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Gitin 75

GITIN 73-75 - Anonymously dedicated by an ardent supporter who wants the Zechus of spreading Torah throughout the world.

1a) [line 14] KOL MAKOM SHE'SHANAH RASHBA"G B'MISHNASEINU, HALACHAH K'MOSO - every place in the Mishnayos in which Raban Shimon ben Gamliel teaches [his opinion], the Halachah follows his opinion

b) [line 15] CHUTZ ME'AREV V'TZIDON V'RA'AYAH ACHARONAH - except for the cases of Arev (a guarantor), Tzidon (the city of Sidon) and Ra'ayah Acharonah (the latter case of proof), as follows:

(a) AREV (Bava Basra 173b-174a): The Chachamim rule that a loan may be given on the condition that the creditor can collect from the debtor's guarantor (Arev Kablan) before first going to the debtor. Raban Shimon ben Gamliel rules that if the debtor has property, the creditor must collect from him, even if the loan was given under the above conditions.
(b) TZIDON (Gitin 74a): It occurred once in Tzidon that a man said to his wi fe, "This will be a valid Get (bill of divorce) on condition that you bring to me my robe," and then the robe was lost. According to the Rabanan, the Get is annulled and void. Raban Shimon ben Gamliel maintains that she may give the value of the robe and the Get will be effective.
(c) RA'AYAH ACHARONAH (Sanhedrin 31a): The Chachamim rule that a litigant, after being instructed in Beis Din to prove his case, who says, "I do not have any proof," may not use any proof that he may subsequently find as valid evidence. (Since he already admitted to not having proof, we suspect that the documents that he brings afterwards may be forged.) Raban Shimon ben Gamliel rules that we acknowledge the possibility that he did not know about the evidence for his case at the moment that he said he did not have proof, and he may therefore use the proof he subsequently finds as valid evidence. (The Mishnah previously quoted a ruling of Raban Shimon ben Gamliel with regard to a *different* case involving proof in which the Halachah *does* follow his opinion. Hence the latter case is known as "Ra'ayah Acharonah.")
2) [line 16] HAREI ZEH GITEICH V'HANEYAR SHELI - this is your Get, but the paper [still] belongs to me

3) [line 17] EINAH MEGURESHES - she is not divorced, since he has not given her any document to serve as a bill of divorce, and the Torah states, "v'Nasan b'Yadah" - "and he shall place into her hand [the bill of divorce]" (Devarim 24:1) (RASHI)

4) [line 17] AL MENAS SHE'TACHZIRI LI ES HA'NEYAR - [this is your Get,] on the condition that you return to me the paper [on which it is written]

5) [line 18] MEGURESHES - she is divorced, for the reasons that are presented by the Amora'im in the Gemara below

6) [line 20] EFSHAR D'MEFAISAH LEI BI'DAMEI - perhaps she will appease him with money (paying him the value of the paper)

7) [line 22] HEICHA D'LEISEI B'EINEI - [in a case] where it (the object in question, i.e. the robe) is no longer in existence

8) [line 24] TENAI KAFUL - The two-sided conditional statement
(a) It is possible to make a condition in all Kinyanim (acquisitions; the word Kinyan connotes a change of ownership or status, such as sales, gifts, Gitin and Kidushin) such that the Kinyan will not take effect unless one or both of the parties involved fulfill the specified condition. However, the Torah established that not all conditional statements are valid. Rather, the wording of the conditional statement must follow a specific formulation (Kidushin 61a):
(b) According to those who rule that a Tenai Kaful is required, it must be double-sided ("Tenai Kaful"; i.e. both the positive and the negative sides of the condition must be explicitly stated) and the positive side must precede the negative side. For example, "If you do such-and-such, the Kinyan will take effect; *and if not, the Kinyan will not take effect.* (There is a Tana who argues, ibid., and does not require that a conditional statement be double-sided, since the inverse may be inferred from the first half of the statement -- mi'Chlal Hen Atah Shome'a Lav.) Another requirement is that the statement of the condition must precede the statement of the action.
(c) The format for conditional statements is learned from the condition that Moshe Rabeinu made with the men of the tribes of Gad and Reuven. They received portions in the land of Ever ha'Yarden (modern-day Jordan) on condition that they fight alongside the other tribes in the wars of conquest of Eretz Yisrael proper (Kidushin 61a).
(d) There are Rishonim who write that even according to the opinion that a double-sided statement is necessary, it is not necessary under all circumstances:

1. According to some, if the words "Al Menas" ("on the condition that...") are included in the words of the conditional statement, it is considered as if the statement is double-sided, and the second side need not be stated explicitly (RAMBAM Hilchos Ishus 6:17).
2. There are those who are of the opinion that the rules governing the working of a Tenai only apply to Gitin and Kidushin, but not to sales and gifts (see RAMBAM and RA'AVAD Hilchos Zechiyah u'Matanah 3:8).
(e) Even if the wording of the conditional statement is properly formulated, there are still certain instances in which a Tenai will not work. For example, the condition and the action cannot affect the same subject ("Tenai u'Ma'aseh b'Davar Echad," as the Gemara states below); the condition must be physically possible to perform (Gitin 84a); and the condition must not be dependent upon the concept of Bereirah (according to the opinion that rules Ein Bereirah -- Gitin 25b, see Background to Beitzah 37:9). There are also rules as to which types of actions can be qualified by a Tenai. A Tenai can only be stipulated for the types of actions which one is able to perform through an agent (a Shali'ach), such as the purchase or sale of land or other objects, or such as effecting a marriage or divorce (Kidushin or Gerushin). When performing actions such as Chalitzah, which cannot be performed through a Shali'ach, a Tenai cannot be stipulated.
(f) If the Tenai is not formulated properly, or if it does not fulfill one of the above points, the Tenai is not valid and the action (that is the Kinyan) takes effect even if the parties do not fulfill the specified conditions. That is, the Tenai is disregarded.

9) [line 28] TENAI KODEM L'MA'ASEH - the statement of the condition must precede the statement of the action

10) [last line] TENAI B'DAVAR ECHAD U'MA'ASEH B'DAVAR ACHER - the condition and the action cannot affect the same subject


11) [line 4] KOL HA'OMER AL MENAS K'OMER ME'ACHSHAV DAMI See Background to Gitin 74:14.

12) [line 6] SHECHIV MERA
A Shechiv Mera is a person lying on his deathbed. Normally, in order to transfer one's possessions to someone else, a proper Kinyan must be executed (such as Hagbahah, or Chazakah), which will later be written in a Shtar. The Chachamim instituted that a Shechiv Mera may effect a Kinyan and transfer his property by simply requesting verbally that the transfer take place. If he recovers, the Kinyan is not valid, because it is clear that he executed the Kinyan only because he thought that he was going to die.

13) [line 6] IM LO MATI, LO YEHEI GET - if I do not die [from this illness], this Get should not take effect

14) [line 12] HEN KODEM L'LAV - the positive [side of the condition] must precede the negative [side]

15) [line 13] ELA AMAR RAVA, IM LO MATI... - Rava suggests to repeat the phrase "Im Lo Mati, Lo Yehei Get" after the phrase "Im Mati, Yehei Get" in order to meet all of the necessary conditions, as the Gemara illustrates presently

16) [line 18] AL MENAS SHE'TESHAMSHI ES ABA - on the condition that you serve my father

17) [line 24] "IY EFSHI SHE'TISHAMSHEINI," SHE'LO B'HAKPADAH - "I do not want her to serve me," said without dissatisfaction (since she did nothing to upset

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