Kedoshim (5764)

From the book Mida Tova: Articles on the Hermeneutical Principles by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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Midah Tovah — Friday eve, Parashat Kedoshim, 5765

Questions

1. Kidnapping and theft of property.
2. Is there an element of falsehood in theft?
3. Is a kidnapper a thief or a robber?
4. What is geneivat da’at (deception), and how does it fit into the two passages dealing with theft?
5. What is the difference between theft and robbery?
6. Is there a metamorphic transition from robbery to falsehood?

The Principles

• A matter learned from its context.
• A matter learned from its end.
• Juxtaposition.

You shall not steal; you shall not deny falsely, and you shall not lie to one another. You shall not swear falsely by My name, thereby profaning the name of your God; I am the Lord. You shall not oppress your fellow and you shall not rob; the wages of a hired laborer shall not remain with you until morning.

Leviticus 19:11-13

The Sages taught: “You shall not steal” (Exodus 20) speaks of kidnapping. Do you say that it speaks of kidnapping, or perhaps only of theft of property? Rather, go out and learn from the thirteen hermeneutical principles by which the Torah is interpreted: a matter is learned from its context. What is the surrounding passage dealing with? Matters involving persons; so too here, persons. Another baraita taught: “You shall not steal” (Leviticus 19) speaks of theft of property. Do you say theft of property, or perhaps kidnapping? Rather, go out and learn from the thirteen hermeneutical principles by which the Torah is interpreted: a matter is learned from its context. What is the surrounding passage dealing with? Property; so too here, property.

Babylonian Talmud, Sanhedrin 86a

A. A Matter Learned from Its Context and from Its End

Introduction: A Matter Learned from Its Context and from Its End

In the present discussion we will deal with one item from Rabbi Ishmael’s list, made up of two rules that we have not yet encountered: a matter learned from its context and a matter learned from its end. These two principles address a situation in which there is some ambiguity in the interpretation of a verse, and we must determine its meaning and subject matter with the aid of another source.

These two principles offer two ways of resolving such ambiguity. A matter learned from its context examines the setting in which the verse appears. A matter learned from its end, by contrast, examines the continuation of the commandment under discussion, which sometimes specifies something in order to teach the meaning of the commandment itself. A matter learned from its end is a disclosure from that very passage, from its end back toward its beginning.¹ A matter learned from its context, however, is a disclosure from the adjacent verses.

In light of this distinction, we must examine the relationship between a matter learned from its context and interpretation by juxtaposition. In the Talmud, several times we find authorities who do not derive laws from juxtaposition, whereas derivation by a matter learned from its context is accepted by all. This is explicit in Babylonian Talmud, Keritot 4a. It follows clearly that there is a difference between these two hermeneutical principles.

In Yavin Shemu’ah, rule 147, the difference is explained as follows: an argument from juxtaposition learns a law in one passage from the existence of that law in the adjacent passage. But the principle of a matter learned from its context comes to interpret what is obscure, not to derive a specific law. We should note that this is a halakhic (Jewish-law) interpretive principle, but it teaches a new halakha through the interpretation of a biblical word. This distinction sharpens the fact that this principle is not a kind of textual analogy but an interpretive rule, albeit one with halakhic significance, a mere clarification of the matter. The author of Middot Aharon, chapter 14, states that this is what the Talmud usually calls “let the obscure be learned from the explicit.”

It should also be noted that in the passage in Keritot there is a dispute whether, when the obscure text is a mere prohibition and the explicit text carries the penalty of karet (spiritual excision), one may use the principle of a matter learned from its context. If this were a kind of textual analogy, there would be no room for such an analogy, since it could be refuted on the basis of the difference in punishments. But if it is an interpretive rule, then there is room to understand what the obscure commandment is talking about in light of the explicit one. As stated, this is not a comparison between two laws but an interpretive clarification.

Most commentators count these two principles as a single item among Rabbi Ishmael’s thirteen principles. The reason is that both are forms of searching for a source that disperses interpretive ambiguity, and there is no essential difference between them apart from the character of the source. Both are textual rather than logical principles. Both are interpretive principles. It also seems that both are based on tradition, and it is difficult to arrive at them independently.

In the present discussion we will address the example that appears in tractate Sanhedrin, dealing with the commandment “You shall not steal” in Parashat Kedoshim. The Gemara derives, by the principle of a matter learned from its context, that the verse is speaking about theft of property.

Description of the Exposition

The Torah contains several commandments prohibiting theft. This is not uncommon in the Torah, which often repeats the same commandments in several places; see, for example, Maimonides at the beginning of the ninth principle. There are several ways to understand such duplication. Maimonides writes there that the repetition is meant to reinforce the force of the law in question and to indicate its importance. Very often, midrashim (rabbinic expositions) and plain-sense interpretations point to different aspects presented in the parallel passages.

In our case, the midrash interprets the two verses as dealing with two different subjects. In the two baraitot cited in the Sanhedrin passage there are two derivations, both using the principle of a matter learned from its context, and each deals with one of the two passages commanding the prohibition of theft. The first midrash learns from the context that the commandment in the Ten Commandments deals with kidnapping,² and the second teaches us that the commandment in our passage deals with theft of property.

Rashi, in the Sanhedrin passage, explains that the context in the Ten Commandments is “You shall not murder” and “You shall not commit adultery,” both of which carry the death penalty, and therefore the prohibition of theft there as well concerns a capital matter. The punishment for kidnapping is death; see Exodus 21:16: “Whoever kidnaps a man and sells him shall surely be put to death.” It therefore seems that the commandment there refers to kidnapping. In our passage, by contrast, Rashi explains that the subject is monetary law, since in verse 13 we are commanded: “You shall not oppress your fellow.”

Difficulties in the Exposition

A number of comments should be made about the exposition itself, and about Rashi’s explanation of it.

1. It is not clear why Rashi does not cite the false denial concerning a deposit that appears later in the same verse, which entails repayment of the principal plus an added fifth.

2. A further difficulty is that immediately after the commandment “You shall not steal, and you shall not deny falsely, and you shall not lie” appears the prohibition of a false oath, which has nothing at all to do with property. In Babylonian Talmud, Shevuot 21a, the prohibition of a false oath is explicitly not established with respect to money. If so, the passage would seem to concern a non-monetary prohibition rather than property. The monetary prohibition of oppression appears only two verses later, and yet that is precisely what Rashi cites as the contextual source from which the meaning is learned.³

3. In fact, it is not clear why we need two derivations by a matter learned from its context. Why can we not infer from the fact that in the Ten Commandments the verse speaks of kidnapping that here it speaks of property, or vice versa?

B. Geneivat Da’at

Introduction

The discussion in Babylonian Talmud, Hullin 94a concerns the prohibition of geneivat da’at.⁴ According to most medieval authorities, this prohibition is biblical. Ritva there, citing the Tosafists, states that the source of this prohibition is the verse in our passage, “You shall not steal.”⁵ The question now arises: how do we know that two different prohibitions can be learned from this verse? More than that, how do we know that the verse “You shall not steal” deals with theft of property? Perhaps it also deals with geneivat da’at, as the medieval authorities indeed write.

Even before we begin addressing these questions, it is clear that there must be a connection between them. They share a common foundation, and that is why they can be derived from the same source. We must therefore ask ourselves: what is the relationship between these two prohibitions? Geneivat da’at appears to belong to the family of falsehood, whereas theft of property is a monetary prohibition.

An examination of the development of the passage in Hullin shows that the prohibition of geneivat da’at appears in two different contexts: first, in the context of selling objects, when the seller does not disclose to the buyer the details of the product being sold;⁶ second, in the context of a false display of affection. For example, a person invites his friend to dine with him and presses him to come, while knowing that his friend cannot come. Rashi explains there that in such a case he gains gratitude that is not due to him.⁷

It is worth noting that the first context seems connected to monetary law, whereas the second belongs to the family of falsehood prohibitions. Maimonides, too, rules these laws in two places: in Laws of Character Traits, chapter 2, where he addresses the dimension of falsehood in the prohibition, and in Laws of Sale, chapter 18, where he addresses its monetary dimensions.

Here too, we must ask what these two contexts have in common. Why are both included under the very same prohibition?

Geneivat Da’at: Between Falsehood and Theft

If we consider the relationship between theft and robbery, it appears that what distinguishes them is the element of falsehood. Both prohibitions involve taking another person’s property without permission. The robber does so by force, whereas the thief does so secretly.⁸

We thus begin to see that the prohibition of theft contains an element of falsehood. But that is not its only element: theft is the taking of a fellow person’s property by means of falsehood. We can therefore present this family of prohibitions as a continuum along a shared axis. At one end stands the pole of robbery: taking property without permission. At the other end stands the pole of falsehood: not telling the truth. In between stands theft, composed of both of these elements together.

And yet, what do the two ends of this axis have in common? Is there something of theft in falsehood? It seems necessary to distinguish between two kinds of lies. There is a kind of lie that contains no theft whatsoever. This is a lie in which information is withheld from someone who has no right to know it. It is indeed falsehood, but nothing is being taken that belongs to that person. But there are situations in which the concealed information “belongs,” in a certain sense, to the other person. Falsehood of this kind is akin to robbery. For example, when one sells an object to someone, the information about what is and is not present in that object belongs to the buyer. Concealing that information is not merely falsehood, a transgression between a person and God; it is also robbery against one’s fellow. We rob him of information.⁹

The same is true of an ordinary thief. The information hidden from the owner is not merely a lie. The information that his property is being taken also belongs to him, and therefore this is falsehood of the thieving kind. Every theft thus contains a double theft: of the property and of the information.

Back to Our Passage

We can now see that precisely the prohibition of geneivat da’at can be grounded in the principle of a matter learned from its context in a far more complete way than in the exposition with which we began. All the prohibitions in our verse belong to the family of falsehood: denial, lying, and false oaths. As already mentioned, the prohibition of oppression appears only afterward.

The denial and falsehood that continue in the verse concern an oath regarding a deposit. This too is a prohibition from the family of lies that function as a kind of theft. The reason is that the one who swears falsely denies that the claimant’s money is in his possession. So here too we are dealing with theft by means of falsehood.¹⁰ As for the false oath that appears in the next verse, one may ask whether it too includes, at least in some cases, oaths concerning information that belongs to another person. Evidence can be brought that it does, but this is not the place for that discussion. In any event, even if this is ordinary falsehood, we have already seen that such falsehood constitutes one extreme pole on the axis under discussion.

We can therefore see in these verses a chain of prohibitions spread across the entire axis described above. Verse 13 contains the prohibition of oppression, robbery, and withholding a laborer’s wages overnight, which is a purely monetary prohibition with no dimension of falsehood at all. The preceding verse, verse 12, contains the prohibition of a false oath, about which some doubt remains. And our verse, verse 11, which comes before it, contains the prohibitions of theft, denial, and falsehood. All of these are prohibitions of falsehood involving the unauthorized taking of information, money, or both together.

The passage from which we derive meaning by a matter learned from its context is all three of these verses together. Its subject extends through verse 13, and perhaps Rashi cites verse 13 to teach us that this is the final verse in the chain; verse 14, “You shall not curse the deaf,” is no longer related to our discussion. Another possibility is that Rashi cites the end of the chain because from there one can learn the monetary pole of theft of property, which is what we were seeking a source for.

According to what we have said, the prohibition of geneivat da’at too is learned from its context. It is learned from a different segment of the chain, the one closer to the verse “You shall not steal.” Both prohibitions are learned from the same source, but that source is not the verse “You shall not steal” by itself; rather, it is the entire passage. “You shall not steal” is only one point on a chain of prohibitions stretching between falsehood and robbery.

It is entirely plausible that a matter learned from its context cannot be based on explicit verses that are not adjacent to the obscure verse. There must be contiguity in order to learn the obscure from the explicit. Therefore, when there is distance between the verses, we must also look in the intervening verses for a connection to the subject under discussion. This point requires further examination.

Resolving the Difficulties Raised Above

According to this approach, the difficulties in the exposition that we raised above can be resolved. We have seen why Rashi brought the source for theft of property from verse 13, rather than from denial and falsehood. The monetary element is the far end of the chain, and it appears in verse 13. In the law of false denial regarding a deposit there is a stronger element of falsehood, since theft is only the concealment of the act of theft and not direct lying under oath before the claimant, as in false denial. False denial is therefore closer to the falsehood pole of the axis than to the robbery pole. Theft is closer to the robbery pole. The Gemara therefore prefers to cite oppression rather than denial. This also explains why Rashi cites specifically the later prohibition, and why the false oath appears in the middle.

According to this approach, it is also clear why we need two derivations by a matter learned from its context. We cannot infer from the fact that in the Ten Commandments the verse speaks of kidnapping that here it speaks of property, because it could also be understood as geneivat da’at. The principle of a matter learned from its context is needed in order to provide a source for the entire chain and to clarify the connection among its different links.

Even so, the Gemara’s general formulation regarding this principle remains unclear. Why is it specifically with this principle that the Gemara repeatedly emphasizes that the derivation is made through the thirteen hermeneutical principles?

C. The Relation Between the Two Expositions in the Sanhedrin Passage

Are the Expositions Based on the Character of the Offense or of the Punishment?

In the exposition concerning kidnapping, we rely on the character of the punishment rather than on the character of the act. Murder and adultery are offenses whose punishment is death. Their connection to matters involving persons is therefore in terms of punishment, not in terms of the act itself. What about the exposition concerning theft of property? At first glance, oppression, false denial, and robbery are offenses committed with respect to property, that is, by taking property, but their consequence is also monetary: the property that was taken must be returned. In fact, robbery and oppression carry no punishment at all, only the obligation to restore the property to its owner. False denial under oath requires restitution, with the addition of a fifth of the value. Theft of property, too, carries the penalties of double payment or fourfold and fivefold payment.

It therefore stands to reason that in the exposition concerning theft of property, the common element lies in the act of the offense rather than in the punishment. The act is the taking of property, and that is the feature theft of property shares with the other commandments in the passage.

There is some room to say something similar with respect to kidnapping. There too, the common element could be the character of the act rather than the punishment. Kidnapping is an offense against a person and not against property. Murder is an offense against a person and not against property. Only the sexual prohibitions require discussion, since at first glance the offense there does not appear to be against a person. Yet even with respect to kidnapping, we have seen that the character of the offense lies in the person who is taken, not necessarily killed. If so, even in the context of adultery the offense can be seen as committed against a person, and certainly not against property.

Kidnapping

In Margaliyot HaYam, the author raises a difficulty about the verse in the Ten Commandments: how can it be interpreted as speaking of kidnapping? Theft is the taking of property without the owner’s knowledge. But if the owner himself is forcibly taken, as in kidnapping, then it is done with his knowledge. Seemingly, we should be speaking here of robbery of a person rather than theft of a person. He therefore explains that the case must involve the theft of an infant who is not self-aware. Even then, however, it is still not clear what theft has to do with the case, since the infant is not someone else’s property. Beyond that, it can be proven from several places that the law applies to kidnapping an adult as well.

Still more strikingly, Maimonides writes in Laws of Theft 9:3 that if one abducted a sleeping person, used him while he was asleep, and sold him while he was still asleep, he is exempt. It follows that awareness on the part of the person being stolen is specifically a condition of theft. If so, it is truly not clear how such an act can be considered theft at all.

Rabbi Menachem Ziemba, in his Zera Emet (section 14, subsection 5), argues that the kidnapper acts with respect to the victim’s relatives. He proves this from the wording of Maimonides at the beginning of that law, where he writes that if the victim sold him to his relatives, he is exempt. From this it follows that the theft is defined relative to the relatives, and therefore if he sold the victim to them he is exempt. According to this, it is clear why he is called a thief, since he acts without the knowledge of the relatives. For this purpose they are treated as his owners. Even so, such a law is puzzling if the case indeed includes the kidnapping of an adult.

Rabbi Yeruham Perla, by contrast, wrote in his commentary to the Sefer HaMitzvot of Saadia Gaon, commandment 91, that the kidnapper has the legal status of a robber rather than that of a thief. The reason he is nevertheless called a thief is that he hides from people; see Tosafot, s.v. “Ta Shema,” on Babylonian Talmud, Bava Kamma 114a.

In light of what we said above, it may be suggested that the kidnapper is considered a thief because he hides from people. The point is that the essence of a thief is the fact that he conceals himself, not the fact that the act occurs without the knowledge of the owner. Therefore, in the case of kidnapping, even when the victim knows, since he himself is the one being taken, there is still an element of falsehood because the thief hides from others.¹¹ It is possible that in such a case he would also have the legal status of a thief rather than that of a robber, since he is a thief in every respect.

If we now return to our earlier remark, we may say that the act of kidnapping is not essentially different from the act of stealing property. The difference lies in the character of the punishment. It therefore follows that the contextual basis in the Ten Commandments is indeed not the character of the act of the offense, but the character of the punishment, as in the first possibility raised above. There the punishment is death, whereas here the liability is monetary.

A Note on the Nature of the Principle of a Matter Learned from Its Context

In most places where the principle of a matter learned from its context appears in the Babylonian Talmud, it is preceded by the formula: “Go out and learn from the thirteen hermeneutical principles by which the Torah is interpreted.” This is also the case in the Sanhedrin passage cited above. At first glance, it is not clear why the Gemara takes pains to stress this specifically with respect to this principle, and not with the others.

Perhaps the answer lies in the plain-sense character of this principle. We find many commentators who use precisely this kind of consideration in their interpretations throughout the Torah, both in legal passages and in non-legal ones. If so, it would seem to be an interpretive technique of plain meaning, and there would be neither reason nor need to include it among the principles of midrashic interpretation, certainly not among the thirteen principles of halakhic interpretation. The Gemara therefore finds it necessary to emphasize that derivation by this principle is a midrashic derivation, and not merely a plain-sense consideration.

One may still wonder about the significance of this remark. Even if we had thought that this was a plain-sense consideration rather than a midrashic one, what would have been mistaken about that? Why is it so important to know that we are dealing here with a midrashic tool?

We have already noted several times that laws learned through hermeneutical tools have a different halakhic status from those written explicitly in Scripture. According to Maimonides in the second principle, such laws may be rabbinic. Even according to the other medieval authorities, there are several leniencies with respect to laws learned through expositions.

At least according to Maimonides’ view, we have already seen the reason for this; see the page on Parashat Yitro. On his view, the interpretive tools are not uncovering tools but expanding tools. The law that emerges from exposition is not hidden in Scripture, but constitutes a legitimate expansion of what is hidden there. If so, this matters specifically with respect to plain-sense interpretation. An interpretive consideration of this type, when applied to a non-legal passage, has only limited significance. It is not the plain meaning itself, but an extension that is close to what is found in the plain meaning. This point too requires further examination.

Footnotes