Q&A: A Gift on Condition That It Be Returned
A Gift on Condition That It Be Returned
Question
Hello Rabbi, I wanted to know your opinion on this issue.
It is brought in tractate Bava Batra 137b: "Rav Nachman said: If one says, 'This ox is given to you as a gift on condition that you return it to me,' and he consecrated it and returned it, it is consecrated and returned."
If the recipient (Reuven) consecrated the ox, how can he transfer ownership of the ox back to the owner, since it no longer belongs to him? And if he cannot return it to the owner (Shimon), then retroactively the ox did not belong to Reuven in the first place (since it was a gift on condition that it be returned), and it turns out that the ox was never consecrated at all. A kind of paradox is created here.
Netivot HaMishpat brings this in section 241 of Choshen Mishpat (subsection 5) and answers in the name of the Ran that Reuven consecrated it in such a way that at the moment the ox is returned to Shimon, the ox will belong to him (Reuven), and then he will be able to transfer it to him. Of course afterward the object will revert to being consecrated, and then everything works out. This answer sounds very implausible to me (how can transfers of ownership from consecrated property to you and back even be possible at all?!), and in general, in his analysis of the passage in Gittin ("divorced on condition that you do not marry so-and-so") that he cites there, from which he makes an analogy to our case, logical contradictions arise.
Answer
There is a dispute among the medieval authorities (Rishonim) regarding the law of a gift on condition that it be returned. Some held that this is a gift for a limited time, and according to that there is no problem. The second person consecrates the period of time during which the ox is his. Others held that the second person must transfer it back to the first (this is the view of the Rosh). And indeed, Netivot HaMishpat, section 241 subsection 5, which you mentioned, raises this difficulty against the Rosh and answers that we are dealing with lesser sancta, such as a peace-offering, which is the owner’s property, and therefore he can transfer it back to him.
Were I not hesitant, I would say that this is like the law of "after you," which is discussed there in the passage, and the condition that he transfer it back applies only when the ox is in his possession. But with an ox that is consecrated, there is nothing to transfer, and therefore there is no violation of the condition here. Just as in the case of "after you," where the first one gave a gift to the second, nothing reaches the first one. And that is what the Talmud concludes there: if he said, "on condition that you return it to me," then this is no gift at all, because here he is required to return it literally—something fit for his use.
However, on the straightforward reading it seems one should say otherwise. Presumably the case here is monetary sanctity, not inherent sanctity of the body of the animal (that is, he consecrated it for Temple maintenance, not as a sacrifice). And perhaps one can say that an object belonging to the Temple treasury is considered all along to remain its owner's property, only consecrated for Temple maintenance. Therefore the second person can return it to the first, so that now the first is the owner of an ox consecrated for Temple maintenance. But if he said, "that you return it to me," he is demanding something fit for his use, meaning something usable by him, and in such a case returning a consecrated object does not fulfill the condition.
I wrote all this off the cuff, and have not checked it as thoroughly as needed.
Discussion on Answer
There is a systematic way to deal with loops. See the fifth book in the Talmudic Logic series.
Thank you, Rabbi, for the answer, and it seems that the Rabbi’s explanation does indeed fit the plain sense well. But the Ran’s words are still difficult for me (he assumes that we are dealing with inherent sanctity, and not דווקא lesser sancta), and I wanted to know whether the process he describes with the consecrated ox (a back-and-forth process between the ox belonging to the Temple treasury and then returning to Reuven) is even possible at all. In the passage in Gittin this raises a question altogether: if I divorced my wife on condition that she not marry a certain man, and she married him, then the bill of divorce is void, so in that case she did not really marry him after all (since she was a married woman), and if she did not marry him, then the bill of divorce is valid, and so on.
How can one deal with such paradoxes?