1) A CONDITION WHICH IS BEYOND ONE'S ABILITY TO FULFILL

QUESTION: In the Mishnah, Raban Shimon ben Gamliel teaches that if a man divorces his wife on condition that she give him back his coat, and the coat is lost, she may fulfill the condition by returning to him instead the value of the coat. The Gemara (74b) explains that the Chachamim disagree with Raban Shimon ben Gamliel and rule that if the coat is lost, the Get cannot take effect.

It is evident from here that when a woman does not fulfill the condition which the man stipulated when he gave her the Get -- even if it is beyond her ability to fulfill it -- the Get does not take effect. This is also evident from the next Mishnah (75b) which teaches that when a man divorces his wife on condition that she nurse their son for two years, and the child dies within two years, the Chachamim rule that the Get is not valid. Similarly, the Gemara (end of 74b) implies that if a husband stipulates that a Get should take effect only if his wife pays him 200 Zuz, and when she comes to pay him he refuses to accept the money, if "Nesinah Ba'al Korchah" (giving something to someone against his will) is not considered a "Nesinah" the Get is not valid.

All of these sources contradict the Gemara in Kesuvos (3a) which says that according to some opinions, Rava rules "Yesh Ones b'Gitin" -- if a man gives his wife a Get on condition that it should take effect only if he does not return within thirty days, and then he is prevented from returning due to circumstances beyond his control, the Get is not valid because he really wanted to return (and thereby annul the Get) but was unable to do so. If the Get is valid even though the condition was not actually fulfilled, why is the woman not divorced in the case of the lost coat? Since she wanted to return the coat but was unable to (because it was lost), the Get should take effect! (RE'AH in Shitah Mekubetzes to Kesuvos 2b; RITVA to Gitin 30a)

ANSWERS:

(a) The RE'AH and RITVA answer that every condition has two sides: one side which will cause the Kinyan to take effect ("Kiyum" of the Tenai), and another side which will annul the Kinyan ("Bitul" of the Tenai). When Rava says that an Ones (circumstance beyond one's control) affects a Tenai that was made in a Get, he means that a Kiyum of a Tenai through Ones is not considered a Kiyum. For example, if a man stipulates that the Get will take effect if he is away for thirty days, being away for thirty days is a Kiyum of the Tenai since it causes the Get to take effect. If the husband is kept away for thirty days against his will, it is not considered a Kiyum of the Tenai and the Get does not take effect.

In contrast, if the Bitul of the Tenai was done b'Ones, it remains a Bitul of the Tenai. That is why -- when the woman does not return the coat to her husband even though she was unable to return it -- the condition that makes the Get take effect has not been fulfilled and the Get is not valid. Similarly, if she does not pay him money because he refuses to take it, or she does not nurse his child because the child died, the Get is not valid since she has not fulfilled the Tenai. The logic behind this is obvious: an Ones only takes away a person's action; it does not create an action where there was none. Therefore, an Ones can remove the Kiyum of the Tenai to prevent the Get from taking effect, but if there was no Kiyum of the Tenai, even the Ones cannot create a Kiyum of the Tenai.

(b) The KEHILOS YAKOV (Kesuvos 1:2) shows that the opinion of the Re'ah is based on the Yerushalmi (Gitin 7:6). However, the RAN (Kidushin 56a) understands the Yerushalmi differently.

Based on the Ran's interpretation, the Kehilos Yakov suggests another answer to the contradiction between the Gemaras here and the Gemara in Kesuvos. The Ran understands that "Yesh Ones b'Gitin" applies only to a Tenai which was made by the husband and which depended on his own actions. Since he does not want to be forced into a Kinyan, he certainly does not want the Kinyan to take effect if he is Mekayem or Mevatel the Tenai against his will, due to circumstances beyond his control. In the Mishnayos here, however, the husband made a condition that depended upon the actions of his wife. He wanted his wife to return his coat, or to give him money, or to nurse his child. He does not care whether his wife did not do these actions because she chose not to or because she was unable to do them. If she fails, for any reason, to do for him what he wants, he does not want the Get to take effect. Therefore, the rules of Ones will not affect the Get in these cases.

2) THE PRACTICAL DIFFERENCES FOR WHEN A CONDITIONAL GET OR KIDUSHIN TAKES EFFECT

QUESTION: The Gemara records a dispute between Rav Yehudah and Rav Huna with regard to whether a Get or Kidushin given with a condition with the words "Al Menas" ("on condition that...") takes effect retroactively from the time the Get or Kidushin was given, or whether the Get or Kidushin takes effect only at the moment the Tenai is fulfilled.

In the case of a Get, the Gemara says that the practical difference between the two opinions is when the Get was destroyed before the Tenai was fulfilled. Rav Huna, who says that it takes effect retroactively, will rule that the Get is valid in such a case, while Rav Yehudah will rule that it is not valid. In the case of Kidushin, the Gemara says that the practical difference between the two opinions arises when the woman who received the conditional Kidushin accepted another Kidushin from a second man after she received the first Kidushin but before the Tenai was fulfilled. According to Rav Huna, who says that the first Kidushin takes effect retroactively when the condition is fulfilled, the second Kidushin is not valid at all. According to Rav Yehudah, the second Kidushin is valid and the first one is not.

Why does the Gemara give two different examples of the practical difference between Rav Yehudah and Rav Huna, in the cases of Gerushin and Kidushin? In both Gerushin and Kidushin, either one of the practical differences seems to apply.

Perhaps the Gemara does not suggest that the practical difference in the case of Kidushin given with a condition is the case of a Shtar Kidushin which was destroyed, because that difference would apply only to Kidushin performed with a Shtar. Most acts of Kidushin, however, are performed with money (Kesef), and the Kinyan Kesef can take effect at a later date even if the original money is lost (Kidushin 59a). Why, though, does the Gemara not suggest that in the case of a Get given with a condition that the practical difference between the two opinions is where the woman who received the Get accepts Kidushin from another man before the condition in the Get is fulfilled?

ANSWERS:

(a) TOSFOS (DH Ika Beinaihu) writes that the Gemara indeed could have suggested this case as a practical difference for Gerushin as well.

Tosfos apparently understands that the loss of the Shtar is a more common occurrence in the case of a Get than a woman's acceptance of another Kidushin before the condition of the Get is fulfilled.

(b) TOSFOS in Kidushin (60b, DH Ika) and the TOSFOS HA'ROSH here explain that even according to Rav Yehudah, it is not clear that the Get takes effect only when the condition is fulfilled. Although he argues with Rav Huna who says that the Get or Kidushin takes effect retroactively, he does not rule out this possibility entirely. He considers the Get or the Kidushin to take effect mi'Safek, until the time that the condition is fulfilled. (See also Tosfos to 74b, DH ad'Miflegi.)

Accordingly, in the case of Kidushin, when the woman accepts a second Kidushin before the condition of the first is fulfilled, Rav Huna and Rav Yehudah indeed will argue. Rav Huna will say that the second Kidushin is definitely not valid, and the woman does not need a Get from the second man, while Rav Yehudah will require a Get out of doubt, mi'Safek. However, with regard to Gitin, both Rav Huna and Rav Yehudah will require the second man to give her a Get. Rav Huna will require a Get from the second man b'Vadai, since the Get took effect retroactively, while Rav Yehudah will require a Get from the second man only mi'Safek. Therefore, the Gemara does not suggest this as a practical difference with regard to Gitin. (This is the way the MAHARSHA in Kidushin explains Tosfos.)

(c) RASHI seems to address the question in Kidushin (60b, DH Mai Beinaihu) where he writes that the reason the Gemara asks for the practical difference between the Amora'im with regard to Get is that there seems to be no difference between Rav Huna and Rav Yehudah, since even Rav Huna agrees that the woman is not allowed to accept Kidushin l'Chatchilah until the condition of the Get is fulfilled (since she does not yet know that the Get is valid).

Rashi understands that "Pashtah Yadah" in the Gemara does not mean that b'Di'eved the woman accepted Kidushin from a second man. Rather, it means that the woman is permitted l'Chatchilah to accept a second Kidushin. (The reason the Gemara says "Pashtah Yadah" in the past tense (an implication that it is only b'Di'eved) might be to stress that according to Rav Huna, the second Kidushin is not valid even b'Di'eved.)

Why, then, does the Gemara say with regard to Kidushin that accepting a second Kidushin is a practical difference between Rav Yehudah and Rav Huna? The answer is that according to Rav Yehudah there is no question that the first Kidushin has not yet taken effect, since the condition has not yet been fulfilled. Therefore, the woman is permitted to accept a second Kidushin l'Chatchilah. Rav Huna, in contrast, would not allow her to accept a second Kidushin because she might be married to the first man retroactively (if the condition is later fulfilled).

(The RASHASH in fact asks why the Gemara gives the practical difference of a woman who accepted Kidushin, b'Di'eved, in the past tense, and not that she may accept Kidushin, implying l'Chatchilah. According to the approach mentioned here, the Gemara's intention indeed may be that that she may accept Kidushin l'Chatchilah.)

74b----------------------------------------74b

3) BREAKING DOWN THE DOOR

QUESTION: The Gemara cites the Mishnah in Erchin (31b) which describes Hillel's enactment with regard to the law of buying back a house in a walled city. One who sells a house in a walled city may redeem his house from the buyer for up to one year after the sale (Vayikra 25:29-30). During that year, the buyer of the house must return the house to the seller should the seller offer to refund the money. If the seller does not redeem his house within the first year, the buyer may keep it and the seller loses it forever. At one point, it happened that the buyers of such houses would hide themselves near the end of the year so that the original owners would not be able to find them in order to redeem their houses. Hillel enacted that when the buyer of a house in a walled city evades the original owner in order to prevent him from buying back his house near the end of the year after the original sale, the original owner may deposit the money in an office (in Beis Din), and then "he (the original owner) shall break down the door and enter" the house. That is, Hillel enacted that the original owner could redeem his house against the will of the occupant.

Why does the Mishnah there use the odd statement of "break down the door"? The Mishnah does not say that he "may" break down the door, which would have implied that he is permitted to reclaim possession of his house by force if necessary. Rather, the Mishnah implies that part of Hillel's enactment is that the owner is supposed to break down the door. What is the point of breaking down the door of the house?

ANSWER: The ROGATCHOVER GA'ON explains this enigmatic statement of the Mishnah as follows:

The Gemara later discusses the question of whether giving an object to a person against his will constitutes a valid act of "giving." For example, if a man says to his wife, "I consent to divorce you, but only on condition that you give me 200 Shekels," and he subsequently refuses to accept the payment because he wants to invalidate the divorce, may she give the money to him against his will? Is such an act of "giving" considered a valid fulfillment of the condition?

The RASHBA (Gitin 75a) asserts that even if payment by coercion is acceptable, it can be acceptable only as an act of giving, but the other party will not acquire what was given. That is, coercion will help only when it is not necessary for the recipient to take acquisition of what has been given. One cannot be forced to receive an object (i.e. to acquire it through a Kinyan) against his will; the recipient (such as the divorcing husband) will not acquire the money that has been thrust upon him. Nevertheless, it can be said that the woman has "given" him the money and fulfilled the condition, since making something available for another person to take is also defined as "giving." In the case of the divorce, the Rashba explains, the condition was for the woman "to give" 200 Shekels to the man. To fulfill this condition, it suffices for her to make the money available to her husband. Even though the money does not become the property of the husband (that is, he did not "receive" it and it did not become his property), nevertheless by making it available to him the woman has "given" it to him.

Accordingly, after Hillel's enactment to pay the buyer of the house against his will (which the Gemara compares to the case of the divorce on condition), the money is considered as having been "given" by the original owner when he throws it into the appointed office, but the recipient (the one who bought the house) does not own that money as long as he does not consent to receive it.

2. Once we understand that the act of giving something against the recipient's will qualifies only as an act of giving on the part of the giver but not as an act of receiving on the part of the recipient, we must address another question: When the Torah says that the original owner of the house may redeem his house within the first year after the sale, how exactly does this redemption work?

The redemption of a house in a walled city may be understood in two different ways:

The first way in which the redemption might work is that the Torah enforces an implicit stipulation in the sale of a house in a walled city. At the time of the sale, the buyer agrees to the unspoken stipulation that the house is not considered to be actually sold to him until one year passes (without the seller refunding the money). At that point, the sale retroactively takes effect. However, if the seller does refund the money during the year, then the buyer's money -- which was in the possession of the seller for several days or months -- is considered to have been merely a loan from the "buyer" to the "seller." This is the approach of the NESIVOS HA'MISHPAT (CM 55:1).

The second way in which the redemption might work is that the original sale takes effect immediately, like any other sale. However, the Torah gives the seller the right to repurchase the house by refunding the money to the buyer within a year. The original sale was unconditionally valid, but the Torah imposes upon the buyer the condition that he must nullify the sale and return the house in the event that the original owner wants to buy back the house. This is the approach of the KETZOS HA'CHOSHEN (CM 55:1).

(The Gemara in Erchin (31a) lends strong support to the first interpretation, that no new "repurchasing" has taken place. The Gemara there asserts that when the seller repays the purchaser and takes back his house, it is considered as though he has taken a one-year loan of money from the purchaser. The Gemara explains that had the Torah not specifically allowed it, it would have been forbidden for the purchaser to be given sole use of the house during that year due to the prohibition of Ribis (interest), since he would have benefited from the seller's possessions in return for the loan that he gave. However, the RASHBA here (75a, DH Temiyah) clearly seems to favor the second approach, that the sale is final and that the seller "buys" back his house upon giving its value to the purchaser. He infers this from the fact that the verse refers to the transaction as a "sale": "v'Chi Yimkor..." (Vayikra 25:29). See Insights to Erchin 31:2.)

The Rogatchover Ga'on adds his own understanding to the nature of the reclamation of a sold house in a walled city. He explains, like the Ketzos ha'Choshen, that an unconditional sale takes effect at the time of the original sale of the house. However, when the original owner wants to repurchase his house, the sale is not annulled retroactively (as the Ketzos ha'Choshen explains), but rather the original owner must perform a new act of Kinyan in order to acquire the house.

Accordingly, the original owner must do two things in order to reclaim his house: he must pay back the money that he received from the buyer, and he must make the house his property again through a new act of Kinyan.

Depositing the money in the designated office against the will of the buyer suffices to fulfill the requirement to "give" back the money to the buyer (the first condition that the original owner must fulfill), because giving forcefully is classified as "giving." However, based on the Rashba's premise, the money does not come into the possession of the buyer of the house; he has not "received" it. Therefore, the payment cannot constitute a proper Kinyan Kesef, a Kinyan of "payment of money," to allow the original owner to effect acquisition of the property (the second condition). In order for this Kinyan to work, the money must be received by the seller, and not just made available to him. Only when one party receives the money does the other party receive the land in return.

Hence, in order for the original owner to reclaim his house, he must still perform a legal act of acquisition on the property before the end of year. Until he performs that act of Kinyan, the house does not become his again. The Kinyanim of "payment," "barter," and "transferal of deed" are not applicable in this case, because the other party in the sale refuses to cooperate. The only option left is for the original owner to make a Kinyan of Chazakah on his house -- by making an improvement or change in the state of the property. The Mishnah in Bava Basra (42a) describes "locking a door or breaking down a locked door" as an example of such a Chazakah!

This is what the Mishnah means when it states that the process by which the original owner reclaims his house is not complete by merely depositing the money; he must also "break down the door" to his house. He must break down the door in order to make a Kinyan of Chazakah on the house. Only by making a formal act of acquisition (Kinyan) before the end of the year will the house return to his possession. (TZAFNAS PA'ANEACH, Kuntrus Hashlamah, page 4; see also ISHIM V'SHITOS by RAV SHLOMO YOSEF ZEVIN, in the section describing the insights of the Rogatchover Ga'on, 2:15. The same explanation was suggested by the BRISKER RAV (cited by Rav Shmuel Rozovsky in his Shi'urim on Kesuvos 3a) and the EINEI SHMUEL to Erchin 31a.)

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