Matot (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 the Sabbath, Parashat Matot, 5765

Questions

1. What is the difference between annulment and release of vows?
2. What should we do when a derivation from a verse contradicts the reasoning of a kal va-homer?
3. Which is harder: uprooting the plant, or preventing the seed from taking root?
4. What does all this have to do with the laws of stipulations?
5. Do all the medieval authorities agree on the question of what a “scriptural decree” is?
6. On a hierarchy of strength and a hierarchy of kind.

The Hermeneutical Principle: Kal va-homer (an a fortiori inference)

Verse:

“And if she vowed in her husband’s house, or bound herself by a pledge with an oath, and her husband heard it and remained silent toward her, not disallowing her, then all her vows shall stand, and every pledge by which she bound herself shall stand. But if her husband annuls them on the day he hears them, then anything that proceeded from her lips, whether concerning her vows or concerning the pledge upon herself, shall not stand; her husband has annulled them, and the Lord will forgive her. Every vow and every binding oath to afflict the soul, her husband may confirm it and her husband may annul it. But if her husband remains completely silent toward her from day to day, then he confirms all her vows or all her pledges that are upon her; he confirms them because he remained silent toward her on the day he heard them. But if he annuls them after he has heard them, then he shall bear her iniquity.”

(Numbers 30:11-16)

Mishnah:

If one says to his wife, “All the vows that you will vow from now until I return from such-and-such a place are hereby confirmed” — he has said nothing. “They are hereby annulled” — Rabbi Eliezer says: They are annulled, and the Sages say: They are not annulled. Rabbi Eliezer said: If he annuls vows that have already entered the realm of prohibition, shall he not annul vows that have not yet entered the realm of prohibition? They said to him: Scripture says, “Her husband may confirm it and her husband may annul it”: only that which has entered the realm of confirmation has entered the realm of annulment; that which has not entered the realm of confirmation has not entered the realm of annulment.

Gemara:

They raised a question: According to Rabbi Eliezer, do they take effect and then become void, or perhaps they do not take effect at all? What practical difference does this make? For example, if another person attached his vow to this vow: if you say that they take effect, the attachment is effective; if you say that they do not take effect, there is no substance to it. What then?

Come and hear: Rabbi Eliezer said, “If he annuls vows that have already entered the realm of prohibition, shall he not annul vows that have not yet entered the realm of prohibition?” Infer from this that they do not take effect. Does it say “that do not come”? It says “that have not yet come” — they have not yet come, but they will.

Come and hear: Rabbi Eliezer said to them, “If in a case where a person cannot annul his own vows after vowing, he can annul his own vows before vowing, then in a place where he can annul his wife’s vows after she vows, is it not all the more so that he can annul his wife’s vows before she vows?” Does this not imply that his wife’s case is analogous to his own: just as in his own case they do not take effect, so too in his wife’s case they do not take effect? No. Each case is as it is.

Come and hear: They said to Rabbi Eliezer, “If a mikveh, which purifies the impure, does not protect the pure from becoming impure, then a person, who cannot purify the impure, is it not all the more so that he should not protect the pure from becoming impure?” Infer from this that they do not take effect.

But consider the latter clause: They said to Rabbi Eliezer, “If one immerses an impure vessel so that it may become pure, would one immerse a vessel now so that when it later becomes impure it will become pure?” Infer from this that they do take effect!

They said: The Sages themselves do not accept Rabbi Eliezer’s reasoning, and this is what they said to him: What is your position? If you hold that they take effect and are then voided, let the case of the vessel refute you. And if you hold that they do not take effect, let the case of the mikveh refute you.

Come and hear: Rabbi Eliezer said to them, “If impure seeds, once sown in the ground, become pure, then seeds already sown and standing in the ground all the more so.” Infer from this that they do not take effect.

Do the Sages not derive by kal va-homer? But was it not taught: Might a man sell his daughter when she is already a young woman? You say by kal va-homer: If one already sold goes free, is it not all the more so that one not yet sold should not be sold? Yes, elsewhere they do derive by kal va-homer; but here it is different, because Scripture said: “Her husband may confirm it and her husband may annul it”: that which has entered the realm of confirmation has entered the realm of annulment; that which has not entered the realm of confirmation has not entered the realm of annulment.

(Babylonian Talmud, Nedarim 75b-76a)

A. On What I Take to Be a Unique Type of Kal va-homer

Introduction

When a woman makes a vow, in matters that concern the relationship between husband and wife or involve self-denial, the vow is subject to her husband. If the husband confirms it on the day he hears it, it can no longer be annulled. If, however, the husband annuls the vow on the day he hears it, the vow is annulled. In the case of anyone else’s vow, the one who releases the vow is the sage, or the court. The sage’s release and the husband’s annulment of his wife’s vows, and likewise the father’s annulment of his daughter’s vows, are different mechanisms: the sage releases the vow, and once he does so the vow is regarded as though it never existed from the outset.¹ By contrast, in the husband’s case this is called “annulment” rather than “release,” and there the vow does take effect when she utters it, but from the moment of the husband’s annulment onward, if that annulment occurred on “the day he hears it,” it is annulled. See Babylonian Talmud, Ketubot 74b.

The General Course of the Gemara

Our Mishnah deals with the annulment of future vows. When the husband says to his wife that all the vows she will make in the future, until the moment he returns, will be either confirmed or annulled, two cases arise. In the first case, when he says that the vows will be confirmed, it is clear according to everyone that his words are meaningless. That is, until the husband returns, the vows are not confirmed; they have not yet entered the realm of confirmation. In the second case, when he says that they are annulled, the mishnaic sages disagree. Rabbi Eliezer holds that they are annulled, and his reason is a kal va-homer: if one can annul vows that have already taken effect, then obviously one can annul vows that have not yet taken effect, since these are easier to annul. The Sages, by contrast, hold that a derivation from the verse in our passage teaches that vows that have not yet entered the realm of confirmation, and on this everyone agrees, as stated in the first clause, likewise cannot be annulled.

At the beginning of the Gemara (the talmudic discussion), a question arises as to the meaning of Rabbi Eliezer’s words: does the woman’s vow take effect when she utters it and then immediately become annulled, or does it not take effect at all, since the husband’s annulment preceded the time at which she vowed?² At the beginning of the Gemara it seems that the position being defended is that according to Rabbi Eliezer these vows do take effect and are immediately annulled. But in the second part of the discussion the opposite seems to emerge, and in the end the conclusion is that these vows do not take effect at all.

Within the discussion there is also an exchange between Rabbi Eliezer and the Sages about the kal va-homer itself. The Sages offer reductio arguments: kal va-homer arguments like Rabbi Eliezer’s, which are obviously invalid, and apparently Rabbi Eliezer himself would agree that they are invalid. They try to prove from this that Rabbi Eliezer’s own argument is also invalid. Their words, however, do not explain what the actual problem is with Rabbi Eliezer’s kal va-homer. They offer only an indirect proof that it cannot be correct. We shall return to this point below.

The Gemara then goes on to ask whether it is possible that the Sages do not derive by kal va-homer at all, since in the law of the Hebrew maidservant a kal va-homer is used explicitly, as will be detailed below. The conclusion of the discussion is that the Sages too agree that there is such a consideration as kal va-homer, but in our case they have an explicit verse that overrides it.

Difficulties in the Course of the Gemara

The course of the Gemara is not clear, in several respects:

1. The Mishnah itself already states that the Sages invoke a verse against the kal va-homer. If so, why does the Gemara continue to deliberate over this until it reaches what seems to be the foregone conclusion?
2. Why does the Gemara bring, as proof that everyone must acknowledge kal va-homer reasoning, specifically the kal va-homer from the Hebrew maidservant? It would have been more natural to bring the example from the illustrative baraita, which is also cited elsewhere in the Talmud, such as Babylonian Talmud, Bava Kamma 25a and parallels, from the verse “And if her father had but spit in her face” — see the page on Parashat Beha’alotekha.
3. The previous question is sharpened further by the fact that the kal va-homer under discussion here is not a formal, rule-based kal va-homer, but a reason-based one that rests on a single datum, as explained on the page for Parashat Noah and elsewhere. That is precisely the sort of kal va-homer found in the illustrative baraita, and therefore that example would have been especially apt.
4. If the Sages really accept the principle of kal va-homer and disagree only with Rabbi Eliezer’s specific reasoning, then we need to understand what the problem truly is with kal va-homer arguments of this type. Why are they not like every other kal va-homer, which the Sages also accept?

The Sages’ View: In the Initial Assumption and in the Conclusion

Let us perhaps begin with the end. From the flow of the Gemara it is clear that there was never any initial assumption that the Sages reject the hermeneutical rule of kal va-homer in general. Clearly everyone accepts such a hermeneutical rule; this is also the implication of the language in Babylonian Talmud, Bava Kamma 25a, which assumes that even the principle of dayyo, which is only one detail within the laws of kal va-homer, must necessarily be accepted by all the mishnaic sages. Hence, even in the Gemara’s initial assumption, when it thought that the Sages do not accept Rabbi Eliezer’s kal va-homer, the dispute concerned only one specific type of kal va-homer, not the rule as a whole.

This indeed emerges from the wording of the medieval commentators near the end of the discussion. The Mefaresh writes:

“Do the Sages not derive by kal va-homer?” — this is a rhetorical question, meaning: of a sort such as Rabbi Eliezer derives with respect to vows.

So too the Ran writes there:

“Do the Sages not derive by kal va-homer?” — why, then, do they disagree with Rabbi Eliezer? Do they not also admit that we derive a kal va-homer from what has taken effect to what has not taken effect? But we were taught that we indeed reason by a kal va-homer of this kind.

This is why the proof against the Sages — showing that they too must concede a kal va-homer — is brought from the Hebrew maidservant and not from the example of “And if her father had but spit in her face.” The Gemara was specifically looking for a kal va-homer of this type, which would prove that the Sages also derive it. In this way difficulties 2 and 3 are resolved.

It should be noted that from the conclusion of the discussion it would seem, at first glance, that the Sages do not dispute this type of kal va-homer at all. They merely bring a verse that contradicts the conclusion of the specific argument in our passage. In other words, they too accept this type of reasoning in principle, but in the matter of advance annulment of vows there is a derivation that contradicts it.

Yet in light of difficulty 4, we must continue to ask, even according to the conclusion: why is Rabbi Eliezer’s seemingly plausible reasoning in fact incorrect? Put differently: what does the verse teach us, and what is the logic behind it? After all, the bottom line produced by this verse is indeed a puzzling legal situation: the husband’s annulment can uproot vows that have already taken effect, but it cannot prevent future vows from taking effect.

One may say that what is really taking place here is a rejection of the logic underlying the kal va-homer. The derivation from the verse merely provides a source for the Sages’ claim, rather than functioning as a mere scriptural decree regarding an exceptional case. On this proposal, the Sages are indeed disputing this type of kal va-homer as such, even according to the Gemara’s conclusion. This of course leads us to reexamine the parallel examples cited in the discussion. On our approach, if the derivation serves as evidence against the logic of Rabbi Eliezer’s kal va-homer, the Sages should disagree with Rabbi Eliezer in all the examples built on the same logic. Below we shall also bring a clear proof of this from the course of the Gemara itself. It is important to note, however, that the Ran and Tosafot at the end of the discussion do not understand the matter this way. In their view, in the conclusion the Sages concede Rabbi Eliezer’s logic in principle, and depart from it only with respect to advance annulment of vows because of the verse.

Rabbi Eliezer’s Kal va-homer Reasoning

Let us begin by understanding Rabbi Eliezer’s kal va-homer. The logic guiding him seems simple enough: if the act of annulment succeeds in uprooting a vow that has already taken effect, then all the more so it should be able to prevent the vow from taking effect before it does so. The reasoning at the basis of Rabbi Eliezer’s kal va-homer is that it is easier to prevent something from coming into being than to uproot it after it has already come into being.

According to the classification we have mentioned several times, this is a kal va-homer of the third type: a kal va-homer based on reasoning. See the page on Parashat Noah. As we shall see below, the same logic underlies the other examples brought in this talmudic passage. All of them are kal va-homer arguments of the third type, and the reasoning at their base is the same: it is easier to prevent a legal effect from taking hold than to uproot it once it has taken hold. Let us now proceed through the talmudic discussion.

The Continuation of the Baraita: The Person Himself

At the start of the discussion, after sharpening the problem, the Gemara brings a continuation of the debate between the disputing sages from a baraita, that is, a tannaitic teaching outside the Mishnah. There Rabbi Eliezer raises an additional kal va-homer against the Sages, comparing a person’s ability to annul his own vows with his ability to annul his wife’s vows. A person can annul his own future vows by making a prior declaration before he vows, as in the release-of-vows formula recited on Rosh Ha-Shanah, and in that case his vows do not take effect at all. By contrast, after he has vowed, a person cannot annul his own vows; only a sage can release them. If so, Rabbi Eliezer argues, we have here a kal va-homer: if a person himself, who cannot annul his vows after they have taken effect, can annul them before they take effect, then with respect to his wife, whose vows he can annul after they have taken effect, surely he should be able to annul them before they take effect.³

As we already noted, the kal va-homer that appears in the Mishnah is a reasoning-based kal va-homer. By contrast, in the baraita cited here the kal va-homer is a regular formal one, based on a generalization from several data points, as explained on the page for Parashat Noah.

Why, then, does Rabbi Eliezer think that the Sages, who dispute the kal va-homer in the Mishnah, will agree to the formal kal va-homer that he brings here? What makes this kal va-homer stronger than the previous one?

It seems that this kal va-homer offers proof for the reasoning that underlies the kal va-homer in the Mishnah. For in the case of a person’s own vows, the Sages agree that he can annul before he vows, but cannot annul after he has vowed. From this it follows that it is easier to prevent a legal effect from coming into being than to uproot it after it has already taken effect. Rabbi Eliezer therefore expects the Sages to concede his reasoning in the kal va-homer of the Mishnah as well. In other words, unlike the kal va-homer in the Mishnah, which treats this reasoning as self-evident, the kal va-homer in the baraita generalizes from the laws of a person’s own vows and thereby substantiates the reasoning. This is why Rabbi Eliezer regards it as a stronger kal va-homer and expects the Sages to agree with him on that basis.

The Sages’ reply, which perhaps appears in the baraita, is not cited in our talmudic passage. Presumably they answered Rabbi Eliezer here too by invoking their derivation from our verse, namely the juxtaposition between confirmation and annulment.

What emerges from our discussion is that the middle stage of the tannaitic debate is missing from the Mishnah. The Mishnah opens directly with a give-and-take over Rabbi Eliezer’s own kal va-homer. The Sages first disputed that kal va-homer on the basis of pure reasoning, that is, they did not accept the reasoning that it is easier to prevent a legal effect from arising than to uproot one that already exists. Only afterward, when Rabbi Eliezer brought against them the proof from a person’s own vows — that is, the substantiated kal va-homer — did they bring the derivation that appears at the end of the Mishnah.

If this is correct, then the full exchange between the disputing sages unfolded exactly as it appears in the Gemara. This resolves difficulty no. 1 above: the Gemara merely seeks to reconstruct the exchange that took place between the sages, especially the part missing from the Mishnah between the opening and closing clauses.⁴

This gives rise to an additional point. At least at the beginning of the debate, it is clear that the Sages really do dispute Rabbi Eliezer’s reasoning; they do not accept the idea that preventing a legal effect is easier than uprooting it. Only at the end of the exchange between them, as in the Gemara’s conclusion, do they bring the derivation from the verse. Only there is it possible to say that they retracted and conceded Rabbi Eliezer’s reasoning, and that the dispute is specific only to the matter of annulment of vows, as Tosafot and the Ran maintain. We have already noted, however, that according to our proposal above, the Sages remain in their original position even in the conclusion. See further below.

The Kal va-homer from the Ritual Bath and from Seeds

The next stage of the Gemara introduces two further arguments in order to resolve the doubt regarding Rabbi Eliezer: does the legal effect arise and then get uprooted, or does it never arise at all? We shall discuss them only with respect to the Sages’ attitude toward Rabbi Eliezer’s kal va-homer, and what is distinctive about it.⁵

At this point the Gemara presents what appears to be a continuation of that same baraita, but now it is an argument of the Sages against Rabbi Eliezer. There are several versions of the Sages’ argument, see the Mefaresh and the Ran ad loc., but in essence they bring a kal va-homer of Rabbi Eliezer’s own type and show that its conclusions are false. This is a reductio ad absurdum argument:⁶ a mikveh, a ritual bath, succeeds in purifying those who are impure. If so, according to Rabbi Eliezer’s kal va-homer, immersion in a mikveh should certainly also help prevent future impurity. But everyone agrees that this is not the law. It follows that such a kal va-homer is not valid. Here too we see that at least at this stage the Sages are disputing Rabbi Eliezer’s reasoning itself, and not only the matter of advance annulment of future vows.

After that, Rabbi Eliezer brings a kal va-homer concerning seeds. From the law that impure seeds, once sown in the ground, emerge from their impurity, that is, become pure, we infer that seeds already sown and standing in the ground do not become impure at all. Rabbi Eliezer’s intention is apparently to say that even the Sages must admit that the source of the law that attached seeds do not contract impurity is such a kal va-homer, since there is no other source for it. So too writes the Ran there.

From the very analogy that Rabbi Eliezer brings, the Gemara proves that his intention is that in the case of future annulment the vow does not take effect at all, just as seeds already in the ground do not become impure at all.

The Dispute Between Rabbi Eliezer and the Sages

The explicit focus of the Gemara is only the doubt concerning Rabbi Eliezer’s view. The full give-and-take between Rabbi Eliezer and the Sages is not reproduced, because that is not the subject of the talmudic passage. It is therefore unclear from the passage what Rabbi Eliezer answered the Sages about the mikveh, and what the Sages answered Rabbi Eliezer about the seeds. Let us try to complete the picture for ourselves and understand those answers.

Let us begin with Rabbi Eliezer’s kal va-homer regarding seeds. At first glance, his argument there is not valid at all. Seeds in the ground do not contract impurity, but that is not because an act of sowing was performed on them. Their inability to contract impurity stems from the fact that they are in fact attached to the ground, and whatever is attached to the ground does not contract impurity. Thus it is not the act, the sowing, that purifies them, but the state itself, namely their being attached. This is indeed what the Mefaresh writes there: “all the more so they will not contract impurity, for whatever is attached to the ground is like the ground.” But the fact that they are attached now does not operate because the attachment preceded the impurity, as Rabbi Eliezer argues. Rather, it operates because even after the would-be impurity they are still attached. In other words, even if Rabbi Eliezer’s kal va-homer is invalid, and therefore sowing in the ground in the past cannot prevent future impurity, the attached seeds will still not contract impurity, since at the end of the day they remain attached, and that very attachment prevents them from becoming impure.

By contrast, in the case of the mikveh it is entirely intelligible that the purification Rabbi Eliezer claims is due to the act of immersion, not to the mere state of being in a mikveh. But the act of immersion took place in the past, and now no trace of it remains. Therefore, if Rabbi Eliezer’s kal va-homer is not sound, then immersion in a mikveh certainly cannot prevent future impurity. The conclusion is that, unlike the case of seeds, this case really does depend on the dispute between Rabbi Eliezer and the Sages.

The same is true of advance annulment of vows. There too it is the act of annulment that annuls the vow, not some state of affairs. But the act of annulment was done in the past, and now no trace of it remains. Therefore, if Rabbi Eliezer’s kal va-homer is not valid, as the Sages maintain, then advance annulment is clearly impossible. Here too the law depends on the dispute among the sages concerning the kal va-homer.

To sum up: the case of seeds cannot serve as proof against the Sages. On the contrary, Rabbi Eliezer’s reliance on a kal va-homer in that case is puzzling. The case of the mikveh, by contrast, does genuinely support the Sages. We may bring evidence for our position from the fact that the Gemara itself, when seeking proof that even the Sages must accept Rabbi Eliezer’s type of kal va-homer, does not bring proof from the kal va-homer of seeds that Rabbi Eliezer himself had brought. Instead, the Gemara brings its proof from the Hebrew maidservant. This seems to prove that, according to the Sages, there is no need at all to resort to such a kal va-homer in the case of seeds. This is exactly our point. And once again, that is indeed what the Ran himself writes there:

It seems to me that this is why the Gemara challenges them from that baraita more than from the kal va-homer of seeds that Rabbi Eliezer said to them, because it was not clear to the Gemara what the Sages thought about seeds already sown and standing. Therefore it challenges from that baraita, where no one disagrees. Alternatively, it is possible that the Sages hold that with regard to seeds already sown and standing no kal va-homer is needed, for it follows directly from the verse “upon any seed that is sown” itself. Thus it seems to me.

Interim Summary: Between Proof and Reasoning

In general, the conclusion of the talmudic discussion seems, at first glance, to be that the Sages are the more reasonable side and Rabbi Eliezer’s view is the difficult one. On the other hand, although we did not find proof from these cases in Rabbi Eliezer’s favor and against the Sages, we still have to ask: what exactly is the Sages’ reasoning? For as a matter of plain logic, Rabbi Eliezer seems to be right. Preventing something from coming into being ought to be easier than uprooting something that already exists. Even if this cannot be proved from the case of seeds, it is still unclear why the Sages do not accept this reasoning in itself.

B. The Sages’ Reasoning: Is Preventing Formation Really Easier Than Uprooting?

Introduction: Do the Sages Disagree Only About Annulment, or in Principle?

As we saw above, it is quite plausible that the Sages disagree with Rabbi Eliezer as part of a principled dispute. The derivation from the verse cannot substitute for reasoning; at most, it can serve as evidence for the Sages’ position in the dispute. It proves that preventing a legal effect from coming into being is not necessarily easier than uprooting a legal effect that has already come into being. The question is: why not? At first glance this hierarchy seems perfectly sound, and we use it not infrequently in Jewish law.

Even according to Tosafot and the Ran, who hold that in the conclusion of the talmudic passage the Sages accept Rabbi Eliezer’s kal va-homer, the initial assumption — whose existence we proved above from the give-and-take in the baraita — according to which the Sages dispute Rabbi Eliezer on the very reasoning of the kal va-homer, still requires explanation.

One might have suggested that Rabbi Eliezer’s view is that, legally speaking, the annulment somehow continues all the time, and therefore uproots the vow when it is uttered. On that view, the Sages who disagree with Rabbi Eliezer would hold that the act of uprooting ended when it was performed and is not regarded as an ongoing act.

But that does not seem to be the sense of the Gemara. For on that reading, the simpler mechanism — the one everyone agrees about — would actually be uprooting rather than preventing formation. Rabbi Eliezer’s innovation would then be that the act of uprooting persists at all times, and therefore there is always uprooting here. According to that explanation, even preventing formation would itself be a form of uprooting, and that is why it would work according to Rabbi Eliezer. This is, of course, contrary to the plain meaning of the Gemara, from which it emerges that for Rabbi Eliezer prevention is the easier and more straightforward mechanism.

It therefore seems that the Sages are making a principled claim against the hierarchy that seems so simple to Rabbi Eliezer. Such a claim should concern all the kal va-homer arguments of the kind we encountered in part A, and not only the question of advance annulment.

The Principled Dispute

In the course of the discussion, the Ran writes that it appears from here that “the matter does not depend on relative leniency and stringency.” That is, in the view of the Sages, at least at this stage of the discussion, the difference between uprooting a legal effect and preventing its coming into being is not simply a matter of lighter and heavier.

This remark of the Ran contains two very important points, the first concerning every kal va-homer, and the second concerning Rabbi Eliezer’s specific type of kal va-homer:

1. Whenever we formulate a kal va-homer, we must ask whether the hierarchy between source and target is really based on leniency and stringency, or on other, more specific considerations.⁶
2. It seems that there is a broad and fundamental dispute between Rabbi Eliezer and the Sages, at least in the initial assumption according to the Ran, a dispute not limited to advance annulment of vows but touching the very logic of the hierarchy between uprooting and preventing formation. As we have seen, this reasoning arises in several different legal contexts, and all of them should be affected by this dispute.

All this, however, is only true at the intermediate stage of the discussion. As already mentioned, the Ran at the end of the discussion writes explicitly that in the conclusion the dispute between Rabbi Eliezer and the Sages concerns only advance annulment, because of the derivation from the verse. Tosafot write the same there. Let us recall, however, that according to our proposal above, even in the conclusion the dispute concerns the very logic of the kal va-homer that equates preventing formation with uprooting. The Ran himself, at the end of the discussion, brings a clear proof for this, and Tosafot too seem to have sensed it: the Sages answer Rabbi Eliezer from the case of the mikveh, which proves against his logic. But if the Sages accepted Rabbi Eliezer’s logic and differed from him only in the matter of annulment, as the Ran and Tosafot themselves write, then what proof do they have against him from the mikveh? This seems to be clear evidence for our proposal, that the dispute between Rabbi Eliezer and the Sages is principled, and the verse merely serves as evidence for the Sages’ position, not as a scriptural decree concerning an exceptional case, as one might perhaps have understood the conclusion of the talmudic passage. The Ran and Tosafot reject this with strained explanations.

Two Possibilities for Understanding the Sages’ View According to Our Proposal

We have seen that according to Tosafot and the Ran, in the conclusion of the talmudic passage there is no substantive dispute between the Sages and Rabbi Eliezer. According to our proposal, however, there is such a dispute; and even according to Tosafot and the Ran, there is such a dispute in the initial assumption. In either case, then, we must explain how one could possibly dispute Rabbi Eliezer’s seemingly simple reasoning. It seems that this can be explained in two principal ways:

1. The Sages may disagree head-on with Rabbi Eliezer and hold that preventing something from coming into being is not really easier than uprooting it. Therefore, a tool that works to uproot need not work to prevent formation.
2. Alternatively, the Sages may simply argue that preventing formation, even if generally easier, is a mechanism different in kind from uprooting something that has already come into being, and a different mechanism requires different tools. For example, uprooting a plant requires the application of force and pulling it out. Preventing its being planted, or preventing its taking root in the soil, may be accomplished by watering the soil with a poisonous substance. It is true that preventing the plant from taking root is easier than uprooting it, but the tool of pulling outward will not help accomplish that. So the relation of lighter and heavier does exist here, but it is not the only parameter. There are additional specific parameters that govern the difference between source and target.

The Conclusion: The Hebrew Maidservant

What forces Tosafot and the Ran to conclude that there is no substantive dispute between Rabbi Eliezer and the Sages concerning Rabbi Eliezer’s logic is the proof at the end of the Gemara from the Hebrew maidservant. On our approach, that proof requires explanation: how would the Sages explain it if they do not accept Rabbi Eliezer’s logic that prevention is easier than uprooting?

The Gemara brings a kal va-homer: if, when a girl grows up and becomes a young woman, she goes free from a state of servitude, then surely a father cannot sell his daughter as a maidservant once she has reached that stage. At first glance, according to what we explained about the Sages’ view, this is an invalid kal va-homer, since in their view prevention is not necessarily easier than uprooting.

We learn from here that even according to the Sages there are cases in which this logic does hold — in the terms of the previous subsection, cases where different “tools” or mechanisms are not involved. In the case of the Hebrew maidservant, the question is whether the girl’s reaching maturity prevents her sale as a maidservant or merely removes her from the master’s domain. Here we are speaking of something that happens by itself, not through any tools or mechanisms. In such a case, even according to the Sages’ approach, there is certainly room for a hierarchical comparison between prevention and uprooting. The Sages disagree with Rabbi Eliezer only in places where there may be different tools that perform the actions under discussion, as we explained above.

It is more plausible to understand the matter according to the second possibility proposed above. According to that possibility, the hierarchy between prevention and uprooting exists even for the Sages, but it is not exclusive. According to the first possibility, by contrast, there is no such hierarchy at all, and if so it would never be plausible for the Sages to agree to such a hierarchy in any case. It therefore seems that our proposal, in its disagreement with Tosafot and the Ran concerning the conclusion of the discussion, corresponds specifically to the second of those two possibilities.

Up to this point we have seen a fairly plausible way to interpret the conclusion of the talmudic passage differently from its plain wording, and differently from Tosafot and the Ran. We have also seen good reasons for doing so. So far, however, we have not found a view among the medieval authorities that explicitly supports such a direction. In the next subsection we shall see such a position, and precisely in a completely different talmudic context.

And Again, to This Week’s Torah Portion: An Example from the Laws of Stipulations

Let us now see the two directions we proposed in the dispute between Rabbi Eliezer and the Sages as they appear in the laws of stipulations. As is well known, there are various rules in Jewish law governing stipulations, and most of them, perhaps all, are derived from the passage of the tribes of Gad and Reuven. For example: the stipulation must be doubled; the stipulation must precede the act; the affirmative must precede the negative; and so on. See Maimonides, Mishneh Torah, Laws of Marriage 6. According to one view in Tosafot on Babylonian Talmud, Ketubot 56a, s.v. “Harei Zo,” all the laws of stipulations are required because the function of a stipulation is to uproot an act. For example, a stipulation in betrothal is meant to uproot the act of betrothal if what the groom demands in his stipulation is not fulfilled. Ordinarily, in Jewish law speech does not uproot an act. According to this view in Tosafot, the novelty taught by the Torah in the passage about stipulations is that if a person formulates the stipulation according to all the laws of stipulations, then the verbal stipulation can indeed uproot the act.

Now in Responsa of R. Akiva Eiger, no. 48, he cites in the name of Shitah Mekubbetzet on Nazir 11a that in the case of a nazirite vow made conditionally there is no need for the formal laws of stipulations. The reason is that naziriteship is imposed through speech, and to uproot speech ordinary speech suffices. The laws of stipulations are required only when we want speech to uproot an act.

R. Elhanan Wasserman, in his Kovetz Shiurim, part 1, Ketubot, sec. 168 and following, raises a powerful objection to these words of R. Akiva Eiger and the Shitah Mekubbetzet: once naziriteship takes effect, it is no longer regarded as mere speech but as an act. One can uproot the speech of naziriteship as speech only so long as it has not yet produced its effect. But once it has generated the legal effect of naziriteship, we are faced with an actual legal reality. To uproot such a reality, ordinary speech should seemingly be ineffective. If so, even in the matter of naziriteship, in order for a stipulation to uproot the naziriteship, we should have required it to be formulated according to the laws of stipulations.

Prima facie, the reasoning of the author of Kovetz Shiurim is exactly Rabbi Eliezer’s reasoning. He argues that ordinary speech, even without the formal laws of stipulations, can uproot a legal effect before it comes into being. But once it has already come into being, speech will no longer help, and an act will be required, or speech accompanied by the laws of stipulations, which is stronger. This is precisely the logic that uprooting an existing thing is harder than preventing its formation.⁷

R. Akiva Eiger and the Shitah Mekubbetzet apparently hold that there is no such logic. In their view, there is no difference between preventing formation and uprooting. The fundamental difference here is rather between speech and act. On their approach, when something is brought about by an act, it cannot be uprooted by ordinary speech, even before it takes effect. By contrast, when something is brought about by speech, it can be uprooted by ordinary speech, even after it has taken effect.

These are exactly the two possibilities we saw above for understanding the Sages’ view according to the conclusion of the discussion in Nedarim.⁸

Summary: What Do We Do When a Kal va-homer Confronts Another Derivation from a Verse?

The main discussion here concerns the question of what we are to do when we have a plausible kal va-homer, and facing it there stands a verse, or some other derivation from a verse. At first glance, the derivation from the verse prevails, because rejecting a kal va-homer costs us nothing. The verse has simply taught that here the logic of the kal va-homer is not to be applied, and that is all.

But the matter is not simple at all. After all, if the verse teaches that annulment can uproot but cannot prevent formation, then at least de facto Rabbi Eliezer’s reasoning is thereby refuted. If so, who can guarantee to us that in other cases one may rely on this kind of reasoning? Why, according to the Sages, should this case itself not constitute a refutation of all other kal va-homer arguments of the same type? For example, according to Tosafot and the Ran, the conclusion of the Gemara is that the Sages agree with Rabbi Eliezer’s kal va-homer concerning seeds, which rests on this reasoning. But if in the case of annulment we have found that this reasoning does not hold, then it is proved that there are situations in which preventing formation is not easier than uprooting. That itself should constitute a refutation of the kal va-homer concerning seeds. Why, then, according to Tosafot and the Ran, do the Sages nevertheless concede that kal va-homer in the case of seeds?⁹

For this reason we proposed our own suggestion: Rabbi Eliezer’s very reasoning is rejected by force of the verse, and therefore the Sages do not accept it even in the conclusion of the talmudic passage. But, as stated, Tosafot and the Ran did not read the Gemara this way.¹⁰

At first glance, it would follow from this that the Ran and Tosafot understand the concept of a “scriptural decree” differently from what we saw in the Meiri’s novellae cited on the page for Parashat Vayera. The Meiri there explained that a scriptural decree too is a form of reasoning, except that only after revelation are we expected to understand it with our own intellect. From the words of the Ran and Tosafot here it emerges that a scriptural decree is indeed something without rationale, and on their view we may not take it into account even for the purpose of raising a possible refutation against other kal va-homer arguments. On its face this is a puzzling approach, and we shall leave it here unresolved.

Footnotes