Q&A: A Question About a Kal Va-Homer
A Question About a Kal Va-Homer
Question
A few seconds after I sent you the previous email, I got the following question, which is really directed to you. I assume that by the time I open the Talmudic text, you’ll already have written an article about it:
You refer to the portion of Vayelekh regarding Occam’s razor in order to explain the logic of the Talmud’s mode of derivation by way of kal va-homer. Seemingly, what is said there is completely contradicted by the Talmudic passage in Bava Metzia 3a, in the words of Rabbi Hiyya’s first teaching. He says that witness testimony regarding part of the claim obligates payment and an oath regarding the rest: “so that a person’s own admission should not be greater than witness testimony, by kal va-homer.” The Talmud explains at the beginning of the passage why a kal va-homer is needed, since substantively there is no similarity between one who admits part of the claim—where “in truth he wanted to deny it all, and in truth he wanted to admit it all, but the reason he did not admit was that he was trying to stall,” etc.—but in the case of witness testimony, where that reasoning cannot be said, one might say no; therefore it teaches us the kal va-homer (see there). That is, the standard way to clarify an unknown matter is to compare it to something where we know the law. When the Talmud understands that comparison is impossible because there is no similarity between the cases—one is oranges and the other is bananas—there is no choice but to derive it by kal va-homer. Even though we understand that these are different kinds of goods, we now weigh which is more stringent, and if the law is known in the lighter case, then in the more stringent case we will also apply that law despite the lack of similarity.
Answer
This time I actually haven’t written about it, although I did discuss it in classes in the past.
Rabbi Hiyya’s first kal va-homer is understood by many as an arbitrary kal va-homer with no logic to it (like Rabbi Chaim on the kal va-homer of the “one” in the Brisk Haggadah, “Beit HaLevi,” on “Who Knows Thirteen”). I disagree. Even after the distinction, the kal va-homer can still stand, because witnesses are stronger than a partial admission (at this stage of the Talmudic discussion).
I once elaborated in a class to explain what the role of Rabbi Hiyya’s reasoning is in the first place: is it meant to reject an argument that would exempt someone who admits part of the claim from his oath, or is that itself the reason the Torah imposed an oath here? The medieval authorities disagreed about this, and the connection to witness testimony on part of the claim apparently depends on that. I’ll explain.
I’m not in the details of the passage right now, so I’ll try to reconstruct it from memory. In general, I argue that the kal va-homer is built as follows: the obligation of one who admits part of the claim is based on the fact that once the defendant admits that the plaintiff has a claim to the money under dispute, he becomes the one on the defensive (since he is only arguing that the amount is different, but this is still the plaintiff’s money), and therefore the defendant here cannot prevail merely with a claim alone (under the rule that the burden of proof is on the one seeking to extract money from another). That is why the Torah obligates him to take an oath. In my view, Rabbi Hiyya’s reasoning is not the reason for the original obligation of the oath, but only an explanation of why we should not exempt him from it (as one who returns a lost item—Rashi—or because of migo—Tosafot). If so, witness testimony on part of the claim, which is stronger evidence than a person’s own partial admission, certainly suffices to establish the plaintiff’s connection to part of the money, and therefore all the more so it should obligate the defendant to swear.
At first glance, you can now ask regarding witness testimony on part of the claim: why shouldn’t we exempt him as one who returns a lost item, just as with one who admits part of the claim? Certainly not. There is no returning a lost item here, and no migo. And in any case Rabbi Hiyya’s reasoning, which comes to explain why we do not exempt him, is simply irrelevant here. In the case of witness testimony on part of the claim, that issue does not arise at all.