You Have in It Only Its Innovation: Minimizing Contradictions or Innovations?

The Rabbi’s Opening Post

You Have in It Only Its Innovation: Minimizing Contradictions or Innovations?

Sent on 22/11/2008

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You Have in It Only Its Innovation: Minimizing Contradictions or Innovations?

At present I am dealing with the issue of bailment with the owner present. As is well known, the medieval and later authorities disagreed over whether, in such a case, there is no bailment contract at all, or whether there is a bailment contract and the Torah exempts from payment.

And the well-known words of the author of Chavot Ya’ir, at the end of sec. 223, are as follows:

And as for the substance of the law, I have wondered all my life, since the precepts of the Lord are upright, and all of them are fitting, full of good sense, and straight for those of understanding; and Maimonides elaborated on them in the Guide for the Perplexed, part III, in fourteen principles, from which all who came after him drew in discussing the revealed reasons for the commandments. Would that I knew how to bring this matter close to the intellect. It resembles what someone said [see Tractate Ketubbot 52a]: Had I been there, I would have said, “He who repays evil for good…” etc. For is it because the lender is engaged in the borrower’s work that he should be struck by the loss of his property in the borrower’s hands? Were it not for the teaching of our Sages of blessed memory, there would be no difficulty, for one could have explained the verse “with him” as meaning together with the thing that he borrowed from his fellow, and he ought to have watched over it. This is simple, end quote:

(And here is a challenge for the Nadelists among us: can R. Gedaliah, or perhaps one of you, explain the law of exemption when the owner is present?).

The question that troubled me is how a dispute over the conceptual definition of the law can arise when no one understands its rationale. Surely it is clear that, contrary to the Brisker illusion, there is no definition (“what”) without a reason (“why”). The only way to determine a definition without a reason is to return to the language of the Torah and try to derive the law’s contours from the formulation of the commandment and from textual-exegetical considerations.

In our case, the obvious interpretive consideration is “you have in it only its innovation.” The Torah said, “If its owner is with him, he shall not pay,” that is, it exempts from payment, and therefore we should not infer that there is no bailment contract here as well. We have in it only its innovation.

If so, what does the dissenting view hold (the one that maintains that there is no bailment contract at all)? Necessarily, it will argue that the existence of a bailment contract without a duty of compensation to the depositor is a self-contradiction (at least according to the Torah’s accepted categories). If so, it prefers to multiply innovations (there is no duty of compensation—this is stated explicitly. It adds that there is also no bailment contract, an additional innovation) in order to minimize contradictions.

If so, there is a dispute here over whether it is preferable to minimize unexplained innovations even at the cost of creating contradictions, or whether minimizing contradictions takes precedence, so that it is preferable to multiply innovations in order to minimize contradictions.

This reminds me of the dispute between Abaye and Rava regarding a conspiring witness. Rava says that he is disqualified only prospectively (= from the moment he was exposed), even though the false testimony was already earlier, and clearly, if he is a liar, then he was already a liar before he was exposed. Rava’s reasoning is: “A conspiring witness is an innovation, and you have in it only from the time of its innovation.” He minimizes the innovation as much as he can, even if a contradiction is created (= from the moment they testified they were liars, yet they were not disqualified from testimony).

As for Abaye, who holds that conspiring witnesses are disqualified from the time they testified, it is well known that the medieval authorities disagreed whether, even according to him, a conspiring witness is an innovation (Maimonides) or not (the Tur). According to Maimonides, Abaye disagrees with Rava precisely on the point we raised above: in his view, contradictions should be minimized even if that multiplies unexplained innovations. Rava, by contrast, holds that innovations should be minimized even if contradictions are created.

In practical law, we rule like Abaye. According to Maimonides, this seems to prove that contradictions should be minimized even if innovations are multiplied. According to the Tur, however, Abaye holds that this is not an innovation, and therefore the conclusion to be drawn from here is specifically in line with Rava (for Abaye did not disagree with him on this point): innovations should be minimized even if contradictions result.

On a purely homiletical note, all this reminded me of the Midrash on Solomon, “Three things were too wondrous for me,” where three things are listed that Solomon did not understand. Among them is the Red Heifer. Our Sages explain that what Solomon did not understand was the internal contradiction: how the heifer simultaneously purifies the impure and renders the pure impure. Why did the Sages not suffice with saying that he did not understand the very mechanism by which the heifer purifies the impure? And, more generally, the whole matter of impurity and purity? That too does not seem very intelligible.

It may be that King Solomon did not understand many things in the Torah (why the firstborn donkey is redeemed, why pork is not eaten, why phylacteries are worn, and the like), but only three things seemed to him to contain an internal contradiction. This also explains why he did not mention bailment with the owner present, for he understood it like Maimonides: there is no bailment contract at all (because contradictions should be minimized even at the price of multiplying innovations).

As is well known, Vashti and Ahasuerus took opposite sides in the dispute between Rabbi Akiva Eiger and Ketzot HaChoshen…

By the way, it seems to me that one can prove that Maimonides and the Tur indeed disagreed in parallel ways regarding bailment with the owner present as well (for Maimonides there is no contract, whereas for the Tur there is a contract, only payment is exempted).

Leaving aside the homiletical point, which was brought only as icing: what do you think about the matter itself? Can one really derive a general approach from this? According to Maimonides, would we really expect him always to adopt the approach that “you have in it only its innovation” means minimizing contradictions even if that entails multiplying innovations? Especially since Maimonides was, as is well known, a rationalist, and therefore it is only reasonable that even in novel issues he would tend to minimize contradictions.

In the background of all this, one should remember that with respect to the methods of exegesis (general-and-particular versus inclusion-and-exclusion), there are inconsistencies in Maimonides, and it seems fairly clear that he did not trouble himself to establish a consistent method regarding the rules of exegesis. His consistency was on the halakhic plane and not on the meta-halakhic plane. If so, perhaps one should not look for consistency in him with respect to interpretive methods either (as in our case).

Are you familiar with further examples of such disputes over minimizing innovation versus minimizing contradictions? I have no doubt there are dozens or more.

Source (forum “Stop Here, We Think”): http://www.bhol.co.il/forums/topic.asp?topic_id=2522641