Chayei Sarah (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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With God’s help — Midah Tovah — Eve of Shabbat, Parashat Chayei Sarah, 5765

A. The Gezerah Shavah (Verbal Analogy) Derivation for Kiddushin (Halakhic Betrothal) by Money

And from where do we know it with money? He derives “taking” from “taking” from Ephron’s field. Here it is written, “When a man takes a woman,” and there it is written, “I have given the money for the field; take it from me.” And “taking” is called acquisition, as it is written, “the field that Abraham acquired”; or alternatively, “Fields shall be acquired with money.”

— Babylonian Talmud, Kiddushin 2a

And the tanna brings it from here, as it was taught: “When a man takes a wife and marries her, and it shall be if she find no favor in his eyes because he has found in her…” And “taking” means only by money, as it says, “I have given the money for the field; take it from me.”

— Babylonian Talmud, Kiddushin 4b

Two Stages in the Derivation

A close look at the structure of the first derivation shows that it contains two stages:

1. A legal derivation: “taking”-“taking,” which compares a woman to a field and derives from that comparison the law that a woman is acquired by money. We should note that other sources for this law are also cited in the Talmud and in midrashic sources.
2. A linguistic proof — that is, a mere clarification — that the act of “taking” is also called acquisition.

The second derivation cited above contains only the first stage, the legal one, without the second, verbal stage.

The first stage appears, at first glance, to be a gezerah shavah, and that is how most commentators understand it. See, for example, Rashi on Babylonian Talmud, Ketubot 3a, s.v. “shavyuha,” and Maimonides, to be discussed below in Part II. By contrast, the Ritva here writes that this is not a gezerah shavah, since the word “taking” in the case of the field refers to money, whereas the word “taking” here refers to the woman. See also Tosafot on Kiddushin 2a, s.v. “ve-khetiv.” According to the Ritva, this is merely a clarification, something like the principle that the implicit is learned from the explicit.

The roots of this disagreement may lie in differing understandings of the hermeneutical rule of gezerah shavah itself — see the essay on Parashat Lekh-Lekha, Part I, note 8, and the essay on Parashat Vayera, chapters 2-3 — or perhaps in the question of the status of laws learned from gezerah shavah, which we will discuss in Part II. One possible implication of this disagreement concerns whether there is any comparison at all between a woman and a field. Indeed, the Ritva later examines whether the Talmud contains such a comparison, and concludes that what we have here is merely “a weak gezerah shavah.”

By contrast, stage B in the midrash (rabbinic interpretive exposition) seems to establish a dictionary value, since the verses cited there are not compared to one another but serve as two alternative proofs that the word “taking” means purchase by money. The natural conclusion would be that wherever we encounter the word “taking” in Scripture, we should interpret it as purchase by money. But this conclusion does not withstand scrutiny. See Babylonian Talmud, Hullin 82a, regarding the birds used in the purification of a person afflicted with tsaraat and the heifer whose neck is broken; Babylonian Talmud, Menachot 27b, regarding the hyssop bundle and the four species; and Babylonian Talmud, Yevamot 55a and 97a. Below we will suggest another possible explanation for this part of the derivation.

The Redundancy in the Bavli

The first derivation appears at the beginning of tractate Kiddushin. The Talmud’s purpose there is to explain why the Mishnah uses the wording “the woman is acquired” rather than “the man betroths,” as it does at the beginning of the second chapter. Therefore, the real need there is for the verbal part of the derivation, which proves that “taking” is called “acquisition.”

At first glance, the substantive part of the derivation seems superfluous. To show that a woman’s kiddushin is called “taking” — on the basis of which we can then apply the clarification in the second stage, that “taking” is called “acquisition”; see Rashi there, Kiddushin 2a, near the end — there was no need at all for a gezerah shavah. It would have been enough simply to cite the verses “When a man takes a woman” and “I have given the money for the field; take it from me,” without any comparison between the field and the woman. From those verses alone we would learn that the purchase of a field is called “taking,” and that a woman’s kiddushin is also called “taking”; hence a description in terms of “acquisition” is relevant there as well. The gezerah shavah itself is unnecessary here. See Tosafot on Kiddushin 2a, s.v. “ve-khesef.”

The second derivation appears in Kiddushin 4b, where the discussion concerns the source for the law itself, namely that a woman can be betrothed by money. Therefore, as expected, only the legal part of the derivation appears there — the gezerah shavah — without the verbal addition.

The Opposite Redundancy in Yalkut Shimoni

By contrast, in Yalkut Shimoni — Chayei Sarah, sec. 102, s.v. “amar Rabbi Bun,” and Ki-Tetze, sec. 935, s.v. “ki yikach” — the wording of the Mishnah appears, “the woman is acquired in three ways,” but the discussion there deals only with the source of the law of kiddushin by money, not with the phrasing “is acquired.” Even so, the entire structure of the derivation is brought there, both parts of it, exactly as at the beginning of Kiddushin. At first glance, it is not clear why those passages need to cite the additional verbal component that proves that “taking” is called “acquisition,” if the discussion concerns only the law that a woman may be betrothed by money. Here too there is a redundancy that requires explanation. At the beginning of Kiddushin, the legal part is superfluous; here, the verbal part is superfluous.¹

One might perhaps solve the problem with a technical explanation: both midrash and Gemara commonly cite the ancient source in full, even if part of it is unnecessary in the specific context under discussion. But before resorting to technical explanations, it seems preferable to seek a substantive explanation for the appearance of these seemingly redundant parts.

If we do not accept the technical explanation, the conclusion that suggests itself is that the second part of the derivation — the part that teaches that “taking” is called “acquisition” — is not merely verbal. This reinforces the hypothesis proposed above, that the second addition is an organic part of the legal derivation that proves that a woman can be betrothed by money. Below we will try to explain the role of this addition within the overall structure.

The Nature of the Gezerah Shavah Here

As noted, according to most commentators the first part of the derivation is a gezerah shavah. We must examine whether this gezerah shavah points to an essential similarity between the kiddushin of a woman and the acquisition of a field, of which the conclusion that kiddushin can be effected by money is only one detail, or whether it is merely a formal and specific comparison that pertains only to the law of money kiddushin.

As we have already seen in the essays on Parashat Lekh-Lekha — Part I, especially note 8 — and Parashat Vayera — especially the end of chapter 3 — gezerah shavah is not a merely formal rule. The textual similarity is supposed to hint at and draw attention to an essential similarity between the contexts being compared. If so, we would expect that behind this midrashic-semantic procedure of gezerah shavah there stands some essential similarity between the acquisition of land and the kiddushin of a woman.

Halakhic (Jewish-Legal) Implications

Let us begin with a remark about the legal implications of this similarity. If there were an essential similarity, we would expect the modes of kiddushin to resemble the modes of acquisition of a field. A field can be acquired in three ways — Mishnah, Kiddushin 26a — by money, deed, and chazakah, that is, taking possession through acts of control. A woman too can be acquired in three ways — Mishnah, at the beginning of Kiddushin — by money, document, and intercourse. At first glance, the similarity is complete.

More than that: one could even compare intercourse, which is the most distinctly conjugal form of “use” in relation to a woman — the language is in fact used that way — to an act of ownership in land, such as locking, fencing, or breaching the property; see Mishnah, Bava Batra 42a. Such acts create chazakah over the land.

Yet the commentators at the beginning of tractate Kiddushin discuss this, and surprisingly almost all of them reject this apparently obvious comparison — not only with respect to intercourse but even with respect to document. This is already suggested by the plain sense of the Gemara, which brings separate sources for intercourse and for document, and does not suffice with the “taking”-“taking” derivation that compares a woman to acquisitions of a field.²

A Woman Is Not the Husband’s Property

The conclusion that emerges from those commentators is that a woman’s kiddushin is not a halakhic act equivalent to monetary acquisition. In the Ritva and Nahmanides, two explanations appear:

1. A woman was never really compared to a field; rather, this is only a linguistic derivation that “taking” is done with money.
2. A woman is indeed compared to a field, but chazakah does not apply to her, because her body is not acquired by the husband, and chazakah applies only to things whose substance is acquired.

The Ritva and Nahmanides repeat this formulation in their novellae to Gittin 9a, where they write: “For a woman is not the husband’s property.”

At first glance, this is another argument in support of the Ritva’s claim cited above, that there is no gezerah shavah here at all, only a clarification. Yet even the Ritva, when presenting that view, calls it “nothing more than a weak gezerah shavah.” This implies that in his view too, a real gezerah shavah is an actual comparison and not merely a formal inferential procedure. Precisely for that reason he is forced to say that here it is not a full gezerah shavah. The expression “weak gezerah shavah” indicates that there is indeed some similarity here, but one must be careful not to draw sweeping conclusions from it. Let us recall that according to Rashi and Maimonides, this is a full gezerah shavah.

The Similarity Between a Woman and a Field

Thus, according to all views, there is some essential similarity between the act of acquiring a field and the act of kiddushin, as also appears from the Gemara itself. On the other hand, we have seen that the act of kiddushin does not reflect proprietary ownership. What, then, do these two acts have in common?

As background for the inquiry, let us examine the claim that a woman is not the husband’s property in light of the law that the betrothed daughter of a priest may eat terumah (the priestly offering). The source for this — see Babylonian Talmud, Ketubot 57b and elsewhere — is the verse, “one purchased with his money may eat of it.”³ If the woman is not acquired by her priest-husband, it is not clear why she is called “one purchased with his money.” More than that: the very fact that this gezerah shavah yields an additional law — that a betrothed woman may eat terumah — beyond the law of money kiddushin itself indicates that some substantive comparison underlies it.

In responsum 17 at the end of Avnei Miluim, an explanation is brought from the Shitah Mekubetzet on Ketubot 57b: the woman is called “one purchased with his money” because she is formally acquired by money, even though in truth she is not acquired by her husband in any proprietary sense. In any event, if we derive the law of eating terumah from this comparison, it seems that there is some essential comparison between a woman and a field, not merely a terminological one. In other words, the kiddushin of a woman is indeed compared, in some sense, to the acquisition of a field, even though a woman is not her husband’s property.

What Is a Kinyan?

To understand this, we need to examine the concept of kinyan (formal acquisition) itself. It can be shown that the fact that a person has a kinyan in a field is not exhausted by the fact that he has monetary rights in it, or that others may not use the field without his permission. In halakha, kinyan is fundamentally a metaphysical concept, expressing a bond between a person and his property. One may call such a bond a status-imposition. That bond grants the owner monetary rights and also imposes obligations on him.

Our claim is that the monetary rights are consequences of that metaphysical bond, not its essence. There are cases in which, despite the existence of the status-imposition, some of those consequences do not appear at all. This is not the place to elaborate the proof of this claim,⁴ and we will merely use it here in order to propose an explanation for the midrashic structures under discussion.

Explaining the Gezerah Shavah

In light of the foregoing, it seems that the lesson of the gezerah shavah is that the creation of metaphysical relations — that is, status-impositions — of certain kinds requires the giving of money. There is no comparison here between acquisition of a field and kiddushin of a woman in the ordinary legal sense, but rather in a metaphysical sense. There is a similarity in the type of metaphysical bond created in the two contexts, and therefore in both cases that bond is created through the giving of money.

But there is no justification for drawing sweeping conclusions from this comparison, as we saw in the Ritva. For example, one should not transfer the hierarchical character of ownership into the context of marital relation. In general, a woman is not the husband’s property. The gezerah shavah claims that a woman comes under a marital status, which expresses her bond to the husband, and that this status resembles the status of proprietary ownership. That is the essence of the comparison between field and woman, even though a woman is not her husband’s property in the acquisitive sense.⁵

Understanding the Above Redundancies

We can now return to the supposedly superfluous components of the derivations cited above. Our claim is that the purpose of the gezerah shavah was to prove that the creation of a metaphysical relation of a certain kind, one called kinyan, is accomplished through money. On this reading, the second part of the derivation is indeed an organic part of it, just as we suggested above. There is no overall comparison between field and woman here, but only a comparison between the modes by which metaphysical relations of these types are created. We prove that a woman’s kiddushin is a kinyan — that is, a metaphysical bond of a certain character — and from that infer that such a bond is created through money.

In Yalkut Shimoni we saw that the entire derivation is cited in order to explain that a woman’s kiddushin is effected through money. We can now understand why the “taking”-“taking” comparison from field to woman is not sufficient for that purpose, since it is not a full comparison. There is a limitation on that comparison, and it is learned from the second part. There we see that “taking” — that is, the creation of a metaphysical bond of this type, namely kinyan — is done with money, but not necessarily with document and chazakah. As stated, the comparison to acquisitions of a field is not complete.

In the discussion at the beginning of Kiddushin, we asked why the Talmud did not suffice with the verbal part and instead added the legal gezerah shavah as well. We can now understand that these two together form a single organic derivation, teaching us that kinyan — namely, a metaphysical bond of a certain kind — is done with money, and that a woman’s kiddushin is a kinyan, that is, such a bond. For that reason, the Mishnah at the beginning of the tractate can use the language “the woman is acquired.” As we saw, for the same reason the woman is called “one purchased with his money” in relation to her husband, even though she is not acquired by him in a proprietary sense. This is indeed a substantive determination, not a semantic one, but it is not sweeping. Marriage is in its essence a kinyan — not merely something called “kinyan” — and yet no sweeping conclusions about the nature of marital relations should be drawn from that.⁶ Perhaps this is also the intention of Tosafot on Kiddushin 2a, s.v. “ve-khesef.”

We still must understand why the second part of the derivation was not brought in the discussion in Kiddushin 4b. It may be that the reason is that the concern there is only with the law that emerges from the derivation and with its textual source, not with the detailed relationship between them. By contrast, at the beginning of tractate Kiddushin there was a clear need for the second part, since the ultimate goal there was linguistic, and therefore the derivation was brought there in full.

General Conclusions

The discussion conducted here concerns the structure and content of one specific gezerah shavah. But one may infer from it that a thorough examination of midrashic sources can yield insights into the meaning of the laws learned from them.

Beyond that, we see that in this derivation, as in many others, there is both a formal-textual component and a content-based substantive component. We have seen this in previous essays as well, and, God willing, we will see it again in the future. It is extremely important to be aware of the existence of these two components and to distinguish between them.

Only the formal-textual part of the derivations is universal, and that is the hermeneutical rule itself. The substantive part — such as the metaphysical assumptions about the character of kinyan in halakha — depends on the particular derivation under discussion, and is therefore less accessible to comprehensive study and probably not susceptible to formalization. The hermeneutical rule is the part given to us at Sinai — see, for example, the essay on Parashat Lekh-Lekha, Part II — as a body of methods of interpretation. It should be noted that the existence of a substantive component, and the difficulty of isolating it, complicates the systematic study of a hermeneutical rule, since such study is meant to separate out the formal part of a derivation and examine only that.

B. The Halakhic Status of Laws Learned from Derashot⁷

Maimonides’ Ruling Regarding Money Kiddushin

At the beginning of the Laws of Marriage, Maimonides presents the law of money kiddushin and writes as follows, Mishneh Torah, Laws of Marriage 1:2:

A woman is acquired by one of three methods: by money, by document, or by intercourse. By intercourse and by document — this is from the Torah; by money — it is from the words of the Sages.

Maimonides rules here that money kiddushin is not a Torah law but rather “from the words of the Sages.” The meaning of that phrase is a rabbinic law. But his statement is puzzling — as the Raavad there already objects, along with many other commentators on the code — for we have seen that the law of money kiddushin is learned from a gezerah shavah, or from other derivations, and the accepted rule among most commentators is that any law learned from derashot is a full biblical law.⁸ In that same dispute, Rashi on Ketubot 3a, mentioned above, sided with the Raavad, whereas all his teachers sided with Maimonides.

The commentators on the Laws of Marriage cite Maimonides’ statement in the second principle of Sefer HaMitzvot — and see Lehem Mishneh here, who cites a responsum of Maimonides himself on this point — where he lays down the sweeping rule that the halakhic status of every law learned from a derivation is that of “the words of the Sages.” This is a revolutionary claim, and Nahmanides, in his glosses there, sharply disputes Maimonides’ position. Here we will consider this innovative claim of Maimonides briefly.

The Innovation of the Second Principle

In fact, we must be more precise. Maimonides opens that principle with a distinction — also presented in his introduction to the Commentary on the Mishnah — between “creative derivations,” meaning cases in which the laws are actually generated and newly produced by the derivation itself and did not exist beforehand, and “supportive derivations,” whose purpose is only to anchor or reinforce an already existing law. See briefly the essay on Parashat Bereshit, Part II.⁹

Only at the next stage of the discussion does Maimonides present his main innovation: laws merely supported by midrashim are biblical, but laws produced by midrashim are “from the words of the Sages.”¹⁰

There has been disagreement among interpreters of Maimonides — already beginning with the medieval commentators — as to exactly what he means.¹¹ Some explained that the expression “the words of the Sages” does not mean rabbinic law, but is rather a categorical statement pointing to the source of the law and not to its legal status. Its status is that of biblical law; only its source is not the Torah itself but a derivation of the Sages. But this claim does not stand up well empirically. When one examines Maimonides’ language, one does not find such consistency in his use of the expression “the words of the Sages.” In many places he uses it simply in the sense of rabbinic law, and not at all in the context of hermeneutical rules. It should also be noted that the Principles were originally written in Arabic, and Maimonides’ language there indicates that he really does mean rabbinic laws. See, for example, Halbertal, note 12.

And indeed, some interpreted Maimonides to mean straightforwardly rabbinic laws. But that interpretation is also difficult, in light of how rare laws of this kind are in the Mishneh Torah. See the references and notes in the Frankel edition of Maimonides on the law cited above. Others explained that Maimonides intended an intermediate category: for most halakhic consequences it is like biblical law, but still lighter than ordinary biblical law, somewhat in the spirit of the Ran mentioned above.

In principle, it is possible that Maimonides’ words in the Principles simply cannot be reconciled with his words in the Mishneh Torah, which was written about ten years later and is not always fully consistent with it. But Maimonides himself testifies in the responsum mentioned above that he did not retract. In the final analysis, then, the conclusion remains far from clear. In any event, Maimonides’ words in the Principles seem to indicate that he did indeed mean genuinely rabbinic laws.

Nahmanides’ Objection

Nahmanides understood Maimonides this way as well in his glosses to the second principle. One of the objections he raises lies on the level of meta-halakhic reflection: the derivations rest mainly on the thirteen hermeneutical rules given to us as a law transmitted to Moses at Sinai — see the essay on Parashat Lekh-Lekha, Part II, and also Part III of the essay on Parashat Vayera. The text to which those rules are applied — the Written Torah — was also given at Sinai. If so, how can the result of applying tools transmitted at Sinai to a text transmitted at Sinai be a rabbinic law?

Explaining Maimonides’ Position: The Analogical Character of Derashot

The answer lies in what we saw in the essay on Parashat Noah, Part II, where we distinguished between deduction, which is an analytic and therefore necessary inference, and induction and analogy, which are two kinds of ampliative inference. We saw there that the necessity of deductive inference stems from the fact that it tells us nothing beyond what is already contained in the premises. The conclusion is already swallowed up in the premises, and deduction serves only as a tool of extraction. By contrast, analogy and induction expand our horizon of knowledge beyond what is already latent in the premises we possess.

We must now add the assumption that the tools of midrash — the thirteen rules — are analogical and inductive rather than deductive; see the essay on Parashat Lekh-Lekha. From this, Maimonides’ conclusion naturally follows. The Torah was indeed given to us at Sinai, and Scripture is the set of premises upon which we operate by means of the midrashic toolbox. That toolbox too was given to us at Sinai. But the use of that toolbox is not merely a way of extracting laws already latent in the text; it is a tool for expanding halakha beyond what is written in the Torah.

Therefore, in a certain sense, such laws do resemble rabbinic laws, which are likewise an expansion of halakha. A rabbinic enactment does not uncover dimensions that were already present in the Torah itself; it extends the law beyond what is found in the Torah. In both of these types of halakhic activity there is an element of legislation, whereas ordinary biblical laws are the result of interpretation and not legislation. That is why Maimonides calls the laws that emerge from derashot “the words of the Sages,” since they are the product of a quasi-legislative act of the Sages.¹²

Maimonides himself probably intends this point when he writes in the second principle as follows:

Perhaps you may think that I refrain from counting them because they are not true. But whether a law that emerges through one of these rules is true or not true is not the reason. Rather, the reason is that whatever a person derives are branches from the roots that were stated to Moses at Sinai.

Several Points for Reflection

This is, of course, not the whole picture. First, we must examine Nahmanides’ position. Does he hold that the derivations are deductive? That is very hard to believe; see the end of the essay on Parashat Lekh-Lekha. Beyond that, it is not clear why Maimonides distinguishes between creative derivations and supportive derivations for this purpose. And further: according to Maimonides, would every plain-sense interpretation of Scripture, which is usually not deductive, also count as a law “from the words of the Sages”? That too is very hard to accept. God willing, we will return to these points in the future.

Footnotes