Siman 146

The Tur and the Shulchan Aruch wrote: One who divorces his wife after a fixed time, she is divorced when the time he fixed arrives. This is similar to a condition and is not a condition. It is similar to a condition in that she is divorced when the time he fixed arrives, and it is not a condition because one who divorces on a condition has already divorced, whereas this one has not yet divorced until that time arrives. Therefore, one who divorces on a condition must double his condition, but this one does not need to double his words nor follow the rest of the laws of conditions. How so? One who says to his wife, "This is your get, but you shall not be divorced with it except after thirty days," she is not divorced until after thirty days. And if the husband died, or the get was lost or burned within the thirty days, she is not divorced. Thus far their words. And this is the wording of the Rambam, of blessed memory, at the beginning of chapter 9, and we have already brought his words in siman 143, section 5, and we explained it with the help of Heaven in section 15; see there. And know that it is not specifically when he said, "and you shall not be divorced with it except after thirty days," for the same applies if he said, "This is your get and be divorced with it after thirty days." And so too below regarding "you shall not be divorced with it until you give me two hundred zuz," it is not specifically this phrasing, for the same applies if he said, "be divorced with it after you give me two hundred zuz," for all of this is dependent on time or on an action (Beit Shmuel).

They further wrote: If she threw it and it rested in the sides of a public domain, and it was stolen or lost after thirty days, she is divorced, since the get existed on the day she was to be divorced and she designated it in a place that is not a public domain, for the sides of a public domain are not like a public domain. Thus far his words. This too is from the wording of the Rambam there. The explanation of the matter is that in the Gemara (Ketubot 86b) it is explained that regarding acquisition, the sides of a public domain are like an alleyway or a marsh where one acquires, and it is not like a public domain; even though regarding Shabbat it is like a public domain because sometimes the masses are crowded and enter there, this is not so regarding acquisition (the Rosh there). Therefore, whether regarding monetary matters, such as if he said to him, "Pull this cow and it shall not be acquired by you until after thirty days," and at the completion of the time it stood in the sides of a public domain, the buyer has acquired it, and so too regarding a get as has been written.

And behold, there are some of our teachers who explained that in both cases it deals with "from now" (the Ran there in the name of the Ra'avad), where he said to her: "This is your get, but do not be divorced by it except from now and after thirty days," and similarly regarding property where he said to him: "Pull this cow and acquire it from now and after thirty days." For without "from now," we say there (page 82a) that he does not acquire it, because since the pulling was previously and the acquisition is after thirty, how can a pulling from before be effective for an acquisition after thirty days? And similarly regarding a get, without "from now" it is like "pick up your get from the ground" (ibid.). And if it is difficult, for regarding a get we hold that with "from today and after death" it is a doubt whether it is a condition or a retraction, as was written in the previous siman, and automatically the same applies to "from now and after thirty days." And if so, from either perspective: if it is a condition, one does not need the sides of the public domain, and even in the public domain it is a get, for the act of the get was already completed; and if it is a retraction, behold it is like without "from now" (thus the Ran questioned there). For one could say either that they hold it is a condition and we do not rule accordingly (for they hold like Shmuel in Kiddushin 59b and we rule like Rav there), or that one must distinguish between "from today and after death" and "from now and until thirty days." For with "from today and after thirty," one can say "from today it shall begin and it shall finish after thirty," for a get is fit after thirty just as before thirty. But with "from today and after death," it is impossible to say that it shall finish after death, for there is no get after death, and perforce it is either a condition or a retraction (see Tosafot there 60a, starting with the word "Kol," and examine closely).

And there are some of our teachers who explained that in both cases it deals with a case without "from now" (Ran there), and this is not like "pick up your get from the ground" where as long as it did not leave her domain she is divorced, for there is a giving for the sake of divorce, but he does not want the get to take effect until the thirtieth day, and the get must then be in her domain. And the Rambam, of blessed memory, even though in the end of chapter 2 of Laws of Sale he explains it as being with "from now," nevertheless regarding a get he also holds that it does not deal with "from now," for with "from now" it would be a doubt whether it is a condition or a retraction, and even if it is lying in a public domain it would be a doubt (Ketzot HaChoshen there and Beit Shmuel subsection 1). And it is not similar to monetary matters where the acquisition is through meshikhah and the meshikhah is not after thirty days, which is not the case with a get, for it is extant and lying in a place fit for acquisition (Maggid Mishneh). And such is the opinion of the Tur and the Shulchan Aruch, for in Choshen Mishpat at the end of siman 197 they wrote that it deals with "from now," and here they wrote like the Rambam. Furthermore, it appears that the Rambam holds the primary view is that it is a condition, but regarding gittin and kiddushin, because of the severity of the status of a married woman, they were stringent in this (see Beit Shmuel).

They further wrote: and so too if he made the divorce dependent on an act, its law is like the law of one who divorces after a time. How so? For example, if he said to the woman, "Behold this is your get, but do not be divorced by it until you give me two hundred zuz," she is divorced after she gives, and there is no need to double the condition nor for the rest of the laws of conditions, for he did not divorce upon a condition, but rather he has not yet divorced her, but instead made the divorce dependent on the performance of such and such, and afterwards she shall be divorced. And what is the difference between one who divorces upon a condition and this one who fixed a time for the divorce or made them dependent on an act? For one who divorces upon a condition, there is the status of divorce but it is not finalized until the condition is fulfilled; therefore, when the condition is fulfilled she is divorced if the get was extant even though it is not in her possession, and she does not need to go back and take it or for it to be in her possession after the condition was fulfilled, for it reached her hand initially by way of divorce. But one who makes the divorce dependent on a time or an act, it did not reach her hand by way of divorce but rather by way of a deposit until the time he fixed or until the act she shall perform; therefore, when the time arrives, the get must be in her possession, or she must go back and take it, or it must be in a place she designated for it even though it is not her domain as we have written, and afterwards she is divorced by it. And if she married before the time he fixed or before she performed the act upon which he made the divorce dependent, she must leave and the offspring from him is a mamzer, for she is still a complete married woman and there is no status of divorce here. Thus far his words. And these are also the words of the Rambam there, which we brought in siman 143, section 6 and 7, and in section 13 we explained the reason for the matter, why in a condition the get must be intact even though it is not in her possession, see there. And there it was explained that he holds even in a condition without "from now," if she married before the fulfillment of the condition she does not leave, see there (see Beit Shmuel subsection 2; and what he wrote that the Beit Yosef also holds she does not leave, we explained there that it is not so, and his inference here I do not understand, for he copied the wording of the Rambam, and what inference is this? And look closely).

There is one who says that regarding what was written, "in time" or "by an act," that the get must be in her possession and if it is not in her possession it is not a get, this is according to the poskim who do not rule like R. Yose that "the date of the document proves its intent." However, according to the poskim who rule like R. Yose, it is a doubtful get, for this is like "from now and after thirty days" (Beit Shmuel, subsection 3). And it appears to me that according to the language that was explained, where he said, "and you shall not be divorced with it until after thirty days" or "until after you give me two hundred zuz," he has explicitly uprooted the date of the document. This law only applies when he said, "Behold, this is your get and you shall be divorced with it after thirty days" or "after you give me two hundred zuz," which we wrote at the end of section 1 (and it is not similar to section 3, and examine this carefully).

They further wrote: One who places a get in his wife's hand and says to her, "If you do not give me two hundred zuz, this is not a get," or "you are not divorced," behold, he has not divorced at all, and there is neither a conditional get nor one dependent on an action here, and so too for anything similar to this. Thus far their words. This is also from the words of the Rambam, and we explained it there in section 8; see there. The primary reason we explained there in section 16; see there well.

Our teacher, the Beit Yosef, wrote in section 3 that if he said to her, "Behold you are divorced, and if you do not give him two hundred zuz you shall not be divorced," she is divorced even though she did not give them, because he did not double his condition. Thus far his words. This is according to the opinion of the Rambam, who holds that by law one requires the doubling of the condition in divorce and betrothal. However, it has already been explained that there are some of our teachers who hold that by the core law it is not required, as we do not establish the law like Rava, and only as a stringency do we require a doubled condition and all the laws of conditions. Consequently, in practice, one must follow the stringency, and it is a doubtful get. He himself mentioned this opinion in siman 38, section 4, and how could he rule without qualification here? It is possible that he relied on what he wrote there.

The Rambam wrote at the end of chapter 8: One who was divorced on a condition and another betrothed her before the condition was fulfilled—if the condition was fulfilled, she is betrothed; and if the condition was not fulfilled and the get was voided, she does not require a get from the second, for the kiddushin do not take effect upon her. But if she married and the condition was not fulfilled and the get was voided, she requires a get from the second, as we have explained. Thus far his words. The Tur and the Shulchan Aruch in section 4 copied this. And the matter is simple, that it deals with a condition of "on the condition that" (al menat), for the get takes effect beforehand, and therefore if the condition was fulfilled, she is betrothed to the other (the Gra, subsection 16). And the entire matter preceding it there deals with "on the condition that," see there; for without "on the condition that," how is it possible to say that she is betrothed when the condition is fulfilled? For the taking effect of the get is only when the condition is fulfilled, and at the time of receiving the kiddushin, she was a married woman. And there is one who wishes to say that it deals with "if" (im) and not with "on the condition that," and the Rambam follows his own reasoning that even with a condition of "if," if she married she shall not leave (Beit Shmuel, subsection 5). But this is not clear, for if so, how could the Tur and the Shulchan Aruch leave their words unspecified? For many disagree with him on this, as was written at the beginning of siman 143. However, according to the Rambam, it is certainly so that the kiddushin take effect, and his reasoning we have explained there with the help of Heaven.

However, regarding the essence of his words, the Ra'avad, of blessed memory, challenged him, for the Rambam, of blessed memory, compared this law to a woman who heard that her husband died and became betrothed to another, and afterwards her husband arrived, in which case she does not require a get from the second and is permitted to return to the first, because everyone will understand that it was a betrothal in error. This is not the case if she married another, where she requires a get from both of them and must leave this one and this one, as written in siman 17. And the cases are not similar to one another, for there everyone sees that she was betrothed in error, for behold, the husband is alive; and that which they said regarding one who married that she must leave this one and this one is a rabbinic penalty because she did not clarify his death, as written there. But in a get with a condition, how do they know if the condition was fulfilled or not? And they will certainly say that the condition was fulfilled and the betrothal of the second takes effect, and she requires a get from the second, and consequently she is forbidden to return to the first so that they do not say he is taking back his divorcee after she was betrothed to another, as written in siman 46, see there. But according to the Rambam, she is permitted to the first since she does not require a get from the second.

The Maggid Mishneh wrote to settle the words of the Rambam, that what he wrote—that if the condition was not fulfilled and the get is void she does not require a get from the second—this refers to a condition not to do a certain thing and she transgressed and did that certain thing, such that she performed an action in its annulment; or even in a condition to do a certain thing but he set a time for this and the time passed and she did not do it, and similarly in all such ways where the condition was nullified in practice and the get is void. However, in a condition to do something without a set time, and it is still in her power to fulfill it whenever she desires, and if the condition is fulfilled she will be certainly divorced, she requires a get from the second, for we fear perhaps she will fulfill the condition and the kiddushin of the second will take effect, and consequently she is forbidden to return to the first so that they do not say he is taking back his divorcee after she was betrothed to another; for it is a general rule that wherever she requires a get from the second, she is forbidden to return to the first. Our teacher, the Beit Yosef, in his great book agreed with his words, and based on this he wrote these matters in the Shulchan Aruch, section 5, see there.

But their words are puzzling, for behold, the primary reason of the Ra'avad is lest they say the condition was fulfilled because the matter is not revealed to all; if so, even when the time has passed or in a condition involving a negative commandment and she transgressed and performed it, they would say the opposite since the matter is not revealed to all, as in the case of a woman who was told her husband died and he arrived alive. They have already challenged them (Lechem Mishneh and Mishneh LaMelech). There is one who settles his words, that the Rambam holds that they will never suspect a prohibition since there is a side to say that he took her back in a permitted manner because the condition was not fulfilled and the kiddushin of the other do not take effect; for in every place where we are concerned for something like this, it is because even without this there is a side of prohibition in it, and therefore they will attribute this also to a prohibition, but regarding a get with a condition they will not attribute it to a prohibition at all (Beit Shmuel, subsection 6). And it appears to me that this is also the intention of the Maggid Mishneh, and he holds that even the Ra'avad would not disagree on this, and his primary challenge is regarding a condition that is still in her power to fulfill, as is proven from his wording where he wrote: "Therefore I say, every place that you find thus, that the condition is in her power to fulfill, etc., she requires a get and is forbidden to the first." Thus far his words. And regarding this, the Maggid Mishneh says that even the Rambam, of blessed memory, does not disagree on this, as I have written.