Friday, July 22, 2011

The condition made with Gad and Reuvain

The passuk says in this week's sedrah;
וַיֹּאמֶר מֹשֶׁה אֲלֵהֶם אִם יַעַבְרוּ בְנֵי גָד וּבְנֵי רְאוּבֵן אִתְּכֶם אֶת הַיַּרְדֵּן כָּל חָלוּץ לַמִּלְחָמָה לִפְנֵי ה' וְנִכְבְּשָׁה הָאָרֶץ לִפְנֵיכֶם וּנְתַתֶּם לָהֶם אֶת אֶרֶץ הַגִּלְעָד לַאֲחֻזָּה. וְאִם לֹא יַעַבְרוּ חֲלוּצִים אִתְּכֶם וְנֹאחֲזוּ בְתֹכְכֶם בְּאֶרֶץ כְּנָעַן.
"And Moshe said to them, if every soldier from Gad and Reuvain pass over the Yarden with you before Hashem and the land is conquered before you then you should give to them the land of Gilad as their portion. And if they do not pass armed with you then they will settle amongst you in the land of Kena’an."

The mishna in Kiddushin (61a) says;
ר' מאיר אומר כל תנאי שאינו כתנאי בני גד ובני ראובן אינו תנאי: שנאמר ויאמר אליהם אם יעברו בני גד ובני ראובן וכתיב ואם לא יעברו חלוצים
“Rebbi Meir says – every condition that is not like the condition that Moshe made with Gad and Reuvain concerning their portion in Eretz Yisrael is not a condition – as the passuk says ‘And he said to them – If Gad and Reuvain go ahead [then they will receive the land to the east of the Yarden]’, and it says ‘and if they will not pass ahead armed [then they will not receive this land]’.”

Moshe doubled the condition that he made with Gad and Reuvain and specified that if they would pass ahead of the benei yisrael then they would receive the land to the east of the Yarden, he also specified that if they would not pass ahead then they would not receive this land.

Rebbi Meir derives from this that any time a condition is made concerning a legal transaction, the terms of the condition have to be repeated once for what will happen if the person does fulfill the condition and once for what will happen if the person does not fulfill the condition. If this is not done then the transaction will proceed regardless of whether the terms of the condition are met or not.

The Rambam in Hilchos Ishus (6:2 and 14) paskens like Rebbi Meir and says that legal conditions have to be doubled, however, in הלכה‏ י”ז the Rambam says;
כל האומר מעכשיו לא יצטרך לכפול תנאו ...
“If someone says that the contract should take effect from now when the condition is met then he does not need to double the condition...”

For example, if Moshe had said that Gad and Reuvain would own the land of Gilad from the time that he made the condition with them if they fought in Kenaan, then he would not have had to double the condition. The reason that he had to double the condition it is because he said that they would only gain ownership of it in the future after they had conquered Eretz Yisrael.


Sotah
The Mishneh le'Melech asks on the Rambam from the gemara in Kiddushin (62). The gemara asks a question on Rebbi Meir from the first shevuah that the cohen makes a sotah make. The cohen only says that if the woman is innocent then she should not be punished, it does not say that if she is guilty then she should be punished. According to Rebbi Meir the cohen should have to speak out both sides of the shevuah?

The Mishneh le'Melech asks that in this case, the cohen is saying that the onesh should happen to the sotah now if she is chayav. According to the Rambam, in this case even Rebbi Meir would agree that we do not need a double tnai. How then can the gemara ask on Rebbi Meir from this passuk?

The Kehillas Yaakov (Nedarim 11) explains as follows;
The gemara says in Nedarim (11a) that according to Rebbi Meir you do not say miklal hein atah shomeah lav. That means that according to Rebbi Meir you cannot infer the positive side from the negative side or vice versa.
מני מתניתין? אי רבי מאיר, לית ליה מכלל לאו אתה שומע הן, דתנן: רבי מאיר אומר: כל תנאי שאינו כתנאי בני גד ובני ראובן, אינו תנאי.
"Who is the tanna of the mishna [that implies that in nedarim you can infer a positive condition from a negative condition]? If it is Rebbi Meir – he does not hold that you can infer a positive statement from a negative statement as we have learnt Rebbi Meir says - any condition that is not like the condition of Gad and Reuvain is not a condition."

However, this is not enough to explain the halacha of Rebbi Meir. Let us say for example that a man said to a woman that she should be mekudeshes to him on condition that she gives him 200 zuz, and he does not say what will happen if she does not give him 200 zuz. According to Rebbi Meir, even if she does not give him 200 zuz she is still mekudeshes. This cannot be explained wholly by the gemara in Nedarim. Although you cannot infer what will happen if she does not give him 200 zuz, he still did not specify that in this case she should become mekudeshes to him. Although it is not as if he said that if you do not give then you will not be mekudeshes, he also did not say that if she did not give that she will be mekudeshes. Why then does Rebbi Meir say that she is mekudeshes regardless of whether or not she gives the 200 zuz?

The Kehillas Yaakov explains that in addition to the fact that Rebbi Meir says that you cannot infer a positive from a negative (or vice versa) you also have to explain that there is a halacha that in order to be a valid condition for the contract, the condition has to be doubled. If the condition is not doubled, it is as if there is no condition at all.

According to the Rambam, this chiddush only applies where the person who made the condition wants the contract to take effect in the future and not if he wants it to take effect from the time that he made the contract. If he wants the contract to take effect now, then at least the side of the condition that he specified is valid and binding.

However, Rebbi Meir still does not hold that miklal lav atah shomeah hen – that you can infer a positive from a negative or the other way round. Therefore, although in the case of sotah the shevuah concerns a punishment that should take effect now, if the cohen just says that if you are not chayav then you will not receive a punishment, we cannot deduce from this that if the sotah is chayav then she will receive a punishment (because Rebbi Meir does not hold that miklal lav atah shomeah hen.) Therefore the gemara asks a question on Rebbi Meir from the case of Sotah even although there the shevuah takes effect when the sotah makes it.

In other words, the Rambam’s chiddush that you do not need a double t’nai if the contract is binding from the time that it is made, only applies to a case where the person specified the case in which something positively happens. For example, in the case of the benei gad and the benei reuvain, had Moshe given them the land from the time the condition was made then he would only need to have said that if you fight for the benei yisroel you will receive the land, because although you cannot infer the negative from the positive, nothing at all could be inferred for a case where they would not have fought so they would not have received the land.

However in the case of the sotah, the cohen specifies the case where nothing happens, so if you cannot infer the positive from the negative, even although the shevuah takes effect from now, the cohen's statement would be meaningless.

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