Eikev (5765)

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. Mida Tova — Friday eve of the Sabbath, portion Ekev, 5766.

Questions

1. Is there speech that acts in the world?
2. Why, when the laws governing conditions are not fulfilled, is the condition void while the act remains valid?
3. The character of the Holy Tongue (sacred Hebrew): performative speech.
4. Is there performative speech outside the Holy Tongue?
5. What is the meaning of the declaration over first fruits? Does it pertain to the object or to the person?

The Hermeneutical Principles

“And you shall place these words of Mine upon your heart and upon your soul, and bind them as a sign upon your hand, and they shall be frontlets between your eyes. And you shall teach them to your children, speaking of them when you sit in your house, when you walk on the way, when you lie down, and when you rise. And you shall write them on the doorposts of your house and on your gates, so that your days and the days of your children may be multiplied upon the land that the Lord swore to your fathers to give them, like the days of heaven upon the earth.”

(Deuteronomy 11:18-21)

“And you shall teach them to your children”—your sons and not your daughters; these are the words of Rabbi Yose ben Akiva. “Speaking of them”—from here they said: when a child begins to speak, his father should speak with him in the Holy Tongue and teach him Torah. If he does not speak with him in the Holy Tongue and does not teach him Torah, it is as though he buries him, as it is said: “And you shall teach them to your children, speaking of them.” If you teach them to your children, then “so that your days and the days of your children may be multiplied”; and if not, then so that your days may be shortened. For thus the words of Torah are expounded: from the affirmative you infer the negative, and from the negative you infer the affirmative.

(Sifre Deuteronomy, piska 46, on verse 19)

A. Summary of Last Year’s Article

In the midrash (rabbinic exposition) cited above there is a halakhic innovation, according to which a father is obligated to teach his son the Holy Tongue. In addition, the author of the midrash also derives a punishment for one who does not do so, on the basis of the principle, “from the affirmative you infer the negative.” The midrash finds it necessary to note explicitly that this is an accepted hermeneutical principle in the Torah. It seems that the reason is that, according to some opinions, this rule also functions in the interpretation of ordinary human language. The midrash wishes to sharpen the point that, beyond that, this is also a rule of interpretive exposition for Torah verses.

The opening of the midrash also appears to be an exposition of the type “from the affirmative you infer the negative”: “your sons and not your daughters.” We asked why Rabbi Yose does not already invoke here the rationale of the hermeneutical principle “from the affirmative you infer the negative.”

We began the article with a brief discussion of the halakhic innovation concerning the obligation to speak with one’s son in the Holy Tongue. We presented two possible ways of understanding it: as a preparatory requirement for the mitzvah (commandment) of Torah study, or as an independent mitzvah. In this midrash, the matter appears as though there are two independent commands: one derived from “And you shall teach them to your children,” and the second from “speaking of them.” We found the same in Maimonides. We then brought sources that understand it only as a preparatory requirement for the mitzvah.

We suggested a halakhic implication of this dispute in light of the debate in Responsa of Rema, no. 6, between Rema and Maharshal concerning the obligation to be precise in speech and writing. Maharshal holds that there is importance in linguistic precision even when one writes a letter of greeting, and even in matters unrelated to legal ruling. This reflects a conception of the Holy Tongue as an independent value. Rema, by contrast, holds that linguistic precision, beyond accuracy of content, is not especially important—except in a Torah scroll, which may be invalidated because of inaccuracy. This reflects a conception of language as a medium for the content conveyed through it.

In the second part of the article, we dealt with the rule “from the negative you infer the affirmative,” which appears as a principle for interpreting ordinary speech, while here it is presented as a hermeneutical principle. Its appearance as an interpretive principle underlies, according to the discussions in the Babylonian Talmud, tractates Shevuot and Kiddushin, the dispute concerning the requirement of a double condition, that a stipulation be stated both positively and negatively. But in the discussion in tractate Sotah, it seems that this very dispute also applies to the parallel hermeneutical principle.

At first glance, the dispute between Rabbi Meir and Rabbi Judah regarding the double condition is a logical dispute about how conditional statements are to be interpreted. If so, there should be no difference in this regard between ordinary human language and the language of the Torah. According to Rabbi Meir, from every positive statement one may infer the opposite in the contrary case, whereas according to Rabbi Judah one may not. It follows that Rabbi Meir should disagree with our exposition. This is puzzling, since the exposition appears without dissent, while in practical halakha we rule specifically in accordance with Rabbi Meir, who requires a double condition.

We then moved on to discuss logical implication—”if… then….” We saw two possible meanings, material and non-material, for this logical operator. We also considered the distinction between logical implication and physical causation, of which the logical component is only one part, and certainly not identical with it.¹

In the third chapter of the article we moved from logic to the halakhic plane. It turns out that, at least according to Maimonides, the dispute regarding the rule “from the negative you infer the affirmative” is not the same as the tannaitic dispute concerning the double condition. Maimonides rules in accordance with Rabbi Meir that a double condition is required, but for purposes of interpretation he holds that one does infer the affirmative from the negative.

Some later authorities—see Kovetz Shiurim on Bava Batra, no. 438, among others—understand that Rabbi Meir has two reasons for requiring a double condition:
1. because from the negative we do not understand the affirmative;
2. because this is a rule within the laws of conditions, learned from the condition of the sons of Gad and Reuben, which according to Rabbenu Isaac in Tosafot to Babylonian Talmud, Ketubot 56a, stems from the fact that the stipulation uproots an existing reality, and therefore it must be made in the manner defined in the section concerning the sons of Gad and Reuben.

Maimonides rules like Rabbi Meir in the second context, but not in the first. If so, this halakha is not a logically grounded determination.

A possible conclusion is that in biblical interpretation, where the laws of conditions do not apply, the conclusion that one does not infer the affirmative from the negative also does not apply. There one does indeed infer the affirmative from the negative. If so, our midrash does not contradict the halakhic ruling in accordance with Rabbi Meir.

We concluded with the dispute between Rabbenu Isaac and Rabbenu Tam in Tosafot, s.v. harei zo, on Babylonian Talmud, Ketubot 56a, concerning the significance of duplicating the condition. We saw that, at least according to Rabbenu Isaac, there is still room to view the principle “from the negative you infer the affirmative” as referring to the logical meaning of the statement under discussion.

In the final part of the article we made three remarks:

1. According to Maimonides, it is not clear whether it is necessary to link the rule “from the negative you infer the affirmative” with the rule “from the affirmative you infer the negative.”
2. We raised the possibility of distinguishing between conditional sentences and sentences in other linguistic forms. It may be that in certain sentences this consideration itself would simply be an exclusion, and not an application of the rule “from the affirmative you infer the negative.”
3. Our midrash does not perform an ordinary logical negation. The opposite of lengthening life is non-lengthening of life, not necessarily shortening it. If so, the reasoning of the midrash cannot lie entirely on the logical plane, and perhaps for that reason we need the hermeneutical principle “from the affirmative you infer the negative.”

B. The Meaning of Speech in Halakha

Introduction

In last year’s article we were in fact dealing with the meaning of speech in halakha (Jewish law). We saw there that, when making a stipulation, a person must duplicate the condition even though in general we do infer the negative from the affirmative. As we shall sharpen below, the reason is that speech in the context of conditions is performative speech, not merely a communicative medium. Performative speech has technical rules governing how one must speak for the speech-act to take effect.

We saw the same idea in the content of the exposition with which we were dealing. That exposition teaches us that there is a mitzvah to speak in the Holy Tongue. At least according to those views for which speaking in the Holy Tongue is an end in itself and not merely a means, it is quite clear that this language is not conceived as a merely communicative medium. If it were only a form of communication, why should we not use another language, so long as the content is conveyed properly?

In the article on the portion Balak, 5765, we discussed the dispute between Maimonides and Nahmanides and the Raavad concerning the conception of the Holy Tongue in the Torah. There we saw that, according to Maimonides, the Holy Tongue is only a conventional medium of expression, like all other languages. Nahmanides and the Raavad, by contrast, hold that there is something essential in the Holy Tongue, not merely something conventional and arbitrary. There is a connection between the words of the Holy Tongue and the contents expressed through them. All this is because the Holy One, blessed be He, used the Holy Tongue to create reality in the world. Perhaps the reverse is true: the Holy One used the Holy Tongue precisely because of this property.

If so, the Holy Tongue is a tool through which one can generate reality, and not merely communicate. In this year’s article we shall expand further on this point. The matter does not directly concern the world of interpretive exposition, but since we have touched on this point several times over the years, we thought this a good opportunity to elaborate further.

An Invalid Condition and a Valid Act

As is well known, halakha allows one to generate legal effects conditionally. The very idea, and the laws of conditions, are learned from the section concerning the sons of Gad and Reuben. From there we learn several restrictions and directives concerning the proper formulation of a condition: the affirmative must precede the negative, the condition must precede the act, the condition must be doubled, and so forth. See Maimonides, Mishneh Torah, Laws of Marriage, chapter 6, and Laws of Divorce, chapter 9.

There is another limitation on the act of stipulating a condition: one may not stipulate against what is written in the Torah. That is, one may not generate a legal effect in a manner that contradicts Torah law—for example, by betrothing a woman on condition that she remain permitted to all other men as well. According to halakha, anyone who stipulates against what is written in the Torah—his condition is void.

However, even this principle has a limitation, which is the subject of a tannaitic dispute. The Babylonian Talmud, Ketubot 56a, cites the following baraita:

We have learned that Rabbi Judah says: in monetary matters, his condition stands. For it was taught: If one says to a woman, “Behold, you are betrothed to me on condition that I have no obligation toward you of food, clothing, and conjugal rights”—she is betrothed, and his condition is void; these are the words of Rabbi Meir. Rabbi Judah says: In monetary matters, his condition stands.

A man betroths a woman on condition that he not be obligated to provide her with food, clothing, and conjugal rights, even though this contradicts Torah law, which obligates every husband to provide his wife with these three things. Rabbi Meir indeed holds that this is a stipulation against what is written in the Torah, and therefore the condition is void. Rabbi Judah disagrees, holding that in monetary matters one may stipulate against what is written in the Torah, and therefore in this case the condition stands. We will focus specifically on Rabbi Meir.

From Rabbi Meir’s wording it is clear that what is void is the condition, while the act remains valid. That is, if a person stipulates against what is written in the Torah, the condition is nullified, but the legal status still takes effect, without any condition. In our case, according to Rabbi Meir the woman is betrothed unconditionally, and the husband owes her food, clothing, and conjugal rights.

Tosafot there, s.v. harei zo mekudeshet u-tena’o batel, raises the following difficulty:

This is difficult. If so, why is she betrothed? He explicitly stipulated that if he would owe her food, clothing, and conjugal rights, she would not be betrothed.

If indeed one may not stipulate against what is written in the Torah, then we should have ruled that in this case she is not betrothed at all, not that she is betrothed without condition. After all, the husband does not intend to betroth her in a way that obligates him in those three duties. If so, how can we say that she is betrothed to him even though the condition is not fulfilled? At most, if one really may not stipulate against what is written in the Torah even in monetary matters, then the betrothal should be annulled entirely.

Tosafot considers the possibility of explaining that this is an exceptional case because the condition has in fact been fulfilled:

One cannot say that she is betrothed because he betroths her on condition that she waive her claim against him, and she has indeed waived it, except that her waiver is not a valid waiver. For it was taught in the second chapter of tractate Nazir, Babylonian Talmud, Nazir 11a: “I am hereby a Nazirite on condition that I drink wine and become impure through the dead”—he is a Nazirite and forbidden in all of them, because he stipulated against what is written in the Torah; and there such an explanation cannot be given.

This possibility is therefore rejected, and it emerges that we are dealing with a general principle: whenever the stipulation is not made in accordance with the laws of conditions—not only when one stipulates against what is written in the Torah, but also when one does not duplicate the condition, and so forth—the legal effect nevertheless takes hold. Only the condition is nullified. The question therefore returns in full force: how can we impose on a person a marriage bond that he does not want and never intended to create?

Rabbenu Isaac proposes the following answer:

Rabbenu Isaac says that, were it not for the fact that we learn from the condition of the sons of Gad and Reuben, I would have said that no condition ever nullifies the act, and even if it is not ultimately fulfilled, the act remains valid. Now that we learn from there that a condition is effective in nullifying the act, we say that this is so only when one is not stipulating against what is written in the Torah, analogous to the sons of Gad and Reuben, who did not stipulate against what is written in the Torah.

Rabbenu Isaac offers a very striking explanation. Without the section concerning the sons of Gad and Reuben, we would have thought that whenever a person creates some legal effect subject to a condition, the legal effect would apply without any limitation. Our ability to limit legal effects by means of conditions is an innovation learned from the section concerning the sons of Gad and Reuben. But that innovation is conditioned on the stipulation’s being made in accordance with the laws of conditions. A stipulation not made in accordance with those laws is not regarded as a valid stipulation. The situation therefore reverts to what it would have been without the innovation of the laws of conditions: namely, the legal effect takes place without any limitation or condition.

Explaining Rabbenu Isaac’s View: Three Innovations

What explains this puzzling approach? Why should a legal effect take place against the will of the very person who created it? After all, that legal effect arises through his power and because of an act that he performed. If he himself does not want it, and did not perform the act with that intention, why do we nevertheless regard the legal effect as valid?

Rabbenu Isaac introduces three innovations:

1. The law of conditions is a Torah innovation. Without the Torah’s innovation, there would be no possibility of attaching conditions to acts that we perform. This itself is a great novelty, but there is another novelty here as well.
2. Without the innovation of the section dealing with conditions, when a person created a legal effect conditionally, the legal effect would not be nullified altogether. Rather, it would take effect, and only the condition would be void. The reason is that “speech does not come and nullify an act.” Speech—that is, the stipulation—cannot uproot the act, namely the already existing legal effect, which is the result of the act of creating it. It is precisely because of this problem that the first innovation is needed: only a divine decree can allow us to uproot acts by means of speech. But even this is not enough. Tosafot adds a third innovation, whose source is of course the Talmud itself:
3. Even after the laws of conditions were innovated, we still did not learn from them that the legal effect depends entirely on the will of the party creating it. For example, if he created a legal effect subject to a condition, but the stipulation was not formulated according to Torah law, the legal effect remains, and only the condition is void.

Our concern here is with the first two innovations—those of Tosafot rather than those explicit in the Talmud—and especially the second. Why indeed, without the Torah’s innovation, would the legal effect take place in every case? Later authorities explain, in Rabbenu Isaac’s view, that the legal effect always takes place because it is a mechanical and automatic result of the act that creates it. If a person betroths a woman, she is betrothed; if he acquires an object, the object is acquired. If he stipulates a condition, the non-fulfillment of the condition does not prevent the legal effect from taking place; rather, it uproots it after it has taken effect.²

We can now understand Tosafot’s point: the act takes effect in every case, except that if there was a stipulation, non-fulfillment of the condition uproots the legal effect after it has taken hold, not by preventing it from taking hold. What happens if the stipulation was not made in accordance with the law? In that case, it is as though there was no stipulation at all, for the conditions for the first innovation were not fulfilled—namely, the possibility that speech can uproot an act. If so, non-fulfillment of the condition cannot uproot the legal effect, and therefore the legal effect remains in force without any limitation.

“Speech Does Not Come and Nullify an Act”

The rule “speech does not come and nullify an act” can be understood as a principle connected to definitive intention. When a person performs an act, such as effecting betrothal, the act expresses definitive intention at a high level. According to most views, that is precisely why an act is required to generate a legal effect, and mere words do not suffice. When a person wants to uproot the act, he must express no less definitive an intention, and therefore the cancellation of the act likewise requires an act, not speech.

However, this is not a sufficient explanation, at least for some views. There are several indications that the reason speech cannot nullify an act is that the act is a kind of reality, and speech cannot alter reality. Only an act can affect, alter, and create something in reality.

One example was discussed in our article on the portion Matot, 5765, where we saw several views according to which speech cannot uproot naziriteship. That is, speech cannot uproot reality, even if that reality was itself created by speech. Here one can no longer rely on the degree of definitive intention, for if speech is sufficient to create reality, why should it not be sufficient to uproot it?

If so, Tosafot’s remarks in the context of conditions should be interpreted similarly: generating a legal effect is done by means of an act. As a matter of basic law, that legal effect cannot be uprooted by speech, because speech cannot alter reality. However, the Torah innovated that if the speech is made in a very specific pattern, in accordance with the laws of conditions, then it can indeed alter reality—just as speech can create the legal status of a vow or of naziriteship without any act. Apparently, according to Rabbenu Isaac, this too stems from a similar innovation of the Torah.

Performative Speech

We encounter here a special function of speech. Speech does not serve only as a medium of communication; it is also an instrument that acts in the world and changes it. There are utterances that create halakhic legal effects, such as vows and naziriteship, and there are utterances—that is, stipulations—that uproot halakhic legal effects, even those created by an act.

In the cases we have encountered, the speech could be performed in any language. Nevertheless, this property of speech as an active force is characteristic above all of the Holy Tongue; see our article on the portion Balak, 5765. This is also how Rav Kook writes at the beginning of his book Orot ha-Kodesh with respect to holy wisdom—that is, Torah. Unlike the other fields of wisdom, which are neutral and passive, Torah study is active. In other disciplines, learning stores information within us, and we can use it to change ourselves or the world. By contrast, in Torah, the very act of study itself changes the person and the world.

The Nazir relates this to the rabbinic saying that the Holy One, blessed be He, created the world through ten utterances. God’s speech was performative speech. He created the world not through an act, but through speech. Of this it is said: “Forever, O Lord, Your word stands firm in the heavens.” Reality exists as dependent upon God’s speech. Torah and the Holy Tongue are tools through which we can, as it were, resemble Him. Through them we too can act by means of speech.

A General Reservation

As stated, the fact that speech is performative does not usually indicate, by itself, that it must be performed specifically in the Holy Tongue. Conditions and vows are examples of performative speech that can be carried out in any language—though even this is by virtue of a Torah innovation. Here it is the Torah that makes the speech effective, not the language itself. The converse claim, however, is sometimes true, or at least can serve as a helpful tool in understanding various discussions. In cases where one is required to speak specifically in the Holy Tongue, it is always worthwhile to consider the possibility that this stems from the fact that in those cases speech is not merely a medium of communication but an instrument of action that creates reality. We will now see one example, among several, of this.

The Declaration over First Fruits and the Bringing of First Fruits³

The obvious place to look for such an example is the beginning of chapter 7 of tractate Sotah, where the Mishnah defines all the halakhic acts that must be performed in the Holy Tongue, and those that may be performed in any language. The Mishnah gives quite a long list there, and we will select one example of a speech-act in which it would specifically seem more natural to interpret the speech as a medium of communication rather than as creating reality: the declaration over first fruits.

At the beginning of the portion Ki Tavo we are commanded regarding the bringing of first fruits:

“And it shall be, when you come into the land that the Lord your God gives you as an inheritance, and you possess it and dwell in it, that you shall take of the first of all the fruit of the ground, which you bring from your land that the Lord your God gives you, and put it in a basket, and go to the place that the Lord your God will choose to cause His name to dwell there. And you shall come to the priest who shall be in those days, and say to him: I declare this day to the Lord your God that I have come to the land that the Lord swore to our fathers to give us. And the priest shall take the basket from your hand and place it before the altar of the Lord your God. And you shall speak and say before the Lord your God: An Aramean sought to destroy my father, and he went down into Egypt and sojourned there with few people, and there he became a great nation, mighty and numerous. And the Egyptians dealt harshly with us, afflicted us, and laid hard labor upon us. And we cried out to the Lord, the God of our fathers, and the Lord heard our voice and saw our affliction, our toil, and our oppression. And the Lord brought us out of Egypt with a strong hand and an outstretched arm, with great awesomeness, with signs, and with wonders. And He brought us to this place and gave us this land, a land flowing with milk and honey. And now, behold, I have brought the first of the fruit of the ground that You, O Lord, have given me. And you shall place it before the Lord your God and bow down before the Lord your God. And you shall rejoice in all the good that the Lord your God has given you and your household—you, the Levite, and the stranger in your midst.”

(Deuteronomy 26:1-11)

Within that same passage, we are also commanded to recite the formula of the recitation over first fruits. Maimonides, Positive Commandment 132, and Sefer Ha-Hinukh following him, count the mitzvah of bringing the first fruits and the mitzvah of reciting over the first fruits as two separate mitzvot. On the other hand, it is quite clear that the obligation of recitation and the obligation of bringing are related to one another. Nahmanides, in Supplement 15 to the positive commandments, addresses this question and determines that although there is a connection between the two mitzvot, they are nevertheless counted as two separate mitzvot, and not as two parts of a single mitzvah. Nahmanides compares this to the relation between the mitzvah of recounting the Exodus from Egypt and the eating of the Paschal offering, and to the relation between the blessing over Torah and Torah study.

Indeed, we find in halakha that the declaration over first fruits does not always prevent fulfillment of the mitzvah of bringing the first fruits. That is, if one brought them without reciting, one has sometimes fulfilled one’s obligation. Thus Maimonides writes at the beginning of Mishneh Torah, Laws of First Fruits 4:1:

Everyone who brings first fruits requires an accompanying offering, song, waving, and an overnight stay, but the declaration is not the same in every case, for there are some who are obligated to bring first fruits and yet do not recite over them.

This testifies that the connection between these two mitzvot is not necessary. The declaration over the first fruits is not part of the act of bringing them, unlike the offering, the song, the waving, and the overnight stay.

When the Declaration Prevents Fulfillment: Tosafot and Maimonides

In the discussion in Babylonian Talmud, Makkot 18b, the following distinction appears:

Rabbi Elazar said in the name of Rabbi Hoshaya: With first fruits, placing them down is indispensable, but recitation is not indispensable. But did Rabbi Elazar really say this? Did Rabbi Elazar not say in the name of Rabbi Hoshaya: If one set aside first fruits before the festival and the festival passed over them, they must rot. Is that not because he can no longer recite over them? And if you say that recitation is not indispensable for them, why should they rot? In accordance with Rabbi Zeira, for Rabbi Zeira said: Anything fit for mingling, mingling is not indispensable for it; but anything not fit for mingling, mingling is indispensable for it.

If so, one who set aside first fruits before the festival and brought them after the festival must let them rot, because the recitation is indispensable for them. The first fruits are not fit for recitation after the festival, as Rashi explains there in light of Mishnah Bikkurim 1:6:

First fruits—before the festival of Sukkot they are fit for recitation; after the festival of Sukkot they are not fit for recitation. For after the recitation it is written, “And you shall rejoice in all the good.” From Shavuot until Sukkot, which is the time of the joy of gathering fruits, one brings and recites; from Sukkot until Hanukkah one brings and does not recite.

We thus see that in certain cases the recitation prevents the bringing of the first fruits, and if one did not recite, they must rot.

In Maimonides there is a contradiction in these laws. In Laws of First Fruits 4:4 he writes:

One who buys two trees within the field of another brings first fruits but does not recite, because the matter is doubtful whether he has land or does not have land. What does he do? He first consecrates them to the Temple maintenance fund, because they may be non-sacred produce, and non-sacred produce may not be brought into the Temple courtyard. The priest redeems them immediately from the consecration and then eats them. One separates terumah and tithe from them, because they may be non-sacred produce, and he gives their tithes to the priests, for perhaps they are first fruits and are forbidden to non-priests. He does not bring them himself, but sends them through an agent, so that the recitation should not prevent them from being eaten. For whenever something is unfit for recitation because of doubt, the recitation is indispensable for it.

That is, in a case of doubt—the doubt being whether one who buys two trees also acquires the land, since one who has no land cannot recite the declaration over first fruits; see the discussion in Babylonian Talmud, Bava Batra 81b—the first fruits would have to rot. By contrast, regarding the law of first fruits brought after the festival, Maimonides rules there, in 4:13:

One who brings first fruits from after the festival of Sukkot until Hanukkah, even though he set them aside before the festival, brings them but does not recite, as it is said, “And you shall rejoice in all the good”; and recitation exists only at a time of rejoicing, from the festival of Shavuot until the end of the festival. All others who bring, aside from these, bring and recite.

Kesef Mishneh there on 4:13 notes the contradiction between this ruling and the conclusion of the Talmud, as well as the contradiction between these two rulings of Maimonides. He explains the matter as follows:

One who brings first fruits, etc. There in the Mishnah it says that from the festival until Hanukkah one brings and does not recite, and in Babylonian Talmud, Pesahim 36b, the reason is given: because it is not a time of rejoicing. As for what our master wrote, that even though he set them aside before the festival, etc.—this is difficult, for in Babylonian Talmud, Makkot 18b, Rabbi Elazar said in the name of Rabbi Hoshaya: If one set aside first fruits before the festival and the festival passed over them, they must rot; and the Talmud gives the reason that anything not fit for mingling—mingling is indispensable for it. It must therefore be that our master rejected that ruling from halakha in favor of the discussion in Babylonian Talmud, Gittin 47b, where Rabbi Yohanan bar Hanina said: If one harvested them and sent them by the hand of an agent, and the agent died on the way, he brings them and does not recite, as it is said, “And you shall take and you shall bring”—the taking and the bringing must be together. And although the Jerusalem Talmud explains this as dealing with a case where he picked them in order to send them by an agent, but if he picked them in order to bring them himself he may not send them by another, since all first fruits that appeared eligible to be permitted through recitation are permitted only through recitation—since our Talmud cites Rabbi Yohanan bar Hanina’s statement in Bava Batra 81b and in Gittin 47b without qualification, had our Talmud agreed with the Jerusalem Talmud it would not have remained silent and failed to distinguish in this way, and we follow our Talmud. Moreover, the anonymous Mishnah regarding one who set aside his first fruits and afterward sold his field, and the anonymous Mishnah regarding one whose spring dried up and whose tree was cut down, accord with Rabbi Yohanan bar Hanina. And although the Jerusalem Talmud offers strained interpretations there, we do not rely on them. According to this, what our master wrote earlier in this chapter concerning one who buys two trees—that whenever something is unfit for recitation because of doubt, recitation is indispensable for it—there it is different, because it is due to doubt.

Regarding the contradiction with the Talmud, he argues that according to Maimonides there is a dispute between different Talmudic discussions. But regarding the contradiction within Maimonides himself, he says a rather cryptic sentence: “There it is different, because it is due to doubt.” What is the difference between a problem of doubt and a problem of bringing first fruits after the festival? In both cases one cannot recite, and therefore Maimonides should have ruled that they must rot.

The explanation is probably this: in the case of doubt, there is at least one possibility that these are first fruits that are presently obligated in recitation—namely, if the buyer also owns the land. On the other hand, he cannot recite, because perhaps he does not own the land, and then the recitation would appear false. In such a case, there is a possibility that an obligation resting upon these fruits is not being fulfilled, and therefore they must rot—unless one uses the device of agency, as the Talmud suggests there. By contrast, first fruits brought after the festival were once subject to recitation in the past, but now they are certainly not subject to recitation. Here the question concerns only fruits that were once obligated and have now been deferred; in that case Maimonides rules that recitation is not indispensable. We should note that Tosafot—see Tosafot, s.v. u-vatzran, on Babylonian Talmud, Bava Batra 81b—rules that even in such a case recitation is indispensable.

Conclusions

Thus, according to Tosafot, whenever there was a rule that the fruits required recitation and it was not recited, they may not be brought to the Temple and must rot. According to Maimonides, this is true only when there is at present some possibility that the fruits require recitation, and for some external reason we cannot recite.

What both views share is that sometimes the recitation prevents the bringing of the first fruits. The recitation is not merely part of the process of bringing them; rather, it confers some status upon the fruits themselves that renders them fit. It is not only a duty on the person, but also a rule concerning the object itself.

From this we can understand why the Mishnah at the beginning of chapter 7 of Sotah determines that the declaration over first fruits is made only in the Holy Tongue. The declaration is not merely an utterance as such—a duty upon the person—but an utterance meant to effect something in the fruits themselves. As we have seen, utterances that effect something in the world need to be said in the Holy Tongue. By contrast, the recitation of the Shema and prayer, though they are central and foundational utterances in the service of God, do not need to be said specifically in the Holy Tongue. According to our approach, this is clear because they are only the speech of a human being meant to express something, whether toward God or toward oneself, and not speech that acts in the world.

The difference between matters that require utterance in the Holy Tongue and those that do not is not a difference in importance, but a difference in kind. It should be noted, however—as we have already noted above—that this distinction exists, at most, only in one direction: what requires the Holy Tongue is apparently performative, but not everything performative requires the Holy Tongue. Above we saw two examples: conditions and vows.

Footnotes