Kiddushin – Chapter 3 – Lesson 3

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[Rabbi Michael Abraham] Why? No, either way, no. If she hasn’t left her father’s domain, then you’re saying that if, on the side that she isn’t fully married to either of them, then she is still in her father’s domain. On the side that she is married to them, then she is married to them. So it’s a little strange to say that even if her father is a kohen she still can’t eat terumah. You could say it with some difficulty, but it’s hard to say that. In any case, he is certainly speaking where her father is an Israelite, and then he says that she cannot eat terumah. Here you can go in two directions. One direction says that she simply is not fully the wife of either of them. And in order to eat terumah by virtue of her husband, she has to be fully the wife of a kohen, fully. So it’s not because of the laws of doubt, but simply because the betrothal is not complete betrothal. No, that comes later, he says it as an additional answer. He says there is another explanation, because what happens in such a case? This is betrothal that is not given over to intercourse, so to speak, because neither of them is permitted to have relations with her. Since there is concern that she is the other one’s wife, then he would be having relations with a married woman, and the second one too has concern that she is the first one’s wife, and he also cannot have relations with her because he would be having relations with a married woman. So if that is the case, it turns out that neither of them can have relations with her. Now a woman with whom the kohen cannot have relations, that is similar to sinful intercourse, prohibited betrothal. And in prohibited betrothal they do not entitle her to terumah; that is a tannaitic dispute in Yevamot. But the reasoning he brings seems like a third reason. He says that we require “his money, uniquely his.” What does it mean that we require “his money, uniquely his”? Here it seems he is speaking in terms of the laws of doubt, not in terms of partial betrothal. Maybe I’ll sharpen this a bit more to clarify the issue.

There is a passage in tractate Kiddushin on page 41, I think. There is a discussion there about betrothal that is not given over to intercourse. What happens if I go to a father, give him a prutah, and say to him: one of your two daughters is betrothed to me, I don’t care which one, one of them. And the father agrees. The Talmud says this is called betrothal not given over to intercourse; it is a dispute between Abaye and Rava, one of the mnemonic cases where the law follows Abaye, and there the law follows Abaye. So Abaye and Rava disagree on whether such betrothal takes effect or not. Why is it not given over to intercourse? Because I didn’t define which of the two daughters is my wife. Now if I want to have relations with one of them, I can’t have relations with either of them. Because whichever one I would want to have relations with, maybe my wife is her sister, and then this one is my wife’s sister, who is forbidden to me as a sexual prohibition. So I cannot have relations with neither the first nor the second. Therefore this is betrothal not given over to intercourse, and there is a dispute between Abaye and Rava whether it is valid betrothal or not.

Rabbi Shimon Shkop says: this betrothal that is not given over to intercourse is not because of the laws of doubt. It looks like the laws of doubt. For example—and he doesn’t note this, but I will—according to Maimonides, a Torah-level doubt is treated leniently by Torah law, and stringently only rabbinically; by Torah law itself, a Torah-level doubt is treated leniently. So apparently according to Maimonides this is betrothal that is given over to intercourse. Each one is possibly my wife and possibly my wife’s sister, and out of doubt I can be lenient, since a Torah-level doubt is treated leniently by Torah law, fundamentally speaking. So I can have relations with her. So why is this betrothal not given over to intercourse? Maybe not given over to intercourse rabbinically, but not by Torah law. No, says Rabbi Shimon Shkop, that is an incorrect understanding. This is not about doubt. This is about certainty. In the yeshivot they call this—not “certain doubt” but “doubtful certainty.” What does that mean? Regular doubts are doubts where I lack information. For example, I sent an agent to betroth a woman for me, and the agent betrothed a woman and then died. Now I don’t know which woman in the world he betrothed to me. But before Heaven it is revealed who that woman is, right? Meaning, there is one specific woman who was betrothed to me. I don’t know which one, and maybe nobody in the world knows, but the Holy One, blessed be He, knows. Meaning, there is one definite woman who was betrothed to me; I just don’t know which one. That is lack of information, okay?

But in betrothal not given over to intercourse, when I go to the father and give him a prutah and say, one of your two daughters is betrothed to me—here even the Holy One, blessed be He, does not know which one is betrothed to me. There isn’t any concrete one who is betrothed to me. This is not a lack of information. There isn’t some information that exists and I just don’t know it. No—there is no answer at all to the question of which one is betrothed to me. It’s not that I don’t know the answer; there is no answer. Okay? So in such a situation this is not a case of doubt. Doubt is always a situation where I lack information. I don’t know whether the truth is this or the truth is that. Here I lack no information at all; I have all the information in the world. What the Holy One, blessed be He, knows, I also know. Exactly the same. So this is not lack of information. Rather, one of the two is betrothed to me, but either one could be so equally. It is not a doubt where one of them is betrothed to me and I just don’t know which. No. Each of the two. This is what in this context you might call loose betrothal as opposed to doubtful betrothal. Meaning, each of them is betrothed to me on one side. There is one side on which she is betrothed to me and one side on which she is not. But both sides exist, not that I have doubt as to which of the two sides is correct. Both are correct. In a certain sense it is like quantum superposition. In quantum theory they talk about Schrödinger’s cat, which is both alive and dead at the same time. So here too, it is the same thing. These are really two states, both of which are true in some partial sense at the same time. Not that one of them is true and I just don’t know which. Okay? So this is not a state of doubt; it is both. It is like someone who is half-slave and half-free: he is not possibly a slave and possibly free, he is both slave and free. Meaning, he will definitely have both sets of consequences.

Therefore, when I betroth one of this man’s two daughters—I gave him a prutah and said, one of your two daughters is betrothed to me—then both of them are in fact betrothed to me with loose betrothal, partial betrothal, or whatever you want to call it. So this is not doubt. This is very similar to what I’m talking about here. Okay? Here too it is not doubt. It is not that I don’t know whether she is betrothed to the first or betrothed to the second. She is loosely betrothed both to the first and to the second. This is not a state of doubt. Therefore, for example, what would happen if this betrothal were only rabbinic betrothal? Let’s say, I don’t know, in some formality that only works rabbinically. Now I betrothed one of this man’s two daughters with rabbinic betrothal. A rabbinic-level doubt is treated leniently. Apparently I could then have relations with them. Not true, because this is not doubt. This one too is betrothed to me and that one too. True, only rabbinically, but still, rabbinically both are betrothed to me. So each one is definitely my wife’s sister on a rabbinic level, not by doubt. So this is not a rabbinic doubt; it is a rabbinic certainty. Okay? Therefore in such a case it would be forbidden to have relations with them even if this were rabbinic betrothal.

I’m saying all this only to sharpen the situation we have here now. What happens in our case—one might have said that in this case it is not doubt but a loose certainty. She is loosely betrothed to both this one and that one. And therefore, this is what Avraham suggested earlier—Avraham, right?—what Avraham suggested earlier: that she cannot eat terumah even though apparently, either way, she is the wife of a kohen. When you say that either way she is the wife of a kohen, you are essentially saying that this is a situation of doubt. And on both sides of the doubt she is the wife of a kohen, so either way why shouldn’t she eat terumah? But if I understand that no, this is not doubt—it is certainly loose betrothal both to the first and to the second—then either way she is the loose wife of a kohen, not simply the wife of a kohen. She is the loose wife of two kohanim, but she is still not fully the wife of either one of them, so she cannot eat terumah. Okay?

Okay, as for whether her father is a kohen—about that I said there is room to discuss it. If her father is a kohen, maybe that would indeed cover it, and maybe she still would not be able to eat terumah. But they are speaking when her father is an Israelite. However, from the reason the Pnei Yehoshua gives here, it seems that this is not his reason. He sees it as a state of doubt. And although she is possibly the first one’s wife and possibly the second one’s wife, even so she cannot eat terumah, despite the fact that either way she is fully the wife of a kohen. If I see this as a state of doubt, then essentially she is fully the wife of the first or of the second, I just don’t know whose. Fine—but either way she is fully the wife of a kohen, so why shouldn’t she eat terumah? So the Pnei Yehoshua wants to introduce here that we require “his money, uniquely his.” What does “his money, uniquely his” mean?

There is a Talmudic passage in Bava Batra on page 50. The Talmud there on 50a says as follows: It was taught in a baraita: one who sells his slave, but stipulates with him that the slave will serve him for thirty days. I sold my slave, but for the next thirty days he still works for me. Rabbi Meir says: the first one is included in the law of “a day or two,” because the slave is under him, while the second is not included in the law of “a day or two,” because the slave is not under him. Meaning, the law of “a day or two” applies to the one for whom the slave works. So since he works for me, even though he is already owned by someone else, the first is included in the law of “a day or two” and the second is not. Rabbi Meir holds that usufruct is like ownership of the body itself. After all, I can only use him; his body already belongs to the second. I can use him, so I have usufruct rights in him, and usufruct is like ownership of the body itself, so he is basically mine, not the second one’s.

Rabbi Yehudah says: the second one is included in the law of “a day or two,” because he is his money; the first is not included in the law of “a day or two,” because he is not his money. He holds that usufruct is not like ownership of the body itself. So I have usufruct, the second has ownership of the body, and usufruct is not like ownership of the body itself, so he belongs to the second. Therefore the second has the law of “a day or two” and the first does not.

Rabbi Yosei says: both of them are included in the law of “a day or two”—this one because he is under him and that one because he is his money. And he is in doubt whether usufruct is like ownership of the body itself or not like ownership of the body itself, and in capital cases we rule leniently. What is he saying? That he is uncertain whether usufruct is like ownership of the body or not, and therefore this is really a case of doubt, and from a case of doubt both have the law of “a day or two,” because in capital cases we rule leniently. Okay, this is of course a real doubt, not loose the way we discussed in our case. Because if usufruct is like ownership of the body, then the first is the owner. If usufruct is not like ownership of the body, then the second is the owner—fully the owner. Okay? So here it is a doubt. A real doubt between full ownership by A or full ownership by B. This is not a matter of both having a loose connection. Okay? Therefore, in capital cases we rule leniently.

But what interests us is the last opinion, that of Rabbi Eliezer—Rabbi Elazar—and that is also how the law is ruled. Rabbi Elazar says: neither of them is included in the law of “a day or two.” This one because he is not under him, and that one because he is not his money. What does he hold? Is usufruct like ownership of the body or not? Rava said: what is Rabbi Elazar’s reason? Scripture says: “He shall not be avenged, for he is his money”—his money uniquely his. What does that mean? It should be true that there is doubt whether he is the first one’s money or the second one’s money. But even on the side that he is the first one’s money, he is not uniquely his money. And therefore, either way, neither of them has the law of “a day or two.” Neither the first nor the second, because it is doubtful whether he is the first one’s money or doubtful whether he is the second one’s money, but since there is doubt, the money here is not uniquely the money of either the first or the second. Therefore neither of them falls under the law of “a day or two.” And that is what the Pnei Yehoshua is alluding to when he says in our case, “his money, uniquely his.” This is the passage that inspired him.

So let’s return to our case. In our case the first and the second—she is, so to speak, doubtfully betrothed to both of them, right? Because the Pnei Yehoshua compares the cases. So the Pnei Yehoshua—this is why I said it seems from the Pnei Yehoshua that he does not see this as a situation of certain loose betrothal to both of them, but rather as a case of complete betrothal by doubt either to the first or to the second. And still, says the Pnei Yehoshua, you cannot say that either way she should eat terumah, even though she is certainly fully the wife either of the first or of the second. So why not? Because there too, regarding terumah, “acquired by his money, he may eat from it,” and we require “his money, uniquely his.” What does “his money, uniquely his” mean? That it be known that she is the wife of a certain man. He can enable her to eat terumah only if it is known that she is his wife. But if it is not known, even though the truth may be that she is his wife—perhaps—but even on the side that the truth is that she is his wife, it is still clear that it is not known that she is his wife, and in order for him to enable her to eat terumah it has to be known that she is his wife.

What does this really mean? The Pnei Yehoshua’s claim is that this is not really a situation of loose betrothal, but a situation of doubt, and he is innovating that even in a situation of doubt there is not enough here to let her eat terumah. What is the idea behind this? The claim is that the wife of a kohen may eat terumah even terumah that belongs to another kohen, right? So apparently this point really cannot be made. After all, she is the wife either of kohen A or of kohen B. Now let us say she eats terumah belonging to kohen A, while in fact she is the wife of kohen B—so what? She is allowed to eat kohen A’s terumah even if she is the wife of kohen B. Therefore, either way, she can eat either kohen A’s terumah or kohen B’s terumah, whether by the authority of kohen A or by the authority of kohen B. So how can the Pnei Yehoshua want to say that she cannot eat terumah at all? The answer is that the problem is not that she is eating terumah that does not belong to her husband. That is not problematic. The problem is the connection of ownership—that is, in what sense and to what extent he is her husband. And the claim is basically this: when a woman eats terumah, it is not because she is a woman of priestly status, the wife of a kohen—it is not a status. Rather, she eats by virtue of the husband. That is what is written: “acquired by his money, he may eat from it”—he may eat by virtue of being his acquired property. And when she eats terumah, this is really the kohen’s eating, not her eating. Okay? He eats through her, or he feeds her, okay? Or in the other verse, “every pure person in your household may eat sacred food”—that too means that she eats by virtue of the kohen.

Now the first kohen cannot feed her terumah because it is not clear that she is his wife. But the second kohen also cannot feed her terumah because it is not clear that she is his wife. So she cannot eat terumah. Clearly, either way, if you ask me about her status—whether she is a kohen’s wife—the answer is yes: either way she is a kohen’s wife, either of kohen A or of kohen B. But “wife of a kohen” is not a status. If it were a status, then she could eat terumah. But no: if she is a kohen’s wife, she can eat terumah by virtue of him. Now I ask: by virtue of kohen A, can she eat terumah? No, because it is not clear that she is his wife. By virtue of kohen B, can she eat terumah? The answer is no, because it is not clear that she is his wife. So she cannot eat terumah, neither by virtue of kohen A nor by virtue of kohen B. That is the legal distinction. It is not that she—the wife of a kohen—is some status. If she is a kohen’s wife then she herself is considered a priestly woman and can eat terumah. If that were the case, then either way she would be priestly, whether from kohen A or from kohen B; bottom line, she is priestly. But no. When someone comes to eat terumah, we do not discuss it in terms of her own standing; we discuss it in terms of her husband’s standing. The question is not whether she is a kohen’s wife, but whether the kohen can feed her. She is not a priestly woman; she is an Israelite woman altogether. But she can eat terumah because her husband is a kohen: he can feed her. And that is also the language of the Talmud, that her husband feeds her terumah. What does that mean? It means that in order to allow her to eat terumah I ask: by whose authority are you eating here? Meaning, who is the one feeding you?

Now, I cannot point to kohen A, because it is not clear that he can feed me, and I cannot point to kohen B, because it is not clear that he can feed me. So practically speaking I cannot eat by virtue of kohen A, and I also cannot eat by virtue of kohen B. That is what he means by “we require his money, uniquely his.” Meaning, if I cannot point with certainty to A and say that he is the kohen by whose authority she is eating, then kohen A cannot feed her terumah, and the same is true of kohen B. So in practice, even either way, she cannot eat terumah.

There is room here to hesitate about what happens if the father is a kohen. Because if the father—the Pnei Yehoshua seems to imply that if the father is a kohen then yes, she can eat terumah. He is speaking about a case where the father is an Israelite and the two men betrothing her are kohanim. Because if the father is a kohen, then if she is not the uniquely acquired property of kohen A, then he has not removed her from her father’s domain, and kohen B also has not removed her from her father’s domain. So true, neither of them can feed her terumah, but precisely because of that she is still considered as belonging to the father with respect to eating terumah, and then she eats on the basis of her father. If the father is an Israelite, then indeed she cannot eat terumah because her two husbands cannot feed her. If we were dealing with loose betrothal, then this really would be the argument we had earlier—whether the Pnei Yehoshua is going with doubt, meaning a real doubt. If it were loose betrothal, then there would be room to hesitate about what happens when the father is a kohen. Maybe yes, maybe no, I’m not sure.

So that is the Pnei Yehoshua, and indeed an interesting novelty comes out here: when it says that she does not eat terumah—this is what he says is obvious. If she is not anyone’s wife, then certainly she does not eat terumah—so what is the novelty? He says: no, it is not obvious. It needed to teach me that even if both are kohanim, still she does not eat terumah, because we require “his acquired property, uniquely his.” That is the first note.

Second note: in the Mishnah it says “and similarly.” “And similarly, one who said to a woman: behold, you are betrothed to me after thirty days, or from now and after thirty days”—what is this “and similarly”? And how is it connected to the first case, where we were talking about an agent that I sent to betroth a woman for me and he betrothed her to himself? What is this “and similarly”? The Rosh writes that the “and similarly” is only technical: in both cases she is betrothed to the second and not to the first. Both in the case where I sent an agent and the agent betrothed her to himself, and in the case where I betrothed her for after thirty days and someone else came and betrothed her in the meantime. So the “and similarly” just means that here too the law is that she is betrothed to the second. There is no real similarity between the cases.

The Maharshal writes that the “and similarly” comes to teach you that here too there is a moral problem, which we discussed in previous classes. The novelty of the first case is that there is a moral problem; we saw in Maimonides that it is like a poor man turning over a cake. Really it is a Talmudic idea, not Maimonides. “He acted toward her deceitfully.” And according to Maimonides, this is basically like a poor man who takes a cake that another poor man is turning over. So the claim is that if I already betrothed her—not only am I in the stage of “turning over the cake,” I already betrothed her, I’m just waiting thirty days because I betrothed her for thirty days from now—and now someone comes and betroths her in the meantime, that is even worse than the case of a poor man turning over a cake. This is already the case of a poor man who bought the cake. He is not just deciding whether to buy it, or dealing with it, or in negotiations—no, he already bought it, it is just lacking time. He bought the cake for thirty days from now, and suddenly someone comes and takes the cake from him. So if the case of a poor man turning over a cake is a moral problem, then here there certainly is a moral problem. So the “and similarly” written here comes to teach us that just as there is a moral problem with the agent who betroths her to himself, so too in this case there is a moral problem. Then the “and similarly” really is substantive. Okay.

Now one more note. All of these are just introductory notes before I get into our topic. Another note: what happens in the case of “betrothed after thirty days”? The first of our two cases, yes, the second one in the Mishnah. I betrothed her for after thirty days, not “from now and after thirty days.” Now the second man comes and betroths her in the meantime, and it says she is betrothed to the second. What happens if the second one dies? Let’s say I betrothed her for after thirty days, then after a week the second one came and betrothed her, and after another week he died. Now another two weeks pass; after the first two weeks, another two weeks, and my thirty days arrive. Is she now betrothed to me? If the second had not died, then she would be the second one’s wife, and there would be nothing for my betrothal to take effect upon, because she is already a married woman. But if the second dies, then one could perhaps say: if he had taken her, he had taken her, but now that he died she remains unmarried, so the betrothal that I made, which was supposed to take effect after thirty days, will take effect, because now she is unmarried.

And in fact Nachmanides here brings in the name of the Jerusalem Talmud—Nachmanides writes as follows: “And another came and betrothed her within thirty days, she is betrothed to the second.” Since it does not say, “and she is not betrothed to the first,” learn from this that if the second divorced her within the thirty days, the first one’s betrothal would take effect. If he died or divorced her, it doesn’t matter right now. Meaning, it says she is betrothed to the second; it does not say that she is not betrothed to the first. Now clearly, if the second betrothed her and she stays with him, then she is not betrothed to the first but only to the second. But at the moment when the second gave her the betrothal, on the day he gave it to her, you cannot say that she is not betrothed to the first, because if the second were to divorce her or die, then the first one’s betrothal would continue to remain in force. Therefore the Mishnah cannot say “betrothed to the second and not betrothed to the first.” It can say “betrothed to the second.” Whether she is betrothed to the first or not—the days will tell. If she is unmarried when those thirty days pass, then she will also be betrothed to the first. That is how Nachmanides infers it.

Meaning, from the fact that the Mishnah did not say that she is not betrothed to the first, but only said that she is betrothed to the second, it implies that if she is unmarried when those thirty days arrive, then she will return and become betrothed to the first. And so it is stated explicitly in the Jerusalem Talmud: therefore if the second died within thirty days or divorced her, the first one’s betrothal takes effect upon her after thirty days. If he died after thirty days or divorced her after thirty days, the first one’s betrothal does not take effect upon her. Meaning, if the second betrothed her and she was his wife and he died after a year, the thirty days from the first one’s betrothal already passed, so it is lost. Because when those thirty days arrived she was already the second one’s wife, and therefore she could not become betrothed to the first. And they also said there that if the second died and had a brother, since she is bound for levirate marriage, the first one’s betrothal does not take effect upon her. Yes, if the second dies and she is bound for levirate marriage, then there is still something here that blocks the first one’s betrothal because of the second one’s betrothal, and therefore the first one’s betrothal does not take effect upon her.

The Pnei Yehoshua here brings this in the name of the Rosh, and then he says: in truth one must wonder about this inference, because once it teaches that she is betrothed to the second, we automatically know that she is not betrothed to the first. Yes, Nachmanides began by asking why the Mishnah didn’t say that she is not betrothed to the first. The Pnei Yehoshua says: it did say that. When it said she is betrothed to the second, in that it said she is not betrothed to the first. Why does it need to say “betrothed to the second but not to the first”?

And if because “not betrothed to the first” would have been a greater novelty in stringency, since she is not betrothed and does not require a bill of divorce from him—the Pnei Yehoshua says perhaps instead of saying “betrothed to the second,” it should have said only “not betrothed to the first,” because that would be the greater novelty: that she does not need a bill of divorce from him. And if so, let it teach only that, that she is not betrothed to the first, and not say “betrothed to the second”—that inference also does not work. Because on the contrary, the main novelty of the Mishnah is that she is betrothed to the second, so that if she is an Israelite daughter to a kohen, she may eat terumah. And so since even leniently she is betrothed to the second, such that she may eat terumah, that is a significant lenient novelty. Perforce, even where the first fiancé is an Israelite, it must be that she is not betrothed to the first at all, but entirely to the second. In short, the inference of Nachmanides is not an inference—Nachmanides and the Rosh and the Jerusalem Talmud.

And further, according to what we hold like Rabbi Yohanan—that if no other man came and betrothed her, and she retracts, speech can come and cancel speech—then the Mishnah could not have taught at all “she is not betrothed to the first,” because then we would infer that the reason is that she stretched out her hand and accepted betrothal from another. Otherwise she would be betrothed to the first, and that is not so. Fine, there is another inference here about what happens if she canceled the betrothal during the thirty days. So Nachmanides says according to Rabbi Yohanan—sorry, he says that if no one else came and she canceled it, then the betrothal is canceled. And if they had said “she is not betrothed to the first,” then you would think that if she had not stretched out her hand and accepted betrothal from another, then she would indeed be betrothed to the first and could not retract. Therefore, says the Pnei Yehoshua, he does not accept the inference of

[Speaker B] the Rosh.

[Rabbi Michael Abraham] And in truth one must wonder about the commentators who ruled that if the second dies, the first one’s betrothal takes effect. It is just difficult against them, plain and simple. Where would such a thing come from? Granted, one could say that after thirty days, since she is found to be unmarried, the first one’s betrothal returns to its place. Fine, I can accept that if the second moved aside—divorced her or died—then the first one’s betrothal takes effect upon her at the end of the thirty days. But the woman retracted! The moment she accepted betrothal from the second, that means she no longer wants the first one’s betrothal, so she retracted. And we saw above that according to Rabbi Yohanan—fine, he says—Rabbi Yohanan says that if she retracts, she can retract within the thirty days. Well, here she retracted. One can answer: no, she did not retract. Why not?

[Speaker B] What? The second one simply came and said to her, come be betrothed

[Rabbi Michael Abraham] to me, so she retracted. She doesn’t want the first, she wants the second.

[Speaker B] Her intention until the end of the thirty days was for the second. If she

[Rabbi Michael Abraham] intended until the end of the thirty days, then that is not betrothal to the second, because she is betrothed to him forever. If she thought that, then she consented by mistake, and then she is not betrothed to the second, because she thought she was betrothed to him only until the thirty days, whereas in fact that is not so—she is betrothed to him forever, and that is not what she wanted. That is a mistaken transaction; she did not consent at all. I think the point is that it is not true that she retracted. If she became betrothed to the second—if the second betrothed her—she said: I prefer the second over the first. She did not retract from the first one’s betrothal. If she won’t have the second, she still wants the first. So the moment she was betrothed to the second, if he does not divorce her and does not die, she is betrothed to the second because that is what she preferred. And indeed she preferred that. It could be that by force of retracting from the first, she is not betrothed to the first but to the second. But if the second dies or divorces her, she did not say that she does not want the first if there is no second. Meaning, if there is no second, she did not retract and say that she wants the first, so I think that is not such a difficult objection.

In any event, this claim sharpens the strange situation we have here in betrothal after thirty days. Nachmanides and the Rosh, in what they bring from the Jerusalem Talmud, are basically saying that if the second dies or divorces her, suddenly the first one’s betrothal can take effect upon her; the first one’s betrothal can take effect upon her after the thirty days. So why doesn’t it take effect if the second does not die or divorce her? Simply because she is already a married woman; there is nothing for the betrothal to take effect upon. Meaning, there is some strange situation here in which there is an act of betrothal that is going to occur in another thirty days, and it is going to occur in any case. The only question is whether the woman is unmarried, in which case the betrothal will take hold, or whether she is not unmarried, in which case it will not take hold. But there is here an act of betrothal that is standing there ready to occur in another thirty days.

Where do we see this? We see it from the Mishnah itself, because in the Mishnah itself it says that if he betroths her for after thirty days, the act of giving the ring is done now. Right now he gave her the prutah and said, behold, you are betrothed to me—he says, after thirty days. So right now she is not his wife, she is unmarried; the proof is that if someone else comes and betroths her she will be betrothed to him. But in another thirty days, suddenly she will become a married woman—by force of what act? By force of the first act. Meaning, the first act created a situation in which in another thirty days, as it were, an act of betrothal is performed upon her and she becomes his wife. If that is really so, then I can understand what the Jerusalem Talmud and Nachmanides and the Rosh are saying: that if the second divorces her or dies, then she will return and become betrothed to the first, because in essence it was not the first act itself that betrothed her, but rather the first act created a state such that after thirty days there would be an act of betrothal. So fine—why should I care that there was a second in the middle? This act of betrothal now suddenly lands upon her; if she is unmarried, she becomes a married woman.

[Speaker B] Why can’t

[Rabbi Michael Abraham] we say the opposite?

[Speaker B] Say what? That on that day, that very act that the first man performed on the first day takes effect after thirty days. Meaning, he says, I am now performing an act

[Rabbi Michael Abraham] But it takes effect after thirty days. So how does the second one prevent that? After all, I already performed the act of betrothal, and it is supposed to take effect after thirty days. So why should I care that a second man came in the middle, even if he didn’t divorce her and didn’t betroth her? The point is, she isn’t unmarried. She is unmarried only up to the thirtieth day, and you can’t betroth her beyond the time during which she is unmarried. Meaning, she can accept betrothal only up to the thirtieth day. It seems somehow that no—there is something here that is not betrothal that from the outset was made to take effect only until the thirtieth day; rather, this is betrothal that is done in thirty days. I’ll show this, I’ll prove in a moment that it has to be this way, but that’s what it seems like from here, essentially. I’ll formulate it this way: in practice, when I give her a prutah and say to her, “Behold, you are betrothed to me,” I created a legal effect of betrothal. A legal status of betrothal was created now. It’s just that I’m saying to the woman now: that legal status will float in the air. It is not yet resting on you, because it hasn’t landed on you yet; it is floating in the air. In thirty days it will land on you, and you will become my wife. So the act of betrothal created a legal effect of betrothal; the act of giving the ring and saying “Behold, you are betrothed” created a legal status of betrothal. But that status is not yet a status resting on the woman. The woman does not yet have the status of a married woman; the status is floating in the air. In thirty days, if the woman is unmarried, that status will land on the woman and she will become my wife. But if the woman is not unmarried, that status will remain hovering in the air—but she is not my wife, because the status cannot take hold on the woman, since she is not available for betrothal. The claim underlying all this is basically that there is no such thing as someone performing an act of betrothal now, nothing at all being created, and then suddenly after thirty days the woman becomes a married woman. There’s no such thing. In other words, there cannot be such a disconnect between the act that I do and the result that the woman is a married woman. If my act created nothing, then after thirty days the woman cannot suddenly become, out of nowhere, a married woman. Just like that, suddenly. Something has to produce that result. So if my first act did nothing, and we have here a delayed legal effect and the legal effect is created after thirty days—it cannot be created, because there is nothing to create it; the act is already over. Rather, it must be—and in a moment we’ll see this in the language of the medieval and later authorities—“his acquisition has expired.” The act of acquisition has already run its course. Once it has run its course, it cannot suddenly produce a new state, because it is no longer in the world; the act was done thirty days earlier, that’s it. There is nothing now to create the status of married woman. Therefore it has to be that when the act was done, it already then produced the legal effect. A legal effect—yes, that is something someone produces. All right? So the act produced it, created the status of married woman. True, that status of married woman is now floating in the air and will land on the woman in thirty days, but there is something that exists from the moment of the act until the application of the status, until those thirty days are up. The act was not done and then disappeared from the world. Something remained in the world as a result of that act. Otherwise there is some sort of disconnect between the act you did and the legal effect that is created in thirty days, and that cannot be. This is called “his acquisition has expired.” That is what we are actually seeing here in this passage, and I think that is the meaning of the words of Nachmanides and the Jerusalem Talmud and the Rosh, because that is what they say: a legal effect was created, but it is not resting on the woman. So if the woman is unmarried—because the second man died or divorced her—there is no problem; the legal effect will land on her and she will become a married woman, because the legal effect exists here, hovering in the air; it was created by the first act. But if the second man betrothed her and right now she is a married woman—because the legal effect is hovering in the air, so there is betrothal—then if he did not die and did not divorce her, now the legal effect wants to land on the woman, but she is a married woman, and you cannot betroth a married woman. Meaning, there is some act of betrothal happening after thirty days, but it is not an act of betrothal in the sense of giving a ring—the giving of the ring happened earlier. Rather, it is an act of completing the matter. The legal effect now wants to land on the woman, and it cannot do so if she is a married woman. If she is not a married woman, then it really will happen. And that brings me to the question of “his acquisition has expired,” which is really our topic—the issue of “his acquisition has expired.” Basically, from the language of the Mishnah it emerges—and this is clear—that if he betroths the woman for after thirty days, then after thirty days she will be betrothed to him. The Mishnah says, correctly, that if within the thirty days someone else comes and betroths her, then she is betrothed to the second man; but the subtext is clearly that if no second man came and betrothed her, then of course the betrothal takes effect in thirty days. Now that itself is a very non-simple law. We rule that if a person performed an act of acquisition and wants merely to delay the legal effect—say, by thirty days, or by seven days, or however long—that does not work. It does not take effect, because his acquisition has expired. It cannot work. So if that is so, then it turns out that the law written in the Mishnah is trivial. If he betroths a woman for after thirty days, it simply does not work. So she is just unmarried, and if someone else comes and betroths her, obviously she is the second man’s wife—not because… not because the first man’s betrothal is still lacking time, but because there is no betrothal by the first man. It is invalid; there is nothing. Even if nobody else comes, after thirty days she will not be betrothed to the first man, because there is nothing there. Once you delayed the legal effect—no. The act of acquisition and its result are not happening at the same time. The result cannot happen without a cause. Out of nothing. And therefore, basically, this is not betrothal at all. But then to say that if a second man came and betrothed her, she is betrothed to the second man—that is trivial. So it is quite clear that this is not what the Mishnah means. The Mishnah means that the first man’s betrothal is in fact valid. And if nothing happens in between, then after thirty days she will be the first man’s wife. True, during those thirty days she is not yet his wife, and therefore if a second man comes and betroths her, she is betrothed to the second man. But that is not because there is no betrothal at all by the first man. There is betrothal by the first man; it is just that meanwhile she is unmarried. But if nobody comes in the middle, then after thirty days she will become the first man’s wife. And that is very difficult. It is very difficult because the rule in Jewish law is that once his acquisition has expired, it is of no use. Meaning, if the act of acquisition is over, then nothing can happen. The source for these matters—the one who formulates it clearly—is the Ran in tractate Nedarim on 28b. It is here before you. He says as follows; the context, the first section is less important for our purposes. “And since this is so,” he wrote of blessed memory—and I’m now reading from the highlighted section, in the name of the Rashba—“from this we learn for monetary law, that one who says to his fellow: ‘Go, take possession and acquire this field,’ or ‘it shall be given to you from now until I go up to Jerusalem,’ and then he went back and acquired it from him before he went up to Jerusalem, the recipient returns and acquires it. For this is what he said to him: ‘It shall be yours forever until I go up to Jerusalem.’ And from now and for that future time in which he will acquire it from him, he gave it to him.” What is he saying? I sold a field to my fellow for after thirty days. Fine? Now if I bought the field back from him—fine?—and now I went up to Jerusalem. It is like “from now and after thirty days.” “From now and until I go up to Jerusalem,” fine? And now I went up to Jerusalem. If, say, I am Reuven and I sold the field to Shimon “from now and after I go up to Jerusalem.” Fine? Then it is supposed to take effect. Fine? Now in the middle I bought it back from him. Because “from now and after thirty days” is basically an acquisition that develops; it starts now. Okay? I bought it back from him. I want to make use of this, as we saw with the slave there in Bava Batra. Okay? What happens now when I go up to Jerusalem? Does the field become Shimon’s—the buyer’s—or, once I bought it back from him, was the whole transaction over? So he says yes, he acquires it. It belongs to Shimon again, yes—to the buyer. Fine? Exactly. The Ran continues: “However, this is specifically where he said to him, ‘from now.’ But if he did not say to him, ‘from now,’ he does not acquire. For since his acquisition is by taking possession, and this possession that he takes now has already expired after he reacquired it from him, it is like: ‘Pull this cow, but it shall not become yours until after thirty days’—since it is not in his domain after thirty days, he does not acquire. Here too, since that second acquisition does not take effect from now, but only after he returns and reacquires it from him, and at that moment this act of possession has already expired, it is impossible for him to acquire.” Meaning, if he did not say “from now” and then bought it back from him, then the buyer will not acquire it back. When I go up to Jerusalem, he will not acquire the field; the field will remain mine. If I said “from now,” the field becomes yours. If I did not say “from now,” then no. Why? Because his acquisition has expired. What does that mean? He did an act of acquisition now by taking possession. Say I am Reuven and I sell the field to Shimon for after I go up to Jerusalem. Shimon now performed an act of possession, like the act of betrothal we saw in our passage. He does the act now. Then after a week, I bought it back from him. Several weeks pass, I go up to Jerusalem. The question is whether Shimon acquired it. By virtue of the possession he did at the beginning, the question is whether he acquired the land. The Ran says: it depends whether I said “from now.” If I said “from now,” then he acquired it. If I did not say “from now,” then he did not acquire it. Why? If I did not say “from now,” then the meaning is that an act of acquisition was performed right now, an act of possession. The act was done—I mean, Shimon did it—an act of possession that acquires the land, but the acquisition did not take effect, because I bought it back from him in the middle, right? And now he wants to acquire it again. Impossible—his acquisition has expired. The act of possession is over, and there is nothing. Why does it work if he says “from now”? Because the acquisition already began to take effect at the time the act was done. True, it was not yet completed until I went up to Jerusalem, but it began to take effect. So here in the middle, if I bought it back from him, that does not uproot what had meanwhile taken effect; it only stops it. Once it returns to him, it will be completed and it will become his again. Meaning, we see here, says the Ran, that an act of acquisition must produce some result immediately. There cannot be a situation where the act has expired and the result has not yet come about, but will come about later. There’s no such thing. His acquisition has expired; the act is over; you cannot produce a result in a time gap after the act. That is basically the claim. As I said earlier, this means—yes, he says it here too, for example—if I acquired an animal by pulling it and I say, “It shall become yours after thirty days,” that does not help. He does not acquire it. There was no acquisition in the middle, nobody else acquired it, I did not buy it back from you, nothing. I simply sold you an animal, you pulled it, and it is to become yours after thirty days.

[Speaker B] Why not? He derives

[Rabbi Michael Abraham] that from the Talmud in Nedarim. It’s not an assumption; it’s a conclusion that emerges from the Talmud in Nedarim. I’m not getting into the details right now because it’s a complicated passage, the passage there about Bar Pada and intrinsic sanctity. So the Ran’s claim is that if I sell you an animal for after thirty days, there’s no such thing. Either I sell it now, immediately when you performed the act of pulling, or perform the act of pulling in thirty days. You cannot perform the act of pulling now and have the acquisition take effect in thirty days. Therefore, in this case of the field, if you perform an act of possession—even without my having bought it back from you—if you perform an act of possession now on the field and you want to become the owner of it in thirty days when I go up to Jerusalem, it won’t help. Only if I tell you “from now.” The fact that I bought it back from you in the middle is not really important; it is important only with regard to “from now.” If I said “from now,” then even if I bought it back from you, it still takes effect. That is the novelty. But if I did not say “from now,” then it really does not matter whether I bought it back from you or not; it does not take effect. All right? That is the Ran’s claim. What does that mean, basically, in the language I was using earlier in our passage? It means that when I perform an act of acquisition, the legal effect is created now. The legal status of ownership of the field or of the animal, or the acquisition in betrothal of the woman. The halakhic legal result must be created immediately with the performance of the act. But if I did not say “from now,” and instead I said “after thirty days,” then a legal status of ownership is created—say I sold you an animal, you pulled it, but the acquisition is only after thirty days—so a legal status of ownership is created, but it cannot take effect because we said it is only after thirty days, so it simply dissipates. That’s it. Nothing will happen after thirty days. If I said “from now,” then a legal status of ownership is created, it hovers there and gradually lands on the object at the end of the thirty days or when I go up to Jerusalem; then it is completed and it lands. But the legal effect is created immediately with the performance of the act. At most, it can continue to hover or land partially and gradually until it fully takes effect on the object, but the creation of the legal effect must be immediate with the performance of the act. Okay, so that is essentially the claim. Now, in order for the legal effect that was created not to take hold directly on the object, something has to stop it. Because otherwise, why can’t I sell you the animal, you pull it, a legal effect is created that floats in the air, and after thirty days it lands on the animal and the animal becomes yours? Why does the Ran say that is impossible? Because the moment the legal effect is created, one way or the other—if it is here, and there is nothing preventing it—then it will land on the… then the acquisition should take effect now. Unless there is something that prevents it. Exactly. Another man’s betrothal, in our case, is what prevents it. That is why I brought Nachmanides. In the case where he says “from now,” then the mechanism of “from now” prevents it, because what are you doing when you say “from now”? You are basically saying “from now and after thirty days.” You are basically saying: create the legal effect now, but I want it not to take final effect until after thirty days. Exactly. You create what we might call a suppressing force—Rabbi Shlomo Fisher calls it that in his article—some kind of force that holds this legal effect up there, and after thirty days that force disappears and the legal effect lands and everything is fine. But there has to be—there has to be continuity. Meaning, when you performed the act, the legal effect has to be created immediately, and if you want it not to take effect immediately, you also have to create something that will hold it up, that will stop it. It’s really a mechanical mechanism. Words alone won’t do anything here. You have to create a mechanism that produces the legal effect, stops it from landing, causes it to land at some point. If you didn’t do that, nothing happened. If the act does not apply the legal effect, or if there is a legal effect but nothing stopping it and yet it cannot take effect, then the legal effect is not created. So there is nothing. The act was done in vain. The act is no longer in the world, and that is what is called “his acquisition has expired.” In the book Beit Yishai, siman 35, by Rabbi Shlomo Fisher—he has sermons and also the book Chiddushim on the Talmud—so in the Chiddushim on the Talmud, siman 35, he discusses the laws of conditions there. And there he really defines it in exactly this way. He also mentions the expression “his acquisition has expired.” He says that when I make a condition, then I am basically saying to the woman, “Behold, you are betrothed to me on condition that you give me two hundred zuz.” Okay? Or when one divorces a woman, it doesn’t matter, “on condition that you give me two hundred zuz.” The mechanism of a condition—after all, the mechanism of conditions is basically a Torah novelty derived from the condition of the tribes of Gad and Reuven. If you did not do this—maybe I’ll add one more introduction. In the laws of conditions there are all sorts of rules: the affirmative before the negative, the condition before the act, a double condition, all sorts of laws of conditions. This is literally what is written in the Torah: that it must be in his power to fulfill it, and all sorts of things, that it must be applicable to agency. In the Talmud in Ketubot 75a, the Talmud discusses someone who betroths a woman on condition that she has no claim against him regarding food, clothing, and marital relations. So there is a dispute there between Rabbi Meir and Rabbi Yehuda, because this is making a condition against what is written in the Torah. And there is a dispute between Rabbi Meir and Rabbi Yehuda about making a condition against what is written in the Torah in monetary matters. According to Rabbi Yehuda, his condition is valid; one may make a condition against what is written in the Torah in monetary matters. According to Rabbi Meir, his condition is void. Now, according to Rabbi Meir, what happens if the condition is void? Or according to Rabbi Yehuda, say, in a condition that is not a monetary condition but a condition against what is written in the Torah in a non-monetary matter, where one cannot make a condition against what is written in the Torah—then Rabbi Yehuda too would agree that the condition is void. What does it mean that the condition is void? So the Talmud says—in other places it says—the condition is void, but the act remains valid. Meaning, not that the woman is not betrothed and it is worthless. No—the woman is betrothed with no condition whatsoever; there is no qualification to the betrothal. Tosafot asks about this—this is a famous Tosafot—how can that be? After all, he did not intend to betroth her if she would have against him obligations of food, clothing, and marital relations. How can you force upon him a betrothal that he does not want? After all, with that in mind he did not betroth her. He does not want this. Okay? So the Ri there in Tosafot argues that basically the mechanism of a condition says: I betroth you in any case, from now. It’s just that if the condition is not fulfilled, I want it to be uprooted. Because you cannot betroth in any other way. In other words, you cannot betroth in a qualified way. You can betroth her entirely and unconditionally, and say that if the condition is not fulfilled, I want it uprooted. But you cannot betroth the woman on one assumption and not betroth her on another assumption. There’s no such thing; it isn’t well defined. So in order for a person to be able to stipulate conditions, the Torah introduced a novelty: you can impose a legal effect fully and then stipulate that it will be revoked if the condition is not fulfilled. But that depends on your having stipulated according to the legal rules of conditions. If you did not stipulate according to the legal rules of conditions, then you did not manage to create the mechanism that would uproot the legal effect, and the result is that it takes full effect with no qualification. Therefore, if you make a condition against what is written in the Torah, which is a condition one cannot make, then you applied the legal effect fully and you want the condition to uproot the legal effect—but a condition that was not stipulated according to law has no power to uproot the legal effect. Speech does not come and nullify an act. And therefore, since the act took place, the legal effect takes hold without any qualification at all. Rabbi Shlomo Fisher tries to explain it like this. He says: when you want to betroth the woman with a condition involving thirty more days—not a time delay of thirty days, but a condition, though the condition will be fulfilled, say, if you give me two hundred zuz within the coming thirty days, because delaying by time is not necessarily a condition at all; that we will still need to discuss. And you betroth a woman on condition that she will give. Then after all, the moment you betroth the woman, how can it be that the betrothal does not take effect immediately? His acquisition has expired. The legal status of betrothal must take effect immediately when you do it conditionally. And the condition deals with the destructive force. Meaning, the condition is what determines whether I allow the legal effect to land on the woman or do not allow it to land on the woman, depending on whether the condition is or is not fulfilled. And the formulation of the conditions according to the laws of conditions basically serves to create that destructive force. Meaning, that is why you have to stipulate according to the Torah’s rules, because without that you will not succeed in creating the destructive force. Okay? And therefore, basically, he says that the whole idea of conditions feeds off the law of “his acquisition has expired.” You have to make a condition; otherwise it is simple logic—why do you need the condition of Gad and Reuven? Why do you need special novelties? In every legal system in the world a person stipulates conditions, and you can make conditions about anything you do. So why are special novelties needed here? Why do we have to learn it from the condition of the tribes of Gad and Reuven? The claim of the Ri, and what Rabbi Shlomo Fisher explains, is no—it is not simple logic. Because from the Torah’s standpoint, from the Torah’s standpoint, the principle is that if you performed an act, the act must take effect, period. No qualifications, nothing. You cannot uproot it; speech does not come and nullify an act. It is a sort of mechanism. Obviously when you intend something, you want the betrothal this way and not that way. But the question is how that can be implemented. On the mechanical level, Jewish law does not allow such a thing to be implemented even if you do or do not want it. Because from the standpoint of Jewish law, we are dealing here with a kind of reality. There is a reality here of betrothal. If you want to uproot that reality, something has to do the job. And if his acquisition has expired, then it’s over, she is already your wife. No, it depends on nothing. If you want something to uproot the betrothal, you have to create it at the time of the statement. When you betroth the woman or divorce her, together with the creation of the legal effect of betrothal, you need to create something additional, which is a mechanism for uprooting or applying the legal effect. And there he describes the destructive force and all these funny expressions about a legal effect floating in the air. That’s how he describes it. The legal effect is floating in the air and there is something stopping it from landing. The moment you pull away that something, the legal effect lands and then the woman is betrothed. If you don’t pull it away, then the legal effect dissipates, and that’s it, and nothing happened. But the underlying idea is that there cannot be a time gap between the act you perform and the result—unless there is something that connects them, or a mechanism you created already at the beginning. Meaning, the linkage is continuously maintained. There is no vacuum in which nothing happens and then afterward something suddenly grows out of nothing. It is a bit similar—and I won’t really have time to get into this now, maybe we’ll get to it later—it is a bit like physics. For example, there is the law of gravitation. Every two masses attract one another with some force, right? The product of the masses divided by the square of the distance. Now physicists assume as something obvious that there is no such thing as action at a distance. Meaning, masses cannot pull one another from afar. If this mass exerts force on that mass, that means something passes between them. It cannot be that they are far apart and affect one another from a distance. Something has to pass between them. And therefore the claim is that there are gravitational waves. Meaning, there are some sort of waves—and no one had measured them yet, because these are very weak phenomena and we still did not have instrumentation sufficient to measure them. Gravitons and all sorts of things like that. But the assumption of all physicists is that there is such a thing. They build devices at costs of billions and billions in order to try to measure these gravitational waves, and you don’t invest in something unless you are sure it is there, or there is a high chance that it is there. Meaning, there is some very strong underlying assumption here all the time, and these were major difficulties for Newton: how can it be that two distant bodies attract one another? That is action at a distance. And the solution was: no, there is a wave that carries this force. In the electromagnetic wave, for example, we know this: light. Light is basically what carries the electromagnetic force from here to there. But with gravitational waves there isn’t something familiar to us, yet the claim is that there too there is something of that kind. And there is no action at a distance. Meaning, if a body here exerts force, that doesn’t mean something will cause that body to move. In order for it to cause that one to move, something has to transfer that force from here to there and pull it toward it. Something has to pass from here, bridge this action. If there is a distance between them, there cannot be action unless something passes through that interval of distance and transfers the action back and forth. That is basically what I’m claiming here too. Here the gap—exactly—the gap here is not a gap in space, as we said earlier, but a gap in time. Meaning, I performed an act now, now there is silence, and then after thirty days suddenly it takes effect. There is no such thing. If the source of the force that performs the act was now, then what happens until thirty days later? If nothing happens, then it’s over—his acquisition has expired. It’s action at a distance, but here the distance is on the time axis, not the spatial axis. But still, it cannot be that the cause is here and the result occurs later in time and there is no process in between transmitting the process from the cause to the result. Because the rule, according to the principle of causality for example, is that if there is a cause that exists now and the rule is that this cause leads to a certain result, then the result should occur. How can there have been a cause and the result did not occur, on the one hand? And on the other hand, how can a result suddenly occur over there when the cause is not there? Meaning, there is a double problem here. If the betrothal is the factor that causes the legal effect to apply to the woman, then there are two problems here. First, there was a cause here and the result did not happen at the beginning—that cannot be. If there was a cause and that is its result, then the result must happen. And second, how does the result happen thirty days later if there is no cause producing it? Meaning, the problem is both at the beginning of the process and at the end of the process, but those are two sides of the same problem. There has to be a connection between the beginning of the process and its end. And what lies behind this—and I’ll speak about this next time—what lies behind this is some conception that basically we are dealing here with a kind of physics. If you are speaking about legal definitions, then with a legal definition you can define whatever you want. Why should I care if I define that I perform the act now and after thirty days the result occurs? I have no problem with that. You understand that this is some kind of reality. Now, in reality, if there was a cause, then in reality the result must occur; or the result cannot occur without a cause. Legally, with legal definitions, you can define whatever you want—define that now there was… Therefore I think that behind this there sits some conception that halakhic legal effects are some kind of reality. And that reality is subject to the rules of mechanics. Meaning, if there was a cause that created it, then the result has to be created. If you want a result to be created, there has to be a cause creating it; it will not be created without a cause creating it. And the connection between cause and result has to be simultaneous. Meaning, at the same time. When the cause is there, automatically the result must be there. If the result occurred, then there must have been at that same moment a cause producing it. And therefore this gap of “his acquisition has expired” cannot arise. I’ll talk about that next time, and then we’ll come back and see why this explains the whole Ran and our passage and all these issues. Okay.