006 - הִלְכוֹת אִישׁוּת פֵּרֶק ו

Laws of Marriage, Chapter 6

1. One who betroths a woman on a condition—if the condition is fulfilled, she is betrothed; and if it is not fulfilled, she is not betrothed. This applies whether the condition was made by the man or by the woman. Every condition in the world—whether in betrothal, divorce, sale and purchase, or other monetary matters—must have four elements in the condition.

2. These are the four elements required for every condition: the condition must be doubled; the affirmative part must precede the negative; the condition must come before the act; and the condition must be something that is possible to fulfill. If the condition lacks any one of these, the condition is nullified and it is as if there is no condition at all. Rather, she is betrothed or divorced, or the sale or gift takes effect immediately, as if no condition was made at all, since one of the four elements is missing.

3. How is this? If a man says to a woman, “If you give me two hundred zuz, you are betrothed to me with this dinar, and if you do not give me, you will not be betrothed,” and after making this condition he gives her the dinar—then the condition stands, and she is betrothed on condition. If she gives him the two hundred zuz, she is betrothed; if she does not give, she is not betrothed.

4. But if he said to her, “You are betrothed to me with this dinar,” and gave her the dinar, and then completed the condition and said, “If you give me two hundred zuz, you will be betrothed, and if you do not give me, you will not be betrothed”—the condition is nullified, because he performed the act and gave it to her before making the condition, even though all this was within the time of ordinary speech. She is betrothed immediately and does not need to give him anything.

5. Similarly, if he said to her, “If you give me two hundred zuz, you are betrothed to me with this dinar,” and then gave her the dinar—the condition is nullified, because he did not double his condition, for he did not say to her, “And if you do not give, you will not be betrothed.” She is betrothed immediately and does not need to give him anything.

6. Similarly, if he said to her, “If you do not give me two hundred zuz, you will not be betrothed to me, and if you give me two hundred zuz, you are betrothed to me with this dinar,” and then gave her the dinar—the condition is nullified, because he placed the negative before the affirmative. She is betrothed immediately and does not need to give.

7. Similarly, if he said to her, “If you ascend to the sky or descend to the depths, you are betrothed to me with this dinar, and if you do not ascend to the sky and do not descend to the depths, you will not be betrothed,” and then gave her the dinar—the condition is nullified, and she is betrothed immediately, because it is known that it is impossible for her to fulfill this condition, and this is nothing but exaggeration in jest and mockery.

8. If he made a condition regarding something that is possible to do, but the Torah forbade it—for example, if he said to a woman, “If you eat forbidden fat and blood, you are betrothed to me with this dinar, and if you do not eat, you will not be betrothed; if you eat pork, this is your get, and if you do not eat, it will not be a get,” and after making the condition he gave her the dinar or the get—the condition stands. If she transgressed and ate, she is betrothed or divorced; if she did not eat, she is not betrothed and not divorced. We do not say in this case that he made a condition against what is written in the Torah, for it is in her power not to eat, and she will not be betrothed or divorced.

9. In what case did they say that anyone who makes a condition against what is written in the Torah, his condition is nullified, except in monetary matters? For example, if one betrothed, divorced, gave, or sold on a condition that he wants by his condition to acquire something for himself that the Torah did not grant him, or to exempt himself by his condition from something that the Torah obligated him in—then we say to him, “Your condition is nullified, and your act has already taken effect, and you are not exempt from what the Torah obligated you in, and you do not acquire what the Torah withheld from you.”

Laws of Marriage, Chapter 6

10. How is this? For example, if a man betroths a woman on the condition that she will not have upon him the obligations of sustenance, clothing, and conjugal relations—so that they say to him: "As for clothing and sustenance, your condition is valid, because it is a monetary condition." But regarding conjugal relations, your condition is void, for the Torah has obligated you in conjugal relations. Therefore, she is betrothed, and you are obligated in her conjugal relations; you do not have the ability to exempt yourself through your condition. The same applies to all similar cases. Likewise, if one betroths a captive woman of beautiful form on the condition that he may enslave her, she is betrothed, but he may not enslave her, for the Torah has prevented him from enslaving her after she has been with him; and he does not acquire through his condition something that the Torah has prohibited him from, rather, his condition is void. The same applies to all similar cases.

11. If he made a condition with the woman at the time of betrothal or at the time of divorce that she must have relations with her father, her brother, or her son, or the like—this is like one who made a condition with her that she must ascend to the sky or descend to the depths; his condition is void, for it is not within her power to cause others to commit a forbidden act, and it turns out that he made a condition regarding something that is not within her ability to fulfill. The same applies to all similar cases.

12. But if he made a condition with her that a certain person must give him his courtyard, or that a certain person must marry his daughter to his son, or the like—his condition is valid, for it is possible for her to fulfill it, by giving that person much money until he gives him his courtyard, or until he marries his daughter to his son, since there is no transgression here. The same applies to all similar cases.

13. Keep these matters of conditions always before your eyes, and wherever you hear of someone betrothing on such-and-such a condition, or giving a get on such-and-such a condition, or selling, or giving on a condition, know that the condition must have these four elements that we have explained, so that we will not need to explain them in every single place; and if one of them is lacking, there is no valid condition.

14. Some of the later Geonim have said that a person does not need to double his condition except in divorce and betrothal alone; but in monetary matters, there is no need to double it. But it is not proper to rely on this, for the doubling of the condition, together with the other four elements, was learned by the sages from the condition of the children of Reuven and the children of Gad: "If the children of Gad will cross... and if they do not cross" (Bamidbar 32:29-30)—and that condition was not in divorce or betrothal. And so ruled the great early Geonim, and so it is proper to do.

15. One who betroths on a condition—when the condition is fulfilled—she becomes betrothed from the time the condition is fulfilled, not from the time of the betrothal. How so? If one says to a woman, "If I give you two hundred zuz this year, you are betrothed to me with this dinar, and if I do not give you, you will not be betrothed," and he gives her the dinar in Nissan, and gives her the two hundred zuz that he stipulated in Tishrei—she is betrothed from Tishrei. Therefore, if another man betroths her before the condition of the first is fulfilled, she is betrothed to the second. The same law applies in divorce and in monetary matters: at the time the condition is fulfilled, that is when the get, the sale, or the gift takes effect.

16. In what case are these words said? When there was a condition, and he did not say "from now." But if he said to her, "Behold, you are betrothed to me from now with this dinar, if I give you two hundred zuz," and after some time he gave her the two hundred zuz—she is betrothed retroactively from the time of the betrothal, even though the condition was not fulfilled until much later. Therefore, if another man betroths her before the condition is fulfilled, she is not betrothed to him. The same law applies in divorce and in monetary matters.

17. Anyone who says "from now," does not need to double the condition, nor to state the condition before the act; rather, even if the act precedes the condition, the condition is valid. However, one must make a condition regarding something that is possible to fulfill; and if he makes a condition about something that cannot be fulfilled, this is considered as speaking in exaggerations, and there is no condition at all. And anyone who says "on condition"—this is like saying "from now," and he does not need to double the condition, nor to state it before the act.

18. How is this? If one says to a woman, "Behold, you are betrothed to me on condition that you give me two hundred zuz," or, "This is your get on condition that you give me two hundred zuz," or, "This courtyard is given to you as a gift on condition that you give me two hundred zuz"—the condition is valid, and the woman becomes betrothed, or divorced, or this person acquires the courtyard; and they must give the two hundred zuz. And if they do not give it—she is not betrothed, and she is not divorced, and this person does not acquire the courtyard. And even though he did not double the condition, and even though the act preceded the condition, and he gave the betrothal or the get into her hand, or this person took possession of the courtyard, and only afterwards the condition was fulfilled: when the condition is fulfilled, this person acquires the courtyard, and she becomes betrothed or divorced from the first moment the act was done, as if there had been no condition at all.