CONDITIONS (Heb. תְּנָאִים, tena'im).
Conditions is an ambiguous word inasmuch as it refers not only to the external factors upon which the existence of an agreement is made to depend but also to the actual terms of the contract itself. Thus, one speaks of tena'ei ha-ketubbah, which really means the terms of the ketubbah. Similar ambiguities exist in English law (see G.C. Cheshire and C.H.S. Fi-foot, The Law of Contract (19605), 118ff.). In Jewish law, there is a further contingency: tenai consists not only of the stipulations of the contracting parties but also refers to legislative provisions, as evident in the expression tenai bet-din (see *Takkanot). As to conditions proper, i.e., stipulations (qualifications or limitations) attaching to a principal agreement, the basic concept in Jewish law seems to be very much the same as that in other systems of law. For example, distinctions between conditions precedent and conditions subsequent, differentiations between affirmative and negative conditions, between authoritative, casual, and mutual conditions or between expressed and implied conditions, and much more are found in all legal systems, although in Jewish law they may not be so clear-cut terminologically.
A vital characteristic of conditions in Jewish law is the provision referred to as tenai benei Gad u-venei Re'uven, based on Numbers 32. This was the occasion when Moses allocated land to the tribes of Gad and Reuben (and to half the tribe of Manasseh) on the east side of the Jordan River on the condition that they crossed the Jordan and assisted the other tribes in the conquest of the Holy Land. The Mishnah notes (Kid. 3:4) that when Moses made this stipulation he used a tenai kaful ("double condition"), expressing himself, i.e., both in the affirmative and the negative: if they fulfill the condition, they shall be entitled to the allocation; if they do not, they shall not. Significance is here attached to the fact that the affirmative precedes the negative (hen kodem le-lav). Moreover, it is required that the conditions be stipulated prior to the actual transactions – which means, according to some authorities, that, as a matter of formality, conditions should be referred to before mentioning the main transaction (tenai kodem lema'aseh). A fourth requirement, usually listed in the context, is that the condition must be davar she-efshar lekayyemo, i.e., something objectively capable or possible of fulfillment (Maim. Yad, Ishut, 6:1–13; Sh. Ar., eh 38:1–4).
It is remarkable that the codes just referred to cite these rules in the context of matrimonial law, but it is the express opinion of Maimonides (ibid., 6:14) that they apply equally to other provinces of the law, e.g., to *sale and *gift, and he persists in his ruling, despite the fact that later Geonim (to whom he explicitly refers) would have the formal requirements of tenai kaful and hen kodem le-lav apply to kiddu-shin (see *Marriage) and gittin (see *Divorce) only, and not to matters covered by laws of mamon. Maimonides aptly argues that the biblical "precedent," from which the present law is derived, concerned mamon ("acquisition of property"), and it would therefore be illogical to consider it as applicable only to matrimony rather than to matters of mamon. Nevertheless, in light of the glosses and commentaries to Maimonides (Maim. Yad, Ishut 6:14, and Zekhiah u-Mattanah 3:8), there is good authority for restricting the said requirements to kiddushin and gittin; and there is logic, too, in freeing everyday transactions from unreasonable formal requirements, since the predominant factor should be the will of the parties – and if they want a certain condition to be fulfilled, it should stand even if formalities like tenai kaful have not been observed (Rabad ad loc). Moreover, *custom, which is a powerful agent in Dinei Mamonot, may have regarded such a requirement in the field of commercial transactions as obsolete (Haggahot Maimoniyyot to Ishut 6:14). Yet, even if the halakhah were to be decided as suggested by Maimonides, there still exist various means of evading the problems arising out of the formalistic requirements of tenai kaful and hen kodem le-lav. Maimonides himself notes (Ishut 6:17) that if the word me-akhshav ("from now") was used in the stipulation, which would seem to turn a suspensive condition into a resolutive one, the requirement of tenai kaful may be ignored. Equally, the use of the words al menat ("provided that"), as distinct from the simple im ("if "), has the same effect as me-akhshav (Sh. Ar., eh 38:3). Furthermore, if the condition is contained in a written document, the date of the document could have the effect of me-akhshav (Git. 77a).
Already in the Middle Ages, when most of the transactions among Jews were in chattel, there seems to have been a tendency to consider the tenai benei Gad u-venei Re'uven, if applicable at all, as being restricted to the transfer of landed property (as was the case, in fact, in the original "deal" with the tribes of Gad and Reuben); pure obligations (in personam), not involving the transfer of property, would then certainly be exempt from those rules (see Gulak, Yesodei, 1 (1922), 80). It may be mentioned in this context that some "reservations" (shi'ur) do not fall under the term "condition." For example, if one sells his house, but reserves the right to a certain part of it, this is not construed as the vendor having said that he would sell the house "on condition that…"; therefore the requirement of tenai kaful, etc., does not apply (Sh. Ar., hm 212:3).
The requirement that the conditions should be capable of fulfillment, which is the most reasonable requirement and applies regardless of the form of the stipulation, needs some elaboration. The consequence of stipulating an impossible condition is that the principal transaction remains valid, despite the "nonfulfillment" of the condition (Maim. Yad, Ishut 6:7). By contrast, in Roman law the whole transaction would be voided by the defect of the condition (for a further discussion of this point, see Gulak, loc. cit., 81). It should be said at once that this is not the case of a person being prevented from fulfilling a condition by reason of force majeure (see *Ones), but with conditions stipulating something which according to all human experience is a priori impossible. The example usually given in the sources is "if you climb to the sky." Moreover, only physical and not moral or legal impossibility is visualized in this context. For example, if one promises to give his horse to another on the condition that the prospective recipient commits a sin, the condition would stand, and if he committed the sin, he would have the horse; if not, he would not (Maim. Yad, Ishut 6:8; eh 38:4). For a discussion of the problems of jus dispositivum jus cogens, and illegal contract, see *Contract.
A final category, widely discussed, is that of implied conditions. The classic case is that of a man who sold his possessions because he intended to immigrate to the Holy Land, but made no mention of his intentions during the negotiations. His plans having been foiled, he then wanted to renege on the transaction, arguing that he only sold his possessions on the condition that his plans would be realized. The ruling here is that such mental reservations have no effect ("words which are in the heart are not words," Kid. 49b–50a). This does not mean that only explicit conditions are valid; in fact, it is sufficient if in the circumstances, the dependency of the transaction on certain events was clearly apparent. For example, if a person, in contemplation of death, donated all his property, it is assumed that he did so on the premise that his death was imminent (especially if the donation was made during a particular illness). Accordingly, if he survived, the donation is ineffective (bb 9:6; see also *Wills). On the general question as to whether and to what extent the parties are bound by the transaction before the condition is fulfilled (Maim. Yad, Ishut 6:15–16; Sh. Ar., eh 38:6–7), it should be noted that, here again, conditions introduced by the simple im would lack forcefulness, which can be remedied by the addition of me-akhshav or by using the formula of al menat, a differentiation discussed above in connection with tenai kaful (see also *Asmakhta). Special problems of conditions attaching to specific transactions are further discussed in the respective articles on *Betrothal, *Sale, *Wills, etc.
[Arnost Zvi Ehrman]
The Law in the State of Israel
Sections 27–29 of the Contracts Law (General Part), 5773 – 1973, contain the various rules governing conditions in contracts: a suspensory condition (in which the contract only becomes valid upon the fulfillment of the condition), as opposed to a resolutory condition (the fulfillment of the condition terminates the validity of the contract); the possibility granted to a party to rely on the performance or the non-performance of such conditions; a contract whose fulfillment is conditional upon the agreement of a third party or the receipt of a license; and the date on which the contract is canceled when the condition is not fulfilled.
Decisions of the Israel Supreme Court
In a further hearing in the case of Ben Shachar v. Yosef Machlev (dn 22/73, 28(2) pd 89), the question adjudicated by the Court was whether, after a decision had been rendered by a court giving effect to an agreement between two parties regarding the payment schedule for a debt, it was possible to extend the dates that had been fixed for the payments, in the event that the debtor was unable to pay due to *duress. In the case at hand, the debtor was unable to pay because he had become completely paralyzed and the Court granted his son's request to extend the payment deadlines that had been fixed, and rejected the creditor's petition to evict him from his home. The Court held that it had inherent power to change the decision rendered pursuant to the agreement in order to do justice in such cases.
In addition to this holding, Justice Haim Cohn ruled that even without such power, the agreement between the parties must be read as containing an implied condition to the effect that "if the debtor does not discharge his obligations in the time prescribed therefore, due to illness or other circumstances beyond his control, the Court is vested with the authority to extend the time limit for his performance of those obligations (ibid., p. 100). Justice Cohn invoked sources from Jewish Law in support of this ruling, stating that "the justice that we are obligated and try to do will be more secure and institutionalized when it is based on our legal tradition and the wisdom of our ancestors, of blessed memory" (ibid., p. 98):
We found a kind of implied condition of the sort that forms the basis of the Mishnaic rule exempting one who makes a vow from fulfilling his vow if, on the date set,… he was prevented from doing so due to circumstances beyond his control ("duress"). The Mishnah defines "vows affected by duress" as vows whose timely performance was thwarted because the one who made the vow "became ill, or his son became ill, or the river prevented him" (Ned. 3:3). Rabbi Obadiah of Bertinoro explains that "from the outset the one who made the vow had no intention to fulfill it if he were to be prevented from doing so; this proves that "words of the heart, even if unexpressed, are words." In other words, even if the one who took the vow did not make an express statement, but only thought it to himself, and generally speaking thoughts are not words, we must read into his explicit vow the condition that was not expressly stated therein, because it was in his mind, i.e., that should circumstances beyond his control prevent him from carrying it out, the vow will not obligate him. This is what the Talmud teaches: "though we [normally] rule words of the heart, even if unexpressed, are words, it is different when it is made under duress" (Ned. 28a).
Further on in his comments, Justice Cohn cites the rule stipulating that, in the case where a plaintiff presented the court with writs attesting to his rights (in other words, submitted them for execution), and prior to the completion of the process he had to return home, and therefore declared to the court and the litigant that in the event of his not returning within thirty days his rights would be annulled, and thereafter, due to circumstances beyond his control, he was unable to return, his rights are not annulled (Maim., Yad, Hil. Sanhedrin 6:10; Tur, and Shulhan Arukh,hm 21.1; based on Ned. 27a). Regarding this case, as well, Justice Cohen suggests that the reason for this ruling is the same—namely, that the creditor's words are construed as containing an implied condition exempting him in the event of circumstances beyond his control (ibid., pp. 98–99).
Another case in which the Supreme Court dealt with the application of an "implied condition" was that of Behem v. the Rabbinical High Court of Appeals (hc 609/92, 47(3) pd 288). In that case, the Court was requested to invalidate the decision of the Rabbinical High Court of Appeals regarding the apartment of a couple that had divorced due to the wife's infidelity. The rabbinical court ruled that the husband should become the sole owner of the apartment, because when the husband gave his wife half of the apartment he did so under the condition that she would be faithful to him. Even though such a condition had never been explicitly stated or written, the rabbinical court concluded that there had been an implied condition, based on the expectations of the parties (this, in addition to its decision that the husband was no longer bound by his compromise offer to give the wife 30% of the value of the apartment, as she had rejected that offer). The petitioner's argument was that this decision contravenes the principles of civil law applicable in the State of Israel under the Women's Equal Rights Law, 5711 – 1951, and concerning the possibility of retracting a gift pursuant to the Gift Law, 5728 – 1968; in addition, he argued that the decision violates the provisions of Basic Law: Human Dignity and Freedom.
The Court (Justice Elon) ruled that, as it had been established that the apartment was purchased with the respondent's money and the issue concerned the legal act of a gift between spouses, the only question confronting the Court was the question of "the interpretation of this legal act according to the expectations and intentions of the parties," and it does not bear upon the wife's equal rights or basic rights (ruling, ibid., p. 294). The Court further held that, as the rabbinical court is vested with the jurisdiction to decide in the case, it must rule according to Jewish Law. In view of both of these rulings, the Court rejected the petition and held that the rabbinical court had ruled in accordance with the law and that, according to Jewish Law, this gift must be viewed as a conditional gift, "subject to the understanding that if she leaves him, he would not be regarded has having given it to her" (ibid.).
Justice Elon showed further that, even pursuant to the civil Gift Law, a gift may be given conditionally, and that the existence of such a condition may be deduced on the basis of the parties' intentions, as reflected by the circumstances. In a number of cases the Supreme Court held that, regarding a gift to a spouse, the circumstances may on occasion indicate that a gift was given conditionally. Hence, from the moment the judicial instance interprets the contract as a conditional contract, that condition becomes part of the gift contract; it is thus clear that the rabbinical court was required to interpret the contract as containing a condition, in accordance with Jewish Law.
The Supreme Court further pointed out that [in another case] the rabbinical court had ruled that a spousal gift is given on the condition "that they will not divorce," even where the situation was the opposite – that is, where the wife gave half of her apartment to the husband, and he had to return his share of the apartment to the wife.
It bears mention that the rabbinical court views itself as bound by civil law regarding the wife's equal rights, provided that the issue concerned monetary matters and not questions of issur ve-heter (i.e., ritual laws of prohibited and permitted actions). This was the position taken in Nagar v. Nagar (bdm 1/81, 38(1) pd 365), by Rabbi Yosef Kappaḥ, a judge in the Rabbinical High Court of Appeals and one of the important halakhic scholars of recent years. (The late Rabbi Kappaḥ was a member of the Supreme Court panel that ruled in the case, pursuant to a special procedure provided by the law when a ruling is required on whether the rabbinical or civil court has jurisdiction.) Rabbi Kappah stated as follows:
The legislator's directive [to equate a woman and a man regarding any legal act, pursuant to the Women's Equal Rights Law, 5711 – 1951 – me] was apparently given under the assumption that monetary matters do not occasion an infringement of religious law inasmuch as a legislative directive [in the civil law] has the same halakhic status as [the establishment of] a "financial condition," which is not considered as making a condition against what is written in the Torah. As such, it must be presumed that the legislator did not intend to infringe any matter that did not fall within the ambit of a financial condition (ibid., p. 412).
[Menachem Elon (2nd ed.)]
Gulak, Yesodei, index; N. Wahrmann, Die Entwicklung der Bedingungsformen im biblisch-talmudischen Recht (1929); idem, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 45 (1930), 219–39; idem, Die Bedingung תנאי und אסמכתא im juedischen Recht (1938); Herzog, Instit, 2 (1939), 217ff.; B. Cohen, in: H.A. Wolf-son Jubilee Volume (1965), 203–32; also separately: Conditions in Jewish and Roman Law.add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:352, 520f., 574f., 735, 754f.; 2:1285; 3:1480; idem, Jewish Law (1994), 11:424; 2:632f., 707f., 906, 930f.; 3:1533; 4:1760f.; idem, Ma'amad ha-Ishah (2005), 114–15; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, 2 (1986), 536–39; B. Lifshitz and E. Shochetman, Mafte'ahha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 360–61.
[Arnost Zvi Ehrman]