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Week 90 - Monday - 13 August 2001

KIDDUSHIN: CHAPTER 3: MISHNAH 4

Rabbi Meir says, Any condition which is not like the condition of the children of Gad and the children of Reuben is not a condition, as it is written, "And Moses said to them, 'If the children of Gad and the children of Reuven will pass"' (Num. 32:29), and it is written, "'But if they will not pass armed"' (Num. 32:30). Rabbi Hananyah ben Gamliel says, It was necessary to state this matter, because otherwise it might be inferred that even in the land of Canaan they would not inherit.

Kehati

Since the previous two mishnahs taught the laws of conditional kiddushin, this mishnah cites the general rule stated by Rabbi Meir concerning conditions. The Torah recounts that when the children of Gad and the children of Reuven came to Moses and asked that they be given possession of the land of Gilead, Moses imposed a condition, and told Eleazar the priest, Joshua bin Nun, and the family heads of the tribes of Israel, "If the children of Gad and the children of Reuven will pass with you over the Jordan, every man that is armed to battle, before the Lord, and the land shall be subdued before you, then you shall give them the land of Gilead for a possession; but if they will not pass over with you armed, they shall have possessions among you in the land of Canaan" (Num. 32:29-80). This condition, referred to in the Mishnah as "the condition of the children of Gad and the children of Reuven." is a double condition: "if (they) pass over - then you shall give them ... but if they will not pass over - they shall have possessions among you."

Rabbi Meir learned from this that every condition must be a double condition, i.e., if a person betroths a woman and says to her, "If you give me two hundred zuz, you are betrothed to me with this perutah, and if you do not give me two hundred zuz, you are not betrothed to me," and then gives her the perutah to effect kiddushin, his condition stands, and if she gives him two hundred zuz the kiddushin is valid, but if not, the kiddushin is not valid. If, however, he only says, "If you give me two hundred zuz, you are betrothed with this perutah," and he gives her the perutah, then his condition is void, because he did not include a double condition, and say to her, "and if you will not give, you are not betrothed"; rather, it is as if he made no condition at all, and she is betrothed immediately and does not have to give him anything.

Other laws are also learned from the condition of the children of Gad and the children of Reuven: (1) the condition must precede the act: "If they pass over - then you shall give them," and not, "you shall give them if they pass over"; (2) the positive aspect of the condition must precede the negative aspect: "if they pass over... if they will not pass over." Some authorities learn additional laws (see Tiferet Yisrae1).

Rabbi Meir says, Any condition which is not like the condition of the children of Gad and the children of Reuben - i.e., which is not a double condition, is not a condition - and even though the condition is not fulfilled, the act is effected, as it is written, "And Moses said to them, "'If the children of Gad and the children of Reuven will pass,"' and it is written - immediately following, "'But if they will not pass armed"' - Rabbi Meir disagrees with the preceding mishnahs and is of the opinion that if a person says to a woman, "Behold, you are betrothed to me on condition that I give you two hundred zuz," or "on condition that I have a bet kor of earth," since he did not make a double condition, his condition is void, and even though he does not give her two hundred zuz or does not have a bet kor of earth, the kiddushin is effective (Rambam).

Rabbi Hananyah ben Gamliel says, It was necessary to state this matter - Moses used a double condition regarding the children of Gad and the children of Reuven because it was necessary to state what would happen if they did not fulfill the condition, because otherwise - if he had not stipulated a double condition, i.e., if he had said only, "if they will pass over... then you shall give them the land of Gilead for a possession," it might be inferred that even in the land of Canaan they would not inherit - if they did not pass over armed, they would not receive any inheritance at all. Moses therefore used a double condition, stating, "but if they will not pass over with you armed, they shall have possessions among you in the land of Canaan."

However, a condition which leaves no room for doubt, even one which is not double, is a valid condition. According to Rashi, Rabbi Hananyah only disagrees with Rabbi Meir regarding the matter of the double condition, but agrees with the principles of (a) the condition preceding the act and (b) the positive aspect preceding the negative one. According to Rabbeinu Nissim, Rabbi Hananyah disagrees with Rabbi Meir in the other matters as well. The law is in accordance with Rabbi Meir regarding every condition which begins with the word "If" ("If you will do such-and-such..."), but if a person states his condition using the words, "on condition," (as was taught in the preceding mishnahs), neither a double condition, nor the positive aspect preceding the negative aspect, nor the condition preceding the act, are necessary (Rambam, Hil. Ishut 6; Bartenura)

KIDDUSHIN: CHAPTER 3: MISHNAH 5

One who betroths a woman and says, "I thought she was a priestess, and behold, she is a Levitess," "a Levitess, and behold, she is a priestess," "poor, and behold, she is wealthy," "wealthy, and behold, she is poor," then she is betrothed, because she did not mislead him. One who says to a woman, "Behold, you are betrothed to me after I convert," or "after you convert," "after I am set free," or after you are set free," "after your husband dies," or "after your sister dies," "after your yavam performs halitzah," she is not betrothed. And similarly; if one says to his friend, "if your wife gives birth to a female, she is betrothed to me," she is not betrothed. If the wife of his friend was pregnant, and her pregnancy was evident, his words are good, and if she gives birth to a female, she is betrothed.

Kehati

One who betroths a woman and says - after performing the kiddushin, "I thought she was a priestess - and on this basis I betrothed her, and behold, she is a Levitess" - and the kiddushin was erroneous; or if he said, "I thought she was - a Levitess, and behold, she is a priestess"; - or if he said, "I thought she was - poor, and behold, she is wealthy"; or if he said, "I thought she was - wealthy, and behold, she is poor" - since he did not reveal his thoughts at the time of the kiddushin, then she is betrothed - the kiddushin is completely valid, and is not an erroneous kiddushin, because she - the woman, did not mislead him - but rather he deceived himself, and thoughts have no legal status, as was already explained (2:3, above).

One - a non-Jew - who says to a - Jewish - woman, "Behold, you are betrothed to me after I convert," or - if a Jew said to a non-Jewess, "Behold, you are betrothed to me - after you convert" - or if a Hebrew servant says to a free woman, "Behold, you are betrothed to me - after I am set free," or - if a free man says to a Canaanite handmaid, "Behold, you are betrothed to me - after you are set free," or if one says to a married woman, "Behold, you are betrothed to me - after your husband dies," or - if one says to the sister of his wife, "Behold, you are betrothed to me - after your sister - his wife, dies," or if one says to a woman requiring yibum, "You are betrothed to me - after your yavam performs halitzah" - in each of these cases, she is not betrothed - since he is unable to betroth her now, his future kiddushin is also not effective.

Regarding the woman requiring yibum, our Tanna is of the opinion that kiddushin cannot be effected with her, since it is written "the wife of the dead shall not be married outside to one not of his kin" (Deut. 25:5); According to others, the mishnah is in accordance with the opinion of Rabbi Akiva, who holds that kiddushin is not valid if the marriage entails the violation of a Torah prohibition. Rambam rules that when one betroths a woman requiring yibum, the kiddushin is in doubt (safek) and therefore if one says to a woman requiring yibum, "You are betrothed to me after your yavam will perform halitzah," the kiddushin is valid, since if he were to betroth her now, the kiddushin would be effective (from safek) (Hil. Ishut 7:15).

And similarly, if one says to his friend, "if your wife gives birth to a female - behold, she is betrothed to me" - she is not betrothed - since kiddushin cannot be effected with someone who is not yet alive. If the wife of his friend was pregnant, and her pregnancy was evident, his words are good, and if she gives birth to a female, she is betrothed - according to Rambam, he must once again betroth her after she is born, because a person cannot acquire something which does not yet exist, and the mishnah states "his words are good" to be stringent regarding her, and prevent her from marrying others (Rambam, in his commentary on the mishnah). From his Mishneh Torah (Hil. Ishut 7:16), however, it would seem that according to Rambam she is definitely betrothed (see the commentaries on Rambam, loc. cit.). According to another version, this entire sentence is not part of the mishnah and betrothal to a woman whose pregnancy is evident is totally invalid since one may not acquire something which does not yet exist. The Gemara, however, which states that when her pregnancy is evident kiddushin is valid, is in accordance with the opinion that a person may acquire something, which does not yet exist.

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