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Gitin, 74

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 effect.

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)

ANSWERS:

(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 Kidushin?

ANSWERS:

(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 l'Chatchilah.)

74b

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?

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:

(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.

(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*..." (Vayikra 25:29)).

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 Erchin.)