Ketubot, Chapter 2, Lesson 36
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The idea of watchfulness as a rational obligation and rescue from destruction
- Solomon’s verses and the prophet’s words about self-examination
- The schemes of the evil inclination and the comparison to Pharaoh’s counsel
- Watchfulness as the key to all other traits and a prayer to acquire it
Summary
General Overview
The Ramchal establishes that the trait of watchfulness is a basic rational demand that obligates a person to supervise his actions and ways, so that he not abandon his soul to the danger of destruction and not go on like someone acting out of blind habit. He describes one who does not reflect as worse than animals, which guard themselves by instinct, and warns that the evil inclination works cunningly to prevent a person from having time for self-examination, so that regret will not arise and lead him to abandon sin. He adds that the trait of watchfulness is the key to all other traits, and without it there is no possibility of even beginning the path of spiritual service, and he concludes with a request to merit acquiring it with God’s help.
The idea of watchfulness as a rational obligation and rescue from destruction
The Ramchal defines watchfulness as a person’s being careful in his deeds and affairs, reflecting and supervising his actions and paths to see whether they are good or not, so that he not leave his soul exposed to the danger of destruction, Heaven forbid, and not go on in the course of habit like a blind man groping in darkness. The Ramchal says this is something reason itself requires, because once a person has understanding and intellect to save himself and flee the destruction of his soul, it is impossible that he should agree to shut his eyes to his own rescue; he presents this as a kind of baseness and frivolity than which there is nothing worse. The Ramchal argues that one who does this is lower than animals and beasts, which guard themselves by instinct, and he compares one who goes on without reflection to a blind man walking along the edge of a river, whose danger is certainly great and whose harm is close at hand, because nature and chance will not protect him when he does not protect himself.
Solomon’s verses and the prophet’s words about self-examination
The Ramchal cites the words of King Solomon, peace be upon him, spoken through divine inspiration: “Weigh the path of your feet, and all your ways will be established,” and likewise, “Do not turn right or left; remove your foot from evil.” The Ramchal notes that we find the prophet crying out over the people of his generation: “For no man repented of his evil, saying: What have I done?” He describes them as going on, rushing in the race of their habits and ways, without setting aside time for themselves to reflect on their actions and their paths, and so they fall into evil without seeing it.
The schemes of the evil inclination and the comparison to Pharaoh’s counsel
The Ramchal presents the lack of reflection as one of the schemes of the evil inclination and his cunning: to burden human beings with work in such a way that they will have no free space left to reflect and look at what path they are walking. The Ramchal states that the evil inclination knows that if they were to pay attention to their ways even a little, they would begin regretting their deeds, and that regret would grow within them until they would abandon sin completely. The Ramchal compares this to the counsel of wicked Pharaoh, who said, “Let the work be made heavier upon the men, and let them not pay attention to false words,” so as to leave them no free space at all and keep them from taking notice or devising any plan against him. He concludes that this is exactly the counsel of the evil inclination against human beings, because he is a man of war and trained in cunning, and it is impossible to escape him except with great wisdom and deep perspective.
Watchfulness as the key to all other traits and a prayer to acquire it
The text states that the trait of watchfulness is the key to all the other traits, as the Ramchal writes later on, and without watchfulness a person cannot even begin the path of his spiritual service. The text calls for stopping and thinking at every step, because life passes quickly, and if a person does not stop to reflect he may find himself at the end of the road without having achieved the purpose for which he came into this world. The text formulates the first obligation as opening one’s eyes, inner reflection, and examining one’s deeds by the standard of judgment and the standard of truth, and it concludes: May we merit, with God’s help, to acquire the trait of watchfulness and to walk in the ways of the upright. Amen.
Chapter 2: Explaining the trait of watchfulness, the components of watchfulness, and the ways to acquire it.
Full Transcript
[Rabbi Michael Abraham] Okay, I’ll do this in a relatively focused way so that we can really go over the main lines of the topic without all the accounting according to every opinion in every case, just to understand what’s going on here in the topic. Look, the point…
[Speaker A] I had a question, kind of a question like that—well, there were a lot of questions in Gittin—but are there fifteen co-wives? Is it like there are fifteen topics of co-wives? Not all at once, not with one man.
[Rabbi Michael Abraham] There are fifteen forbidden relations, there are fifteen forbidden relations where each one has a case of a co-wife of a forbidden relation. Meaning, there are fifteen female relatives who can get into the problem, and then their co-wife also gets into the co-wife issue—or really specifically doesn’t get into the co-wife issue because she’s exempt from levirate marriage, so everything is fine. Okay, anyway, let’s focus. What is really accompanying us here is the dispute between Rashi and Baal HaMaor in our topic. The question is whether, when you have two against two regarding the judge in our case, do we maintain his presumption status or do we not maintain his presumption status? I said that this is actually one of two discussions that come up in the context of two against two. One discussion is about the status of the witnesses, and we dealt with that in the previous lecture—Rav Huna and Rav Chisda. The second discussion is about the status of the case itself, the case over which the two groups are arguing, and that is really what Rashi and Baal HaMaor are dealing with here in our topic, and that’s what the passage in Yevamot that we’ll touch on today is about. It doesn’t deal with the law of the witnesses; it deals with the law of the case itself. But before that, I’ll give a little introduction about presumption status, because that’s really what’s at the foundation of the issue here. There’s a Talmudic passage in Chullin 10a—I intentionally didn’t send you there—the Talmud learns the law of an original presumption status. There are all kinds of presumption concepts in Jewish law, many types and categories and so on. Right now we’re talking about what’s called an original presumption status. An original presumption status means the assumption that what was, is what will continue to be, as long as it hasn’t been proven to have changed. So the Talmud says: From where do we know this, that the Sages said, “Establish the matter on its presumption status”? Where do we learn what the Sages say, that when we have a doubt we should establish the matter on its prior presumption status, leave it in the status it had before? Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan: Scripture says, “Then the priest shall go out of the house to the entrance of the house and quarantine the house for seven days.” This is talking about house afflictions. A house suspected of having leprosy-like affliction, so the priest checks it, and if there is room for suspicion and he can’t decide, he closes the house and comes back a week later. Then he goes outside, closes the door, says okay, from now on this house is sealed, nobody goes in, and we’ll come back in another week to check whether the affliction got smaller, got larger, and based on that they decide the law of the house.
[Speaker C] COVID quarantine.
[Rabbi Michael Abraham] The Talmud asks: Maybe by the time he goes out and comes back, the size has already decreased? It could be that by the time he leaves the room where he saw the affliction and goes out beyond the main door and locks it, in the meantime the affliction itself has already shrunk, and once it drops below some minimum size, then the house no longer needs to be quarantined. So how can you, at the time you’re shutting the outer door, rely on the size of the affliction being what it was when you saw it? Maybe it changed. The Talmud says: Isn’t it because we say, establish it on its presumption status? The working assumption is that the affliction remains the size it was until proven otherwise. In another week we’ll come back and check it; if it got smaller, then it got smaller; if not, then the assumption is that it’s the same size. And from here they basically learn the law of presumption status. There would be a lot of room to analyze this source, because on the face of it you could understand that here the presumption is just common sense. Fine—within one minute it’s not likely that the size of the affliction changes. Even if it can change, that doesn’t happen in the few seconds between leaving the room where the affliction was and going out the main door of the apartment or the house. So here you could even say there’s a logical reason to follow presumption status. I assume that in legal systems too, or just in everyday life, if we saw something, our assumption is that it’s still like that even a few seconds later. We come and tell someone, listen, in that house I saw such-and-such. How do you know? Maybe by now it’s no longer like that. The assumption is that in those few seconds it didn’t change. In other words, there’s something here—something reasonable. In Jewish law, though, the concept of logical inference, the concept of original presumption status, gets expanded far, far beyond that reasonable context. Meaning, in Jewish law this concept becomes a sweeping rule for handling cases of doubt. Whenever we’re in a state of doubt, we assume that the last state known to us still exists now, unless proven otherwise. There was a ritual bath with forty se’ah, and someone immersed in it a day later. How do you know maybe in the meantime water evaporated and now it’s lacking? I don’t know. Yesterday I saw that it had forty se’ah. It wasn’t proven to have changed, so the assumption is that it still had forty se’ah and one can immerse in the ritual bath, and the man or woman is pure.
[Speaker C] So is there a difference between, let’s call them, neutral presumptions and presumptions about human behavior?
[Rabbi Michael Abraham] Presumptions about human behavior are not original presumption status.
[Speaker C] Let’s say I saw in the Ritva that with a priest we assume he’s fit, and he certainly didn’t marry a disqualified woman in order to profane his offspring. Okay. So because of that we leave him in some kind of presumption of fitness because we rely on him.
[Rabbi Michael Abraham] No, that’s a presumption
[Speaker C] of—
[Rabbi Michael Abraham] fitness. That’s not a presumption about human behavior. We don’t—the presumption is not that he didn’t do anything. The presumption is that this is his status. We’re discussing status, on the halakhic plane. We’re not discussing the question of what he will do. The fact that someone didn’t do something until now does not create a presumption that he won’t do it tomorrow morning. Human behavior is a matter of human decision in every moment, and whenever they want they can decide differently. But halakhic status doesn’t change until we have proof that it changed. Okay?
[Speaker A] Iris has a question in the chat. What? Iris has a question in the chat.
[Rabbi Michael Abraham] Ah, okay. What is it? In any time span. Iris asks over what span of time this changes—over any span of time. Until it changes, we assume—until we have proof that it changed, we assume it didn’t change, even five hundred years later. That’s the assumption, because this is a legal assumption. And that’s why I said that beyond ordinary logic—where of course there are reasonable time ranges in every context—in Jewish law we turn this into a formal rule. And the formal rule says that if you want to claim that a state changed, you need to bring proof. And if we’re in a situation of doubt, with no proof one way or the other, then you can’t assume the state changed; we assume, at least legally, that the state remains as it was.
[Speaker D] I wanted to ask whether this legal rule also applies in cases where we know for sure the state is unstable, that it’s liable to change. So is that a presumption—
[Rabbi Michael Abraham] that’s destined to change, a presumption status of something liable to change—that’s something destined to change. There are whole discussions in the Talmud. In principle, if it’s known from the outset that it’s destined to change, then there’s no original presumption status. Then we’re in a state of doubt. Meaning, if it was clear from the start that this is something that, let’s say, a minor girl, fine? We have a doubt whether she has produced two pubic hairs or not. Now, every young girl eventually matures—almost every one, aside from an aylonit and so on—but every young girl eventually matures. Therefore if we have a doubt whether she produced two hairs or not, there we probably would not leave her on her prior presumption status. Because you don’t need special proof to assume the situation changed; it was clear from the outset that at some point it would change, the only question is when. So in that case, simply speaking, the rule of original presumption status was not said. Okay? Now, in this broader sense, original presumption status is not a logical presumption, but what is called, in the language of the later authorities, in the yeshivot, a conduct presumption, as opposed to a clarifying presumption. There are clarifying presumptions—for example, the presumption that a person does not repay a debt before its due date. That’s a logical estimate. A person will keep his money as long as he can. There’s no reason to assume he repaid if he wasn’t obligated to repay yet. That’s a presumption in a completely different sense from the one we’re talking about here. The presumption that a person does not repay before the due date is a logical estimate or reasonable assessment of the situation in the world. Original presumption status is not a logical estimate; it’s a legal rule. And therefore in the yeshivot, or in the world of the later authorities, they call it a conduct rule. A conduct rule means it tells us how to act; it doesn’t tell us what reality will be. The presumption that a person does not repay before the due date is a presumption that tells us what reality is. Usually, unless proven otherwise, people don’t repay before the due date. That’s an assessment of reality, a law of nature, a claim about the world. Okay? By contrast, original presumption status is a legal presumption. Because on the legal level we are required to act as though the legal status has not changed until it is proven to have changed. Okay? So that’s called a conduct presumption. But there are medieval and later authorities from whom it seems that original presumption status also has some element of clarification. For example, we saw in the Talmud in Kiddushin—and it comes up again here in our topic—what in Kiddushin 66a, if you remember, regarding King Yannai. There we saw that his mother had been taken captive; it was a case of two against two there—two say she was taken captive, two say she wasn’t taken captive. And Tosafot there comments that King Yannai himself had no presumption status. His mother had a presumption status, but Yannai was born into an already doubtful situation. Therefore regarding Yannai there was no stage where he had a presumption of fitness and then a doubt arose; the doubt arises from the moment of his birth. Now there is a dispute among the later authorities—we won’t get into it now, among medieval and later authorities—whether the mother’s presumption status helps the son, or the daughter, or the son. This comes up mainly, by the way, in the Talmud in Ketubot with us on 26a; apparently we won’t get there now, but it’s another five folios. And there there is an opinion that says the mother’s presumption status helps the son or daughter. Meaning, if we say that there are two against two regarding the mother, and let’s assume that in two against two we follow presumption status, then we leave the mother with a presumption of fitness. Now Yannai is born. The claim is that Yannai too will be considered fit according to that approach. Why? Because if the mother is considered established in her presumption status, then since—well, he doesn’t have—
[Speaker C] a presumption, meaning his mother’s presumption status.
[Rabbi Michael Abraham] Right, but what’s the idea behind that? So there are disputes, but one direction is that since the presumption status has spread such that his mother is fit, then how can the son not be fit if the mother is fit? Therefore clearly the son is fit as well. In other words, the reason the mother’s presumption status helps the son is because we see the mother’s state as though it has been resolved. Meaning, the presumption says the mother is fit. Good—if the mother is fit, then obviously the son is fit. If we understand presumption status as a conduct presumption, then what we’re saying is not that the mother is fit, but that our conduct—the law tells us to behave as though she is fit. But that’s regarding the mother, because she has a presumption status. Regarding Yannai, we have no presumption status, and since the matter itself wasn’t resolved, regarding Yannai we’ll treat it as a doubt. But if we understand presumption as a clarifying presumption, then regarding the mother it’s not just that we’re commanded to act as though she is pure, but we say that she is pure—that it has been clarified, or determined, that she is pure. Well, if the mother is pure then certainly Yannai is pure too. So when they say that the mother’s presumption status helps the son or daughter, there are opinions that say that’s because they see presumption status as a clarifying principle and not just a conduct principle. How can that be? After all, it’s obvious that it doesn’t really clarify. The fact that the woman had a presumption of not having been taken captive, and now there are two witnesses saying she was taken captive and two saying she wasn’t taken captive—what, is there some logic saying that therefore she probably wasn’t taken captive? Of course not. It’s a doubt. Either these are right or those are right. What difference does it make what she was before? It’s clearly a conduct presumption. The claim is that when the Torah teaches us to follow original presumption status, it tells us: treat it as though that also clarifies the doubt. Not that it really clarifies the doubt, but the question is how the Torah defines it when it tells us to follow the presumption. Does it tell us: I’m telling you the doubt is not clarified, but you should behave as though the situation continues? Or does the Torah tell us: relate to it as though the matter is clarified, as though the doubt itself has been resolved—not just conduct, more than just conduct. But this is all “as if”—that is, no one really wants to claim that original presumption status actually resolves the doubt; there’s no logic in that at all. Still, this is important, and it will be important for us later too, to know that there are opinions that view presumption status as a clarifying principle and not just a conduct principle. Even though it’s clear that in essence it’s a conduct principle. The whole question is just what conduct the Torah told us to adopt. Should we act as though the doubt has been resolved, or act as though even though the doubt has not been resolved, the legal status continues? One of the implications is with regard to the child. Okay?
[Speaker C] It’s like in the law of nullification by majority—what is the status of the minority? Has it become majority?
[Rabbi Michael Abraham] You could, yes, you could see a similarity there too. There’s a responsum of the Oneg Yom Tov about that, yes. Okay, anyway, there are certain doubtful situations where we—at least, it depends on opinions and disputes among medieval and later authorities, and some of it is already in the Talmud itself—where one does not follow presumption status in cases of doubt. For example, there are opinions that want to say that in a legal doubt one does not follow presumption status. What does that mean? If we have a case where our doubt is not about what happened in reality, but rather our doubt is what law applies to this situation. The doubt is a doubt in the halakhic world, not in the factual world. That is called a legal doubt, as opposed to a factual doubt. In such a case there are opinions among the later authorities that one does not follow original presumption status. Why? Because original presumption status tells us: assume reality has not changed. But here my question is not whether reality changed or not, but what the law is. So what does that have to do with original presumption status? Okay? In other words, for example, in such a case there are opinions that say one does not follow original presumption status. By the way, this is mainly if we understand the presumption—what?
[Speaker A] We said that original presumption status doesn’t examine reality. What? We said it doesn’t relate to reality like—
[Rabbi Michael Abraham] Right, right, that’s my next point. It makes sense to say this according to the view that original presumption status does clarify. Again, halakhically or legally it doesn’t really clarify reality, but from the standpoint of the law we view it as though reality itself has been clarified. So that all applies where our doubt is really about reality. But if our doubt is about law, then it’s not relevant to say that reality was clarified. If we understand presumption status as a conduct rule and not as a clarifying rule, then ostensibly there should be no difference between a factual doubt and a legal doubt. If I’m in doubt and I don’t know what to do, assume the status continues. Okay? That’s basically my earlier point. Now there are more examples. For example, the example I’m obviously aiming at is our case of two against two. So in two against two there are opinions, as you know, that one does not follow presumption status—the view of Rashi here in our topic, the view that in two against two it’s a Torah-level doubt in tractate Yevamot, in the Yevamot passage, and one does not follow presumption status in two against two. Why? After all, if presumption status tells us what to do in a state of doubt, and two against two is a state of doubt, then the law should tell us: if you’re in doubt, follow the presumption status. Why in two against two don’t we follow presumption status? So here there are several possible formulations. One formulation is that two against two is not a state of doubt, but a state of two certainties. Because of the status of two witnesses in Jewish law, who have a kind of status of ultimate proof. You can’t rebut two witnesses, because that’s conclusive evidence—halakhically, of course. There is always some doubt, maybe they are lying after all, but halakhically we treat two witnesses as absolute proof. Now if absolute proof comes against absolute proof, what do you do? You can’t say the witnesses are doubtful, because two witnesses are something above all doubt. So there’s no choice but to say we have certainty against certainty here, not doubt. And certainty against certainty is not considered a doubtful situation about which the law tells me to follow original presumption status. Because I’m not in doubt; I know that this is true, and I know that its opposite is also true. Of course you can’t really say such a thing, but legally I—
[Speaker A] But that knowledge leads to doubt in the legal ruling.
[Rabbi Michael Abraham] Yes, but the doubt is not—the situation is not defined as a state of doubt. It’s defined as a state of two conflicting certainties. Okay? There are various examples of this; I didn’t want to get into side topics here… What?
[Speaker A] Where we read, “this one contradicts and this one contradicts,” so they don’t take it into account. There was somewhere—
[Rabbi Michael Abraham] I don’t remember. Anyway, the point is that in such a situation—I’ll maybe give a physics example, right? Think of, say, some mountain, okay? And on the mountain peak there’s a ball sitting. Okay? Now suppose it’s sitting exactly in the middle, so it won’t move, let’s say, and there’s no wind and nothing, so it’ll stay there forever, right? That’s what is called unstable equilibrium. The net force on it is zero, no force acts on it either right or left, and it doesn’t move because it has nowhere to move—in other words, it stays in place. There’s an opposite situation, where the ball is standing here in the middle and two forces are acting on it, one pushing right and one pushing left, and they balance each other. Active equilibrium, not passive. Okay? In that case too it stays in place. But there is a difference between the two situations. The first situation is doubt: there is no force either here or there. The second is two certainties: there is a force here and a force balancing it there. And similarly, that’s the distinction I’m making here. When I’m in doubt because I don’t know what reality is, that’s like the first example, unstable equilibrium, okay? When I say I have two against two, two witnesses this way and two witnesses that way, that’s parallel to stable equilibrium, because I know the truth this way and I also know the opposite truth. Then there is some collision here that I can’t resolve, but it isn’t defined as a state of doubt, because it can’t be that I have a doubt about witnesses—witnesses are absolute proof. Unless they were proven plotting witnesses, in which case of course—they’re worth nothing. But doubt can’t exist with witnesses, with two witnesses. Therefore in such a case it could be that the principle of presumption status does not apply. Okay? Original presumption status. Good. Now we’re starting the actual passages; that was the introduction. So let’s begin with the passage in Gittin. The Mishnah there says as follows: If she was standing in the public domain, and he threw it to her—he throws the bill of divorce to the woman who is standing in the public domain. If it’s closer to her, she is divorced. If the bill of divorce fell close to her, then she is divorced, because he gave it to her. If it’s closer to him, essentially the bill of divorce never left him, never reached the domain of the woman, so he didn’t give her the bill of divorce; she is not divorced. If it’s half-and-half, somehow equally close to the husband and the wife, she is both divorced and not divorced. We said, simply speaking: doubt. Okay? And likewise regarding betrothal, and likewise regarding a debt. Yes, if he throws her the betrothal document or the betrothal money, then it’s the same doubt. And likewise regarding debt: if a creditor said to his debtor, “Throw me my debt,” and he threw it to him—if it’s closer to the lender, the lender has acquired it. If it’s closer to the borrower, the borrower still owes it. If it’s half-and-half, they divide it. Right? I’m throwing him the money that I owe him. So if the money remains by me, I didn’t repay the debt and I still owe him. If it’s close to him, it’s as if I handed the debt back to him, I repaid the debt. If it’s half-and-half, then they divide it. So in such a case we have a state of half-and-half that creates doubt regarding betrothal and divorce. What is that state? So the Talmud says as follows: What does it mean, closer to her, and what does it mean, closer to him? Rav said: Her four cubits—that’s called closer to her; his four cubits—that’s called closer to him. Okay? A person’s four cubits in the public domain acquire for him, like courtyard acquisition. True, probably rabbinically, but it’s like courtyard acquisition. Therefore within her four cubits it’s called closer to her; within his four cubits it’s called closer to him. What is half-and-half? What is exactly in the middle? After all, if it’s within her four cubits that’s clear. Rav Shmuel bar Yitzchak said: For example, where both of them were standing within four cubits. Right? This one stood in—well, the bill of divorce fell and it was within his four cubits and within her four cubits, both of them.
[Speaker E] Their four cubits are both together in the same cubit?
[Rabbi Michael Abraham] Where the bill of divorce came to rest on the ground, it’s also within my four cubits and also within her four cubits.
[Speaker C] Their four cubits are identical.
[Rabbi Michael Abraham] No, they’re not identical; they can’t stand in the same place.
[Speaker C] No, they overlap.
[Rabbi Michael Abraham] They can’t stand in the same place.
[Speaker C] They share the same courtyard, as it were. Why not?
[Rabbi Michael Abraham] We’re talking about the public domain, not a courtyard. Four cubits around me in the public domain. Okay? Now, they’re not standing in the same place; they’re standing in two different places, but there is a certain area that is both within the husband’s four cubits and within the wife’s four cubits, and that’s where the bill of divorce fell. Okay—overlap. The Talmud asks: Then let’s see which of them got there first. Whichever one first took possession of those four cubits, that counts as his. And if you say they both came together, well, it’s impossible to be exactly simultaneous. It never happens at the exact same time; one of them always got there first. So that explanation was rejected. Rather, Rav Kahana said: Here we’re dealing with exactly eight cubits, and the bill of divorce extends from his four cubits into her four cubits. Okay? The distance between them is exactly eight cubits. Now the middle of the bill of divorce is on the borderline. Half the bill of divorce is in my area, half the bill of divorce is in her area. The Talmud asks: But it’s still attached to him. As long as the bill of divorce has not left his domain, it doesn’t help that it reached hers. In order for the bill of divorce to count as having been given, it has to leave my domain, not just arrive in hers.
[Speaker E] It still remains in his established status.
[Rabbi Michael Abraham] Yes, so therefore that can’t be it. Rather, Rava and Rav Yosef both said—I am marking this—here we’re dealing with two sets of witnesses. One says it was closer to him, and one says it was closer to her. Meaning, the first two possibilities were rejected. Now the first remaining explanation is that of Rava and Rav Yosef: two against two. Two witnesses say it was closer to him; two witnesses say it was closer to her. That’s one possibility. Second possibility: Rabbi Yochanan says, we learned “closer to her” even if it’s a hundred cubits away, and “closer to him” even if it’s a hundred cubits away. What is half—meaning, not four cubits, but whatever is closer; I don’t care how much, even if it’s one kilometer from him and two kilometers from her, then that’s what is called closer to him.
[Speaker F] Fine. In any case you measure the area and see which is closer.
[Rabbi Michael Abraham] Yes. No longer connected to acquisition. Fine, okay. What is half-and-half—
[Speaker F] half-and-half?
[Rabbi Michael Abraham] So he can guard it and she can’t guard it—we’ll leave that, it’s less important for us. What matters for us is that Rabbi Yochanan wants a different explanation from that of Rava and Rav Yosef. Okay? Not what he does say—I don’t care. Because for us we’re dealing with the topic of two against two. So Rava and Rav Yosef basically explain the doubt in the Mishnah in Gittin as a case of two against two, and Rabbi Yochanan does not accept that explanation. That’s what matters. What he does instead isn’t important. So we have a dispute, okay? What’s the dispute really? In the Mishnah itself it says what the law is in the case of not divorced—sorry, what the law is in a half-and-half case. I’m marking the Mishnah. She is both divorced and not divorced, right? Let’s enlarge the screen a bit maybe. Okay, both divorced and not divorced—doubt. What about the presumption status? The woman had a presumption of being married, right? Now he threw her a bill of divorce and there is doubt whether he gave her the bill of divorce or didn’t give her the bill of divorce. Ostensibly we should leave her with the presumption of being a married woman, the presumption of being married. Why do they say the situation is doubtful? They should have said she is not divorced. We see that one does not follow original presumption status, right? More than that, notice the interesting language the Mishnah uses. What does it mean to say, both divorced and not divorced? Why not just say doubt?
[Speaker A] Why—
[Rabbi Michael Abraham] Why not say doubt?
[Speaker A] Why? But is that only in the case of divorce, or in all cases of half-and-half?
[Rabbi Michael Abraham] We’ll still talk about that in Yevamot. In principle it’s in all such cases. Okay. So why use the language “both divorced and not divorced”? It seems to me the most natural explanation is exactly what I said above. After all, what it’s really saying here is that we don’t follow original presumption status, right? The woman is doubtfully divorced. But she had previously been a married woman, so why not leave her with the presumption of being a married woman? We have a doubt; we have no proof that she left that presumption status. So why do we nevertheless leave it as a doubtful situation and not rule that she is definitely a married woman and that’s it? Because she is both divorced and not divorced. This is exactly the case of two against two. The moment you have two against two, then I don’t say this is a doubtful divorce; she is definitely divorced and definitely not divorced. And because of that, one does not follow original presumption status. The Mishnah explains to me why we don’t follow original presumption status. After all, ostensibly this is a doubtful situation. As I said before, what is the explanation? Because two against two, from my perspective, is not a state of doubt but a state of two conflicting certainties. So if I have two witnesses saying she is divorced and two witnesses saying she is not divorced, then that state is not “possibly divorced.” That state is definitely divorced and definitely not divorced.
[Speaker A] And since I don’t have doubt—it’s both and both, yes.
[Rabbi Michael Abraham] And since I don’t have doubt—
[Speaker A] then there were two—
[Rabbi Michael Abraham] certainties. What?
[Speaker A] So I have a situation here of two certainties.
[Rabbi Michael Abraham] Yes, that’s what I’m saying. I already explained why there is a side to say that in two against two we don’t follow presumption status—because maybe we view the situation of two against two as a state of two certainties. What I’m trying to show is that in the Mishnah in Gittin, which in fact says that in two against two we don’t follow presumption status, according to the interpretation of Rava and Rav Yosef this is two against two. According to their interpretation, the Mishnah says that one does not follow presumption status, and how does it say that? “She is both divorced and not divorced,” which really smells like the explanation I gave earlier. In other words, we don’t follow presumption status because I have certainty that she is divorced and also certainty that she is not divorced, because I have two witnesses in each direction. And that is exactly the explanation for why we don’t follow the presumption status. Okay? Now I move to the passage in Yevamot. Okay. So the Talmud in Yevamot—I already gave you the background, yesterday I mentioned that I hadn’t included the background on the sheet, and Idit also said it would be worth giving some background. So I sent it to you by email; I hope you had time to see it. The principle is that a woman whose husband died and they have no offspring is obligated either in chalitzah or in levirate marriage. Just a second. So she is obligated either in chalitzah or in levirate marriage. Now if the woman is a forbidden relation to the brother who would perform the levirate marriage—the levirate marriage is with the brother, right?—if she is a forbidden relation to the brother who would perform the levirate marriage, for example she is his wife’s sister. Say two brothers are married to two sisters, Reuven and Shimon are married to Rachel and Leah. Okay? Reuven, Rachel’s husband, dies. Now Shimon should perform levirate marriage with Rachel, but Rachel is his wife’s sister, she’s Leah’s sister, and he’s married to Leah. So he can’t perform levirate marriage with his wife’s sister; she is a forbidden relation to him. Okay? So she is exempt from levirate marriage and from chalitzah, and she can go and marry someone else. She needs neither levirate marriage nor chalitzah.
[Speaker A] She is exempt from chalitzah too.
[Rabbi Michael Abraham] Okay. She doesn’t need anything. Now, what if Reuven has another wife besides Rachel? He has Zilpah too. Okay? Rachel is married to him and Zilpah is married to him. Now Reuven dies childless. So both Rachel and Zilpah require levirate marriage with Shimon. Now Rachel cannot enter levirate marriage with Shimon because she is a forbidden relation to him, right? Zilpah has no problem; she could marry Shimon. She is not a forbidden relation to him; she isn’t his wife’s sister. But since her co-wife was exempt from levirate marriage as a forbidden relation, she herself too is exempt from levirate marriage. That’s the rule: forbidden relations exempt their co-wives from levirate marriage. Okay? That’s the basic law. Just in the background you have to remember that the concept of levirate marriage itself includes permission for what would otherwise be a forbidden relation, because when Shimon marries his brother Reuven’s wife, she is forbidden to him, after all—his brother’s wife. But the law of levirate marriage permits that prohibition. So if there is an obligation of levirate marriage, then she will marry the brother. If there is no obligation of levirate marriage, then not only is she not obligated to marry him, she is forbidden to marry him; she is a forbidden relation to him. You have to understand that. Therefore whenever we have some doubt, we can’t do levirate marriage, because there is the problem that she is forbidden to him as his brother’s wife. And that’s exactly the next case.
[Speaker A] Wait, wait, wait—what? It’s true that you said—I didn’t understand. You said there is some rule that forbidden relations exempt their co-wives from chalitzah. But I didn’t really understand—maybe it’s not that important for our discussion of two against two—but why, for example, is Zilpah exempt from chalitzah? On what basis?
[Rabbi Michael Abraham] Because she was Rachel’s co-wife. After all, she and Rachel were both married to Reuven, right? Zilpah and Rachel were married to Reuven. So Zilpah is Rachel’s co-wife. Right? Co-wife meaning married together with her to the same man.
[Speaker A] Any co-wife is also exempt from chalitzah, in principle? I mean, if not every co-wife—
[Rabbi Michael Abraham] Not every co-wife. If the woman is a forbidden relation to the brother who would perform levirate marriage, and therefore he can’t perform levirate marriage with her, then he also does not perform levirate marriage with her co-wife. That’s the rule.
[Speaker C] The first woman grants all the others exemption. Yes.
[Rabbi Michael Abraham] Okay? Now, what happens if Rachel was only doubtfully betrothed to Reuven, while Zilpah was definitely his wife? Now Reuven dies.
[Speaker C] She’s forbidden to enter levirate marriage, right.
[Rabbi Michael Abraham] Reuven dies. So regarding Rachel there is no problem at all. Why? Because on the side that she was married to Reuven, right? After all, she is a forbidden relation to Shimon and is exempt from levirate marriage. On the side that she wasn’t married to Reuven, then again she is exempt from levirate marriage because she wasn’t married to him. So whichever way you look at it, with Rachel there is no problem. The problem that arises is what about Zilpah? Because on the side that Rachel was not married to Reuven, then Zilpah is not her co-wife, because only Zilpah is married to Reuven; Rachel isn’t his wife at all. Then Zilpah is obligated in levirate marriage if Reuven died. But if Rachel really was Reuven’s wife, then Zilpah is exempt from levirate marriage as Rachel’s co-wife. Are you with me? Or is this—these are the complications of tractate Yevamot. Okay.
[Speaker G] And in this case is she exempt from levirate marriage anyway and also from chalitzah, or does she need chalitzah?
[Rabbi Michael Abraham] Ah, so that’s the question. Now, that’s what the Mishnah says. So the Mishnah says as follows: And all of them, in cases where there was doubt regarding betrothal or divorce—yes, I’m reading the Mishnah in Yevamot—the co-wives perform chalitzah and do not enter levirate marriage. Meaning, Rachel, we said, needs neither levirate marriage nor chalitzah—she needs nothing, right? The co-wives perform chalitzah and do not enter levirate marriage.
[Speaker E] Why don’t they enter levirate marriage, wait Rabbi? In such a case, where Rachel is doubtful and Zilpah is definite, why shouldn’t he perform levirate marriage?
[Rabbi Michael Abraham] Because there is doubt, there is doubt whether she is the co-wife of a forbidden relation. Now once she is the co-wife of a forbidden relation—if Rachel was married to Reuven, then Zilpah is the co-wife of a forbidden relation. Now I don’t know whether Rachel was married to Reuven—that’s the doubt. So Zilpah is a doubtful co-wife of a forbidden relation. Now on the side that she is a co-wife of a forbidden relation and exempt from levirate marriage, it is forbidden to marry her, because she is his brother’s wife. After all, Shimon may not marry Reuven’s wife. Only if she is obligated in levirate marriage does that prohibition become permitted. Therefore she may not enter levirate marriage. It’s not just that she isn’t obligated; she is forbidden to enter levirate marriage, because here there is a doubt concerning a forbidden relation, which is a very severe prohibition. So what do we do? Since there is a doubt that maybe she is nevertheless obligated in levirate marriage, we do chalitzah instead. So she performs chalitzah and does not enter levirate marriage. Okay.
[Speaker C] Rachel also does chalitzah, right? No.
[Rabbi Michael Abraham] Rachel doesn’t need anything at all, because whichever way you look at it, if—
[Speaker C] on the side that she was married to him—
[Rabbi Michael Abraham] on the side that she was married, then she is a forbidden relation and exempt from—
[Speaker C] levirate marriage; she’s also exempt from chalitzah, obviously.
[Rabbi Michael Abraham] And on the side that she wasn’t married to him, then she doesn’t need levirate marriage at all because she wasn’t his wife. That’s why I said Rachel has no problem at all. The whole problem arises with Zilpah, because on the side that Rachel was married, Zilpah is exempt. But on the side that Rachel was not married, then Zilpah is just an ordinary yevamah; she needs levirate marriage. Okay, now the Talmud asks—how so? The Mishnah, sorry, it’s still the Mishnah. How so, doubtful betrothal? Yes, what does it mean that there was doubtful betrothal or doubtful divorce? If he threw her the betrothal and it was uncertain whether it was closer to him or closer to her, that is a case of doubtful betrothal. Exactly as we saw regarding doubtful divorce in the Mishnah in Gittin. But here there is a surprise: doubtful divorce—what is called doubtful divorce? He wrote it in his own handwriting and there are no witnesses on it; there are witnesses on it but no date on it; there is a date on it but only one witness—this is a case of doubtful divorce.
[Speaker E] Okay, the problem is with the bill of divorce, not the distance and not—
[Rabbi Michael Abraham] Why doesn’t it continue with the same kind of case as doubtful betrothal? Say doubtful divorce. In doubtful divorce too, you could say: he threw the bill of divorce, and it’s uncertain whether it landed closer to him or closer to her. Especially since we already saw that in the Mishnah in Gittin. So why does the Mishnah here in Yevamot choose a different situation of doubtful divorce?
[Speaker A] Because here there’s an expansion—we talked about this at some point—that if he didn’t write a date in the bill of divorce, then…
[Rabbi Michael Abraham] No, no, but why get into that? I’m asking: why not say that the doubt in divorce is the same picture as the doubt in betrothal? He threw her the bill of divorce, and it’s uncertain whether it landed closer to him or closer to her—that’s the doubt. What’s the problem?
[Speaker E] But in this situation of divorce, then after the fact she would be divorced. Why?
[Rabbi Michael Abraham] A doubt, like we saw in the Mishnah in Gittin. It’s known, I was…
[Speaker E] There’s some place where they explain it that way.
[Rabbi Michael Abraham] I don’t know what they explain; the Talmud—the Mishnah in Gittin—says it’s a doubt.
[Speaker E] Look, there’s an expansion here about the doubt and about the bill of divorce, but in the end it isn’t a recognized bill of divorce, but in the end…
[Speaker C] Can’t we say here the case of Rabbah and Rav Yosef about two against two?
[Rabbi Michael Abraham] Why not?
[Speaker A] Because…
[Speaker C] They’re talking here about the document itself. So what?
[Rabbi Michael Abraham] No, I’m talking about two against two. Why didn’t they set it up here as two against two, the way Rabbah and Rav Yosef set it up there? What’s the problem?
[Speaker A] Is there perhaps a question here of presumption in the case of…?
[Rabbi Michael Abraham] That’s what the Talmud goes into later. But right now we’re reading the Mishnah. So in the Mishnah, the obvious question is: why is the case of doubtful betrothal constructed the way the Talmud in Gittin constructed the case of the bill of divorce, while doubtful divorce—which really should have been exactly the same as there—we say is an entirely different case, which by the way isn’t really a case of doubt at all. The rabbis only said to treat it as a doubt, but really it isn’t a case of doubt at all. But I won’t get into that. So the Talmud says as follows. The Talmud itself asks this in Yevamot: “But with regard to divorce, why does it not teach the case of ‘closer to him, closer to her’?” Why? Why didn’t it make doubtful divorce there too in the same picture: he threw the bill of divorce, uncertain whether it landed closer to him or closer to her?
Rabbah said: “This woman stands in a presumption of being permitted to the market, and you come to prohibit her on the basis of doubt? Do not prohibit her on the basis of doubt.” What does that mean? Rachel was married to Reuven. Now Reuven threw her a bill of divorce, and it’s uncertain whether it landed closer to him or closer to her. What was her original status? She was betrothed to Reuven, right? And if so, obviously she is a forbidden relative. Since she is a forbidden relative, she is exempt from levirate marriage. Okay, and what about her co-wife Zilpah? She too is exempt from levirate marriage. Now a doubt arises about the divorce. There is a presumption that both of them are exempt from levirate marriage; they are permitted to the market, no levirate marriage is required. Now a doubt arises? We leave the situation in its prior presumptive status. That’s all. Therefore they didn’t set this up here as a case of doubt.
Now of course this clashes head-on with the Talmud in Gittin, because the Talmud in Gittin says that in such a case we do not rely on presumption, right? But that’s what the Talmud says here. I’ll continue. Then Abaye raises an objection—this is less important for our purposes—that in betrothal too, you could say the woman stands in a presumption of being permitted to the yavam, and so on. They bring in some rabbinic prohibition here. Abaye jumped on him. Moving on. I’m skipping a bit in the Talmud there in Yevamot, because those are somewhat side issues.
“And with regard to divorce, have we not learned?” What, do you want to tell me that in divorce in such a situation we follow presumption? But didn’t we learn in the Mishnah in Gittin—the Mishnah we saw above—“If she was standing in the public domain and he threw it to her: if it was closer to her, she is divorced; if closer to him, she is not divorced; if exactly in the middle, she is divorced and not divorced.” And we said: for what practical legal purpose? If he is a priest, she is forbidden to him. And if she is a forbidden relative, her co-wife requires halitzah. And we do not say that if you tell her to do halitzah, she may also do levirate marriage.” That’s the rabbinic law that appeared up above in the passage.
So the Talmud says there is a contradiction between the two passages. That passage there says we do not follow presumption, even regarding halitzah and levirate marriage. And the passage here says that regarding halitzah and levirate marriage we do follow presumption. So there is a contradiction between the passages.
The Talmud in Yevamot answers: Wait, wasn’t it stated about that: Rabbah and Rav Yosef both said, “Here we are dealing with two sets of witnesses”? It brings the Talmud in Gittin. After all, we learned in the Talmud in Gittin how the Talmud explained the Mishnah there. Rabbah and Rav Yosef explained that we are talking about two against two, two sets of witnesses. One says it was closer to her and one says it was closer to him, and therefore it is a Torah-level doubt. Whereas the Mishnah here is speaking of one set, so it is a rabbinic-level doubt.
This is the main passage for our purposes. What does that mean? The Talmud says: there in Gittin we are talking about two against two. Here we are talking about one set. Okay? In one set, we follow presumption. In two against two, we do not follow presumption. Why? The terminology the Talmud uses is that two against two is a Torah-level doubt. One set is a rabbinic-level doubt. We’ll still have to understand that terminology. But for our purposes, what it says is that in two against two we do not follow presumption.
What is “one set”? It means one set that didn’t know whether it fell closer to him or closer to her. And we have two witnesses, not two and two. This is not certainty against certainty. It’s one doubtful set. Okay? So in such a situation we follow presumption, because it’s a rabbinic-level doubt.
The Talmud asks: And how do you know that our Mishnah is speaking of one set? Why set up our Mishnah as one set? Set it up as two sets, like in Gittin, and everything will be fine.
The Talmud says: Because it is analogous to betrothal. Just as betrothal is with one set, so too divorce is with one set. After all, in our Mishnah in Yevamot we are not dealing only with bills of divorce; the Mishnah deals with doubtful divorce. In Yevamot the Mishnah deals with both doubtful betrothal and doubtful divorce. Since in doubtful betrothal we are talking about a doubt involving one set, so too in doubtful divorce we are talking about a doubt involving one set.
The Talmud asks: And betrothal itself—how do you know it is with one set? Maybe it is with two sets of witnesses? In betrothal too, how do you know it’s one set? Maybe it’s two sets of witnesses, and then in divorce too you could set it up with two sets of witnesses just like the passage in Gittin.
The Talmud answers: If it were with two sets of witnesses, she should enter levirate marriage, and there would be nothing wrong with that. Because with two sets of witnesses, she could enter levirate marriage. Because in doubtful betrothal that means she had the presumption of being unmarried. With the presumption of being unmarried, she is in effect unmarried and can enter levirate marriage. “Witnesses are standing and saying it was closer to her, and you say she should enter levirate marriage and there is nothing wrong with that?” How can you say that? There are two witnesses here saying it was closer to her—sorry, closer to her—and she is not betrothed, and then you say she should enter levirate marriage?
Then the Talmud says—and this is the important point for our purposes—“Furthermore, even in two sets of witnesses it is also a rabbinic-level doubt.” In the earlier answer you assumed that two against two is a Torah-level doubt, and therefore we do not rely on presumption. One set is a rabbinic-level doubt, and therefore we do rely on presumption. But I’m saying: I don’t understand. Two against two is also a rabbinic-level doubt, and therefore you could have set it up here as two against two and still followed presumption. What’s the problem? Because two against two is a rabbinic-level doubt.
How do I know that? This is against Rabbah and Rav Yosef in Gittin, of course, right? Because they say that in two against two we do not follow presumption—or in the language of the passage in Yevamot, they say that two against two is a Torah-level doubt, right? The Talmud here says: what do you mean? Two against two is a rabbinic-level doubt. I even have proof.
What is the proof? “Furthermore”—I’m now reading the end of the passage in Yevamot—“even in two sets of witnesses it is also a rabbinic-level doubt, because we say: place the two opposite the two, and place the woman in her presumption.” Yes, we do establish on the basis of presumption; two against two is a rabbinic-level doubt. How do I know? “Just as in the case of the property of Bar Shtiya”—which by the way is a passage that appears here too on page 20; we skipped it. On page 20, Bar Shtiya sold property.
Bar Shtiya was a Jew who was sometimes insane and sometimes sane. Meaning, he had intermittent insanity. Sometimes he was a little crazy and sometimes he was… at times insane, at times healthy. “Healthy” meaning sound of mind, okay. Then two came and said: when he was healthy, he sold. Yes, he sold the land when he was healthy. And then two came and said: when he was insane, he sold. Sold, sorry, not bought. He sold the land when he was insane.
And Rav Ashi said: place the two opposite the two, and establish the land in the possession of Bar Shtiya. Since Bar Shtiya was the original possessor—he was known as the owner of the land—there is a doubt whether when he sold it he was sane, in which case the sale takes effect, or whether he was insane, in which case he cannot sell; he has no legal standing and cannot sell. Since that is so, we establish the land in his possession, because we have a doubt.
Now this is a doubt of two against two. Do we establish on the basis of presumption in a case of two against two? We see that we do. A sign that two against two is a rabbinic-level doubt. And if so, says the Talmud, then you could also have set up the Mishnah in Yevamot regarding doubtful divorce as two against two, and also the doubtful betrothal as two against two, and followed the presumptions, and everything would have been fine.
In short, that answer falls away. You can’t set it up here as two against two, and then they look for other answers. And here I already told you to stop, because the Talmud then goes back to discussing what exactly the Mishnah in Yevamot is talking about. That’s not important for our purposes. What is important for our purposes is what the Talmud says about cases of two against two.
What emerges from the Talmud here? Let’s summarize. What emerges from the Talmud here is that in the initial assumption, we had the initial assumption that two against two is a Torah-level doubt, meaning: we do not follow presumption, the original presumption. In the conclusion, two against two is a rabbinic-level doubt; yes, we do follow presumption. What is the proof of that? From Bar Shtiya, where we see that we follow presumption.
So according to the conclusion of the Talmud in Yevamot, what comes out? Two against two is a rabbinic-level doubt, right? There was an initial assumption that it wasn’t, but in the conclusion it is. But the initial assumption had brought Rabbah and Rav Yosef, and Rabbah and Rav Yosef in Gittin say explicitly that we do not follow presumption. That means that two against two is a Torah-level doubt. There is a contradiction between the passages. The Talmud in Gittin assumes that two against two is a Torah-level doubt; the Talmud in Yevamot concludes—there was an initial assumption otherwise, but in the conclusion—two against two is a rabbinic-level doubt, and we follow presumption. What do we do?
So, this is why I deliberately mentioned to you, when we read the passage in Gittin, that there is another answer there by Rabbi Yohanan. Why did Rabbi Yohanan need another answer? After all, you have Rabbah and Rav Yosef saying—Rabbah and Rav Yosef say that here two against two is a Torah-level doubt, and therefore we do not follow presumption there. Why did Rabbi Yohanan need a different answer? Maybe because he held that two against two is a rabbinic-level doubt, and therefore he did not accept the answer of Rabbah and Rav Yosef. That is exactly the point of his dispute with them.
If so, then you can reconcile the two passages. The passage in Yevamot initially brought Rabbah and Rav Yosef as the initial assumption. In the conclusion it brought the property of Bar Shtiya, and we rule like Rabbi Yohanan, and therefore two against two in the conclusion is a rabbinic-level doubt, and the law is not ruled like Rabbah and Rav Yosef. True, they hold that two against two is a Torah-level doubt, but the law is not in accordance with them. This is a dispute among Amoraim between Rabbah and Rav Yosef and Rabbi Yohanan. In the Talmud in Gittin it remains unresolved; the Talmud in Yevamot resolves it because of Bar Shtiya. From here we see that the law is like Rabbi Yohanan, that two against two is a rabbinic-level doubt. Okay, that is one seemingly compelling possibility.
Tosafot in Yevamot—I told you to read it—Tosafot in Yevamot says as follows: “Even two sets of witnesses are also a rabbinic-level doubt,” says Tosafot. Tosafot asks: “And if you say: since we conclude”—right? after all, the conclusion is that in two sets of witnesses it is a rabbinic-level doubt—“why then did Rabbah and Rav Yosef strain to set up that case in Gittin as involving two sets of witnesses?” What is he asking? Since the conclusion of the passage in Yevamot is that two against two is a rabbinic-level doubt, why did Rabbah and Rav Yosef in tractate Gittin set it up as two against two? After all, two against two is a rabbinic-level doubt. They assume…
[Speaker C] Why—maybe this is a unique case, a married woman, so they were stricter?
[Rabbi Michael Abraham] Okay, wait, we’ll see in a moment—that could be an answer—but right now I’m talking about the question. Because they held that two against two is a Torah-level doubt. The Talmud here, in the conclusion, understood that two against two is a rabbinic-level doubt like Rabbi Yohanan. You can see that Tosafot did not learn it that way. Tosafot understood that there is no dispute between Rabbah and Rav Yosef and Rabbi Yohanan. Therefore there is a contradiction between the passages.
But more than that, notice—and this is an important point—how does he ask the question? He doesn’t ask about a contradiction between the passages. He doesn’t ask—after all, what should he have asked? He should have asked: how does the interpretation of Rabbah and Rav Yosef help, that we are dealing with two against two? After all, they came to explain why the Mishnah there does not rely on presumption, right? In doubtful divorce, why doesn’t the Mishnah rely on presumption? They said: because it’s talking about two against two.
What should Tosafot have asked? That setting it up as two against two doesn’t help, because even in two against two we establish on the basis of presumption, since two against two is a rabbinic-level doubt, right? That’s what Tosafot should have asked. But he didn’t ask that. What he asked was: why did you need to get to two against two? You could have explained the same thing with one set.
I don’t understand. With one set, do we follow presumption or not? Yes. Right, two against two is a rabbinic-level doubt. And with two sets of witnesses? Yes, that too is a rabbinic-level doubt; we follow presumption there too, right? So that means that there it couldn’t have been set up either with one set or with two sets, because the Mishnah there says that we do not follow presumption. The Mishnah there says “divorced and not divorced”; it’s a state of doubt, and we do not follow presumption. So according to which view can you explain this? If two against two is a rabbinic-level doubt or if two against two is a Torah-level doubt? Only if two against two is a Torah-level doubt.
[Speaker D] It doesn’t matter!
[Rabbi Michael Abraham] No—only if two against two is a Torah-level doubt. If two against two is a rabbinic-level doubt, then we follow presumption, so it doesn’t fit the Mishnah there.
[Speaker D] But what if there’s only one pair?
[Rabbi Michael Abraham] Even worse! That also won’t work. This doesn’t work at all with witness-doubts; it can’t be explained at all through witness-doubts. But that’s not what Tosafot asks. Tosafot asks: why don’t you set it up… why do you set it up as two against two? Set it up as one set. Somehow, according to Tosafot, it appears that both of those options can explain the Mishnah in Gittin. And then he really explains: so why did they choose specifically two against two? Because the language “half and half” sounds more like two against two. Just a linguistic question. But on the principled level, it could have been explained either with one set or with two sets.
[Speaker D] But with one set, how does he explain it?
[Rabbi Michael Abraham] That’s what I’m saying—how can that be? What difference does one set or two sets make? In both cases we follow presumption, if you say that two against two is a rabbinic-level doubt.
[Speaker D] But here I have a doubt.
[Rabbi Michael Abraham] So then how do they say it? How do they explain the Mishnah in Gittin, which says that we do not follow presumption? You can see that Tosafot understood that according to the one who says two against two is a rabbinic-level doubt, we still do not follow presumption. Even according to the one who says two against two is a rabbinic-level doubt, we do not follow presumption. That is against Rashi. It’s just that we do not follow presumption rabbinically, not on the Torah level.
[Speaker D] I understand, sorry, Rabbi. Yes. I didn’t understand, but there, if we’re talking about one set, then the doubt is in reality, right? Where did the bill of divorce fall?
[Rabbi Michael Abraham] Correct. In any case the doubt is in reality.
[Speaker D] Yes, but what exactly happened. And there’s a doubt here, and it’s a rabbinic doubt. Rabbinic. Right. And we do not follow presumption in such a case, right?
[Rabbi Michael Abraham] That’s how Tosafot understands it. Because Tosafot says—Tosafot says that Rabbah and Rav Yosef could have explained the Mishnah there either with one set or with two sets, because we rule that in two sets, two against two is a rabbinic-level doubt, and therefore in both of those possibilities they could have explained the Mishnah. They chose the option of two sets only for linguistic reasons, but in terms of the law of the Mishnah, both explanations are possible.
Now at first glance, if you learn like Rashi, neither explanation is possible. Not that both are possible—both are impossible. Because if two against two is a rabbinic-level doubt, then yes, you do establish on the basis of presumption. And with one set, it is certainly a rabbinic-level doubt, where we establish on the basis of presumption. So how could you explain the Mishnah in Gittin that way, when it says that we do not follow presumption? Since Tosafot did not learn the dispute here like Rashi.
Rashi understood the dispute as whether two against two is a rabbinic-level doubt and we follow presumption, or two against two is a Torah-level doubt and we do not follow presumption. Tosafot understood that in any case, with two against two, we do not follow presumption. The question is whether rabbinically we do not follow presumption, or on the Torah level we do not follow presumption. But in any case we do not follow presumption. Therefore there is no problem: with two against two you can explain the Mishnah in Gittin even according to the one who says two against two is a rabbinic-level doubt. Because we do not follow presumption, just only rabbinically and not on the Torah level. Are you with me?
[Speaker D] Is there some indication toward this approach—whether we do or do not follow presumption—for deciding whether it is Torah-level or rabbinic?
[Rabbi Michael Abraham] No, that’s two different things: that’s Rashi and that’s Tosafot; you’re mixing them.
[Speaker D] According to Rashi, the argument is over whether we follow presumption.
[Rabbi Michael Abraham] According to Tosafot there is no argument: we do not follow presumption. The whole question is only whether we do not follow presumption rabbinically or whether we do not follow presumption on the Torah level. Is not following presumption just a rabbinic stringency?
[Speaker D] What? According to Tosafot, I don’t care whether it’s rabbinic or Torah-level—we do not follow presumption.
[Rabbi Michael Abraham] But I don’t know whether it is rabbinic or Torah-level, in two against two.
[Speaker D] No, but it matters. It matters whether it’s rabbinic or Torah-level. What happens if… But I can’t know.
[Rabbi Michael Abraham] Right, right. And therefore Tosafot says that you could have set up the Mishnah in Gittin with either of the two possibilities, whether one set or two sets.
[Speaker C] According to Tosafot, is there a situation where we do follow presumption, or never?
[Rabbi Michael Abraham] In doubts that are not witness-doubts, or not doubts concerning forbidden relations, which are more severe—or it depends on different answers; we’ll get there in a moment. Okay? But for our purposes, what is important…
[Speaker C] What? But according to Rashi, when I have two against two rabbinically, then yes, we do follow it?
[Rabbi Michael Abraham] Yes, we follow presumption, yes. Basically what comes out is like this: we have two approaches among the medieval authorities to how to understand the dispute over whether two against two is a Torah-level doubt or a rabbinic-level doubt.
Rashi’s approach: the dispute is over the question of whether we follow presumption or do not follow presumption. Then the terminology “rabbinic-level doubt” or “Torah-level doubt” is unclear. What does it have to do with Torah-level or rabbinic? You’re asking whether we follow presumption or not, so just say: in two against two, do we follow presumption or do we not follow presumption? What is this expression, “two against two is a rabbinic-level doubt” or “two against two is a Torah-level doubt”?
According to Tosafot, the dispute is not over whether we follow presumption or not. Everyone agrees that we do not follow presumption. The question is whether not following presumption is by Torah law or by rabbinic law. Then the terminology is clear. “Two against two is a rabbinic-level doubt” means: first of all, two against two is a doubt. What does that mean, a doubt? That we do not follow presumption. Rather, we apply the laws of doubt. The question is whether the fact that this is treated as a doubt is rabbinic, or whether the fact that this is treated as a doubt is by Torah law. The rabbinic and Torah-level labels are not about the quality of the doubt, but about whether my obligation here to remain in doubt and not follow presumption is an instruction of the sages or a law of the Torah. Then the terminology “rabbinic-level doubt” or “Torah-level doubt” is clear here according to Tosafot.
According to Rashi, the terminology is not clear. It seems to me that what you have to say according to Rashi is that the terminology “rabbinic-level doubt” or “Torah-level doubt” refers to the strength of the doubt. “Two against two is a Torah-level doubt” means this is a strong doubt, and since it is a strong doubt, you cannot follow presumption. “Two against two is a rabbinic-level doubt” means this is a light doubt, an ordinary doubt, and in an ordinary doubt, yes, we do follow presumption. In other words, the Torah-level and rabbinic labels refer to the type of doubt, not to the question of for what reason we do not follow presumption. Whether we do or do not follow presumption is the result. “Torah-level doubt” or “rabbinic-level doubt” asks what the force of the doubt is. Is it certainty against certainty, or doubt against doubt? And the consequence is whether we follow presumption or not follow presumption, which is what I discussed earlier—yes, divorces and does not divorce; divorced and not divorced. So that is probably the difference between Rashi and Tosafot.
Now, I went into the passage in Kiddushin on page 66, but we actually already saw that in the previous class, so I’ll spare us that. Now let’s move on to explaining the dispute. I’m really doing this schematically so that we can finish this passage today.
Let’s read Kovetz Shiurim. Kovetz Shiurim on Bava Batra—this is a passage on page 32 where the issue of two against two also comes up. The Talmud says—and the Kovetz Shiurim says as follows: there the situation is that you have two witnesses against two witnesses, and a public rumor emerged. A rumor emerged, say, on the question whether the woman is divorced or not divorced, and a rumor spread about her that she is divorced. The question is whether the rumor helps decide a doubt of two witnesses against two witnesses. Fine?
So Rav Elchanan says as follows: “And the reason the rumor is ineffective in disqualifying him as before the witnesses came, because once there is two against two, the rumor does not help. Rabbenu Yonah explained that a rumor is no better than two witnesses, and this is like what Tosafot wrote regarding a ‘migo’ in relation to two, as one hundred.” What does that mean? He says like this—we already saw this reasoning once. When I have two witnesses against two witnesses, and in favor of one of the sets there is a migo, does that help? No. So Tosafot says it doesn’t help. Why not? Think—suppose this migo were equivalent to two witnesses. Then what would we have here? Four witnesses against two. But two are like one hundred. Four witnesses have no advantage over two. Now a migo is even weaker than two witnesses. So will a migo plus two witnesses overcome two witnesses?
[Speaker D] It doesn’t help—we don’t say that. No…
[Rabbi Michael Abraham] This is not a case of migo in the face of witnesses. No, no, it has nothing to do with migo in the face of witnesses. Here, together with the migo, there are also witnesses. There is a migo and witnesses against witnesses. Rather, Tosafot says: even if this migo were literally like two witnesses, it still would not help, because it would be four witnesses against two. So if the migo, which is even weaker than two witnesses, then certainly a migo plus two witnesses will not help against two witnesses. And the same with a rumor: that’s how Rabbenu Yonah explains it. If there is a rumor plus two witnesses, that does not help against two witnesses, because a rumor is certainly not something stronger than two witnesses, and even two witnesses would not help decide two against two. So a rumor does not help.
Now the important point for our purposes. The Kovetz Shiurim continues: “But presumption does help even in two against two.” What is he saying? In contrast to migo and rumor, presumption helps even in two against two. Which way is he going here? Two against two is a rabbinic-level doubt, right? After all, he says that in two against two we follow presumption. So right now he is explaining the view that two against two is a rabbinic-level doubt. Right?
So he asks: how can that be? Migo and rumor do not help, so why does presumption help decide a doubt of two against two? He says: because presumption is not in the category of testimony. Presumption is not evidence; it is not in the category of testimony. “And his meaning is that presumption does not clarify the event; rather, when there is doubt, we do not remove the matter from its presumptive status. And this applies also in a doubt of two against two.”
What is he saying? He says like this. Rumor and migo are pieces of evidence. When you have rumor or migo plus two witnesses against two other witnesses, that cannot decide the issue; it is balanced. Because it is no better than four witnesses against two, and rumor or migo is not evidence stronger than two witnesses. So they cannot decide against the two witnesses standing opposite them.
But presumption is not evidence at all; presumption is a rule of conduct. Remember the introduction I gave? Presumption is a practical rule. What does that rule say? If you don’t know what to do, go with the presumption. In two against two, do you know what to do? No. So go with the presumption. It’s not that the presumption joins the two witnesses and decides against the other two witnesses. Presumption is not even playing on the evidentiary field. On the evidentiary field I have two witnesses against two. Now I don’t know what to do. Ah, I don’t know what to do? So I move to another field—the field of rules of conduct. There I look for guidance from the Torah: what do I do when I don’t know what to do, when I have no evidence for either side? One of the rules is presumption. Presumption tells you: if you don’t know what to do, leave the situation as it was. Follow the original presumption. And therefore presumption can indeed decide a doubt of two against two, unlike migo and unlike rumor, because presumption is not clarification. No clarification can decide when I have a doubt of two against two, because no clarification can be stronger than two witnesses. But if presumption does not operate on the plane of clarification—presumption is a rule of conduct—then what is the problem? In two against two also, I don’t know what to do. Every time I don’t know what to do, the practical rule tells me: conduct yourself according to the original presumption.
Rav Elchanan says—I continue—“And that is according to the formulation that two against two is a rabbinic-level doubt.” That is only according to the formulation that two against two is a rabbinic-level doubt, where we follow presumption. “But according to the formulation that two against two is a Torah-level doubt, he holds that even regarding presumption we say that it is no better than two witnesses in a place of two against two, because two are like one hundred.”
In other words, what does the one who says that two against two is a Torah-level doubt hold? That presumption is a clarifying rule, not a practical rule. And I already pointed out in the introduction that of course he does not mean that presumption really clarifies reality; logically there is no clarification here. Rather, the practical rule tells me to treat presumption as though it were a clarifying rule. Fine—so let’s treat presumption as though it were a clarifying rule, as though it were some kind of migo, for example, or something like that. What happens in such a situation? Obviously it cannot decide a doubt of two against two, because no piece of evidence added to two witnesses can help them decide against two witnesses standing opposite them. And if I view presumption on the evidentiary plane, then it cannot help in two against two. That…
[Speaker D] Means it joins the basket of testimonies and evidence. Right. But the dispute over whether two against two…
[Rabbi Michael Abraham] …is a rabbinic-level doubt or a Torah-level doubt is basically a dispute over the nature of presumption. Is presumption a rule of conduct, or is presumption a clarifying rule? If it is a rule of conduct, then it works even for two against two. If it is a clarifying rule, then it doesn’t work for two against two.
[Speaker D] Okay. Now, this explanation, by the way, also appears in the responsa of Rabbi Akiva Eiger that I referred you to. Rabbi Akiva Eiger says something similar. I’m not going to read his language now, but for example Rabbi Akiva Eiger—maybe I missed something here, I’m really sorry, because I didn’t sleep much after a wedding. What is the connection between saying it is Torah-level and saying presumption is a clarifying rule?
[Rabbi Michael Abraham] You didn’t miss a thing. You’re sharp as a razor. There is no connection. This is indeed difficult in what the Kovetz Shiurim says. The wording is very difficult. Because from the wording we see that the question is whether two against two is a rabbinic-level doubt or a Torah-level doubt. According to Rav Elchanan, this is not really a question about the doubt of two against two at all. The question is how we conceive of presumption. You should have explained to me whether presumption is rabbinic or whether presumption is Torah-level; then maybe I would understand. But how does that fit into the wording “two against two is a rabbinic-level doubt” and “two against two is a Torah-level doubt”? Fine. The wording of this explanation is very difficult. Logically you can understand it, but in terms of the wording it is very difficult.
Let me just add what Rabbi Akiva Eiger adds on this issue. What happens if I have the presumption that a person does not pay before the due date, and two against two? A person claims that he paid, and there is a presumption that a person does not pay before the due date. Now he claims that he paid within the time; there is a presumption against him. Now two witnesses come and say that he paid within the time, and two witnesses say that he did not pay. But this is now a clarifying rule. The presumption is that a person does not pay before the due date.
[Speaker D] According to everyone, that is a clarifying rule.
[Rabbi Michael Abraham] In such a situation, according to Rabbi Akiva Eiger and the Kovetz Shiurim, there will be no dispute. Everyone will agree that we do not follow the presumption—that two against two is a Torah-level doubt in that context. Meaning that we do not follow presumption, right? That is what Rabbi Akiva Eiger explains.
[Speaker D] Could you explain that two against two behaves differently in different cases in relation to presumption? When there is one kind of presumption, we treat it as though two against two is Torah-level, and when there is a presumption as a clarifying rule…
[Rabbi Michael Abraham] Yes, but I’m saying the wording is difficult. Because the dispute should have been phrased not as “is two against two a Torah-level doubt or a rabbinic-level doubt,” but rather as whether the original presumption is Torah-level or rabbinic.
Now in fact, perhaps what one could maybe explain similarly—not exactly the same way, but similarly—is this: if I understand, as I said before, that two against two is a strong doubt because it is certainty for each side—not doubt on each side, but a stable equilibrium, not an unstable equilibrium—which is what we inferred in the Mishnah in Gittin: “divorced and not divorced.” Okay? Then I am really saying: “two against two is a Torah-level doubt” means it is a strong doubt. I have two witnesses in each direction. And therefore we do not follow presumption. Why?
[Speaker D] Because it adds nothing.
[Rabbi Michael Abraham] Exactly, because nothing can add to two witnesses. Then the assumption is that presumption is a clarifying rule. But since two against two is a Torah-level doubt, the clarifying rule will not help me. But if two against two is a rabbinic-level doubt, then what am I really saying? That the two witnesses cancel out or offset the other two witnesses. I do not see this as certainty against certainty; it reverts to an ordinary doubt. That is why it is called “two against two is a rabbinic-level doubt,” and then presumption can decide the issue.
But if I am right in this explanation—which does fit the wording better—then the assumption is that presumption is a clarifying rule according to both views. Whether two against two is a rabbinic-level doubt or a Torah-level doubt, presumption is a clarifying rule. The dispute is only over the nature of the doubt in two against two. Is two against two still two witnesses against two witnesses, or after they clash is it as though there are no witnesses here at all, neither for this side nor for that side? Then presumption can come and clarify everything.
What in the language of the later authorities is called—we won’t have time to get into this—what is called in the language of the later authorities: is two against two “as though it is present” or “as though it is absent”? Is two witnesses against two witnesses as though they both remain standing there, continuing to face each other, in which case presumption cannot help at all as a clarifying rule? Or does two witnesses against two witnesses mean that they offset one another, so there are no witnesses in any direction? Then presumption comes and decides. Okay?
But notice: even this explanation, which is already a bit closer to Rabbi Akiva Eiger and the Kovetz Shiurim, is still not really what they say. Because they argue that the dispute is about the nature of presumption, while I am arguing that the dispute is about the nature of the doubt in two against two. Presumption is in any case clarifying. The question is only the nature of the doubt in two against two. That is the question.
Okay. Now, as I said earlier, according to Tosafot… so we have two explanations according to Rashi. Rashi explains whether two against two is a Torah-level doubt or a rabbinic-level doubt by saying that the dispute is whether we follow presumption or do not follow presumption. Right? For that we saw two explanations. One from the Kovetz Shiurim and Rabbi Akiva Eiger: that the dispute is whether presumption clarifies or whether presumption is practical guidance. I said that doesn’t sit well with the language of the Talmud, but it is a possible logical explanation. It just doesn’t fit the Talmud’s terminology; you don’t call that a Torah-level doubt or a rabbinic-level doubt.
I suggested another explanation in Rashi’s view: that according to everyone, presumption is a clarifying rule, and the dispute is about the nature of the doubt in two against two—whether it is as though present or as though absent. A Torah-level doubt is a strong doubt, as though present. A rabbinic-level doubt is as though absent, a weak doubt. Okay. And all that is within Rashi.
In Tosafot’s approach, this is a third explanation. Tosafot argues that two against two is a doubt and we do not follow presumption—a strong doubt, we do not follow presumption. The only question is whether this is a Torah law or a rabbinic law: this rule that we do not follow presumption. In other words, when I have two against two, in principle I should have followed presumption, and presumption would have resolved the doubt. The Talmud says no: two against two is a doubt. What does that mean, a doubt? That we do not follow presumption; it remains a doubt. The only question is whether its remaining a doubt is by Torah law or by rabbinic law. That is what “Torah-level doubt” or “rabbinic-level doubt” means. Understood?
[Speaker C] Can you go back for a second? We have the question of the nature of presumption, the nature of the doubt, and what is the third thing?
[Rabbi Michael Abraham] The question is whether it is rabbinic or Torah-level. The rule that we do not follow presumption—is that a Torah-level rule or a rabbinic rule?
Now, if it is a Torah-level rule, then you can explain it by the earlier explanations. Why do we not follow presumption on the Torah level? Because two against two is as though present—there are two witnesses against two witnesses; presumption is clarifying, and therefore you cannot follow presumption. But according to the one who says two against two is a rabbinic-level doubt, he also agrees that we do not follow presumption. He just says that this is only a rabbinic enactment not to follow presumption. Meaning, the laws of doubt apply here; we do not follow presumption, but only rabbinically. On the Torah level, the presumption…
He understands presumption as a rule of conduct, not a clarifying rule. Therefore on the Torah level, in principle, we should have followed presumption even in two against two. But the rabbis nevertheless were stringent and said not to follow presumption. Okay? They were stringent in the matter of bills of divorce and matters of personal status? Wait.
[Speaker D] Now…
[Rabbi Michael Abraham] I’m getting there—that is the meaning of “two against two is a rabbinic-level doubt.” Now let’s see where this is applied.
So look: regarding the practical ruling, from the conclusion of the passage in Yevamot it seems that according to Jewish law, two against two is a rabbinic-level doubt. Right? We saw that. We learn it from Bar Shtiya. But more than that: in Bar Shtiya too we see that “two against two is a rabbinic-level doubt” means that we do follow presumption. That goes against Tosafot. Not just the practical ruling. The practical ruling is that two against two is a rabbinic-level doubt; we see that in the Talmud in Yevamot.
In the Talmud in Gittin there is room for hesitation, as I said. Maybe Rabbah and Rav Yosef hold that two against two is a Torah-level doubt; maybe they too say rabbinic-level according to Tosafot. Fine. So according to Tosafot maybe I can reconcile both difficulties—but it won’t fit the Talmud in Yevamot. Because how does the Talmud in Yevamot explain “two against two is a rabbinic-level doubt”? It proves from Bar Shtiya what? That we follow presumption. But Tosafot said that even when two against two is a rabbinic-level doubt, we still do not follow presumption. It’s just that rabbinically we do not follow presumption, but practically we still do not follow it. So how can the Talmud there say that we do?
[Speaker D] Maybe there is a difference between monetary law and matters of personal status? Or…
[Rabbi Michael Abraham] So here now we need to get into all kinds of distinctions. In the Talmud in Kiddushin, for example, regarding King Yannai, there are all kinds of contradictions. I’m not getting into that again; there are many places in the Talmud that need to be examined. But here I’m dealing only with the broad outlines of the topic. Okay? So it’s possible that there are positions among the medieval authorities (Rishonim) — look at the Meiri, I referred you to the Meiri, I don’t know if you had time to see it — the Meiri says as follows: “And we have learned… nevertheless, there are halakhic decisors who hold that it is a Torah-level doubt, and that is Rava and Rav Chisda in tractate Gittin. And there are medieval authorities (Rishonim) who rule as Jewish law that two against two is a Torah-level doubt. And the property of Bar Shtiya is a monetary matter, and monetary law is different. But regarding prohibition we act stringently, and whether in one set or in two sets of witnesses, she performs chalitzah.” What is he saying here? He says there are those who rule that two against two is a Torah-level doubt. Meaning that we do not follow the presumption of prior status. By the way, according to Tosafot, even two against two as a rabbinic-level doubt means we do not follow the presumption of prior status, only that this is on the rabbinic level. So the Meiri’s resolution can also resolve Tosafot. He comes to resolve those who rule as Jewish law that two against two is a Torah-level doubt. So why in the case of Bar Shtiya do we follow the presumption of prior status? But I asked a similar question about Tosafot. Even though they rule that two against two is a rabbinic-level doubt, according to Tosafot two against two as a rabbinic-level doubt also means that we do not follow the presumption of prior status. Only on the rabbinic level we don’t follow the presumption of prior status. So I ask: then why in Bar Shtiya’s case do we? So he says like this: there is a difference between prohibition and monetary law. Why? In matters of prohibition, look for example according to Tosafot. In Tosafot this is strongest. Tosafot says that this is basically a rabbinic stringency, right? On the Torah level, we should have followed the presumption of prior status. The rabbis were stringent to leave it as though there were still a doubt here. We don’t follow the presumption of prior status. A rabbinic-level doubt. Right? In monetary law, does it even make sense to be stringent in that way? In monetary law, a stringency for the defendant is a leniency for the claimant, and vice versa. In monetary law there is no real leniency and stringency. How can you define leniency and stringency? In prohibitions there are leniencies and stringencies. It’s possible to be stringent on me, that I should conduct myself according to the laws of doubt and not rely on the presumption of prior status, because there it’s only my own issue. But in monetary law, it’s claimant versus defendant. If you rely on the presumption of prior status, that’s a leniency for the defendant and a stringency for the claimant. If you don’t rely on the presumption of prior status, that’s a stringency for the defendant and a leniency for the claimant. Bottom line, there’s no way here to be stringent or lenient. There are two sides here. Therefore there they leave the law in its established status. They leave the law at the Torah law baseline. There is no such rabbinic stringency there of being stringent and not following the presumption of prior status. That’s the answer in Tosafot. And what Tosafot is basically saying is this: two against two is a rabbinic-level doubt. And therefore in the Talmud in Gittin, even according to the one who says that we do not maintain the prior presumption, Rava and Rav Chisda and Rav Yosef, it could be explained that they hold that two against two is a rabbinic-level doubt. Because even according to the view that two against two is a rabbinic-level doubt, we do not follow the presumption of prior status — only we do not follow it on the rabbinic level — and therefore there is no problem. And then the topic in Gittin fits with the topic in Yevamot. Both topics hold that two against two is a rabbinic-level doubt. You’ll ask me: then why in Yevamot, after they reach the conclusion that two against two is a rabbinic-level doubt, do they nevertheless follow the presumption of prior status? Bar Shtiya. Because that is monetary law. In monetary law this rabbinic stringency was not said — not to rely on the presumption of prior status — because there’s no way to be stringent; it’s both a leniency and a stringency. There is no point in being stringent in monetary law. This whole stringency that two against two is a rabbinic-level doubt was said only regarding prohibitions. In monetary law, if I say two against two is a rabbinic-level doubt, then it goes back to being like Rashi. What does Rashi say? Two against two as a rabbinic-level doubt means: we follow the presumption of prior status. Right? Tosafot too would agree in monetary law with what Rashi says. Are you with me? Good. So basically it comes out like this: let’s summarize Rashi’s approach and Tosafot’s approach so it will sit clearly in our minds. Rashi’s approach is that the dispute whether two against two is a rabbinic-level doubt or a Torah-level doubt is a dispute over whether we do or do not follow the presumption of prior status. According to the one who says it is a rabbinic-level doubt, we follow the presumption of prior status. According to the one who says it is a Torah-level doubt, we do not follow the presumption of prior status. How do we reconcile the conclusion in the topic in Yevamot? Two against two is a rabbinic-level doubt and we follow the presumption of prior status. In both monetary law and prohibitions, and the Talmud brings proof from Bar Shtiya to levirate marriage. Meaning prohibitions and monetary law are the same. Why does the Talmud in Gittin treat two against two as a Torah-level doubt where we do not maintain the prior presumption? Because it is a dispute among amoraim. Rava and Rav Chisda and Rav Yosef hold that way, but Rabbi Yohanan disagrees with them, and we rule Jewish law in accordance with Rabbi Yohanan. That is how Rashi learns the two topics. What is the explanation of the dispute? We saw the Kovetz Shiurim and Rabbi Elchanan — one explanation — and I suggested another explanation: whether it is considered as if the evidence is present or as if it is absent. That is all within Rashi’s approach. We’re done with Rashi. Tosafot’s approach: notice, Tosafot is not all that far from Rashi, because Tosafot also agrees that according to the one who says that two against two is a Torah-level doubt, then we do not follow the presumption of prior status — except that this is on the Torah level. On the Torah level, we do not follow the presumption of prior status. If two against two is a rabbinic-level doubt, then on the Torah level we do follow the presumption of prior status, and in that sense he is like Rashi — we follow the presumption of prior status according to the one who says two against two is a rabbinic-level doubt. He only says: yes, but in prohibitions we add a special stringency nonetheless not to follow the presumption of prior status. In monetary law we leave it as it was — we follow the presumption of prior status in the case of two against two as a rabbinic-level doubt. And that is the case of the property of Bar Shtiya. Okay? That is the summary according to Tosafot. One last note: there is still a question of how Tosafot learned the topic in Yevamot. Why? Because in the topic in Yevamot, let me remind you how it ends with this Bar Shtiya case. The Talmud brings Bar Shtiya as proof that two against two is a rabbinic-level doubt. Right? Look here: “And in the case of two sets of witnesses as well, it is a rabbinic-level doubt, for we say: place two against two, and establish the woman on her presumption of prior status; let the woman stand on her prior status, just as in the property of Bar Shtiya.” Right? Just as in the property of Bar Shtiya. I don’t understand — according to Tosafot, I understand the property of Bar Shtiya because that is monetary law, but how can you bring proof from there to a woman, where we are dealing with prohibition? According to Tosafot, the whole reason we establish things according to prior presumption in Bar Shtiya’s case is because we are dealing with monetary law. So how does the Talmud bring proof from that that with a woman too, in prohibitions, we establish her according to prior presumption? According to Tosafot, that rule was said only for monetary law, not for prohibitions. Right. We have to say that the Talmud brings proof from there that two against two is a rabbinic-level doubt, because if it were a Torah-level doubt, then even in monetary law we would not follow the presumption of prior status. Right? So that is the proof that two against two is a rabbinic-level doubt. Now it’s true that in prohibitions the law, when two against two is a rabbinic-level doubt, is different from monetary law — that doesn’t matter. But I can still bring proof from monetary law that two against two is a rabbinic-level doubt. Right? If in monetary law I follow the presumption of prior status, what does that prove? That two against two is a rabbinic-level doubt, because if it were Torah-level, then even in monetary law I would not follow prior presumption. Right? So if in monetary law I do follow prior presumption, as we see in the case of Bar Shtiya, then two against two is a rabbinic-level doubt. Fine, now we leave monetary law aside; we know that two against two is a rabbinic-level doubt. When we come to prohibitions, we will indeed apply it according to the rules of prohibition, that on the rabbinic level we nevertheless will not follow the presumption of prior status. But on the Torah level we really do follow prior presumption, because two against two is a rabbinic-level doubt. So proof can be brought from monetary law to prohibitions — not regarding the actual law itself. It is not proof that we follow prior presumption; rather, it is proof that two against two is a rabbinic-level doubt. And the fact that we do not follow prior presumption is only a rabbinic rule and not a Torah rule. For that they brought the proof from Bar Shtiya. Are you with me, or did I lose you a bit? I feel like maybe a little… is that okay? Look at it in the summaries. Look at it in the summaries; in the summaries I hope it came out clearer. All right, actually that’s the main point of what I wanted to say. I need to think what we’ll do next time, whether we’ll continue on already or come back for another class to review the topic again, because as I keep reminding you, Rashi and Baal HaMaor in our topic — what can we say now? Rashi holds that two against two is a Torah-level doubt, and Baal HaMaor rules that two against two is a rabbinic-level doubt. Right? Because Rashi says we do not follow prior presumption, and Baal HaMaor says we do follow prior presumption. Although according to Tosafot that doesn’t have to be so, because according to Tosafot even according to the one who says that two against two is a rabbinic-level doubt, we do not follow prior presumption in matters of prohibition, only in monetary law.
[Speaker D] So now the question is whether on the Torah level we follow prior presumption?
[Rabbi Michael Abraham] No, on the Torah level we do not. If two against two is a Torah-level doubt, then certainly we do not follow prior presumption. If two against two is a rabbinic-level doubt, then according to Rashi we do follow prior presumption; according to Tosafot, in principle we do, but the rabbis were stringent not to follow it.
[Speaker D] So now the question is what the case is in our Talmudic passage.
[Rabbi Michael Abraham] What? Baal HaMaor says we follow prior presumption on the Torah level? According to Baal HaMaor in our topic, Baal HaMaor says that if this turns into two against two, we will follow the presumption of prior status of the judge — he remains valid. Why? Because two against two is a rabbinic-level doubt. Right? Rashi disagrees with him. Rashi says that once there is two against two, the judge has lost his prior presumption. Why? Because two against two — sorry, the judge, yes — because two against two is a Torah-level doubt. And in two against two, we do not follow prior presumption. That is basically what lies behind the dispute between Rashi and Baal HaMaor. Okay? And if so, then now the question is what happens according to Tosafot. According to Tosafot, in the case of two against two as a rabbinic-level doubt as well… we do not follow prior presumption. Right. So Tosafot in any case will have to learn here like Rashi and not like Baal HaMaor, because according to Tosafot, whether we say two against two is a Torah-level doubt or whether we say two against two is a rabbinic-level doubt, here we would not follow prior presumption. Right? Unless — unless — we define this situation as one involving monetary law. We are discussing the validity of the judge, but for our purposes what practical difference does that make? They are discussing a promissory note for a loan. This is monetary law. It could be that in monetary law Tosafot would say that in two against two we do follow prior presumption, because here the sages were not stringent in monetary law; they were not stringent, as in the case of Bar Shtiya. Okay? So here I’ve already briefly stated the implications for our topic; maybe that will be enough for us. We’ll see. I’ll think a bit more about how to structure next time. Yael, we can’t hear you, you’re muted.
[Speaker A] I think she left.
[Rabbi Michael Abraham] No, Yael Elkayim.
[Speaker A] I’m saying, the two against two in the matter of monetary law that you just mentioned — that’s with respect to the judge, not with respect to the document.
[Rabbi Michael Abraham] I’m speaking with respect to the judge, but the question is whether the discussion about the judge — the two against two concerning the judge — is two against two in monetary law or in prohibitions. On the face of it, we’re dealing with the status of the judge, right? Whether he is a robber or not a robber, which is not monetary law but prohibition. Meaning, the status is a personal status. On the other hand, though, the judge here is about to adjudicate the validation of a loan document, so in effect the implication of the judge’s disqualification is an implication for monetary law. And then maybe there is room to say that we would indeed follow prior presumption if two against two is a rabbinic-level doubt, because this is monetary law. So here there is room for hesitation. Good. Okay. Thank you very much. We’ll stop here. Goodbye, Sabbath peace.
[Speaker C] Thank you very much, Sabbath peace. Sabbath peace. Chapter 2, in the explanation of the trait of watchfulness: the parts of watchfulness and the ways to acquire it. The idea of watchfulness is that a person should be careful in his deeds and in his affairs — that is, examining and supervising his actions and his ways, whether they are good or not — so that he not leave himself to the danger of destruction, Heaven forbid, and not go along in the course of habit like a blind person in darkness. And this is something that reason itself obligates. For since a person has knowledge and intellect to save himself and flee from the destruction of his soul, how can it be that he would agree to shut his eyes to his own rescue? There is no baseness and folly worse than this. And one who acts this way is lower than the animals and wild beasts, which by their nature guard themselves and flee and escape from anything that appears harmful to them. And one who goes through his world without reflection on whether his path is good or bad is like a blind man walking along the bank of a river, whose danger is certainly great and whose harm is close at hand. For nature and chance will not protect him when he does not protect himself. And King Solomon, peace be upon him, said through his holy spirit: “Make level the path of your feet, and let all your ways be established,” and it says, “Turn neither right nor left; remove your foot from evil.” And we have already found in the prophet, who cried out about the people of his generation: “For no man repented of his evil, saying: What have I done?” They were going and rushing in the race of their habits and their ways without leaving themselves time to reflect on their deeds and their ways, and because of this they would fall into evil without seeing it. And this is truly one of the schemes and cunning tricks of the evil inclination: to burden people with its service in such a way that they have no room left to reflect and look at what path they are taking. For it knows that if they were paying attention to their ways even a little, they would immediately begin to regret their deeds, and the regret would keep growing in them until they would leave the sin entirely. And this is similar to the counsel of wicked Pharaoh, who said, “Let the work be made heavy upon the men, and let them not pay attention to false words,” intending not to leave them any breathing room at all, so that they would not think or devise counsel against him. So too is the counsel of the evil inclination itself against human beings, for it is a man of war and trained in cunning, and it is impossible to escape from it except with great wisdom and deep watchfulness. This trait of watchfulness is the key to all the other traits, as the Ramchal writes later on. Without watchfulness, a person cannot even begin the path of his spiritual work. He must stop and think about every single step. Life passes quickly, and if a person does not stop to reflect, he may find himself at the end of the road without having achieved the purpose for which he came into this world. Therefore the first obligation is to open one’s eyes, inward reflection, and examining one’s deeds with the attribute of judgment and the attribute of truth. May we merit, with God’s help, to acquire the trait of watchfulness and to walk in the ways of the upright. Amen.