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38 [1] **One who Betroths Conditionally and All the Laws Concerning Conditions** • 39 Paragraphs
One who betroths conditionally--if the conditions are fulfilled she is betrothed, and if not she is not betrothed, whether the condition shall be from the man or from the woman. [2] Every condition has to meet four requirements and they are:
a) that it have a double formulation
b) that the affirmative clause be before the negative clause
c) that the conditional should be expressed before the actual action is expressed
d) that the conditions be a thing possible to fulfill and if the condition is lacking one element, behold the condition is null and void, as if there had been no condition at all, rather she will become betrothed immediately as if he had not stipulated at all. (If he mentioned a negative before a positive, and then repeated the negative after the positive, there exists a condition, as if he had mentioned a positive before a negative.) (Rabbi Nissim B. Reuben Gerondi Chapter *Mi Sheaḥzo*) [3] Anyone who says “from now” or “*al menath*” need not double his condition and put the condition before the act. However, he must conditionalize something that is possible to fulfill. There are those who disagree and say that even if he said “from now” or *al* *menath* all four elements in the condition are still needed. [Note: There are those who say that even if he does not express all the laws of conditions but simply said that he makes a condition like the condition of the Gadites and the Reubenites, behold this is a complete condition. (*Hagahot Maimon* Chapter 6)] [4] And one says further that these four elements are not required in a condition. Except, in an instance where the consequences are stringent, but not where the consequences are lenient. [Note: And there are those who say further, that even though there are all four elements in the matter, we also require that the condition should refer to one matter and the act to another, but if all refers to one matter it is not a valid condition. (R. Asher Ben Yechiel and Tur) And we have to consider his words in a stringent sense, if he makes a condition with her that she should eat pork or anything else prohibited by the Torah, this is called “possible to fulfill” (Tur). But if he makes a condition with her that she should have sex with one prohibited to her, it is called impossible to fulfill, for afterwards he would not be reconciled to what happened with her (*ibid*). But if he makes a condition with her that Ploni should give him his property, or he should marry off his daughter to his son, this is called possible to fulfill since she could give Ploni much money until he becomes reconciled to the matter. (this is also *ibid*) (See below section 143, paragraph 12) [5] If he stipulated at the time of betrothal that she will not receive sustenance and clothing his condition stands; he does not owe them to her. However if he stipulated that he is not obligated to marital duties his stipulations are void and he is obligated to do this to her. [Note: Because anyone who makes a condition over and against what is written in the Torah and it does not involve money his condition is void (his opinion).] And there are those who say that all that which our Rabbis ordained is similar to that written in the Torah. (*Hagahot Maimon*, beginning of *Hakotev*). [6] If he gave her a *Prutah* and said to her “Be betrothed to me with this on the condition that I will give you a *maneh*.” When the condition is fulfilled the betrothal will take effect retroactively even if he did not say “from now.” For anyone who says *al* *menath* it is as if he had said “from now.” Yet if she accepts betrothal from another before the conditions are fulfilled and afterwards the conditions were fulfilled, the betrothal of the second man is void. But if he said to her “on the condition that I will give to you a *maneh* within 30 days,” if he gave it to her within the thirty days behold it is a betrothal retroactively; if he did not give it within thirty days she is not betrothed, and if she accepts betrothal from another man during the thirty days she is betrothed but she is not betrothed until thirty days. When the thirty days are completed if the conditions of the first man are not fulfilled the betrothal of the first man is cancelled and the betrothal of the latter is complete and she does not require a bill of divorce from the former. If the former fulfills his condition she does not require a bill of divorce from the latter. [7] If he did not say to her *al* *menath* but rather he said “if I give you a *maneh* within thirty days you will be betrothed to me by this *Prutah*,” the betrothal takes effect only from the time that he gave it to her; therefore if another betrothed her before the condition is fulfilled she is betrothed to the second (see below the end of paragraph 9 nearby). [8] He who says to a woman “Behold you are betrothed to me on the condition that my father approves;” if the father approves she is betrothed, if he does not approve or is silent or died before he could hear the matter she is not betrothed. [9] “On the condition that my father will not protest,” if he hears and protests she is not betrothed. If he does not protest or dies behold she is betrothed (see close to here end of paragraph 10), if the son dies and afterward the father hears, we instruct the father that he should say “I do not approve,” in order that there will be no betrothal and that she will not be subjected to the position of *Yibbum*. There are those who say that one who says “on condition that he approves” has the same ruling as one who says that he will not protest. There is one that says that the ruling is the same as one who says: “on condition that he be silent.” [10] If he said on condition that he will say yes, even though he said at the beginning “I don’t approve,” as long as he reconsidered and said, “yes,” the condition is fulfilled (therefore there is always doubt until the death of the father). And he who says on the condition that he is silent, if he is silent at the time of hearing she is betrothed even if he reconsidered and protested. [Note: However, if he was not in his house when he heard and when he came to his house he protested, it is a valid objection, since the reason he was silent at first was because he was not in his house (this is the implied meaning in R. Isaac Ben Sheshet Chapters 14 and 153).]
If he protests at the time of hearing, even if he reconsiders and becomes reconciled to it she is not betrothed. If the father dies so that he never heard she is betrothed, and if he said on the condition that he will not protest, as long as he protests the condition is cancelled, and even if he accepted at the time of hearing. [There are those who say that if he says yes one time he is not again able to protest (Tur).] [11] If the son dies we instruct the father that he should protest in order that she not be bound to the *Yibbum*. [12] If he said to her “be betrothed to me by a *Prutah* on condition that I will work with you like a laborer,” or “I will speak to the government,” if there are witnesses that he worked with her like a laborer, or he spoke to the government she is certainly betrothed, but if there are no witnesses she is betrothed out of doubt. [13] If he did not give her anything and said to her “Be betrothed unto me” in lieu of the payment that I will work with you as a laborer, or I will speak about you to the government, she is not betrothed because a hiring extends from the beginning until the end of the work, and thus one has a case of betrothing through a loan. [14] On condition that I have a *maneh*, if it is known by testimony of witnesses that he has a *maneh* she is certainly betrothed; if it is not known she is betrothed due to the doubt, even if he says I do not have the money. [15] “On condition that I have a *maneh* on deposit with Ploni,” if it is known through witnesses that he has a *maneh* on deposit with Ploni she is betrothed certainly, but if it is not known, she is betrothed due to the doubt even if the same Ploni says “he has nothing on deposit with me.” [16] “On condition that Ploni will say that I have a *maneh* deposited with him” if he said he has it deposited with me she is betrothed. If he did not say “he has it on deposit with me” she is not betrothed. [17] On condition that I have a *maneh* in a specific place, if he has it in that same place behold she is betrothed. If he does not have it in that same place that he said behold she is doubtfully betrothed. Because perhaps he has it in that same place but he intends to harm her. [18] “On condition that I show you a *maneh*, she is not betrothed until he shows her the *maneh* of his. Even if he shows her a *maneh* that he has from dealing with others she is not betrothed. [Note: There are those who say that even if his portion of the profit comes to a *maneh* she is not betrothed for they still have not divided the profit. (R. Nissim B. Reuben Gerondi Chapter *Haomer*.) If he shows her a *maneh* of his own, and it is collateral to a creditor, she is betrothed. (Rabbi Yerucham in the name of R. Meir Ha Levi). If he did not have it at the time of betrothal, and earned it afterward and then showed it to her there are those who say she is betrothed (Tur). But if he said to her “on condition that I have it,” in this case everyone agrees that she is not betrothed. (*Sefar* *Ha* *Trumah*.) And we do not fear it lest he shows her it afterward, so that it would be a doubtful betrothal (Tur). If he said to her on condition that he will bring her two hundred Zuz, the ruling is the same as “on condition that I show you a *maneh*,” and it must be of his own (R. Solomon Ben Adret *ṁitshuvah*, cited in *Bet* *Yosef*).] [19] On condition that I have a *bet* *khor* *of* *land* if there are witnesses that he has, behold she is betrothed, and if not, then she is betrothed out of doubt, lest he has it and says “I do not” in order to harm her. [20] “Behold you are betrothed to me with this,” on condition that I have a *bet khor of land* in a specific place.” If he has in that same place she is betrothed with certainty; if not she is betrothed out of doubt, lest he have it there and he intends to harm her. [21] “On condition that I show you a *bet khor of land*” she is betrothed but he must show it to her. And if he showed rented from others or he took it as a share cropper she is not betrothed. [Note: But if he has land from which he pays taxes behold she is betrothed--For behold it is still his land, but provided that he has a *bet khor of land* which he does not pay taxes because “on condition that he have a *bet khor of land*,” means that it should be entirely his. (R. Nissim B. Reuben Gerondi Chapter *Haomer*.)] [22] If he has a *bet khor of land* and there are ravines ten fists deep or boulders ten fists high; or gullies full of water, they are like boulders. They are not to be counted with it since they are not suitable to plant. If they are not filled with water they are measured with it since they are suitable for planting. And a cistern filled with water, even though it is not sowable it is measured with it. [23] A *bet khor of land* that he mentioned, must be in one place (boulders and ditches do not separate the land even though they are not measured with it) (R. Nissim B. Reuben Gerondi Chapter *Haomer* in the name of R. Solomon Ben Adret). However if it is in two or three completely different places they do not combine. [24] “On condition that I am rich, and found to be poor or poor and found to be rich”; “On condition that I am a Priest and found to be a Levite or a Levite and found to be a Priest;” *Netin* and found to be a *Mamzer* or *Mamzer* and found to be *Netin*; a town dweller and found to be a city dweller or a city dweller and found to be a town dweller; “on condition that my house is close to a bath” and it is found to be far, far and it is found close; “on condition that I have a slave girl” or “grown daughter or a baker” and he does not have, on condition that he does not have and he has; “on condition that he has a wife and sons” and he does not, on condition that he does not have and he does have; in all of these, or if he said I betrothed you to me with this cup of wine and it is found to be honey or honey and it was found to be water, for example that it was covered and she did not recognize it until afterwards, in all these and similar events even if she said “in my heart I intended to be betrothed to him,” even if the condition is not fulfilled she is not betrothed. It makes no difference if she accepts the betrothal; it makes no difference if she told the agent to accept for her with conditions and the agent changed it, and the same holds true if she deceived him, even if he said “In my heart I intended to betroth her” even though she fooled me, she is not betrothed. [Note: Except if afterwards she explicitly said so at the time of betrothal and the husband heard and was silent (Tur) and similarly if she deceived him (and he said explicitly, even if it was not the case) the betrothal is betrothal.] However if he married her and he said “I thought that she was a Kohenet and she is a Levitess,” or a Levitess and she is a Kohenet, rich and she is poor, poor and she is rich behold she is betrothed. [25] “On condition that I know to read”: it is necessary that he read the Torah and he translate according to the Targum of Onkelos the Proselyte. (There are those who say that if he knows to read and to translate three verses it is enough), yet if he said to her on condition that I am an expert in scriptural reading he needs to know Torah, Prophets and Writings accurately. [26] “On condition that I know to study *Mishnah*,” it is necessary that he know the *Mishnah* (There are those who say that if he knows the talmudic midrashim she is betrothed) (Tur in the name of the Rabenu Asher) if he said on condition that I am an expert in Tannaitic Literature it is necessary that he know to read the *Mishnah*, *Siphra*, *Siphray* and the *Tosephta* of Rabbi Hiyah. [27] “On condition that I am a student,”: they ask him one thing that he studied and he says it even of the laws of Hag, that they are taught in public from the easier subjects, close to *Hag* in order that all the people will be knowledgeable in them. [28] “On condition that I am a scholar”: they ask a matter of wisdom that is dependant on thinking in any place and he said it. [29] “On condition that I am valiant”: any person whom his friends fear because of his strength. [30] “On condition that I am rich”: anyone whose fellow inhabitants of his town honor him because of his wealth. [31] “On condition that I am righteous”: even if he is completely wicked she is betrothed out of doubt, for perhaps he contemplated repentance in his mind. [32] “On condition that I am wicked”: even if he is a completely righteous man she is betrothed out of doubt, for perhaps in his mind he contemplated idolatry. [33] “On condition that I am a town dweller,” and he is found to be both a town and a city dweller; “on condition that I am a spice merchant,” and he is found to be both spice merchant and a tanner (meaning one who is a craftsman who makes leather); “on condition that my name is Joseph” and if it is found that his name is Joseph and Simon; behold she is betrothed, but if he said “on condition that my name is only Joseph,” and it is found that his name is Joseph and Simon; or “that I am a town dweller” and it is found he is a town dweller and a city dweller, or “that I am just a spice merchant” and it is found that he is a spice merchant and a tanner; she is not betrothed. [34] He who betrothes a woman and immediately changes his mind he or she, even though they changed their mind in the shortest possible span of time, their regrets are meaningless; and she is betrothed. [35] He who betrothes conditionally and changes his mind after a number of days and voided the conditions: even though he voided it just between himself and between her, not before witnesses, the condition is voided and she is simply betrothed, and thusly, if the condition was from the woman and she voided it just between herself and between him the condition is void. Therefore, he who conditionally betrothes, and then simply had intercourse or just married in a simple manner requires a bill of divorce, even though the condition was not fulfilled, lest he voided the condition when he had sex or when he married her (and if another betrothed her she requires a bill of divorce from them both). [36] He said to her “become betrothed unto me with this *Prutah* on condition that I give you a *maneh* and afterward he said that he does not want to ever fulfill the condition, we do not force him to fulfill it, rather his betrothal is nullified and she does not require a bill of divorce; and in any case a worthy person will not marry her without a bill of divorce lest afterwards (he says he wants to fulfill the conditions) to harm her because of the second, if he says that he still wants to fulfill it we are not able to force him all twelve months according to the law of time that is given to a virgin; and from twelve months and onward we issue him a contempt citation; and if he dies before he fulfilled the condition, even *Halitza* is not necessary and if she renounces the condition during the lifetime of the betrother, the betrothal is complete as if it were fulfilled, and all of this applies only if he did not marry her, but if he did marry her she is validly betrothed immediately, since generally at the moment of her entering the *Ḥuppah*, she foregoes the condition and he is obligated to give her her *Ketubah*. [37] One that travels faraway and betrothes with one of the daughters from there saying on condition, “I return twelve months from now you will be betrothed from this moment,” and before he left they both agreed to extend the time, and twelve months passed and he did not return, but he returned before the new deadline, there is a valid betrothal, for all deeds which are done on condition can cancel the condition (or to add or to subtract from it) (R. Asher Ben Yechiel and Rabbi Yerucham) and even if the money has been spent, it is a valid betrothal retroactively when the second condition is fulfilled. [38] In betrothal, where the condition is to his advantage, for example: on condition that she has no blemishes or that she is not under vows, he can cancel it. However if it is to the advantage of the woman, for example “on condition that I will give two hundred Zuz” granted that he can cancel the condition in any case she is not betrothed if he does not give her two hundred Zuz. [39] If one says to a woman “Behold you are betrothed to me, except when it comes to Ploni” which is to say that she is not forbidden to him rather that she is a married woman in the eyes of the whole world, and to Ploni she is available, behold she is betrothed out of doubt. However if he said to her “behold you are betrothed to me on condition that you will be permitted to Ploni,” she is betrothed, and she will be as forbidden to him as she is to the rest of the people because he conditioned by a thing that is impossible to fulfill. [Note: There is a disagreement whether the condition can be fulfilled or not. There are those who say that in every condition that depends on action, no one party is trusted to say that he fulfilled the condition that was upon him to fulfill; rather he needs witnesses. But where the condition is passive either of them is believed if the other party does not dispute it. (Rabbi Nissim Ben Reuben Gerondi Chapter *Haomer* in the name of the *Aḥaronim*). There are those who say that even in active cases he is also believed as long as the opposing party does not dispute him (Rabbi Moses Ben Nachman and Rabbi Yizhak).]
Version: Hilchot Kidushin, trans. by Steven H. Garten. HUC, 1975
Source: http://library.huc.edu/pdf/theses/Garten%20Steven%20Howard-CN-Rab-1975%20rdf.pdf
License: CC-BY