[53a - 44 lines; 53b - 47 lines]

1)[line 1]יש זיקהYESH ZIKAH

See Background to Yevamos 51:1.

2)[line 2]ורבנן סברי אין זיקהV'RABANAN SAVREI EIN ZIKAH

See Background to Yevamos 51:1.

3)[line 13]תנאי כפולTENAI KAFUL

(a)It is possible to make a condition in all Kinyanim (acquisitions; the word Kinyan connotes a change of ownership or status, such as sales, gifts, Gitin and Kidushin) such that the Kinyan will not take effect unless one or both of the parties involved fulfill the specified condition. However, the Torah established that not all conditional statements are valid. Rather, the wording of the conditional statement must follow a specific formulation (Kidushin 61a):

(b)According to those who rule that a Tenai Kaful is required, it must be double-sided ("Tenai Kaful"; i.e. both the positive and the negative sides of the condition must be explicitly stated) and the positive side must precede the negative side. For example, "If you do such and such, the Kinyan will take effect; and if not, the Kinyan will not take effect. (There is a Tana who argues, ibid., and does not require that a conditional statement be double-sided, since the inverse may be inferred from the first half of the statement — mi'Clal Hen Atah Shome'a Lav.) Another requirement is that statement of the condition must precede the statement of the action.

(c)The format for conditional statements is learned from the condition that Moshe Rabeinu made with the men of the tribes of Gad and Reuven. They received portions in the land of Ever ha'Yarden (modern-day Jordan) on condition that they fight alongside the other tribes in the wars of conquest of Eretz Yisrael proper (Kidushin 61a).

(d)There are Rishonim who write that even according to the opinion that a double-sided statement is necessary, it is not necessary under all circumstances:

1.According to some, if the words "Al Menas" ("on the condition that...") are included in the words of the conditional statement, it is considered as if the statement is double-sided, and the second side need not be stated explicitly (RAMBAM Hilchos Ishus 6:17).

2.There are those who are of the opinion that the rules governing the working of a Tenai only apply to Gitin and Kidushin, but not to sales and gifts (see RAMBAM and RA'AVAD Hilchos Zechiyah u'Matanah 3:8).

(e)Even if the wording of the conditional statement is properly formulated, there are still certain instances in which a Tenai will not work. For example, the condition and the action cannot affect the same subject ("Tenai u'Ma'aseh b'Davar Echad," Gitin 75a); the condition must be physically possible to perform (ibid. 84a); and the condition must not be dependent upon the concept of Bereirah (according to the opinion that rules Ein Bereirah — Gitin 25b, see Background to Beitzah 37:9). There are also rules as to which types of actions can be qualified by a Tenai. A Tenai can only be stipulated for the types of actions which one is able to perform through an agent (a Shali'ach), such as the purchase or sale of land or other objects, or such as effecting a marriage or divorce (Kidushin or Gerushin). When performing actions such as Chalitzah, which cannot be performed through a Shali'ach, a Tenai cannot be stipulated.

(f)If the Tenai is not formulated properly, or if it does not fulfill one of the above points, the Tenai is not valid and the action (that is the Kinyan) takes effect even if the parties do not fulfill the specified conditions. That is, the Tenai is disregarded.

4)[line 29]חליצה פסולה צריכה לחזר על כל האחיןCHALITZAH PESULAH TZERICHAH L'CHAZER AL KOL HA'ACHIN

See Background to Yevamos 51:2.

5)[line 38]כולה ביתא בלאו קאיKULAH BEISA B'LAV KAI

According to Rebbi Yochanan, after one brother performs Chalitzah, all of his dead brother's wives are forbidden to him and the other brothers by the Lav of "Lo Yivneh Es Beis Achiv" - "He shall not build his brother's house" (Devarim 25:9). The original Lav and Kares that prohibit one's brother's wife, "Ervas Eshes Achicha Lo Segaleh" (Vayikra 18:16), is removed. According to Reish Lakish, this Lav only applies to the Choletz and the Chalutzah. The original Lav and Kares still prohibit all of the dead brother's other wives to the Choletz, and all of the wives to the other brothers (Yevamos 10b).

53b----------------------------------------53b

PEREK #6 HA'BA AL YEVIMTO

6)[line 30]הוא אנוס והיא לא אנוסהHU ANUS, V'HI LO ANUSAH- he performed Yibum against his will but not against her will. (The Mishnah could just as well have left out the words "Hi Lo Anusah" — it was not against her will — since even if it was against both of their wills the Yibum would be valid. However, since in the earlier cases of the Mishnah the intentions of the man and those of the woman were not the same, this part of the Mishnah also discusses a situation in which their intentions were not the same — TOSFOS DH Hu; see Tosfos for a second approach to this question.)

7)[line 36]ונתינהV'NESINAH (NESINIM)

(a)In the times of Yehoshua, the Giv'onim (members of the Chivi nation, one of the seven nations whom the Jewish people were commanded to destroy upon entering Eretz Yisrael) came and presented themselves before Yehoshua as if they came from a far-off land. Since they claimed not to be residents of Eretz Yisrael, they requested to be converted and to make peace with the Jewish people. After Yehoshua agreed to accept them, it was discovered that they were one of the seven prohibited nations. Having already accepted them, Yehoshua did not want to break his oath and covenant with them (even though they tricked him and the oath was uttered in error) so as not to cause a Chilul HaSh-m. Yehoshua accepted them and appointed them to be woodchoppers and water drawers to supply the needs for the sacrificial service on the Mizbe'ach (Yehoshua 9:3-27). In the times of Moshe Rabeinu, Giv'onim also came to be converted as they did in the times of Yehoshua, and Moshe also made them woodchoppers and water drawers (Yevamos 79a, based on Devarim 29:10). These people became known as "Nesinim," (from the root "Nasan," to give) since they were "given over" by Moshe and Yehoshua ("va'Yitenem..." - "And he appointed them...," Yehoshua 9:27) to perform the tasks of chopping wood and drawing water.

(b)The Nesinim are not permitted to marry someone who was born Jewish, just like Mamzerim. RASHI and TOSFOS (Kesuvos 29a and elsewhere) argue as to whether they are prohibited mid'Oraisa or mid'Rabanan. The Gemara (Yevamos 79a) states that Moshe Rabeinu "decreed" regarding the Nesinim of his generation, and Yehoshua extended the "decree" to last as long as the Mishkan or Beis ha'Mikdash would stand. David ha'Melech later extended the "decree" to include all time, even if the Beis ha'Mikdash would be destroyed (because of the trait of cruelty that the Nesinim exhibited, which showed that they were not worthy of uniting with the descendants of Avraham, Yitzchak, and Yakov). According to Rashi, these decrees were prohibitions against marriage, and as such the prohibition against marrying Nesinim is an Isur mid'Rabanan. According to Tosfos, these decrees were appointments of servitude. The prohibition against marrying them, though, is mid'Oraisa, since the Torah commands against marrying the seven prohibited nations even if they convert to Judaism (Yevamos 76a).

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