1. The Sources
2. Stipulation or Renunciation?
3. The Act Is Binding Though the Condition Has Not Been Fulfilled
4. Stipulation - Originates from the Torah
5. Stipulation Vs. Shiur
6. Renunciation Torah Law - Only before It Takes Effect
7. Comparing Relinquishment of Debt to Renunciation of Rights
According to the laws of inheritance, when a person expires, his children inherit his assets, and the firstborn receives a double portion. The Mishnah (Baba Batra 126b) address a situation in which a given heir wishes to change the law as it applies to the firstborn: "If a person proclaims, 'My firstborn son shall not receive a double portion,' or, 'my son shall not inherit me,' [it is as if] he has not said a thing, for he has stipulated upon that which is written in the Torah."
The Gemara quotes a Baraitha which deals with a man who says to a woman, "You are hereby betrothed to me on the condition that you not hold me responsible for your food, clothing, and conjugal rights." According to R' Meir, "She is betrothed, but his stipulation is null and void," for the same reason mentioned above: one cannot make conditions concerning that which is written in the Torah. R' Yehudah, however, disagrees. He maintains that "in fiscal matters his stipulation is valid" - i.e., when monetary conditions are at issue, it is possible change the Torah law. Here the Gemara observes that according to R' Yehudah, if a person stipulates that his firstborn shall not receive a double portion of his inheritance, his stipulation should be binding, for this is a monetary proviso - yet our Mishnah did not say this! The Gemara resolves the tension by explaining: "We can understand the text of the Mishnah as being compatible even with R' Yehudah's position, for there (in the case of the betrothal) we are dealing with a case in which the woman is willing to accept the terms laid down in the proposal; here, however, the firstborn son does not accept the condition which his father is trying to introduce." In other words, when R' Yehudah said that "stipulations are valid in fiscal matters," he meant that this is true where the woman expresses her willingness to forgo food and clothing - the monetary privileges that ordinarily come with marriage. However, in our Mishnah, the father decided on his own to eliminate the birthright of the firstborn, and the firstborn never expressed a willingness to forgo this right.
Stipulation or Renunciation?
The concept of stipulating upon that which is written in the Torah calls for clarification. From the wording of the Mishnah, "...for he has stipulated with regard to that which is written in the Torah," it would appear that this concept is governed by the laws of conditions, yet it is possible to bring a number of cases which prove that, in fact, this concept is in no way regulated by such laws.
The Talmudic tractate Ketubot informs us regarding a certain man who declares that he refuses to inherit his wife if she dies. According to R' Shimon ben Gamliel he inherits against his will, because he has stipulated upon that which is written in the Torah. Yet, the concept of stipulation implies that the stipulator makes some action dependent upon a given condition; hence, in the case of a husband inheriting his wife it should not apply, for the condition does not relate to any specific action. From here we see that the question of "stipulating upon that which is written in the Torah" is in fact a question of whether or not a person can change a law which benefits him. According to R' Meir, this is impossible; according to R' Yehudah, possible. Therefore, as maintained by R' Yehudah, a husband can decline inheriting his wife. He reserves the right to disregard a matrimonial law which is for his own good.
We find, then, that the discrepancy between R' Yehudah and R' Meir is not related to the laws of stipulation but to the question of whether or not a person can disregard things that are for his own good - and it naturally follows that such a step has an effect upon the laws of stipulation.
The Act Is Binding Though the Condition Has Not Been Fulfilled
Let us now return to the case brought in the Gemara: a man betroths a woman on the condition that she not hold him responsible for her food, clothing, and conjugal rights. While it is true that we are dealing here with an actual stipulation, the source of the discrepancy between R' Meir and R' Yehudah is not to be found in the laws of stipulations but in the laws of monetary rights. According to R' Yehudah, if the woman agrees to forgo food, clothing, and conjugal rights, the marriage ("nissuin") takes effect on those terms; according to R' Meir it does not take effect even if the woman gives her consent, for the Torah established that marriage can only take effect if its terms include food, clothing, and conjugal rights for the wife. The question is, what, according to R' Meir, is the status of such a couple's betrothal ("Erusin"; the first stage of the marriage process)? Does it or does it not take effect? It would seem that the woman should not be betrothed at all, for there is no way to effect betrothal in the manner which the husband desires - namely, without food, clothing, and conjugal rights. However, as we have seen, the woman is indeed betrothed according to R' Meir, and the question is, why? After all, the entire meaning R' Meir's law which declares that it is impossible to make a stipulation with regard to that which is written in the Torah, even if it is a monetary matter, is that a person cannot forgo Torah-given monetary rights. Yet, why should the result be that the betrothal takes effect against the will of the individual?
We could perhaps suggest that there is no proof that this man is not at any rate interested in betrothal, and it would appear that even without the renunciation of food, clothing, and conjugal rights he desires betrothal. But the Tosafists rule out such an understanding, for, according to R' Meir, whenever a person makes a condition, he must make a "double condition" - i.e., one must explicitly state the positive side of the stipulation ("if condition A is filled, the act takes effect") and the negative side ("if condition A is not filled, the act does not take effect"). If so, we must assume that here too he stated explicitly that if the condition (renunciation of food, clothing, and conjugal rights) is not filled, the act (betrothal) does not take effect.
The Tosafists explain that the concept of stipulation derives its origin from the Torah. Therefore, if a person makes a condition which runs counter to the Torah, it is as if he did absolutely nothing.
This principle is even more salient in the writings of Rambam. Rambam explains that a stipulation calls for four "laws of stipulation": (1) that it be a double condition; (2) that its positive precede its negative; (3) that the condition precede the action; and (4) that the condition be something which can be carried out. The question arises as to why Rambam does not mention the fact that the condition may not run counter to the Torah. And even though Rambam holds like R' Yehudah, who says that it is possible to stipulate upon that which is written in the Torah when monetary conditions are at issue, he agrees that in all other areas it is impossible to make stipulations. Hence, for example, it is impossible to proclaim, "I am hereby a Nazirite on the condition that I be allowed to drink wine." We must assume, then, that this rule is covered by one of the four "laws of stipulation" - viz., the law that the condition be something which can be carried out. If a person says, "This is your bill of divorce on the condition that you fly up to the sky" he has not established a valid stipulation. Similarly, if a person makes a stipulation which runs counter to the Torah, because it cannot be carried out, it is not viewed as the type of stipulation which derives its validity from the Torah.
According to this explanation, when, as in the above example, a person says, "I am hereby a Nazirite on the condition that I be permitted to drink wine," he does not actually intend to drink wine, for in such a case, because he possesses free will to drink wine, this does not run counter to the Torah (it is also explained in the Gemara that if a person says "This is your bill of divorce on the condition that you eat pork," this is a valid stipulation; only if he says, "This is your bill of divorce on the condition that it will be permissible for you to drink wine," is the stipulation not valid), rather, what he means is that it will be permissible for him to drink wine - and this is impossible. The same is true of the statement, "You are hereby betrothed to me on the condition that you not hold me responsible for your food, clothing, and conjugal rights." What he means is that according to the law he will not be held responsible for food, clothing, and conjugal rights. Therefore, just as when a person stipulates, saying, "on the condition that I will fly up to the sky" the act is binding, so, when a person says, "You are hereby betrothed to me on the condition that you not hold me responsible for your food, clothing, and conjugal rights," according to R' Meir, the person is demanding something which is impossible, and because this is not a valid condition, the act is binding.
Yet it remains to be explained why it is that regarding a condition which cannot be met, the act takes effect all the same. After all, the initiator himself does not want it to take effect. The Tosafists explain that because a person knows that it is impossible to fly up to the sky he could not have been sincere in his intentions. However, this explanation is more difficult when it comes to making conditions concerning that which is written in the Torah, for nobody knows all of the laws of the Torah.
Stipulation - Originates from the Torah
The Tosafits give an additional explanation: because the whole concept of stipulations originates and derives its validity from the Torah, it can only include stipulations which are in keeping with the Torah. Before the Torah introduced the concept of stipulations, if a person were to make a stipulation, it would have no meaning.
The question that arises, then, is why do we need the Torah to grant us the right to make stipulations? Ostensibly, even without the Torah's intervention, if a person makes a condition, and that condition is not fulfilled, what results is a mistaken transaction ("Mikach Ta'ut").
According to R' Akiva Eiger (Responsa Mishne Lemelekh), it would appear that even the concept of mistaken transaction originates from the Torah. Were it not for R' Akiva Eiger's position, it might have been possible to posit that only stipulations which relate to future developments need originate from the Torah; stipulations which address matters of the past (for example, where somebody performs an act "on the condition that I am a Kohen") belong to a separate category of conditions which do not call for fulfillment of the four laws of stipulation. However, as noted, R' Akiva Eiger makes no distinction between these two types of stipulations.
According to R' Akiva Eiger, the capacity to nullify a mistaken transaction stems from the capacity to make a stipulation. It goes without saying that each of us purchases a product on the condition that it is not defective. Why do we not have to explicitly state such a condition? The Tosafists explicate that there there are three levels of stipulations. To begin with, there is a condition which is so absolutely clear that it need not be stated at all - for example, if somebody sold all of his belongings in order to emigrate to Israel, and then for some reason was prevented from carrying out his plan, the transaction is nullified even though he did not explicitly state his intention, for everybody understands that he sold everything in order to emigrate. Next, there is an intermediate category of condition - for example, where A gives B an etrog on the condition that B return the etrog when he is finished waving it. Here, it is necessary to state the stipulation explicitly, but a double condition is not called for - i.e, there is no need for A to state that if B does not return the etrog the transfer of ownership retroactively does not take effect at all. What is special about this case? It appears that only a condition which is not directly bound to the matter but rather possesses an indirect relation calls for the four laws of stipulation. But if somebody takes an etrog on the condition that he return it, this is a conditions which ties it directly to the action itself. At any rate, we learn from R' Akiva Eiger that a mistake is also a condition.
Stipulation Vs. Shiur
We have mentioned the question of the Tosafists: Why is it that when a person betroths a woman on the condition that she not hold him responsible for her food, clothing, and conjugal rights, the betrothal takes effect. After all, for a stipulation to be valid it must be a double stipulation, and if so, we must assume that the person stipulating explicitly stated that he is not interested in betrothal unless the woman agrees to forgo her food, clothing, and conjugal rights. So how is it possible for the betrothal to take effect against his explicit desire?
Rabbi Akiva Eiger writes that a possible explanation is that what we are dealing with here is not a stipulation but a "shiur" (i.e., a conditional agreement which is not expressed by an "if" clause or in the form of a protasis and apodosis, but by the phrase "al menath," on the condition that), and a shiur is a different type of legal act which does not call for a double stipulation. Let us explain the concept of shiur: if a person sells a house on the condition that the roof remain his, it is not his intention to stipulate that if the purchaser should climb up on the roof, the purchase will be nullified. The seller is merely clarifying what is included in the purchase: the entire house except for the roof. Obviously, where such a shiur is made, the purchase will not be nullified even if the purchaser should prevent the seller from using the roof. From here, it is possible to suggest that in the aforementioned case of betrothal a similar "shiur" was made - i.e., the intention of the man was that the betrothal to take effect would not include food, clothing, and conjugal rights. According to this explanation, it also becomes understandable why the betrothal is valid.
According to R' Akiva Eiger's approach, it remains to be understood what R' Yehudah's reason for differentiating between monetary and religious matters is. According to the first approach it is is understandable: a person is free to forgo monetary rights which are for his own benefit, but one cannot forgo religious prohibitions, and therefore he cannot say, "I am hereby a Nazirite on the condition that I be permitted to drink wine. However, according to R' Akiva Eiger we are not dealing with a case wherein a person stipulates that the Torah make permissible that which is forbidden; rather, he takes upon himself a partial Nazirism from the very outset - a Nazirism which allows for the consumption of wine. If it is possible to betroth a woman without food, clothing, and conjugal rights, clearly it is possible to apply partial applications, and if this is true, why should religious prohibitions be any different? We have to say that, all things considered, monetary matters are less severe and are not inherently connected to the act. Betrothal which lacks food, clothing, and conjugal rights does not cease to be betrothal, but Nazirism without the prohibition of wine is no longer Nazirism.
Renunciation Torah Law - Only before It Takes Effect
At the beginning of our exposition we cited the Gemara's suggestion that the opinion voiced in the Mishna ("If a person proclaims, 'My firstborn son shall not receive a double portion,' or, 'my son shall not inherit me,' he has not said a thing, for he has stipulated with regard to that which is written in the Torah") is not in accordance with the position of R' Yehudah who holds that it is possible to make stipulations with regard to monetary matters. We also brought the Gemara's resolution, "We can understand the text of the Mishnah as being compatible even with R' Yehudah's position, for there (in the instance of the betrothal) we are dealing with a case in which the woman is willing to accept the terms laid down in the proposal; here, however, the firstborn son does not accept the condition which his father is trying to introduce." Rashbam (R' Shmuel ben Meir), and early Talmudic exegete, explains that the firstborn did not forgo his rights. This is difficult to understand. What was the Gemara's initial presumption? After all, the inheritance is in no sense a favor from the father such that he can simply nullify it if he like? From the words of Rashbam we see that initially the Gemara assumed that the son agreed not to inherit, but according to the Gemara's answer he did not accept such a condition. And though he remained silent, this is no proof that he acquiesced. After all, in the case of betrothal we say that the fact that the woman agreed to be betrothed proves that she was willing to forgo her monetary rights, but mere silence does not serve as proof.
Rashbam's position implies that if the son states explicitly that he agrees to forgo his inheritance, such a step ought to be effective according to R' Yehudah. But the renown jurist, Rabbi Aryeh Leib HaCohen Haller, in his work Ktzot HaChoshen explains that in such a scenario the words of the father are not valid. This appears to be the opinion of Rambam as well. From the verse, "This was the decreed law for the Israelites" (Numbers 27:11) Rambam learned that stipulations are ineffective when it comes to the laws of inheritance. According to Rabbi Aryeh Leib, the Gemara is dealing solely with a firstborn son. Precisely in his case acceptance is effective. A son who is not a firstborn, though, cannot acquiesce. Why? What is the difference between them?
A son is considered an inheritor even before the father dies, and the renunciation of inheritance does not apply to that which a person already acquired. Before entering the canopy, a husband can proclaim that he wishes to forgo his right to inheriting from his wife, for at this point he still possesses no right to such an inheritance and, hence, may renounce his claim to it. But after the marriage, a husband can no longer say that he does not want to be the inheritor, for he has already acquired this right. Regarding ordinary inheritance, the son is considered an inheritor even before the father's death; the death merely allows for the actual realization of this potential claim. Hence, the son cannot renounce this right. The inheritance of the firstborn, however, is different. The Gemara explains that the Torah enjoins the other inheriting sons to give him a gift, and he can proclaim that he is unwilling to forgo his gift, for, before the father's demise, the firstborn has not yet acquired it. As noted, Rambam learns this principle from the verse "This was the decreed law for the Israelites" - a person cannot revoke his status as inheritor. But it is possible for a person, before receiving the title of inheritor, to renounce his inheritance. Another example of how one may avoid inheritance relates to the inheritance of a deceased husband's brother in a levirate marriage ("yavam"): Jewish law prescribes that the brother inherit the assets of the deceased husband. Here, too, before the levirate marriage is carried out, the brother can declare that he does not wish to inherit, and his renunciation is effective.
According to the above, when a man betroths a woman on the condition that she not hold him responsible for her food, clothing, and conjugal rights, what he means is that the betrothal will take effect without these things. This, however, is problematic, for it is not the betrothal ("kiddushin") but the marriage ("nissuin") that effects these rights; after the betrothal, the responsibility of food, clothing, and conjugal rights has yet to take effect. The man should have made his stipulation before the marriage, not the betrothal!
It seems to me that we can solve this problem by explaining that, in fact, betrothal too confers these responsibilities upon the husband. If we could imagine a situation in which marriage took place without betrothal, there would also be no responsibility of food, clothing, and conjugal rights.
Comparing Relinquishment of Debt to Renunciation of Rights
The rule with regard to the relinquishment of a debt is the opposite of that which applies to the renunciation of lawful rights: a person may forgo a debt after it takes effect, but not before. For example, if a man persuades an unmarried girl between twelve and twelve-and-a-half years of age ("na'arah") to have sexual relations with him, he becomes obligated to pay a fine to her father. The Mishnah explains that if she is an orphan the seducer is exempt, for she acquiesced, and her agreement is tantamount to relinquishment. According to the Jerusalem Talmud her renunciation is effective with regard to compensation for shame and blemish, but when it comes to the fine itself we are dealing with something that has not yet come into existence, for the court judgment was not rendered until after the fact, and before the judgment no fine existed. And just as it is impossible to sell something which has not yet come into existence, so is it impossible to forgo such a thing. Rabbenu Nissim cites Ramban who says that the final law does not follow the Jerusalem Talmud, and while relinquishment as such does not apply in this case, the young girl can at any rate disregard her monetary rights from the outset, for she desired that the seduction not result in a fine.
It appears that this discrepancy has at its foundation the discrepancy between R' Meir and R' Yehudah. The reasoning of Ramban is in line with R' Yehudah's approach, which claims that a person can disregard a law which is meant to be for his own good. The Jerusalem Talmud, on the other hand, follows R' Meir.
Regarding a firstborn, before the father dies the firstborn can chose to disregard his privilege, for it is not yet his. His portion is not independent; rather, the brothers must present him with it. Once the father has passed away disregarding this privilege is no longer applicable, for the debt already exists. When the Gemara says that he has the capacity to waive the privilege, it is referring to renunciation.