Chaim Reider got his driving license. The first year he did not need to drive much, so he used one of the family’s two cars as needed. He began learning somewhere new, though, where having a car on a regular basis would be helpful.
“Can I have the second car as mine?” Chaim asked his father.
“I’m willing to give you the car, but with two stipulations,” Mr. Reider replied. “First, that you cover the insurance and gas. Second, that you don’t get any tickets. Otherwise, the car returns to the family.”
Chaim agreed to the terms and took the car. He was careful to observe the conditions; he reimbursed his father for the insurance and for any gas that was charged to his parents’ credit card.
After a year of being on his best behavior, Chaim asked his father if he would be willing to cancel the stipulations. “I walk around nervous thinking that if I slip on the conditions I lose the car,” he said.
Mr. Reider agreed to cancel the stipulations.
It was only two weeks later that Chaim got two tickets, one for speeding and one for going through a red light.
Mr. Reider called Chaim in for a discussion. “I told you from the beginning that if you would get tickets, that car returns to the family,” said Mr. Reider. “It’s time to invoke that clause”
“I did wrong,” acknowledged Chaim, “but you agreed to cancel the stipulations two weeks ago, so the car should remain mine. I promise to be more careful.”
“Promises are not enough in this situation,” said Mr. Reider. “I’m not certain that canceling stipulations works. I’d like to discuss this with Rabbi Dayan.”
The two came before Rabbi Dayan. “I gave one of our cars to Chaim with two stipulations,” said Mr. Reider. “If I canceled the stipulations, can I revoke the gift is he now violated one of the stipulations?”
“The issue of canceling a condition depends on a number of factors,” answered Rabbi Dayan. “There is a fundamental difference between a condition of im [if], where the transaction does not take effect until the condition is fulfilled, and a condition of al m’nas [on condition] or mei’achshav [from now], where the transaction takes effect now but is subject to fulfillment of the condition. In the first case, it is usually possible to cancel the condition and/or retract from the transaction before it takes effect. In the second case, such as ours, there are limitations in which circumstances the stipulation can be canceled.” (E.H. 103:3)
“What are the limitations?” asked Mr. Reider.
“If the stipulation requires that the other party pays or does something, the condition can be repealed and the transaction can be upheld even if the other party did not fulfill the condition,” replied Rabbi Dayan. “The intended recipient can say, “It is as if I received,” and in this way uphold the action as if the condition was fulfilled, even if it wasn’t paid.” (Y.D. 228:39; E.H. 38:36; Ketzos 243:2)
“What about other stipulations, such as refraining from something?” asked Mr. Reider.
“This is the subject of a significant dispute,” replied Rabbi Dayan.
“The Rashba maintains that a stipulation to refrain from something cannot be repealed retroactively, without doing the transaction anew. The Ran maintains that if the stipulation was made for someone’s benefit, that person can cancel the need for the condition and say that he is not insistent. The Rosh maintains that in most situations it is possible for the one who made the stipulation to cancel it and uphold the transaction even if the stipulation will be violated. There are widely divergent opinions regarding the Rambam’s opinion.” (Hil. Ishus 7:23; Machaneh Ephraim, Hil. Zechiya U’Matana #14; Chazon Ish E.H. 53; E.H. 38:35, 143:5-6; Pischei Choshen 20:23)
“Thus,” concluded Rabbi Dayan, “Chaim is entitled to keep the car according to the Rosh and some understandings of the Rambam.”