the Talmud says, wait, but this is just the tannaitic dispute. And that’s a difficulty. Why is that a difficulty? Either because we know that the Jewish law follows Rabbi Yehuda, so what are you doing introducing an amoraic dispute here? Although it is possible that amoraim disagree about how to rule in a tannaitic dispute. I think the usual difficulty in “shall we say it depends on a tannaitic dispute” is: why are you reinventing the wheel? Meaning, just say Rav ruled like Rabbi Meir and Shmuel ruled like Rabbi Yehuda. Why are you starting to get me into “the Sabbatical year shall not cancel my debt,” overcharging, as though you’re inventing some new dispute here? Fine, there’s a tannaitic dispute, and you disagree about how to rule. If it’s presented as an independent amoraic dispute, then it seems the Talmud probably understands that this was not the tannaitic dispute, and therefore it asks: wait, but maybe it is just that tannaitic dispute—if it really seems to line up exactly with the tannaitic dispute. In other words, when we say “shall we say Rav follows Rabbi Meir,” that’s really the difficulty of “shall we say it depends on a tannaitic dispute.” Therefore we now expect an answer saying that it probably does not depend on the tannaitic dispute.
And indeed the Talmud says that now they split it in both directions. A rejection in both directions. As always in “shall we say it depends on a tannaitic dispute.” “Rav could say to you”—that is, first let’s put it this way: Shmuel need not be troubled by this “shall we say it depends on a tannaitic dispute,” because Shmuel goes like Rabbi Yehuda, and the Jewish law follows Rabbi Yehuda, so he says: yes, I rule like Rabbi Yehuda and everything is fine. Rav, whom they align with Rabbi Meir, should be troubled by this not only in the technical sense—why are you saying extra words? Just say you rule like Rabbi Meir, that’s it. But why in the world would you rule like Rabbi Meir? The Jewish law follows Rabbi Yehuda. Okay, fine, maybe he disagrees and says the Jewish law follows Rabbi Meir. But the Talmud really does bring rejections in both directions. Rav places himself even according to Rabbi Yehuda, and Shmuel places himself even according to Rabbi Meir. Meaning, they want to say that the disputes are not dependent on each other, in either direction.
“Rav could say to you: I can state my view even according to Rabbi Yehuda. Rabbi Yehuda only said there, in that case, because she knew and waived it. But here—did he know in order to waive it?” The dispute of Rabbi Meir and Rabbi Yehuda is in betrothal without sustenance, clothing, and conjugal rights. There Rabbi Yehuda says the condition stands. Why does the condition stand? The Talmud says: because she knew and waived it. Meaning, he betroths her and says to her, look, I’m doing betrothal with you without sustenance, clothing, and conjugal rights, and she consented, she agreed. If she agreed, then she waived it. But here—did he know in order to waive it? Here the buyer didn’t know, so who says he waived it?
What do you mean he didn’t know? I told him: this is on condition that you have no claim of overcharging. So what didn’t he know? He knows. He didn’t know that this really was the price; he didn’t know the facts. He didn’t know that he was buying at an inflated price. He thought, yes, this price sounds reasonable to me, okay, fine, let it be without overcharging, what do I care? Now, that’s a bit tricky, this statement, because what do you mean? Then check. I made the condition with you, and you agreed. The fact that you didn’t check the facts—that’s your problem. What do you mean? If you waived it, you waived it. This somewhat resembles the considerations regarding asmachta. When you make a bet with someone, or a lottery, Mifal HaPais, or things of that sort, the claim is that in many cases this is asmachta. You didn’t really mean it. Say you make a bet with someone, you toss a coin: if it comes up heads, he pays you a hundred shekels; if it comes up tails, you pay him a hundred shekels. That’s asmachta, meaning, it comes up tails and you don’t want to pay. The Talmud says: you’re not obligated to pay. Why not? Because you were counting on it coming up heads. You were counting on it? Thank you very much—what do you mean? It could come up heads, it could come up tails, and you agreed. No—a person has some kind of hope like that, I don’t know, he relies on his luck that specifically tails will come out and not heads. Now that’s nonsense, doesn’t matter, but that’s what he thought. And since that’s what he thought, then the commitment—even though it was spoken, he agreed—it’s asmachta; his mind did not really rely on that commitment. Something like that is happening here too. I say to you: look, you’re buying on condition that you have no claim of overcharging, okay? Now you don’t check the price and you agree. Now, a responsible person should check. Look, if you think the market price is such-and-such, then agree, but really check that it is the market price. You can’t afterwards say: I agreed, but then it turned out—the price is high; if I had known that, I wouldn’t have agreed. Everything you agreed to was in order to say that the price is—the price is high.
Well, you can hesitate here a bit, because what? Rav. Yes, but you see that Rav, who is taken as following Rabbi Meir—the Talmud says Rav is like Rabbi Meir—Rav says: no, no, even Rabbi Yehuda agrees with my view. In a case where they do not know and then waive, even Rabbi Yehuda—who says in the case of sustenance, clothing, and conjugal rights that it takes effect—here Rabbi Yehuda would say no, he would agree that it doesn’t work, because here he did not know and did not waive, okay?
Now, there’s room here to discuss a bit what exactly the nature of the condition is. We still haven’t entered at all into the question of whom you’re making the condition with—the person or the Torah, and so on—but still, you can already see here that they are speaking in terms of waiver. It will appear later, but already here you see that they speak about waiver. “He knew and waived,” “he didn’t know and waive”—meaning, who said anything about waiver? I’m making a condition against what’s written in the Torah; I don’t want the law of overcharging to apply here. The Talmud assumes, at least according to Rav, that we’re talking here about waiver. You’re making the condition with the person. It doesn’t say that, but that’s really the point. What? There. Yes, but that’s only according to Rav. In a moment we’ll see what Shmuel says. But fine, that’s why I gave all those introductions, so that now we can read this passage more sensitively.
So on the face of it, it seems—we’re already smart now, we already know, as we read the Talmud here—on the face of it, it seems that Rav’s words at least really are speaking on the plane of waiver and not on the plane of making a condition against what is written in the Torah. So what? If Rav says that, then what is Shmuel disagreeing about? What’s the problem? You can’t give gifts? You can’t make conditions? Or no—Rav says his words hold both according to Rabbi Meir and according to Rabbi Yehuda; Rav says that here it doesn’t work, okay? Sorry—not what Shmuel says, what Rav says. Meaning, basically the claim is that here, since he didn’t waive—since he didn’t know and waive—you can’t make the condition. Okay, so what does that mean, basically? That all you can do by stipulation is only when the person waives it for you; you can’t stipulate against the Torah. That’s the simple assumption. You can’t stipulate against the Torah. All you can do is ask the person to waive it. On that basis, it can work only if the person knows and actually waives. But the whole discussion is a discussion vis-à-vis the person, okay? And therefore here Rabbi Meir and Rabbi Yehuda do not disagree. What happens when you make a condition with the person and the person knows and waives? Then yes—only according to Rabbi Yehuda. No, only according to Rabbi Yehuda, because that is precisely the dispute in sustenance, clothing, and conjugal rights—that’s the point. Meaning, he says that Rabbi Yehuda concedes to Rabbi Meir in the case of overcharging, but in the case of sustenance, clothing, and conjugal rights Rabbi Yehuda and Rabbi Meir disagree. There it says explicitly that they disagree; that is their dispute. So this means that this distinction is actually said within the view of Rabbi Yehuda.
Now look: Rabbi Yehuda, who says that one can make a condition in the case of sustenance, clothing, and conjugal rights—that is because she waived it. In a place where she doesn’t waive it, then no. But notice: according to Rabbi Meir, even in a place where she knows and waives, it still won’t help. And the question is: why? According to Rav, what’s the problem? If she knows and waives, and all I’m asking from her is to waive, I’m not asking anything from the Torah—so what’s the problem? Is waiver forbidden? As we said in Rabbi Akiva Eiger, what does it mean that she waives? You are creating a partial legal effect here. Because this is not something future-oriented; you’re basically saying—and I said this is the third level among the three levels of the lesson—so whether we say this is a built-in definition, whether we say it is making a condition against what is written in the Torah, still Rabbi Meir sees this as applying only a partial legal effect. And that cannot be done, even if I’m making the condition with the person. You could call it stipulating against something mandatory—something you cannot stipulate away. What? What if I ask her to waive it for me in a week? Yes. Then it has nothing to do with the passage. Then it has nothing to do with the whole passage of making a condition against what is written in the Torah, because then it’s just ordinary speech with the person. The whole novelty is that when you do it now—not later, but as part of the transaction itself—then you are, as it were, making a condition with the person, but really you are making a condition with the Torah, because you are creating a partial legal effect here.
One could perhaps suggest a different formulation here and say this: if I basically say to you, I’m selling this to you on condition that you have no claim of overcharging, that the laws of overcharging do not apply, and you agree—if you agree, then there simply is no prohibition of overcharging here. And then that would be specific to overcharging. The statement here that “he knew and waived”—the main point is not the knowing, the focus is not on the knowing, but on the waiving. Meaning, where I ask you in advance, when I sell you the thing—or not ask, but stipulate—and you agree that there will be no overcharging here, then even if afterwards it turns out there was overcharging, I do not need to return the money to you not because the laws of overcharging did not take effect here, but because there was no overcharging here. The whole prohibition of overcharging is to deceive you—to tell you, to sell you something whose market price is five and I sell it to you for eight. Okay? Then I overcharged you. But if you know in advance that the price may be higher and you agree, then it’s not that I don’t have to pay you because you agreed, because you waived it. There is no waiver here; rather, the prohibition from the outset does not exist at all in such a case, because I did not deceive you. Do you see?
And then this would be a specific case regarding overcharging. The distinction between this and sustenance, clothing, and conjugal rights is not that in sustenance, clothing, and conjugal rights she knows and waives—that’s not the point. Rather, the point is that in sustenance, clothing, and conjugal rights, the prohibition against not giving sustenance, clothing, and conjugal rights is not because I deceived the woman. Even if she knows and waives, there is still a prohibition, because I have to give her sustenance, clothing, and conjugal rights. In overcharging, if he knows and waives, there is no prohibition—not because the waiver returns the money to me; not that there was a prohibition and then he gives me back the money—but because I did not deceive him. The whole prohibition is deceiving him. In sustenance, clothing, and conjugal rights, the fact that I have to give her sustenance, clothing, and conjugal rights is not because I am forbidden to deceive her, but because the Torah wants me to give my wife sustenance, clothing, and conjugal rights. So the fact that she knew and waived is not the point. The point is that still, according to Rabbi Meir, the prohibition remains fully in place. Because bottom line, you have to give it. The Torah wants you to give her sustenance, clothing, and conjugal rights; the Torah does not merely want you not to deceive her, even if she knows and waives. So what if she knows and waives? The Torah still wants you to give her sustenance, clothing, and conjugal rights.
And then the distinction has nothing to do with the question of whether she knew and waived or did not know and waive. That’s not the point. Rather, the concept is that in overcharging, knowledge is relevant. In sustenance, clothing, and conjugal rights, knowledge is not relevant. Fine? According to Rabbi Meir. All this is according to Rabbi Meir. The distinction Rav makes here is a distinction within Rabbi Yehuda’s view. Meaning, Rabbi Yehuda, who says one can stipulate in sustenance, clothing, and conjugal rights—here not, because here he did not know, and therefore maybe he did not waive. And when I speak within Rabbi Meir’s view, then within Rabbi Meir’s view the story could be exactly the opposite. In the case of sustenance, clothing, and conjugal rights, why should I care that she waived? The Torah wants me to give her sustenance, clothing, and conjugal rights. But here Rabbi Meir would concede that if he knew and waived, then I did not deceive him, so there is no prohibition of overcharging here. And in Rabbi Yehuda, again, it’s not relevant, because Rabbi Yehuda permits even in sustenance, clothing, and conjugal rights. Right—so this distinction I’m saying here is within Rabbi Meir’s view, not within Rabbi Yehuda’s view.
Okay, in any event, for our purposes, it seems that Rav ties the tannaitic dispute to waiver: the question whether there was waiver, whether there wasn’t waiver, certain waiver, uncertain waiver. And in the subtext what comes out is that according to Rav, the discussion is a discussion vis-à-vis the person. No one would agree to stipulate against what is written in the Torah, even not in a monetary matter. The whole story is the question whether you are stipulating with the person or not. Now, even according to Rabbi Meir, even if you stipulate with the person, that still won’t help. Fine? According to Rabbi Yehuda, if you stipulate with the person, that will help—but on condition that he knows and waives. If it’s not clear that he knows, as in overcharging, then even though you stipulated with the person, it still won’t help. Fine?
So notice what comes out according to Rav. According to Rav, stipulating against the Torah is ineffective according to everyone—not according to Rabbi Yehuda, not according to Rabbi Meir, not according to anyone. Stipulating with the person is the only thing that could work. Does it in fact work? According to Rabbi Yehuda, yes. According to Rabbi Yehuda you stipulate—you stipulate—sorry, according to Rabbi Meir, no. According to Rabbi Meir, even stipulating with the person does not help. According to Rabbi Yehuda, stipulating with the person can help, but only if the requirement is met that he knows and waives. That is the summary of the matter as Rav reads the dispute between Rabbi Yehuda and Rabbi Meir. And therefore the whole focus—the important point for me—is that the entire focus is really stipulating vis-à-vis the person.
What happens with Shmuel? The Talmud says—let’s say according to Rav this is basically a dispute in contract law, right? The question is whether you can stipulate with a person something that goes against the Torah, or whether you cannot stipulate with a person something against the Torah. Meaning, whether the person waives, doesn’t waive. According to Shmuel: “And Shmuel said, I can state my view even according to Rabbi Meir. Rabbi Meir only said there, in that case, because he is certainly uprooting something. But here, who says he is uprooting anything?” Yes, after all Shmuel goes like Rabbi Yehuda, so the one who is difficult for him is Rabbi Meir, right? So he needs to explain why in overcharging Rabbi Meir concedes. In sustenance, clothing, and conjugal rights Rabbi Meir disagrees, and in overcharging he concedes. Exactly the opposite of what we did before. Meaning, it comes out that according to Shmuel, overcharging is less of a case of stipulating against what is written in the Torah. According to Rav, overcharging is more of a case of stipulating against what is written in the Torah. Fine?
Now what’s even nicer here is that it’s for the very same reason. It’s not two different distinctions; it’s the same reason. Here it’s certain and here it’s uncertain. Only for Rav that is a reason to be lenient, and for Shmuel it is a reason to be stringent. And both depend on the very same difference. He says: “there, he is certainly uprooting.” In betrothal he is certainly uprooting. Why? In any case, you are making betrothal without sustenance, clothing, and conjugal rights. In a sale without overcharging, you have not certainly uprooted anything, because if the price isn’t high, then you haven’t uprooted any Torah law. Now you see that this is the same distinction Rav made. Meaning, it’s not only that they see overcharging and betrothal in two different ways—who is more a case of stipulating against what is written in the Torah and who less—but that the difference between overcharging and betrothal is the same difference according to both of them; only one sees that difference as a reason for leniency and the other sees it as a reason for stringency: whether it is certain or uncertain.
Why? What’s the idea? Again: according to Rav, what is the difference between overcharging and betrothal? In overcharging he did not know, right? It’s not certain, because maybe the price is high and maybe the price is not high—you don’t know. And therefore he can’t really waive it; but the focus is that he didn’t know. In betrothal, she knows. Correct. Meaning, according to Rav, the fact that you don’t know turns it into more of a case of stipulating against what is written in the Torah. Even Rabbi Yehuda will say that here you cannot stipulate. Right? Now what does Shmuel say? Meaning, even Rabbi Yehuda, who permits stipulating against what is written in the Torah, here he would not permit it. It’s more severe; it is more a case of stipulating against what is written in the Torah in the area of prohibition. Fine? Now according to Shmuel, what’s the difference? The same difference: whether certain or uncertain. Certainly uprooting, or less than certain—not certainly uprooting. In betrothal he certainly uproots; in the sale, either the price is high or the price is not high, and it is not certain from the stipulation itself that you went against the Torah. But it follows that according to Shmuel, this very distinction itself means that specifically sustenance, clothing, and conjugal rights is more a case of stipulating against what is written in the Torah. Therefore there Rabbi Meir, who concedes that the condition stands in overcharging, says in sustenance, clothing, and conjugal rights that the condition is void. It is the exact same distinction. So this is really strange. I mean, we’ve found disputes where Reuven says A is more severe than B, and Shimon says B is more severe than A. That we’ve found. Usually that is because Reuven is relating to one aspect and Shimon is relating to another aspect. From this aspect A is more severe, and from that aspect B is more severe. But here they are talking about the very same aspect itself. And one sees it as grounds for stringency and the other sees it as grounds for leniency. Why? What’s the difference?
What do you say? It’s the fact itself. The focus, in my opinion, is what I said earlier. Rav sees the whole discussion on the plane of the person. You are stipulating vis-à-vis the person, not vis-à-vis the Torah. Here the question stands: did he waive or did he not waive? Clearly, from that perspective, if he knows, then he waives more than if he doesn’t know. If he doesn’t know, who knows—maybe the waiver is not serious, maybe it is an uncertain commitment, right? According to Rav—not according to Rabbi Meir and Rabbi Yehuda; Rav says this both according to Rabbi Meir and according to Rabbi Yehuda. I’m now speaking about Rav and Shmuel, not Rabbi Meir and Rabbi Yehuda. According to Rav, in betrothal—yes. According to Shmuel, what? The focus, he says, is the uprooting, not the waiver. How directly are you going against the Torah? Is this an uprooting of a Torah law or not? If you are certainly uprooting a Torah law, then you have uprooted it—what can you do? This is stipulating against what is written in the Torah. If it is not certain that you uprooted it, that is not considered uprooting. And both are actually right. The difference is the question of what plane you are looking at. Meaning, according to Rav, you are looking at the person, and as far as the person is concerned, the more certain it is, the better the waiver. But according to Shmuel, I’m looking at the Torah: are you acting directly against the Torah or not? So if it’s not certain, then you have not necessarily acted against the Torah. And therefore it will be less a case of stipulating against what is written in the Torah, not more.
This sharpens very much what I said before about Rav; now I’m saying it about Shmuel. Rav sees the focus of the discussion in a discussion about the person. And Shmuel sees the focus of the discussion in a discussion about the Torah. And therefore the conclusions are completely opposite—one hundred and eighty degrees opposite. If the discussion is about the person, then uncertainty means it is more a case of stipulating against what is written in the Torah. If the discussion is about the Torah, then uncertainty means you are less going against the Torah, because it is not certain that you went against the Torah. Okay? This very much sharpens the point that, even before we ever got to stipulating with the person and stipulating with the Torah, when you analyze the words of Rav and Shmuel themselves, it’s already there: Rav focuses on the person, and Shmuel focuses on the Torah. Okay?
What happens, for example, in the case of the Sabbatical year? Which is it more similar to—overcharging or betrothal? The Sabbatical year: “on condition that the Sabbatical year not cancel my debt.” Why? No, no—before that, I’m not yet getting into the question whether this is stipulating with the person or stipulating with the Torah. I’m asking about the case itself. The case of making a loan on condition that the Sabbatical year will not cancel it—is that similar to making a condition in a sale that the law of overcharging will not apply, or is it similar to betrothal on condition that there be no sustenance, clothing, and conjugal rights?
[Speaker C] It seems to me similar to betrothal.
[Rabbi Michael Abraham] Right? It’s similar to betrothal, not to overcharging. Right? According to both distinctions—both for Rav and for Shmuel.
[Speaker C] It’s certainly something written in the Torah.
[Rabbi Michael Abraham] Yes. In other words, with the Sabbatical year, in the seventh year, there’s no question here of whether the price is higher or lower. In the seventh year I want the Sabbatical year not to cancel my debt—that is certainly against the Torah. Right? So that’s actually similar to betrothal. So what would I have expected to find there? According to the distinction the Talmud makes here, I would have expected there to be a dispute between Rabbi Yehuda and the Rabbis regarding the Sabbatical year exactly as in betrothal, and that Rav and Shmuel would not disagree about this. Both of them would agree with Rabbi Yehuda, let’s say for the sake of discussion, right? That’s what… Now I’m saying this because in the Talmud in Makkot we see that it’s not so. But in light of the… the distinctions the Talmud makes here, it’s no wonder the Talmud doesn’t bring in the Sabbatical year. It doesn’t bring in the Sabbatical year because it isn’t relevant; the Sabbatical year is really just like betrothal. Yes. Okay. Now the Talmud says: Rav Anan said, “It was explained to me by Master Shmuel.” Yes, either Shmuel told me, or I explain Shmuel’s view—I’m not sure exactly how to understand that. “One who says to another, ‘On condition that you have no claim of overcharging against me,’ he has no claim of overcharging against him. ‘On condition that there is no overcharging in it’—there is overcharging in it.” Meaning, he says as follows: I am basically following Shmuel’s view, and therefore I claim that if one says to another—in other words, I disagree with Rav, I think Shmuel is right, and Shmuel says there is no overcharging in such a case—if you made the sale conditional on there being no overcharging, then indeed there is no overcharging. Okay? Ah, but doesn’t that conflict with Rabbi Meir in betrothal? He says no, it does fit. Why? Because in betrothal, what Rabbi Meir is really claiming is that here one is making a condition against the Torah—that the law of food, clothing, and conjugal rights should not apply. But in overcharging, we’re talking about my making a condition with the person. You can’t make a condition with the Torah, but you can make one with the person. Okay?
Now this is interesting in light of the analysis I gave earlier, because Rav Anan is basically taking Shmuel onto the plane of conditions with the person and not with the Torah. Right? Shmuel is really discussing conditions against the Torah, and Rav Anan says no, no, no—conditions against the Torah are out of the question in any case. The whole issue is what happens with the… what happens with the person. In other words, the only thing you can make conditional is when you make it conditional with the person. Even Shmuel is not claiming that one may make conditions against the Torah in monetary matters; rather, you can make a condition with the person. Okay. So what does Rav hold? Rav holds that even if you make the condition with the person, it won’t help. Right? Because after all, there is a dispute between Rav and Shmuel. You can’t say that Shmuel is talking about one case and Rav is talking about a different case. They are speaking about the same case, right? After all, they disagree about some particular case. So if you tell me that when Shmuel said “he has no claim of overcharging against him,” what is the case he was speaking about? That he made the condition with the person, right, not with the Torah. Because you can’t make a condition with the Torah. He made the condition with the person. It follows that Rav says about that very same case—where he made the condition with the person—that it is ineffective; he does have a claim of overcharging against him. Meaning that even a condition with the person cannot work according to Rav.
Now here there’s room for a bit of hesitation about Rav Anan’s distinction. Is it a distinction within Rabbi Meir’s opinion or within Rabbi Yehuda’s opinion? No—Rabbi Yehuda and Rabbi Meir can both be referring either to the person or to the Torah, depending on whether you follow Rav or Shmuel. This chart gets complicated here. What is Rav Anan trying to do? What difficulty is he trying to solve? No—Shmuel said there is no overcharging, so they ask against Shmuel: that fits Rabbi Yehuda; what do you do with Rabbi Meir? Right, that was the question. And on Rav’s side it’s the opposite, but he is coming to solve the problem for Shmuel. In other words, he comes to reconcile Shmuel with Rabbi Meir in betrothal. So ostensibly the distinction he makes is a distinction within Rabbi Meir’s opinion, not within Rabbi Yehuda’s. Because I want to explain why in overcharging even Rabbi Meir would agree that it works—because it is a condition with the person, and therefore he will agree. The only reason Rabbi Meir doesn’t agree in betrothal is because he understands that in betrothal you are making a condition with the Torah. So the distinction is, simply, a distinction within Rabbi Meir’s opinion, right? That’s how it seems.
But the commentators almost all understand that no—the distinction Rav Anan is talking about is within Rabbi Yehuda’s opinion. Or in other words, Rav Anan is not coming to reconcile how Shmuel fits with Rabbi Meir; Shmuel does not fit with Rabbi Meir. Rav Anan is coming to state a distinction in its own right. Know that everything Rabbi Yehuda says according to Shmuel—everything Rabbi Yehuda says, that one may make a condition—is only in a place where he makes the condition with the person, but not when he makes it with the Torah. In other words, he is basically coming to tell us exactly this: don’t think that Shmuel is speaking to us on the level of the Torah; even Shmuel is speaking on the level of the person. All right? But that is within Rabbi Yehuda’s opinion.
Why do they really explain it this way, that he makes this distinction within Rabbi Yehuda’s opinion? The straightforward reading of the Talmud is that the distinction is within Rabbi Meir’s view. Right? After all, you are coming to reconcile Shmuel with Rabbi Meir, so this is a distinction that should be within Rabbi Meir’s opinion. Why are you taking it over to Rabbi Yehuda’s opinion? They apparently say that he is not coming to reconcile Shmuel with Rabbi Meir at all; he is coming to state a distinction within Rabbi Yehuda’s opinion according to Shmuel. But the straightforward reading of the Talmud does not seem that way. I think what they want to say is that if this were really said only within Rabbi Meir’s opinion, then it would come out that the dispute between Rabbi Meir and Rabbi Yehuda is talking about a condition with the Torah. After all, what is he essentially saying? According to Rabbi Yehuda—wait, how does it go there? If we say that the distinction is within Rabbi Meir’s opinion, then it comes out like this: Rabbi Meir says that one cannot make a condition with the Torah but can make one with the person, and Rabbi Yehuda says that one can even make a condition with the Torah. Right? That is what should emerge. But regarding a condition with the person, according to everyone it works, if you make it with the person.
Now when I look at the dispute between Rabbi Yehuda and Rabbi Meir regarding food, clothing, and conjugal rights, it says, “on condition that you have no claim against me for food, clothing, and conjugal rights,” not “that there is no law of food, clothing, and conjugal rights,” but “that you have no claim against me for food, clothing, and conjugal rights”—that is a condition with the person. And according to the first possibility, the dispute of Rabbi Meir and Rabbi Yehuda is talking about a condition with the Torah, not with the person. Okay? I think that is one of the reasons why the medieval authorities (Rishonim) or the commentators understand that Rav Anan makes this distinction within Rabbi Yehuda’s opinion and not within Rabbi Meir’s. In the Talmud in Makkot it is explicit that this is a distinction within Rabbi Yehuda’s opinion; we’ll soon see.
Now the Talmud says, fine, it raises an objection: “One who buys and sells in trust, and one who says to another, ‘On condition that you have no claim of overcharging against me,’ he has no claim of overcharging against him.” “You have no claim of overcharging against me”—yes, so that is really a condition with the person. According to Rav, who says, “I can state my view even according to Rabbi Yehuda”—who is this? After all, Rav, who says there is overcharging—in other words, that it is ineffective—is speaking even according to Rabbi Yehuda. It is ineffective both according to Rabbi Yehuda and according to Rabbi Meir. Why? Because here he did not certainly waive it. Right? So why here does he have no claim of overcharging against him? After all, here too he did not certainly waive it, and there is no tannaitic opinion like that.
Abaye said: enough with the forced reconciliation. Rav speaks in accordance with Rabbi Meir, and Shmuel speaks in accordance with Rabbi Yehuda. Therefore the rejection stated above is incorrect—that Rav also follows Rabbi Yehuda’s position. Rav follows Rabbi Meir’s position. Because if Rav also followed Rabbi Yehuda, then you would need to distinguish between where he definitely knew and waived it, and where he did not definitely know and waive it. But here, “on condition that you have no claim of overcharging against me,” he did not definitely waive it, so why is there no overcharging? Why does the condition stand? Okay?
Rava said: no difficulty—here it is unstated, here it is explicit. As it was taught: “In what case are these words said? In an unstated case. But in an explicit case, where the seller said to the buyer, ‘This item that I am selling you for two hundred—I know that it is worth only one hundred—on condition that you have no claim of overcharging against me,’ he has no claim of overcharging against him.” Meaning, if he said to him, “Know that the price here is such-and-such a price”—in short, what does that actually mean? That he definitely knew and waived it. I remain with the distinction Rav said above. Abaye says, no—the distinction Rav said above is not correct; Rav follows only Rabbi Meir, not Rabbi Yehuda. Rava says to him, not true—Rav also follows Rabbi Yehuda. Why? Because here too we are speaking of a case where he definitely waived it; here too we are speaking of a case where he definitely waived it. How? Because he said to him, “Know that the price is much higher, and I stipulate that you not make a claim under the laws of overcharging. I stipulate that there will be no law of overcharging here.” But if he said this only in a general way, without specifying, then indeed the condition would not stand; there is no waiver here.
Why in fact does it work when stated explicitly like this? Even if you don’t specify, then no? Because on the simple level it’s because he definitely, definitely waived it. Right? Because if you told him beforehand, then he definitely waived it. What I said earlier becomes much clearer. Because if I told you in advance, then I basically said to you, “Look, the market price of this thing is five, I want eight from you, and I want…” that you should not come to me with the laws of waiver—I mean with the laws of overcharging. Know that you are agreeing to such a situation. And then it is almost compelled to say—so what do you want? There is no prohibition of overcharging here; I didn’t overcharge you. That phrasing I used earlier. This is specific to overcharging. There is no prohibition of overcharging here.
Say, regarding food, clothing, and conjugal rights—if he tells the woman, “Look, know that the Torah really obligates me to provide you with food, clothing, and conjugal rights. But I want to contract betrothal without that. If you want that, I don’t want betrothal”—would that work when explicit? I spelled it out. Yes, according to Rava, if explicit it should be fine. No, it won’t work. Even when explicit it won’t work. Why? Because of what I said earlier. In overcharging, if I spelled it out to you, then I didn’t overcharge you at all. The prohibition doesn’t exist. But in betrothal, why should I care that I spelled it out? The Torah wants me to give her food, clothing, and conjugal rights. Does it matter whether I tricked her or didn’t trick her? It’s irrelevant. Therefore, once again I bring you proof that at least here, at least in what Rava says, the focus is apparently the difference between the prohibition of overcharging and the obligation of food, clothing, and conjugal rights in betrothal. It is not the question whether it is definite or not definite. Rather, the nature of the prohibition is different. Here the prohibition is to deceive him, and there it is an obligation to give her food, clothing, and conjugal rights regardless of whether I deceived her or not. Okay?
Now the Talmud in Makkot says as follows. “And Rav Yehuda said in the name of Shmuel: One who says to another, ‘On condition that the Sabbatical year not cancel my debt to you,’ the Sabbatical year does cancel it.” Once again this is Shmuel—Rav Yehuda, his student, in the name of Shmuel. “The Sabbatical year cancels it.” What does that mean? The condition is void. Right? What? And that contradicts his opinion above. Because above he says there is no claim of overcharging against him; the condition stands. The condition—yes, the condition stands. Here he says the condition is void. Right? Fine, let’s make the calculation for a moment. What? Wait, we’ll see in a second. Let’s do the calculation now in an orderly way.
What would we have thought in light of what we saw in this specific case? So Shmuel above—we are speaking according to Shmuel’s view. Shmuel above said that if he is definitely uprooting it, then the condition is void. Right? If he is definitely uprooting it. What happens in the Sabbatical year? He is definitely uprooting it. Therefore the condition is void. So that does not contradict what Shmuel said above. What do you mean? Why? He says to another, “On condition that the Sabbatical year not cancel my debt to you.” No, I’m not yet even entering the question of whether he made the condition with the person or with the Torah. That will come later. All right? I’m starting to do the calculation from the beginning. We haven’t yet reached Rav Anan—condition with the person, condition with the Torah. At the beginning there are the discussions of Rav and Shmuel themselves, how they reconcile themselves with Rabbi Meir and Rabbi Yehuda.
Exactly, because here it is not similar to overcharging, as we already said above. It is not similar to overcharging; it is similar to betrothal. If it is similar to betrothal, then here indeed there will be a dispute between Rabbi Meir and Rabbi Yehuda. And in such a case what happens? That Shmuel actually follows both Rabbi Meir and Rabbi Yehuda. He is not only following Rabbi Yehuda. And what comes out according to Shmuel? That if he is definitely uprooting it, then both Rabbi Meir and Rabbi Yehuda agree that it does not work. If he is not definitely uprooting it, Rabbi Meir still says it does not work and Rabbi Yehuda says it does work. Right? But if he is definitely uprooting it, then according to both Rabbi Meir and Rabbi Yehuda it does not work. Right? That is what comes out. Now in the case of the Sabbatical year, he is definitely uprooting it. So in such a case it does not work according to either Rabbi Yehuda or Rabbi Meir. Right? So that is perfectly fine. At this point it does not contradict anything.
What would happen according to Rav Anan’s distinction? Rav Anan’s distinction also speaks about Shmuel. According to Rav Anan’s distinction, he says: if you make a condition with the Torah, it does not work; if you make a condition with the person, it does work. What happens here? “On condition that the Sabbatical year not cancel my debt to you”—this is a condition with the Torah. Right? Not with the person. A condition with the Torah is not supposed to work. “Whoever makes a condition against what is written in the Torah”—so according to Rav Anan too it fits. So even though the law is the opposite of the law Shmuel says in overcharging, if we understand—if we take into account the distinctions we found in the Talmud, of the Amoraim in our passage, then there is no problem at all with this law of the Sabbatical year. Right?
There is something trickier here. In betrothal too he definitely uproots it, right? In betrothal he definitely uproots it, and in betrothal Rabbi Meir and Rabbi Yehuda disagree. So according to this distinction that Shmuel makes, it is only within Rabbi Meir’s opinion, but according to Rabbi Yehuda even if he definitely uproots it, it works in monetary matters. What? It should work, and Shmuel says it does not work. “Whoever makes a condition against what is written in the Torah, his condition is void.” The Sabbatical year does cancel it; his condition does not work; the condition is void. So that does not fit Rabbi Yehuda’s opinion. As Jewish law, it does not fit. With Rabbi Meir it fits; with Rabbi Yehuda it does not fit. If he definitely uproots it, Rabbi Yehuda agrees in monetary matters that his condition stands; only Rabbi Meir says the condition is void. That is the calculation within Rabbi Meir’s opinion. So yes, there is a contradiction here. All right? According to Rav Anan, then no.
So the Talmud says: “And it was stated: one who says to another, ‘On condition that you have no claim of overcharging against me,’ Rav said he does have a claim of overcharging, Shmuel said he has no claim of overcharging against him.” Yes? Ostensibly this contradicts. So the Talmud says, “Was it not said regarding this that Rav Anan said…” Where are the earlier distinctions we made? Why did they jump straight to Rav Anan? What about the earlier distinctions we made? The earlier distinctions won’t help. Because the first distinction Shmuel makes is a distinction within Rabbi Meir’s opinion, but as Jewish law, since we rule like Rabbi Yehuda, then even where he definitely uproots it, it works. So why here does it not work? That’s it—therefore they arrive here at Rav Anan.
So the Talmud here immediately jumps to Rav Anan; it doesn’t go through the stages our Talmudic passage goes through. “Was it not said regarding this that Rav Anan said: It was explained to me by Shmuel: ‘On condition that you have no claim of overcharging against me’—he has no claim of overcharging against him. ‘On condition that there is no overcharging in it’—there is overcharging in it. Here too, ‘On condition that the Sabbatical year not cancel me’—the Sabbatical year does not cancel the debt. ‘On condition that the Sabbatical year not apply’—the Sabbatical year does cancel the debt.” So indeed, the first distinction he makes can reconcile it with Rabbi Meir, but as Jewish law, since we rule like Rabbi Yehuda, that won’t help. You must get to Rav Anan.
Or in other words, Rav Anan apparently—as I said above—is not coming to reconcile Rabbi Meir’s opinion. In Rabbi Meir’s opinion there is no difficulty at all. He is coming to reconcile Rabbi Yehuda’s opinion. And that is exactly the conclusion we also had in our passage: that Rav Anan’s distinction between making a condition with the person and making one with the Torah is stated within Rabbi Yehuda’s opinion, even though on the straightforward reading of the Talmud it seems to be within Rabbi Meir’s. But here in the Talmud you see this explicitly. And therefore the medieval authorities (Rishonim) explain it this way in our passage too. All right? Within Rabbi Yehuda’s opinion now, what you said was… No, the opposite. According to Shmuel he says that within the opinion of… ah yes, in other words, Rabbi Yehuda allows it even where he definitely uproots it. So that is if you make the condition with the person, not if you make it with the Torah. Yes, that is Rav Anan’s addition. Right. All right?
Rav Anan adds on top of the distinction that Shmuel… this also follows from the straightforward reading of the Talmud. The first part of the passage, Shmuel himself says it. Shmuel himself says that here it is definitely uprooting and there it is not definitely uprooting. This is not some Amora interpreting Shmuel. It is Shmuel himself. Okay? So afterward, when Rav Anan comes and says, “It was explained to me by Master Shmuel,” what—he is proposing an alternative to what Shmuel himself said in order to explain Shmuel? That is not plausible. Therefore it is quite clear that when he says “it was explained to me,” he means independently. Shmuel reconciled himself the way he reconciled himself, everything is fine, that remains in place. I am only telling you another law, unrelated to what he said above. Know that everything he said applies only when you make the condition with the person and not when you make it with the Torah. Okay?
Maybe just one remark. There is some… I once wrote about this in one of my columns… There is a kind of paradox created in the halakhic ruling here. Because we saw that according to Rav, the discussion takes place on the level of the person—in contract law. You made a condition with the person; the question is what the status of such a contract is. Right? He waived, he didn’t waive, exactly how this works. So according to Rav, the discussion is one in monetary law. All right? According to Shmuel, the discussion is whether you are uprooting a Torah law or not uprooting a Torah law. It is a discussion in the laws of making a condition against what is written in the Torah, not in contract law. It is a discussion of prohibition: are you permitted to make a condition against what is written in the Torah? Can you make a condition against what is written in the Torah or not? It is not at all a question in monetary law or contract law; it is a discussion of prohibition.
Now the rule is that in a dispute between Rav and Shmuel, the Jewish law follows Rav in matters of prohibition and Shmuel in monetary law. In monetary law, the Jewish law follows Shmuel; in matters of prohibition, it follows Rav. But in this case Shmuel says this is a matter of prohibition, and Rav says this is a monetary matter. So according to Rav it follows that the Jewish law should follow Shmuel, and according to Shmuel it follows that the Jewish law should follow Rav. What happens when the dispute is about whether this is a matter of prohibition or a monetary matter? That itself is the dispute. It’s not that we have a monetary matter and they disagree, one permitting and one forbidding, or a matter of prohibition; rather the dispute is precisely about this—namely, is this a matter of prohibition or a monetary matter? So here it becomes like a liar paradox. In other words, according to Shmuel it should come out that the Jewish law follows Rav, and according to Rav it should come out that the Jewish law follows Shmuel. How do you rule here? So that is an interesting question.
The truth is that it depends. Without Rav Anan, that really is a difficult question. After Rav Anan, though, it turns out that Shmuel too is really speaking only on the level of the person, at least within Rabbi Yehuda’s opinion. Right? Shmuel too, everything he permitted in betrothal regarding making a condition against what is written in the Torah, is because he is making the condition with the person and not with the Torah. Then the claim is that perhaps according to Shmuel as well, the discussion is really one in contract law and not one of prohibition. And if both agree that the discussion is one in contract law, then in contract law the Jewish law follows Shmuel. And therefore I think that as Jewish law, I think that as Jewish law they bring Shmuel. What? Yes. In overcharging they rule like Rav. What? In overcharging they rule like Rav. But regarding the Sabbatical year they bring Rav Anan’s distinction, both the Shulchan Arukh and Maimonides. I hadn’t checked this earlier, the practical ruling. What? Yes. They don’t bring there the question whether there is a law or no law, or “you have no claim of overcharging against me.”
Fine, this really is a bit tricky. Look, Maimonides says: “One who says to another, ‘On condition that you have no claim of overcharging against me,’ he does have a claim of overcharging against him.” So that is like Rav, right? But in the wording he says, “On condition that you have no claim of overcharging against me,” and that is not entirely clear. “You have no claim of overcharging against me”—does that mean that the Torah will not give you the right of an overcharging claim? “On condition that you not collect the overcharge from me,” or “on condition that the Torah not impose a law of overcharging here”? You see? It can be interpreted either way. There he ruled like Rabbi Yehuda. What? The law follows Rabbi Yehuda? Yes. Why? Yes, but Rav also works with Rabbi Yehuda, because here he did not know and did not waive it. “He has a claim of overcharging against him; one who says to another, ‘On condition that you have no claim of overcharging against me,’ he has a claim of overcharging against him.” No, so that’s fine. The marking of the halakhic ruling there as following Rav is incorrect. That mark is an error, simply an error in the reference note.
Because this also emerges according to Shmuel. After all, according to Rav Anan, if you make the condition with the Torah, then the condition is void. If you make the condition with the person, the condition stands. Now, “on condition that you have no claim of overcharging against me” does not mean “on condition that you waive my overcharging.” “On condition that you have no claim of overcharging against me” means you have no overcharging claim because the Torah did not give you that right of overcharging. Then the condition is void. Shmuel too agrees that the condition is void after Rav Anan’s distinction. And after all, Rav Anan himself said that in the law of overcharging, when Shmuel said the condition stands—his dispute with Rav—that speaks about a situation where I am making a condition with the person, not with the Torah. Okay, so Rav and Shmuel’s dispute is in a condition with the person—but in a condition with the Torah, both agree that the condition is void. That is what Rav Anan said, right? So what is brought here as Jewish law is not the law following Rav. “You have no claim of overcharging against me” means you have no claim because the Torah did not give you that right of overcharging, not because you are waiving it. Yes, that is how I understand it. And then there is no contradiction.
What confused me was that the reference note put the sign next to Rav’s words, as if the law ruled here follows Rav and not Shmuel. But that is not correct. I think that is not correct. It is true that it is strange that Maimonides and the Shulchan Arukh do not state the law of what happens if he makes the condition with the person. But it may be that they simply relied on what he said regarding the Sabbatical year: “One who lends to another and stipulates with him that the Sabbatical year not cancel it—the debt is canceled, because one cannot nullify the law of the Sabbatical year. If he stipulated with him that he himself not cancel this debt, even in the Sabbatical year, his condition stands.” So he already made that distinction there, and therefore he doesn’t repeat that distinction again in overcharging. Because he already made it. It is clear that making a condition with the person works; only making one with the Torah does not. What he newly taught is that even in overcharging, if you make the condition with the Torah, it does not help. With the person it helps both in the Sabbatical year and in overcharging, everywhere, because there is no problem making a condition with the person. So this is probably just an error in the marking of the law, in my opinion. We would have to check the commentators on Maimonides; they surely discuss whether he ruled like Rav or like Shmuel. In my opinion he ruled like Shmuel. And if so, that also fits well with what I said earlier—that since according to both Rav and Shmuel this is a discussion in monetary law, then the Jewish law should follow Shmuel in monetary matters.
There is a Talmudic passage in Bava Batra 126b: “One who says, ‘This particular son of mine is a firstborn,’ does not receive a double portion. ‘This particular son of mine shall not inherit with his brothers,’ or ‘with his brothers’—he said nothing, because he made a condition against what is written in the Torah.” Again, I asked: what does this have to do with making a condition? He isn’t waiving anything; he simply dies and the inheritance comes into being—he is not making any condition at all. So this is one of the examples I brought for the point that this is not really about conditions. The Talmud says: “Shall we say that our Mishnah is not in accordance with Rabbi Yehuda? For if it were in accordance with Rabbi Yehuda, he said that in a monetary matter his condition stands.” As it was taught, and then it brings the dispute of Rabbi Meir and Rabbi Yehuda.
The Talmud says: “You may even say Rabbi Yehuda; there she knew and waived it, here he does not waive it.” What does that mean? The distinction in our Talmudic passage, right? In betrothal the woman knows and waives it; the heir knows nothing at all. More than that—in the case of the heir, what exactly is he waiving? You cannot waive something that has not yet come into your possession. It is not a thing not yet in existence; it is a withdrawal in advance. We spoke about withdrawal, the Ketzot. So waiver is not applicable here. And here of course this is a condition against what is written in the Torah, right? When he says that my son shall not inherit, he is not making a condition with the son; the son cannot waive it. He is making a condition with the Torah. And a condition with the Torah does not work. Okay? And according to Shmuel too it does not work in a condition against what is written in the Torah, like the Rabbis. Therefore here too it is the same thing. Although this is not really a condition, as I said earlier, we have already seen that when you say “one who makes a condition against what is written in the Torah” in this context, the meaning is that you cannot do something against the Torah—not necessarily in the technical laws of conditions.
Now I just want to finish with the question of what the status of conjugal rights is. Right? We spoke about the fact that food, clothing, and conjugal rights are not necessarily all the same thing. Food and clothing are monetary matters, but conjugal rights are not entirely clear. So if I really say that conjugal rights are a prohibition and not a monetary matter, then when it says that he stipulates with the woman in betrothal that there will be no food, clothing, and conjugal rights, the meaning is only food and clothing, not conjugal rights. They mentioned conjugal rights just because it comes in the standard formula. But with conjugal rights, although it is not monetary but a prohibition, there is still a person standing opposite me who can waive it. It is not like a Nazirite vow, where there is no one standing opposite me, or the corner of the field, or things like that, or the heir who cannot waive it at all. Rather here, in conjugal rights, the woman can waive it—if later she does not want the law of conjugal rights, then she does not want it. It is true that it is a prohibition and not money, but there is still someone standing opposite me who can waive it. In that sense there is room to see conjugal rights as part of “making a condition in a monetary matter against what is written in the Torah.”
If the focus is not money versus prohibition, but the question whether there is someone standing opposite me who can waive it or not. That is to say, if the focus is the person and not the Torah, and then the whole discussion is whether there is a person here who waives it, whether there is waiver or not—then in conjugal rights there is waiver, just as with food and clothing: if she waived them, then in conjugal rights too she waived it. If the discussion is the question of prohibition versus money, then indeed conjugal rights are not like food and clothing. All right? So conjugal rights will be the practical difference depending on how I understand the discussion. Is the discussion about the person? Then the distinction is not between prohibition and money, but whether I am making the condition with the person or with the Torah. So in conjugal rights I am making the condition with the person, not with the Torah. But if the question is whether I am talking about prohibition or money, conjugal rights are a prohibition, not money.
Fine, we saw in the Rashba on Ketubot 56—we already saw it—that he indeed says this is only about food and clothing, not about conjugal rights. But his reasoning is, first of all, that he is making the condition with the person and not with the Torah. He says to her, “On condition that you have no claim against me for food, clothing, and conjugal rights,” not “on condition that through this betrothal I will not become obligated in food and clothing.” After that he says, “This is the way of our teachers, the Tosafot masters”—our teachers, the Tosafot—who wrote in tractate Gittin, “and for this reason specifically in a monetary matter the condition stands, because it can be waived.” Again, the focus is waiver. “But something that is not monetary, such as conjugal rights, which involve bodily distress and cannot be waived, is not waived; he only made the condition with her to put her off with words.”
Now his reasoning is a bit tricky. What? Standard wording. We know that there are always obligations of food, clothing, and conjugal rights. It always comes together. So he stipulated that there is no food, clothing, and conjugal rights, but he basically means only food and clothing; conjugal rights he cannot stipulate away. All right? What is the distinction between conjugal rights and food and clothing? Is it that food and clothing are money and conjugal rights are a prohibition? It does not sound that way from his language. He says this is bodily distress and cannot be waived. There is just a technical problem here—this cannot be waived. Say even if she waives it afterward, and then suddenly she has bodily distress, she says, “No, no, I waived it by mistake, I’m sorry, I didn’t really mean to waive it.” So it is not because it is not a monetary obligation; it may still be a personal obligation toward her. But it is a kind of obligation that cannot be waived. Therefore it does not work, not because conjugal rights are a prohibition and food and clothing are money.
So the Rashba seemingly removes conjugal rights from the discussion, but he does not remove them because conjugal rights are a prohibition. He removes them because conjugal rights cannot be waived, implying that in his view the distinction is not between prohibition and money, but whether someone is standing opposite me and can waive it or not. That is the distinction. It is true that in conjugal rights there is someone standing opposite me, but she cannot waive it because it is bodily distress. All right?
By contrast, the Ritva says: “Rashi explained: a monetary matter, such as food and clothing, and so too Maimonides explained, for conjugal rights are not a monetary matter.” So when he describes Rashi and Maimonides, that is similar to the Rashba, but it is not the Rashba’s reasoning. They claim that conjugal rights are a prohibition and not money. That is the distinction. The Rashba says no—the Rashba says that in principle conjugal rights are also money, but it is a kind of money that cannot be waived, because it is bodily distress. What? It is an obligation. Say I betroth a woman through benefit—dance before me. The benefit is worth money, and I betroth her with that value. Monetary value is like money. Now conjugal rights are a kind of benefit. Benefit is a kind of commodity; it is worth money. One can give up that benefit, so it could be a monetary obligation. So Maimonides says no—Maimonides and Rashi say no, this is a prohibition, not money. That is the distinction. According to the Rashba it seems to be money, only money of a kind that cannot be waived. All right, that is not the same thing.
And the Ritva is a third view. The Ritva claims: “And this is not correct, for all bodily pleasures are considered like money for this matter.” And the Ritva claims that conjugal rights too are really considered like money, and apparently can also be waived. This is a third position. In principle he is like the Rashba, who says that conjugal rights are money and not prohibition, unlike Maimonides and Rashi. But he is not like the Rashba in the sense that conjugal rights cannot be waived because it is bodily distress. No—it is money and it can also be waived. What? Yes, food, clothing, and conjugal rights exactly, in the straightforward reading of the Talmud, simply.
And in the Jerusalem Talmud as well—they said there regarding this: “And are conjugal rights not a monetary matter? That would mean she would not require a bill of divorce and would not be bound to a levirate marriage.” So it is clear in the Jerusalem Talmud that conjugal rights are indeed a monetary matter. What? According to the Ritva’s conclusion, yes, and also what the Ritva
[Speaker B] brings from Rashi.
[Rabbi Michael Abraham] No, so yes, maybe it is like the Rashba—that he only said it to put her off with words—but not for the Rashba’s reason. Because look, the Ritva concludes: “And this is the language of Rashi, first edition: in a monetary matter, food and clothing, his waiver stands, for money is made to be waived; but bodily distress, such as conjugal rights, she does not waive, and his condition is void.” That really is similar to the Rashba. That is Rashi in the first edition; it is not the Rashi he cited earlier. I think he means to bring here Rashi in the first edition as a third position, which is basically the Rashba. Okay. Fine, we’ll stop here; we’ll continue. One more remark. Okay. What? Why? Ah, yes.
