In the last lesson we discussed the fact that conditions could be put into sales only if the conditions were articulated and agree upon when the act of acquisition of the object was being performed. There are six criteria that must be met for a condition to reach the level of being a condition in the case of a sale on condition.

1. The condition must state both alternatives, the positive first and then the negative. For example, Reuven states to Shimon, before Shimon performs an act of acquisition on Reuven's automobile, "If, in addition to the payment for my automobile, you will paint my fence on or before Monday, then your acquisition of my automobile is effective; and if you do not paint my fence on or before Monday, then the acquisition is not effective." The following is not valid as a condition since the negative is stated before the positive: "In addition to the payment for my automobile, if you will not paint my fence on or before next Monday, then your acquisition of my automobile is not effective: and if you do paint my fence on or before next Monday, then the acquisition is effective." It is not sufficient to rely on the inference that if Shimon does not paint Reuven's fence then the act of acquisition is not effective. The negative aspect of the condition must also be set forth.
The positive statement need not necessarily be to the liking of the person who has to perform. For example, an instruction by a person on his deathbed that his wife be given a get (document of divorce) states. "If I die this get shall be effective and if I do not die this get shall not be effective." The dying man has no children or issue and has a brother. According to halachah, his wife would upon his death have to undergo the halizah ritual.

To spare his wife this ordeal, he will make her a divorcee rather than a widow, because divorcees do not undergo this ritual. The person wants to live and would rather that the get will not be effective.

2. The positive aspect of the condition must be stated before the negative condition, as shown in the example in criterion 1 above.
3. The condition must be stated before the act of acquisition is stated, as shown in the example in criterion 1 above. It cannot be stated as follows: 'This automobile is sold to you [which is the act of acquisition] if, [the condition] in addition to paying for it, you will paint may fence; and it is not sold to you if you do not paint my fence in addition to making the payment."

In monetary cases, this need not be complied with except if the act of acquisition is done contemporaneously with the making of the statement.
4. The condition must be a thing that can be performed. Thus in the prior example, if Reuven states. "If, in addition to the payment for my automobile. you will walk from New York to Los Angeles in one day, then your acquisition of my auto- mobile is effective," then the condition will be deemed not to exist because it cannot be performed, and the automobile will belong to Shimon as soon as he pays for it and performs an act of acquisition. Or performs an act of acquisition and pays for it.

If the condition is illegal or a transgression of halachah, it will still be considered a condition if it is to be performed by one of the parties to the transaction. For example, Reuven states to Shimon, "If you eat this food that is not kosher and pay for the automobile, the automobile is sold to you; and if you do not eat this non-kosher food, this automobile is not sold to you." It is now up to Shimon to decide if he wants to transgress the command not to eat non-kosher food. But if the condition is that a third party transgress, then the condition is not valid and the transaction continues as if no condition was stipulated and the transaction becomes effective upon Shimon paying Reuven for the automobile.

5. The performance by Shimon must be capable of being performed by Shimon's agent. In ritual matters not all acts can be performed by an agent. For example. haljzah cannot ordinarily be performed by an agent. This criterion is not applicable in monetary cases, since in monetary cases all acts of a principal can be performed by an agent.

6. The condition must be in a matter not related to the performance. For example, the husband who is giving his wife a document of divorce, states, "If you will return the document of divorce to me, it is a valid divorce and if you do not return the document of divorce to me, it is not a valid divorce.'. If the divorce document is returned to the husband then there is no divorce. The condition contradicts the act. This criterion is also not applicable to monetary matters.

If the condition is not a valid condition, it shall be deemed to be non-existent and the acquisition will proceed as if there was no condition. For example, Reuven states to Shimon. "If you do not paint my fence then my automobile is not sold to you, and if you paint my fence and pay the price, then the automobile is sold to you." Shimon performs an act of acquisition on the automobile and pays the price. Since the negative is stated before the positive, the condition is not valid and the sale is effected since an act of acquisition was made and the price was paid. Shimon is not required to paint Reuven's fence to give effect to the sale. If Shimon does not paint Reuven's fence, assuming the condition was properly stated as in criterion 1 above, the acquisition is not completed and the automobile still belongs to Reuven, although Shimon both paid the price and performed an act of acquisition. The money will be returned to Shimon. The reason for noncompliance with the condition is not material. even if noncompliance was caused by an act of God, or other force majeure.

The subject matter of this lesson is more fully presented in Volume VI Chapters 207 of"A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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