Q&A: Legal Effects Against My Will
Legal Effects Against My Will
Question
Hello, honored Rabbi,
Why is it that when a person creates a legal effect and the result goes off in an unexpected direction, he is bound by that result and it takes effect—for example, the law of “it spreads” in betrothal, Rashi’s view on retroactive clarification in Sukkah 24b, and also that if there is no retroactive clarification then all the untithed produce becomes doubtful terumah? Surely he definitely does not intend for the legal effect to take hold in that way (for example, that all his produce should become forbidden). If so, why is this not considered a case of “mistake”? How is this different from an acquisition made in error, waiver in error, or consecration in error?
Answer
This question is raised by Tosafot on Ketubot 56a regarding conditions. A person stipulates a condition not in accordance with the laws of conditions, and the rule is that the condition is void but the act remains valid. For example, if a man betroths a woman on condition that he not be obligated to her for sustenance, clothing, and marital relations (according to Rabbi Meir, who holds that one cannot make such a stipulation), the betrothal takes effect and he is obligated in sustenance, clothing, and marital relations. Tosafot asks: how can that be? His intention was clearly that if things stand this way, the betrothal should not take effect.
It seems to me that the explanation is that when a person performs a halakhic act, he does so on the understanding that the relevant halakhic mechanism will operate. For example, when he makes a condition in betrothal, he wants the condition to work. But for the condition to work, the halakhic rule is that the act must take effect in any case, and then if the condition is voided, the act is voided retroactively (or retroactively from that point onward, according to Rabbi Shimon Shkop). So when he makes the condition, he is really intending that it work in the way that is effective according to Jewish law—that is, that the act takes effect in any case, except that it will be undone if the condition is not fulfilled. Therefore the act does take effect. But now it turns out that the condition was not formulated validly, so it cannot undo the act. We are left with a betrothal that is not undone even if the condition is not fulfilled.
I think this serves as a paradigm for all such cases, including retroactive clarification and the like. In the case of half-betrothal, though, it is even simpler. The betrothal really does take effect on half of her, as he wanted. But there is a halakhic rule that once it has taken effect on half of her, it spreads to all of her. Jewish law does not allow one to betroth half a woman. So in the end she is entirely betrothed to him. He performed betrothal according to the rules of Jewish law, because the very concept of betrothal is defined by Jewish law and within its framework. Those are the rules of betrothal. Not happy? Then let him divorce her.
Discussion on Answer
And furthermore,
B – As far as I know, Rashba on Gittin 75b (s.v. “atkhin”)—and see the Chazon Ish, siman 50, se'if katan 6, who infers this from his words—disagrees with the above Tosafot and explains that a person actually wants the act more than he wants its cancellation through the condition. Therefore the act takes effect even though the condition is not fulfilled: “Since he made a condition but did not make it according to Jewish law, he has revealed by his intent that he is not particular about its fulfillment and does not want the act canceled even though his condition is voided.” And this is the Chazon Ish’s general approach in many places in explaining all the laws of conditions—double conditions, the condition preceding the act, and so on—based on that Rashba (and see also Nachmanides, Milhamot, Beitzah 10), that the desire for the act is stronger, and one must suspect that he is only warning, so to speak, through making the condition, as Meiri says in Kiddushin 61a.
If so, then all we have is a special reasoning regarding conditions, not a general principle for the whole Torah.
C – Regarding betrothal, from where do we know to say that betrothal can take effect on half a woman? First of all, in my humble opinion that has no meaning—a woman is a discrete, indivisible concept, and so too with an offering. And precisely because of this there exists the concept that betrothal and sanctity “spread”—meaning, since a woman and an offering are entities of the whole body, and he mentioned only half, the betrothal and sanctity spread through the whole body, because only that way do betrothal and sanctity make sense. (And again, I don’t really understand this part either, since after all that was not his intention.)
And proof of this is from Tosafot there, who wrote to distinguish between betrothal in the language of sanctity and betrothal in the language of erusin. It must be that the rule of “it spreads” depends on the wording—that is, this is a wording whose meaning is full betrothal of the whole woman, because we find this in consecration, and the man used the language of consecration, which also applies to a woman in the essential sense, as explained there on 2b, of the act of betrothal. (And I am fully aware that in Birkat Shmuel there he writes in the name of Rabbi Chaim that there are two ways in betrothal, but to me it is astonishing to say that there are two ways in a particular act of acquisition—“God has spoken once, two things have I heard”?)
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A. He is using the mechanism of retroactive clarification, but that mechanism works only in that form. Just as when he uses the mechanism of a condition, he has no choice but to use it as Jewish law defines it. Therefore, even though in practice he does not want all the produce to become forbidden, or the woman to be betrothed to him with obligations of sustenance, clothing, and marital relations, that is what follows from that mechanism. Without that, you cannot make a condition or use retroactive clarification.
Let me explain more. Suppose a man wants to create a betrothal on condition that there will be no sustenance, clothing, or marital relations. Jewish law tells him that the only way to do this is to apply the legal effect completely, and make a condition that will uproot it if the condition fails. Only that is how one can create a legal effect conditionally. So when he uses a condition, that is what he is doing. Consequently, when the condition was not done according to Jewish law, the condition is void and the act remains valid. And the same applies to retroactive clarification.
B. Indeed, and the same is true of Rabbenu Tam in Tosafot Yeshanim there in Ketubot. This approach is very difficult and does not stand the test of the facts. Go ask people what they mean, and you will see that those medieval and later authorities are mistaken. So in my opinion Rabbi Isaac is right. It is no coincidence that Rabbi Shimon Shkop and Rabbi Chaim, and yeshivot generally, usually assume his approach. See further details in Beit Yishai, siman 35, and more.
C. According to your approach, the comparison between betrothal and sanctity in an animal is unclear. Therefore I think the explanation is that the betrothal really does take effect on half a woman, but then it spreads to all of her. And the distinction in wording is not a merely verbal distinction; rather, each wording creates the betrothal in a different way. Rabbi Gustman elaborated wonderfully on this in his lectures on Kiddushin, and from there you will understand how there can be several mechanisms for creating betrothal.
A – I just didn’t understand. What kind of idiot wants all his produce to become forbidden as doubtful terumah because of some halakhic mechanism?
Maybe what you mean (in answer A) is that since he uses this mechanism, that is what happens automatically. If so, I still don’t understand—surely if we go out and ask people, that is not what they mean. And not only in the 21st century.
B – What is wrong with Rashba?
If I’m being a pest… no need to answer.
I explained, and I’m having trouble understanding what the problem is. The matter is completely simple. Suppose you want to earn money and go to work somewhere. In order to work there, you have to wear clothes that make you itch. You put them on, but not in the right way. You didn’t get the job. So why did you agree to itch? You didn’t agree to wear the clothes for that purpose, did you? Maybe you should sue the employer for damages? Of course you wouldn’t win. That is the nature of this job. It requires those clothes.
What is wrong with Rashba is that it is not logical and does not fit the facts. It is simply not true that people intend to prefer the act even without the condition, certainly not in all the cases that appear in Jewish law. There are situations where, if the condition is not fulfilled, they do not want the whole business at all. Would the laws of conditions then not apply there? We have found no hint of that in any Talmudic passage. On the contrary, there were places where we could have explained it that way, and nobody does.
Jewish law is not clothes that one puts on. There is no ontological concept here of the act of creating terumah taking effect in such a way that the golem rises against its creator and the axe against the one who hews with it. There is intention and its practical expression through speech, and nothing more. And that intention is mistaken intention, because any person we ask about the consequences would reject them completely. If so, there is no intention here. And if so, there is no legal effect. And if the honored Rabbi wishes, there are no clothes, no job, and no itching either—it’s all according to the parable.
Regarding Rashba,
it seems to me that even if it does not work out in every case, if it works in a large portion of them then that is how the rule gets fixed in law, and they apply it even to the margins.
If you want to insist and raise forced objections—enjoy. My own tradition is that one should give a forced answer rather than ask a forced question. Don’t make assumptions and nothing will be difficult for you.
I don’t understand. Does Jewish law operate like an ontological world????????????
Yes. See my article “What Is a Legal Effect,” and many others..
Now I understand. Thank you very much.
It really was bothering me, and I didn’t mean to nag.
I’ll look at the article. Happy holiday.
Thank you very much for the answer, and more power to you for mentioning Tosafot’s comments, but…
A – I didn’t really understand. Why would a person want all his produce to become forbidden as doubtful terumah? We are like a thousand witnesses that he does not want that. So what if that is the halakhic mechanism? Why assume that a person wants what he did not plan? (By the way, Rabbi Shimon Shkop in Sha'arei Yosher 7:8 really asks this in explaining Tosafot’s words, and compares it to digging a pit based on his principle there that a condition is a separate matter, and the act stands on its own and takes effect on all sides, in yeshiva language. But the comparison to digging a pit is unclear, because at the end of the day he still lacks intention.)