Bereira Continued (25a-26a)

  • Rav Yair Kahn
Sources:
  1. 25a, “Amar leih Rav Mesharsheya… le-khesheyibaka,” Rashi s.v.  “U-lkhi mayit;” s.v.  “Lo ratza” [Rashi, Shevuot 36a, s.v.  “Bo kabbalat devarim”]
  2. Tosafot, s.v.  “U-lkhi mayit.”
  3. Ramban, s.v.  “Toleh;” Rabbeinu Crescas, s.v.  “Ma hi.”
  4. Chiddushei Ha-Ritva (Manuscript), s.v.  “Rabbi Shimon omer.
Questions:
  1. Which stipulations rely on bereira according to Rashi?  Why?
  2. Why, according to Tosafot, is the Mishnaic case of “What is she during those days” dependent on the law of bereira, even without the distinction of Rashi?
  3. Why is the case of “if Father will approve” dependent on the law of bereira according to the Chiddushei Ha-Ritva?  Why is this so according to the Ramban?
Introduction
 
In the previous shiur, we explained that even though a stipulation may be based on something which will happen in the future, this stipulation is not dependent on the law of bereira.  This is because the law of bereira is only relevant when a characteristic element is missing from the act or the effectuation, while a stipulation is dependent on an external factor.  Therefore, even according to the view that finds bereira untenable, and the present does not become clear in the future, the stipulation will be effective. 
 
However, everything which we have just said is apparently contradicted by the continuation of the passage, which states that making the stipulation dependent on the prerogative of others is based on bereira, as proven by the Mishna (73a) of “What is she during those days…”  This passage is relating to the laws of stipulation, because it is connected to the Mishna on 72a, which discusses a get given “as of now, if I die of this illness.”  Thus, we are dealing with a standard stipulation of “if I die of this illness,” and even so, the Gemara argues that it can only be effective according to the view that bereira is tenable.
We may ask another question based on the continuation, in which bereira is associated with the prerogative of others, specifically parental consent: “I hereby betroth you if Father will approve.”  Ostensibly, here as well we are dealing with a regular condition, and even so, the Gemara relates this beraita to the law of bereira.  The Rishonim try to deal with these questions, but their solutions require some clarification.  To this end, we will discuss these questions separately, and we will begin with, “You are hereby divorced as of now if I die of this illness.”
 
“If I die of this illness”
 
Rashi relates to this question in his commentary, and he argues that this stipulation differs from others because the person making the stipulation has no control over it.  This implies that any condition which is not “in the hand” of the stipulator is subject to the law of bereira.  This distinction is very difficult: why does the question of one’s control have anything to do with making stipulations?
 
Perhaps it is possible to explain his comment here in light of his commentary elsewhere.  In Shevuot 36a, the Gemara discusses the significance of “Amen”, declaring: “this is an oath; this is the acceptance of matters; this is the affirmation of matters.”  Explaining the middle term, Rashi writes that by saying “Amen,” one “accepts these words and is obligated to fulfill this stipulation.” 
 
In Gilyon Ha-Shas (ad loc.), Rabbi Akiva Eger questions this comment.  After all, the listener is merely agreeing that for the given act to be valid, the stipulation must be fulfilled, but he is not the one making the stipulation. Ultimately, why should we care what the listener says?
 
Rabbi Akiva Eger claims that everything which is predicated on a stipulation presents two equal and opposite options: it is possible to confirm the act by fulfilling the stipulation or nullify it by not fulfilling the stipulation.  Therefore, one who says “Amen” after hearing the condition accepts upon himself these two possibilities.  According to this, the words of Rashi, who believes that “Amen” obligates specifically the fulfillment of the condition, are not understandable.
 
However, we may explain Rashi’s view differently; we may propose the innovative idea that a stipulation is not defined as the presentation of two equal possibilities.  A stipulation has a certain agenda.  After all the source of the concept of making a stipulation is Bamidbar 32, the inheritance of the tribes of Reuven and Gad in Transjordan:
 
Then Moshe said to them, “If you will do this, if you will arm yourselves before God for battle, and if all of you will go armed over the Jordan before God until he has driven his enemies out before Him, then when the land is subdued before God, you may return and be free from your obligation to God and to Israel, and this land will be your possession before God.  However, if you fail to do this, you will be sinning against God; and you may be sure that your sin will find you out.”
 
Here it is clear that the aim of the stipulation is to make the tribes of Gad and Reuven bound to take part in the conquest of Canaan proper.  They accept upon themselves specifically this side of the stipulation:
 
The children of Gad and Reuven said to Moshe, “We, your servants, will do as our lord commands.  Our children and wives, our flocks and herds will remain here in the cities of Gilad.  But your servants, every man armed for battle, will cross over to fight before God, just as our lord says.”
 
Moshe also uses the language of fulfilling vows (v. 24): “Build cities for your women and children, and pens for your flocks, but do what you have promised.”
 
Thus, Rashi determines that one who responds “Amen” upon hearing the stipulation does not accept upon himself the two possibilities; rather, “the acceptance of matters” by his response binds him to fulfill the aim of the stipulation.
 
However, all of this is true only for a condition that the stipulator or the listener can fulfill.  However, if one makes the matter dependent on something beyond his control, it is impossible to talk about the aim of the stipulation.  In light of the above-mentioned reasoning, it appears that the innovation of the law of the stipulation, making the effectiveness of an act in the present subject to the fulfillment of a condition in the future, is applicable only if the condition is under one’s control.  Otherwise, the stipulation has no aim, and it cannot be included in this innovative category.  Therefore, if one makes a condition related to something outside of his control, the act will not take effect if the required conditions are not already extant at the time of the application.  Therefore, if a condition relates to something which is beyond one’s control and will happen in the future, the act will not be efficacious according to the view that bereira is untenable.  However, if bereira is tenable, then the present is defined by the future, and therefore if the condition will be fulfilled in the future, this will take effect retroactively. 
 
According to this, Rashi’s words are not limited to the condition when it is in the hands of the stipulator; even if fulfilling the condition is under the control of the other party, we do not need the law of bereira
 
This is how the Ramban explains Rashi’s view, arguing that if we follow this line of thinking, even if a man makes such a stipulation to a woman, “if you will give me two hundred zuz,” this would be case of “in his hand,” and bereira would not be necessary in order to validate the act.
 
However, he rejects the commentary of Rashi because this would mean that all types of gittin issued by a critically ill person “if I die” would be invalid according to the view which believes bereira is untenable.  This, the Ramban believes, is too far-fetched a proposition.
 
Tosafot agree with Rashi’s view but they point out that only “if Father will approve” requires this explanation.  As for “You are hereby divorced as of now if I die of this illness,” they claim, it is clear also without Rashi’s innovation that we need the law of bereira.
 
Tosafot agree that we are talking about a stipulation, but in any case, according to their view, the law of bereira is necessary here.  The reason for this is that the Gemara (73b) already explains that there is no regular stipulation here, like the simple meaning of “You are hereby divorced if I die of this illness,” because according to the simple meaning, the get will be effective only after death, and the halakhic ruling (see 73b) is that “There is no posthumous divorce.”  On the other hand, the husband does not want the get to be effective at the moment he gives it, should he ultimately die of this illness, because as long as he is alive, he wants to live with his wife. 
 
Therefore, the husband sets a time before his death for the divorce to take effect (as long as the stipulation is fulfilled, naturally), and this certain time is one hour before his death.  The time of the effectuation of the divorce is not clear, because only after death can we clarify retrospectively and calculate what “one hour before” was. 
 
Tosafot believe that if the effectiveness of the get is dependent on a moment which is still unclear at the time that the stipulation is made, this involves the mechanism of bereira.  Only according to the view that bereira is tenable is this hour now extant; according to this view, one hour before the husband’s death is a defined hour even beforehand, and even though it becomes clear only at the time of death, in any case now (i.e., at the time of the giving of the get) as well, the time of divorce is clear, though we have a lack of knowledge as to its specifics.  However, according to the view that bereira is untenable, this hour is not extant at all.  As long as the husband is alive, there is no such thing as “one hour before my death”.  Therefore, the get can take effect one hour before the husband’s death only according to the view which holds that bereira is tenable. 
 
It appears that this answer to the first question is quite logical, and it works out well with the Gemara’s assumption that the effectiveness of a get marked “one hour before my death” is dependent on the status of bereira.  Thus, we are left with the second problem.
 
The passage goes on to associate bereira with this bizarre statement: “I hereby betroth you if Father will approve.”  Ostensibly, this is difficult, because apparently we are talking about a regular stipulation, and the willingness of the father is only the fulfillment of the stipulation.  Therefore, it is not appropriate to bring in the mechanism of bereira, despite the fact that the condition will be fulfilled only in the future, as we have elucidated in the previous shiur.
 
“If Father will approve”
 
It is understood that according to Rashi, who distinguished between stipulations under one’s control and stipulations not under one’s control, the same applies here.  “If Father will approve” is not under his control; rather, it is dependent on the prerogative of others.  Therefore, this condition is not like any other condition, and one needs the mechanism of bereira.  Indeed, the Tosafists accept Rashi’s view only due to this question, as we have seen above.  However, this distinction is difficult to accept, as we also noted above.
 
In the Chiddushei Ha-Ritva, we find the following language:
 
Rabbi Shimon says that if the father consents she is betrothed, if the father does not consent, she is not betrothed.  This means that bereira applies here, because at this point we think that the statement “if Father will approve” means that he will approve now, because when we ask the father and he says that it pleases him, we may say that it has become clarified retroactively from the time of betrothal, because bereira is applicable.
 
According to this approach, it is clear why the law of bereira is relevant here: the man stipulates “if Father approves” in the present, even though the father still is not aware of this assignation.  Only if bereira is tenable is it possible to define consent in the future as reflecting approval in the present.  If bereira is untenable, it is impossible to define the present as a time of parental approval; as long as the father has not heard about the assignation, the future is open to all possibilities.
 
The Ramban equates when making an act dependent on the prerogative of others to making it dependent on one’s own prerogative.  Concerning the latter, it makes sense that we are not talking about a regular stipulation, but a lack of knowledge and willingness which are required for the essential effectuation of the act.  If so, there is no stipulation per se, because one does not make the effectuation dependent on an ancillary matter; we are talking about a certain deficiency which directly prevents the act from taking effect, because as long as one has no desire, for example, to actually betroth, there is an essential element of kiddushin missing. 
 
Therefore, if one betroths a woman on the condition that he himself will approve, the woman may ultimately become betrothed to him if, at the end of the day, he will desire this to happen — but only if bereira is effective.  This is because it is only according to the mechanism of bereira that it is possible to determine that the desire to betroth her is efficacious retroactively.  Using bereira, his will is clarified and elucidated, defining the first moment of his action.
 
According to this, it is possible to say that same applies to making the act dependent on others’ prerogative.  Therefore, if one betroths a woman with on the condition that “Father will approve,” this is not a regular stipulation. This is because he makes it dependent on the father’s view; if Father disapproves of the match, the prospective groom will himself be unwilling.  Thus, in this case as well, the desire of the groom, an essential aspect of the act of kiddushin, will be missing.  Therefore, there is a need for the mechanism of bereira, in order to determine what the father will have wanted already at the first moment, based on the future expression of his will; consequently, this may determine the groom’s will, which is dependent on the father’s will.   
 
Summary
 
We have seen that the Rishonim are unanimous concerning the thesis that a regular stipulation does not require the mechanism of bereira.  Therefore, they are challenged certain cases introduced in our sugya, which seem to contradict this assumption. 
 
According to Rashi, the innovation of the law of stipulation only applies to that which is under one’s control, and therefore only a stipulation which is not under one’s control requires the mechanism of bereira in order to take effect.  In this way, Rashi explains the two difficulties in our sugya.
 
On the other hand, most Rishonim agree that “You are hereby divorced one hour before my death” requires the mechanism of bereira, because the time at which the get takes effect becomes clear only retrospectively. 
 
As for “I hereby betroth you if Father will approve,” some explain that the intent is “if father approves as of now.”  This cannot work unless bereira is operational, because the father has still not explicitly expressed his view.
 
In addition, we have raised the possibility that making the matter dependent on others’ prerogative should not be viewed as a standard stipulation dependent on an external factor.  The will of others, like one’s own will, is a basic element required for the act to take effect.  Therefore, if one makes the effectiveness of a given act dependent on one’s own will, we are required to utilize the mechanism of bereira, and the same applies if a prospective groom makes his will dependent on the father’s will: the act will take effect only through the retrospective clarification of the father’s desire.  This is because the prospective groom has made his will subordinate to the father’s will. 
 
For the next shiur: The Tofes of the Get (26a-26b)
 
Sources:
1. Mishna 26a, Gemara until “U-motiv lah,” 26b, “Amar Rabbi Zeira… tovina de-chakkimei.”
2. 21b, “Ketavo al ha-mechubbar… u-ntano lah kasher;” “Ve-ibba’it eima… ve-Rabbi Elazar hi.”
3. Sefer Ha-zekhut [10b, Rif], Ran ibid.  s.v.  “Gemara,” s.v“Amar, U-linyan” [11b, Rif], s.v.  “Hilkakh” [13a, Rif].
4. Rambam, Hilkhot Geirushin 3:7, 17-18; 1:7.
5. Yerushalmi 3:1, “Milteih de-Reish Lakish… torfo be-tofes kasher.”
 
Questions:
1. According to the conclusion of our passage, may one write the standardized part of a get beforehand?  Why? 
2. What is the status of a tofes written on something attached to ground?  What about a tofes written by a minor?
3. How do the Rishonim reconcile the various passages?
4. What is the Rambam’s ruling?
5. Explain the two views in the Yerushalmi.