Ask A Question about the Daf

Previous daf

Gitin, 25

1) "BEREIRAH" THAT IS CONTINGENT UPON WHAT SOMEONE ELSE DOES

OPINIONS: The Gemara suggests that even according to the opinion that maintains "Yesh Bereirah" (see Background), it is possible to distinguish between a situation of Bereirah when one makes a Kinyan or effects a change of status which will be conditional on what someone else does ("Toleh b'Da'as Acherim"), and a situation of Bereirah when one makes it conditional on what he himself does ("Toleh b'Da'as Atzmo"). What is the logic to distinguish between the two?

(a) RASHI (DH Amar Abaye) explains that when a person makes the Kinyan or action conditional on what he himself does, the fact that he made such a condition demonstrates that he has not really made up his mind what he will do and that he intends to decide at a later point what he will do. At the moment of the condition, he leaves his options open ("Pose'ach Al Shtei Se'ifim"). Therefore, when he later chooses to act one way or the other, we cannot say that this reveals that he originally intended to make the Kinyan take effect in this manner (since we know that originally he was undecided). In contrast, when he makes it conditional on what *another person* will do, when the other person acts in one way or the other we can say that his action determines what the person's original intention was.

Rashi seems to be consistent with the way he explains Bereirah in general. In many places (Gitin 24b, DH l'Eizo, and throughout this Sugya and in all of the Sugyos of Bereirah -- see in particular Gitin 73b, DH u'Meshani, and Chulin 14a, DH Osrin), Rashi explains that even if we rule "Ein Bereirah," the Kinyan still takes effect, but the details which were dependent upon the outcome of the future event remain in doubt. For example, in a case where a person had two fruits in front of him and he said, "If it rains tomorrow, the one on the right will be Terumah, and if it does not rain tomorrow, the one on the left will be Terumah," most Rishonim say that neither fruit is Terumah, because "Ein Bereirah" dictates that a present Kinyan cannot be made dependent on a future event. Rashi, however, says that one of the fruits is Terumah, but it remains in doubt which one is Terumah. The change of status is effected, but the details which were dependent upon the future event remains in doubt, even when the future event occurs. The reason for this is that when a Kinyan is made dependent on a future event, it is not really dependent on what actually happens in the future (since the Kinyan must take place *right now*). Rather, it is dependent on what *is destined to happen* in the future, *at this point* in time. Therefore, even if it does rain tomorrow (in the above example), according to Rashi those who rule "Ein Bereirah" maintain that we cannot know on the previous day, when the condition was made, that *it was destined* to rain tomorrow or not. (TOSFOS in Eruvin 37b, DH Ela, cites a similar ruling in the name of MAHARI; see also CHIDUSHEI REBBI AKIVA EIGER in Ma'arachah #4, on Eruvin 38a, DH v'Nir'eh d'Vein; we discussed this further in our Insights to Eruvin 37:1:c.)

The opinion that maintains "Yesh Bereirah" holds that whatever occurs in the future *can* determine what -- at the time the condition was stipulated -- was *destined* to happen in the future. However, the Gemara here is suggesting that if a person makes his Kinyan contingent upon his *own* future actions, what he eventually decides cannot determine what his original intention was, since he has demonstrated that at the time of the condition his intention was still undetermined.

The TOSFOS HA'ROSH (here and in Eruvin 36b) poses a strong question on Rashi's explanation. The Gemara cites, as an example of "Toleh b'Da'as Atzmo," the case of a person who buys a barrel of wine from Kusim. The person does not have any containers available with which to separate Terumah and Ma'aser from the wine, and yet he needs to drink from the wine right away. Rebbi Meir says that he may announce that the wine that he will separate later when he does find containers will become Terumah now. The reason the person is not separating Terumah and Ma'aser now is because he does not want the Terumah and Ma'aser to become mixed with the rest of the wine in the barrel that he wants to drink, and *not* because he wants to "leave his options open!" Why, then, should this Bereirah be less effective than a Bereirah that is contingent upon someone else's future actions ("Toleh b'Da'as Acherim")? The RASHASH, TIFERES YAKOV, and others suggest tenuous answers to this question.

(RABEINU KRESKAS phrases the difference between "Toleh b'Da'as Atzmo" and "Toleh b'Da'as Acherim" somewhat differently from Rashi. He seems to say that even if there is no implication in the person's words that shows he is "leaving his options open," nevertheless we should not apply Bereirah by "Toleh b'Da'as Atzmo." His reasoning is that we can only assume that something was predetermined to happen in a particular way if it happens *by itself*, without being influenced by the actions of man. If an the future evolves through the actions of man, though, since man is capable of free choice the outcome of his actions are never "predetermined." In effect, the Gemara is distinguishing between a future event that does not depend upon human intervention and one that does depend upon human intervention. Although this answers the Tosfos ha'Rosh's question from the case of Bereirah with regard to separating Terumah -- since his future separation of Terumah certainly involves human intervention -- nevertheless, it would seem to fall short of explaining why Kidushin "Al Menas she'Yirtzeh Aba" is in the category of "Toleh b'Da'as *Acherim*," since it, too, obviously involves human intervention. This might be why Rashi phrased the difference between "Toleh b'Da'as Atzmo" and "Toleh b'Da'as Acherim" the way he did. However, the Tosfos ha'Rosh's question on Rashi's explanation remains to be answered.)

Perhaps Rashi means that since, normally, when one is "Toleh b'Da'as Atzmo" it means that the person is still undecided, therefore the Rabanan instituted that we say "Ein Bereirah" (l'Chumra) in *any* case of "Toleh b'Da'as Atzmo," even in a case such as that of a person who purchases a barrel of wine and does not have containers with which to separate Terumah and Ma'aser, where the person does *not* show that he is undecided about what he wants to separate as Terumah and Ma'aser. (This conforms to the implication of the wording at the end of the Beraisa which discusses separating Terumah -- cited at the top of 26a -- "do you not *admit to us* that there should be a Gezeirah to invalidate the Terumah in this case...." This wording implies that those who argue with Rebbi Meir and rule that the Terumah is not valid maintain that Bereirah does not apply *mid'Rabanan*.)

(b) Most Rishonim explain that "Ein Bereirah" means that one cannot effect a Kinyan, or a change of status, at the present moment based on the outcome of a future event. A Kinyan must take effect completely at the time that the Ma'aseh Kinyan is performed. If one attempts to make a Kinyan dependent upon a future event, the Kinyan will not take effect *at all* (see RAN in Nedarim 45b). This is in contrast to Rashi (above) who says that the Kinyan does take effect but we cannot determine in which way it takes effect.

Those who hold "Yesh Bereirah" maintain that a person *can* make a Kinyan dependent upon a future event, and what happens in the future will determine retroactively whether or not the Kinyan took place. According to this logic, it would not seem possible to distinguish between "Toleh b'Da'as Atzmo" and "Toleh b'Da'as Acherim" in the way that Rashi suggests, since these Rishonim maintain that when a person makes his action dependent upon a future event, he is making it dependent (retroactively) upon what *actually will occur* in the future, and not upon what is *destined* -- *at the present moment* -- to occur in the future.

According to these Rishonim, the difference between "Toleh b'Da'as Atzmo" and "Toleh b'Da'as Acherim" would seem to be that Bereirah operates only when it is necessary, such as when a person makes a Kinyan dependent upon a different person's future actions. However, when a person makes a Kinyan dependent upon his own future actions, we do not allow Bereirah to work, since it is in his power to decide *right now* what he will do, and to make a Kinyan that will not be contingent upon a future action. (This might not resolve the question of the Tosfos ha'Rosh, though, any more than Rashi's explanation.)

A possible difference between Rashi and the other Rishonim regarding "Toleh b'Da'as Atzmo" would be where a person makes a condition contingent upon what a person who is present at the time decides to do at a later time. According to Rashi, we should say that this is comparable to "Toleh b'Da'as Atzmo," since the person upon whom the Kinyan is contingent is obviously undecided and wants to decide what to do at a future time. According to the other Rishonim, since the one who is making the condition cannot decide what the other person will do, it should be like "Toleh b'Da'as Acherim."

25b

QUESTION: The Gemara says that when one makes a Kinyan dependent upon a future event, it is called "Bereirah," and -- according to some Tana'im -- the Kinyan does not take effect because of "Ein Bereirah." The Gemara in Eruvin (36b) gives an example of Bereirah, where one makes an Eruv Techumin by stipulating that if a certain Chacham comes to one side or the other side of the town, then the Eruv will be to the side to which the Chacham comes.

Why does the Gemara consider that case to be a case of Bereirah? It involves no more than a normal "Tenai" ("yes" or "no" condition)! It is comparable to saying, "If you do such and such, this Get will be a valid Get, and if you do not do it, it will not be a valid Get."

The same question may be asked with regard to the case in our Gemara where a man is Mekadesh a woman conditionally, making the Kidushin dependent on whether or not the woman's father consents to the marriage. However, the man seems to be doing no more than making a simple condition in the Kidushin. How is it a case of Bereirah at all?

ANSWERS:

(a) RASHI (DH ul'Chi Mayis) writes that any Tenai, condition, works only because it is in the hands of one of the parties involved to fulfill the condition, and it was his intention that the condition be fulfilled at the time that he stipulated the Tenai. (That is, because he plans on fulfilling it and wants the transaction to be consummated, the event contingent upon the condition being fulfilled takes effect *immediately*, even before the Tenai has been fulfilled. If the Tenai ends up not being fulfilled, then the event that was contingent upon it is uprooted retroactively. It is possible to uproot an event retroactively, but not to cause it to take effect retroactively.)

That is not how the condition works in the case of Eruv Techumin (in Eruvin) or the case of one who is Mekadesh a woman on condition that her father consents. In neither of those cases is the power to fulfill the contingency in the hands of the person who made the statement. Since the Eruv, or the Kidushin, does not depend on something which is in his hands to fulfill, it is considered a case of Bereirah.

(b) The RAMBAN here argues with Rashi and explains that a Tenai is when there are two possibilities -- either the event will occur or it will not occur. On the other hand, when trying to make something happen which can occur in one of several ways, it is not a case of Tenai but a question of Bereirah. The case of the Eruv dependent on the Chacham coming to one of two sides is such a case and therefore it involves Bereirah. The event -- the Eruv taking effect -- is going to happen in one of two places; the arrival of the Chacham will determine where the Eruv takes effect. The Ramban writes that the case of Kidushin is an exception to the rule; although there is only one Kinyan involved (the Kidushin of this woman), nevertheless since it is dependent not on an action but on a person's decision (i.e. the father's consent), it is called Bereirah. (See also RABEINU KRESKAS)

Still, why is the case of the Chacham a case of Bereirah? We can view it as two completely separate conditions: (1) If the Chacham comes to the east, then the Eruv will be to the east, and if he does not come to the east, then the Eruv will not be to the east. (2) If the Chacham comes to the west, then the Eruv will be to the west, and if he does not come to the west, then the Eruv will not be to the west. (REBBI AKIVA EIGER, Ma'arachah #4, on Eruvin 38a.) TOSFOS (end of Yoma 56a), in fact asks this question on the explanation of the Ramban.

Apparently, the Ramban maintains that the establishment of the two Eruvei Techumin cannot be viewed as two independent events. Rather, one event is taking place (making an Eruv), and there are two possibilities as to how it will take place (to the east or to the west). The reason for this is that one cannot make two Eruvim to be Koneh Shevisah in two places (since a person lives only in one place at a time.) Therefore, when the person adds that if the Chacham comes to the other side then his Eruv will be to that side, it is viewed as an addendum to his first condition.