Stipulation regarding Marital Relations

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The Gemora cited a braisa: If someone says to a woman that she is betrothed to him on condition that he does not owe her support, clothes, or marital relations, the kiddushin is valid, but the conditions are invalid; these are the words of Rabbi Meir. Rabbi Yehudah says: In monetary matters, the condition is upheld.

The Gemora explains that Rabbi Yehudah holds that one can make a condition modifying the obligations stipulated by the Torah regarding monetary law.

This would explain why Rabbi Yehudah holds that the condition is valid when he stipulated that he does not owe her support or clothing; however, why is it valid when he stipulates that he will not have marital relations with her? This is not a monetary law!?

Rashi, because of this, writes that the husband remains obligated to have marital relations with her, for this is not a financial right. Depriving a wife from relations would cause her physical distress and therefore the condition is void.

The Mishnah Lamelech challenges this from a Gemora which states that one can say to his fellow, “Hit me and you will be exempt.” Evidently, one can waive physical anguish! Furthermore, we find that a woman can release the husband from his marital relations!?

Some answer that Rashi himself, cited in the Shitah Mikubetzes in Kesuvos (56a), states that the condition is void, for we assume that a woman will not waive her rights regarding anything which causes physical anguish; however, if she explicitly forfeits those rights, they are forfeited.

Rabbeinu Chananel holds that a man may stipulate on marital relations, and a wife can waive her rights to it as well. This is because the pleasure of relations belongs to her and it would be regarded as a financial right.

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Stipulation regarding Marital Relations

Subscribe to the Daily Daf Yomi Summary here.

The Gemora cited a braisa: If someone says to a woman that she is betrothed to him on condition that he does not owe her support, clothes, or marital relations, the kiddushin is valid, but the conditions are invalid; these are the words of Rabbi Meir. Rabbi Yehudah says: In monetary matters, the condition is upheld.

The Gemora explains that Rabbi Yehudah holds that one can make a condition modifying the obligations stipulated by the Torah regarding monetary law.

This would explain why Rabbi Yehudah holds that the condition is valid when he stipulated that he does not owe her support or clothing; however, why is it valid when he stipulates that he will not have marital relations with her? This is not a monetary law!?

Rashi, because of this, writes that the husband remains obligated to have marital relations with her, for this is not a financial right. Depriving a wife from relations would cause her physical distress and therefore the condition is void.

The Mishnah Lamelech challenges this from a Gemora which states that one can say to his fellow, “Hit me and you will be exempt.” Evidently, one can waive physical anguish! Furthermore, we find that a woman can release the husband from his marital relations!?

Some answer that Rashi himself, cited in the Shitah Mikubetzes in Kesuvos (56a), states that the condition is void, for we assume that a woman will not waive her rights regarding anything which causes physical anguish; however, if she explicitly forfeits those rights, they are forfeited.

Rabbeinu Chananel holds that a man may stipulate on marital relations, and a wife can waive her rights to it as well. This is because the pleasure of relations belongs to her and it would be regarded as a financial right.

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Teaching Torah to Girls

Rabbi Eliezer said (Daf Yomi: Sotah 21b): If someone teaches his daughter Torah, he is teaching her lewdness.

Tosfos cites a Yerushalmi which notes that Ben Azzai does not follow the exposition of Rabbi Elozar ben Azaryah. For it is written regarding the mitzvah of Hakhel that men, women and children should assemble. The men come to learn, the women come to listen and the children come so that those who brought the children can earn reward. According to Ben Azzai, the reason why the women come is to learn, just like the men. However, according to Rabbi Elozar ben Azaryah, who holds that one should not teach his daughter Torah, the women are not coming to learn; but rather, they are listening to the words of Torah in order for them to know how to fulfill the mitzvos that they are commanded to perform.

The Rambam rules that a woman who studies Torah receives reward, but not in the same capacity as a man. However, the Chachamim commanded a father not to teach Torah to his daughter, for women, in general, are not capable of understanding the intricacies and the fine details of the Torah, and it will lead them to incorrect halachic conclusions. This admonition is only applicable to the Oral Law; however with respect of the Written Law, one should not teach it to her, but if he does, it is not regarded as if he taught her lewdness.

The Maharatz Chiyos asks: According to the Rambam, Rabbi Elozar ben Azaryah could also expound the verse by Hakhel to be saying that the women are coming to learn Torah, for there, the king was teaching the Written Law, and there is no prohibition whatsoever to teach that to her!?

He writes that after careful scrutiny of the Rambam’s language, it is clear that there is a prohibition to teach one’s daughter the Written Law; however, it is not with the same degree as the prohibition regarding the Oral law.

The Tur (Y”D 246:6) seemed to have a different version of the Rambam, for he writes that the Rambam holds that the concept of lewdness only applies by the Written Law, but with respect of the Oral Law, there is no lewdness; however, one should not teach it to her, but if he does, it is not regarded as if he taught her lewdness.

The Beis Yosef writes that it must be a printer’s mistake in the Tur, for the Rambam says the exact opposite.

The Rama rules that the laws pertaining to a woman, she is obligated to learn. The Bach writes that it is for this reason that a woman recites a birchas HaTorah in the morning.

The Aruch Hashulchan comments that it was never the custom for women to learn from a sefer. They were taught orally all the halachos that were relevant to them.

The Chafetz Chaim in Likutei Halachos writes that these halachos only applied in earlier times when the children lived in the same place as their parents and the tradition was strong. Then, it was forbidden to teach the women Torah, and the women followed the examples of the previous generations. However, in today’s times, when children live far away from their parents and the tradition has been weakened, and especially because the woman are studying the language and writings of the secular world, it is an important obligation to teach the girls Chumash, Prophets, the Writings, Pirkei Avos and the ethical teachings of our sages in order to strengthen their faith. For if not, they are liable to stray from the correct path of Hashem. The Steipler Gaon writes that in today’s times, it is more dangerous not to teach them Torah than to teach them. He even rules that one is allowed to teach Mishna to girls. However, Reb Moshe Feinstein (Y”D III, 87) rules that Mishna is part of the Oral Law, and the original prohibition is still intact, and therefore, girls should not be taught Mishna in school.

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Conditions

The Mishna (Daf Yomi: Nazir 11a) states: If one says, “I am hereby a nazir on the condition that I will drink wine and become tamei to the dead,” he is a nazir and all the prohibitions apply to him.

The Gemora explains: Everyone agrees to this halacha, for he is stipulating “against that which the Torah states and such conditions are null and void.

Tosfos asks: Why was it necessary for the Gemara to state this reason? The Gemora could have said the following: There is a principle that anything which cannot be performed through an agent, cannot take effect with a condition either. Since nezirus cannot be accomplished through an agent, it should not take effect with any condition (even if the stipulation is not against that which is written in the Torah)!

Tosfos answers: Since others are able to bring the korbanos for him, nezirus is regarded as something that can be performed through an agent.

The Gerrer Rebbe (Pnei Menachem in the sefer Torascha Shasu’oy) uses this Tosfos to answer the following question: It is written [Breishis 28: 20 – 21]: And Yaakov uttered a vow, saying, “If God will be with me, and He will guard me on this way, upon which I am going, and He will give me bread to eat and a garment to wear; and if I return in peace to my father’s house, and the Lord will be my God. A neder cannot be fulfilled through an agent, so a conditional neder should not take effect!

According to our Tosfos, he suggests as follows: A neder with respect to hekdesh may be performed through an agent. One person can consecrate something for his fellow. Although Yaakov’s neder was not a neder regarding hekdesh; since nedarim in general could be performed through an agent, all nedarim may take effect even with a condition attached.

The Ramban answers Tosfos’ question by saying that the principle of “anything which cannot be performed through an agent, cannot take effect with a condition either” only applies by something that a person does with his fellow. However, when a person stipulates a condition with himself, the condition is valid and takes effect even though all of the guidelines effecting conditions are not met. Since by nazir, his condition is only relevant to himself, the condition takes effect even though nezirus cannot be performed through an agent.

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MAKING A CONDITION AGAINST SOMETHING WRITTEN IN 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)!

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