Kiddushin, Chapter 2, 5783, Lesson 8

[Rabbi Michael Abraham] We’re basically now beginning the Talmud’s discussion of the sources for the law of agency. Until now we saw in the Mishnah the laws of the husband’s agency and the woman’s agency and an agent who appoints another agent, and in the first part of the Talmud, aside from the introductory classes, in the first part of the Talmud, the principle that a commandment is better done personally than through an agent. And we talked about the fact that “a commandment is better done personally than through an agent” doesn’t specifically speak about agency, but about doing commandments through someone else, whether that’s done through agency or not, like in preparations for the Sabbath, charring the head and kindling the fire, which are things that plainly are not done through an agent—it’s some kind of monkey-work—but still there is value in a person doing it himself and not through someone else. In the next stage of the discussion, the Talmud speaks about agency—that is, the sources for the law of agency. And that begins the discussion of agency that continues here for several pages. So I want to touch on the sources for the law of agency that appear here one after another: there’s divorce, and after that betrothal, and after that terumah, and misuse of consecrated property, and slaughtering the Passover offering, and all kinds of things of that sort. Each one raises some specific aspect, but before we get into the specific aspects of each of the sources, today I want to deal with some kind of overview of the general structure, the general structure of the discussion. Basically, at the beginning the Talmud asks: From where do we know agency? How do we know there is such a thing at all as the law of agency? And then it brings the source from divorce. Now the source from divorce is really talking about agency in divorce, right? Now in the Mishnah we’re talking about betrothal. The question is why a source for agency in divorce counts as an answer to the question of how we know agency in betrothal. So we’ll get to that in a moment, but first just a few comments on the divorce verses. The verses say this: “When a man takes a woman and marries her, and it shall be if she does not find favor in his eyes because he has found in her some indecency, then he shall write for her a bill of severance, and place it in her hand, and send her from his house. And she shall leave his house and go and become another man’s wife.” This verse—“and he shall write for her a bill of severance, and place it in her hand, and send her from his house”—is the most interpreted verse in the Torah. I mean, every word here is whole discussions, mainly in tractate Gittin but not only there, every word. “And he shall write for her a bill of severance, and place…” every single word in this verse is mountains of discussions. Really, I think this is the most densely packed verse in the Torah in terms of derivations. More than “In the beginning God created”? “In the beginning God created”—what do you have there? I’m talking about halakhic derivation. Aggadic midrash is endless; everyone says whatever occurs to him. I’m not dealing with aggadic midrash. Aggadic midrash is homiletics. I’m talking about halakhic midrash. “And she shall leave his house and go and become another man’s wife”—the first husband divorces her, and then she marries someone else. “And the latter man hates her and writes for her a bill of severance, and places it in her hand, and sends her from his house”—the second one divorces her. “Or if the latter man who took her as his wife dies”—and that too is basically some kind of divorce. So we see also in the first verse that she is divorced from her first husband—this is her divorce from the first husband—so it says: “and he writes for her a bill of severance, and places it in her hand, and sends her from his house.” And the same thing also in the divorce from the second man: “and he writes for her a bill of severance, and places it in her hand, and sends her from his house.” Why do we need the double wording in the verse—writing a bill of severance and sending her from his house? So in light of what we talked about in the introductory classes, it seems to me the simple explanation is that there is a difference between writing a bill of severance and sending her from his house. Many times it’s done together, but in principle, even when you give a woman a get, that get performs two different acts. One act is to unravel the marital bond, meaning to dismantle the home that was created here, and the second act is legal—to sever the legal bond between the husband and his wife. We talked about the fact that on the way in, when building the home, there is kiddushin, which is the halakhic-legal act, and after that there is the chuppah, or really the beginning of life together, which is what creates the marriage—that was true even before the giving of the Torah; in that sense it didn’t change. On the way out, usually it happens in one blow. You give a get, and the get does both jobs: it both dismantles the home and severs the legal bond. But we saw that there are all kinds of intermediate situations. “From the time he set his mind to divorce her, he no longer has rights to the produce,” says the Talmud on page 17 in Gittin. Or he may not have relations with her—she is divorced in his heart—or all kinds of things. Rashbam and the Rosh comment there; Rashbam says that he does not inherit from her and does not become impure for her, and those are already Torah-level laws. So we talked about it—there are all kinds of implications to the fact that from the time the husband sets his mind to divorce her, the home has broken apart. They no longer live together. And the commandment in divorce—we talked about the fact that Sefer HaChinukh says there is a commandment involved in divorce, even though apparently it’s just procedure—but the commandment in divorce is also to release the legal bond, so that there not remain a situation where you no longer have a home but the woman is still chained by the legal bond, as we know from the phenomenon of women refused a get. In the phenomenon of women refused a get, the husband is really transgressing the commandment of divorce; he is neglecting the positive commandment of divorce, because once the home has broken apart, they’re no longer living together and that is basically what’s called “divorced in his heart,” then you already have to free her. You also have to sever the legal bond of kiddushin. And therefore, we saw that sending the woman from his house is the divorce of before the giving of the Torah. Divorce before the giving of the Torah—just as before the giving of the Torah a man would bring her into his house and that was marriage, sending her from his house was the divorce. Now the Torah, when it was given, added another layer, another legal tier: kiddushin on the way in, a bill of severance on the way out, in the dissolution. Okay? And I think that’s the simple explanation of the double wording here. “He writes for her a bill of severance and places it in her hand” is the severing of the legal bond, and “sends her from his house” is the dismantling of the home. Okay? That’s exactly this double wording, and it appears both in the first verse and in the second verse. Why are there the two verses? On the plain level, that’s not difficult—why are there two verses? Because that’s what the topic is: there’s a first husband and a second husband, so you need to describe twice that the woman is divorced. Okay? But the duplication within each of the verses—writing a bill of severance and sending her from his house—that is the duplication I’m talking about. In Malbim here on the spot I found that he addressed these things, and “sends her from his house,” says Malbim, is superfluous, because from the fact that it says “and he writes for her a bill of severance” and so on, we infer that the connection between them has been nullified, because afterward it says “and she became another man’s wife.” Meaning, “sends her from his house” is superfluous—why? Because if he writes her a bill of severance, the bond between them has been cancelled; now she can go marry another man, so why do we need “and sends her from his house”? So he says: rather, it comes for interpretation—it comes to derive that even if he gave her a bill of severance, he must also send her from his house. Now I’ll stop here for a second. Up to this point, it could be understood exactly as I said before, right? Meaning, aside from severing the legal bond, you also need to dismantle the home—or really the reverse; usually it’s the reverse. If you dismantle the home, you also have to sever the legal bond; meaning, you have to disconnect completely. That’s what’s called severance, that there should be complete severance. But Malbim adds—and it seems he did not mean what I’m saying—he says: and that means that he gives her the document as an act of divorce. Malbim understands that “and sends her from his house” means that when you give her the bill of severance, the get, you need to say to her, “This is your get,” or “I am divorcing you with this get,” and that is called “and sends her from his house”; you need to explain or state the significance of giving the get. Now the way I said it before, that’s not so. What I said before is that these are really two different acts. One is giving the get, including the verbal statement—that is “and he writes for her a bill of severance and places it in her hand”—and the second is “and sends her from his house,” which is simply dismantling the home. Okay? But this precision in the verse, that there really is a duplication here that requires explanation, is already found in Malbim. Now the verse itself, when we say that from this verse they derive the law of agency, because it says “and he writes for her a bill of severance and places it in her hand and sends her from his house.” And from “sends her from his house” they derive the law of agency. But of course “sends her from his house,” in the simple reading of the verse, is not talking about an agent at all. The husband sends the woman from his house. That has nothing to do with sending the get to her by an agent. And “veshilchah” has the dot in the final letter—yes, you see? There’s a dot in the final heh. You see? “Veshilchah.” He is sending her away, not sending an agent with the get to her. Okay? So therefore, on the face of it, from the verses themselves it’s not clear why this is connected at all to the concept of agency. On the contrary, in a certain sense it’s even the opposite, because it’s really saying that he writes for her a bill of severance and places it in her hand—apparently he himself—and thereby sends her from his house, specifically not by means of an agent. And the Talmud interprets this as agency, and we’ll see that in a moment. It could be—I may as well say it already here—it could be that, continuing what I said before, since after all we’re talking about a case where he has already decided to divorce her and he writes her a bill of severance, and we saw that from the time he writes the get, from the time of writing, he no longer has rights to the produce of her property. Meaning, she is considered divorced from the moment he wrote the get, not from when he gave it. Why? Because that’s called that he set his mind to divorce her. Meaning, from that stage she is divorced in his heart. Now if that’s so, then why do we need “and sends her from his house”? She is already in effect sent away. Why do we need to write again “and sends her from his house”? On the contrary, this dismantling of the home—I said that “and sends her from his house” is the dismantling of the home—the dismantling of the home is from the moment he already writes the get. Why do we need to write again “and sends her from his house”? It could be—what?

[Speaker C] He can tear up the get and not give it.

[Rabbi Michael Abraham] It doesn’t matter. Even if he doesn’t give her the get, once he writes the get, she is already divorced in his heart.

[Speaker C] Until he finishes the get.

[Rabbi Michael Abraham] She’s divorced in his heart and he still hasn’t divorced her.

[Speaker C] She is divorced—

[Rabbi Michael Abraham] —in his heart, except that she isn’t permitted to the world, because the legal bond hasn’t been severed. But the home between them has been dismantled. Therefore, for example, all the consequences: he does not become impure for her, does not inherit from her, he has no rights to the produce of her melog property, and all kinds of things of that sort. I talked about this in one of the previous classes. All those consequences exist from the moment he wrote the get.

[Speaker C] Maybe it’s something physical? Not necessarily just a mental thing.

[Rabbi Michael Abraham] Literally to send her from the house—that it’s forbidden—

[Speaker C] To sleep, let’s say, in the house, things like that.

[Rabbi Michael Abraham] To actualize this dismantling of the home, to actualize it? Maybe. That’s what I thought at first. But it could be that the reason the Talmud interprets “and sends her” with respect to agency is because of this duplication. Not because of the duplication between “and he writes for her a bill of severance and places it in her hand” and “and sends her from his house,” but because once he writes the bill of severance, she is already divorced in his heart, so what is “and sends her from his house”? “And sends her from his house” is the dismantling of the home. Rather, the Talmud must be saying—this is a derivation, of course—that it’s talking about appointing an agent to deliver the get. Agency in the ordinary sense, which is not the plain meaning of the verse, and that’s what the Talmud is discussing. But maybe it’s because of this extra wording. Fine, we’ll still get to it in a moment.

[Speaker B] There’s that discussion about priests who had to write the get line by line? A folded get, yes. They say the reason they do that is to delay the writing so he’ll be able to reconsider. Right. Meaning that even while a person is writing the get, they still expect him to be able to cancel that intention.

[Rabbi Michael Abraham] No. Again, if he tore up the get by itself, the situation I was asked about earlier hasn’t changed at all. Even if he didn’t finish it? No, even if he did finish it. If he tore up the get and then changed his mind and they decided to go back to living together, there’s no problem at all; they are married in every respect. I’m only saying that once he wrote the get on the way toward divorce, even if he tears up the get afterward, as long as he hasn’t changed his mind internally, right—if he tore up the get afterward, she is still divorced in his heart. From the moment of writing the get. Writing the get is the practical expression of the internal decision to dismantle the home. It’s a decision—you know, a person can think all kinds of thoughts; you can’t hang legal consequences on such thoughts. You want to hang legal consequences on some act, so there will be a sharp line for knowing from when this takes effect. And writing the get is that sharp line. Therefore from that point on it doesn’t matter whether he tore it up or didn’t tear it up. If he changes his mind and doesn’t want to divorce her, that’s a different discussion, then obviously it goes back. Okay, so I want to get to the Talmud itself. The Talmud begins: From where do we know agency? Right? Now the wording of the Talmud requires explanation, because the question is whether the Talmud is looking here for a source for the law of agency in betrothal, which is the subject of the Mishnah, right? Or whether it is looking for a source for the law of agency in general. Now from the answers it seems, apparently, that the Talmud is looking for a source for the law of agency in general. Because the first source they immediately bring is the source from divorce, not from betrothal. More than that: after bringing this source, the Talmud does not immediately say that we’ll derive from here to betrothal, but rather presents it as a question. Look here at the opening of the Talmud. The Talmud says: From where do we know agency? Let’s look at it as a whole. From where do we know agency? How do we know the concept of agency? As it was taught in a baraita: “And he shall send” teaches that he appoints an agent, “and she shall send” teaches that she appoints an agent, “and he shall send” and “and she shall send” teach that an agent appoints an agent. We’ll get into that, but first from a bird’s-eye view, “and he shall send” is from the verses we just read. So that is really talking about agency in divorce, if at all. We talked about why that is agency at all, but if so, then it is talking about agency in divorce, and that is the answer. Now the Talmud asks: We have found it for divorce; where do we know it for betrothal? If the original question was from where do we know agency in betrothal, then the wording of the Talmud isn’t right, doesn’t fit. Because the Talmud should have seen this source as a source for agency in betrothal, and then not bring a source for agency in divorce and ask: wait, wait, we found it in divorce—who says that about betrothal? And by the way, that is a question, not an objection. Plainly, this means it’s a question. It says: okay, we found agency in divorce, I understand. Now where do I know betrothal from? A different question. Why don’t you start directly with betrothal? Wait, that’s already the answer. But I’m saying, in terms of the wording and structure of the Talmud, if the question had been from where do we know agency in betrothal, I would have expected one more phrase: we found it in divorce, and from divorce we derive it to betrothal. Not: we found it in divorce—good, now the question is where do we know it for betrothal? Another question. Then the Talmud says that this is derived from divorce. Everything in a calm tone, so it’s not an objection, it’s a question. At least that’s how it seems; I think it’s more correct to read it with that intonation, more correct to read the Talmud that way. And then it basically means that we are talking here about the concept of agency generally, not agency in betrothal. Then there’s no problem: so we found agency in divorce, but the Talmud says: fine, the fact that you found it in divorce does not give you a general source, because for example, betrothal—who says it comes from there? So they say. And after that the Talmud continues—look—“it juxtaposes becoming to leaving,” right? “And she shall leave and become,” the verse says “and she shall leave and become,” it juxtaposes becoming to leaving: just as leaving can be done through an agent, so too becoming can be done through an agent. But then, this that we learned in the Mishnah, “One who says to his agent, go and separate terumah”—that is agency in terumah, right? If he reduced by ten or added by ten, his terumah is valid—where do we know that from? What does “where do we know that from” mean? Where do we know that one may appoint an agent for terumah? How is that related to betrothal? Fine, we learned betrothal from divorce, everything is fine, move on. That belongs in tractate Terumot, not in tractate Kiddushin.

[Speaker B] Why “where do we know it” for terumah?

[Rabbi Michael Abraham] Then let it come from that. Perhaps divorce—and as for divorce, what is special there is that it can be against her will, and so on. A group that slaughtered its Passover offering—the offering of the Passover sacrifice, designating the Passover sacrifice, joining the Passover offering—all kinds of things like that. What does all this have to do with betrothal? For betrothal we already have the source; we solved the problem, that’s it. We derive it from “and she shall leave and become” from divorce. The whole flow of the Talmud seems to show that the Talmud here is dealing with the source for the law of agency in general, not the source for the law of agency in betrothal. The Mishnah about agency in betrothal is the trigger that raises the discussion, but the discussion is about agency in general, not about agency in betrothal. And therefore the Talmud really says: okay, let’s see generally where we know the concept of agency from. I have a source from divorce. Divorce is nice, but divorce can be against her will, there are all kinds of objections—how do you know it for betrothal, how do you know it for terumah, how do you know it in all kinds of other places? So betrothal is learned from “and she shall leave and become.” Fine, so we learn from “and she shall leave and become”—and terumah, where do you know it from? Little by little the puzzle is completed, and the question from the outset apparently was not about agency in betrothal; it was about agency in general. Unless one can be learned from the other, because the Talmud later also explains why multiple sources are needed, and that each one has a special characteristic; without that, you wouldn’t need it. Now true, we always know it’s like this. The verse says: “you also”—to include the agent. So agency in terumah is learned from that source. Okay. And you can’t learn divorce and betrothal from terumah; the Talmud gives reasons why both are needed. Now in terumah, with an agent for terumah, “so shall you also set apart,” from that they also derive other things. Just as you are members of the covenant, so too your agent must be a member of the covenant. An agent cannot be a non-Jew. A non-Jew cannot be an agent.

[Speaker D] He can be an agent to return money, but not in matters he has no connection to.

[Rabbi Michael Abraham] No, no, that’s not simple. We’ll still see that. Plainly, a non-Jew can’t be an agent at all. The question is whether the fact that a non-Jew can’t be an agent is because he is not within the framework of the matter, or whether “not within the framework” is a different disqualification. A non-Jew has an essential disqualification, regardless of the question of for what matter. Simply because there is no mutual covenantal responsibility between me and a non-Jew, so he can’t represent me—not because the topic itself doesn’t apply to a non-Jew. We’ll still get to that, we’ll still discuss it. But for now I’m saying: suppose we exclude a non-Jew from agency—maybe that’s only from agency in terumah? After all, it comes from the verse “so shall you also set apart,” “just as you are members of the covenant, so too your agents must be members of the covenant.” Can a non-Jew be an agent for divorce and betrothal? Why? Wait, that goes exactly back to the previous question. We excluded him from agency for terumah. Now, if each source defines a different kind of agency and a general concept of agency does not emerge from the collection of sources, then every derivation we produce in one context is not necessarily transferable to other places. Just as we see here that there are objections between terumah and gittin and betrothal, so the very law of agency can’t be learned from there. Then the disqualification of a non-Jew for agency also can’t be learned from there. But if we understand that after we finish all the objections, in the end there is one concept of agency, then wherever we learn, for example, that a non-Jew cannot be an agent, we are learning some law within agency—so perhaps that will apply to the whole system? Then in all areas, basically, a non-Jew would not be able to be an agent, even though it is learned from the verse about terumah. Now true, going back to your earlier comment, it could be that although really each concept, each context of agency is a separate kind of agency on its own—agency in terumah is one law, agency in betrothal is another, agency in divorce is yet another, and so on—and what we learned from “so shall you also set apart,” that a non-Jew cannot be an agent, is only with regard to terumah, but not to gittin and betrothal. Therefore, in principle, a non-Jew could have been an agent for gittin and betrothal, but there is another principle in the laws of agency: someone who is not within the framework of the matter cannot serve as an agent. Therefore a slave, for example, cannot be an agent for betrothal, because he is not within the framework of betrothal. A Canaanite slave. There is no kiddushin. A slave is not within the framework of betrothal, and therefore he cannot be an agent for betrothal. Now I said before—the Talmud, the medieval authorities already talk about this—what about a non-Jew in betrothal? The Talmud talks about a slave. What about a non-Jew? For a non-Jew, of course, it is obvious that he is not within the framework of betrothal. But the question is whether in the case of a non-Jew there is another disqualification beyond the simple fact that he is a non-Jew, and a non-Jew categorically cannot be an agent even in things that in principle do apply to him, like for example returning money or something like that. Returning money is monkey-work; maybe it doesn’t require agency at all. But the question is whether a non-Jew cannot be an agent for two reasons: first, because “just as you are members of the covenant, so too your agents must be members of the covenant”—a non-Jew cannot be an agent; and second, because he is not within the framework of the matter. And if so, then it could be that one can indeed remain with the conception that every instance of agency in every context is a different law. There is agency in terumah, agency in betrothal, agency in divorce. What we learned in terumah, that a non-Jew cannot be an agent in terumah—“just as you are members of the covenant, so too your agents must be members of the covenant”—that says nothing about gittin and betrothal. In principle a non-Jew could have been an agent. But he is not within the framework of the matter. And since he is not within the framework of the matter, he can’t be an agent there for that reason, not because he is a non-Jew. Really, from the standpoint of his being a non-Jew there’s no problem, because that is a different concept of agency; what we learned in terumah doesn’t project onto divorce and betrothal. But he is not within the framework of the matter, and so for that reason he cannot be an agent there. Bottom line: he cannot be an agent—

[Speaker B] —for betrothal and divorce. The only question is why. And that will depend on whether the concept of agency is a general concept or a collection of concepts.

[Rabbi Michael Abraham] A juxtaposition doesn’t need matching words—what is that? A verbal analogy needs matching words. A juxtaposition is proximity in the verse. “And she shall leave and become,” “and she shall leave and become”—meaning, “and she shall leave” is written next to “and become.” If the Torah puts them next to each other, we compare them. That is called a juxtaposition.

[Speaker B] You spoke about the principle that if there’s an extra word in two sources, then you learn the same thing from that extra word.

[Rabbi Michael Abraham] That’s a verbal analogy, not a juxtaposition.

[Speaker B] So why didn’t they add a word because of a verbal analogy?

[Rabbi Michael Abraham] Because there is no verbal analogy here; it’s a juxtaposition. Between “and she shall leave” and “and become,” becoming is juxtaposed to leaving. That’s a juxtaposition, not a verbal analogy.

[Speaker B] Between the source for an agent in terumah and the source for an agent in divorce, there’s no verbal analogy between them. So that means they really are different laws?

[Rabbi Michael Abraham] In the Talmud itself you see that these are different laws. The Talmud itself brings a source for the laws of terumah, brings a source for divorce, and from “and she shall leave and become” it learns from divorce to betrothal. Each one of them is a source in its own right, and afterward the Talmud explains why each source is needed—why you can’t learn this from that and that from this. That means there is a real need for each one; you can’t derive any one from the other. And the question is: after we’ve finished this whole process, do we basically have three different agents—in divorce, in betrothal, and in terumah? There are more. I mean, in each context on its own. Or not. After we’ve already learned all this and we’ve already done the “why each source is needed,” does that analysis teach us that this is really a general concept and not separate concepts in each place on its own? I’ll maybe bring an example to sharpen these points. There’s a Talmudic discussion at the beginning of tractate Bava Kamma. The Talmud talks about the four primary categories of damages, right? Ox, pit, the grazer, and fire. Now each of those primary categories has subcategories. The Talmud at the beginning of Bava Kamma brings subcategories. Subcategories of goring: butting, biting, crouching, kicking, and so on. After we have the four—the Mishnah explains why each source is needed: one is not like the other and the other is not like the one. These four primary categories that are written in the Torah each have a necessary role; one cannot be derived from the others. Now the question is: after we have all these primary categories, do we really have four different damagers, each learned from a verse in the Torah, or once the Torah brings the four damagers, does it teach us that the laws of damages do not depend on the simple features of each of the primary categories? I’ll maybe give you an example—let me show you an example. Today I’m going to talk more about general methodologies because that is the framework of the discussion, and I think it’s more important than the discussion itself. Look. There’s a drawing board here on Zoom, it doesn’t matter, I’m sharing it with you. Look, let’s say we have here… I want to derive something through the “common denominator.” Okay? I’ve got a pen here so I’ll use this like a board. This is A, this is B, whatever. Pit and fire, fine? Pit and fire actually fit—A and B. Fine, A is fire and B is pit. Fine? Now I want to derive from here to some damaging category that is their subcategory, let’s call it C. “His stone, his knife, and his burden that fell from the top of the roof and caused damage.” The Talmud on page 6 in Bava Kamma. Fine? Now I begin, and it is derived by the common denominator. From A and B we derive C. Now how is the common denominator built? Pay attention, this is an interesting logic. Right? So I begin by deriving from A. I say A has some feature X, and B also has feature X, let’s say for the sake of discussion. No—yes, let’s say for the sake of discussion. So I derive from A to B by an inductive paradigm, sometimes by an a fortiori argument if it has a more severe feature, but either an inductive paradigm or an a fortiori argument. Then I say: there is an objection here. What is the objection? It has feature Y, and C doesn’t have feature Y. Fine? So I say: B will prove it. Why? Because B has… it has feature Z, and C also has feature Z, and therefore let’s derive from B to C.

[Speaker C] Maybe you’re deriving something else though? What? If you have Z and Z and you derive something else, are you deriving Z to C or are you deriving something else?

[Rabbi Michael Abraham] No, no, no. Z is a given. B and C have feature Z. And if so, the law that exists in B will also exist in C. For example, its way is to move and cause damage. Fine? So an animal naturally moves and causes damage. And his stone, his knife, and his burden that fell from the top of the roof and caused damage also naturally move and cause damage, because they fall in a normal wind. So let’s say that’s feature Z. So I say: his stone, his knife, and his burden—that’s C. Just as with an animal, whose way is to move and cause damage, one is liable to pay for the damages it causes, so too with his stone, his knife, and his burden. Meaning, X, Y, and Z are features that are just givens of the problem. And there are laws that exist in A and in B, and I want one law—not laws, the same law—that one must pay. Now I want to know whether that law also exists in C. Okay? That’s how it’s built. So what do I say? B also can’t teach it, because here there is feature T. Fine? It’s got this Indian-like shape here. Here there is feature T, and C doesn’t have feature T. What do you do now? It’s unbelievable. It’s an Olympic leap. If you can’t derive from A and you can’t derive from B, then let’s derive from both of them. From both of them what? You can derive from both? But you can’t derive from either one of them separately, so how does the combination of the two help more than each one by itself? So pay attention to the terminology of this derivation—what is it called? The common denominator. What does “the common denominator” mean? It turns out there is another feature here, W. This feature exists here too. Okay? Then I say: there is a shared feature in A and B, and that is feature W. And I claim that the reason one must pay in A and in B is because of feature W—not because of X and Y or Z and T. Okay? And W also exists in C, and therefore in C too one should have to pay. Now at first glance that’s very strange. Why? Because who said it is because of feature W? Maybe it’s because of feature X or Z or whatever. How do you know it’s because of feature W? So here, notice, there are two possible theories. Meaning, I’m talking here about wanting to derive feature P. This is the topic of the derivation, right? That one has to pay for damage. So I know it in A and B, and I want to know whether it also exists in C. I have two possible theories. One possible theory is that feature P is generated by either Y or T. Right? Either Y or T. Then what? Then that explains to me why in A and B one has to pay, there is feature P, but in C it won’t be there. Because it doesn’t have the—wait, sorry, Y and T, yes? And in C there is neither Y nor T, so therefore he won’t have to pay. That’s one theory. In C there is the…

[Speaker C] It doesn’t have Y and it doesn’t have T.

[Rabbi Michael Abraham] So wait, then something here isn’t right. In A and in B. Right. I need to write T here. Okay? What is this? I’m embarrassed that I’m only noticing this now. Okay. W and T. Okay. So that’s one possibility. Basically, understand what a refutation means. When I tried to derive C from A, and then I say no, no—what is special about A? It has the feature W. What does that mean? That the rule that you have to pay is because of the feature W, maybe, and not because of the feature Z—and not because of the feature X, sorry. Therefore you can’t necessarily derive it to C. Meaning, right now I’m attributing the rule that one must pay to W. I say fine, okay, let’s leave it, so it’s because of W. Now let’s go to B. Because of the combination of both?

[Speaker E] Or because of the combination.

[Rabbi Michael Abraham] Of both, but in any case you can’t derive it to C. Then I say fine, let’s move to B, and then they say: refutation—what is special about B? It has T. So what does that mean? That the obligation to pay in B is because of the feature T, right? So then I say, fine, if that’s so, let’s go back to the law and derive it from both of them—the common denominator. The common denominator. What is the common denominator? It could be that the obligation to pay is because anyone who has either W or T has to pay. Therefore A and B have to pay, but C has neither W nor T, so it doesn’t have to pay. It’s clear that there’s a competing theory here, right? Either this determines P or that determines P. Right? I have two theories. Either W or T determine P, or else W determines P. Now obviously Occam’s razor says that I choose the simplest theory. A theory that attributes everything to one parameter is simpler than a theory that says either this parameter or that parameter. Therefore I prefer the second theory. That’s the idea of the common denominator.

And then what does that actually mean? Notice that this is exactly what I was talking about before. What does it mean? I have two source-cases, say divorce and terumah; marriage and divorce would be an analogy, let’s leave that. Divorce and terumah. Now I want to derive from divorce and terumah the concept of agency in cases where it isn’t written, other topics. That’s C. Okay? So I have A and B. Now I say: divorce and terumah have special properties, as shown by the fact that we make a necessity argument—that one of them can’t be derived from the other and vice versa. But after the law of agency exists both in divorce and in terumah, that means that their unique parameters—that is, W and T—are not the relevant parameters for agency. So what is? The common denominator between them. What is shared? That they involve effecting some halakhic / of Jewish law status. If so, then any effecting of halakhic / of Jewish law status can be done by means of an agent—just like with the primary categories of damages, where what is common to all the primary categories of damages is: it is your property and its guarding is your responsibility. The Mishnah says that at the beginning of tractate Bava Kamma, right? That’s actually the common feature. So anything that is your property and whose guarding is your responsibility—you are liable to pay for its damages. That’s the common denominator.

Basically what does this mean? It means that true, each of the sources has unique features, and one can’t be derived from the other. But that’s exactly what the common denominator shows. The common denominator shows that the unique features each one has are not what determine the law. Because otherwise, if the feature W were the determining one, then why does the law exist in B? It doesn’t have W. And if the feature T were the determining one, then why does it exist in A? Now true, you could say that either W or T does it. But since I assume—if I have no other necessity—that one parameter determines it, then I have ruled out W, I have ruled out T, and therefore I say apparently it’s not the unique parameters but the common denominator: anything that is your property and whose guarding is your responsibility, you have to pay. So too with agency: anything that is the effecting of a legal status that you need to perform, you can also do through an agent. That’s the common denominator.

You could have said no—terumah has to be done this way because it’s terumah. I’ll leave that for a moment; let’s return to the Talmud / Talmudic text. Yes. You could have said—here, yes—“And let the Merciful One write it regarding terumah, and let those others come and be derived from it, because one can refute that by saying: terumah is different, since it exists in thought.” Terumah can be separated mentally. Divorce documents and marriage betrothal have to be spoken. So maybe that’s why—what does “in thought” mean? That it’s easier to do; you don’t have to speak, it’s enough to think. If it’s easier to do, then I have greater control, and I can appoint an agent as well. Everything is in my hands; I’m the owner. So I can appoint an agent too. But the Talmud / Talmudic text says that with divorce documents and marriage betrothal you can do it too. Right, that’s a refutation. So now you could say: fine, maybe the concept of agency applies to terumah because it exists in thought. That’s not a general statement.

Then they go the other way: “And if you would say to derive it from those, what is special about those? They are ordinary matters as opposed to sacred offerings.” Right? Divorce documents and marriage betrothal are ordinary matters, so you can’t derive sacred matters from them. So I would say fine, then agency in divorce documents and marriage betrothal is because they are ordinary, and in terumah it’s because it exists in thought—those are our W and T. Okay? And in every place it’s because of its own special feature. But after I have all these places, let’s make a common denominator and say: wait a second, I have a variety of cases; apparently there is a simpler theory that explains what all these things have in common. And what they all have in common is that they are the effecting of a halakhic / of Jewish law status that can be done by a person—and apparently also through an agent. Not because of the special-case features. The special features disappear after the Torah already writes that there is agency here and here and here. If the Torah had not written it, I would have attributed it to the special features, and who says it exists in other contexts as well? But once the Torah wrote it in all these places, that itself is what it taught me—that it doesn’t depend on the special features, but is a general law. Likewise.

[Speaker E] So now we also won’t need both A and B, once I know that W is the feature. Right.

[Rabbi Michael Abraham] Right, absolutely. No—if you only had A or only had B, you wouldn’t know that W is the feature.

[Speaker E] Right, but afterward, once it’s already written—

[Rabbi Michael Abraham] What are you going to do, erase it from the Torah? A and B are written in the Torah.

[Speaker E] But now to clarify new things.

[Rabbi Michael Abraham] New things, then there’s no problem, obviously. New things—by the way, that’s a dispute between Rashi and the Rif; in Bava Kamma they always talk about this, the Brisker Rav. There really is a dispute among the medieval authorities (Rishonim) about how to relate to the four primary categories of damages in Bava Kamma. Do I really have to find, for every subcategory I encounter, some primary category from which I derive it—or two primary categories via the common denominator, whatever it may be? Or not: once I’ve made the generalization, and it’s all “your property and its guarding is your responsibility,” then now anything that is my property and whose guarding is my responsibility—I am liable, liable to pay. I no longer have to look now at whether it resembles a pit, resembles trampling, resembles goring, all those things, because now it has become a general law.

What then? Why are the four primary categories of damages still important, with all their properties? Because they have special laws. Tooth and foot are exempt in the public domain, for example. Now with a subcategory not written in the Torah, I know one is liable for it, but am I also liable for it in the public domain, or only in the injured party’s courtyard? There I need to see whether it resembles tooth and foot or not. But as for the basic liability: really, once it is my property and its guarding is my responsibility, I am liable. Others say no—everything has to be checked to see which primary category exactly it resembles, and there are all kinds of implications there, never mind. I’m saying that the same principle basically exists here too.

There are two ways to understand where we stand after all these sources have been brought in the passage. Do we essentially have a collection of laws of agency, each learned from a different source, and then if I now discuss agency regarding something not written in the Torah, I need to check whether it resembles one or more of the primary cases and derive it by a paradigm, an a fortiori argument, a common denominator, whatever—but derive it from the sources written in the Torah? Or not: once we’ve done the necessity arguments and everything has already been learned, now I have learned that the specific parameters that exist in each such place are not what determine the law of agency, but rather there is a general law of agency. Unless there is some special place where it can’t be applied. But in principle I already have a general law of agency, and I don’t need to discuss each context on its own. Because in fact we know that in other Talmudic passages too, and among medieval authorities (Rishonim) and later authorities (Acharonim) who discuss the laws of agency in various contexts, they don’t always come back here and ask, wait, does this resemble terumah, does this resemble—everyone assumes there is a law of agency, period. That’s obvious.

There is a law of agency in every context except for what we talked about last time—contexts like performing a commandment physically oneself: sitting in a sukkah, putting on tefillin, things like that. Because those really cannot be learned from all of these—even from the common denominator of all these cases. But any other halakhic / of Jewish law context—the simple assumption is that there is a concept of agency, and no one bothers to check: wait, does this resemble terumah, does it resemble divorce, marriage betrothal, sacred matters—what exactly does it resemble, where do we learn it from? No. It’s obvious. If there is something that has to be done halakhically, then a person’s agent is like the person himself. Even the formulation itself—“a person’s agent is like the person himself.” We have learned here a general principle. It started by derivation from one source, two, three, four—but after we made the common denominator from all of them, it ends in some general principle. Okay? And the general principle is that a person’s agent is like the person himself. That’s basically what we learn from here.

So that is regarding the meaning of the derivation when I look at the passage as a whole and I see the different sources. It’s very important to understand where we are at the end. At the end, do we have a general concept of agency learned from all these sources, and from now on we can forget the… it was a ladder we used to climb the tree. Now we can throw away the ladder; we’re already in the tree. Okay? We already have the concept of agency; we’re no longer interested in where it came from. Or not—every time we need to check whether this fits the sources, doesn’t fit the sources, how it can be derived. So that’s one point.

A second point—and this one speaks to me not about what happens after we have the sources for the law of agency, but what the situation was before. When the Talmud / Talmudic text asks, “From where do we know agency?” suppose we had not found a source—then there would be no law of agency? Is there a logical basis that a person’s agent is like the person himself, or not? After all, we know that in other legal systems in the world, at least as far as I know, there is no legal system in which the concept of agency is not defined. That if a person did something through an agent, fine, with certain limitations, but a person can perform actions through an agent. You can appoint someone as an agent, to buy for you, sign a contract for you, whatever—as long as it’s clear you appointed him and he acted on your behalf properly, everything is fine: a person’s agent is like the person himself. Every system assumes this. What? In all fields. What?

[Speaker B] It’s all a matter of “for.” Hiring someone for work?

[Rabbi Michael Abraham] No, hiring someone for work means someone does work for me; that doesn’t mean he is my agent. Because the work doesn’t need to be attributed to me. There is no law requiring that I produce those chairs. If I hire you in my carpentry shop to make chairs—if the law required that the chair be made by me for some reason, and I did it through you, I would claim: no, a person’s agent is like the person himself, it’s fine, I have fulfilled my obligation. Because since you did it, it’s as though I did it.

[Speaker B] And regarding what you said—that I can’t appoint an agent to put on tefillin for me—no, because—

[Rabbi Michael Abraham] With commandments, I said it requires a physical act, not a legal act. That’s exactly the distinction we made. But on the legal plane too, there is a requirement that the act be done by me. This is agency for an act and agency for authority, what we talked about in the previous class. Therefore the claim that—yes—so the claim is that when the Talmud / Talmudic text asks, “From where do we know agency,” the question is: what is the background of that question? Meaning, what would the situation have been had we not found a source for the law of agency? It’s like the laws of conditions. We learn the laws of conditions from the condition made with the children of Gad and the children of Reuben. If we had not learned it from there, then there would be no concept of conditions? By the way, with the conditions of the children of Gad and the children of Reuben, it was Moses our teacher who stipulated it with them—it wasn’t a command of the Holy One. How did he know? By reasoning.

[Speaker C] So then—

[Rabbi Michael Abraham] By reasoning, I too could have known. Why do I need the verses? How to make—

[Speaker C] The condition.

[Rabbi Michael Abraham] Okay. So indeed there are those who argue that all I need the verses for is just to know how to do it: the condition before the act, the positive before the negative, and all sorts of what are called the laws of conditions. Yes—how exactly one makes conditions and how not. But that itself is problematic. Because if the concept of a condition is something based on reasoning, then reasoning should also tell me what has to be done. Once you apply laws to it that are not derived from reasoning, that means there is some dimension here that is not from reasoning, some novelty of the Torah in the laws of conditions. And therefore the Torah says okay, and this novelty can be effected if you stipulate in such-and-such a way and not otherwise. So by the same token you arrive at the conclusion that if there is a source, apparently reasoning alone would not have told us this. Maybe there would have been some different concept of agency, maybe there would have been none at all—I don’t know. But we would not have known it.

There is a well-known Tosafot that says that damages, for example, are like a loan written in the Torah. Meaning, if I damaged you, the fact that I have to pay is because the Torah says I have to pay. Without the Torah saying so, I wouldn’t have had to pay. That too seems strange. The simple assumption is, like every legal system in the world, that if one person damages another, he has to pay him. Why do we need verses for that? There are many places where laws that seem to be straightforward laws raise the question whether we really need the verses—what would happen without the verses.

So here—yes—there’s a kind of half-joke, but actually it’s true, a sad joke. In yeshivas people are often used to thinking that every verse teaches the opposite of what it says. How so? I use this example because it’s amusing. I have an argument with my wife. So she says to me, “Whatever Sarah tells you, listen to her voice”—you have to listen to your wife. I said no: from the fact that Abraham our forefather needed a special novelty telling him “Whatever Sarah tells you, listen to her voice,” it implies that in general one does not need to listen to her voice. There, there is a special novelty and a scriptural decree that Abraham our forefather must listen to his wife. But generally? No, of course not. Meaning—and now it sounds funny, but it isn’t. Very often it’s like that. Many times we see a source in the Torah, and from the fact that a source is required we understand that in principle we would not have said this without the source. So if that’s the case, now it exists only in those contexts that resemble the source, and not in every other context. Do you understand? That’s the difference.

Meaning, if the concept of agency existed even without the Torah’s novelties, then maybe the Torah’s novelties are needed for certain details, and those details have all the limitations—whatever resembles terumah, whatever resembles divorce documents or marriage betrothal. But the concept of agency, as a matter of reasoning, exists everywhere. But if the concept of agency does not exist by reasoning, and it is entirely a novelty from what the Torah said, then where it said it, it said it, and where it didn’t, it didn’t. Okay? What?

[Speaker C] It’s like two verses that come as one—whether they teach or not.

[Rabbi Michael Abraham] Right, exactly. No, but with two verses that come as one, that’s exactly the point. If there is a necessity argument between them, then they do teach.

[Speaker C] But even about that there’s a dispute too, no?

[Rabbi Michael Abraham] No, because you need three—maybe redundancy isn’t enough, you need significant redundancy. So three verses certainly do not teach. So certainly yes. What does that mean? It basically means that with two verses that come as one, if there is a necessity argument between them, then they do teach. Obviously. After all, if there are two—look here—we have several verses here, right? Terumah, marriage betrothal, divorce, so how do we derive agency for the whole Torah? Three verses, according to all opinions, do not teach—because there is a necessity argument between them. Once there is a necessity argument, it’s like one verse. Two verses that do not teach—that’s the common denominator. The common denominator begins with your learning from two things and making a necessity argument between them. Why? Because if there were no necessity argument between them, you could derive A from B or B from A. So why was B written? Apparently to teach us that only where it is written does it apply, and where it is not written you cannot derive it.

When there is no necessity argument and the Torah writes something in two contexts, that is called two verses that come as one—they do not teach. But if there is a necessity argument between them, that is the common denominator. There are two verses, both are needed, so there is no question why the Torah wrote B, because we could not have derived B from A. So essentially A and B together are one verse that teaches W, the common denominator, the feature common to both. Okay? Because otherwise I would think it’s T or X or W—sorry. The Torah has to write both in order to teach me that the important parameter is W, not T or W—sorry, not T or the other unique feature. So now I have one verse, a verse that says that in W there is agency, or liability to pay, or yes—it doesn’t matter what exactly we are learning now. It is always like this. Otherwise what is the difference between two verses that come as one and the common denominator, which is two verses from which we do learn? So obviously when there is a necessity argument, we do learn from several verses. Only when there is no necessity argument do we not. And why? Because when there is no necessity argument there is redundancy. One verse is superfluous. You don’t need that verse; it can be learned from the first verse. So why did the Torah write it? To teach me that only in those verses does the law exist and not in others.

But from this we can understand that when there is one verse, obviously it comes to teach. When there are two verses, two verses do not teach; one verse does teach, not the opposite. According to the accepted approach—the one I mentioned earlier—in fact one verse does not teach, just like two don’t; even one verse doesn’t teach, it teaches the opposite. Because if you need the verse, that is a sign that generally it is not true. Again, there are places where this appears in the Talmud / Talmudic text itself. If a verse is needed, apparently the law is not like that, because otherwise we wouldn’t need a verse. Even in our own passage this appears. From Aaron’s bull we would have learned that one cannot offer a sacrifice through an agent. There is a verse—sorry—that says Aaron’s bull cannot be offered through an agent. And Tosafot on page 41b wants to derive from here that in sacred matters there is agency. Because if there were no agency, why would we need a verse that in Aaron’s bull it cannot be done through an agent? That implies that generally there is agency in sacred matters. Here, in Aaron’s bull, it is a special law. This isn’t some invention of today’s yeshivas; it appears in the Talmud / Talmudic text, among the medieval authorities (Rishonim), it appears.

Where is the difference? I think the difference lies in the question: what does logic say? Meaning, if the law I’m discussing has a rationale behind it, then once there is a verse that says it, why not derive from it? The verse confirms the rationale, and now there is a rationale here. So wherever the rationale exists, I will derive it. In that case the verse teaches. But if there is no rationale—meaning the basic starting point is the opposite, that I would have said this law is not true—and now a verse comes and says no, in this context this law is true, fine: it extends only to its own novelty. If logic says it is not true, then where this was innovated, it was innovated, but that means that generally it is not true. But one has to remember that the fact that generally it is not true is not because there is a verse, but because logic already said from the outset that it is not true.

[Speaker B] Let’s maybe give an example of that. If several people are sitting in a restaurant in America, if someone ordered a dish before you, you’ll order a different dish, because that’s what’s customary. In Japan it’s the opposite: if someone ordered a dish, you’ll take the same thing. The rationale changes according to the options, according to the culture, according to the—

[Rabbi Michael Abraham] The rationale differs even between the two of us; you don’t need to get to different cultures. Of course there are different rationales for different people. So what? In interpreting verses, don’t you use reasoning? Forget everything I said now. Don’t we use reasoning? We use reasoning all the time. There’s a disagreement, so people argue. Either they manage to persuade, or they don’t manage to persuade. There’s no need to be afraid of disagreements. The fact that I say we use reasoning doesn’t mean that reasoning is necessarily universal or agreed on by everyone. There are disagreements. Are there no disagreements in Jewish law? This only starts from my saying that there is reasoning. Jewish law is full of disagreements. And in fact they are all fundamentally based on different rationales of different people.

So the difference is—I think the difference is the question whether there is a rationale in the background. For our purposes, I think there is a rationale for the concept of agency. If there is a rationale for the concept of agency, then once we have learned all the different sources and there is a necessity argument among them—meaning this is not two verses that do not teach—then I essentially have only one verse de facto. After the necessity arguments, it is all basically one verse. And that verse teaches me W: that anything which is a legal status that needs to be effected by you, you can also do through an agent. Since I have a rationale, I say fine, from here I derive a paradigm for the whole Torah, except for specific places where it doesn’t apply.

Now, one more point that is important to understand. Seemingly, if there is a rationale—for example regarding agency—then why do I need the verses? I’m saying that if there is a rationale, then the verses teach me about the rest. No—if there is a rationale, then I learn the rest from the rationale. Why do I need the verses? Then all the verses are superfluous. What?

[Speaker B] Does reasoning also have halakhic / of Jewish law force?

[Rabbi Michael Abraham] What do you mean? Does reasoning also have halakhic / of Jewish law force? The Talmud / Talmudic text says: “Why do I need a verse? It is logical.” About “the mouth that prohibited is the mouth that permitted,” or “the burden of proof is on the one seeking to extract from another.” What does it say? “Why do I need a verse? It is logical.”

[Speaker B] If it follows from reasoning, you don’t need a verse.

[Rabbi Michael Abraham] So why is agency not like that?

[Speaker C] Or conditions, or whatever it may be.

[Rabbi Michael Abraham] Here we need to understand: when we say “so shall you also set aside” to include your agent, for example that derivation, or “and he sends and she is sent,” and all these derivations about divorce—in all these derivations I think it’s clear that there is an underlying rationale in the background. There is no such derivation without a rationale, because if there were no rationale that I can act through an agent, how would that come out of “and he sends and she is sent”? Maybe “and he sends and she is sent” means that when divorcing a woman you have to stand on one foot? “And he sends and she is sent”—and also wave your hands, because there’s that hei in “she is sent.” How did I decide that this is specifically about an agent? Maybe it’s just an asmachta and not an actual derivation. What? Maybe it’s some kind of asmachta? No—you see that they make a tzrikhta and so on; it’s clear that it’s a real derivation. If it were just an asmachta, then what is the tzrikhta doing there? In any case, I’m not really learning it from this verse, so why are you giving me a tzrikhta that it can’t be learned from there, right? When they make a tzrikhta, that’s an indication that it’s not an asmachta. So if I really do have it, then first of all, on the one hand, every time I expound a verse and derive a law from it, clearly there is an underlying rationale in the background. That’s obvious, always. But if there is a rationale, then why do I need the exposition or the verse? Learn it from the rationale itself—“why do I need a verse? It’s logical,” as the Talmud says. The point is that there are—in the summary you’ll see I link to articles I wrote about these things—there are rationales that by themselves would not have been enough to teach the law, even though the rationales do exist.

For example, I’ll give you a case. There is the stubborn and rebellious son, and the Talmud expounds: “a son and not a daughter.” And in the Jerusalem Talmud it says this is a decree of Scripture; in the Babylonian Talmud too, in different language, but it implies that this is a decree of Scripture, fine? So the Meiri there asks: but the Talmud explains—the Meiri explains, sorry—that the rationale is that a daughter is not generally inclined to become a highway robber; that is, she will not end up robbing people, which is what the Talmud is concerned about regarding the stubborn and rebellious son. So the Meiri asks there: if that explanation exists, then why do they call it a decree of Scripture? And there is an explanation. He says: because without the verse I would not have said it. Even though the verse helped—but why did Scripture decree it? And without the verse—more than that—without the verse I would not have said it; not just why did Scripture decree it. It decreed it because of that. But if I know that rationale, then what do I need the verse for? Not why the verse decreed it—that I understand—but why is the verse needed here at all? I have the rationale; I’ll derive it from that. The point is that the rationale alone would not have taught me this law. For example, suppose a child comes before me who seems to me like a very good kid, and he had been behaving like a stubborn and rebellious son. It’s clear to me that he won’t end up robbing people in the future, so now the law of the stubborn and rebellious son wouldn’t apply to him? Even if there is a rationale, a rationale doesn’t immediately mean that we will also apply it. Would someone say “a son and not a daughter” just from his own reasoning, because it doesn’t make sense that a daughter would rob people, and therefore it is clear to me that the law of the stubborn and rebellious son applies only to boys and not to girls? Maybe it applies only to polite boys and not to rude ones? There’s a rationale there too, and a rationale there too. A rationale still doesn’t mean I immediately apply it. Why? Because it’s not clear that it’s strong enough. Fine, there is a rationale to distinguish, but there is also a side of similarity—maybe a daughter too could end up robbing people. Such things have happened before, okay? So in truth you can’t really know whether to use the rationale. True, once the verse comes, you understand that the verse is founded on the rationale. It’s not a verse saying the rationale is incorrect and therefore it’s a decree of Scripture from the verse. The verse comes to teach you to use that rationale—that’s fine, it’s an authorized rationale, you can use it. That is what the verse teaches, but not that it contradicts the rationale and not that it makes the rationale unnecessary. The verse teaches that this rationale received practical application; that is, it can be applied, it is strong enough that we can decide and act on its basis. Therefore, the fact that there is a verse does not mean there is no rationale, and the fact that there is a rationale does not mean the verse is unnecessary. Both are needed.

Sometimes, by the way, I would not apply the rationale not because the rationale is not sufficiently unequivocal, but because it contradicts halakhic principles. For example, let’s say—maybe I wouldn’t. Suppose I have very good evidence in the laws of evidence. Maybe I would not use it, because the Torah says, “by the word of two witnesses a matter shall stand.” And I would say: the evidence—for example, “the mouth that forbade is the mouth that permitted.” Excellent evidence, considered by all the medieval authorities (Rishonim) and later authorities (Acharonim) to be terrific evidence, much better than migo. “The mouth that forbade is the mouth that permitted.” Is migo from the Torah? What? “The mouth that forbade.” Is migo from the Torah? No—yes, but there is no verse. There is a verse for “the mouth that forbade.” So the Talmud asks there, “why do I need a verse? It’s logical,” regarding the verse of “the mouth that forbade.” It says: the verse of “the mouth that forbade” contains a rationale. “The mouth that forbade is the mouth that permitted” contains a rationale. But it could be that I would not use that rationale because in the laws of evidence it says, “by the word of two witnesses a matter shall stand.” Not because the rationale is not strong enough and unequivocal enough, but because there is a halakhic rule that “by the word of two witnesses a matter shall stand.” So even if you have excellent evidence, if it is not two witnesses then maybe halakhically you cannot rely on it. Therefore you need a verse teaching that one can also rely on evidence that is not witnesses. Not because—earlier I suggested one mechanism, that the rationale is not absolute. Here I’m saying no: the rationale can be absolute, but there may be a halakhic barrier to using even an absolute rationale, and for that you need a verse to tell me that there is no such halakhic barrier.

For our purposes there can be several such mechanisms. What that means here is that when I derive, for example, the law of agency in our topic from the verses, that does not mean there is no rationale at the root of the law of agency. There is a rationale, and still the verses are required. For example, as was noted earlier, you cannot perform a commandment through an agent. Fine—so maybe you also cannot create legal effects through an agent. And therefore you need a verse saying that you can. Even though agency may be a good rationale, I might have thought that Jewish law does not allow us to use that rationale, even though it is a good one. For that we need sources saying: no, Jewish law also recognizes this thing. Therefore the fact that there is a verse does not negate—does not mean there is no rationale, and the fact that there is a rationale does not make the verse unnecessary.

There is a Talmud in Pesachim. Today I’m speaking a bit more about methodologies, but the Talmud in Pesachim brings—let’s look at it inside, Pesachim 22b. I’m dragging all the Zoom times along with the projector. Look here. “As it was taught: Shimon HaAmsoni, and some say Nechemiah HaAmsoni, would expound every ‘et’ in the Torah. When he reached ‘the Lord your God shall you fear,’ he stopped. His students said to him: Rabbi, what will become of all those ‘ets’ that you expounded? He said to them: just as I received reward for the exposition, so I receive reward for the withdrawal. Until Rabbi Akiva came and expounded: ‘the Lord your God shall you fear’—to include Torah scholars.” So Shimon HaAmsoni would expound every ‘et’ as coming to include something—like Ben-Gurion in a way; Ben-Gurion used to speak without the word ‘et.’ “Bring me the chair.” So every time it says ‘et,’ it is meant for exposition. Once he reached “the Lord your God shall you fear,” he could not find what to expound. Why not? What is special about this ‘et’? What other person must one fear besides the Holy One, blessed be He? “To whom will you liken Me, that I should be equal?” How can one compare something to the Holy One, blessed be He, such that one should also fear it? How can one include something else that would be like the Holy One, blessed be He? Therefore he says: I find nothing to include, and he stopped. What does it mean, he stopped? He did not expound “the Lord your God shall you fear.” He withdrew from all the ‘et’ expositions he had made until then. Because he says: if here the exposition doesn’t work, then this is a counterexample, proof that the whole theory is wrong. It’s Popper’s refutation: once we find one refutation, the theory collapses. How do I know that? “His students said to him: Rabbi, what will become of all those ‘ets’ that you expounded?” He said to them: “just as I received reward for the exposition, so I receive reward for the withdrawal.” That means he withdrew from all the earlier ‘et’ expositions, not just from this one exposition.

I don’t understand—the exposition? It has no halakhic force. The exposition has no halakhic force? Ah. No, no, no—it could be that as well, but no; it’s talking about laws too, yes. So he says—so he withdrew. “Until Rabbi Akiva came and expounded: ‘the Lord your God shall you fear’—to include Torah scholars.” What does “until Rabbi Akiva came” mean? What happened when Rabbi Akiva came? He found a solution, and apparently Shimon HaAmsoni retracted, right? Now you’ve saved me. No. Look at the beginning of the Talmud passage. It discusses there some ‘et’ concerning fetal damages, it doesn’t matter, “and the other one does not expound ‘et.’ As it was taught: Shimon HaAmsoni…” There is a tannaitic dispute whether to expound ‘et’ or not, and the Talmud says this dispute among the tannaim is like the dispute between Shimon HaAmsoni and Rabbi Akiva. Meaning: until Rabbi Akiva came and saved us, Shimon HaAmsoni remained in his withdrawal; he does not expound ‘ets.’ Okay? So what exactly did Rabbi Akiva do here? Come on—that’s practically idolatry, no? To fear Torah scholars like the Holy One, blessed be He? The question of Shimon HaAmsoni is a good one. How can one compare anyone or anything to the Holy One, blessed be He? More than that: why do you say Torah scholars and not chairs? Include chairs. Clearly Rabbi Akiva said as follows: ‘et’ has to include something; that is a given. It has to include. Now if I had to say it on my own, I would say: no, fearing Torah scholars doesn’t sound reasonable to me; on the contrary, one should fear only the Holy One, blessed be He, not Torah scholars. I’m only presenting a possibility, of course, okay? Then he says: yes, but ‘et’ comes to include. So what do we do with this ‘et’? That’s where Shimon HaAmsoni got stuck. And for Rabbi Akiva it was obvious that ‘ets’ come to include. So what do you do? You look for what is least implausible. Notice the difference? Not what is most plausible, but what is least implausible. Because nothing is plausible. Nothing can truly be compared to the Holy One, blessed be He, and in that Shimon HaAmsoni is right. And Rabbi Akiva says: true, but there is the word ‘et’ here—what will you do with it? Search among the possible expositions for the least implausible one; that is presumably what the Torah wants. So I am not comparing Torah scholars to the Holy One, blessed be He; rather, since the word ‘et’ is there, it compels me to expand this law to the place where it is least implausible.

Why isn’t this a rabbinic law? If it were rabbinic—let’s say if there were a rabbinic law to fear Torah scholars—that would be because reason says one should fear Torah scholars. So the rabbis would enact an enactment that one must fear Torah scholars. Here it applies even to someone who does not have that rationale. On the contrary, he says: one need not fear Torah scholars. Yes, but the verse ‘et’ compels me; it’s a derashah. It’s not just that I have a rationale and therefore I decide something—no. The verse starts the process. Once there is a verse, now I ask myself: okay, what does the verse include? Chairs? Here the rationale comes in. After the verse tells me that I must include something besides the Holy One, blessed be He, then I ask: fine, now that I must include something, Torah scholars are the most called-for option. But that is not because I have a rationale saying that Torah scholars should be feared. Rather, nothing should be feared; if something must be feared, Torah scholars are the least implausible choice. Okay? This demonstrates very nicely how the interplay works between rationale and verse or exposition. Meaning, it could be that the rationale was not there at the outset at all. But once the verse arrives, there is always some rationale telling me what to do with the exposition.

Think, for example, of a gezerah shavah. I have a similar word here and there, and I make a gezerah shavah between, say, slave and woman. Fine, I derive a gezerah shavah between slave and woman. So maybe I should derive from the gezerah shavah that the word for woman has to be spelled with an ayin like slave? Why not? Because reason says it makes no sense that the gezerah shavah works on that. In other words, once I have the trigger to create an exposition, here reason comes in and tells me: okay, which exposition should be created. But at the beginning there is always some hermeneutic principle, some textual phenomenon—a similar word, a generalization and specification, whatever—something that says: here a derashah must be made. From that point on, reason enters, and reason tells me what is most plausible to derive, or what is least implausible to derive. Therefore the existence of a rationale does not contradict the derashah and does not make the derashah unnecessary. And still, clearly every derashah contains a rationale.

And therefore, for example, regarding derashot, the rule does not exist—you will not find a place, maybe among the medieval authorities (Rishonim), and if so then in my opinion that is a mistake—where they apply the rule that we do not expound the reason of the verse with respect to a law that comes out of a derashah. If there is a law written in a verse, I do not expound the reason of the verse. What is written in the verse is written; I do not go looking for reasons and shape the law according to them, because we do not expound the reason of the verse. But you cannot say that we do not expound the reason of the verse for a law that emerges from a derashah. The derashah itself is based on the reason, so obviously you have to take the reason into account in order to understand the law. So there is no such thing as not expounding the reason of the verse with respect to laws learned from derashot.

But where does Shimon HaAmsoni’s initial assumption come from, that we should expound every ‘et’ in the Torah? Apparently he had some tradition of some kind or something like that, and Rabbi Akiva treated it more seriously. Shimon HaAmsoni said: look, this was a hypothesis people came up with when they found lots of expositions and it fit nicely. Here I have a counterexample. Apparently they were wrong. This is not a law given to Moses at Sinai. If it were a law from Sinai, then Rabbi Akiva is certainly right. Rather, apparently at some point the Sages reached the conclusion that the ‘ets’ were probably written in order to be expounded. It worked out for them in various cases. A theory like that took shape, and he puts it to the test. He says: this ‘et’ doesn’t work. Apparently they were wrong; we need to look for another explanation for these ‘ets.’ Okay?

Now, still, the question really is whether this started from a rationale or whether it started from this derashah. Say Rabbi Akiva has now solved the ‘et.’ On the simple level, this did not start from a rationale. Why? Because they learn it from “‘et’ comes to include”—what does it mean that it started from a rationale? No—the whole issue of “‘et’ comes to include”: did that start from a rationale? On the simple level, no. It started from hermeneutic principles. It is accepted among the medieval authorities (Rishonim) that this is a law given to Moses at Sinai. But then you ask: fine, so “the Lord your God shall you fear” is a rule from Sinai, so what is the problem that Shimon HaAmsoni is in doubt? Fine, again—about that I wrote books. The claim is that the world of derashah was given at Sinai, but it undergoes conceptualization and crystallization over the generations. The specific hermeneutic principles were not given at Sinai; rather, this language of derashah was. Let’s say the Holy One, blessed be He, read Moses a verse and told him: and this is the midrash. He did not tell him: here you expound by generalization and specification, or by gezerah shavah. That the Sages conceptualized afterward, once they saw the derashot that Moses had received. They said: ah, so apparently there is such a hermeneutic principle, and such a hermeneutic principle—and the principles were conceptualized. Therefore, for example, Rabbi Akiva and Rabbi Ishmael conceptualized them differently. One expounds by generalization and specification, and the other by inclusion and exclusion. The inclusions through ‘et’ are expounded by Rabbi Akiva’s school; Rabbi Ishmael does not expound inclusions from ‘et.’ Okay? So there are disagreements here about the conceptualizations, okay? But that does not mean that the hermeneutic principles are not a law given to Moses at Sinai. The derashah is a law given to Moses at Sinai; the question of the principles is how the Sages understood the derashot that Moses received. They tried to create a kind of grammar of the language of derashah. Yes, there are rules, grammatical rules, for how we make these derashot, and here this is part of the uncertainty: does ‘et’ come to include or not? Shimon HaAmsoni was unsure; that is exactly the point here.

Okay. Now I’ll just begin the source for agency from the Jerusalem Talmud. So the source, on the simple level, is from the word “and she is sent,” as we saw. “As it was taught”—yes, that is the Talmud’s answer: from where do we know agency? “As it was taught: ‘and he sends’ teaches that he appoints an agent, ‘and she is sent’ teaches that she appoints an agent, ‘and he sends’ and ‘and she is sent’ teach that an agent appoints an agent.” Yes, so the exact order does not matter right now, but there is “and he sends,” that is the basic expression, there is the vav and there is the hei. Okay. So that teaches the three laws of agency. The Rosh, cited here in Tosafot and in Tosafot HaRosh, learns it differently—not important right now—he derives it in a different way.

But why indeed does the Talmud expound “and he sends” regarding agency in a bill of divorce, say agency for delivery of a bill of divorce? “‘And he sends’ teaches that he appoints an agent” for the delivery of the bill of divorce. But “and he sends” means “and he sends her from his house”; he sends away the woman, not the bill of divorce through an agent. How does the Talmud derive it from here? So Rashi indeed writes: “teaches that the woman appoints an agent to receive her bill of divorce; read it as ‘and he sends,’ not producing the hei,” and so on. “‘And he sends’ and ‘and she is sent’ are said twice in the context.” Here, Rashi. “‘And he sends’ is written regarding divorce, ‘and he sends her from his house,’ and since it does not say ‘and he divorces her,’ we learn from it that the man appoints an agent to bring a bill of divorce to his wife.” What is the motivation? It should have said “and he divorces her from his house”; what is “and he sends her from his house”? “And he sends her” means through an agent; he divorces her through an agent. There is some derashah here.

And all this is really unclear, says the Torah Temimah, yes. “What difficulty did he see in the wording ‘and he sends her,’ that he expounds it to mean that she appoints an agent? And what is this that he wrote, ‘read it without the sounding hei’? ‘And he sends her’ is with the sounding hei—he sent her. But in the derashah it says ‘and he sends her,’ meaning he sends her through an agent; that is not with the sounding hei.” The Torah is not vocalized? No, in the Torah there are no vowels at all; that’s the masorah. Fine, but the masorah is part of the Torah for us. So we read it that way. In the Torah it isn’t written that way, but for us it is as though it is vocalized. So if you look at it as vocalized, don’t read it with the sounding hei. Okay. But the Torah Temimah asks: wait a second, but the masorah explicitly gives us a sounding hei. What do you mean, read it without the sounding hei, when it is written with the sounding hei? And why should we expound against the masorah? As though he is sending the document? “And he sends her from his house”—the document is sent from his house? That’s masculine language. He sends the document—yes, right. Masculine and feminine switch around. In general Ibn Ezra writes: regarding anything that has no living spirit, you may refer to it as masculine or feminine. After all, why is the table masculine? What, does it have male sexual organs? No. There is no association at all; it’s just arbitrary. You should know that in other languages it works differently. There are languages that distinguish masculine and feminine in inanimate objects and they behave differently than Hebrew. In modern Hebrew there’s that extra region of exceptions that are both, like “fork,” for example—one fork can be referred to in either masculine or feminine. There are things people refer to as masculine—it’s just a completely arbitrary decision. There are other languages that treat the same thing you call feminine as masculine. It’s just arbitrary. And Ibn Ezra really writes: anything that has no living spirit, you may refer to as masculine or feminine. Meaning, there is no real significance to masculine and feminine; you can say it however your language wants. And we know that among the Sages, and sometimes even in the Torah, there is interchange between masculine and feminine.

I once saw some Tosafot from Rabbi First discussing the Talmud about why a certain word is inflected as masculine or feminine, something to do with the sanctification of the moon, but this is a recorded class, so I— About what? Why in the Torah a certain word is inflected as masculine or feminine; I found it, but this is a recorded class. You don’t know what he says? No, I half-remember; I don’t want to take things out of context. Okay, well, interesting. In any case, on the face of it it sounds completely arbitrary. Send it to me, send it to me, yes, I’d be happy to see and hear it.

So indeed, he says that the Torah Temimah explains, because it does not say “and he sent her away” but rather “and he sends her,” from here they derive that it is through an agent. What does that mean? Because if it had said “and he sent her away,” it would mean that he physically sends her away. “And he sends her” means that he arranges that she not be here, even through someone else—something like that. And he writes—yes, so even through an agent or something like that. Rashi does not write this way, and what he says also sounds a bit far-fetched to me. “And he sent her away” and “and he sends her”—I don’t see such a great difference with the sounding hei. It is exactly “and he sent her away”; that is precisely the point of the sounding hei: instead of writing “and he sent her away,” you write “and he sends her.” I think the point is this: I think he is mistaken at the root. The fact that it has a sounding hei means that the plain sense is that he sends away the woman; that is clear. But why must derashah be bound by what is written? If derashah were bound by what is written, you could throw out a great many derashot. “The Lord your God shall you fear”—to include Torah scholars. In its plain sense, does the ‘et’ come to include Torah scholars? Derashah always comes alongside the plain sense, not instead of the plain sense. Therefore derashah—and many people get this wrong, in my opinion—derashah is not supposed to meet the criteria of peshat. Even if it contradicts how the text is written or vocalized, so what? That is the whole idea of derashah. It says: the plain sense either has a difficulty or doesn’t—it doesn’t matter; for some reason there is a need to expound, and the derashah is not bound to the way the thing is written. That is the whole idea.

So why not say it is an asmachta? Why not say it is an asmachta? Because we have a tradition from Sinai that this is not an asmachta, that this is how it is done. The thirteen hermeneutic principles by which the Torah is expounded. But the thirteen principles are not about “sending” and “she is sent.” No, inclusion—it doesn’t matter. The thirteen principles are Rabbi Ishmael’s; for Rabbi Akiva it is inclusion. What for Rabbi Ishmael is called generalization and specification and generalization, for Rabbi Akiva is called inclusion and exclusion and inclusion. And there you have all the inclusions; there are differences between Rabbi Akiva— We recite each morning Rabbi Ishmael’s principles; there are other systems of principles. Rabbi Akiva has his, Rabbi Eliezer son of Rabbi Yosei HaGelili has thirty-two principles, there are various systems. Hillel the Elder had seven. So here—well, this whole story is a complicated one.

But for our purposes I’m saying: the whole idea that troubles the Torah Temimah is that he assumes derashah is supposed to fit completely with what is written and with the vocalization. But if it fit completely, it would not be derashah; it would be peshat. Derashah does not remove Scripture from its plain meaning; rather, it adds another layer. Besides the plain sense there is also derashah, and therefore derashah can depart from the way the text is written and the way it is vocalized. That is not an objection to the derashah. “But it is written with a sounding hei or without a sounding hei”—that is irrelevant. Obviously, the plain sense is with the sounding hei, and therefore the plain sense remains intact. But on top of that I add the derashah, which is not bound by those ideas. Okay, let’s stop here.

Basically it doesn’t matter, but if you derive it from “sending” and “she is sent,” or if you could derive it—I don’t know—from some other word. If you can derive it—but the claim is that these are not just games. Presumably they had some indication of why they derive it, why they derive it. As Rashi says, it should have said “he divorced her” and instead it says “he sent her,” and therefore they derived it from that—I don’t know exactly. If it were just a game, then you could also derive it from “In the beginning God created the heavens and the earth.” No, I understand there is “agency” and “she is sent” here. No, but if this were just free association, then forget it—I can make whatever associations I want. I assume at least—again, I don’t know, because I don’t have those tools—I assume they had some tools for explaining why they really derive this, and why they derived it from here. That has been lost to us; today we don’t know how to do it. But otherwise it’s just games; it has no meaning. Do whatever you want. And then you’re really just dressing your own rationales up in Torah, and that brings us right back to the point that in the end everything is really just rationales—which to me is not plausible. Because otherwise, why are we playing this game at all? Then just state the rationale and that’s it. Why do you want to attach it to some verse? For what? To sell it? To market it? I don’t know. To remember it? These things help you remember? These things only make it more complicated. “And she is sent” and “he sends her” and the hei with the sounding dot and without the sounding dot, and then he argues, and there’s a dispute among the medieval authorities (Rishonim)—all that to remember that there has to be agency in divorce? That agency is possible in divorce? I’d remember it better without all these casuistic pilpulim. Not to remember. There’s no other reason. No other reason—that’s exactly the point. People always say “to remember, to remember,” but that’s just a slogan. It doesn’t help you remember; it’s just something people say.

You say asmachta where you have no other choice. You say, fine, apparently it’s an asmachta. And even there, the Ritva says that asmachta is not just a mnemonic aid, but that it really emerges from the spirit of the verse; it’s just not fully Torah-level, rather some expansion that is more rabbinic and less Torah-level. But it still comes from the verse; it’s not just games. Fine, let’s stop here. In any case, we’ll continue in the Talmud.