Siman 207

The laws of conditions and their details were explained in Even HaEzer siman 38, and they are: a double condition, the "yes" preceding the "no," the condition preceding the act, that the condition must be something possible to fulfill, and that it must be capable of fulfillment through an agent. And there are those who say further that we require the condition to be in one matter and the act in another matter, but when the condition and the act are in the same matter, it is not a condition. Our teacher, the Rema, there decided that in this we are concerned for the stringent view and not the lenient view. Consequently, in monetary laws where stringency and leniency are not applicable, we are not concerned with this detail, and we do not follow the possessor in this, since in any case there are many poskekim who hold that in monetary laws we do not require all the laws of conditions, and there are also those who say that in any matter we do not require them, as will be explained. Therefore, regarding this detail, it appears that we are not concerned with it [it appears to me]:

A double condition, how so? That he says to him: "If you do this thing for me, the sale is established, and if you do not do it for me, the sale is not established." And we do not say "from the negative you hear the positive" or "from the positive you hear the negative," for this is a decree of the Torah, that when he does not double his condition, the condition is as if it does not exist and the act is established. And the positive before the negative, how so? That he should not say: "If you do not do such-and-such a thing, the sale shall not be established, and if you do it, the sale is established." And if he mentioned the negative before the positive, and then went back and mentioned the negative after the positive, it is a valid condition as if he mentioned the positive before the negative. And some say that the same applies to the opposite: if he preceded the positive before the negative, and after the negative he concluded once more with the positive, it is as if the negative preceded the positive and the condition is void [Beit Shmuel ibid. subsection 3]. And "positive" refers to the thing he is doing now even if it is against his will; for example, a person facing death who gives a get to his wife so that she will not be bound to a yavam must say: "If I die, it shall be a get, and if I do not die, it shall not be a get." And even though his will is that he should not die, nevertheless, regarding the execution of the get, it is called "positive" in the matter where the get is fulfilled, and similarly in all matters [and it is not similar to a sotah, for it is a scriptural decree to make her drink, and the difficulty of the Taz in the introduction to Yoreh Deah is answered, and examine this carefully]. And the condition before the act, how so? That he should not say: "Behold I am selling to you if you do this thing for me," but rather he should say: "If you do this thing for me, it is sold to you." And a condition that is possible to fulfill, how so? That he should not make a condition regarding a matter that is not in the power of a person to fulfill, such as "if you ascend to the firmament" and the like; for if he stipulated such a condition, the condition is void and the act is established. And so too if the condition is regarding a matter that is forbidden to do: if he stipulated regarding another, it is called "impossible to fulfill," for the other will not listen to him to transgress a word of Torah, and even regarding a rabbinic prohibition [it appears to me]. But regarding himself he can stipulate. And the details of this law were explained there in siman 143. And that it must be possible to perform through a messenger is not relevant to explain here, for in monetary laws everything is capable of being done through a messenger, and this only applies to prohibitions such as in chalitzah, and it was explained there.

When they stipulated with all the details of the conditions and the condition was not fulfilled, the act is void. Even when he was under duress and it was not within his power to fulfill it, we do not say "the Merciful One exempts one under duress," for this is only when one obligates himself in some matter and is under duress, he can say "I did not obligate myself with this in mind." Therefore, in a gift, when the condition was dependent on the action of the giver and he was under duress, he is exempt from the gift. But in a sale, which depends on the intent of both of them, the second party can say: "It is true that you were under duress, but I only consented in this manner, and what is your duress to me?" And so too in a gift when the condition was dependent on the action of the recipient, and so too in kiddushin the law is such, since it depends on the intent of both of them [Ran, chapter 3 of Kiddushin]. And there is no difference in conditions between a condition for the future, "if you do" or "if you do not do," and a condition for the past, "if you did" or "if you did not do." And even though regarding the past the matter is already clarified, nevertheless, since for the giver the matter is not clarified, it is a condition, and all the laws of conditions apply to it [Mishneh LaMelekh, chapter 6 of Ishut, see there]. And regarding the law that the condition must precede the act, it will be explained in siman 253, section 21, that it is only necessary when the act is performed immediately; see there.

There are some of our teachers who say that in monetary laws we do not require the laws of conditions at all, as the Tur wrote there, and this is his wording: Some say that one does not require a double condition nor the other laws of conditions except in matters of prohibition, such as in kiddushin and gittin, but in monetary matters it is a condition without this. Thus far his words. And there is a great reason for this matter, for how is it possible that this person sells land or gives it and says "I am not selling it or giving it unless he does such and such for me," and we should remove it from his hand even when that which he stipulated was not fulfilled because he did not state the details that were explained? [Ra'avad, Chapter 3 of Zekhiyah]. For is it not an assessment of intent that he did not consent in any other manner? And in monetary laws we follow the assessment in many places [Rashbam 137b]. And such is the opinion of the Rif, who wrote in a responsum that all these conditions are not required except in gittin and kiddushin [Ran ibid.]. And even though we derive the core laws of conditions from the children of Gad and the children of Reuven, which was a monetary matter in the division of the Land of Israel, this is not similar to all monetary laws where a person stipulates between himself and his fellow; for there, the Holy One, Blessed be He, gave it to them as a gift and gave it to them only in this manner [Ra'avad]. Furthermore, in truth, several of our teachers hold that even in gittin and kiddushin one does not require by the letter of the law all the laws of conditions, for we do not rule like Rabbi Meir who requires a double condition and the other details that he derives from the children of Gad and the children of Reuven; and only there, because of the severity of the prohibition, they were concerned for the laws of conditions to follow the stringent view, but in monetary matters there is no concern [Ran ibid. and the end of the first chapter of Nedarim]. And there is one who says that only a double condition is not required in monetary laws, but the other laws of conditions are required [Ramban ibid., and such appears to be the opinion of Rashi as the Ran wrote in the seventh chapter of Gittin]. And even according to the previous opinions, it seems to me that regarding a condition that is impossible to fulfill, everyone agrees that it is not a condition; for this is from the perspective of logic, that since he stipulates with him regarding a matter that is not within human power to fulfill, his intention is not to void the act, but rather he is like one who exaggerates in words and his intention is not at all for the fulfillment of the condition. And so it implies in the Gemara at the end of the seventh chapter of Bava Metzia, and there is proof from what will be explained in section 8 [and there is proof for the approach of the Ra'avad from the Yerushalmi Eruvin, Chapter 3, Halakha 5, see there].

But the opinion of the Rambam in chapter 6 of Ishut, and the opinion of the Tosafot in Kiddushin [49b] and the Rosh and the Tur, and so too is the opinion of the Behag, is that one requires a double condition and all the details of conditions even in monetary laws, for such is the halacha, as we derive from the condition of the children of Gad and the children of Reuven. For since the Torah wrote these details regarding their condition, it proves that no condition is valid except through these methods. Therefore, even though there were many other details there, nevertheless we did not learn from them since the Torah did not reveal to be precise in this, and therefore we do not say that a condition is only effective regarding land as it was there and the like. And a double condition we learned from that which Moses our teacher found it necessary to repeat the matters: "And if they will not pass over armed with you, then they shall have possessions among you in the land of Canaan." And a condition prior to the act we derive from the fact that he did not say to Elazar and to Joshua: "Give them the land of Gilead if they pass over the Jordan," for behold they requested from him the land of Gilead and Moses our teacher should have said so: "Give it to them if they pass over." And since he reversed the matters and preceded with the condition, it proves that it is specifically so [see the Ran there]. And so too we learned that the positive precedes the negative from the fact that he did not say first: "If they do not pass over do not give, and if they pass over give." For behold we saw that Moses our teacher was angry at this request of theirs as is explicit in Parshat Matot, and it was against his will as the Sages of blessed memory said, that it was a "hasty inheritance," and he should not have preceded the matter which is not proper first, except because the law of a condition depends on this [it appears to me]. And a condition that is impossible to fulfill we know from the side of logic as has been explained. And even though in several matters we follow an assessment of intent, and how can we require the laws of conditions when he stipulates explicitly? Certainly this is so in a place where "we are witnesses" that such was not his intention, such as one who heard that his only son died and wrote all his property to others and afterward it became known that his son is alive, that his gift is void [Bava Batra 146b], for "we are witnesses" that had he known his son was alive he would not have given his property to others. And so too a person facing death who wrote all his property to others and recovered from his illness retracts his gift, for "we are witnesses" that he did not write to them except on the condition that he would die, for how would a person give everything to others and he remain in lack of everything? And so too regarding one who sells his house in order to go to a certain place, which will be explained, a mere disclosure of intent is sufficient. But regarding that which one imposes some condition, where if he had not stipulated we would have no disclosure of intent regarding this condition, certainly if he did not stipulate with all the laws of conditions we say that he did not say so as a requirement. This is the wording of the Rosh in chapter 8 of Bava Batra [siman 48]: There are three distinctions in monetary matters: there are matters where the logic is so decisive that we follow the assessment of intent and even a disclosure of intent is not required etc., and there are matters that require a disclosure of intent etc., and a disclosure of intent is sufficient and even a condition is not required. But in all other matters that require a condition, one requires a double condition, and if not, the condition is void and the act stands. Thus far his words. And so wrote the Tosafot in several places. And see what I wrote in Even HaEzer siman 85, section 27.

And so it appears to be the opinion of our teachers, the authors of the Shulchan Aruch, who wrote at the beginning of this siman: "The laws of conditions have already been explained in Tur Even HaEzer siman 38." From this we understand that they hold that all the laws of conditions are required. And so they wrote in siman 241. And that which they wrote in Even HaEzer there, "that there are those who say these four things are not required in a condition except in a case where a stringency results from them, but not where a leniency results from them," thus far his words—this is because of the severity of the prohibition; they were concerned for the opinions that were explained. But for the halacha, they hold like the opinion of the Rambam and the Tur. [As mentioned, and so it appears from the Sma; and what was written regarding a condition in one matter, we explained what appears to us in section 1; and behold, the Rambam does not hold this even regarding divorce and betrothal, and delve into this.] And there is one who wrote that now it is customary that regarding movable property we do not require a double condition, and only regarding lands do they write "like the condition of the children of Gad and the children of Reuven." But we have not heard of this custom, and even regarding lands they are not accustomed to be precise in the details of conditions, because in most sales they do not write a condition at all, but rather they write an absolute sale, and if there is some condition, they place the deed of sale with a third party until the condition is fulfilled; and in this, it is simple that we do not require the details of a condition, and a revelation of intent is sufficient. And there are those who say further that specifically when he spoke with the language of "if" are the laws of conditions required, but if he spoke with the language of "when it will be," such as if he said, "when I have money I will return it to you," or "when you are in such-and-such a place it is sold to you," or "when you give me such-and-such an object it is sold to you," and the like, one does not need all the laws of conditions, for this is like one who said "at such-and-such a time it is sold to you," and this is not a matter of a condition [Netivot HaMishpat]. And see what the Rambam, of blessed memory, wrote in chapter 9 of Divorce. And there are also conditions that do not require all the laws of conditions, such as when he reserved something in the body of the sale, which is to say he said "on the condition that this thing shall be mine," and it will be explained in siman 212. And so too, if it is written at the end of the deed, "and we have performed a kinyan from him with the stringency of all conditions and kinyanim made according to the enactment of our sages of blessed memory," it is as if he explicitly stated all the laws of conditions, and it will be explained in siman 241.

There is one further matter regarding conditions: when one stipulates against that which is written in the Torah, his condition is void. This applies specifically to a matter that is not monetary, such as one who betroths a woman on the condition that he shall not be obligated in her conjugal rights. However, in a monetary matter, such as on the condition that he shall not be obligated to provide her sustenance, his condition is valid, for she has the power to waive money. And some say that everything the sages instituted is like that which is written in the Torah. And even though regarding a condition one can stipulate upon himself even to transgress a matter of Torah law, as I wrote in section 2, it is different there, for in truth the condition will not be fulfilled and the act will be void; but when he completes the act and voids something of the laws of the Torah, such as in kiddushin, the condition is void and the act is valid [the Rambam there]. And even in a monetary matter, it is only specifically when he says, "on the condition that you shall have no claim of sustenance against me," for she waives this obligation to him. But when he said, "on the condition that there is no obligation of sustenance in these kiddushin," the condition is void, for how can he say that there shall be no such obligation when the Torah has obligated him? Rather, he must say that she shall not claim it from him, that she shall waive it to him. And it is similar to this regarding ona'ah in siman 227.

The Rambam, of blessed memory, wrote [there]: Anyone who says "from now" will not need to double his condition nor precede the condition to the act; rather, even though he preceded the act, his condition is valid. However, he must stipulate regarding a matter that is possible to fulfill, and if he stipulated regarding a matter that is impossible to fulfill, he is like one who speaks hyperbolically and there is no condition there. And anyone who says "on condition" is like one who says "from now," and he does not need to double the condition nor precede it to the act. Thus far his words. And some say that even when saying "from now" or "on condition," all the laws of conditions must be present [Tur there].

The Rambam further wrote in chapter 11 of Hilkhot Mekhirah: One who transfers ownership, whether of land or of movable property, and stipulated conditions that are possible to fulfill, whether the transferor stipulated or the transferee stipulated—if the conditions were fulfilled, the thing he transferred is acquired, and if the condition was not fulfilled, he did not acquire. We have already explained the laws of conditions. In what case does this apply? When he acquired through one of the methods by which one acquires, and he is obligated to fulfill the condition. But if he did not acquire now, and he stipulated with him that if this condition is fulfilled he shall acquire, and if it is not fulfilled he shall not acquire—even though the condition was fulfilled, he did not acquire, for this is an asmakhta, as he made his acquisition dependent on doing such and such, and any asmakhta does not effect acquisition, for he did not resolve in his heart to transfer ownership. How so? One who sells a house to his fellow or gave it to him as a gift on the condition that he go with him to Jerusalem on a certain day, and this person took possession of the house—he has acquired when he goes with him to Jerusalem on that day; and if that day passed and he did not go, he did not acquire. But if he stipulated and said to him: "If you go with me to Jerusalem on a certain day," or "If you bring me such and such a thing, I will give you this house" or "I will sell it to you for such and such," and he went with him on that day or brought it to him—even though he took possession of the house after he fulfilled the condition, he did not acquire, for this is an asmakhta. And so too anything similar to this. Thus far his words. For the Rambam, of blessed memory, holds that the reason there is no issue of asmakhta in conditions is that an asmakhta only exists when the acquisition is not finalized now, but rather after a time when the condition is fulfilled, and therefore his mind was not at all resolved. But when the acquisition is finalized now and this person takes possession of the object, even though there is a condition in it and if it is not fulfilled the acquisition will be voided, nevertheless this is not an asmakhta, for certainly his mind was resolved, but rather he stipulated an external matter that when this matter is not fulfilled, the acquisition will be voided automatically. And just as it will be explained that there is no asmakhta in a case of "from now," so too in a case like this. [And the primary explanation is according to our teacher, the Beit Yosef, and the words of the commentators on the Shulchan Arukh are difficult; and the difficulty raised by the Rishonim as to why there is no issue of asmakhta in conditions of divorce is resolved; and that which he wrote "on the condition" is not precise, for with "on the condition" one does not need as has been written; and delve into this.]

Regarding what has been explained, that every condition must be fulfilled whether the grantor stipulated it or the buyer stipulated it, some say that certainly at the beginning of the transaction any condition is effective, even if the stipulator stipulated for the benefit of the buyer or vice versa, for the buyer only acquired on this understanding and it is a complete condition. However, if at first he sold to him without specification, and before the transaction was completely finished the buyer stipulated for the benefit of the grantor and the grantor remained silent, or the grantor stipulated for the benefit of the buyer and the buyer remained silent, this is nothing but mere words, and the one who remained silent himself understood that the speaker spoke only to ease his mind; for if he had taken his words as primary, he would have repeated them to make known that they acted upon such and such a condition. But at the beginning of the transaction, even if the one whose benefit is in this condition remained silent, his fellow only entered into it upon this condition. And it appears that our teacher, the Rema, ruled accordingly. And what is called the beginning of the transaction and what is called before the conclusion of the transaction depends on the assessment of the judge. And if they stipulated any condition, even though the condition was not written in the deed, nevertheless the condition stands, for they certainly wrote it based on the first condition even though they did not mention it; and as long as they did not explicitly cancel the condition, it is not canceled.

One who sells his field or his house and specified at the time of the sale that he is selling in order to go to a certain place, or that he is selling because of a drought in order to buy wheat, this is like one who sells on condition, for he has revealed his intent that he is selling because of this, and we do not require the laws of conditions as I wrote in section 5. Therefore, if he did not go to that place—whether the prevention was due to the dangers of the road or whether the prevention was on his own part because his will was not assisted due to the matter of his situation—or in the case of a drought where rains fell and wheat became cheap, or wheat arrived and became cheap, or a prevention on his own part, he returns the money to him and the land or the house is returned to him, for he specified that he is only selling to do a certain thing and the thing was not done. And so too anything similar to this. And specifically where some novelty occurred to him as I wrote, but when nothing new occurred to him, only that his will changed without any reason from the side of the business situation or from the side of his own situation, the purchase stands [Tur]. And in any such case, it is forbidden for the buyer to consume the produce of the purchase until it is known that the purchase stands [Sma], for perhaps the purchase will be voided and it will turn out that he consumed the produce because of his money, and it would be ribbit. And if he stipulated "on condition of going and dwelling there," even if he went there, if it was not established for him because of some reason, the purchase is also void [Shevut Yaakov]. And so too one who sells his house and says that he is selling it because he wants to engage in some business in a certain place, and he went there and the business did not materialize, the purchase is void [Taz]. And so too if one bought land in a city where he does not dwell and specified at the time of the acquisition that because he wants to establish his dwelling here, therefore he is buying the land here, and afterwards it was not assisted for him to dwell here, the purchase is void, for you have no greater assessment than this, for with this in mind he did not buy [Netivot HaMishpat].

And all this is when he revealed his intent at the time of the sale as to why he is selling or why he is buying. However, one who sells without specification or buys without specification, even though it was in his heart that he is selling or buying because of this, and even if it appears that the truth is so—that he only sold or bought because of this matter and that matter—and the matter was not fulfilled, nevertheless the transaction stands, and matters of the heart are not matters. And not only that, but even if before the time of the sale he said that he is selling or buying because of this reason, since at the time of the sale he said nothing, he cannot retract and the transaction stands. However, if there is a proven assessment that his sale or purchase was only because of this cause, and the cause was nullified, the transaction is nullified, and we follow the assessment as I wrote in section 5. And some say that all this is regarding a sale or a purchase, but regarding a gift, matters of the heart are matters; for only regarding a seller do we say that since he received money, he resolved and transferred ownership when he did not specify and there is no great assessment, and all the more so regarding the buyer. But regarding a gift, any assessment whatsoever nullifies the gift, for this itself is a great assessment, as he certainly did not resolve in his mind to give for free except because of some benefit that would reach him according to the assessment, and since it was nullified, his gift is nullified. And this matter depends on the perception of the beit din, for sometimes love or kinship leads to a gift and not because of the benefit of the giver. And our teacher, the Rema, wrote that all this is regarding one who sells land, but regarding one who sells movables, even a revelation of intent at the time of the sale is not effective until he stipulates according to the laws of conditions that have been explained, as they do not carry such an assessment even when he revealed his intent, because sometimes a person sells his movables even without a proper reason, whereas regarding land, a person does not sell without a strong reason. And regarding a gift, it appears to me that there is no difference between land and movables if it was a substantial gift.

The Tur wrote in siman 230, and this is his wording: The Ri wrote that one who purchases wine from his fellow, even if he said, "My intention is to bring it to such-and-such a place," and it decreased in price before he arrived there, the sale stands, for his purchase is a complete purchase. Even though regarding a seller who [sold] on the condition of ascending to Eretz Yisrael and was unable to ascend, his sale is void, we say this regarding a seller specifically, for a seller sells out of duress, and it is known that he only sold because it entered his mind that he would need to sell. However, Rabbeinu Chananel wrote that there is no difference between a seller and a purchaser. And so wrote the Ramah, of blessed memory, except that he distinguished specifically where he stipulated that he would not give the money until he brought it to such-and-such a place; for since he purchased on the condition of not giving the money until he brought it to that place where it is sold at a high price, and before he arrived there it decreased in price, he may return it, for presumably his intention was on the condition that he find the market price there to be high as was customary, and since it decreased in price before he arrived there, it is as if he stipulated a certain condition and the condition was not fulfilled. Thus far the wording of the Tur. And the Ri does not hold of the distinction that was explained between land and movable property.

From these words of our teachers, we have learned that one who purchases merchandise to transport it to a distant place, and it became cheaper there, or some cause arose such that it is impossible to transport the merchandise there, nevertheless the purchase stands; for if not so, all methods of commerce would be nullified. And from this is a response to some Acharonim who wished to say that even regarding movable property their law is like land. And according to their words, if one purchases a ship of merchandise to transport it to a distant place, and the water became low or it was a time of emergency such that it is impossible to transport them, shall the purchase be nullified? Behold, all methods of commerce are thus: that the purchaser enters into it upon a doubt, and he is close to profit and to loss. And behold, it does not depend on the intent of the purchaser alone, but also on the intent of the seller [Tosafot Ketubot 47b]; for if not so, if one purchases a cow and slaughters it and it is found to be treif, shall we say that he did not purchase it upon such an intent? Rather, it is certain that he entered into this under the category of doubt [ibid.]. And regarding lands, where the Sages said that we follow the disclosure of intent and estimation, this is because the sale and purchase of land is not the way of commerce; rather, when one needs the land he purchases it, and the seller also sells because of some reason. But regarding land with which they conduct commerce, such as one who purchases forests to hew wood from them to transport them on rafts to a distant place, certainly also even when some cause arose such that it is impossible to transport them or the merchandise became cheaper there, the purchase stands. And all men of commerce act thus, and in our days we have not heard that a purchaser should sue a seller with such a claim. And even the Ramah only said so when the condition was that he would give him the money there, for it is a proven estimation. And even the opinion of Rabbeinu Chananel must be said thus, for if not so, it is difficult, as he himself distinguishes between land and movable property, as the Tur wrote in this siman in his name. Or perhaps his intention was only regarding land, and only regarding one who receives for half-profit is the law thus, that when it becomes cheaper it is in the domain of the seller, as was written there [and what the Beit Yosef wrote in section 32, it must be said that this was his intention as is proven from the evidence he brought, and examine it closely]. And only regarding a purchaser who bought for the sake of another person and disclosed his intent to the seller at the time of the purchase that he is buying it for so-and-so, and has not yet given money, even though he did not explicitly stipulate that if that so-and-so does not wish to accept the object he shall return it to him, one of the great authorities ruled that the purchase is returned [She'elat Yaakov]. But when he has paid the seller, even in such a case it is not effective without an explicit condition, and such is the primary law.

Reuven who sold a field to Shimon and stipulated with him on the condition that Shimon shall sell it to Levi: if he sold it to Levi, the acquisition takes effect retroactively. And if he did not fulfill the condition and sold it to another, or did not sell it to Levi within the time he established for him, Shimon's acquisition is void retroactively, for every condition in monetary matters is valid, provided that he stipulates according to the laws of conditions that have been explained. And even if the condition that he sell to Levi was without a set time, Shimon cannot say when he sold it to another, "I will yet purchase it from the other and sell it to Levi to fulfill the condition," for immediately upon selling it to the other, his acquisition was voided, as Reuven's intention was that Levi should be the first purchaser [R. A. Sasson]. However, as long as he has not sold it to another, Reuven cannot compel him to sell immediately to Levi since he did not set a time for him. And if Levi does not want to purchase it, even though he seeks to sell it to him, nevertheless the condition has not been fulfilled and Shimon's purchase is void [it appears to me]. And regarding eating the fruits, it appears that Shimon is permitted to eat them, and it is not similar to section 11, for there it does not depend on him but rather on the seller, and perhaps the sale will be voided; but in a condition that depends on him, we do not need to concern ourselves that perhaps he will not fulfill it, and also there is no concern that perhaps Levi will not agree to purchase it, for this too is in his power, to lower the price for him until he agrees to purchase it [it appears to me].

One who sells to his fellow and the seller stipulated, or the buyer stipulated at the beginning of the purchase, that he shall return the purchase to the seller at a certain time as a gift, or that he shall sell it back to him when he returns his money, the sale is valid and he must return it at the certain time as he stipulated. It is permitted for the buyer to consume the produce, for until that time it is like a complete sale, and it is no worse than a gift on condition of return, which is a gift. And even according to that opinion in Yoreh Deah siman 172 that regarding a mashkanta in a place where they do not remove [the creditor], it is forbidden to consume the produce, it is different there because it is in the category of a loan, but in the category of a purchase it is permitted. And so too, when he stipulated to give it to him as a gift at a certain time, it is like a mashkanta of Sura which was explained there, which is permitted according to everyone [Sma]. However, if he sold to his fellow and stipulated with him generally that he shall return it to him when he has money, and he did not set a time for him, such that he must return it to him at any time he brings him his money, it is forbidden for the buyer to consume the produce, for those zuz appear like a loan with him. And if the seller does not have cash in hand and wants to give him the equivalent of money, he does not have the power to compel the buyer to accept them, and he does not have the power to say that the entire sale was like an asmakhta and the money is only like a loan and he can pay even with the equivalent of money; for it is not an asmakhta but a complete sale with a condition, and the buyer can say "I will fulfill the condition as you stipulated, that you give cash" [Taz]. And regarding a condition, it is not relevant to say "the equivalent of money is like money," for there is nothing in a condition except what they stipulated explicitly.

Regarding that which we explained, that when he did not set a time for it, it is forbidden for the buyer to eat the fruits, there are those who say that this is specifically when he did not speak with the language of "on condition," but rather said, "and when I have money, return it to me," for it is not a sale at all in this regard. However, if he said, "I am hereby selling to you on condition that when I have money, you shall return it to me," even if he did not set a time, it is permitted for the buyer to eat the fruits, for this is a condition like all conditions and the sale is a complete sale with a condition [Machaneh Ephraim]. And there is a further distinction, for when he said "on condition," it requires a kinyan from the buyer to the seller when he returns the money to him, and when he did not say "on condition," it does not require a kinyan, for his sale is nullified [Netivot HaMishpat].

When the seller stipulated to return it to him at a certain time when he gives his money, and he returned it to him against his will, without the consent of the buyer, it is considered a giving and he is obligated to sell it back to him. And if he does not sell it to him, it is like an annulment of the condition and the sale is void retroactively, for this is similar to the repayment of a debt that was explained in siman 120, that giving against one's will is considered a giving. However, if he stipulated with him that he should return it to him at a certain time for free, and the buyer returned it to him against his will, and the seller did not want to accept it at that time in order to annul the previous sale through the annulment of the condition, it depends on the dispute in Even HaEzer siman 143, whether giving against one's will regarding the fulfillment of a condition is considered a giving. And so too, any condition where the buyer must give some object to the seller and he gives it to him against his will in order to fulfill the condition, it depends on this dispute [ibid.].

If the buyer said of his own accord, "I will return it to you willingly when you wish to return and purchase it from me," or if after the seller stipulated thus, the buyer replied to him, "I will do so if my mind does not change, but if my mind changes and I do not wish to return it, I am not obligated to return it," and the seller remained silent, there is no condition here at all. Since it depends on the buyer to act according to his will, the buyer may therefore consume the fruits, for even if he returns it to him afterwards, it is as if he sells it to him from now [Tur]. And according to the opinion of the Rambam, even when the condition is established and he is obligated to fulfill the condition and return it, nevertheless, there are times when it is permitted to consume the fruits. For example, if after the conclusion of the sale the buyer stipulated and they performed a kinyan with him on this, that when the seller brings his money he will then sell it back to him, he must fulfill the condition because of the kinyan; nevertheless, he is permitted to consume the fruits because the sale was already concluded without a condition [Beit Yosef]. And some say further that even before the conclusion, nevertheless, since the seller was not the one who initiated this condition but rather the buyer, and even though the seller repeated the condition and the buyer must fulfill it, nevertheless, since the buyer was the one who initiated this so that the seller would not be distressed, there is no status of a loan with ribbit on this [ibid.]. And for the halacha, the primary view is like the first opinion [Taz].

An incident occurred regarding a certain woman who sent an agent to purchase land from Shimon, her relative. Shimon said to the agent, "If I have money, let my relative return this land to me." The agent replied to him, "You and so-and-so are relatives like siblings," meaning to say, it is a likely matter that she will return it to you, but he did not state explicitly that he was purchasing it from him on this condition. The incident came before the sages and they said that the kinyan is nothing and the sale is void, for the mind of the seller did not rely upon the words of the agent since he did not answer him with a complete answer, and the seller only wished to sell on this condition and did not finalize and transfer ownership. If the agent had replied to him, "I do not wish to purchase it on this condition," perforce either the seller would have consented to sell without this condition or he would not have sold it to him at all. But since the agent replied to him according to his will, yet they were not clear words upon which he could rely, he took the money from him but without reliance of mind, and the purchase is void. It is forbidden for the buyer to consume the produce, for the money is like a loan, as written in Yoreh Deah siman 174. This applies specifically when the seller said to the agent with absolute intent that his will is that the purchase be returned to him when he returns the money. However, if he spoke in the language of a question, "Will she return my purchase to me when I return her money?" the answer of the agent is not a hindrance [it appears to me].

An incident occurred regarding Reuven who owed a maneh to Shimon and sold him land for that maneh and wrote him a deed of sale, but Shimon did not take possession of it, and he wrote to Reuven that if he pays him the maneh the sale shall be voided. Afterwards, Reuven said that he paid him and Shimon said that he did not pay him. The Rashba, of blessed memory, ruled that Reuven is believed with a shevuat hesat as in all oral claims when he claims "I paid," and Shimon cannot say, "Why did you leave the deed of sale in my hand?" For since it was only given on account of the debt, it is nothing more than an oral loan. And the fact that he did not receive the deed from his hand was because he relied on the writing he had from Shimon that upon its payment the deed would be voided, and he is believed regarding the payment with a hesat as in all claims [it appears to me]. And it is a simple matter that it is forbidden for Shimon to consume the produce as long as he has not taken possession of it properly by the word of Reuven who said to him "I will not pay you the maneh" [it appears to me].

Our sages, of blessed memory, said [Bava Metzia 66b]: Any "if" is an asmakhta, and an asmakhta does not effect a legal acquisition. Its explanation is, for example, one who said, "If you do such-and-such," or "If such-and-such occurs, I will give you a maneh or I will buy you this house," and "If it does not occur," or "If you do not do such-and-such, I will not give to you or I will not buy for you"—even though he did it or the thing occurred, he has not acquired. For anyone who says "if it will be" or "if it will not be" has not fully resolved to transfer ownership, as his mind is still relying on the possibility that perhaps it will be or perhaps it will not be. Even if he said this before witnesses and wrote it in a deed, it is of no avail [the Rambam, chapter 11]. This applies all the more so to penalties that a person penalizes himself, such as writing, "If I do not pay by such-and-such a time, I will pay such-and-such a penalty." According to the opinion of the Rambam, when the kinyan is finalized and he now holds the object, and he stipulates some condition that if he does not fulfill this matter the transaction will be voided, there is no asmakhta in this, as I wrote in section 9. The Rambam, of blessed memory, does not distinguish between a matter that is in his hand and a matter that is not in his hand. The Tur wondered about him, for in the Gemara [ibid. 74a] this distinction is explicitly stated. Furthermore, they distinguished in the Gemara [ibid. 104a] between exaggerating and not exaggerating, for in a case of not exaggerating it is not an asmakhta. The Rambam wrote this law in chapter 8 of Hilkhot Sekhirut: One who receives a field from his fellow and, after he took possession of it, he left it fallow, they assess how much it was fit to produce and he gives him his share. For thus he writes to the owner of the land: "If I leave it fallow and do not work it, I will pay with the best." And for what reason is he obligated to pay? Because he did not set upon himself a fixed amount so that we should say it is like an asmakhta; rather, he stipulated that he would pay with the best, and therefore he fully resolved and obligated himself. But if he said, "If I leave it fallow and do not work it, I will give you one hundred dinars," this is an asmakhta, and he is not obligated to pay, but rather he gives only according to what it was fit to produce. Thus far his words. It appears that the Rambam, of blessed memory, holds that regarding any matter where the transaction was not finalized and the transaction is not yet under his hand, any condition he stipulates—even if it is fair and is not by way of a penalty to set an excessive matter upon it—is an asmakhta. But a matter that was finalized and the transaction is under his hand, if he did not set an excessive matter, it is not an asmakhta, as I wrote in section 9, for such is the way of commerce. However, when he set an excessive matter, it is nothing but an asmakhta, for why should he give more than what is just? And the Rambam explains the distinction that our sages, of blessed memory, stated between "in his hand" and "not in his hand" as follows: that when the transaction is already in his hand, there is no asmakhta in a case of not exaggerating; but when the transaction is not yet in his hand, there is an asmakhta even in a case of not exaggerating. The explanation is not "what is in his power to do" [and the difficulty of the Tosafot from Sanhedrin 25a is well-settled; and examine this closely].

The Rambam did not mention one who plays with dice in the laws of asmakhta, and according to his words regarding asmakhta, there is no reason to say that it is not an asmakhta. There is one who says that in truth his opinion is that there is an asmakhta in this [Kesef Mishneh, chapter 10 of Laws of Testimony]. And in chapter 6 of Laws of Robbery he wrote: Those who play with dice, this is robbery by the words of the sages, even though he took with the owner's will; since he took his fellow's money for nothing by way of play and jest, he is a robber. And one who plays with dice with a gentile, there is no prohibition of robbery in it, but there is a prohibition of engaging in idle matters. Thus far his words. And in chapter 10 of Laws of Testimony he wrote: And so too one who plays with dice, provided that he has no occupation other than it; since he does not engage in the settlement of the world, he is under the presumption that he eats from the dice, which is the dust of robbery. Thus far his words. It is clear from this that he holds that there is no asmakhta in dice, for if it were not so, why does he call this "the dust of robbery," and why must he attribute it to "play and jest," and also how did he permit it with a gentile? For does he not rule in chapter 1 of Laws of Robbery that robbing a gentile is prohibited by the Torah? It appears that he holds that dice does not involve an asmakhta for another reason, for anything involving "from now" has no asmakhta, as will be explained, and dice deals with a case where he says to him, "If you win, you shall acquire it from now." He also holds that even according to the one in the Gemara who holds that dice does not involve an asmakhta for the reason we explained, his disqualification for testimony is because he does not engage in the settlement of the world, and because of this the sages treated them like robbery, and also because it is play and jest. Since this robbery is only rabbinic, it is therefore permitted with a gentile and he is fit for testimony unless he has no other occupation, for then he is not of the "settlement." And why did the sages treat them like robbery? Because otherwise the prohibition would not be effective. According to this, for the law according to the opinion of the Rambam, there is a complete prohibition to play with dice and it is robbery [and everything that the Maggid Mishneh and the Kesef Mishneh questioned is answered, see there; and that which is found in Shabbat 149b, which the Tosafot found difficult, is settled, see there].

And there are some of our teachers who say that asmachta only applies when they spoke by way of a penalty, such as "if I do not give by such-and-such a day, I will return your document to you," or "if I leave it fallow and do not work it, I will pay a thousand zuz." However, regarding all other conditions that a person stipulates with his fellow, such as "if you go to such-and-such a place" or "if you do such-and-such a thing for me, I will give you such-and-such," and all types of conditions in business and in gittin and kiddushin, there is no asmachta in this at all, for these matters are not by way of a penalty, but rather they are said specifically and with a whole heart. And even if he said, "if my wife gives birth to a male, such-and-such a person shall take a maneh," there is no asmachta in this at all [the Rashba and the Ra'ah, cited in the Beit Yosef].

The opinion of our teachers, the authors of the Tosafot, and several of the great poskim, and so our teacher, the Rema, decided, is that there are three divisions in the laws of asmakhta: For anything that is not in the power of a person to do and depends on the power of others—for example, if one said to him, "Buy me wine in such-and-such a place," where in that place it is sold cheaply and the time of the sale there does not last long [Tosafot Bava Metzia 73a], and this person obligated himself to buy, such that if he does not buy he will be obligated to him for such-and-such—it is an asmakhta. Since it does not depend on him, for perhaps they will not want to sell to him since this is not a permanent, fixed trade, he did not resolve and transfer ownership with a whole heart, and says it only as a mere asmakhta. And even if they wanted to sell to him and he did not buy, he is exempt, since the beginning of his obligation was as an asmakhta [Netivot HaMishpat]. And so too when he said to him, "I will buy you such-and-such an object from such-and-such a homeowner," even if he did not fix a price for him, and obligated himself that if he does not buy he will pay him such-and-such, it is an asmakhta, for who says that the homeowner will agree to sell his object? But when he said to buy merchandise from a shopkeeper or from a merchant and did not fix the price, or even if he fixed the price but they sell to everyone regularly at this price, and he obligated himself that if he does not buy he will pay him such-and-such, it is not an asmakhta, for certainly he resolved to obligate himself with a whole heart since it is within his power to buy this. And anything that is completely in his power to do, like what has been explained, and so too when one took land from him for sharecropping and obligated himself that if he lets it lie fallow and does not sow it he will pay such-and-such—if he did not obligate himself in an exaggerated matter, even though he obligated himself to pay generously, such as to pay with the best, there is no issue of asmakhta in this. But when he obligated himself in an exaggerated matter, such as if he said, "If I let it lie fallow and do not work it," or "if I do not buy the merchandise, I will pay you a thousand zuz," it is an asmakhta and he does not acquire, for certainly he did not resolve in his heart to fulfill this, but rather because he thought, "I will certainly do so since it is in my power." And this matter depends on the context. And a matter that is not in his power at all and not in the power of others—for example, one who plays with dice, who does not know if he will win or if he will be defeated, and nevertheless made a condition—certainly he resolved and transfers ownership out of doubt. For upon what did he rely in his condition? It is understandable in the first division, for even though there too it is not in his power, nevertheless it is somewhat like being in his power since it is in the power of others, and he imagines that they will sell him the wine or the object. And so too in a matter that is completely in his power, he imagines that he will certainly do it, and therefore he makes a condition even though he has no intention to fulfill the condition because it seems in his mind that he will not come to this. But in that which is completely not in his power, like dice and the like, or if he said, "If it rains today I will give to you, and if not I will not give to you," and all such things, upon what did he rely in his condition? Rather, certainly he resolved and transferred ownership with a whole heart. And regarding dice, it will be further explained in section 35.

And there are some of our teachers who provide another rule regarding asmachta: that anyone who makes a condition dependent on his own will, it is an asmachta. For example, "if I leave it fallow and do not work it," even though he did not exaggerate; and that which he pays with the best of the land is due to an enactment of the sages, since this man relied upon him and his field was lost. And similarly, when he said, "if I do not come from here until such-and-such a day, the field shall be yours," it is an asmachta. And similarly, if he said, "if I do not give you such-and-such money within thirty days, your document shall be returned to you," and anything similar to this. But in a case where it is dependent on the will of others, such as if he said, "if you do such-and-such, it shall be so, and if you do not do such-and-such, it shall not be so," and similarly dice games and anything similar to this, where the dependency is not only on his own will but on the will of his fellow or the action of his fellow, it is not an asmachta. And the reason is that when he makes it dependent only on his own will, he did not resolve in his heart at all to become obligated even if he does not fulfill it, but rather because he thinks that he will certainly fulfill it and there is no concern regarding my condition, therefore he accepts this condition upon himself. But when he made it dependent on the will of others, where it is hidden even from him whether the other will fulfill it or not, and nevertheless he accepted it upon himself, he certainly resolved and transferred ownership. And this is the case with all the ways of conditions in the Gemara that do not involve asmachta, where the condition is upon the other. And this is the condition of the children of Gad and the children of Reuven that Moses our teacher commanded Israel: "if the children of Gad and the children of Reuven cross over... you shall give them the land of Gilead, and if not... do not give." And as for the fact that the sages, of blessed memory, associated the law of a guarantor with asmachta, even though it is dependent on the will of the borrower, nevertheless, since it is the way of a person to pay his debt, it is like one who makes it dependent on his own will, for he thinks that the borrower will certainly pay. Therefore, were it not for the decree of the Torah that a guarantor becomes enslaved to the debt, we would judge this with the law of asmachta. And according to this, regarding a seller and a buyer, there is a distinction as to who is the one making the condition and upon whom the condition was placed. For example, if the seller made a condition upon himself, "if I do such-and-such it shall be so," or when the buyer made a condition upon himself, there is an issue of asmachta in this. But if the buyer made a condition upon the seller, or the seller upon the buyer, there is no issue of asmachta in this. [Ramban and Nimukei Yosef, chapter 3 of Sanhedrin, and the students of the Rashba, and so it appears from the Rashbam 168].

Our teacher, the Rema, after writing the three rules of asmachta that were explained in section 25, wrote, and this is his wording: Therefore, when a seller transfers ownership to a buyer on condition "if you do such for me, you shall acquire it," it is an asmachta, since the fulfillment of the condition is not in the hand of the seller but rather in the hand of the buyer. Thus far his words. And so wrote the Tur, and they challenged them: since it is in the hand of the buyer to act, what does it matter to me if the seller stipulates or the buyer [the Gra]? And it appears that this is the explanation: according to the rules mentioned there, anything that is entirely in his hand and he did not exaggerate is not an asmachta, and anything that is not in his hand at all, even with exaggeration, is not an asmachta, and the essence of asmachta is when it is somewhat in his hand but not entirely. Therefore, when the seller stipulates regarding the buyer, it is also like "in his hand and not in his hand," for even though it is not in the hand of the seller, nevertheless he imagines that since the buyer accepted this condition upon himself, he will presumably fulfill it; yet, this is not entirely in the hand of the seller, for perhaps the buyer will not fulfill it. But when the buyer himself stipulates regarding himself, it is entirely in his hand, and so too the reverse [and the difficulty of the Beit Yosef is answered, see there]. And one should not challenge that according to this, why was it not an asmachta in the condition of the children of Gad and the children of Reuven, which was exactly like this, where our teacher Moshe commanded the leaders of Israel "if the children of Gad cross over etc.," which is like a seller who stipulates regarding the buyer? For it can be said that our teacher Moshe stipulated with them themselves as well, and they repeated the words as is explained in the verse, and it is like a seller who stipulates regarding himself, and therefore it was not an asmachta. And according to the opinion of the Rambam, it is obvious that the law of asmachta does not apply there, for the transaction is finalized by speech and the condition is an independent matter, as I wrote in section 9.

Regarding that which we explained, that in a matter which is in his hand and is not exaggerated it is not an asmachta, and we explained that "if I leave it fallow and do not work it, I will pay with the best" is not called exaggerated, for since his fellow loses because of him, it is the law that he must pay him what he caused him to lose; there is one who wrote that even in a place where his fellow does not lose because of him, if he also does not lose by this, it is not an asmachta. Therefore, when one sold him movable goods on condition, even if he sold them for slightly more than their value, it is not called exaggerated, for the buyer does not lose by this purchase and such is the way of the world. Therefore, even though when the purchase is cancelled the seller will have no loss, nevertheless when it is fulfilled the buyer will have no loss, it is not an asmachta, and this is called not exaggerated. And specifically regarding movable goods, but the sale of land on condition is called exaggerated and is an asmachta, for a person is not prone to sell his lands. And likewise, produce that one sold before the time arrived to sell them according to the way of the world is called exaggerated. And if the land is not worth more, it depends on what I wrote in the next section [Netivot HaMishpat according to Tosafot Bava Metzia 66a]:

If one lent him one hundred gold pieces against his field or against his house and said to him, "If you do not repay me within three years, the field or the house shall be mine for these funds," it is an asmachta and he does not acquire it. For according to the opinion of the Rambam, since the purchase was not completed now; and according to the opinion in section 24, because this is like a penalty, for he did not sell it to him but rather made a loan with him and penalized himself that if he does not repay him, it shall be forfeited to him; and according to the opinion of our teacher, the Rema, it is like an exaggeration, as I wrote in the previous section; and according to the opinion in section 26, even though it is dependent on the will of others, nevertheless this is like duress, for the lender forces him to this and he is compelled to agree to it [this appears to be the intent of the Nimukei Yosef in the fifth chapter of Bava Metzia, see there]. And it is simple that a matter which appears to be under duress is in every case an asmachta according to all opinions. And some say that this is specifically when it is worth more than one hundred gold pieces, but if it is not worth more, there is no law of asmachta in this, for he fully intends to transfer ownership. And some say that even if it is not worth more, since it is land, it is an asmachta, for this is like an exaggeration as I wrote. And according to the Rambam, in every case it is an asmachta [so it appears to me].

And all this is when he did not say "from now," but if he said to her, "if you do not repay me within three years, it shall be mine from now," he has acquired it in any case. And even according to the opinion that will be explained in section 43, that with "from now" alone the asmakhta is not removed, nevertheless in this they agree, for since he placed it in his hand as a mashkon and a lien for his money, it is like a sale, and he also did him a favor, and certainly he resolved in his heart to transfer it with a complete kinyan from now if he does not repay him within three years [Sma]. Nevertheless, the lender shall not consume the fruits within the time, for perhaps he will redeem it and the money will be a loan retroactively, and it will turn out that he consumed ribbit [ibid.].

And some say further that if at the outset when he mortgaged it, he insisted on mortgaging only this land even though he had other lands, he acquires it even without "from now," for have we not seen that he resolved in his mind to transfer it? For if not so, he would not have insisted on which land to mortgage. And even in a case where it is an asmakhta, if he said to him, "If I do not repay you within three years it shall be yours," and even within the three years you shall have no repayment except from this one, from which you shall take according to your debt, we do not say that since the first condition is void due to asmakhta, the second condition is also void. Rather, the second is valid and it is an apoteiki, and he cannot remove him with other land, but only with this one or with money, as written at the beginning of siman 117; see there.

In any case where he did not acquire the field because of asmakhta, and the buyer did not know of this law and consumed the produce, he must deduct all the produce he consumed because this is total ribbit, for a mashkanta without a deduction where he can remove him at any time he wishes is ribbit ketzuza [the Rif, chapter 5 of Bava Metzia]. And this is only like a mashkanta on his money since it is not an acquisition, and it also will not avail if he now deducts a small amount for him, for this only avails at the beginning of the mashkanta. Furthermore, the one who holds that without a deduction it is total ribbit holds that even with a deduction it is avak ribbit and it is forbidden to do so. However, some disagree and hold that a mashkanta without a deduction is avak ribbit, and therefore what he consumed within the three years he does not deduct for him, for when one consumes avak ribbit we do not extract it from him. However, what he consumes afterward under the law of a sale, and the sale is in error because it is an asmakhta, it is a waiver in error and he returns the produce [Tosafot ibid. 66b, s.v. "Hatam"]. And so too in any matter where he did not acquire because of asmakhta, even though it came into his hand, he must return all the produce he consumed because it was in error, for the seller allowed him to consume because he believed it was permanently transferred to him, and then it became known that it was not permanently transferred to him, and it is like a waiver in error. But what he consumed within the three years, the seller certainly knew that it was in his power to redeem according to the condition between them, and nevertheless he allowed him to consume under the law of ribbit; and since according to this view it is only avak ribbit, it is not extracted by the beit din, as is written in Yoreh Deah siman 161, unless he comes to fulfill his obligation toward Heaven. And some say that in other sales of asmakhtot we do not say that it is a waiver in error, and since it came into the hand of the buyer, he acquired it; and only in one who lent to him on his field, where the beginning of the matter was with a loan and within the three years he consumed it under the law of ribbit, in this we rightly say that what he consumed afterward he must return because it is a waiver in error. But in other matters where at the beginning he took possession under the law of a sale, even though by law he did not acquire because of asmakhta, nevertheless this one sold and this one bought, and since it came into the hand of the buyer, he is not obligated to remove it from his hand. And this is similar to one who sells something that has not yet come into the world, where if the buyer preceded and seized it, we do not extract it from him, as is written in siman 209.

Reuven who took a field from Shimon for one hundred gold pieces and gave him a deposit of ten gold pieces, and did not say "my deposit shall acquire the entire field," which would acquire it entirely as written in siman 190, section 4, but rather gave them as a type of penalty if he retracts, for he said, "If I retract, my deposit is forgiven to you," and you shall take the ten gold pieces absolutely and the field shall also remain before you; and the seller said, "If I retract, I will double your deposit for you," meaning that you shall take from the field for the value of twenty gold pieces—and it was explained there that in such a case he only acquired corresponding to his money. And when they retracted, it is the opinion of the Rambam, of blessed memory, that if the buyer retracted, the seller acquired the deposit since it is in his hand, and if the seller retracted, we do not obligate him to double the deposit, for this is an asmakhta and he did not acquire. But regarding the seller it is not an asmakhta since the money is in his hand, for regarding the seller the matter is finalized as written in section 9 and 22. But the buyer does not have possession of the field, and it is an asmakhta. And there are those who disagree and hold that even if the buyer retracted, the seller did not acquire the deposit, for they do not hold the reasoning of the Rambam that regarding what is in one's hand it is not an asmakhta, as we have explained. And according to all other opinions it is an asmakhta, for it is like an exaggeration and by way of a penalty, and each one made it dependent on his own intention. And all the more so if they placed the deposit in the hand of a third party, for even according to the Rambam it is an asmakhta since it is not in his hand. And specifically when the deposit is money, but if it is an object, the language of "forgiveness" is anyway not effective even when it is in his hand, but rather the language of "acquisition," as written in siman 241.

And similarly, one who paid part of his debt and placed the document with a third party and said to the creditor in the presence of the third party, "If I have not given you the entire debt by such-and-such a day, give him his document," and the time arrived and he did not pay, the third party shall not give the document to the creditor, for this is an asmachta, as it is not in his hand and he is exaggerating and it is like a fine and he makes it dependent on his own volition. And similarly, conditions that people stipulate between themselves, "If you do such-and-such, I will give you such-and-such a thing," even though they are with witnesses and in a document, it is an asmachta. And according to the opinion of the Rambam, if the document is in the hand of the creditor, it is not an asmachta; and even though it is a document whose lien was forgiven since part was paid, nevertheless, regarding the matter of collecting from unencumbered property, it is a document. And furthermore, it deals with a case where he said that the money he gave shall be a gift [Shach] and the document remains in its full force, and therefore, were it not for the asmachta, he would collect with it even from encumbered property. Therefore, according to the Rambam, when the document is in his hand, he collects with it from encumbered property.

Regarding that which was explained in section 25, that dice is not considered asmachta, our teacher, the Rema, wrote that this is specifically when they play with ready money; however, if they play on credit, they do not extract from him what he lost. And some say even if he gave him a pledge for the money it does not avail, for "money is not here, a pledge is not here," as written in siman 190. But when money is prepared on the table, there is no asmachta in it, etc. And some say it is not permitted unless the table upon which the money is placed is owned by both of them. Thus far his words. And the reason for the first opinion is that although it does not contain asmachta, nevertheless when they play on credit there is no kinyan here; for when the money is prepared on the table, even though this is not a kinyan, nevertheless they are like partners because of this benefit, and when their money is mixed, this is their kinyan, as written at the beginning of siman 176. And the second opinion holds that this is not a matter of partnership at all, and therefore even with prepared money there is no kinyan at all unless the table is owned by both of them, for then the table acquires through the kinyan of a courtyard, as it becomes like the domain of the winner, for such is their intention, that it should be like that of the winner. And if they performed some effective kinyan, even when playing on credit, they are obligated to pay. [The Gra and in Tosafot there, Sanhedrin 25a, and it should be like in Tosafot Eruvin at the end of chapter 7, and examine there.] And there is one who wishes to say that the reason for playing on credit is because even though it is not asmachta, nevertheless it is not a complete debt that they can extract by law; but there is no reason for this, for if there was a kinyan, why would they not compel him to pay? And the main point is as I have written. And it has already been explained in section 23 that according to the Rambam it is forbidden to play dice because of theft, and even with "from now" it is theft. And also the Mordechai in the glosses to the sixth chapter of Sanhedrin ruled that dice is theft; see there. And who is the man who would not be concerned for the words of these our teachers? And especially since there is in this a "seat of scoffers," and many severe transgressions result from playing dice, and he who guards his soul will distance himself from this, and a blessing shall come upon him.

There are some of our teachers who do not hold by what has been explained, that anything which is not entirely in his hand is not an asmachta; rather, on the contrary, anything that is not in his hand is more of an asmachta. According to this, the law of asmachta should apply to dice, but they hold of another reason: since both of them stipulate one against the other and each one can lose or gain, because he wants to acquire, he wholeheartedly resolves to transfer ownership. For due to his desire to gain if the other loses, he therefore resolves in his heart to transfer ownership to the other if he himself loses. Therefore, two who wagered with one another, if they performed a kinyan from their hands, even in a matter that is not entirely in their hands, there is no asmachta in this for this reason. This applies specifically to a matter where it is necessary that one of them will lose and one will gain, such as dice and wagering. However, when it is possible that both of them will not lose, such as with the earnest money in section 33, where if both of them do not retract they will lose nothing, neither this one nor that one, it reverts to being an asmachta. For specifically when one is compelled to gain, we say that since his desire is to gain, he also transfers ownership to his fellow when his fellow gains. But when it is possible that both of them will neither gain nor lose, he does not resolve in his heart to transfer ownership when he loses, for he says to himself: "Certainly I will not change my mind, and my fellow also will not change his mind," and it is an asmachta. And that which our teacher, the Rema, wrote according to this opinion, "and specifically that it is not in their hands as well, but what is in their hands is not, as I wrote regarding earnest money nearby," thus far his words, his intention is also as I have written: that what is in their hands so that neither this one nor that one loses is an asmachta. [This is the system of Rabbeinu Tam in Tosafot there, and their difficulty from earnest money is answered, and this is their intention in Bava Metzia and in Eruvin there at the end of the discussion, and this is the intention of the Tur in section 25, and what the Sma wrote in subsection 34 requires great study and is the opposite of the truth, and in the Mordechai, chapter Eizehu Neshech, and in the Hagahot Maimoniot, chapter 11, there is a scribal error there, and examine it closely].

According to all the opinions that have been explained, aside from the opinion in the previous section, the wagers called "gewett" are subject to the law of asmachta, as the matter was not finalized and is merely by way of a penalty. Only according to the method of our teacher, the Rema, in section 25, if the wager was on a matter that is not within their power at all, it is not an asmachta; and similarly, if they made it dependent on a matter that is within the power of another to perform, it is also not an asmachta, as I wrote there. And see what I wrote in section 40.

Our teacher, the Rema, wrote: And even regarding this there are those who disagree, and therefore they were required to provide other reasons regarding one who plays with dice and penalties of betrothals. Thus far his words. And the explanation of his words is that there are those who disagree with all of this, for even though each one can lose, it is an asmachta. And according to this, dice-playing is an asmachta just as in the opinion of the Rambam. And regarding penalties of betrothals, where they write in the conditions that if one of the parties should transgress they shall pay the other such and such, according to all opinions it is an asmachta, for the matter is not finalized, and it is by way of a penalty and an exaggeration and he makes it dependent on his own will and it is within his power. And nevertheless, the rabbis ruled that there is no asmachta in betrothals for reasons that will be explained in section 48.

One who obligates himself to his fellow for any matter and says that if he is alive he will give to him, and if not he will give to his heirs, this is not an asmachta. Even though he made it dependent on a condition, it is only an asmachta when the essence of the obligation is conditional, and in this it depends on the opinions and the principles that have been explained. However, in this case where he obligates himself completely without a condition, and the condition is only regarding to whom he shall give, there is no asmachta in this.

In all types of bets called "gewett," even in a manner where there is no asmachta, nevertheless a kinyan is required. A kinyan sudar does not avail, for currency is not acquired through chalifin. The custom of the world is to strike palm to palm, and it appears to me that this is a kinyan, for this is not tekiat kaf but rather like the "hand-schlag" that they are accustomed to as a kinyan in commerce, and it is like the law of situmta in siman 201. And even if this is considered as tekiat kaf and is not a kinyan, nevertheless one must fulfill his oath, for tekiat kaf is like an oath; on the contrary, in this case one is obligated to fulfill it even if it were an asmachta.

Reuven claims a maneh from Shimon, and Shimon says that the obligation is from a game of dice on credit and he is not obligated to pay because of asmachta; if this is known through witnesses or if Reuven admits to it, he is exempt. However, if there are no witnesses to this and Reuven claims that it is a complete debt not resulting from dice, and there are witnesses that Shimon admitted before them in a general sense that he owes Reuven a maneh, even if they are disqualified witnesses, since according to their words the obligation was not from gaming, the other is not believed to say that the obligation was because of gaming. And even though he has a migo that he would not have admitted to the debt at all and the witnesses are disqualified, nevertheless, since he admitted before them, we do not say migo in the place of witnesses even if they are disqualified, unless the witnesses themselves do not know the manner of his admission of obligation, for then Shimon swears a shevuat hesset and is exempt. And even with qualified witnesses it is so. And similarly when there are no witnesses at all and there is a denial between them, the defendant swears a shevuat hesset and is exempt. And some say further that even though it was explained in section 35 that a pledge is not effective, this is when he gave the pledge at the time of the act; but if he gave the pledge afterwards it is effective, and even if he returned the pledge to him afterwards, it is established against him as a loan and he is obligated to pay [Sma]. And even though there is one who hesitated regarding this, nevertheless, such is the primary rule in the law.

The Rambam, of blessed memory, wrote: Anyone who says "acquire from now," there is no asmakhta here at all and he acquires, for if he did not resolve to transfer ownership, he would not have transferred it from now. How so? If I come from here until such-and-such a day, acquire this house from now, and they performed a kinyan from his hand regarding this, he has acquired if he comes within the time; and so too anything similar to this. Thus far his words. He further wrote that an asmakhta upon which they performed a kinyan in beit din, he has acquired, provided that he deposits his rights in beit din and provided that he is not under duress. How so? Behold, one who deposited his document or his receipt in beit din, and they performed a kinyan from his hand that if he does not come on such-and-such a day, this document shall be given to his litigant, and the day arrived and he did not come, they shall give it, provided that it is a prestigious beit din; and if a river or illness delayed him, they shall not give it; and so too anything similar to this. Thus far the words of the Rambam. And according to his words, there are essentially two things for the nullification of asmakhta: either that he grants acquisition from now, or in a prestigious beit din and he deposits his rights, for if he had not resolved in his mind to transfer ownership, he would not have done so. And even though every kinyan is "from now," as was written in siman 195, for after a time the sudar returns to its owner, and since "from now" is effective, the kinyan alone should also be effective—and why is it necessary to say "from now"? For behold, mere words are nothing, and perforce a kinyan is required, and every kinyan is "from now." However, the opinion of the Rambam is that even though regarding the matter of acquisition the kinyan is like "from now," nevertheless, to remove the asmakhta, it is not effective with an ordinary kinyan unless he specifies "from now" or it is in a prestigious beit din. And his reasoning is that since the entire essence of removing the asmakhta is the resolution in his heart, he does not resolve in his heart when he does not specify "from now" or when it is not in a prestigious beit din [see Kesef Mishneh, chapter 11 of Mechirah, halakhah 7]. And some say that a kinyan in a prestigious beit din is not effective for all asmakhtot between a man and his fellow, but specifically when depositing his rights in beit din, where the beit din compelled him to deposit his rights, and it is like a form of expropriation of property, and for this we require a prestigious beit din because they have the power to expropriate property; and therefore "from now" is not required, but a kinyan alone is effective. But in other conditions between a man and his fellow, a prestigious beit din has no involvement in this, and it neither adds nor detracts, and specifically "from now" is required [the Rif, chapter Get Pashut]. And some say that in every matter, a kinyan in a prestigious beit din and with the depositing of rights is effective, and such appears to be the opinion of the Rambam. But "from now" alone is effective with a kinyan even in that which the beit din compelled him, and even according to the previous opinion [Ran, Nedarim 27].

Our teacher, the Rema, wrote that there are those who disagree with all of this and hold that "me'achshav" alone or a "beit din chashuv" is not effective, and both things are required: "me'achshav" and a "beit din chashuv." However, the depositing of rights is not required at all, for this opinion holds that since every kinyan is "me'achshav," what benefit is there when he specifies "me'achshav"? According to this, a kinyan and a "beit din chashuv" are sufficient. However, if he stipulated that the kinyan should not begin "me'achshav," even a kinyan of a "beit din chashuv" is not effective [Sma]. And even though regarding one who lent to him on his field we explained in section 30 that "me'achshav" is sufficient and we did not require a "beit din chashuv," it is different there because he did him a favor with his loan and it also came into his hand initially by way of kinyan; but in other cases of asmachta, both things are required [ibid.]. And he wrote further that this is the world's custom, that we require a kinyan in a "beit din chashuv," and it is effective even without the depositing of rights. And some say that specifically "me'achshav" is required with a "beit din chashuv," and a kinyan with a "beit din chashuv" is not effective [Shach]. And this is only regarding fines, but regarding other conditions, a kinyan alone is sufficient even without a "beit din chashuv" [Netivot HaMishpat].

And what is a beit din chashuv? Any three who are proficient in the laws of asmachta are called a beit din chashuv regarding this matter. And some say that we require the beit din chashuv of the city or a recognized expert, such as the permanent Rav of the city, and even as an individual it is sufficient [as is implied by the Maggid Mishneh and the Levush]. And if he commanded to write in the document that they performed a kinyan from him in a beit din chashuv, even though we know that it was not so, nevertheless it is effective, for the admission of a litigant is equivalent to a hundred witnesses. And since he admitted, he surely resolved in his heart to transfer ownership with a complete heart [Sma]. And even if he did not say so explicitly but commanded to write a debt document, it is effective as if he had specified, for presumably his intention was that it should be in an effective manner. And all this is regarding asmachta, where the primary reason is because he does not transfer ownership with a complete heart; therefore, when he said or commanded to write, he resolved and transferred ownership. But in other matters where it is not effective according to the law, such as if he transferred ownership of a thing that has not yet come into the world, or a thing that is not in his possession, or something that has no substance, or is not defined—even though they wrote that it was done in the most effective manner—if the witnesses say or the lender admits that there was nothing but a kinyan sudar, the document is void. For ultimately, he has nothing with which to acquire, and what will his admission avail? And the witnesses, when they testify thus, are not like those who retract and testify such that they would not be believed; for since it is common to err in this, as not everyone is learned in these laws, they are believed. Therefore, even if the litigant himself signed on this, he is believed to say "I erred, for I thought that kinyan sudar is effective in this," and he is believed when he has witnesses or a migo, but without this he is not believed [Netivot HaMishpat].

We establish in every place, whether in monetary laws or in bills of divorce and betrothals, that anyone who says "on condition" is like one who says "from now." Therefore, some say that regarding the matter of asmachta it is also so. However, there are those who disagree: if the asmachta is by way of a penalty, such as "if I leave the field fallow and do not work it, I will pay one thousand zuz," or "if I retract, my security deposit is forgiven to you," and the like, even if he spoke with the language of "on condition," it is not effective. For in this case we do not say that one who says "on condition" is like one who says "from now." The reason is that specifically when the condition is for the fulfillment of the matter, such as one who says "behold I sell to you on condition that you go to such-and-such a place," where he desires that through the condition the matter shall be fulfilled, we rightly say in this case that it is like "from now," as in bills of divorce and betrothals. But if the condition is for the ruination of the matter and he penalizes himself for its ruination, how can we say it is like "from now"? For behold, on the contrary, he desires its repair and not its ruination [Rashba].

There is no distinction regarding a condition whether it is in the form of "arise and act," such as "if I come by such-and-less day you shall take a maneh," or if I do not go by such-and-less day you shall take, which is in the form of "sit and do not act." For there are those who say that specifically when it is in the form of "sit and do not act," where if he acts he will not lose and if he does not act he will lose, in this case asmachta applies, and we require "from now" to become obligated for the absence of action. But when the condition is in the form of "arise and act," where if he does not act he will not lose and if he acts he will lose, there is no asmachta in this at all, for he should not have acted, and since he acted he obligated himself. However, there is no distinction in this, for it can be said that he reconsidered his initial intent and acted, and when he promised, he did not promise with a whole heart and did not finalize the transfer of ownership [Sma, subsection 36].

The Rambam wrote in chapter 11 of Hilkhot Mekhirah: When the sages of Spain desired to effect a transfer involving an asmakhta, they would act as follows: They would perform a kinyan from this party that he is indebted to his fellow for one hundred dinars, and after he obligated himself, they would perform a kinyan from his creditor that as long as such-and-such occurs or he does such-and-such, this debt is forgiven to him from now; and if it does not occur so or he does not do so, I shall claim from him the money for which he obligated himself. And in this manner they would act in shiddukhin and in all similar matters, and so we conduct ourselves. Thus far his words. And they did this for the sake of greater legal clarity, for since "from now" alone is effective according to the opinion of the Rambam, and they mentioned "from now" regarding the forgiveness, they should have instituted that he obligate himself with "from now" and they would not have required two kinyanim. Rather, they did not want it to appear as an asmakhta at all, even such that it would not have the law of asmakhta. And at the time of the obligation, he must obligate himself without any condition, for if he specifies the condition beforehand, even if he performs the kinyan afterward without specification, we say that he performed the kinyan based on the prior condition. And even if the witnesses say to him, "Obligate yourself without condition and he will forgive you afterward upon a condition," it is not effective, for this is also like a kinyan upon a condition; for if his fellow does not forgive him upon a condition, he could retract the kinyan, as he would say that he only performed the kinyan on the understanding that his fellow would forgive him upon a condition, and since his fellow retracts, he also retracts. Therefore, one should not mention any aspect of a condition even regarding the one who forgives, but rather they should say to him, "Obligate yourself without any condition at all," for then he has no claim of asmakhta [Netivot HaMishpat]. And as for why they required a kinyan from the second party regarding the forgiveness, even though forgiveness does not require a kinyan, nevertheless, in this case where the forgiveness is not so clear and is dependent on a doubt, it is similar to forgiveness via mediators in siman 12, which requires a kinyan [Turei Zahav]. And this method of the Rambam is effective in every matter and in every case of asmakhta. And in shiddukhin, where there are two sides, they must perform for each side such a kinyan and a forgiveness upon a condition from the second side. And there are places where they were accustomed to write two absolute debt contracts and give both to a third party, and whichever side transgresses, the third party gives both contracts to the other side. And when he delivers the contract to the third party and does not deliver anything to the other party so that he may acquire the contract, he must say to the third party, "Acquire this contract for so-and-so," but he should not say, "Give to so-and-so," for in a gift, "give" is not like "acquire," as has been written in siman 125. And if there is only one side obligating himself with an asmakhta, they should take from him a debt contract and from the one opposite him a contract of forgiveness and place them with a third party. And they should not do this initially in a single contract, for since the forgiveness is written alongside the obligation, it appears like an asmakhta [Sma]. And also, specifically in the hand of a third party; and one should not deliver the debt contract to the one opposite him and the contract of forgiveness to the one obligating himself, for when the contract of forgiveness is in his hand, he will claim afterward, "My obligation was an asmakhta, and the contract of forgiveness proves this." Therefore, they deliver everything to the third party, and when he becomes liable, the third party delivers both contracts to the one opposite him, and he produces against him a clear debt contract and he will have nothing to appeal. And all this is initially, but after the fact, his appeal is nothing when witnesses testify how the event occurred, as it does not contain the law of asmakhta [Netivot HaMishpat].

Many of our teachers wrote that a knas that is made in shidduchim to penalize the one who retracts is not an asmachta, even though he exaggerated his obligation with a large knas, because it is appropriate that the one who retracts should be obligated in a knas for the value of the shame he caused the other side. And even though we do not judge cases of shame in this time, as was written in siman 1, nevertheless, when he obligated himself in the value of the shame, there is no law of asmachta in this. And such is the simple custom in all these provinces, that they do not make deeds of obligation, and nevertheless they obligate the one who retracts in the knas written in the tana'im. However, a kinyan is required, for mere words are nothing. Therefore, one must acquire the knas; but they should not acquire with a kinyan sudar for money, for currency is not acquired through chalifin, but rather they should acquire for the value of money with a specific item and with what is in his possession, land or movables [it appears to me], and so they practice. And some say that in shidduchim a kinyan is not required, since it is the value of shame, and it is similar to "if I leave it fallow and do not work it, I will pay with the best," and it does not require a kinyan [Shach]. And similarly, if a melamed accepted upon himself at the time they hired him a knas if he retracts, and he retracted and another melamed of his value was not found, it is not an asmachta, for it is an irretrievable loss; and in this too some say that a kinyan is not required [ibid.]. And it appears to me that in our province the custom is like this opinion, that a kinyan is not required, for the kinyan that they acquire at the time of the tana'im does not avail for the knas that they penalize themselves with half the dowry, for currency is not acquired through chalifin, unless we say that since the kinyan avails for the other obligations such as clothing and food, it also avails for currency, as was written in siman 203, section 15, see there.

One must be in doubt according to the enactment of the sages of Spain that was explained: if the one who obligated himself was under duress and was unable to perform what he accepted upon himself, do we say "the Merciful One exempts one under duress," or do we judge against the one who waives, for he did not obligate himself to waive except when the other performs what he accepted upon himself? And that the other was under duress is not a claim against him that he should be obligated to waive, as is written in siman 21, that "the Merciful One exempts one under duress" but "the Merciful One does not obligate him." And it appears that we follow the one who waives, and the one who obligated himself is liable even if he was under duress regarding the fulfillment of the condition [Mishneh LaMelech ibid.], for he indeed obligated himself without any condition, and regarding his obligation the claim of duress is not relevant at all, and the one who waives waived upon a condition, and regarding him, the claim of duress of the one who obligated himself does not obligate him to waive.

Two people who stipulated between themselves to fulfill a certain matter and gave securities for a penalty, such that whoever retracts, his fellow shall merit his security—each one should not say, "If I retract, I will give you such and such, and this is a pledge for the money I will become obligated to you if I retract." For in such a case it is nothing, because since there is no obligation here due to asmakhta, the pledge is not effective, for "where there is no maneh, there is no pledge," as I have written this reasoning several times. Rather, at the outset they should make a complete obligation to remove the asmakhta, that he should transfer to him via a sudar in a prominent beit din an obligation of such and such value if he retracts, so that it will not be an asmakhta. And then he shall give the pledge, and the lien will take effect upon the pledge; since the obligation exists independent of the pledge, it is like a pledge for any debt. Or, he should say, "If I retract, you shall merit such and such money in the body of this object from now" [Taz]. And there is one who says that "from now" is not required in this case, since he grants him merit in the body of the object, and it is not similar to the security in section 33, where the seller did not merit that which is in his hand, for since the buyer does not have in his hand anything belonging to the seller, the seller also does not merit; this is not the case here, where both gave [Sma] securities—each one merits that which is in his hand belonging to his fellow when his fellow retracts. And even though the securities are in the hand of a third party, nevertheless, the hand of the third party is like the hand of the one who merits and is like his agent, for such was the condition between them.

A document in which it is written that if he does not pay by a certain time he shall be liable for such and such an amount of money, and it is written at the end of the document "not as an asmachta and not as a mere form of a document," this does not remove it from the status of an asmachta and he has not acquired it, for we see that it is an asmachta. And there are those who disagree on this, for just as a kinyan in a beit din chashuv removes the asmachta because we say that he resolved and transferred ownership with a whole heart, and his admission is effective even if there was no beit din chashuv as I wrote in section 44, so too here. And the first opinion holds that it is not comparable, for there, in any event, the language removes the asmachta according to the law, but in this case where he wrote "not as an asmachta," by what means does he remove the asmachta? [It appears to me]. And there is one who says that even according to the first opinion, if it is written in it "and this document was made in a manner that contains no asmachta," it is effective, for it is the admission of a litigant and is superior to there [Taz]. And our teacher, the Rema, wrote that the primary view is like the first opinion, and the burden of proof rests on the claimant. He further wrote that some say that if they deposited pledges one against the other according to the laws of the secular courts, they have acquired even in an asmachta by the principle of "the law of the kingdom is the law," and see what I wrote in siman 68.

One who obligates himself to his fellow without a condition, even though he owed him nothing, is liable, as was written in siman 40. There is no issue of asmakhta in this, for behold, he obligated himself without any condition and fully resolved to transfer ownership. For it is understandable that with a condition, he relies in his heart that the condition will be fulfilled and he will not need to give, and thus he did not fully resolve to transfer ownership; but without a condition, upon what did he rely? And if he obligated himself for an unspecified amount, such as if he said, "Behold, I obligate myself to feed you for five years," behold, he becomes enslaved according to the opinion of most poskim, and it was explained in siman 60, see there.

A vow, an oath, and a handshake are effective even in an asmachta, as we find in the Torah: "If God will be with me," "If You will surely deliver this people into my hand." And in siman 209 it will be explained regarding a thing that has not yet come into the world that when one swears, he must fulfill his oath; but if he requested absolution for his oath, he is exempt. Similarly, when he dies, his children do not need to fulfill it, for the obligation is only an obligation of an oath, and the prohibition rested upon him and not upon his children. Such is the law regarding asmachtot. And if the recipient dies, he must give it to his children, except in a gift that is like tzedakah, where one does not need to pay when the recipient dies [Ketzot HaChoshen]. There are those who say that an asmachta is not similar to there, and only if there was no kinyan at all and the entire obligation is only based on the oath from this asmachta, then its law is as it is there. However, when there was a kinyan with the oath, requesting absolution does not avail him, and also when he dies his children are obligated to fulfill it, for the oath is no less than an important beit din which removes the asmachta, and he resolved and transferred ownership. Certainly, through an oath, a vow, and a handshake, he resolved and transferred ownership with a whole heart [Sma]. And there is no asmachta here at all, for regarding a thing that has not yet come into the world, a kinyan is not effective at all, but regarding an asmachta, a kinyan is effective, only that he did not resolve in his heart to transfer ownership with a whole heart, and through the oath it is obvious that he resolved and transferred ownership. The reason for the first opinion is that an oath is not related to the kinyan and it does not strengthen the kinyan, for it is like a separate matter, and in any case the obligation is only from the side of the oath, as in a thing that has not yet come into the world [Bach and Taz]. There are those who say that a handshake is not like an oath unless he gave the handshake to the one to whom he obligated himself, for it is like the cutting of a covenant; but when he gave the handshake to another, it is not like an oath [Maharyu]. And there are those who disagree on this. Similarly, if it is written in a deed that he accepted it upon himself with a severe oath and with the most effective kinyan, it is effective even in an asmachta, as I wrote regarding an important beit din. Our teacher, the Rema, ruled accordingly even though there are those who disagree on this. There are those who say that even if it is known that he did not accept it upon himself with a severe oath and with the most effective kinyan, his admission is effective as in an important beit din mentioned in section 44, and therefore he must at least tell the witnesses to write a deed as it is there [Sma]. And according to those who disagree, the admission of a litigant is not effective in this, for the oath does not strengthen the kinyan and it is not similar to an admission of an important beit din [Netivot HaMishpat]. And if he vowed something in an asmachta for tzedakah or for hekdesh, it acquires, as I wrote in Yoreh Deah siman 258. And even though we hold that a statement to the Most High is like delivery to a commoner and no more, and in an asmachta the delivery is not effective for a commoner—for in truth this is the explanation: a statement to the Most High is like delivery to a commoner that is effective in any manner. For if there is only found a manner that is effective for a commoner, such as through an important beit din, and in a thing that has not yet come into the world the delivery will be effective when it comes into the world, the statement is always effective for hekdesh [Mordechai, chapter 4 of Bava Kamma]. And if he swore to fulfill the sale and also accepted upon himself a penalty if he does not fulfill it, and he did not fulfill it and gave the penalty, there are those who say that the penalty exempts the oath, for since he gave the penalty, the oath is removed. And there are those who say that it does not exempt the oath. And an oath that he did not write himself, and did not command to be written, and did not read with his mouth, even though he signed upon it, there are those who say that it has no substance; and even if it is effective regarding the matter of asmachta because he resolved and transferred ownership, nevertheless a prohibition of an oath is not here [Ketzot HaChoshen]. And it requires further study for the law.