Rambam - 1 Chapter a Day

In Hilchot Ishut 6:7, the Rambam gives as an example for this principle, the condition: “If you ascend to the heavens you will be consecrated to me; if you do not, you will not be consecrated to me.”
In Hilchot Ishut, the Rambam mentions this principle as one of the requirements for conditional agreements. Perhaps the reason he singles out this requirement here is because it is relevant to the bulk of the chapter, which deals with the concept of asmachta.

In Chapter 6 of those halachot, the Rambam lists and explains four requirements necessary for conditional agreements:
a) the condition must be repeated in both a positive and a negative manner: “If you do such and such, the transaction is binding; if you do not do such and such, the transaction is not binding;
b) the positive dimension of the condition must be stated before the negative one, as in the above example;
c) the conditional agreement must be made before the transaction is made; if a transaction is completed, and then one of the parties wishes to attach a conditional agreement, the condition is not binding;
d) the condition must be possible to be fulfilled as above;
See also Hilchot Zechiyah UMatanah 3:6-7.
There are opinions that maintain that with regard to financial matters, there is no necessity to repeat the condition. The Rambam mentions this point in Hilchot Ishut 6:14 and Hilchot Zechiyah 3:6, and attempts to negate that argument, explaining that the source for the laws of conditional agreements is the agreement reached between Moses and the tribes of Gad and Reuven. That was an agreement concerning financial matters. The Rambam’s opinion, however, is not accepted by all authorities.

That the condition and the transaction are binding.

As reflected in the halachot that follow, the seller must say al menat, “on the condition that,” or k’neh me’achshav, “Acquire it retroactively from the present time,” when stating the condition.

Even if the purchaser performs a kinyan after fulfilling the condition, the ownership of the article is not transferred, as the Rambam states in the following halachah.
The Rambam’s decision depends on his understanding of Bava Metzia 66b. Others interpret that passage differently, as noted by the Maggid Mishneh. Because of the difference of opinion regarding the matter, the Shulchan Aruch (Choshen Mishpat 207:2) quotes the Rambam’s words with the preface of the phrase “There are those who say.” See also the notes on Halachah 4.

The root of the word asmachta, is the word samoch, which means “depend on.” The intent is that the owner did not make a hard and fast decision to transfer ownership, but rather his decision was dependent on an external factor that was unclarified. As such, the statements he made are not binding.

I.e., he performs a kinyan that transfers ownership of the house.

The acquisition takes places retroactively.

The Maggid Mishneh states that the Ramban differs with the Rambam and states that if the condition is dependent on the actions of another person, the seller is considered to have made a binding commitment. For he realizes that the other person’s actions are not dependent on his own will. As support, he cites the conditional agreement made by Moses with the tribes of Gad and Reuven.
The Machaneh Efrayim justifies the Rambam’s opinion, explaining that even if the condition is left up to the will of another person, the agreement is considered an asmachta. The reason the agreement with the tribes of Gad and Reuven was not considered an asmachta was that these tribes took possession of the land they desired at the time the agreement was made.

Nor does he acquire the property if he manifests his ownership over it before he fulfills the condition. For at that time, the owner has not yet agreed to transfer the property to him.

Sefer Me’irat Einayim 207:6 explains the difference between a conditional agreement and an asmachta as follows: With regard to a conditional agreement, the transaction is of fundamental importance, and the condition is added on as a secondary dimension. With regard to an asmachta, by contrast, it is the condition that is of primary importance. Just in order to motivate the other person to fulfill that condition, it was necessary to promise him that the transaction would be fulfilled. Thus, the owner never really had the intent of performing the transaction, and thus he never transferred ownership.

See, however, Halachah 13, which states that if the person made the stipulation in front of a prominent court and affirmed it with a kinyan, it is binding.

As reflected· in the gloss of the Kessef Mishneh, the Rambam’s ruling applies only when the security is movable property. If it is landed property, even the Rambam would agree that it remains the property of its original owner.

To guarantee that he will pay him for an article that he seeks to purchase.

The commentaries [see the ruling of the Ramah (Choshen Mishpat 207:13)] differentiate between a condition that is an obvious exaggeration, and a condition that reflects a correct appreciation of the loss involved. For example, if a sharecropper says: “If I do not work the field, I will pay you 1000 zuz,” it is clear that he is exaggerating and is not undertaking a serious commitment. If, however, he says: “If I do not work the field, I will reimburse you for the loss,” his commitment is binding. The Rambam himself quotes this law in Hilchot Sechirut 8:13.

The Ra’avad and the Tur (Choshen Mishpat 207) differ with the Rambam with regard to this issue. The Rambam’s decision is based on a passage in Bava Metzia 48b and 77b that appears to indicate that once security has been entrusted to another person, the person who entrusted it has willfully undertaken the risk of its being kept. Therefore, it is not considered an asmachta.
The Ra’avad and the Tur, by contrast, explain that although he entrusted the security to a colleague, the person never really thought about forgoing it. Therefore, the agreement is considered as an asmachta.
The Shulchan Aruch (Choshen Mishpat 207:11) quotes the Rambam’s view, while the Ramah cites the other opinions.

I.e., he made it facetiously, without sincerely considering whether or not he would have to pay.

I.e., the debtor feared that if the promissory note remained in the creditor’s possession, he would demand payment of the entire debt. Therefore, he requested that he entrust it to a third party. The creditor agreed to do so, but only if the debtor made the stipulation cited by the Rambam.

I.e., and thus allow the creditor to sue for the entire amount.

Since the creditor is not in possession of the promissory note, even the Rambam would agree that the debtor made the commitment without seriously considering the possibility that he might be required to pay the additional amount. If, however, the promissory note was in the possession of the creditor, and the debtor made a similar stipulation, the Maggid Mishneh maintains that the Rambam would consider it binding. Since the promissory note was in the possession of the creditor - like the security mentioned in the previous halachah - the debtor would not make a statement totally facetiously.

Rabbah expresses this concept succinctly (Bava Metzia 66b): “Whenever ‘if’ is mentioned, the transaction is not binding.”

Thus, at no time did he make a binding commitment to transfer ownership of the article.

There are opinions that maintain that whenever a person says al menat, “on the condition that,” it is considered as if he said me’achshav, “[retroactive] to the present time.” This ruling is, however, not accepted by all authorities. See Ramah (Choshen Mishpat 207:14).

See an expression of this concept in Hilchot Malveh V’Loveh 6:4.

The Rambam and similarly, the Shulchan Aruch (Choshen Mishpat 207:14), state the condition using positive terminology. The Tur, however, states “If I do not come.... “See Sefer Me’irat Einayim 207:36 for a discussion of this distinction.

I.e., the object of the transaction must be explicitly specified (Sefer Me’irat Einayim 207:37).

The Ramah (loc. cit.) states that there are opinions that maintain that this kinyan must be made in the presence of a prominent court. (See Halachah 13.)

I.e., makes a verbal statement to that effect, although he does not specify it as a condition to the sale. Note the contrast to the following halachah.

If, however, he makes these statements before or after the time the transaction is completed, they are of no consequence. [See Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 207:4).]

The Kessef Mishneh explains that this ruling is based on the· following rationale: A person would not sell property that provides him with an income unless he were intending to move. Based on this logic, he explains that these laws do not apply with regard to movable property. For movable property is often sold even when one does not consider changing one’s locale. The Ramah (Choshen Mishpat 207:3) includes this concept in his gloss on the Shulchan Aruch.

Sefer Me’irat Einayim 207:8 emphasizes that the factors preventing the person may be external - thieves and brigands on the roads - or internal - illness.

The Maggid Mishneh states that this law applies only when the seller is prevented from making the journey or purchasing the wheat by factors beyond his control. If he changes his mind and does not make the journey or the purchase for other reasons, the sale is not nullified.

The Ramah (Choshen Mishpat 207:4) states that if it is blatantly obvious that the sale was made only for a specific intent, and the person was prevented from fulfilling that intent by forces beyond his control, the sale is not binding.

And the entity reverts to its original owner.

This addition is necessary, as evident from a comparison to the following halachah.

See Chapter 23, Halachah 5. Throughout the entire time the article is in the possession of the purchaser, he is entitled to benefit from it, and that benefit is not considered to be interest. The difference between this instance and that described in the following halachah is that in this instance, a time span has been set for the purchase. Thus, it resembles a present that is given with the stipulation that it be returned (Sefer Me’irat Einayim 207:11).

According to many commentaries, the same ruling would apply if the stipulation is made by the purchaser. It is just far more likely that the seller would be the one making the stipulation. Note, however, the second interpretation of the Kessef Mishneh mentioned below.

Before the sale was completed.

And repay you for the field.

The purchaser paid money for the field and received his money in return. It thus resembles a loan. If the purchaser derived benefit from the produce, it would resemble an increment on his money. Thus, although a sale is involved, it is considered to be interest forbidden by Scriptural Law. (See Hilchot Malveh V’Loveh 6:5. Significantly, in that ruling the Rambam says that the transaction is not binding, while here he does not make such a statement.)

The Tur (Choshen Mishpat 207) objects to the Rambam’s decision, considering it paradoxical that on one hand, the Rambam considers the purchaser bound to fulfill the condition, and yet entitled to receive benefit from the land. He interprets Bava Metzia 65b, the source for this halachah, as implying that the purchaser’s statements are facetious and not binding.
The Kessef Mishneh offers two resolutions to these difficulties:
a) The condition was added after the sale was completed. Since under the terms of the sale itself, the purchaser had no obligation to return the field, the benefit he receives from the field cannot be compared to interest paid on a loan. His obligation to return the field is thus considered to be a new matter, unrelated to the benefit he receives.
b) The first clause refers to a condition made by the seller; the second to one established by the purchaser. In both instances, the condition was made before the sale was concluded. Nevertheless, in the first instance, since the lender made the condition and the matter of returning the loan is dependent on him, it is considered comparable to taking a loan and paying interest. When the condition is made by the purchaser, it is not at all like a loan. For he has no way of knowing or ensuring that his money will in fact be returned. Everything is dependent on the seller.

I.e., the seller wanted to make this a condition of the sale.

I.e., the sale of the field to the woman was not binding.

He did not make a binding commitment to return the field.

In his Commentary on the Mishnah (Bava Batra 10:5), the Rambam defines “a prominent court” as a court made up of judges who possess the special semichah (“ordination”) conveyed from judge to judge in a chain going back to Moses. Since from the era of the Talmud onward, there were no judges who possess such semichah, such a definition would make this halachah irrelevant.
Significantly, the Maggid Mishneh differs and quotes the Rashba as interpreting “a prominent court” as not referring to a court of judges with semichah, but rather a court that is commonly accepted as authoritative, and which has the right to expropriate money. The Ramah (Choshen Mishpat 207:15) mentions that view, but also that of the Tur, which maintains that as long as the court is knowledgeable with regard to the laws of asmachta’ot, it is considered to be “a prominent court.”

The Rambam’s words have attracted the attention of the commentaries, for it would seem that since a kinyan has been concluded, it would not be necessary to entrust the record to a court for it to be binding. For a kinyan is ordinarily effective me’achshav, retroactive to the time of the kinyan. And as stated in Halachah 7, whenever a stipulation is made that is effectively retroactive to the time of the stipulation, it is binding.
The Maggid Mishneh and the Kessef Mishneh explain that this is a unique instance, because the stipulation is being imposed upon him by the court; he is not making the stipulation himself. Therefore, if the document had not been entrusted to a court, it would not have been binding. Alternatively, it can be explained that this is speaking about a kinyan that is not effective me’achshav. For in this instance, the kinyan is instituted only to show the seriousness of the person’s intent, and not for any practical purpose. (See also Halachah 18 and the gloss of the Maggid Mislmeh on that halachah with regard to an asmachta that would not be binding although a kinyan is being made.)

As illustrated in the following halachah.
The Ramah (Choshen Mishpat 207:15) cites the view of Rabbenu Asher, who states that since the kinyan was made in a prominent court, it is not necessary to entrust one’s legal documents to the court.

Bava Batra 149a makes this statement, explaining how a convert named Isar could have transferred money before his death.

Since he did not make the gift conditional on any stipulation, we assume that he made the commitment wholeheartedly. Hence, it is binding (Sefer Me’irat Einayim 207:58).

See Hilchot To’en V’Nit’an 7:1 which explains that if a person does not charge the witnesses in this manner, he is not liable. For he can explain that he was speaking facetiously when he made the commitment, or made the statements only so that he would not appear wealthy.

See the Maggid Mishneh and Sefer Me’irat Einayim 40:1, who explain that the Ramban, the Rashba and the Tur do not agree with the Rambam on this clause. Sefer Me’irat Einayim questions why Rav Yosef Karo and the Ramah accept the Rambam’s view without mentioning the opinions that differ.

As stated in Hilchot Malveh V’Loveh 11:3, the obligation created by such a legal document is comparable only to that of a loan supported by a verbal commitment; it is not comparable to an ordinary promissory note. Nevertheless, it is sufficient to bind the giver to keep his word.

I.e., just as a guarantor accepts an obligation upon himself although he did not receive anything from the lender, so too, this person becomes bound by an obligation although he did not receive anything (Siftei Cohen 40:7).

The Rambam distinguishes between this and the previous law as follows: In the previous instance, although the person did not owe the recipient anything, when he undertook the obligation his commitment was limited and specific; therefore, it became binding. In this instance, since the commitment is not specific, we cannot know that the giver made a serious and binding commitment. It is possible that he was speaking facetiously and never desired to give the full amount that he promised.
The Ra’avad, the Ramban and the Rashba differ with the Rambam, and maintain that even in such an instance, it is possible to make a binding commitment. The Shulchan Aruch (Choshen Mishpat 60:2 and 207:21) states the Rambam’s opinion on this issue and concludes: “And all the later scholars differed with him, and we follow their ruling.”

Even if the husband limits the time-frame of the commitment, it still resembles the law stated in the previous halachah.

As the Rambam states in Hilchot Zechiyah UMatanah 6:17 and Hilchot Ishut 23:17, when a man makes commitments to his wife at the time he consecrates her, they are binding, even though he did no more than make a verbal commitment. Although ordinarily such commitments would have to be supported by an actual kinyan, because of the great love the man feels at the time he consecrates his wife he makes a binding commitment through a verbal statement alone.
The commitment mentioned in this halachah is being made at the time of marriage, not of consecration. Therefore, a verbal commitment is not sufficient, and a kinyan is necessary. Nevertheless, because of the love felt at the time, the kinyan made on this occasion is binding even with regard to a commitment that ordinarily would not need to be upheld.

According to the law stated in Halachah 15.

As stated in Halachah 7.

In this way, even if the commitment the person made is an asmachta, he is bound by virtue of his original commitment.

Engagements are a classic example of asmachtot, for no one expects to break an engagement. Hence, any commitments made in the event that the engagement is broken - e.g., the man will pay the woman several thousand dollars - are asmachtot.