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The gemara on Bava Metzia 94a brings a discussion about "מתנה על מה שכתוב בתורה," about someone who makes a condition that is contrary to something that is written in the Torah.

דתניא האומר לאשה הרי את מקודשת לי על מנת שאין ליך עלי שאר כסות ועונה הרי זו מקודשת ותנאו בטל דברי ר"מ רבי יהודה אומר בדבר שבממון תנאו קיים

As it was taught in a braysa, "If someone said to his wife, 'You are married to me, on the condition that I am not obligated in שאר כסות ועונה (the obligations of a husband to his wife, e.g. food, clothing, etc.),' she is married to him, but the condition is null (and he is obligated in שאר כסות ועונה); these are the words of Rabbi Meir. Rabbi Yehudah says, (someone who makes a condition contrary to what is written in the Torah) regarding monetary issues, his condition is valid.

( translation and parenthetical explanations are mine )

So we find that Rabbi Meir holds that one can never make a valid condition (תנאי) that is contrary to something that is written in the Torah, but Rabbi Yehudah holds that these conditions can be valid, provided that they only affect monetary issues.

Are there any opinions that hold that these conditions are valid in all cases, and not just cases of monetary law?

  • Having difficulty tagging this one; help would be appreciated. – Shokhet Dec 24 '14 at 22:53
  • Kalkalah maybe? – rosenjcb Dec 24 '14 at 23:45
  • @rosenjcb I don't quite understand your point. Do you mind elaborating on it a little bit? – Shokhet Dec 24 '14 at 23:49
  • your tag problem. Maybe kalkalah (economics)? – rosenjcb Dec 24 '14 at 23:58
  • @rosenjcb That's a good thought, but my question isn't really about economics. – Shokhet Dec 25 '14 at 1:16
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I'm comfortable to say that no opinion in the Talmud holds this way.

The first reason is that, having learned Kiddushin and perek Yesh Nochlin of Bava Basra, two of the primary places where this discussion comes up, I have never come across a third opinion.

The second reason is that the reasoning which many Acharonim give for the dispute of R' Meir and R' Yehuda is whether or not monetary laws are optional rights that the Torah gave the person, or part of the Torah's definition of how a certain system should function. R' Yehuda understands that the nature of monetary laws is that they are rights, and that is the reason you can stipulate against them - you are forgoing your own right. Thus the gemara says that the stipulation against שאר וכסות only works because the bride is מוחל. But no one was entertaining that you could override a Torah law just because.

The third reason is because every time the gemara is searching for an opinion that holds you can stipulate against the Torah, it only brings Rebbi Yehuda. If there was some mystery third opinion, why isn't it ever brought up as an alternative option?

  • After I asked the question, the "proof" of your third paragraph occurred to me. – Shokhet Dec 25 '14 at 14:24
  • Replace "third paragraph" with "third reason" = "last paragraph." :P – Shokhet Dec 26 '14 at 18:15

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