• Yeshiva Staff
by Rav Herschel Schachter
Summary by Aaron Frazer
            Recently, the Yeshiva had the honor and pleasure of a visit from R. Herschel Schachter, Rosh Kollel at Y.U.  The following summary of a shiur which he presented has been condensed because of space considerations.
            All un-clarity and/or mistakes are my own, and should not be attributed to R. Schachter.
I.  Tnai and Ta'ut
A. The Distinction
            R. Akiva Eiger discusses a case in which a man had been courting a woman for a lengthy period, and was then tricked into marrying another woman.  R. Eiger rules that the kiddushin are invalid, because a tacit condition, or "tnai," exists in such a case, stipulating that the man intends to marry only the woman he was courting, and no other.  Many challenge R. Eiger, maintaining that in this case the kiddushin are invalidated for a more basic reason - there is an error, or ta'ut, on the part of the man.  Tnai and ta'ut, they explain, are distinct halakhic categories.  In the case of tnai there is a legitimate transaction, based on essentially valid consent.  The transaction is merely regulated by a given variable which is introduced as a factor EXTERNAL to the essential consent.  A ta'ut, by contrast, undermines the basic agreement; one who is misinformed is considered never to have consented at all to any transaction.  Hence, agreements based on misinformation are invalidated for a far more fundamental  reason.  This distinction between tnai and ta'ut,  which is drawn by R. Chaim of Brisk, among others, makes R. Eiger's explanation very difficult to understand.
B. Nafka Minot (Ramifications)
            R. Chayim's distinction can be illustrated through various nafka minot (practical differences).  Masekhet Kiddushin (perek 3) discuss the possibility of  making a tnai when one marries a woman.  As explained there, the format of such a tnai must be structurally similar to the condition which Moshe made with the tribes of Reuven and Gad (see Bamidbar 32).  This format is comprised of various characteristics, the "mishpetei ha-tnaim," (such as the explicit statement of both possibilities, the statement of the positive before the negative, and others,) which are mandatory when stipulating a tnai.  The failure to conform to these parameters invalidates the tnai, rendering the transaction unconditionally valid.  The requirement for adherence to the mishpetei ha-tnaim is limited to tnai, as opposed to ta'ut; if one states that he has a certain understanding when making a transaction, the transaction will be considered a ta'ut if he was mistaken, even if he did not formulate his assumption in accordance with the mishpetei ha-tnaim.
            Another difference relates to the possibility of  "disarming" a tnai at a point subsequent to the transaction.  Even when two parties make an agreement with a tnai, they can revoke the tnai at a later stage, and the agreement will stand unconditionally, with no need to re-enact the original transaction.  The Kesef Mishneh cites the Ran who limits this halakha specifically to a tnai, as opposed to a ta'ut.  For example, if a woman agreed to marry a man based on the understanding that he is a kohen, and he is actually not, even if she later wishes to uphold the original marriage despite her error, there is no way to do so.  The initial kiddushin are absolutely worthless, and new kiddushin are required if the couple wishes to be married.  This difference in halakha can be understood based on the theoretical distinction elaborated above;  one can remove an external impediment to a transaction at a later point, but if there never existed consent to the transaction on a basic level it is not salvageable.
C. Problem of Potential Overlap
            Clearly, in any case where one needs to make a tnai, the implication is that without the formal tnai (in accordance with mishpetei ha-tnaim etc.) the transaction would stand unconditionally.  Why can we not say that every tnai which has a technical defect still serves to create a situation of ta'ut?  Clearly, tnai and ta'ut apply to two distinct cases, and only in those cases where ta'ut is not applicable will the need for a tnai arise.  The difficulty lies in defining the precise border between tnai cases and ta'ut cases.
            There are 4 basic approaches to this issue in the Rishonim:
RAMBAN: The distinction is based on chronology.  Any stipulation which relates to the FUTURE ("if you will/will not X, then Y") is a tnai, and requires mishpetei ha-tnaim.  Any stipulation which relates to the PAST or PRESENT ("if you have/have not done X then Y", etc.) is an application of ta'ut.
TOSAFOT: In the event of an umdena de-mukhach, a reasonable assumption, that one enacting the given transaction would demand the given condition (e.g.: one who buys a car assumes it has an engine, etc.), the rule of ta'ut applies.  Otherwise, one must stipulate a tnai explicitly, in accordance with the mishpetei ha-tnaim.
RA'AVAD (& OPINION CITED AND REJECTED BY TOSAFOT): In monetary matters, ta'ut is ALWAYS applicable, because the owner of property can grant or limit his basic consent in any way which he wants.  However, in matters of issur, such as marriage/divorce, the institution exists as legislated by the Torah, and one can make only a tnai, an external constraint.
RAMBAM (as explained by R. Chayim): Any condition in which the transaction is to take effect immediately ("ME-AKHSHAV"), and the eventual fulfillment of the stipulation merely REVEALS the fact that the transaction was valid from its inception, is considered to be an application of the rule of ta'ut.  By contrast, a stipulation in which the transaction is POSTPONED UNTIL THE FULFILLMENT of the condition ("IM") is considered to be a tnai, and hence the nafka minot cited above ensue.
D. Interpretation of the Rambam
            The logic which underlies the Rambam's position is actually a point of contention between R. Chayim Soloveitchik vs. R. Moshe Feinstein.  R. Chayim understood that in a stipulation of Im, the FULFILLMENT of the tnai is a POSITIVE FORCE which causes the transaction to take effect.  The non-fulfillment of the tnai represents a lack of such a positive force, and hence there is no transaction.  The reverse is true of a stipulation of me-akhshav - there the NON-FULFILLMENT of the tnai constitutes a NEGATIVE FORCE, which mitigates the earlier effecting of the transaction and nullifies it.  If the tnai is fulfilled, no such negative force exists, and the transaction stands by the power of its original inception.  According to R. Chayim's understanding of the Rambam, the negative force which can undermine the original transaction is ta'ut, and the positive force which can effect the transaction is tnai.  The Meiri virtually explicitly takes the same position.
            R. Moshe Feinstein rejected R. Chayim's explanation because of the following difficulty, originally raised by R. Moshe Shisgal: The gemara in Ketubot (74a) requires that the condition in a tnai be one which can be fulfilled via an agent, a milta de'ita bi-shlichut.  The gemara explains that this requirement precludes making a tnai in chalitza (levirate marriage which must be done by the brother of the deceased personally).  This implies that if chalitza could have been effected through an agent, it would be possible to make a tnai in the case of chalitza.
            However, a tnai Im, which as we have seen is the only stipulation considered to be a tnai according to  R. Chayim's understanding of the Rambam, is not feasible in chalitza for a separate reason.  When making a tnai Im, where, as we have seen, the transaction takes effect only at the time when the tnai is fulfilled, there is a requirement that the original act, the ma'aseh kinyan, be intact to some extent until the time when the tnai is fulfilled.  For example, if one bought land with a document, a shtar, that shtar must still be in the existence at the time when the tnai is fulfilled.  In chalitza, of course, this demand cannot be met; the process of chalitza is instantaneous, and once it is performed there is no remnant to be spoken of.  Because of this lack, known as kalta kinyano (i.e., the act of acquisition has ended), there is no possibility of making a tnai Im regarding chalitza.
            Hence, the only type of stipulation which one could conceivably make regarding chalitza is me-akhshav, (where the issue of kalta kinyano is not relevant because, as we have seen, there is no delay in the chronology of the transaction.)  The above mentioned gemara's implication that such a me-akhshav stipulation would be subject to the rule of milta de'ita be-shlichut seems to indicate an assumption that a stipulation of me-akhshav is a full-fledged tnai.  This is at odds with R. Chayim's earlier-mentioned understanding.
            Based on this difficulty with R. Chayim's approach, R. Moshe rejected the understanding that me-akhshav is not a tnai.  He did, however, agree with R. Chayim's basic premise, the qualitative difference between me-akhshav and Im discussed above, resulting in a discrepancy in the requirement for mishpetei ha-tnaim.  Essentially, R. Moshe maintained that there is an internal distinction within tnai, and that only some types of tnai require the mishpetei ha-tnaim.
II.  Milta De'ita Bi-shlichut
A. Seeming Contradiction
            The requirement of milta de'ita bi-shlichut (mentioned above) is itself somewhat difficult to understand, when one considers several mishnayot (cited in Tosafot Nazir 11a s.v. Dihavey) which discuss the possibility of accepting a vow of nezirut contingent upon a tnai.  Seemingly, this is in direct contradiction to the criteria of milta deita bi-shlichut - one cannot appoint an agent to take a vow for him, as there is a formal requirement of personal verbal expression ("bitui sefatayim").  If so, how can one stipulate a tnai in the case of nezirut?
B. R. Chayim's Distinction
            R. Chayim explains that we can answer this question utilizing the understanding of Tosafot (Ketubot 74a) regarding the source of the requirement of "ita bi-shlichut".  Tosafot explain that this requirement is not merely a parallel to the case of Reuven and Gad (because if so, we would require parallelism to every detail of that case, tnai would be limited to cases of allocation of the land of Israel, etc.) but also exists because the fact that one can appoint an agent demonstrates that he is sufficiently in control of the transaction to be authorized to make a tnai.  If this is the case, we can understand why the case of nazir is an exception to the general rule.  The inability to appoint an agent in that instance stems not from a lack of control over the procedure, but from a technical difficulty - the agent has the wrong mouth, i.e., he cannot take a vow for another.  Hence, the reason cited by Tosafot is not applicable, justifying the implementation of a tnai.
            The fact that the gemara states that chalitza is not a milta deita bi-shlichut indicates that in chalitza there is a fundamental lack of authority to regulate the process and it is not merely because the agent lacks the foot of the choletz.  This is why one can neither stipulate a tnai nor appoint a shaliach.
III.  Ma'aseh and Chalut
A. The Issur of Ma'aseh/Chalut in a Case of Tnai
            Another question we might ask about tnai is: When a tnai is not fulfilled, does this mean that the very process, the ma'aseh, which was intended, is considered never to have happened, or that merely the intended chalut (legal result) is not effected, but the process is considered to have taken place.  [In a case of ta'ut, it is clear that there is not even a ma'aseh.]
            One nafka mina of this question is re'ach ha-get.  Sometimes, even though a get was not technically given, a woman will still be forbidden to marry a kohen (as if she had been divorced).  The popular understanding is that re'ach ha-get applies when there is a ma'aseh of divorce, but that the chalut fails to ensue.  Hence, whether there is re'ach ha-get when a get is given on a tnai which is not fulfilled becomes a nafka mina of our question.
            The answer depends on a machloket Beit Hillel/Beit Shammai in Gittin (81a).  Beit Hillel states that there is no re'ach ha-get, and Beit Shammai states that there is re'ach ha-get not only in this case, but in any case where a get was written, regardless of whether it was given at all.  According to Beit Hillel, apparently, the non-fulfillment of a tnai undermines even the ma'aseh.  Beit Shammai's position, which at first seems very surprising, is based on the assumption that the very writing of the get is part of the divorce process, which is supported by the requirement that the writing be done at the request of the husband, and for the express purpose (lishma) of divorcing this particular couple.
B. The Issue of Ma'aseh and Chalut in a Case of "Le-achar 30"
            Another way to postpone a chalut, in addition to the earlier mentioned tnai Im, is by simply stating that the chalut will take place only "le-achar X," after X number of days (the gemara's example is 30).  In such a case, the chalut is delayed, but is not contingent on anything more than the passage of time.  Thus, the Rambam writes that it is similar to a tnai, but not a tnai.  What is the situation in such a case in the interim period, when one has committed to a transaction "le-achar 30," but the 30 days have not passed?  Would we say that the ma'aseh has not yet happened, or that the ma'aseh has happened, and the chalut alone has been postponed?  (See shiur # 18)
            Here too, as in tnai, it would seem that there is not even a ma'aseh.  This can be illustrated based on the Rambam's formulation regarding exemption from military service for one who has recently married.  The Rambam writes (Melakhim 7:7 and see Kesef Mishneh there) that one who married a woman before a war is exempt from service, but one who marries during the war is not.  What if a war broke out in the middle of someone's "le-achar 30" period?  The Kesef Mishneh and Radvaz (there) understand that the Rambam believes he is not exempt.  This would seem to be based on an understanding that until day 30 there is not even a ma'aseh of marriage.
            Another nafka mina of this question is for one who stole an ox or a sheep, and sold it "le-achar 30." One who steals and then sells such an animal is required to pay a special fine.  The fine is obviously based on the ma'aseh of the sale, as a chalut never exists when selling something stolen.  What would be if the thief was caught in the interim period, before 30 days?  The Rambam (Hilkhot Geneiva 2:11) rules that the thief is exempt from the fine in such a case; apparently he holds that there is no ma'aseh (though others argue).
Sources for next week's shiur "Fulfillment and Cancellation of Tna'im:"
1. Rambam Hilkhot Ishut 6:15-18; 7:23; Ra'avad ibid., R. Akiva Eiger ibid. (See Frankel edition.)
2. Rambam Hilkhot Geirushin 8:1; 9:5.
3. Ran (25a in the Rif) "U-beinyan mekadesh al tnai ..."
4. Responsa of the Rosh 35/9, Rashba Gittin 76a s.v. "Veharav
Ba'al HaItur...le'eil."
1. Try to explain the disagreement of the Rambam and the Ra'avad regarding the requirements of witnesses to cancel a tnai.
2. What is the argument between the Ramban and the Rashba regarding the obligation to prove fulfillment of a tnai?
3. How is the Rosh's opinion different than that of the Ba'al Ha-ittur?
4. Explain the argument between R. Yochanan and Reish Lakish regarding one who was forced to fulfill a tnai.