Tnai: Fulfillment and Cancellation

  • Harav Baruch Gigi
 
            The relationship between the acts of geirushin (divorce) and kiddushin, and a tnai (condition), demands special attention.  The understanding of its nature has ramifications in various areas such as kiyum (fulfillment) of the tnai, its bitul (cancellation) and the possibility of adding to the tnai.
 
  1. The Role of the Tnai
            There are two basic ways in which a tnai can be understood:
 
1) We could view a tnai as an integral component of the act.  Without the tnai, the act is incomplete.
2) Alternatively, we could consider a tnai as something more external.  The act is complete without the tnai.  Yet, this separate tnai has the power to either cancel the act if the condition is not met, or validate the act if the condition is met.
 
A.  Im versus Al menat
 
            One type of tnai takes effect only upon the fulfillment of the condition.  This is known as a tnai "im" i.e., if the condition is met only then does the act take effect.  In this type of tnai it would be more reasonable to subscribe to the understanding that the tnai is an integral part of the act.  There is another type of tnai in which the act is effected retroactively once the tnai is fulfilled.  In such a tnai - known as me-akhshav or al menat - it is more plausible to view the tnai as an external factor which can regulate the act.  In these cases, the act is already complete.  The tnai influences the act retroactively by either upholding it or cancelling it.
 
            The Rambam accepts the distinction between the tnai of im and the tnai of me-akhshav, however along different lines.  In Hilkhot Geirushin (8:1), he writes that when a man divorces his wife conditionally, she only becomes divorced upon fulfillment of the condition, and not upon receiving her "get" (bill of divorce).  Consequently, the man can cancel the get, add to its conditions, or even replace the condition with a completely new one so long as the original condition is unfulfilled, even though she has already received the get.  The Rambam continues that if he stipulates me-akhshav, she is divorced the moment the get reaches her hands.  Therefore, he cannot subsequently cancel the get, add to or replace the condition.
 
            Although this distinction exists in the Rambam, there are indications that he does not view the tnai of im as an integral component of the act of divorce:
 
1) In Hilkhot Geirushin (9:5), the Rambam states that a person who divorces his wife with a tnai (of im) carries out the act of divorce (when he gives her the get), yet the divorce is only concluded upon the fulfillment of the tnai.  As a result, she becomes divorced upon the fulfillment of the tnai, as long as the get still exists, even if it is no longer in her possession.  There is no need for her to regain possession of the get after the condition is fulfilled, since she originally accepted it as an act of divorce.  If she were to remarry before the fulfillment of the tnai, we would not object to her new marriage.  From this Rambam, we see that he understands the tnai of im as being separate from the act.  The act is complete already from its inception.  The tnai is an external factor which controls the validity of the prior act.  That is why the get need not be in her possession when the tnai is fulfilled and the divorce becomes valid.  The tnai does not constitute part of the act!  We can now also begin to understand the difficult law of not interfering with her new marriage even if it took place before the fulfillment of the tnai.  (Nevertheless, this halakha remains difficult, and will not be resolved here.)
 
2) This Rambam, furthermore, makes no mention of the necessity to fulfill the tnai in front of witnesses.  This is explicit in Hilkhot Ishut (7:23): the husband can cancel the tnai in the presence of his wife alone, and no witnesses are necessary.  The Ra'avad argues with the Rambam and requires the presence of witnesses.  The point of contention seems to be our very issue of whether the tnai is an integral component of the act or not.  We have a principle that "davar she-be'erva" (legal matters associated with marital status and adultery) requires the presence of two witnesses.  The act of divorce is one such matter, and, hence it requires two witnesses.  The Ra'avad apparently views the tnai of a divorce as part of the act, and therefore requires the presence of two witnesses to cancel the tnai.  The Rambam, on the other hand, views the tnai as being separate from the act of divorce, hence does not require witnesses for the cancellation of the tnai. (This way of understanding the Ra'avad is far from conclusive.  It is possible that the Ra'avad agrees that the tnai is separate from the act, yet regards anything which is part of the general process of marriage and divorce as "davar she-be'erva.")
 
            Although the Rambam differentiates between the tnai of im and the tnai of me-akhshav, his distinction does not seem to concur with our two understandings of a tnai.  Rather:
 
1) His distinction revolves around the issue of whether the matter remains within his jurisdiction: when the prior act becomes valid retroactively through fulfilling the tnai (i.e., in a tnai of me-akhshav), the moment the act has been carried out, the entire matter leaves his jurisdiction.  Although the validity of the act still depends on the fulfillment of the tnai, he cannot alter the tnai or the subjection of the act to the tnai.
 
2) Alternatively (and more probably), the Rambam views the tnai of me-akhshav as a separate framework divorced from the laws of tnai.  Through violating the tnai, the act is considered a mistake (ta'ut) retroactively.  The act is undone because it was mistaken, and not merely because a condition was not fulfilled.  This understanding seems implicit in the Rambam Hilkhot Ishut (6:18), where, in connection with a tnai of me-akhshav, he writes that upon fulfilling the tnai, she becomes engaged to her husband retroactively from the time the act of kiddushin was carried out, as if no tnai ever existed.  This apparently redundant phrase "as if no tnai ever existed" seems to emphasize the point that me-akhshav does not belong within the framework of tnai.  Rather, it only determines whether the act was intentioned or mistaken.  (See shiur #20)
 
B.  The Requirement to prove Fulfillment of the Tnai
 
            Who is responsible for proving the fulfillment of the tnai?  If one party denies that the tnai was fulfilled, the party who stakes the claim has to prove that the condition was indeed fulfilled (i.e., the principle of "ha-motzi me-chavero alav ha-re'aya").  In the case of kiddushin, the husband would be the motzi who stakes the claim, whereas in geirushin, the wife would be the motzi.  (In certain cases where a claim is made that the tnai is cancelled, the wife is believed that she never cancelled the tnai for a side reason.  We assume (through chazaka) that a woman carefully checks the details of her divorce before remarrying.)  In a case where there is no dispute whether or not the tnai was fulfilled, there is a disagreement whether the fulfillment of the tnai requires proof.  For example, if a man marries a woman stipulating that he will speak to government officials on her behalf, and then the man claims that the condition was met.  The Ramban maintains that the man is believed.  The Rashba and the Ran disagree.  They argue that the principle of "ha-motzi me-chavero alav ha-re'aya" still applies, and the husband has to prove that he has fulfilled the tnai even though nobody disputes his claim that he has fulfilled the tnai.  It is possible that their argument depends on the understanding of the principle "ha-motzi me-chavero alav ha-re'aya" and has nothing to do with tnai.  It is quite feasible, however, that their argument revolves around whether the tnai is considered as an integral component of the act or not.  If we view the tnai as an integral component of the act, the claim that the tnai has been fulfilled essentially is a claim that the act of kiddushin has taken place.  Consequently, the husband would have to prove that the tnai has been fulfilled and kiddushin has taken place, as the Rashba and Ran state.  If we view the tnai as external to the act, the act has already been completed and there is less of a need for the husband to prove the fulfillment of the tnai.  The declaration of the party affected by the tnai alone would suffice as the Ramban says.
 
C. Can one really cancel a tnai?
 
            This issue is discussed by the Rishonim.  The Rashba and the Ran are of the opinion that one may not cancel a tnai.  The gemara in Ketubot (72b), however, discusses a case where a man does kiddushin with a tnai yet gets married (nisu'in) foregoing the tnai.  It would appear from here that one may cancel a tnai!?  The Rishonim explain that if the beneficiary of the tnai waives the tnai, it is as if the tnai has been fulfilled.  Another explanation is that from the outset, the tnai never included cases where the beneficiary of the tnai was unconcerned with its fulfillment.  The tnai was limited, implicitly, to exclude cases where the beneficiary of the tnai forgoes its fulfillment.  The Ran (on the Rif in Ketubot s.v. Garsinan) mentions these two explanations.  The former he attributes to the Rashba, while siding with the latter explanation himself.
 
Nafka Minot (practiced ramifications):
 
            According to the Rashba, this law is limited to a monetary tnai, since the principle of waiving (mechila)applies only to money.  According to the Ran, though, this law would apply to any tnai.  Another possible difference is the point at which the kiddushin becomes valid.  According to the Ran, since the tnai does not apply in this case, the kiddushin would be valid retroactively from its inception.  According to the Rashba, though, it is possible that the kiddushin only becomes valid at a later stage once it is clear that the tnai has been waived and thereby fulfilled.  Certainly if we were dealing with a regular tnai, the kiddushin would only become valid once the tnai has been fulfilled!  (This point can be found in the Ritva on Ketubot ibid.)
 
            Both the Rashba and the Ran agree that one cannot actually cancel the tnai.  If we view the tnai as an integral component of the act of kiddushin, once this unified act has been done, it cannot be changed and the tnai, therefore, cannot be cancelled.  This is consistent with the Rashba's and the Ran's view of tnai as we explained earlier.
 
            The Rosh, however, disagrees.  In his responsa (35:9), he writes that one can cancel a tnai.  He bases his view on the simple understanding of the gemara in Ketubot (ibid.).  He explains further that the law of tnai is a novel concept that the Torah created.  Without this new law, the act would have existed independent of the tnai.  The tnai, therefore, is a separate entity and an act in itself.  The act of kiddushin is complete without the tnai.  Since the tnai is created through speech, the power of speech is sufficient to cancel the tnai ("ati dibur u-mevatel dibur").  Although the tnai is cancelled, the act remains complete.
 
            It would appear from the Rosh that in the above case, the kiddushin would become valid retroactively from the time the act was performed.  What needs clarification is whether this possibility of cancelling a tnai is limited to a tnai of im, or does it extend to a tnai of me-akhshav as well?  It would make sense if one could only cancel a tnai of im but not a tnai of me-akhshav, as we have already mentioned, according to the Rambam.
 
            According to the Rosh, however, it seems that one may even cancel a tnai of me-akhshav.  Since he views the tnai as an external separate entity (both im and m-akhshav) "ati dibur u-mevatel dibur" and one may uproot the tnai completely, leaving the act intact, as if the tnai never existed.  The Ittur (quoted by the Rosh Gittin 76a) maintains that one may cancel the act made with the tnai.  Accordingly, even if the tnai is fulfilled, it should not be considered as fulfilled, and the act would not be valid.  If, for example, a man divorces his wife on condition that she pays him 200 zuz (a certain amount of money) and she forces him to accept the money, before he receives the money he can say that he no longer wants this tnai and she will consequently not be divorced.  This din, according to the Ittur, applies both to a tnai of Im as well as a tnai of me-akhshav.  Apparently, the Ittur believes that even with a tnai of me-akhshav, the tnai and the act are interdependent.  As long as the tnai has not been fulfilled, the one who made the tnai leaves open the option of changing the act through changing the tnai.
 
D. What happens when the tnai is fulfilled through "oness" (extenuating circumstances)?
 
            The Ran in his commentary on the Rif, quotes a discussion between R. Yochanan and Reish Lakish in the Yerushalmi (Kiddushin, ch. 3), when one is prevented from fulfilling a tnai due to extenuating circumstances.  If, for example, a man marries stipulating that he should give his wife a certain sum of money by certain date, and this man is prevented from fulfilling the tnai because of some oness (circumstances beyond his control), according to R. Yochanan, we nevertheless regard the tnai as not having been fulfilled.  According to Reish Lakish, however, we consider the tnai as having been fulfilled.  The Ran seems to explain that the argument revolves around how we understand the words of the one who made the tnai.  Reish Lakish understands that he had absolutely no intention of being bound by his tnai in a situation of oness.  R. Yochanan argues that since kiddushin depends on the agreement of his wife, his personal intentions are not the sole factor.  She accepts the kiddushin on a certain condition regardless of what his intentions were, and if the condition is not fulfilled, there is no kiddushin.  The case of the Yerushalmi is where, due to oness, the tnai could not be fulfilled.  There is a similar case in which the tnai was fulfilled due to oness.  For example: marriage on condition that the man doesn't return by a specific date, and unforeseeable circumstances beyond his control prevented his return, thereby fulfilling the condition of not returning.  The Ran implies that Rav Yochanan and Reish Lakish argue in this case as well.  The Ra'a in Ketubot (2b) argues that in this case everybody agrees that the tnai is not considered to be fulfilled due to oness.
 
            We can understand the argument between the Ran and the Ra'a as follows: We have already explained that the Ran views the tnai as an integral component of the act.  In order to consider the oness as the fulfillment of the tnai, we have to say that there was no intention that the tnai should apply to a case of oness, (as the Ran explains the waiving of a tnai in Ketubot 72b, mentioned previously). 
 
            The Ra'a argues that when the tnai is fulfilled due to oness, it is considered as if the main act (i.e. the kiddushin) was performed against his will retroactively. Here we have a clear expression of the approach which identifies the act with the tnai.  When the kiddushin depends on a tnai, the act of kiddushin changes.  The tnai becomes part of the act of kiddushin, and when the tnai is fulfilled through oness, it is as if the entire act of kiddushin occurred through oness. It is only in the case of the Yerushalmi, where where fulfillment of the tnai was prevented due to oness, that a machloket between R. Yochanan and Reish Lakish can be entertained.
 
E. Is one allowed to get married before the tnai of a geirushin is cancelled or fulfilled?
Note: This question is limited to a tnai which works retroactively i.e., me-akhshav or al menat.
 
            Many Rishonim agree that if it is up to someone else to fulfill or cancel the tnai, there is reason to fear that it might not be fulfilled or cancelled.  Consequently, one would be forbidden to remarry until the tnai has been clearly fulfilled or cancelled.
 
            If the tnai of the geirushin rests solely upon the wife, e.g. Her husband gives her a get on condition that she does a certain act, we are concerned than an oness might prevent her from fulfilling that condition and she may not remarry.  However, if the requirement of the tnai is that the wife be passive, e.g. her husband give her a get on condition that she refrains from doing a certain act, she may remarry immediately since we are not worried that she might not fulfill thiscondition.  (Rosh, Gittin 9:2 in the name of the Behag.)
 
            The Rambam (Hilkhot Geirushin 8:1), however, postulates that whenever the tnai rests solely in the hands of the wife receiving her get, whether the requirement be active or passive, she may remarry immediately.
 
            A third opinion, that of R. Hai Gaon, states that she may not remarry until the tnai has been fulfilled, even if it rests solely in her hands and it is a passive requirement!  (This opinion is ascribed to R. Hai Gaon in the Ba'al Ha-ma'or on Gittin ibid., and in the Tosafot Rid on Gittin 82a, in the name of Rabeinu Chananel.)  We can understand this argument in one of a few ways:
 
1) The simple approach is they dispute the degree of concern that the tnai may not be fulfilled or cancelled.
 
2) Alternatively, a more essential point might lie at the forefront of their argument.  To what extent do we view the tnai as part of the act of geirushin or kiddushin: to what extent are these acts incomplete without the fulfillment of the tnai?  If the tnai is part of the act, she may not remarry immediately.  Even in a tnai of me-akhshav, since the tnai has the capability of uprooting the act retroactively, the separation effected by the get (i.e., the keritut) is not decisive enough to allow her to remarry until the tnai is fulfilled.  This would explain R. Hai Gaon's point of view.  Many Rishonim follow the same basic trend yet differentiate between active and passive requirements of the tnai.  Accordingly, where the tnai is active the divorce is incomplete, and the woman cannot yet remarry.  However, where the tnai is passive the divorce is complete and the woman may remarry, despite the possibility that the divorce can be
nullified retroactively.
 
3) Another possibility is that it depends on whether a tnai me-akhshav falls under the classification of the laws of tnai, or the laws of a mistaken transaction.  According to the former, we are concerned that the condition might not be fulfilled and the keritut is not sufficiently decisive.  She may not therefore remarry until the condition is fulfilled.  According to the latter, the geirushin in itself is a complete act and we are not concerned about the possibilities of not fulfilling the tnai.  Consequently, she may remarry immediately.
 
(This shiur was translated by Ilan Raanan.)
 
Sources for next week's shiur on Kiddushin 61a -
 
Mi-khlal lav ata shomeia hen - tnai kaful:
 
Basic gemara:
1. Kiddushin 61a: Learn the mishna and the gemara until the mishna on 62a and pay particular attention to Rashi on page 61a.
2. Tosafot ad loc., s.v. Kol; Ramban ad loc., s.v. Kol "... nami ba'i R.M. tnai kaful"; Tosafot Ha-Rosh ad loc., s.v. Rabbi Chanina.  In your opinion, what might be the reasoning behind the machloket between the Ramban and Tosafot on the one side, and Rashi on the other?
3. Tosafot Kiddushin 49b, s.v. Devarim; delineate the two views reflected in Tosafot.  In your opinion, what idea might motivate the difference between these views?  See VBM shiur on Kiddushin #20, section I, part c.
4. Mi-khlal hen versus tnai kaful:
a) Solely on the basis of the mishna, in your opinion what might be the possible explanations behind the machloket of R.M. and R.H.?
b) What major difficulty can a student of gemara see in the direction the gemara takes starting on 61b "bi-shleima le-R. Meir ..." until the mishna on 62a?
Tosafot s.v. Bi-shleima Le-R. Meir (61b); Shavuot 35a, the mishna, "ha-mekalel atzmo ... peturin;" Rashi ad loc. Ibid.
36a "al yakekha ..." until the end of the chapter.[Rambam Hilkhot Nedarim 1:18-20; Ra'avad ad loc.; Tosafot Nedarim 11b, s.v. Tania].
Tosafot Kiddushin 62a, s.v. Bi-shleima le-R. Chanina; ibid., s.v. Bi-shleima le-R.M. hainu.