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GITIN 73-75 - Anonymously dedicated by an ardent supporter who wants the
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1) A CONDITION BEYOND ONE'S ABILITY TO FULFILL
QUESTION: Raban Shimon ben Gamliel teaches in the Mishnah that if a person
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 argue with Raban
Shimon ben Gamliel and rule that if the coat is lost, the Get does not take
2) THE PRACTICAL DIFFERENCES FOR WHEN A CONDITIONAL GET OR KIDUSHIN TAKES
We see 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. We may learn this as well from
the next Mishnah (75b) which teaches that when a man divorces his wife on
the 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 (at the end of 74b) also 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," then the Get would not be valid.
All of these sources pose a question on the Gemara in Kesuvos (3a), which
says that according to some opinions, Rava rules "Yesh Ones b'Gitin,"
meaning that if a man gives his wife a Get conditionally, saying that it
should take effect if he does not return in 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. If this is true, then why is the woman not divorced in
the case of the lost coat? We should rule that since she wanted to return
the coat but was unable to (because it was lost), the Get takes effect!
(RE'AH in Shitah Mekubetzes, Kesuvos 2b; RITVA, Gitin 30a)
(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 can affect 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,
then being away for thirty days is a Kiyum of the Tenai, since it causes the
Get to take effect. If the husband was kept away for thirty days against his
will, it is not considered a Kiyum, and the Get does not take effect.
However, if the *Bitul* of the Tenai was done b'Ones, then 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 can only *take away* a person's action; it cannot *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, then 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 a 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 our questions. The Ran learns that we only apply "Yesh Ones b'Gitin" to a
Tenai that was made by the husband and that 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 due to
circumstances beyond his control. In our Mishnayos, though, the husband made
a condition that depended upon his *wife's* actions. 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 does not 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 the cases of our Gemara.
QUESTION: The Gemara records a Machlokes between Rav Yehudah and Rav Huna
regarding whether a Get or Kidushin that is given with a condition, Tenai,
with the words "Al Minas" ("on condition that...") takes effect
retroactively from the time the Get or Kidushin was given, or whether the
Get or Kidushin only takes effect at the moment that the Tenai is fulfilled.
With regard to 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 say
that it is valid, while Rav Yehudah argues and says that it is not valid.
With regard to 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 receiving the
first Kidushin, but before the Tenai was fulfilled. According to Rav Huna,
who says that the first Kidushin will take 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 valid.
Why does the Gemara give two different examples of the practical difference
between Rav Yehudah and Rav Huna, with regard to both Gerushin and Kidushin?
In both Gerushin and Kidushin, either one of the practical differences would
seem to apply!
With regard to the Get being destroyed, we may reason that the Gemara does
not offer that practical difference in the case of Kidushin given with a
condition, because that difference would only apply to Kidushin performed
with a Shtar. Most acts of Kidushin, though, 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 a practical
difference exists when the woman who received the Get accepts Kidushin from
another man before the condition in the Get is fulfilled, just like the
practical difference that the Gemara suggests for Kidushin performed with a
(a) TOSFOS (DH Ika Beinaihu) writes that the Gemara indeed could have
suggested this difference as a practical difference for Gerushin as well.
Tosfos seems to mean that the loss of the Shtar is a more common practical
difference for a Get than the woman accepting 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 74b, DH a'd'Miflegi.)
Accordingly, with regard to Kidushin, when the woman accepts a second
Kidushin before the condition of the first is fulfilled, Rav Huna and Rav
Yehudah will indeed argue. Rav Huna will say that the second Kidushin is
definitely not valid, and she 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 in Kidushin (60b, DH Mai Beinaihu) writes that the reason the
Gemara asks for the practical difference between the Amora'im with regard to
Get, is because it would seem that there is no difference between Rav Huna
and Rav Yehudah, since even Rav Huna will agree that the woman is not
allowed to accept Kidushin l'Chatchilah until the condition of the Get is
fulfilled, for the woman does not yet know that the Get is a valid Get.
Rashi seems to be answering our question. 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 allowed to
accept a second Kidushin *l'Chatchilah*. (The reason it says it in past
tense 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 person
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 way we have
learned, the Gemara's intention might be that she may indeed accept Kidushin
3) BREAKING DOWN THE DOOR
QUESTION: The Gemara cites a Mishnah (Erchin 31b) that tells us of Hillel's
enactment regarding buying back a house in a walled city. We know that one
who sells a house in a walled city may redeem his house from the buyer for
up to one year (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, then
the buyer gets to 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 therefore enacted that "the money could
be deposited in a certain office... and thereafter the original owner may
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 such an odd statement of "break down the
door?" If the Mishnah had said, "He may thereafter reclaim possession of his
house, by force if necessary," then we would have understood the intent.
What, though, is the point of "breaking down the door of the house," and why
is that part of Hillel's statement?
ANSWER: The ROGATCHOVER GA'ON explains this enigmatic statement of the
Mishnah as follows:
1. In the Gemara later on this page there is a discussion regarding 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 the condition that you give me 200 shekels," and he subsequently
refuses to accept the payment in order to invalidate the divorce, may she
give the money to him against his will? Is this considered a valid
fulfillment of the condition?
(a) First, we might say that the Torah enforces an implicit stipulation in
the sale of a house in a walled city, that if the seller refunds the money,
the sale is annulled *retroactively*. Accordingly, the buyer's money which
had been in the possession of the seller for several days or months is
considered, in retrospect, as a loan.
The RASHBA (75a) asserts that even if we were to decide that payment by
coercion is acceptable, it will only be acceptable as an act of *giving*,
but the other party will not *acquire* what was given. That is to say,
coercion will only help when it is not necessary for the recipient to take
acquisition of what has been given. Nobody can be forced to *receive* an
object (i.e. to acquire it through a Kinyan) against his will, so the
recipient (in our case, 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 can also be called
"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.
We may conclude, therefore, that after Hillel's enactment to pay the buyer
of the house against his will (which the Gemara compares to the divorce
case), the money is considered as having been "given" by the original owner
when he throws it into the specially appointed office, but the recipient
(the one who bought the house) does not own that money as long as he does
not wish 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 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
viewed in two different ways:
(b) The other way of looking at this Halachah is that the original sale is
never annulled. Rather, the house is *repurchased* by the original owner
when he returns the money to the buyer. The original sale was
unconditionally valid, but the Torah imposes upon the buyer an obligation to
make a *new* sale when the original owner returns to him the money (within
the first year).
The two sides of this debate are taken up by the KETZOS HA'CHOSHEN and the
NESIVOS HA'MISHPAT (CM 55:1). The Nesivos assumes the first of the two
alternatives, while the Ketzos prefers the second side of the argument. (The
Gemara in Erchin 31a lends strong support to the first interpretation, that
no new "repurchasing" has taken place, for the Gemara there asserts that
when the seller repays the purchaser and takes back his house, it is as if
he had 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 taking Ribis (interest), since he would be
benefiting from the seller's possessions in return for the loan that he
gave. However, the RASHBA here (75a, DH Temiyah) seems to clearly favor the
other 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*..."
The Rogatchover Ga'on follows this line of reasoning to its logical
conclusion. We explained that according to the second opinion quoted above
(that of the Ketzos), the original sale of the house is never annulled.
Therefore, in order to receive his house back, the original owner must (a)
return the money that he received from the buyer and (b) make the house his
property once again through a new, bona fide act of Kinyan.
Now, putting the money in the designated office against the will of the
buyer may suffice for "giving" back the money to the buyer (condition (a)),
since giving forcefully is classified as "giving." However, based on the
Rashba's premise, the money does not come into the possession of the
purchaser of the house. Therefore, the payment cannot constitute a proper
Kinyan of "payment of money" to allow the original owner to regain
acquisition of the property (condition (b))! 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 get his house back, he must still
perform a legal act of acquisition on that property before the year's end.
Until he performs that act of Kinyan, the house will not become legally his
again. The Kinyanim of "payment," "barter," and "transferal of deed" are
obviously not operable in this case, since the other party in the sale is
unwilling 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 (Bava Basra 42a) describes the
classical Chazakah as "locking up a door or breaking down a locked door."
This is what the Mishnah means when it states that the process by which the
original owner gets his house back is not complete with just 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 year's end will the house
return to his possession!
(TZOFNAS PA'ANEACH, Kuntrus Hashlamah page 4; see also Ishim v'Shitos by
Ha'Rav 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 on