Halacha
הלכה א
הַמְגָרֵשׁ עַל תְּנַאי אִם נִתְקַיֵּם הַתְּנַאי הֲרֵי זוֹ מְגֹרֶשֶׁת וְאִם לֹא נִתְקַיֵּם הַתְּנַאי אֵינָהּ מְגֹרֶשֶׁת. וּכְבָר בֵּאַרְנוּ בְּפֶרֶק שִׁשִּׁי מֵהִלְכוֹת אִישׁוּת מִשְׁפְּטֵי הַתְּנָאִין כֻּלָּם. וְשָׁם נִתְבָּאֵר שֶׁהַמְגָרֵשׁ עַל תְּנַאי כְּשֶׁיִּתְקַיֵּם הַתְּנַאי תִּהְיֶה מְגֹרֶשֶׁת בְּשָׁעָה שֶׁיִּתְקַיֵּם. לֹא בִּשְׁעַת נְתִינַת הַגֵּט לְיָדָהּ. לְפִיכָךְ יֵשׁ לַבַּעַל לְבַטֵּל הַגֵּט אוֹ לְהוֹסִיף עַל תְּנָאוֹ אוֹ לְהַתְנוֹת עַל תְּנַאי אַחֵר כָּל זְמַן שֶׁלֹּא נִתְקַיֵּם הַתְּנַאי הָרִאשׁוֹן אַף עַל פִּי שֶׁהִגִּיעַ גֵּט לְיָדָהּ. וְאִם מֵת הַבַּעַל אוֹ אָבַד הַגֵּט אוֹ נִשְׂרַף קֹדֶם שֶׁיִּתְקַיֵּם הַתְּנַאי אֵינָהּ מְגֹרֶשֶׁת. וּלְכַתְּחִלָּה לֹא תִּנָּשֵׂא עַד שֶׁיִּתְקַיֵּם הַתְּנַאי. וְאִם נִשֵּׂאת לֹא תֵּצֵא אֶלָּא אִם כֵּן לֹא נִשְׁאַר בְּיָדָהּ לְקַיְּמוֹ. שֶׁהֲרֵי בָּטַל הַתְּנַאי. וְשָׁם נִתְבָּאֵר שֶׁאִם אָמַר לָהּ הֲרֵי אַתְּ מְגֹרֶשֶׁת מֵעַכְשָׁו אוֹ מֵהַיּוֹם עַל תְּנַאי כָּךְ וְכָךְ. אוֹ שֶׁאָמַר לָהּ הֲרֵי אַתְּ מְגֹרֶשֶׁת עַל מְנָת כָּךְ וְכָךְ. כְּשֶׁיִּתְקַיֵּם הַתְּנַאי תִּהְיֶה מְגֹרֶשֶׁת מִשְּׁעַת נְתִינַת הַגֵּט לְיָדָהּ. לְפִיכָךְ אֵינוֹ יָכוֹל לְבַטֵּל הַגֵּט וְלֹא לְהוֹסִיף עַל תְּנָאוֹ מִשֶּׁהִגִּיעַ גֵּט לְיָדָהּ. וְאִם אָבַד אוֹ נִשְׂרַף אֲפִלּוּ מֵת הַבַּעַל קדֶם שֶׁיִּתְקַיֵּם הַתְּנַאי הֲרֵי זוֹ מְקַיֶּמֶת הַתְּנַאי אַחַר מוֹתוֹ וּכְבָר נִתְגָּרְשָׁה מִשְּׁעַת נְתִינַת הַגֵּט לְיָדָהּ וְיֵשׁ לָהּ לְהִנָּשֵׂא לְכַתְּחִלָּה אַף עַל פִּי שֶׁעֲדַיִן לֹא נִתְקַיֵּם הַתְּנַאי. וְאֵין חוֹשְׁשִׁין שֶׁמָּא לֹא יִתְקַיֵּם הוֹאִיל וְהָיָה הַתְּנַאי בִּמְעַכְשָׁו אוֹ בְּעַל מְנָת:
כסף משנה
1.
When [a man] divorces [his wife] according to a conditional arrangement, and the condition is fulfilled, the divorce is effective. If the condition is not fulfilled, the divorce is not effective. All the laws governing conditional agreements have been explained in Hilchot Ishut, Chapter 6.1See Halachah 2 of that chapter, which explains that there are four rules that govern all conditional agreements:a) the stipulation must be twofold [with both a positive and negative statement];
b) the positive aspect must be stated before the negative aspect;
c) the stipulation should be mentioned before the completion of the action that one desires to make conditional;
d) the stipulation must be something with which it is possible to comply.
If one of these rules was not kept when a conditional agreement was made, the stipulation is nullified; it is as if there were no condition at all. Note the details and explanations of these rules there.
There it is explained that when [a man] divorces [his wife] according to a conditional arrangement, and the condition is fulfilled, the divorce is effective from the time the condition is fulfilled, and not from the time the get is given to her.
As such, a husband may nullify a get, add to his conditions or add a further condition, until the original condition is fulfilled although [the woman] has already been given the get.
If the husband dies [before the condition is fulfilled],2This is relevant if the couple is childless, and the woman is obligated to fulfill either the rite of yibbum or of chalitzah. or the get is lost or consumed by fire before the condition is fulfilled, the divorce is not effective.3With regard to the first clause, a get can be effective only when the husband granting the divorce is still alive. If he dies, the marriage bonds are already rent by his death. With regard to the latter clause, since the get takes effect only when the condition is fulfilled, the get itself must be intact at that time. If it is not, there is no medium through which the divorce takes effect (see Gittin 74a). A priori, [the woman] should not remarry until the condition is fulfilled.4Lest the husband die or the get be destroyed, and thus the divorce be nullified. If, however, she has already married, she need not leave [her second husband],5The Rambam's ruling is clarified by his statements in Chapter 9, Halachah 5, in which he states that a conditional divorce begins when the get is given and is not concluded until the condition is fulfilled. This conception has aroused objections among the commentators, who maintain that until the condition is fulfilled, the woman is like any other married woman. She cannot be consecrated, and marital relations with her are considered adulterous. Although in his Beit Yosef, Rav Yosef Karo supports the more stringent views, in his Shulchan Aruch (Even HaEzer 143:2), he appears to follow the Rambam's opinion (Beit Shmuel 143:2). unless she is no longer able to fulfill [the condition].6E.g., her husband made a condition that she give an article to his father, and his father dies. [For since] the condition is nullified [the divorce is void.]
There it is explained that if [the husband] tells [his wife]: "You are divorced from the present time - or from today - on the following condition," or "You are divorced on the condition7I.e., the husband uses this expression rather than saying: "If you do such and such, the divorce is effective. If you do not do such and such, the divorce is not effective." The Ramah (Even HaEzer 144:3) and the Shulchan Aruch (Even HaEzer 144:4) mention opinions that do not equate "on the condition that" with "from now onwards." that this and this be done," when the condition is fulfilled the divorce becomes effective retroactively from the time the get reaches the woman.
Therefore, once the get reaches the woman's possession, [the husband] can no longer nullify the get,8The Ramah (Even HaEzer 143:2) quotes opinions that maintain that even when a condition is stated using the wording "on the condition that," the husband has the right to nullify the get until the condition is fulfilled. add to his conditions or add a further condition. If the get is lost or consumed by fire, or even if the husband dies before the condition is fulfilled, she should fulfill the condition after his death, and the divorce is considered effective from the time the get was given to her.
A priori, [the woman] may remarry even before the condition is fulfilled.9The Shulchan Aruch (loc. cit.) does not accept this ruling and declares that the woman should not remarry until the condition is fulfilled. There is, however, one exception: a condition that requires the woman to refrain from performing a particular activity before the divorce takes effect. We do not suspect that she will not fulfill the condition,10I.e., because of the severe consequences this will bring upon her, we do not suspect that she will fail to do what is necessary to maintain the legitimacy of her second marriage. because it was stated using the wording "From this time" or "On the condition that...."
הלכה ב
כָּל הַמְגָרֵשׁ עַל תְּנַאי בֵּין שֶׁאָמַר מֵעַכְשָׁו בֵּין שֶׁאָמַר אִם יִהְיֶה וְאִם לֹא יִהְיֶה הֲרֵי זֶה לֹא יִתְיַחֵד עִם אִשְׁתּוֹ כָּל זְמַן שֶׁלֹּא נִתְקַיֵּם הַתְּנַאי אֶלָּא בִּפְנֵי עֵד. וַאֲפִלּוּ עֶבֶד וַאֲפִלּוּ שִׁפְחָה חוּץ מִשִּׁפְחָתָהּ אוֹ בְּנָהּ קָטָן מִפְּנֵי שֶׁאֵינָהּ בּוֹשָׁה מִלְּשַׁמֵּשׁ בִּפְנֵיהֶם. וְהַדָּבָר יָדוּעַ שֶׁאִם נִתְיַחֵד עִמָּהּ בִּפְנֵי שְׁנֵי עֵדִים כְּאֶחָד אֲפִלּוּ נִתְקַיֵּם הַתְּנַאי אַחַר כָּךְ הֲרֵי זוֹ סְפֵק מְגֹרֶשֶׁת. שֶׁמָּא בְּעָלָהּ וּבָטֵל הַגֵּט כְּמוֹ שֶׁיִּתְבָּאֵר בַּהֲלָכוֹת אֵלּוּ:
כסף משנה
2.
Whenever [a man] divorces [his wife] conditionally - whether he states, "from this time onward," or makes [a repeated statement of the condition, as required] - he should not enter into privacy with his wife throughout the entire time the condition remains unfulfilled.Instead, [all his dealings with her should be] in the presence of [at least one] witness. Even a servant or a maid-servant can serve this purpose, with the exception of her [private] maid-servant or her young son. For she is not embarrassed to enter into marital relations in the presence of these people.
It is well known that if [the husband] enters into privacy [with his wife] in the presence of two witnesses at the same time, the status of the divorce is doubtful, even if the condition was fulfilled. [We suspect] that he engaged in marital relations [with her],11For entering into privacy with a woman in the presence of witnesses is considered equivalent to actual relations. (See Chapter 10, Halachah 18.) and nullified the get,12See Chapter 10, Halachah 19, which explains that when there is a possibility that a man has had marital relations with his divorcee, we assume that he consecrated her again, rather than conducting these relations in a licentious manner. (See also Chapter 9, Halachah 25.) as will be explained in these laws.
הלכה ג
כֵּיצַד מְגָרֵשׁ אָדָם עַל תְּנַאי. לֹא שֶׁיֹּאמַר כִּתְבוּ גֵּט לְאִשְׁתִּי עַל תְּנַאי זֶה. אוֹ כִּתְבוּ וּתְנוּ לָהּ עַל תְּנַאי. וְאֵין צָרִיךְ לוֹמַר שֶׁלֹּא יִכְתֹּב בְּתוֹךְ הַגֵּט עַל תְּנַאי זֶה גֵּרֵשׁ פְּלוֹנִי אֶת פְּלוֹנִית. אֶלָּא כֵּיצַד עוֹשֶׂה. אוֹמֵר לַסּוֹפֵר לִכְתֹּב וְלָעֵדִים לַחְתֹּם וְכוֹתְבִין גֵּט כָּשֵׁר בְּלֹא שׁוּם תְּנַאי בָּעוֹלָם. וְאַחַר כָּךְ נוֹתֵן לָהּ הַגֵּט וְאוֹמֵר לָהּ הֲרֵי זֶה גִּטֵּךְ אוֹ הֲרֵי אַתְּ מְגֹרֶשֶׁת בָּזֶה עַל מְנָת כָּךְ וְכָךְ. אוֹ יֹאמַר לָהֶם אוֹ לַשָּׁלִיחַ תְּנוּ לָהּ גֵּט זֶה עַל מְנָת כָּךְ וְכָךְ:
כסף משנה
3.
How should a man divorce [his wife] conditionally? He should not say: "Write a get for my wife on this condition," or "Write a get and give it to her on this condition." Needless to say, he should not write in the get: "So and so divorces so and so on the [following] condition."13This is unacceptable, as explained in the following halachah.What procedure should instead be followed? He should instruct the scribe to write [a get] and the witnesses to sign. They should write an acceptable get that does not mention any condition at all. Afterwards, he should give her the get and tell her: "This is your get..." or "Behold you are divorced on the following condition." Or he should tell [the witnesses] or his agent: "Give her this get on the following condition."14See the Beit Shmuel 147:1, which states that in a situation of difficulty in which the husband cannot wait until the get is written, we rely on more lenient views that differ with the Rambam. According to these views, the husband may instruct the scribe and the witnesses to write a get in the usual manner and to give it to the agent and before it is written, instruct the agent to give it to the woman conditionally.
הלכה ד
כָּתַב הַתְּנַאי בַּגֵּט אַחַר שֶׁגָּמַר לִכְתֹּב תֹּרֶף הַגֵּט הֲרֵי זֶה גֵּט כָּשֵׁר. בֵּין שֶׁכְּתָבוֹ קֹדֶם חֲתִימַת הָעֵדִים בֵּין שֶׁכְּתָבוֹ לְאַחַר חֲתִימַת הָעֵדִים. אֲבָל אִם כְּתָבוֹ קֹדֶם תֹּרֶף הַגֵּט אֲפִלּוּ כָּתַב עַל מְנָת כָּךְ וְכָךְ הֲרֵי זֶה סְפֵק גֵּרוּשִׁין שֶׁהֲרֵי נִשְׁאַר לוֹ זְכוּת בְּגוּפוֹ שֶׁל גֵּט. וְכֵן אִם הִתְנָה עַל פֶּה קֹדֶם כְּתִיבַת הַתֹּרֶף הֲרֵי זֶה סְפֵק גֵּרוּשִׁין:
כסף משנה
4.
If [a husband] had a condition15I.e., a condition that is acceptable (Beit Shmuel 147:2). written in the get after the essential portion of the get16I.e., the man's name, the woman's name, the date and the sentence: "Behold, you are permitted [to marry] any man," as stated in Chapter 3, Halachah 17. was written, the get is acceptable, regardless of whether [the condition] was written before the signature of the witnesses or after their signature.If, however, [the condition] was written before the essential portion of the get - even if he used the wording, "on the following condition"17I.e., using acceptable wording, as opposed to the wording described in the following halachah. - the status of the divorce is doubtful, for the husband retains rights in the essential matter of the get. Similarly, if he verbally stated a condition before the essential portion of the get was written, the status of the divorce is doubtful.18This ruling is questioned by the commentaries. Gittin 84b states that such a get is pasul, "unacceptable." Unlike the Rambam, for whom this term has an explicit meaning (see Chapter 10, Halachah 20), in the Talmud the interpretation of the term is somewhat ambiguous. In one of his responsa, the Rambam explains that since - as mentioned in the previous halachah - the difficulty concerns a point of Torah law, and yet the Talmud did not rule the get to be void, he maintains that the status of the divorce is in doubt.
The Maggid Mishneh explains that the Rambam interprets the ruling as dependent on the principle of bererah, that retroactively, when the condition is fulfilled, it becomes apparent that the get did sever the connection between the husband and the wife. Since our Sages did not determine whether or not the principle of bererah applies with regard to questions of Torah law, the status of the divorce is in doubt.
Other authorities differ and maintain that if the condition was stated properly before the essential portion of the get was written and fulfilled, the get is acceptable. If the condition was written in the get itself, Tosafot, the Ramban and the Ra'avad maintain that the get is acceptable, while Rabbenu Nissim states that such a get is deemed unacceptable by Rabbinic decree.
At the outset, all the authorities maintain that the rules stated by the Rambam should be followed. The Shulchan Aruch (Even HaEzer 147:2) also quotes the Rambam's ruling that the status of the divorce is in doubt. In a case of hardship, however, the Beit Shmuel 147:2 states that the more lenient views can be relied upon.
הלכה ה
הַמְגָרֵשׁ אֶת אִשְׁתּוֹ וְהִתְנָה עָלֶיהָ בֵּין בִּכְתָב אַחַר הַתֹּרֶף בֵּין עַל פֶּה אַחַר הַתֹּרֶף וְאָמַר לָהּ הֲרֵי אַתְּ מֻתֶּרֶת לְכָל אָדָם חוּץ מֵאִישׁ פְּלוֹנִי אוֹ אֶלָּא לְאִישׁ פְּלוֹנִי וְנָתַן לָהּ הַגֵּט עַל תְּנַאי זֶה אִם הָיָה אוֹתוֹ הָאִישׁ עַכּוּ״ם אוֹ עֶבֶד אוֹ אָסוּר עָלֶיהָ מִשּׁוּם עֶרְוָה כְּגוֹן אָבִיהָ וְאָחִיהָ אוֹ אָבִיו אוֹ אָחִיו הֲרֵי זֶה גֵּט כָּשֵׁר. וְאִם הָיָה אוֹתוֹ הָאִישׁ שֶׁיֵּשׁ לוֹ בָּהּ קִדּוּשִׁין אַף עַל פִּי שֶׁהוּא מֵחַיָּבֵי לָאוִין וְאַף עַל פִּי שֶׁהוּא קָטָן אֵינוֹ גֵּט. שֶׁהֲרֵי שִׁיֵּר בַּגֵּט וְאֵין זֶה כְּרִיתוּת. הָיָה בַּעַל אֲחוֹתָהּ שֶׁאַף עַל פִּי שֶׁהוּא הַיּוֹם אָסוּר עָלֶיהָ מִשּׁוּם עֶרְוָה אִם תָּמוּת אֲחוֹתָהּ יִהְיֶה מֻתָּר לָהּ הֲרֵי זוֹ סְפֵק מְגֹרֶשֶׁת:
כסף משנה
5.
[These rules apply when a man] divorces his wife and [makes the following conditions] whether verbally or in writing, after the essential portion [of the get] has been written,19Needless to say, according to the Rambam, when any of the following conditions is binding, it invalidates the get if it was made or stated before the essential portion of the get was written. The difference between these conditions and those stated in the previous halachah is that those conditions can be fulfilled through a specific activity, and once they are fulfilled the marriage bond is severed entirely. The conditions mentioned in this halachah, by contrast, remain binding throughout the woman's life. Thus, her connection to her husband is never severed entirely.The authorities which differ with the Rambam in the previous halachah, also differ in this instance, and maintain that if this condition is written in the get itself, the get is acceptable according to Scriptural law, but disqualified by Rabbinic decree. See Beit Shmuel 137:3.. If he tells her: "Behold, you are permitted [to marry] any man aside from so and so," or "...with the exception of so and so," [the ruling would depend on the identity of the individual specified].
If that individual is a gentile, a servant or a person with whom the woman is forbidden to engage in marital relations - e.g., her father, her brother, his father or his brother - the get is acceptable.20Because of the prohibitions involved, there is no possibility of the woman's establishing a marriage bond with these individuals (see Hilchot Ishut 4:14-15), and therefore, her husband's statements are of no consequence. If, however, the individual is one who could consecrate her [as a wife], the get is void,21Note, however, Chapter 10, Halachah 1. Rabbenu Nissim and other authorities rule more leniently and maintain that such a get is acceptable according to Scriptural law and was deemed unacceptable only by virtue of Rabbinic decree. even if there is a negative prohibition [that is not punishable by death - neither at the hand of God nor the court - involved in such relations]22In such instances, even though marital relations violate a prohibition, a marriage bond can be established (Hilchot Ishut, loc. cit.). or that individual is a minor.23For ultimately, the minor will attain majority. Rabbenu Chanan'el differs and states that with regard to a minor, the status of the divorce is doubtful. The difference of opinion is dependent on the text of Gittin 85b, of which two versions exist. [The rationale is that by making such a condition,] the husband retained certain rights with regard to the divorce, and [the bond between the couple] is not [entirely] severed.
If [the individual mentioned] is the husband of the wife's sister, the status of the divorce is in doubt. For although at present relations between the wife and that man are forbidden, if her sister dies, she will become permitted to marry him.
הלכה ו
אָמַר לָהּ הֲרֵי אַתְּ מֻתֶּרֶת לְכָל אָדָם חוּץ מִמִּי שֶׁיִּוָּלֵד שֶׁאֵינוֹ עַתָּה בָּעוֹלָם. אוֹ חוּץ מִזְּנוּתִיךְ כְּלוֹמַר תִּהְיֶה מֻתֶּרֶת לְהִנָּשֵׂא לְכָל אָדָם אֲבָל לִזְנוֹת הֲרֵי אַתְּ בְּאִסּוּר אֵשֶׁת אִישׁ. אוֹ הֲרֵי אַתְּ מֻתֶּרֶת לְכָל מִי שֶּׁיָּבוֹא עָלֶיךָ כְּדֶרֶךְ כָּל הָאָרֶץ אֲבָל שֶׁלֹּא כְּדַרְכֵּךְ הֲרֵי אַתְּ בְּאִסּוּרִיךְ. אוֹ הֲרֵי אַתְּ מֻתֶּרֶת לְכָל אָדָם חוּץ מִמְּקַדֵּשׁ בִּשְׁטָר. כְּלוֹמַר שֶׁהִיא מֻתֶּרֶת לְהִתְקַדֵּשׁ בְּכֶסֶף וּבְבִיאָה אֲבָל בִּשְׁטָר הֲרֵי אַתְּ בְּאִסּוּר אֵשֶׁת אִישׁ. אוֹ הֲרֵי אַתְּ מֻתֶּרֶת לְכָל אָדָם חוּץ מֵהֲפָרַת נְדָרַיִךְ. כְּלוֹמַר לֹא נִשְׁאַר לִי עָלַיִךְ שׁוּם אִישׁוּת חוּץ מֵהֲפָרַת נְדָרַיִךְ שֶׁאַתְּ אִשְׁתִּי לְעִנְיַן הֲפָרַת נְדָרִים. אוֹ לְעִנְיַן אֲכִילַת תְּרוּמָה. אוֹ לְעִנְיַן יְרֻשָּׁה שֶׁאִם מֵתָה יִירָשֶׁנָּה. בְּכָל אֶחָד מֵאֵלּוּ הֲרֵי זוֹ סְפֵק מְגֹרֶשֶׁת:
כסף משנה
6.
The status of the divorce is in doubt24In all the cases to follow, the divorce does not totally sever the relationship between the husband and the wife. Nevertheless, our Sages were not certain that the rights retained by the husband were sufficient to render the divorce void (Gittin 85a, Perishah, Even HaEzer 137). when [a husband divorces his wife and] tells her: "Behold, you are permitted [to marry] any man, aside from a man who will be born in the future, who does not exist at present," "...aside from promiscuous relationships" - i.e., it is as if he said: "Behold, you are permitted to marry any man, but with regard to promiscuous relations, it is as if you remain forbidden like a married woman."[This ruling also applies if he tells her:] "You are permitted to any man who will engage in relations with you in the ordinary manner, but with regard to anal intercourse, you remain prohibited," "You are permitted [to marry] any man, aside from one who consecrates you with a legal document" - i.e, the woman may be consecrated by [a gift of] money or via sexual relations, but if one consecrates her with a legal document, she is forbidden like a married woman - or "You are permitted [to marry] any man, with the exception of [the right to] nullify your vows" - i.e., [I] retain none of the rights of the marriage relationship except [the right to] nullify your vows; in that regard, it is as if you remained my wife.
[Similarly, if the husband desires that the woman be considered as if she were married with regard to her right] to partake of terumah,25I.e., the husband is a priest, and while married his wife may partake of terumah, although she is the daughter of an Israelite. or with regard to his right to inherit her property if she dies [in his lifetime, the status of the divorce is in doubt].
הלכה ז
אָמַר לָהּ הֲרֵי אַתְּ מֻתֶּרֶת לְכָל אָדָם חוּץ מֵרְאוּבֵן וְשִׁמְעוֹן וְחָזַר וְאָמַר לָהּ הֲרֵי אַתְּ מֻתֶּרֶת לִרְאוּבֵן וְשִׁמְעוֹן הֲרֵי זוֹ מְגֹרֶשֶׁת. שֶׁהֲרֵי בָּטֵל הַתְּנַאי שֶׁהָאֲנָשִׁים שֶׁהִתְנָה בָּהֶן הִתִּירָן לָהּ:
כסף משנה
7.
[If a husband] tells [his wife]: "You are permitted [to marry] any man aside from Reuven and Shimon," and then tells her: "You are permitted [to marry] Reuven or Shimon," the divorce is acceptable.26The Maggid Mishneh explains that this refers to an instance where the husband takes the get back from the woman and gives it to her again, making the latter statement. This conception is also reflected in the ruling of the Shulchan Aruch (Even HaEzer 137:1).The Tur (Even HaEzer 137) differs with the Rambam and maintains that in this instance the status of the divorce is in doubt. We suspect that perhaps the intent of his latter statement was to permit her to Reuven and Shimon, but to forbid her to everyone else. The Shulchan Aruch (Even HaEzer 137:4) accepts the Tur's ruling. All authorities agree that if the husband says: "You are also permitted [to marry] Reuven or Shimon," the get is acceptable. For he has nullified his condition, permitting his wife [to marry] the men [concerning whom] the condition was made.
הלכה ח
אָמַר לָהּ הֲרֵי אַתְּ מֻתֶּרֶת לִרְאוּבֵן הֲרֵי זוֹ אֵינָהּ מְגֹרֶשֶׁת שֶׁהֲרֵי לֹא בִּטֵּל תְּנָאוֹ שֶׁל שִׁמְעוֹן. אָמַר לָהּ הֲרֵי אַתְּ מֻתֶּרֶת לְשִׁמְעוֹן אוֹ הֲרֵי אַתְּ מֻתֶּרֶת אַף לְשִׁמְעוֹן הֲרֵי זֶה סְפֵק גֵּרוּשִׁין שֶׁמָּא לֹא הִתִּירָה אֶלָּא לְשִׁמְעוֹן וּרְאוּבֵן בְּאִסּוּרוֹ עוֹמֵד וְזֶה שֶׁאָמַר אַף לְשִׁמְעוֹן כְּלוֹמַר לְכָל אָדָם אַף לְשִׁמְעוֹן. אוֹ שֶׁמָּא הִתִּירָהּ לַכּל וְזֶה שֶׁאָמַר אַף לְשִׁמְעוֹן וְהוּא הַדִּין לִרְאוּבֵן שֶׁשִּׁמְעוֹן סָמוּךְ הָיָה לִרְאוּבֵן בִּתְנָאוֹ:
כסף משנה
8.
[If, after telling his wife that she is permitted to marry any man aside from Reuven and Shimon, the husband] tells her: "You are permitted [to marry] Reuven," the divorce is void, because he has not nullified the condition [preventing her from marrying] Shimon.If he tells her: "You are permitted to [marry] Shimon," or "You are even permitted to [marry] Shimon," the status of the divorce is in doubt. We suspect that perhaps he permitted her only to Shimon, and she is still forbidden to Reuven. By saying "even to Shimon," he meant "to everyone, even to Shimon." [Nevertheless, the divorce is not void, for] perhaps he permitted her to everyone, and by saying "even to Shimon," he meant "to Shimon and also to Reuven." [This is plausible,] for Shimon was mentioned after Reuven in his condition.
הלכה ט
הִתְנָה עָלֶיהָ וְאָמַר הַיּוֹם אֵין אַתְּ אִשְׁתִּי וּלְמָחָר אַתְּ אִשְׁתִּי אֵינָהּ מְגֹרֶשֶׁת וְאַף עַל פִּי שֶׁכָּרַת בֵּינוֹ לְבֵינָהּ הַיּוֹם. לְפִיכָךְ כּוֹתְבִין בְּגִטִּין מִן הַיּוֹם הַזֶּה וּלְעוֹלָם:
כסף משנה
9.
If [a husband] makes a condition, saying; "Today you are not my wife, but tomorrow you will be my wife," the divorce is not effective.27Rabbenu Asher and the Rashba differ and maintain that in such an instance, the divorce is effective. The Shulchan Aruch (Even HaEzer 137:5) follows the view of Rabbenu Nissim, who maintains that the status of the divorce is in doubt. Although the connection between the couple is severed on the day [of the get, it is renewed afterwards]. For this reason, in the wording of the get, is written the phrase: "from the present day onward."הלכה י
הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁלֹּא תִּשְׁתִּי יַיִן כָּל יְמֵי חַיָּיְכִי אֵינוֹ גֵּט שֶׁאֵין זֶה כְּרִיתוּת. כָּל יְמֵי חַיַּי אוֹ כָּל יְמֵי [חַיֵּי] פְּלוֹנִי הֲרֵי זֶה גֵּט שֶׁהֲרֵי כָּרַת בֵּינוֹ לְבֵינָהּ וְלֹא תִּשָּׁאֵר לוֹ עָלֶיהָ רְשׁוּת כְּשֶׁיָּמוּת אוֹתוֹ פְּלוֹנִי:
כסף משנה
10.
[If a husband tells his wife:] "This is your get on the condition that you never drink wine for the rest of your life," the divorce is not effective, for [the relationship between them] has not been severed.28There is a factor, the prohibition against drinking wine, that always maintains the connection between them.If the condition states "for as long as I live" or "for as long as so and so lives," the divorce is effective, for the relationship between the couple is severed. When that person dies, [the woman] will no longer have any connection with [her previous husband].
הלכה יא
הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁלֹּא תֵּלְכִי לְבֵית אָבִיךָ עַד שְׁלֹשִׁים יוֹם הֲרֵי זֶה גֵּט. שֶׁלֹּא תֵּלְכִי לְבֵית אָבִיךָ לְעוֹלָם אֵינוֹ גֵּט שֶׁהֲרֵי אֵין זֶה כְּרִיתוּת. לְפִיכָךְ הָאוֹמֵר הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁלֹּא תֹּאכְלִי בָּשָׂר זֶה לְעוֹלָם. שֶׁלֹּא תִּשְׁתִּי יַיִן זֶה לְעוֹלָם אֵינוֹ גֵּט שֶׁאֵין זֶה כְּרִיתוּת. עַד שְׁלֹשִׁים יוֹם הֲרֵי זֶה גֵּט:
כסף משנה
11.
[If a husband tells his wife:] "This is your get on the condition that you do not go to your father's house for 30 days, the divorce is effective. "...That you never go to your father's house," the divorce is not effective, for [the relationship between them] has not been severed.[Similarly, if a husband] tells [his wife:] "This is your get on the condition that you never eat meat," or "...that you never drink wine," the divorce is not effective, for [the relationship between them] has not been severed. "...[that you not eat meat or drink wine] for 30 days, the divorce is effective.
הלכה יב
הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁלֹּא תִּנָּשְׂאִי לִפְלוֹנִי אֵינוֹ גֵּט. הָא לְמָה זֶה דּוֹמֶה לְאוֹמֵר לָהּ הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁלֹּא תִּשְׁתִּי יַיִן לְעוֹלָם אוֹ שֶׁלֹּא תֵּלְכִי לְבֵית אָבִיךְ לְעוֹלָם אוֹ כָּל יְמֵי חַיָּיְכִי. אֲבָל אִם אָמַר לָהּ עַל מְנָת שֶׁלֹּא תִּנָּשְׂאִי לִפְלוֹנִי עַד חֲמִשִּׁים שָׁנָה הֲרֵי זֶה גֵּט וְלֹא תִּנָּשֵׂא לוֹ כָּל זְמַן שֶׁהִתְנָה. וְאִם נִשֵּׂאת בָּטֵל הַגֵּט לְמַפְרֵעַ. זָנְתָה עִמּוֹ הַוָּלָד כָּשֵׁר וְהַגֵּט כָּשֵׁר שֶׁלֹּא הִתְנָה אֶלָּא עַל הַנִּשּׂוּאִין:
כסף משנה
12.
[If a husband tells his wife:] "This is your get on the condition that you never marry so and so," the divorce is not effective.29The Rashba differs with this ruling, explaining that since the other person may die, this can be compared to an instance where the husband makes a condition that his wife not drink wine during the duration of another person's life. Just as that condition is considered to be having a limit, so too, should this condition be considered to be limited.In his Kessef Mishneh, Rav Yosef Karo defends the Rambam's ruling, explaining that in the instance at hand, the woman will never be able to marry the man specified in the condition. As such, the condition is not considered limited. In his Shulchan Aruch (Even HaEzer 143:22), he quotes both opinions and states that the stringencies required by both views should be observed. To what can this be compared? to his telling her: "This is your get on the condition that you never drink wine," "...that you never go to your father's home," or "[that you not go to your father's home] for the rest of your life."30I.e., the condition is one that binds a woman to her husband for her entire life.
If, however, he tells her: "[This is your get] on the condition that you do not marry so and so for fifty years,"31The Kessef Mishneh quotes a responsum of the Rashbatz that states that the intent is that the marriage will be forbidden for a period longer than the woman is expected to live. Thus, though the husband has in effect prohibited the woman from marrying the other man forever, since this is not explicitly stated, the condition is considered to be limited in scope. the divorce is effective; she may not marry the person during the time specified.32According to the Rambam, it appears that the woman is free to marry another man immediately, for we assume that she will abide by the condition, rather than place herself in a compromising situation. There are, however, other opinions that state that she is not allowed to remarry until the person specified dies. The Shulchan Aruch (Even HaEzer 143:16) quotes both opinions without appearing to favor either one. If she marries him, the divorce is nullified retroactively.33I.e., it is considered as if the original marriage bond had never been severed. Any children born to her between the divorce and its nullification are deemed illegitimate.
If [the woman] engages in promiscuous sexual relations with the man specified, any child born to her is legitimate, and the divorce remains acceptable. For [the husband's] condition mentioned only marriage.
הלכה יג
הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁתִּנָּשְׂאִי לִפְלוֹנִי אִם נִשֵּׂאת לוֹ הֲרֵי זֶה גֵּט כִּשְׁאָר כָּל הַתְּנָאִים. אֲבָל אָמְרוּ חֲכָמִים לֹא תִּנָּשֵׂא לֹא לְאוֹתוֹ פְּלוֹנִי וְלֹא לְאַחֵר. לְאוֹתוֹ פְּלוֹנִי לֹא תִּנָּשֵׂא שֶׁמָּא יֹאמְרוּ נְשֵׁיהֶן נוֹתְנִין בְּמַתָּנָה זֶה לָזֶה. וּלְאַחֵר לֹא תִּנָּשֵׂא שֶׁאֵינוֹ גֵּט אֶלָּא בְּקִיּוּם הַתְּנַאי. עָבְרָה וְנִשֵּׂאת לְאוֹתוֹ פְּלוֹנִי לֹא תֵּצֵא. נִשֵּׂאת לְאַחֵר קֹדֶם שֶׁתִּנָּשֵׂא לְאוֹתוֹ פְּלוֹנִי בָּטֵל הַגֵּט וְתֵצֵא וְהַוָּלָד מַמְזֵר וּצְרִיכָה גֵּט מִשֵּׁנִי:
כסף משנה
13.
[If a husband tells his wife:] "This is your get on the condition that you marry so and so," if she marries him [the divorce is effective], as it would be if other conditions were involved. Nevertheless, our Sages said that she should not marry either the man specified or any other man.She should not marry the man specified, lest the people say: "They are giving their wives as presents to each other."34This would compromise the entire image of Jewish divorce. (See Rashi, Gittin 84a.) Nor should she marry anyone else, for the get is effective only when the condition is fulfilled.
If she transgresses and marries the man specified, she need not be divorced. If she marries another person before she marries the man specified, the get is nullified, and she must leave her second husband. Any child she bears [the second husband] is illegitimate. He must, however, divorce her with a get.35The requirement for the woman's second husband to divorce her is a Rabbinic decree, instituted lest people see a woman who appears married leave her husband without a get. According to Scriptural law, a get is not necessary (Maggid Mishneh).
The Ra'avad and the Tur (Even HaEzer 143) suggest that she can have the legitimacy of the children of her second husband restored retroactively by marrying the person specified in the first get after being divorced by her second husband. In this way, the condition will have been kept.
The Maggid Mishneh justifies the Rambam's ruling, explaining that the husband's intent was that the woman should marry the man specified before marrying anyone else. (The commentaries cite a parallel to this ruling in Hilchot Mechirah 11:10.) The Shulchan Aruch (Even HaEzer 143:15) quotes the Rambam's view, while the Ramah follows that of the Ra'avad and the Tur.
הלכה יד
הֲרֵי זֶה גִּטֵּךְ וְהַנְּיָר שֶׁלִּי אֵינָהּ מְגֹרֶשֶׁת שֶׁאֵין זֶה כְּרִיתוּת. עַל מְנָת שֶׁתִּתְּנִי לִי אֶת הַנְּיָר הֲרֵי זֶה גֵּט וְתִתֵּן:
כסף משנה
14.
[If a husband tells his wife:] "Behold, this is your get, but the paper belongs to me," the divorce is not effective, for [the relationship between them] has not been severed.36Since the husband maintains possession of the paper on which the get is written, the couple's marriage relationship has not been totally severed. Rashi (Gittin 75b) offers a different interpretation of this ruling. "...On the condition that you give me the paper," the divorce is effective, [provided] she gives [him the paper].37When she receives the get, the paper belongs to her. Afterwards, she willingly gives it back. This follows the principle that a present given on condition that it be returned is considered to be a present (Rashi, Gittin 20b).הלכה טו
חָקַק הַגֵּט עַל טַס שֶׁל זָהָב וּנְתָנוֹ לָהּ וְאָמַר לָהּ הֲרֵי זֶה גִּטֵּךְ וּכְתֻבָּתֵךְ כָּשֵׁר וְנִתְקַבְּלָה כְּתֻבָּתָהּ אִם יֵשׁ בַּטַּס כְּדֵי כְּתֻבָּתָהּ וְאִם לָאו יַשְׁלִים כְּתֻבָּתָהּ:
כסף משנה
15.
If he engraved a get on a plate of gold and gave it to her, telling her: "This is [both] your get and [the money due you by virtue of] your ketubah, [the divorce is] acceptable and she is considered to have received the money due her by virtue of her ketubah,38Gittin 20b explains that the fact that the same article serves two purposes - effecting the divorce and providing remuneration for the woman's marriage contract - does not prevent it from being effective. provided the plate is worth the value of her ketubah. If it is not, he should compensate [for the difference].הלכה טז
כָּל הַמְגָרֵשׁ עַל תְּנַאי שֶׁמְּבֻטָּל הַגֵּט כְּגוֹן שֶׁהִתְנָה לָהּ שֶׁלֹּא תֹּאכַל בָּשָׂר וְלֹא תִּשְׁתֶּה יַיִן כָּל יְמֵי חַיֶּיהָ. אוֹ שֶׁתִּהְיֶה מֻתֶּרֶת לְכָל אָדָם חוּץ מִפְּלוֹנִי. אוֹ שֶׁהִתְנָה עָלֶיהָ שְׁאָר תְּנָאִים קֹדֶם כְּתִיבַת הַתֹּרֶף. אִם הָיָה תְּנָאוֹ כָּתוּב בַּגֵּט וְחָזַר וּמְחָקוֹ וּנְתָנוֹ לָהּ הֲרֵי זוֹ סָפֵק מְגֹרֶשֶׁת. וְאִם הָיָה הַתְּנַאי עַל פֶּה הֲרֵי זֶה נוֹטֵל הַגֵּט מִמֶּנָּה וְחוֹזֵר וְנוֹתְנוֹ לָהּ בְּלֹא תְּנַאי כְּלָל אוֹ בִּתְנַאי כָּשֵׁר:
כסף משנה
16.
[The following rules apply when a man] divorces [his wife] conditionally, including a stipulation that causes the divorce to be considered void - e.g., that she never eat meat or drink wine for the rest of her life, or that she be free to marry any man with the exception of a particular individual, or that he mentioned other conditions before the essential portion of the get was written: If the condition was written in the get, and he rubbed it out and gave it to her, the status of the divorce is in doubt.39Since the get was written in an unacceptable manner, there is reason to maintain that the get can never be acceptable. This applies when the unacceptable condition was written before the essential portion of the get.The wording used by the Rambam is, however, questionable. The Rambam's Commentary on the Mishnah (Gittin 9:1) and the gloss of the Maggid Mishneh on this halachah use the word pasul "unacceptable," rather than "the status of the divorce is in doubt" to describe such a get. Perhaps here, the Rambam uses the term "the status of the divorce is in doubt," because, as cited above from the Rambam's responsa, according to the Rambam, the question in these situations is whether the get is written for the sake of severing the marriage bond. And this is a question of Scriptural law (Rav Kapach). If the condition was stated verbally,40The Maggid Mishneh states that this refers to a condition stated after the essential portion of the get was written. If such a condition was stated before the essential portion was written, the get is unacceptable, because it was not written with the intent of severing the marriage relationship. See Halachah 4 and notes. he should take the get from her and give it to her again without mentioning a condition, or mention a condition that is acceptable.
הלכה יז
כֵּיצַד. הֲרֵי שֶׁנָּתַן גֵּט לְאִשְׁתּוֹ וְאָמַר לָהּ הֲרֵי אַתְּ מְגֹרֶשֶׁת בָּזֶה וּמֻתֶּרֶת לְכָל אָדָם חוּץ מִפְּלוֹנִי. אִם נְטָלוֹ מִמֶּנָּה וְחָזַר וּנְתָנוֹ לָהּ וְאָמַר לָהּ הֲרֵי אַתְּ מֻתֶּרֶת לְכָל אָדָם אוֹ הֲרֵי זֶה גִּטֵּךְ הֲרֵי זוֹ מְגֹרֶשֶׁת. וְכֵן כָּל כַּיּוֹצֵא בּוֹ:
כסף משנה
17.
What is implied? [A man] gave a get to his wife and told her, "Behold, you are divorced with this [get] and are free [to marry] any man aside from so and so."41The Sages decreed that unless the get is returned, it not effective, even if the condition was nullified. Since the original giving of such a get has a permanent effect - the woman is forbidden to marry a priest (or to remain married to her husband, if he is a priest), as stated in Chapter 10, Halachah 1 - the only way such a condition can be nullified is by returning the get to the husband, and having him give it again without any condition.The Beit Shmuel 147:6 states that this law applies only with regard to a condition that prevents her from marrying a particular man that was stated after the essential portion of the get was written. When a condition that nullifies the get was written before the essential portion of the get was written, the get is void and cannot be rectified. When a stipulation such as "on the condition that you do not drink wine for the rest of your life" was made after the essential portion of the get was written, there is no need to take the get back from the woman. It is sufficient to nullify the stipulation. If he took [the get] from her and gave it to her and said: "Behold you are free [to marry] any man," or "This is your get," the divorce is effective. The same applies in other similar situations.
הלכה יח
הַנּוֹתֵן גֵּט לְאִשְׁתּוֹ עַל תְּנַאי שֶׁתִּתֵּן לוֹ מָאתַיִם זוּז וְחָזַר וְהִתְנָה עָלֶיהָ תְּנַאי אַחֵר בִּפְנֵי עֵדִים שֶׁתְּשַׁמֵּשׁ אָבִיו שְׁתֵּי שָׁנִים. לֹא בִּטְּלוּ דְּבָרָיו הָאַחֲרוֹנִים אֶת הָרִאשׁוֹנִים אֶלָּא הֲרֵי זֶה כְּאוֹמֵר לָהּ עֲשִׂי אֶחָד מִשְּׁנֵי הַתְּנָאִים. רָצָת מְשַׁמֶּשֶׁת רָצָת נוֹתֶנֶת. וְאֵין אֶחָד מִן הָרִאשׁוֹנִים וְאֶחָד מִן הָאַחֲרוֹנִים מִצְטָרְפִין. אֲבָל אִם הִתְנָה עָלֶיהָ שֶׁתִּתֵּן לוֹ מָאתַיִם זוּז וְחָזַר וְהִתְנָה בִּפְנֵי שְׁנַיִם שֶׁתִּתֵּן לוֹ שְׁלֹשׁ מֵאוֹת זוּז. כְּבָר בִּטֵּל הַתְּנַאי שֶׁל מָאתַיִם וּצְרִיכָה לִתֵּן שְׁלֹשׁ מֵאוֹת זוּז. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה:
כסף משנה
18.
When [a man] gives a get to his wife on the condition that she give him two hundred zuz, and afterwards establishes a second condition in the presence of witnesses that she serve his father for two years, his latter statement did not nullify his original one.42The Maggid Mishneh states that this refers to an instance where the condition was stated in a twofold statement: "If you do such and such, the get is effective, but if you do not do such and such, the get is not effective." In such instances, since the divorce is not effective until the condition is fulfilled, the husband may alter the condition. When, however, a get is given "on condition that... ," the divorce is retroactively effective from the time the get was given. Hence, the condition cannot be changed.Rashi (Gittin 76a) offers a different interpretation of this passage. The Shulchan Aruch (Even HaEzer 143:10) follows the Rambam's interpretation, while the Ramah follows that of Rashi. Instead, it is as if he told her: "Fulfill one of the two conditions." If she desires, she may serve his father, or if she desires, she may give [him the money]. One of the witnesses to the first condition cannot join with one of the witnesses to the second condition [to testify that the get was given on a conditional basis].43For each of the conditions is considered to be a separate matter.
If, however, [the husband] made a condition that the woman must give him 200 zuz, and afterwards made a condition in the presence of two [witnesses] that she must give him 300 zuz, the condition of 200 has been nullified, and she must give [him] 300 zuz. The same principle applies in all similar situations.
הלכה יט
הִתְנָה עָלֶיהָ שֶׁתַּעֲשֶׂה דָּבָר זֶה סְתָם הֲרֵי זֶה כִּמְפָרֵשׁ יוֹם אֶחָד הוֹאִיל וְלֹא פֵּרֵשׁ כַּמָּה זְמַן תַּעֲשֶׂה. כֵּיצַד. אָמַר לָהּ הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁתַּעֲשִׂי עִמִּי מְלָאכָה. עַל מְנָת שֶׁתְּשַׁמְּשִׁי אֶת אַבָּא. עַל מְנָת שֶׁתֵּינִיקִי אֶת בְּנִי. אִם עָשְׂתָה עִמּוֹ מְלָאכָה אוֹ אִם שִׁמְּשָׁה אֶת אָבִיו יוֹם אֶחָד אוֹ שֶׁהֵינִיקָה בְּנוֹ יוֹם אֶחָד בְּתוֹךְ הַזְּמַן שֶׁהַבֵּן יוֹנֵק בּוֹ וְהוּא בְּתוֹךְ אַרְבָּעָה וְעֶשְׂרִים חֹדֶשׁ הֲרֵי זֶה גֵּט. מֵת הַבֵּן אוֹ מֵת אָבִיו קֹדֶם שֶׁתֵּינִיק אוֹ שֶׁתְּשַׁמֵּשׁ אֵינוֹ גֵּט:
כסף משנה
19.
If [a husband] makes a condition that his wife must perform a specific activity without stating a duration of time, it is considered as if he stated that she should perform this activity for one day. For he did not specify any amount of time.What is implied? If he told her: "This is your get on condition that you perform work for me," "...on condition that you serve my father," or "...on condition that you nurse my son," if she performs work for him or serves his father for one day or nurses his son for one day during the time when a child [usually] nurses - i.e., within his first 24 months [of life] - the get is effective.44This ruling reflects an interesting halachic judgment on the Rambam's part. Gittin 75b explains that the ruling cited by the Rambam was authored by Rav Ashi. Although the Gemara poses questions on Rav Ashi's view that are left unresolved, since his position was not refuted, according to the Rambam, the halachah follows his view.
The Tur follows a different view and maintains that the woman must serve her husband's father for the duration of the father's life and nurse the son for the entire two-year period. The Shulchan Aruch (Even HaEzer 143:8) follows the Rambam's view, while the Ramah cites that of the Tur.If the son or the father dies before she nurses him or serves him, the get is not effective.45For the condition has not been fulfilled.
הלכה כ
אָמַר לָהּ עַל מְנָת שֶׁתֵּינִיקִי אֶת בְּנִי אוֹ תְּשַׁמְּשִׁי אֶת אָבִי שְׁתֵּי שָׁנִים. הֲרֵי זוֹ מַשְׁלֶמֶת הַזְּמַן שֶׁפֵּרֵשׁ. מֵת הַבֵּן אוֹ הָאָב בְּתוֹךְ הַזְּמַן אוֹ שֶׁאָמַר הָאָב אֵין רְצוֹנִי שֶׁתְּשַׁמְּשֵׁנִי אֵינוֹ גֵּט שֶׁהֲרֵי לֹא נִתְקַיֵּם הַתְּנַאי. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה:
כסף משנה
20.
If [the husband] tells her: "[This is your get] on condition that you nurse my son..." or "...serve my father for two years," [for the divorce to be effective] she must complete the time specified. If the son or the father dies within this period, or the father says: "I don't want you to serve me," the get is not effective, for the condition has not been fulfilled.46The Tur (Even HaEzer 143) differs and states that since the woman did not prevent the condition from being fulfilled, the get is effective. The Shulchan Aruch (Even HaEzer 143:8) does not accept this view. The Ramah states that the more stringent view should be followed. The same principles apply in all similar situations.הלכה כא
הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁתִּתְּנִי לִי מָאתַיִם זוּז מִכָּאן וְעַד שְׁלֹשִׁים יוֹם. נָתְנָה בְּתוֹךְ שְׁלֹשִׁים יוֹם מִדַּעְתּוֹ הֲרֵי זוֹ מְגֹרֶשֶׁת. לְאַחַר שְׁלֹשִׁים אֵינָהּ מְגֹרֶשֶׁת. נְתָנָהּ לוֹ בְּעַל כָּרְחוֹ וְהוּא אֵינוֹ רוֹצֶה לְקַבֵּל הֲרֵי זֶה גֵּט פָּסוּל עַד שֶׁתִּתֵּן מִדַּעְתּוֹ. חָזַר וְאָמַר לָהּ בְּתוֹךְ הַשְּׁלֹשִׁים יוֹם הֲרֵי הֵן מְחוּלִין לָךְ אֵינָהּ מְגֹרֶשֶׁת. שֶׁהֲרֵי לֹא נַעֲשָׂה הַתְּנַאי. מֵת בְּתוֹךְ שְׁלֹשִׁים יוֹם הוֹאִיל וְשָׁלְמוּ הַשְּׁלֹשִׁים יוֹם וְלֹא נָתְנָה אֵינָהּ מְגֹרֶשֶׁת:
כסף משנה
21.
[The following rules apply when a husband] tells [his wife]: "[This is your get] on condition that you give me 200 zuz within 30 days." If she gives him [the money] within 30 days with his consent, the divorce is effective. If she gives [it] after 30 days, the divorce is not effective. If she gives it to him against his will, and he refuses to accept it, the divorce is unacceptable until he willingly accepts it.47There is a difference of opinion among our Sages regarding whether a person who forces a colleague to accept something is considered to have given it to him or not. Although the view that he is considered to have given the object is favored, the Rabbis deemed the divorce unacceptable in consideration of the other view (Gittin 74a, 75a).More specifically, it appears that the Rambam maintains that according to Scriptural law, the get is effective, and it is disqualified merely by virtue of Rabbinic decree, while Rabbenu Asher and the Rashba maintain that, according to Scriptural law, there is a doubt regarding the issue (Beit Shmuel 143:7).
If he tells her within the 30 days, "I am willing to forego [the money on your behalf," the divorce is not effective, because the condition was not fulfilled.48As reflected in Halachah 23, a husband can nullify a condition that he makes to a get. In this instance, however, he is not nullifying the condition, but rather trying to have it satisfied in a way other than that which he originally intended. This is not acceptable. Originally, he made the condition to annoy the woman, and since she did not suffer this worrying, the divorce is not effective unless he nullifies the condition entirely (Gittin 74b; Maggid Mishneh). If he dies within the 30 days, since the 30 days are completed without her giving [him the money], the divorce is not effective.49Thus, if the husband dies without children, she is required to perform either the rites of yibbum or chalitzah.
הלכה כב
אָמַר לָהּ הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁתִּתְּנִי לִי מָאתַיִם זוּז וְלֹא קָבַע זְמַן וּמֵת קֹדֶם שֶׁתִּתֵּן אֵינָהּ יְכוֹלָה לִתֵּן לְיוֹרְשָׁיו שֶׁלֹּא הִתְנָה עָלֶיהָ אֶלָּא שֶׁתִּתֵּן לוֹ. וְלֹא בָּטַל הַגֵּט שֶׁהֲרֵי לֹא קָבַע זְמַן. לְפִיכָךְ אַף עַל פִּי שֶׁאָבַד הַגֵּט אוֹ נִקְרַע קֹדֶם שֶׁיָּמוּת הֲרֵי זוֹ לֹא תִּנָּשֵׂא לְזָר עַד שֶׁתַּחֲלֹץ:
כסף משנה
22.
If he tells her, "[This is your get] on condition that you give me 200 zuz," without specifying a time period, and he dies before she gives [him the money], she cannot give [the sum] to his heirs; the condition was that it be given to him. [In this instance, however,] the get is not nullified [by the husband's death], since a definite time period was not specified.50When a specific time period is mentioned and the condition is not fulfilled in that period, the divorce is nullified. In this instance, however, since a specific time is not mentioned, the Rambam maintains that the divorce is never nullified.Rav Kapach explains that the Rambam's approach is based on his conception (see Halachah 1 of this chapter, and Chapter 9, Halachot 1 and 5) that when a get is given on a conditional basis, the get takes effect immediately, but it is not completed until the condition is fulfilled. Therefore, in this instance, since the condition can never be fulfilled, the divorce is not completed, and chalitzah is necessary if the husband dies childless. Nevertheless, yibbum cannot be performed, for the divorce has already begun.
Other commentaries offer different interpretations of the Rambam's views. The Tur (Even HaEzer 143) rejects the Rambam's ruling and maintains that the woman may also perform the rite of yibbum. The Shulchan Aruch (Even HaEzer 143:3) follows the Rambam's view. Therefore, even if the get was lost or ripped before he died, [the woman] should not marry another man until she performs the rite of chalitzah.
הלכה כג
הֲרֵי זֶה גִּטֵּךְ עַל מְנָת שֶׁתִּתְּנִי לִי כְּלִי פְּלוֹנִי אוֹ בֶּגֶד פְּלוֹנִי וְאָבַד אוֹתוֹ כְּלִי אוֹ אוֹתוֹ בֶּגֶד אוֹ נִגְנַב אַף עַל פִּי שֶׁנָּתְנָה לוֹ אֶלֶף זוּז בְּדָמָיו אֵינוֹ גֵּט עַד שֶׁתִּתֵּן אוֹתוֹ כְּלִי אוֹ אוֹתוֹ בֶּגֶד עַצְמוֹ אוֹ עַד שֶׁיְּבַטֵּל הַתְּנַאי:
כסף משנה
23.
[If the husband tells her:] "This is your get on condition that you give me this particular utensil," or "...this particular garment," and that utensil or garment is lost or stolen, even if she gives him 1000 zuz in compensation for [the desired object],51The Tur (Even HaEzer 143) differs and explains that the husband has the option of accepting the money in lieu of the object originally mentioned. Although the Shulchan Aruch (Even HaEzer 143:6) mentions both views, it appears to favor that of the Rambam. the divorce is not effective until she gives him the specified utensil or garment, or until he nullifies the condition.52I.e., he tells the woman, "This is your get; there are no conditions attached." He does not have to take the get back from the woman.הלכה כד
מִי שֶׁנִּתְגָּרְשָׁה עַל תְּנַאי וְקִדְּשָׁהּ אַחֵר קֹדֶם שֶׁיִּתְקַיֵּם הַתְּנַאי. אִם נִתְקַיֵּם הַתְּנַאי הֲרֵי זוֹ מְקֻדֶּשֶׁת. וְאִם לֹא נִתְקַיֵּם הַתְּנַאי וּבָטַל הַגֵּט אֵינָהּ צְרִיכָה גֵּט מִשֵּׁנִי שֶׁהֲרֵי אֵין קִדּוּשִׁין תּוֹפְסִין בָּהּ. אֲבָל אִם נִשֵּׂאת וְלֹא נִתְקַיֵּם הַתְּנַאי וּבָטַל הַגֵּט צְרִיכָה גֵּט מִשֵּׁנִי כְּמוֹ שֶׁבֵּאַרְנוּ:
כסף משנה