SHIUR # 20: TNAI

                 by Rav Herschel Schachter

                 (Summary by Aaron Frazer)

 The Yeshiva had the honor and pleasure of a  visit from R. Herschel Schachter, Rosh Kollel at Y.U.  The  following summary of a shiur which he presented has been  condensed because of space considerations. All unclarity and/or mistakes are my own, and should not  be attributed to R. Schachter.

 I.  Tnai and Ta'ut

A. The Distinction

R. Akiva Eiger discusses a case in which a man had been  courting a woman for a lengthy period, and was then tricked  into marrying another woman.  R. Eiger rules that the  kiddushin are invalid, because a tacit condition, or "tnai,"  exists in such a case, stipulating that the man intends to  marry only the woman he was courting, and no other.  Many  challenge R. Eiger, maintaining that in this case the  kiddushin are invalidated for a more basic reason - there is  an error, or ta'ut, on the part of the man.  Tnai and ta'ut,  they explain, are distinct halakhic categories.  In the case  of tnai there is a legitimate transaction, based on  essentially valid consent.  The transaction is merely  regulated by a given variable which is introduced as a factor  EXTERNAL to the essential consent.  A ta'ut, by contrast,  undermines the basic agreement; one who is misinformed is  considered never to have consented at all to any transaction.   Hence, agreements based on misinformation are invalidated for  a far more fundamental  reason.  This distinction between tnai  and ta'ut,  which is drawn by R. Chaim of Brisk, among others,  makes R. Eiger's explanation very difficult to understand.

B. Nafka Minot (Ramifications)

R. Chayim's distinction can be illustrated through  various nafka minot (practical differences).  Masekhet  Kiddushin (perek 3) discuss the possibility of  making a tnai  when one marries a woman.  As explained there, the format of  such a tnai must be structurally similar to the condition  which Moshe made with the tribes of Reuven and Gad (see  Bamidbar 32).  This format is comprised of various  characteristics, the "mishpetei ha-tnaim," (such as the  explicit statement of both possibilities, the statement of the  positive before the negative, and others,) which are mandatory  when stipulating a tnai.  The failure to conform to these  parameters invalidates the tnai, rendering the transaction  unconditionally valid.  The requirement for adherence to the  mishpetei ha-tnaim is limited to tnai, as opposed to ta'ut; if  one states that he has a certain understanding when making a  transaction, the transaction will be considered a ta'ut if he  was mistaken, even if he did not formulate his assumption in  accordance with the mishpetei ha-tnaim.

Another difference relates to the possibility of   "disarming" a tnai at a point subsequent to the transaction.   Even when two parties make an agreement with a tnai, they can  revoke the tnai at a later stage, and the agreement will stand  unconditionally, with no need to re-enact the original  transaction.  The Kesef Mishneh cites the Ran who limits this  halakha specifically to a tnai, as opposed to a ta'ut.  For  example, if a woman agreed to marry a man based on the  understanding that he is a kohen, and he is actually not, even  if she later wishes to uphold the original marriage despite  her error, there is no way to do so.  The initial kiddushin  are absolutely worthless, and new kiddushin are required if  the couple wishes to be married.  This difference in halakha  can be understood based on the theoretical distinction  elaborated above;  one can remove an external impediment to a  transaction at a later point, but if there never existed  consent to the transaction on a basic level it is not  salvageable.

C. Problem of Potential Overlap

Clearly, in any case where one needs to make a tnai, the  implication is that without the formal tnai (in accordance  with mishpetei ha-tnaim etc.) the transaction would stand  unconditionally.  Why can we not say that every tnai which has  a technical defect still serves to create a situation of   ta'ut?  Clearly, tnai and ta'ut apply to two distinct cases,  and only in those cases where ta'ut is not applicable will the  need for a tnai arise.  The difficulty lies in defining the  precise border between tnai cases and ta'ut cases.

There are 4 basic approaches to this issue in the  Rishonim:

RAMBAN: The distinction is based on chronology.  Any  stipulation which relates to the FUTURE ("if you will/will not  X, then Y") is a tnai, and requires mishpetei ha-tnaim.  Any  stipulation which relates to the PAST or PRESENT ("if you  have/have not done X then Y", etc.) is an application of   ta'ut.

TOSAFOT: In the event of an umdena de-mukhach, a reasonable  assumption, that one enacting the given transaction would  demand the given condition (e.g.: one who buys a car assumes  it has an engine, etc.), the rule of ta'ut applies.   Otherwise, one must stipulate a tnai explicitly, in accordance  with the mishpetei ha-tnaim.

RA'AVAD (& OPINION CITED AND REJECTED BY TOSAFOT): In  monetary  matters, ta'ut is ALWAYS applicable, because the owner of  property can grant or limit his basic consent in any way which  he wants.  However, in matters of issur, such as  marriage/divorce, the institution exists as legislated by the  Torah, and one can make only a tnai, an external constraint.

RAMBAM (as explained by R. Chayim): Any condition in which the  transaction is to take effect immediately ("ME-AKHSHAV"), and  the eventual fulfillment of the stipulation merely REVEALS the  fact that the transaction was valid from its inception, is  considered to be an application of the rule of ta'ut.  By  contrast, a stipulation in which the transaction is POSTPONED  UNTIL THE FULFILLMENT of the condition ("IM") is considered to  be a tnai, and hence the nafka minot cited above ensue.

D. Interpretation of the Rambam

The logic which underlies the Rambam's position is  actually a point of contention between R. Chayim Soloveitchik  vs. R. Moshe Feinstein.  R. Chayim understood that in a  stipulation of Im, the FULFILLMENT of the tnai is a POSITIVE  FORCE which causes the transaction to take effect.  The non- fulfillment of the tnai represents a lack of such a positive  force, and hence there is no transaction.  The reverse is true  of a stipulation of me-akhshav - there the NON-FULFILLMENT of  the tnai constitutes a NEGATIVE FORCE, which mitigates the  earlier effecting of the transaction and nullifies it.  If the  tnai is fulfilled, no such negative force exists, and the  transaction stands by the power of its original inception.   According to R. Chayim's understanding of the Rambam, the  negative force which can undermine the original transaction is  ta'ut, and the positive force which can effect the transaction  is tnai.  The Meiri virtually explicitly takes the same  position.

R. Moshe Feinstein rejected R. Chayim's explanation  because of the following difficulty, originally raised by R.  Moshe Shisgal: The gemara in Ketubot (74a) requires that the  condition in a tnai be one which can be fulfilled via an  agent, a milta de'ita bi-shlichut.  The gemara explains that  this requirement precludes making a tnai in chalitza (levirate  marriage which must be done by the brother of the deceased  personally).  This implies that if chalitza could have been  effected through an agent, it would be possible to make a tnai  in the case of chalitza.

However, a tnai Im, which as we have seen is the only  stipulation considered to be a tnai according to  R. Chayim's  understanding of the Rambam, is not feasible in chalitza for a  separate reason.  When making a tnai Im, where, as we have  seen, the transaction takes effect only at the time when the  tnai is fulfilled, there is a requirement that the original  act, the ma'aseh kinyan, be intact to some extent until the  time when the tnai is fulfilled.  For example, if one bought  land with a document, a shtar, that shtar must still be in the  existence at the time when the tnai is fulfilled.  In  chalitza, of course, this demand cannot be met; the process of  chalitza is instantaneous, and once it is performed there is  no remnant to be spoken of.  Because of this lack, known as  kalta kinyano (i.e., the act of acquisition has ended), there  is no possibility of making a tnai Im regarding chalitza.

Hence, the only type of stipulation which one could  conceivably make regarding chalitza is me-akhshav, (where the  issue of kalta kinyano is not relevant because, as we have  seen, there is no delay in the chronology of the transaction.)   The above mentioned gemara's implication that such a me- akhshav stipulation would be subject to the rule of milta  de'ita be-shlichut seems to indicate an assumption that a  stipulation of me-akhshav is a full-fledged tnai.  This is at  odds with R. Chayim's earlier-mentioned understanding.

Based on this difficulty with R. Chayim's approach, R.  Moshe rejected the understanding that me-akhshav is not a  tnai.  He did, however, agree with R. Chayim's basic premise,  the qualitative difference between me-akhshav and Im discussed  above, resulting in a discrepancy in the requirement for  mishpetei ha-tnaim.  Essentially, R. Moshe maintained that  there is an internal distinction within tnai, and that only  some types of tnai require the mishpetei ha-tnaim.

 II.  Milta De'ita Bi-shlichut

A. Seeming Contradiction

The requirement of milta de'ita bi-shlichut (mentioned  above) is itself somewhat difficult to understand, when one  considers several mishnayot (cited in Tosafot Nazir 11a s.v.  Dihavey) which discuss the possibility of accepting a vow of  nezirut contingent upon a tnai.  Seemingly, this is in direct  contradiction to the criteria of milta deita bi-shlichut - one  cannot appoint an agent to take a vow for him, as there is a  formal requirement of personal verbal expression ("bitui  sefatayim").  If so, how can one stipulate a tnai in the case  of nezirut?

B. R. Chayim's Distinction

R. Chayim explains that we can answer this question  utilizing the understanding of Tosafot (Ketubot 74a) regarding  the source of the requirement of "ita bi-shlichut".  Tosafot  explain that this requirement is not merely a parallel to the  case of Reuven and Gad (because if so, we would require  parallelism to every detail of that case, tnai would be  limited to cases of allocation of the land of Israel, etc.)  but also exists because the fact that one can appoint an agent  demonstrates that he is sufficiently in control of the  transaction to be authorized to make a tnai.  If this is the  case, we can understand why the case of nazir is an exception  to the general rule.  The inability to appoint an agent in  that instance stems not from a lack of control over the  procedure, but from a technical difficulty - the agent has the  wrong mouth, i.e., he cannot take a vow for another.  Hence,  the reason cited by Tosafot is not applicable, justifying the  implementation of a tnai.

The fact that the gemara states that chalitza is not a  milta deita bi-shlichut indicates that in chalitza there is a  fundamental lack of authority to regulate the process and it  is not merely because the agent lacks the foot of the choletz.   This is why one can neither stipulate a tnai nor appoint a  shaliach.

 III.  Ma'aseh and Chalut

A. The Issur of Ma'aseh/Chalut in a Case of Tnai

Another question we might ask about tnai is: When a tnai  is not fulfilled, does this mean that the very process, the  ma'aseh, which was intended, is considered never to have  happened, or that merely the intended chalut (legal result) is  not effected, but the process is considered to have taken  place.  [In a case of ta'ut, it is clear that there is not  even a ma'aseh.]

One nafka mina of this question is re'ach ha-get.   Sometimes, even though a get was not technically given, a  woman will still be forbidden to marry a kohen (as if she had  been divorced).  The popular understanding is that re'ach ha- get applies when there is a ma'aseh of divorce, but that the  chalut fails to ensue.  Hence, whether there is re'ach ha-get  when a get is given on a tnai which is not fulfilled becomes a  nafka mina of our question.

The answer depends on a machloket Beit Hillel/Beit  Shammai in Gittin (81a).  Beit Hillel states that there is no  re'ach ha-get, and Beit Shammai states that there is re'ach  ha-get not only in this case, but in any case where a get was  written, regardless of whether it was given at all.  According  to Beit Hillel, apparently, the non-fulfillment of a tnai  undermines even the ma'aseh.  Beit Shammai's position, which  at first seems very surprising, is based on the assumption  that the very writing of the get is part of the divorce  process, which is supported by the requirement that the  writing be done at the request of the husband, and for the  express purpose (lishma) of divorcing this particular couple.

B. The Issue of Ma'aseh and Chalut in a Case of "Le-achar 30"

Another way to postpone a chalut, in addition to the  earlier mentioned tnai Im, is by simply stating that the  chalut will take place only "le-achar X," after X number of  days (the gemara's example is 30).  In such a case, the chalut  is delayed, but is not contingent on anything more than the  passage of time.  Thus, the Rambam writes that it is similar  to a tnai, but not a tnai.  What is the situation in such a  case in the interim period, when one has committed to a  transaction "le-achar 30," but the 30 days have not passed?   Would we say that the ma'aseh has not yet happened, or that  the ma'aseh has happened, and the chalut alone has been  postponed?  (See shiur # 18)

Here too, as in tnai, it would seem that there is not  even a ma'aseh.  This can be illustrated based on the Rambam's  formulation regarding exemption from military service for one  who has recently married.  The Rambam writes (Melakhim 7:7 and  see Kesef Mishneh there) that one who married a woman before a  war is exempt from service, but one who marries during the war  is not.  What if a war broke out in the middle of someone's  "le-achar 30" period?  The Kesef Mishneh and Radvaz (there)  understand that the Rambam believes he is not exempt.  This  would seem to be based on an understanding that until day 30  there is not even a ma'aseh of marriage.

Another nafka mina of this question is for one who stole  an ox or a sheep, and sold it "le-achar 30." One who steals  and then sells such an animal is required to pay a special  fine.  The fine is obviously based on the ma'aseh of the sale,  as a chalut never exists when selling something stolen.  What  would be if the thief was caught in the interim period, before  30 days?  The Rambam (Hilkhot Geneiva 2:11) rules that the  thief is exempt from the fine in such a case; apparently he  holds that there is no ma'aseh (though others argue).

 Sources for next week's shiur "Fulfillment and Cancellation of  Tna'im:"

1. Rambam Hilkhot Ishut 6:15-18; 7:23; Ra'avad ibid., R. Akiva  Eiger ibid. (See Frankel edition.)

2. Rambam Hilkhot Geirushin 8:1; 9:5.

3. Ran (25a in the Rif) "U-beinyan mekadesh al tnai ..."

4. Responsa of the Rosh 35/9, Rashba Gittin 76a s.v. "Veharav  Ba'al HaItur...le'eil."

 Questions:

1. Try to explain the disagreement of the Rambam and the  Ra'avad regarding the requirements of witnesses to cancel a  tnai.

2. What is the argument between the Ramban and the Rashba  regarding the obligation to prove fulfillment of a tnai?

3. How is the Rosh's opinion different than that of the Ba'al  Ha-ittur?

4. Explain the argument between R. Yochanan and Reish Lakish  regarding one who was forced to fulfill a tnai.