Bereirah

In the course (Bava Kamma 69) of discussing Rabbi Yochanan’s statements, the Gemora introduces the concept of bereirah. Bereirah is a wide ranging concept, appearing throughout Shas, in a variety of forms, having ramifications in many halachic areas. Below are a number of facets of bereirah, which appear in the Rishonim and poskim.

Cases
Courtyard neighbors

The Gemora (Nedarim 55b-56b) discusses the status of two people who are partners in a courtyard. They both have use rights, but it may depend on bereirah to determine exactly when each one has ownership at a given time.

Partners

The Gemora (Beitza 37b-38a) discusses cases of partners who split their joined item, insofar as techumim ownership. Bereirah allows us to consider the ultimate allocation reflective of the original true ownership.

Inheritance

This case is discussed by Rabbi Yochanan in our Gemora, and appears in many other Gemoros.

Separating Tithes

This case is discussed by Rabbi Meir and Rabbi Yehudah in our Gemora, and appears in many other Gemoros.

Choosing a Techum

The Gemora (Eruvin 36b-38a) discusses various Eruvei Techumim, where the actual details of the Eruv are left for later clarification, using Bereirah. The Gemora includes a lengthy discussion of Rabbi Yehudah’s position on Bereirah, based on multiple conflicting sources.

Why does (or doesn’t) it work?

Tosfos (Eruvin 37b Ela) states that those who do not accept bereirah feel that later designation is meaningless, and therefore the action is not effective at all. In our case, this means that the separation that will happen after Shabbos is meaningless, and therefore, the declaration at the onset of Shabbos has no wine to take effect on, and it not effective at all. Rashi (Chulin 14b osrin), on the other hand, states that those who do not accept bereirah simply hold that the later designation cannot resolve the initial unclarity. In the case of the wine, when the person declares that he is taking the tithes from wine that will be designated later, the tithes now exist in the wine, but the person cannot designate them later. Therefore, this wine has indeterminate tithes, and none of it can be used.

See Shaarei Yosher (3:22 v’af shera’isi) for a more detailed discussion of how bereirah does work, and what are its limitations. See Shiurei R. Dovid Lifshitz (Hulin, #29) for a further discussion of this dispute.

How much is unclear?

The Ran in Nedarim (55b v’ika) suggests that the case of partners’ use in a courtyard can be considered full ownership, even according to those who generally do not accept bereirah, since the bulk of the "split" is already done, with only the exact time that it will be used left for later clarification.

Will it definitely be clarified?

Tosfos (Gittin 25b Rabbi Yehudah) states that some cases of bereirah are less acceptable, since there may never be any clarification. For example, as opposed to our case of the wine - where some wine will be taken, but it’s not known which - a case of one who consecrates the coin that he will take from his pocket, is a case where it’s possible that no coin will be chosen at all.

Who decides?

The Gemora in Gittin (25a-b) raises the possibility that bereirah may be more acceptable in the case where the area left for later clarification depends on another party. If bereirah is unacceptable because the party doing the action must decide before acting, then if the only clarification is external, the active party has done his part, and left the rest up to something else. Examples of this are:
1. A person who betroths a woman, but stipulates that it will only take effect if the woman’s father agrees.
2. A person who gives his wife a Get, which should be effective one moment before he dies. This is making it dependent on outside party, i.e., Hashem.

Explicit exceptions

There are cases where the Torah states an explicit detail, which overrides the general rules of bereirah.

The Torah explicitly states that a Get must be written "la" - for her (the wife), and from this the Gemora learns (Gittin 2b) that a Get must be written "lishma" - explicitly for the wife’s sake. From this verse, Tosfos (24b l’aizo) suggests that even those who accept bereirah may invalidate a Get which was written for the sake of "the wife that I choose"

The Gemora on our daf mentions the case of brothers who split their father’s estate as a case of bereirah. Tosfos (Gittin 48a Ee) suggests that, even without bereirah, inheriting brothers could be not subject to return on the Yovel year, due to the inherent nature of inheritance and Yovel.

Torah vs. Rabbinic

The Ri in Tosfos (Nedarim 56b) rules that we accept bereirah in all areas of halachah. The Rambam (Eruvin 8:7, Trumos 1:21, Yom Tov 5:20) rules that in Rabbinic areas of halachah, we accept bereirah, while in areas of Torah halachah, we do not accept bereirah.

Read more!

Condition against the Torah

The Gemara cites a Machlokes between Rebbi Meir and Rebbi Yehudah regarding whether a person may make a Tenai modifying the obligations stipulated by the Torah regarding monetary law ("Masneh Al Mah she'Kasuv ba'Torah"). Rebbi Meir says that if a man is Mekadesh a woman on condition that he not be obligated to give her She'er, Kesus, and Onah, the Tenai is invalid and the Kidushin takes effect fully (and he is obligated to provide her with She'er, Kesus, and Onah). Rebbi Yehudah says the Tenai is valid, and the Kidushin takes effect and he is not obligated to provide her with She'er, Kesus, and Onah.
Rebbi Meir's view is difficult to understand. If the Tenai is null and void, then why should the Kidushin take effect at all? The man was Mekadesh the woman on condition that if he is not obligated to give her She'er, Kesus, and Onah, then he wants the Kidushin to take effect, and conversely, if he will be obligated in She'er, Kesus, and Onah, then he does not want the Kidushin to take effect! (Rebbi Meir requires a "Tenai Kaful" -- both sides of the condition stated explicitly -- whenever a Tenai is used, as the Mishnah says in Kidushin 61a.) Since the man specified clearly that he does not want the Kidushin to be valid if he will be obligated to give She'er, Kesus, and Onah, then how can the Kidushin take effect and obligate him in She'er, Kesus, and Onah? He did not have in mind for the Kidushin to take effect under such circumstances! (TOSFOS DH Harei Zu)


ANSWERS:

(a) The RI explains that we learns all the laws of Tenai, including the very fact that one may make a Tenai, from a verse (in Kidushin, ibid.) If not for the fact that the Torah teaches that there is such a thing as making a Tenai, we would not have known that there is a concept of Tenai at all. Had the Torah not taught us the concept of Tenai, that one may make a stipulation when making a Kinyan, we would have thought that when a person makes a Tenai as a precondition to a certain Kinyan, we just ignore the Tenai and the Kinyan takes effect. By teaching that a Tenai does work, the Torah is teaching that if the condition is not fulfilled, the Kinyan is annulled retroactively. In the situations in which the Torah does not teach that a Tenai works (such as a situation in which the Tenai counters that which is written in the Torah), we revert back to the original way we would have ruled had the Torah not taught us the concept of Tenai, and the Kinyan works regardless of the fulfillment of the Tenai.
This answer of Tosfos is very difficult to understand. Even without the Torah teaching us the laws of Tenai, we should know, logically, that if a person sells an item to his friend and stipulates that the sale should not be valid unless his friend gives him something or does something, then if the friend fails to fulfill the Tenai the sale should not be valid, since the person did not fully commit himself to the sale!
To answer this question, we must first analyze a related Halachah -- the Halachah of Bereirah. In many places in the Gemara we find the view that holds "Ein Bereirah," which means that a Kinyan cannot be effected if -- at the moment that it takes effect -- it is not clear upon what it takes effect. For example, a person cannot pick up an item in order to be Koneh it and say, "If it rains tomorrow, I want this act of Kinyan to be for Reuven, and if it does not rain tomorrow, I want this act of Kinyan to be for Shimon." If a person does make such a stipulation, then even if it rains the next day, the object will not belong to Reuven. Similarly, a person cannot eat fruits today, "The portion that I will choose to separate tomorrow will be Terumah on these fruits starting from now." If he does so, then even if he separates a portion tomorrow, it will not serve as Terumah.
The logic for this, as the RAN explains in Nedarim (45b), is that "it is not appropriate for a Kinyan to take effect in a way that leaves a doubt as to how it took effect." This means that the Kinyan must take effect at the same moment at which the action which accomplishes the Kinyan is performed (such as the act of Hagba'ah (lifting up an item) in the case of a purchase, or Dibur (speech) in the case of making something Terumah). The Kinyan cannot take effect after the act, because the act which makes the Kinyan is no longer present. Thus, if at the moment that the act is performed, the Kinyan "does not know" where to take effect, the Kinyan does not take effect (or it takes effect on one of the two, regardless of what happens the next day; see Insights to Eruvin 37b). The Kinyan cannot see into the future, so to speak.
What is the difference between Bereirah and a Tenai? No Tenai should ever work if we say "Ein Bereirah," because the Kinyan cannot know what will happen in the future (whether the Tenai will be fulfilled or not) in order to be able to take effect now!
RASHI and TOSFOS (Gitin 25b, DH u'l'Chi Mayis) explain that when a person makes a Tenai, it is in his ability, and it is his intention, to fulfill the condition (for otherwise he would not have made the Kinyan in the first place). Hence, the Kinyan is not taking effect in a matter that leaves doubt. Rather, it takes effect for certain at the time the act of Kinyan is made, since he intends to fulfill the Tenai. What, then, is it that revokes the Kinyan retroactively when the condition is not fulfilled? The Kinyan has already been made and completed; it took effect, so how can it be revoked retroactively? The answer is that this is the reason why the Torah has to teach us the novel concept of Tenai -- even though the Kinyan was made, it can be revoked through not fulfilling the condition. This is what the Ri means to say -- since the Torah did not teach the concept of Tenai in a case where the Tenai contradicts the obligations of the Torah, then we revert to saying that the Kinyan is completed and nothing can uproot it retroactively, since it has already been done and has already taken effect. The person who made the Kinyan did intend for the Kinyan to take effect for certain, since he was expecting the Tenai to be fulfilled.
For this reason, when a man makes a Kidushin on condition that he not be obligated to give She'er, Kesus, and Onah, he obviously thinks that he is able to create such a Kidushin and he has in mind that the Kidushin should be completed, except that it should be uprooted if it turns out that he is obligated to give She'er, Kesus, and Onah. But by that time, it is too late to revoke the Kidushin, since it already took effect.
(b) RABEINU TAM (cited by the Tosfos Yeshanim and the Tosfos ha'Rosh), the RITVA, and the RASHBA (cited by the Shitah Mekubetzes) explain that when a person makes a Tenai that contradicts the Torah, he does not really mean it, but he is just being "Mafligah b'Devarim" -- he is just frightening her with words. The Beraisa in Gitin (84a) teaches such a concept with regard to a person who says to his wife that he is giving her a Get on condition that she does something that is physically impossible to do (see Rashi there, DH Mafligah). Since he knows that the Halachah of the Torah requires that Kidushin be done in a certain way with certain obligations, it must be that he is not serious about his condition to alter those obligations, and therefore he probably has in mind to make a Kidushin, and he is just saying this condition in order to frighten her.
Rabeinu Tam might have rejected the explanation of the Ri because his explanation is logically sound only when the condition is something that will be fulfilled or not fulfilled at a point after the Kinyan is completed. In the case of Kidushin, though, the Kidushin takes effect at the same time that the obligations of She'er, Kesus, and Onah take effect (or do not take effect). Thus, since the Kidushin does not depend on a future event but on a present event, the Kidushin should not take effect (since he did not have in mind to make such a Kidushin that obligates him in She'er, Kesus, and Onah). (See also Rebbi Akiva Eiger.)
The Ri might have explained like the Rashba, who says that the condition that the husband was stipulating was not that Kidushin should take effect without the obligations of She'er, Kesus, and Onah. Rather, the husband was stipulating that Kidushin should take effect only if the woman forgoes her entitlement to She'er, Kesus, and Onah. This can take place after the Kidushin is effected. (This is not like the opinion of Rabeinu Elchanan as quoted later in Tosfos.)
The Ri, on the other hand, did not accept Rabeinu Tam's explanation, because "Mafligah b'Devarim" can only be applied to a Tenai made against something written in the Torah, but not when any of the other details of Tenai were omitted. However, we find that if a person makes a Tenai in the wrong order ("Ma'aseh Kodem le'Tenai"), then the Kinyan takes effect and we ignore the Tenai even though the logic of "Mafligah b'Devarim" does not apply (as the RE'AH points out)!

INSIGHTS INTO THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Yerushalayim
daf@dafyomi.co.il http://www.dafyomi.co.il

[END]

Read more!