QUESTION: The Gemara discusses situations in which a man gives a Get to his wife and states that it should take effect only if a certain condition is fulfilled. The husband then fulfills that condition involuntarily, with no intention to do so.

The Gemara first mentions a case in which a man gave a Get to his wife and stated that it should take effect only if he does not return within thirty days. At the end of thirty days, when he attempted to return he became stranded on the other side of the river because the river ferry did not arrive. He yelled from across the river that he had returned. Shmuel ruled that the Get takes effect because the husband indeed did not return within thirty days and thus the condition was fulfilled. Although his lack of return (the fulfillment of the condition) occurred involuntarily, against his will, there is a principle that "Ein Ones b'Gitin," the involuntary fulfillment of a condition is considered fulfillment of the condition with regard to a Get (in a case where it is common for a person to be detained in such a manner; see Rashi).

The Gemara relates another incident involving a man and wife who became involved in a quarrel. The man gave a Get to his wife and stated that it should take effect only on condition that he does not appease her within thirty days. He attempted to make peace with her, but she was unwilling to be appeased. The Gemara says that if the Halachah is "Ein Ones b'Gitin," the Get should take effect because the condition (of not appeasing his wife) was fulfilled, albeit involuntarily. Although it was not his fault that he was unable to fulfill the condition, the Get nevertheless takes effect because "Ein Ones b'Gitin."

RASHI writes that in the second case, the husband gave the Get on condition that if he does not appease his wife within thirty days, it should take effect retroactively from the time he gave it to her. How does Rashi know that the husband stipulated that the Get should take effect retroactively if the condition is fulfilled? Perhaps the husband meant only that it should take effect after thirty days have passed. Moreover, even if Rashi has some source that the husband intended that the Get should take effect retroactively, why does Rashi not give the same explanation in the first case of the Gemara? In the case of a husband who gives a Get to his wife and states that it should take effect only if he does not return within thirty days, Rashi should explain that the Get takes effect retroactively if the husband does not return within thirty days. (MAHARAM SHIF)

ANSWER: The Gemara later (34a) asks an obvious question on the law in the case of the man who could not cross the river to return to his wife within thirty days: Why is the husband unable to annul the Get by simply saying that "the Get is hereby annulled"? Since the husband clearly does not want the Get to take effect (after all, he is yelling that he has returned), and since the Get has not yet taken effect, it should be within the ability of the husband to annul the Get so that it not take effect.

The Gemara there answers that if the husband would say explicitly that he annuls the Get, indeed it would be annulled. In this case, the husband attempted to make the Get ineffective by claiming that he did not fulfill the condition (of not returning within thirty days). He was mistaken in that regard, and he has no claim to invalidate the Get for that reason.

However, the same question may be asked on the law in the second case the Gemara mentions. In the case of the husband who failed to appease his wife, why does the Gemara rule that the Get takes effect? The Beis Din should have told the husband to go and annul the Get as soon as he saw that he was unable to appease his wife. In that case, the husband was not trying to claim that the Get should be invalid only because he did not fulfill the condition.

Rashi therefore explains that the Get in the second case was written to take effect retroactively. Accordingly, the husband did not have the ability to annul it since, when it takes effect, it takes effect from the time he gave it (which was long before his attempt to annul it).

QUESTION: The Beraisa records a dispute about the law in the case of a person who keeps the Ma'aser Ani he separated from his produce as payment for a loan that he made to a poor person in the presence of Beis Din. The Tana Kama rules that he must separate Ma'aser from his produce "b'Chezkas Aniyei Yisrael (Jewish poor people)" and then he may keep it for himself. Rebbi Achi disagrees and rules that he must separate it "b'Chezkas Aniyei Olam (the poor people of the world)." The Gemara explains that the practical difference between the two opinions is whether one may separate the Ma'aser for poor Kusim or whether he must separate it only for poor Jews.

RASHI (Aniyei Kusim) explains that according to the Tana Kama, if there are no poor Jews in the city but only poor Kusim, one may not separate the Ma'aser Ani for the Kusim because they are not considered Jews and are not entitled to Ma'aser Ani. Rather, he should separate the Ma'aser Ani for the Jewish poor wherever they might be.

TOSFOS (DH Ika Beinaihu) disagrees with Rashi. He asks that according to Rashi, what practical difference is the Gemara expressing? According to Rashi, even if there are only Kusim in the city, the Ma'aser Ani still is fit for poor Jews elsewhere in the world, and thus even the Tana Kama agrees that the owner could separate, and collect his loan from, Ma'aser Ani in a place where there are only poor Kusim and no poor Jews.

Tosfos' question may be expressed in a more basic manner. According to Rashi, why does the person need to separate Ma'aser Ani for the sake of ("b'Chezkas") any Aniyim altogether? The Beraisa cannot mean that every time a person separates Ma'aser Ani, he must separate it "b'Chezkas Aniyei Yisrael" according to the Tana Kama, because if that were so the Beraisa would not have taught this requirement with regard to the specific case of the repayment of a loan, but it would have taught this requirement with regard to all cases of separating Ma'aser Ani. Accordingly, even when a person collects his loan from Ma'aser Ani, he simply should separate Ma'aser Ani and it will automatically become the property of Aniyim, and then he may collect it as payment for his loan because of the enactment of Beis Din (see Rashi, DH 30a DH Eino Tzarich).

ANSWER: The enactment of Beis Din, as Rashi explains, makes all of the Aniyim in the world responsible for the loan of every other Ani, since it is in their best interest that people be interested in loaning them money with the knowledge that they may collect the loan from Ma'aser Ani. Therefore, the lender has the right to collect his loan from the collective money of the Aniyim, even though he did not lend money to them collectively.

However, there is another factor involved when one collects Ma'aser Ani as repayment for a loan before he actually gives the Ma'aser Ani to an Ani. As Rashi explains (30a, DH v'Af Al Gav), besides the monetary issue there is a Halachic issue: the Torah requires that a person do an act of "Nesinah" (giving) and give his Terumah to a Kohen and his Ma'aser Ani to a poor person. If he keeps the Ma'aser Ani for himself as repayment for his loan, he does not fulfill the act of giving it to an Ani (even if he is entitled to keep it for himself).

In the case of a landowner who lent money to an Ani outside of Beis Din, when the owner transfers ownership of the Ma'aser Ani to an Ani by way of a third party ("Mezakeh Al Yedei Acher"), by way of "Makarei Kehunah," or by ay of "Asah she'Einah Zocheh k'Zocheh," he not only gains the monetary right to collect his debt from Ma'aser Ani, he also fulfills the Mitzvah of Nesinah, since the Ani acquired the Ma'aser Ani before the owner claimed it as repayment for his loan. However, in a case in which the owner keeps for himself the Ma'aser Ani for a loan made in front of Beis Din, the Gemara does not specify that the owner must be Mezakeh the rights to the Ma'aser Ani to any particular person before he retains it as payment for the loan. In such a case, how does he fulfill the Mitzvah of Nesinah?

Because of this question, Rashi explains that when the Beraisa states that he must separate the Ma'aser Ani "b'Chezkas Aniyim" (or separate Terumah "b'Chezkas Shevet Levi"), it means that he must indeed be Mezakeh the Ma'aser Ani to Aniyim before he collects it for his loan, even though the loan was made in front of Beis Din. When Rashi writes that the owner separates the Ma'aser for the needs of the Aniyim of the city, he means that the owner must be Mezakeh to them "Al Yedei Acher," or they must be "Makarei Kehunah," or that he must designate them to be the ones who are "she'Eino Zocheh k'Zocheh." Support for this understanding is found in Rashi earlier (30a, DH Oso ha'Shevet), where Rashi explains that when a person lends money to a Kohen or Levi in front of Beis Din and the borrower dies, the lender separates Terumah or Ma'aser for the closest Kohen- or Levi-relative of the borrower. He does not simply collect from the Terumah or Ma'aser without first specifying to whom the Terumah or Ma'aser belongs.

This approach also answers the question of Tosfos, who asks that according to Rashi the practical difference between the Tana Kama and Rebbi Achi exists where a person separates Ma'aser Ani for Aniyim who are Kusim. According to the Tana Kama, he has not collected properly from the Ma'aser Ani. Tosfos, however, maintains that when one loans to an Ani in front of Beis Din, he is not required to be Mezakeh the Ma'aser to the Ani before he collects his loan from it; the Rabanan exempted him even from the Mitzvah of Nesinah. (PNEI YEHOSHUA)

However, according to this explanation, why does Rashi not state explicitly that the practical difference between the Tana Kama and Rebbi Achi is that according to the Tana Kama, one who separates Ma'aser for Aniyei Kusim may not collect the loan from the Ma'aser? Why does Rashi write that the practical difference is that where there are no Jewish Aniyim in the city, one must separate Ma'aser Ani for outsiders instead of for local Aniyim (Kusim)?

The answer might be that even when a person separates Ma'aser Ani for a Kusi, the Kusi does not become the owner of the Ma'aser Ani since a Kusi has no rights to receive (and own) Ma'aser Ani (according to the Tana Kama who maintains "Gerei Arayos Hem"). The Ma'aser cannot become the property of the Kusi through "Makarim" or through "Asu she'Eino Zocheh k'Zocheh," or even through "Mezakeh Al Yedei Acher" (since the Torah prohibits one from giving Ma'aser Ani to a Kusi who is an Ani). The Ma'aser Ani still belongs to the Aniyim of Yisrael, and therefore the owner may collect from it in accordance with the Takanas Chachamim. The only thing he has done wrong is that he has forfeited the Mitzvah of Nesinah, since he did not give the Ma'aser Ani to an Ani before he collected from it. This is why Rashi explains that the practical difference between the Tana Kama and Rebbi Achi involves only how to separate the Ma'aser Ani l'Chatchilah before collecting from it.

QUESTION: The Beraisa teaches that if a Yisrael tells a Levi that he is holding Ma'aser on behalf of the Levi and he wishes to purchase it from the Levi, and he pays the Levi for it, the Yisrael may use the Ma'aser for his own personal use. He does not have to be concerned that the Levi made it into Terumas Ma'aser (after the sale) and may be eaten only by Kohanim.

However, if the Yisrael tells the Levi how much Ma'aser he is holding for him and then he purchases it, he may not eat the Ma'aser. He must take into account the possibility that the Levi made it Terumas Ma'aser. RASHI explains that the concern is that the Levi made it into Terumas Ma'aser after the sale.

How can the Levi make the produce into Terumas Ma'aser after he sells it? After he sells it, he no longer has any rights over it! Rashi explains that the sale was not binding since the Yisrael cannot acquire it from the Levi before the Levi himself acquires it through Meshichah or some other formal act of Kinyan. However, this explanation seems self-contradictory. If the Levi did not yet formally acquire the Ma'aser, then just as he cannot sell it to the Yisrael, he also cannot make it into Terumas Ma'aser!

ANSWER: The RAMBAN explains in the name of the Yerushalmi that when the Yisrael tells the Levi that he is holding Ma'aser on behalf of the Levi, it is as if he gives the Levi permission to use that Ma'aser for separating Terumas Ma'aser. The RASHBA adds that since one who promises to give his friend a small gift (Matanah Mu'etes) may not retract it (Bava Metzia 49a), from the moment that a Yisrael says that he is going to give the Tovas Hana'ah to the Levi (i.e. he is going to use his right of Tovas Hana'ah to give the Ma'aser to this specific Levi), it is as if he has given permission to the Levi to separate Terumas Ma'aser (because we assume that the Levi eventually will receive this Ma'aser, as Rashi there writes in DH Mishum Hachi).

The Acharonim ask, however, that aside from the issue of ownership of Ma'aser (i.e. the Ma'aser must be given to Leviyim because it is the property of Shevet Levi), there is also a Mitzvah d'Oraisa for a Yisrael to give ("Nesinah") the Ma'aser to a specific Levi (as mentioned in the previous Insight). When the Yisrael merely promises to give the Levi this Ma'aser but has not yet given it, how has he fulfilled the Mitzvah of Nesinah? When the Levi separates Terumas Ma'aser from that Ma'aser, he is merely utilizing the owner's permission to separate Terumas Ma'aser from what still belongs to the owner; the Levi himself, though, has not yet received the Ma'aser!

1. The BI'UR on the MAHARAM SHIF suggests that the Yisrael indeed does not fulfill the Mitzvah of Nesinah in this situation.

2. The HE'OROS B'MASECHES GITIN suggests that as long as the owner gives the Levi the right to use the Ma'aser, he is considered to have performed Nesinah. The Levi does not actually have to own the Ma'aser. (According to this logic, when a person retains Ma'aser as payment for a loan made to a Levi, he should also fulfill the Mitzvah of Nesinah since the Levi benefits from it by paying off his debt with that Ma'aser. However, this is not consistent with the explanation given in the previous Insight with regard to a person who lends money to an Ani in front of Beis Din.)

3. Perhaps the question is not a question in the first place. The Yisrael, who now has Terumas Ma'aser in his possession, still can give the Ma'aser to the Levi even after the Levi has made it into Terumas Ma'aser (and he may allow the Levi to give it then to the Kohen of his choice) and he thereby fulfills the Mitzvah of Nesinah. (Perhaps he fulfills the Mitzvah of Nesinah even by giving it directly to a Kohen at the Levi's request, through the mechanism of "Arev"; see Kidushin 7a.) (M. Kornfeld)