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This is the principle: Contracting out of a Law contained in the Torah as to a monetary matter is valid, but as to a nonmonetary matter is void. This might appear to close the door against a condition obviating the need for a get: if the husband’s (in principle, voluntary) delivery of a get is “a Law contained in the Torah”, then the capacity to override it by a tenai depends upon classifying it as “monetary” (!wmm lX awhX rbd). The distinction in Tosefta Kiddushin 3:7-8 might make that appear unlikely. However, divorce does involve financial consequences (regarding the ketubah), and this appears to have influenced R. Yose, in the Jerusalem Talmud, Ketubot 5:9 (30b), to take the view that a clause allowing the wife a unilateral right of divorce (for “hatred”) was indeed to be classified as “monetary”: R. Yoseh said: For those who write [a stipulation in the marriage contract] that if he grow to hate her or she grow to hate him [a divorce will ensue, with the prescribed monetary gain or loss, and] it is considered a condition of monetary payments, and such conditions are valid and binding. ~yyq !yyntw !wmm yynt tanX !ya anX !ya !ybtkd !ylya hswy ybr rma Rav Shlomo Riskin attaches great significance to this Palestinian tradition. There is nothing in the Babylonian Talmud which explicitly negates it. Nevertheless, many later authorities proceed as if conditions of this kind are self-evidently excluded, applying the principle of: ljb want hrwtb bwtkX hm l[ hntmh lk. What, then, is the weight of an explicit ruling in the Jerusalem Talmud, against what is merely implicit as in the Babylonian tradition? Jerusalem Talmud Gittin 4:2 is also sometimes cited (e.g. Gilat, “Gittin”, Enc. Jud. VII.594): “Sages have the power to uproot Torah Law by annuling marriages.” Though this is not required for the argument based on classification of the tenai, it does support the distinctiveness of the Palestinian tradition, which, I shall argue, may be particularly relevant in contemporary circumstances. 2.2 The French Proposal In modern times, a fresh attempt has been made to use conditions specifically to prevent women divorced in civil law to remain “chained” according to halakhah. The French Orthodox Rabbinate in 1907 urged that all ketubot include a clause providing that a civil divorce decree would annul the marriage. This proposal, however, met with widespread opposition, on two principal grounds. The first was violation of the principle ljb want hrwtb bwtkX hm l[ hntmh lk (despite a precedent in Rema, which, it was argued, was also wrong for the same reason). Secondly, any such conditions regarding Nissuin (if not the Kiddushin) would be invalidated by the subsequent marital relations between the couple, applying the principle twnz tly[b wtly[b hXw[ ~da !ya: a presumption (hqzx) that marital relations are intended as such, and not as acts of promiscuity. The status of sexual relations between the spouses, on this argument, cannot be conditional — they cannot be marital if not invalidated by subsequent acts bringing the condition into effect, non-marital if those conditions are fulfilled. The first of these objections seems to have overlooked the Palestinian tradition represented by the Jerusalem Talmud, noted above). To the second, a possible answer is provided by the distinction between: 2.3 Conditions Precedent and Conditions Subsequent In the United States, Rabbi Michael Broyde, a strong opponent of the Rackman-Morgenstern court, has himself expressed the view that this may offer a way forward. Distinguishing the operation of conditions from mistake-induced invalidity (§4.4, below), he writes: ... when a tenai is made at the time of marriage, and kept in effect during the sexual relationship and then the tenai is breached, the marriage ends without any divorce, as if there never was a marriage. Nevertheless, the marriage is fully valid until such time as the condition is breached. ... All agree that a tenai can be kept in effect if, for example, the couple repeated the condition to a bet din each time before they engage in a sexual relationship. The practical problem (which has generated a “custom and practice” of not using such conditions) is thus that of maintaining the conditions intact at the same time as the marital relations. One may observe that this an example of a rule devised originally for the benefit of the woman now being turned against her. But this problem is based simply upon a presumption (hqzx) that relations between husband and wife are intended as marital, and not as acts of promiscuity. Perhaps we can devise ways of rebutting that presumption, and thus maintaining the tenai intact, without requiring the couple either to go to the bet din before each time they wish to engage in relations, or (as has been suggested) have witnesses stand within earshot to hear their oral declaration (maintaining the tenai) before each such marital act. 2.4 Incorporation of a Condition in the PNA? The PNA in use since 1996 in the United Synagogue makes no attempt to make the validity of the marriage conditional upon observance of its terms, as might have been achieved, for example, by expanding the final clause to read: The bride and bridegroom confirm that they have made this agreement freely and in the full knowledge and understanding of the meaning of its terms and that their continuing willingness to abide by it is a condition of the continuing subsistence of the marriage. It was reported at the time that some such condition had been considered but rejected. We have not been told why. Interestingly, this approach is, in principle, favoured by Dayan Berkovits. Continue to page 3

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Professor B. Jackson - continued

2.0 Conditions

2.1 Conditions contrary to halakhah: mamona and issura

Tosefta Kiddushin 3:7-8 states

[If he says] “I hereby betroth you ... on condition that if I die you shall not be subject to levirate marriage,” she is betrothed, and the condition is void, as he has contracted out of a Law contained in the Torah, and when anyone stipulates out of a Law contained in the Torah, the condition is void. [If he says] “on condition that you have no claim against me for food, clothing, or conjugal rights,” she is betrothed, and the condition is valid. This is the principle: Contracting out of a Law contained in the Torah as to a monetary matter is valid, but as to a nonmonetary matter is void.

This might appear to close the door against a condition obviating the need for a get: if the husband’s (in principle, voluntary) delivery of a get is “a Law contained in the Torah”, then the capacity to override it by a tenai depends upon classifying it as “monetary” (!wmm lX awhX rbd). The distinction in Tosefta Kiddushin 3:7-8 might make that appear unlikely. However, divorce does involve financial consequences (regarding the ketubah), and this appears to have influenced R. Yose, in the Jerusalem Talmud, Ketubot 5:9 (30b), to take the view that a clause allowing the wife a unilateral right of divorce (for “hatred”) was indeed to be classified as “monetary”:

R. Yoseh said: For those who write [a stipulation in the marriage contract] that if he grow to hate her or she grow to hate him [a divorce will ensue, with the prescribed monetary gain or loss, and] it is considered a condition of monetary payments, and such conditions are valid and binding.
~yyq !yyntw !wmm yynt tanX !ya anX !ya !ybtkd !ylya hswy ybr rma

Rav Shlomo Riskin attaches great significance to this Palestinian tradition. There is nothing in the Babylonian Talmud which explicitly negates it. Nevertheless, many later authorities proceed as if conditions of this kind are self-evidently excluded, applying the principle of: ljb want hrwtb bwtkX hm l[ hntmh lk. What, then, is the weight of an explicit ruling in the Jerusalem Talmud, against what is merely implicit as in the Babylonian tradition? Jerusalem Talmud Gittin 4:2 is also sometimes cited (e.g. Gilat, “Gittin”, Enc. Jud. VII.594): “Sages have the power to uproot Torah Law by annuling marriages.” Though this is not required for the argument based on classification of the tenai, it does support the distinctiveness of the Palestinian tradition, which, I shall argue, may be particularly relevant in contemporary circumstances.

2.2 The French Proposal

In modern times, a fresh attempt has been made to use conditions specifically to prevent women divorced in civil law to remain “chained” according to halakhah. The French Orthodox Rabbinate in 1907 urged that all ketubot include a clause providing that a civil divorce decree would annul the marriage. This proposal, however, met with widespread opposition, on two principal grounds. The first was violation of the principle ljb want hrwtb bwtkX hm l[ hntmh lk (despite a precedent in Rema, which, it was argued, was also wrong for the same reason). Secondly, any such conditions regarding Nissuin (if not the Kiddushin) would be invalidated by the subsequent marital relations between the couple, applying the principle twnz tly[b wtly[b hXw[ ~da !ya: a presumption (hqzx) that marital relations are intended as such, and not as acts of promiscuity. The status of sexual relations between the spouses, on this argument, cannot be conditional — they cannot be marital if not invalidated by subsequent acts bringing the condition into effect, non-marital if those conditions are fulfilled. The first of these objections seems to have overlooked the Palestinian tradition represented by the Jerusalem Talmud, noted above). To the second, a possible answer is provided by the distinction between:

2.3 Conditions Precedent and Conditions Subsequent

In the United States, Rabbi Michael Broyde, a strong opponent of the Rackman-Morgenstern court, has himself expressed the view that this may offer a way forward. Distinguishing the operation of conditions from mistake-induced invalidity (§4.4, below), he writes:

... when a tenai is made at the time of marriage, and kept in effect during the sexual relationship and then the tenai is breached, the marriage ends without any divorce, as if there never was a marriage. Nevertheless, the marriage is fully valid until such time as the condition is breached.
... All agree that a tenai can be kept in effect if, for example, the couple repeated the condition to a bet din each time before they engage in a sexual relationship.

The practical problem (which has generated a “custom and practice” of not using such conditions) is thus that of maintaining the conditions intact at the same time as the marital relations. One may observe that this an example of a rule devised originally for the benefit of the woman now being turned against her. But this problem is based simply upon a presumption (hqzx) that relations between husband and wife are intended as marital, and not as acts of promiscuity. Perhaps we can devise ways of rebutting that presumption, and thus maintaining the tenai intact, without requiring the couple either to go to the bet din before each time they wish to engage in relations, or (as has been suggested) have witnesses stand within earshot to hear their oral declaration (maintaining the tenai) before each such marital act.

2.4 Incorporation of a Condition in the PNA?

The PNA in use since 1996 in the United Synagogue makes no attempt to make the validity of the marriage conditional upon observance of its terms, as might have been achieved, for example, by expanding the final clause to read:

The bride and bridegroom confirm that they have made this agreement freely and in the full knowledge and understanding of the meaning of its terms and that their continuing willingness to abide by it is a condition of the continuing subsistence of the marriage.

It was reported at the time that some such condition had been considered but rejected. We have not been told why. Interestingly, this approach is, in principle, favoured by Dayan Berkovits.

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