Lesson 30: Shemini

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

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With God’s help

Concepts

• Thought is legally operative in the laws of purity.
• Virtual action in the laws of purity.
• Acquiescence and awareness.
• An altered biblical wording indicates indispensability in the laws of purity.

Summary

This essay deals with the status and function of thought in the realms of impurity and purity. At the outset, we note the essential comparison between the domain of impurity and the domain of sacred offerings, which stand opposite one another. From this comparison, we examine the similarity in the way thought operates in both contexts: in the impurity of foods as well, thought is what renders them fit to contract impurity, and it has the status of an act.

This helps explain the rabbinic expositions that ground the thought required for rendering food susceptible to impurity in awareness, which lies somewhere between passive acquiescence and active performance.

We examine two conceptions of the role played by contact with liquid in rendering food susceptible to impurity: either this contact completes the food’s preparation, or it initiates the process of impurity itself. From this, we can discern two approaches to the role of awareness, and to the question whether the required awareness must specifically be that of the owner or can also be that of some other person.

According to the view that awareness must confer upon the item the status of food, the conclusion that active awareness is required is quite natural, since this is awareness that operates, just as we saw in the realm of sacred offerings. It would then seem that the awareness relates to the stage of contact with the liquid, and not only to the state produced by that contact, namely that the food is wet. We do note, however, that the comparison is not complete, because in matters of impurity there is no significance at all without the Torah’s command.

Finally, we consider the red heifer, and perhaps also the calf whose neck is broken, as a halakhic (legal) context situated between sacred offerings and the laws of purity, and we note several consequences of this classification. There too one finds a requirement of acquiescence, though not a requirement of an actual deed.

The Rules and Principles Emerging from the Essay

Regarding Thoughts and Intentions in the Laws of Purity

A Look at the Connection Between Sacred Offerings and the Laws of Purity

Introduction

Over the previous two weeks we dealt with the place of thought in the realm of sacred offerings. We saw there that at times thought takes the place of action, and the practical process is defined only in order to provide a framework for the thoughts that accompany it. In this week’s essay we will follow a similar path with respect to the laws of purity.

In the course of the Torah portion of Shemini, a transition takes place between the two principal parts of the book of Leviticus: sacred offerings and purity. In the middle of that portion we move from the section dealing with sacrifices to the section dealing with impurity and purity, which continues, with minor interruptions, until the Torah portion of Emor. In this essay we will discuss the connection between these two domains, specifically in the aspect of the relation between thought and action. As we shall see here, the realm of purity also displays an interesting relation between thought and deed, that is, objective reality, and there is a similarity to the status of thoughts in sacred offerings.

The essay opens with a brief discussion of the connection between sanctity and impurity, which forms the basis for comparing the two domains. We shall then turn to the place of thought in the laws of purity.

A. On Sanctity and Impurity: Between Sacred Offerings and the Laws of Purity

Introduction

In our essay on the Torah portion of Chukat, 2005, we discussed whether taking a life is problematic because of the result, namely that the person is dead, or whether the problem lies in the action itself. We saw there that this question depends on a dispute among the Tannaim, and we also examined its connection to the nature of corpse-impurity, and impurity in general. We saw there the relation between impurity and the absence of life, and the intrinsic opposition between sanctity and impurity. We shall briefly return here to one point from that earlier discussion, as an introduction to what follows.

The Case of a Placenta That Partially Emerged

In the discussion in Babylonian Talmud, Bava Kamma 11a, the Gemara cites the opinion of Rabbi Eliezer, who holds that there is no case of part of a placenta without a fetus. That is, if a woman or an animal gives birth and part of the placenta emerges, then that partial emergence certainly contains something of the fetus. In such a case, the halakhic treatment is that there is doubt whether a birth has occurred, since only the emergence of the majority of the fetus counts as birth. We must therefore be stringent because of doubt and treat her as impure with the impurity of a woman after childbirth. But if we hold that part of a placenta may emerge without containing any part of the fetus, then the woman will be pure, because we then have a double doubt: perhaps no fetus emerged at all, and even if one did emerge, perhaps its majority did not emerge.

Tosafot there, on the words “for there is no,” raise a difficulty about this ruling: what case is the Gemara speaking about? If it is speaking of a doubt that arose in the public domain, then in a case of double doubt we would certainly have to be lenient, indeed even in a single doubt. And if the doubt arose in the private domain, then we should be stringent even in a case of double doubt. In other words, there is no domain in which there is a difference, for purposes of impurity and purity, between a single doubt and a double doubt. If so, how can the baraita distinguish between them with regard to the impurity of childbirth? What sort of domain could the Gemara be discussing?

Tosafot answer that the baraita is not dealing with the laws of impurity, but with the woman’s prohibition to her husband, since a woman after childbirth is forbidden to her husband during her days of impurity. Later authorities explain that Tosafot understood that a woman’s prohibition to her husband during this period does not stem from her ritual impurity as such. It is an independent prohibition that exists alongside the impurity of childbirth.¹ Thus, with respect to impurity and purity, we do indeed follow the nature of the domain in which the doubt arose, so that if the woman touches items kept in purity we will be stringent or lenient according to that domain. But with respect to forbidding her to her husband, this is not a matter of impurity but of prohibition, and therefore the usual rules governing biblical doubt apply here: an ordinary doubt is treated stringently, while a double doubt is treated leniently.

This distinction is a classic conceptual distinction, and Tosafot here anticipate a mode of thought that developed into a full method in recent generations, namely Rabbi Chaim Soloveitchik of Brisk’s method of “two laws.” See on this our page for the Torah portion of Bamidbar, 2005.

The Difficulty and Resolution of the Avnei Nezer: Impurity and Prohibition

Several later authorities challenge Tosafot’s answer with the following difficulty: the rule that a doubt concerning impurity is treated one way in the public domain and another way in the private domain is itself learned from the passage of the suspected adulteress. Yet in the case of the suspected adulteress itself, the entire discussion concerns whether she is forbidden to her husband or not. It follows that forbidding a woman to her husband is itself a law of impurity and not merely a law of prohibition. Indeed, it is from that very case that we derive the laws of doubtful impurity. If so, these later authorities ask, how can Tosafot here explain the case of the emerging placenta as a question of prohibition rather than impurity, on the grounds that it concerns a woman’s prohibition to her husband? As the case of the suspected adulteress shows, a woman’s prohibition to her husband is itself impurity.

In the book Nefesh Yehonatan, a collection of novellae by Rabbi Yonatan Eybeschutz on the weekly Torah portions, on our portion the editor cites in a footnote oral remarks that he heard from his great-uncle, the Sochatchover, author of the Avnei Nezer, explaining these words of Tosafot. He cites The Kuzari, Part III, chapter 49, where it is written that impurity belongs only where there is sanctity, such as sacred offerings, priestly gifts, and tithes. In other contexts, where sanctity does not apply, impurity is likewise irrelevant. Such cases fall under the halakhic category of prohibition and not of impurity.

In light of this, the Sochatchover explained that the prohibition of the suspected adulteress to her husband is due to the injury done to the bond of marriage between them. Betrothal creates a bond of sanctity; see Babylonian Talmud, Kiddushin 7a and parallels, where the marital bond is compared to consecration. Therefore a violation of that bond creates impurity. The prohibition of a woman who has strayed to her husband is thus due to the damage done to the marital bond between them. Of this it is said, “she has betrayed him.” See in this connection the well-known remarks of Maharik, Responsa, root 167, cited and discussed in our essay on the Torah portion of Toledot, 2007. By contrast, the prohibition of a woman after childbirth to her husband has nothing to do with the marital bond between them. A woman after childbirth, like a menstruant, is equally forbidden to every man. Even if she were unmarried, relations with her would still be prohibited. Therefore this prohibition does not concern questions of marriage or injury to marriage. According to the Kuzari, then, this is an ordinary prohibition and not impurity, and therefore the ordinary rules of doubt apply to it.

We thus learn that impurity exists only where there is sanctity. Where there is a prohibition that does not constitute an injury to sanctity, it is classified not as impurity but as prohibition. Ironically, it is specifically the prohibition of the menstruant and the woman after childbirth, which accompanies a state of impurity, though is not generated by it, as Tosafot assume, that is classed as prohibition rather than impurity.

Purity and Sacred Offerings

The halakhic fields that deal with sanctity and impurity are sacred offerings and the laws of purity. We have seen that these two stand opposite one another. We would therefore expect that if thought plays a central role in the domain of sacred offerings, as we saw in our essays over the previous two weeks, it should also play a central role in the domain of purity. In the next chapter we shall discuss one fundamental aspect of thought in the laws of purity: the thought involved in rendering food susceptible to impurity.

B. Rendering Food Susceptible to Impurity

Introduction

In our Torah portion, the law of food impurity appears as follows, in Leviticus 11:34:

Of all food that may be eaten, upon which water comes, it shall become impure; and every liquid that may be drunk, in any vessel, shall become impure.

This is the law of food impurity, and it is counted among the commandments by the classical enumerators as well; see Sefer HaChinukh, commandment 160, and Maimonides, Sefer HaMitzvot, positive commandment 98. Food contracts impurity, and sometimes also transmits impurity in various ways to other things. The early authorities dispute whether the quantity of food that can contract impurity must be the size of an egg, as Nahmanides holds here, or whether that minimum is required only when the impure food goes on to transmit impurity to other things, as Rashi holds.

One of the basic laws in food impurity is the requirement that the food come into contact with some liquid, one of the seven legally recognized liquids, for otherwise it does not contract impurity. This is what the Sages call the food’s being rendered susceptible to impurity. Of course, even after liquid has fallen on it, the food is not yet impure; it has merely become susceptible to impurity, meaning that if something impure touches it, it will become impure.

Rashi here explains that this law is derived from our verse:

“Of all food that may be eaten”—we learn that food is not rendered fit and prepared to contract impurity until water has come upon it once. Once water has come upon it once, it remains able to contract impurity forever, even if it has dried. Wine, oil, and anything called a liquid render produce susceptible to impurity just like water. Thus the verse is to be expounded: “upon which water comes,” or “any liquid that may be drunk in any vessel”—the food becomes impure.

We learn further, regarding the coming of water, that it renders produce susceptible only if it falls upon it after it has been detached. For if you say that susceptibility begins while it is still attached, then there is nothing on which water has not already come. So what does “upon which water comes” teach? After it has been detached.

Another source for this law appears in Leviticus 11:37-38:

If any part of their carcass falls upon any sowing seed that is to be sown, it is pure. But if water has been put upon the seed, and any part of their carcass falls upon it, it is impure for you.

Rashi there explains:

“It is pure”—Scripture teaches you that it has not yet been rendered fit and prepared to be called food for contracting impurity until water comes upon it. “But if water has been put upon seed”—after it has been detached, for if you say that there is susceptibility while attached, there is no seed that has not already been rendered susceptible. “Water upon seed” means either water or the other liquids. Whether they fell upon the seed, or the seed fell into them, all this is expounded in the Torat Kohanim. “And any part of their carcass falls upon it”—even after it has dried from the water. For the Torah was concerned only that it bear the status of food; once the susceptibility to impurity has come upon it once, that status is never removed.

Why Contact with Liquid Is Required

From Rashi here we learn that the falling of water upon the food is required because that act transforms it from a mere plant into human food. Impurity applies only to things that belong to the human sphere. Inanimate objects, things attached to the ground, and the like, do not contract impurity. It is not accidental that the Sages compare in several places the law of contracting impurity to the laws of things set aside on Shabbat, since in both contexts, one biblical and the other rabbinic, the criterion is that the object be something intended and designated for human use, that is, a utensil or food.

Nahmanides here cites Rashi and then adds another explanation for the need for contact with liquid: contact with liquid is what allows the impurity of crawling creatures to adhere to the food. Dry food would not be affected by impure things. He adds that the fact that impurity applies even after the liquid has already dried is a safeguard built into Torah law.²

Sefer HaChinukh, commandment 160, also explains that the conditions required for contracting impurity are meant to define the object as human food:

Among the laws of this commandment is what the Sages said, of blessed memory, that the Torah’s phrase “of all food that may be eaten” means food fit for human consumption. Therefore they said that any food not designated for human beings does not contract impurity at all. They further explained that it is not called food for the purpose of contracting impurity until it has been uprooted from the ground; as long as it is still attached, even by a root so slight that it can still live, it is not called food for contracting impurity, and even if all forms of impurity touch it, it remains pure.

Likewise, no food in the world is called food for the purpose of contracting impurity until water has come upon it after it has been uprooted from the ground, as it is written, “upon which water comes,” and so forth. Although they said that this is a decree of Scripture, it can be connected to a rationale to some extent, according to what first suggests itself to the mind. For the Torah does not regard anything as subject to its laws until the completion of its preparation, as is known from the laws of produce with respect to priestly gifts and tithes, and likewise from the priestly dough-offering, which is not due until the flour has been kneaded. Thus one who separates the dough-offering while it is still flour has separated nothing, and it is robbery in the priest’s hand.

Therefore, with regard to impurity as well, it is said that the laws of impurity and purity of produce do not apply until the completion of its preparation. Since people customarily wash certain fruits and vegetables of their dirt before eating them, the rule was stated generally for all of them that they are not called food until they have been prepared by water.

Thus Sefer HaChinukh explains that coming into contact with water constitutes the completion of the food’s preparation, and only from that point onward can it contract impurity. A similar idea appears in Rashbam on verse 37.

According to Nahmanides, however, the falling of water is not meant to define the thing as food. In his view, this requirement plays a functional role in the process of contracting impurity: the water enables the impure thing to adhere to the food. By contrast, according to Sefer HaChinukh, the coming into water has no specific function of its own. It merely defines a stage of completed preparation, from which point onward the food is considered fully-fledged food, ready to contract impurity.

And indeed, when one examines the role of the falling water in both the Talmud and the early authorities, one can see both of these sides. The Gemara in Babylonian Talmud, Hullin 118a discusses the relation between food impurity and other forms of impurity, and within that discussion several remarks bear on our issue.

First, with regard to handles or appendages that serve the food:

Where are handles written in the Torah? As it is written: “And if water has been put upon seed, and any part of their carcass falls upon it, it is impure for you.” “For you” means for all your needs, to include the handles.

That is, it is enough that the water fall on part of the food, because the impurity is defined with respect to everything that serves human use. This implies that the object contracting impurity must be something meant for human use. Still, that definition characterizes the object before the water falls, not the role played by the water itself.

Later there the Gemara makes the following comparison:

Rav Huna son of Rav Yehoshua said: Produce that has not yet been rendered susceptible is like an oven whose manufacture has not yet been completed.

This seems to support the explanation of Sefer HaChinukh that we saw above, namely that the falling of water is akin to the completion of manufacture. Rashi there likewise writes:

Rav Huna son of Rav Yehoshua said: The requirement of susceptibility is no objection, because that is the equivalent of their completed manufacture, and an oven too is not impure before its manufacture is completed.

Still, this is not conclusive proof, because the comparison may be only a factual-legal one, namely that the law of food before contact with water is like the law of an oven before the completion of its manufacture, and not an essential comparison identifying the role of water with the completion of manufacture.

The Later Authorities: The Special Esteem of Sacred Things

The later authorities discuss whether the coming of water is meant to turn the thing into food, or whether it is simply a decree of Scripture, perhaps akin to the approach of completed preparation that we saw in Sefer HaChinukh.³ We shall note several basic points from that discussion.

With respect to roofing material for the festival booth, we invalidate material that can contract impurity. What, then, is the status of things that can contract impurity only after they have been rendered susceptible? The law is that they too are invalid. In Kovetz Shiurim, Bava Batra, sec. 66, this question is discussed regarding things that require thought in order to render them fit, such as animal fodder that one intends to eat himself. He proves from the law of a mat that one must distinguish between lacking susceptibility and lacking thought: before the thought, the item is not food at all; before susceptibility, it is already considered food.

He then cites the Gemara in Babylonian Talmud, Hullin 36a, which derives that sacred items do not require prior susceptibility to impurity, because the special esteem of sacred things renders them susceptible:

Come and hear: “Of all food that may be eaten”—food that has come by means of water has been rendered susceptible; food that has not come by means of water has not been rendered susceptible. Does Resh Lakish then deny the category of food that has come by means of water? Rather, this is what Resh Lakish is asking: is the special esteem of sacred things equivalent to food that has come by means of water, or not? Rabbi Elazar too is speaking on the basis of superfluous verses. Since it is written, “And if water has been put upon seed,” why do I need “of all food that may be eaten”? …

And on 36b the Gemara concludes that this comes to include the special esteem of sacred things, and it includes even wood and frankincense:

Rather, from the latter clause: “And the flesh”—this comes to include wood and frankincense. Are wood and frankincense edible? Rather, the special esteem of sacred things renders them susceptible and makes them like food. So too here, the special esteem of sacred things renders it susceptible.

The Gemara thus teaches that the special esteem of sacred things renders even wood and frankincense susceptible, and therefore anything at all can be rendered susceptible by this special esteem. Food that has not been rendered susceptible is no worse than wood and frankincense.

In Kovetz Shiurim there, however, he challenges his own conclusion. If lacking contact with liquid still leaves the thing classified as food, then this Gemara is understandable: if the role of contact with liquid is to turn the thing into food, then from wood and frankincense one can infer that if the special esteem of sacred things works for them, it will certainly work for food that has not touched liquid. In the realm of sacred things, after all, the item need not already be food in order to contract impurity. But if the role of contact with liquid is not to turn the item into food and is instead a decree of Scripture, what grounds are there for comparing that law to wood and frankincense? How do we know that the special esteem of sacred things can do what contact with liquid is supposed to do? Perhaps the special esteem is only a substitute for food-status, which is why wood and frankincense become capable of contracting impurity. They should still need contact with liquid in order to become susceptible.

In Minchat Chinukh, commandment 145, however, the requirement of contact with water is assumed to be a decree of Scripture. He therefore asks how the special esteem of sacred things can make something count as if it had come into contact with water, essentially the same difficulty raised by Kovetz Shiurim, though Kovetz Shiurim concludes from it that the law is not a mere decree.

He explains that there are two elements in the law of the special esteem of sacred things:

1. It can make a non-food capable of contracting impurity. The basis of this is that the special esteem gives the item significance like food. See Babylonian Talmud, Hullin 118a, which rejects a derivation from food impurity on the grounds that the case there is distinctive because it is food. In other words, the fact that something is food gives it significance.
2. It can make the item count as though water had come upon it and rendered it susceptible to impurity.

He continues by saying that these two laws apply only to things that are not food. In such cases, the special esteem performs both functions: it gives the item significance, and it makes it count as though water had been applied to it, because in such cases actual water application is unnecessary. But where one is dealing with food that requires water by a decree of Scripture, the special esteem will not help.

By this he resolves the difficulty of Tosafot on Babylonian Talmud, Zebahim 34a, on the words “and the flesh,” and see also Hullin 36b, where Tosafot ask why the verse includes specifically things that are not food and not meat that has not yet been rendered susceptible. According to his approach, there is no difficulty at all, because the law of the special esteem of sacred things does not concern things that are already food. It is a law that gives significance to things that are not food, but it cannot make food count as though water had already been applied to it.

Of course, according to Sefer HaChinukh and Rashbam, cited above, the application of water is itself a matter of significance, since it is the completion of preparation that turns the thing into food, and before that it is not food at all. On that approach one can understand that the special esteem of sacred things can indeed accomplish both things at once: it grants significance either to things that are not food, such as wood and frankincense, or it turns what is not yet food into food, just as the application of water does.

Finally, he notes that Resh Lakish in Hullin 36a holds that the special esteem of sacred things renders even food that has not been rendered susceptible as though it had been rendered susceptible. Maimonides, however, rules like Rabbi Yosef there, who holds that this is only a rabbinic rule, even though with respect to things that are not food, Maimonides holds that the special esteem of sacred things renders them susceptible on the Torah level. He explains that the special esteem of sacred things turns a non-food into food, and therefore it can transmit impurity rabbinically even without prior susceptibility, but Torah-level impurity requires susceptibility through liquid even in the case of wood and frankincense.

On our approach, however, Resh Lakish can be explained in precisely the opposite way: the special esteem of sacred things gives items significance, and therefore prior susceptibility through liquid is unnecessary. Only food must receive the significance of food-status, and this is done through contact with liquid. Obviously, then, where there is the special esteem of sacred things attaching to food that has not come into contact with liquid, that food receives significance even though it has not become food through the normal route; it is certainly no worse than wood and frankincense.

And indeed, in Maimonides, Laws of Things Forbidden on the Altar 6:8, he rules that even wood and frankincense contract impurity by virtue of the special esteem of sacred things, yet he does not say there that contact with water is also required. It therefore seems that only food contracts impurity through contact with water, whereas for other things that become susceptible through the special esteem of sacred things, that very esteem grants significance and thus renders contact with water unnecessary. With regard to meat, however, Maimonides writes explicitly that even when the special esteem of sacred things applies, Torah law still requires contact with water, and without water it is impure only by rabbinic law; see Laws of Food Impurity 10:17.

In Tzafnat Paneach on Laws of Gifts to the Poor, p. 92, this issue is also discussed, but the two sides are presented somewhat differently: is coming into water what causes the item to receive the status of food, or is it the beginning of the impurity itself? This second formulation is very close to Nahmanides’ view above, which sees contact with water as what allows impurity to adhere, that is, as the beginning of impurity.

C. Thought in Rendering Food Susceptible to Impurity

Introduction

We have seen that for some views the role of contact with water is to confer upon the thing the status of food, while for others its role is to initiate impurity. On that basis we can suggest several approaches to understanding the following important requirement in rendering food susceptible to impurity: awareness.

Sefer HaChinukh and Maimonides: Awareness in Rendering Food Susceptible

This is what Sefer HaChinukh writes there:

And for this very reason they said that the rendering susceptible occurs when they were washed with the owner’s consent. That is, the owners considered the water with which they were washed to be a liquid, in the way people wash their vegetables with liquid, and this is the meaning of willingness and compulsion mentioned in the Talmudic discussion of this matter, according to the sound explanations. And if they do not regard it as a liquid, then even if they themselves put it upon the fruits, this is not called willing consent.

There are several novel points in these words of Sefer HaChinukh:

1. The application of liquids to the food must be done with the person’s consent. In other words, the awareness required here is a matter of willing consent, not mere consciousness.
2. The person whose consent is required is the owner.
3. The consent relates to two aspects: both to the contact of the food with the liquid, and to the significance of the liquid itself, namely that it be regarded as a liquid.

All three points are disputed among the halakhic authorities. At least with respect to two of them, Sefer HaChinukh seems consistent with his own basic view that contact with liquid falls under the category of completed preparation. Therefore it is the owner who must apply his mind to the matter, since the item is intended for his use. Therefore too willing consent is required, and not mere awareness. The owner is supposed to confer upon the thing the status of food, that is, fitness to contract impurity.

There are several halakhic consequences of this, two of which are cited by Sefer HaChinukh there:

Therefore they said that one who hides his fruits in water because of thieves has not rendered them susceptible, because the water is not important to the owner as a liquid; he did not place them there because of the liquid, but in order to hide them, just as he would have hidden them in wool fleeces or in something else.

Likewise, they said that one who turns a bowl upside down against a wall on a rainy day, if he does so in order that the bowl be washed, then the rainwater is fit to render things susceptible, because now we judge this water to be a liquid according to the owner’s intention, since the usual way of the world is to wash things with something that is a liquid. But if he placed it there so that the wall should not be damaged, they do not render things susceptible.

Additional examples appear in Maimonides, chapter 10 onward of Laws of Food Impurity.

It should be noted that the early authorities, Maimonides and Rashba, disagree on the question whether the relevant awareness must specifically be that of the owner, or whether it may also be that of any other person who places the liquid on the food. See on this Kesef Mishneh, Laws of Food Impurity 12:1, and Torah Temimah to Leviticus 11, note 157. It seems that Sefer HaChinukh, whose view we cited above, follows Maimonides here as well. An interesting consequence of this dispute is brought in Ketzot HaChoshen, sec. 406, subsec. 1, where he discusses whether the law of food impurity applies to the most holy offerings. He explains that although, according to Rabbi Yosei HaGelili, lesser holy offerings are the owner’s property, the most holy offerings have no owner, and therefore it is impossible to render them susceptible to impurity, since there is no one whose awareness can accompany their susceptibility.⁴

We should also note that with respect to the first and third innovations, Sefer HaChinukh again follows Maimonides. Maimonides holds that willing consent is required with regard to the contact with the liquid; see Laws of Food Impurity 2:1. He also holds that willing consent is required with regard to the liquid itself and its being detached from the ground; see there from 2:3 onward.

The Source for Thought in Purity and in Sacred Offerings: Mishnah Kelim

As noted, impurity applies to things that belong to the human world and serve human use, especially foods and vessels, much as in the laws of things set aside on Shabbat. In both of these contexts thought plays an important role, as can be seen in Mishnah Kelim 25:9:

All vessels enter into the sphere of impurity through thought…

Thus, with vessels as with food, the capacity to contract impurity must be accompanied by thought.

The Talmudic discussion in Babylonian Talmud, Kiddushin 59 deals with the status of speech and action in betrothal, and more generally, and with the question whether speech can nullify an action. In our essays over the previous two weeks we noted that in the realm of sacred offerings thought certainly disqualifies an action, and we concluded from this, following Rabbi Akiva’s statement in Babylonian Talmud, Zebahim 13b, that thought has the status of action, and indeed more than that.

Now, in the discussion in Kiddushin, we see a similar point with respect to purity, in relation to the Mishnah cited above:

Resh Lakish objected to Rabbi Yohanan: “All vessels enter into their impurity through thought, and they do not leave their impurity except through an alteration by deed. A deed removes the effect of a deed and of a thought; thought removes neither the effect of a deed nor the effect of a thought. Granted, it does not remove the effect of a deed, because speech does not come and nullify a deed. But at least let it remove the effect of a thought.” — Thought in the matter of impurity is different, because it is like a deed.

Thus, in the laws of purity as well, thought has the status of an action. These matters are also codified by Maimonides in Laws of Vessels 8:10:

All vessels descend into impurity through thought, and they do not rise out of impurity except through an alteration by deed. A deed nullifies the effect of a deed and of a thought, but thought nullifies neither the effect of a deed nor the effect of a thought. How so? If there was an animal ring or some other implement, and one intended to restore it as a human ring, then by that thought it becomes capable of contracting impurity, as though it had been made for human use from the beginning of its manufacture. If he then rethought and intended to leave it as an animal ring as before, even though no person has yet adorned himself with it, it nevertheless remains capable of contracting impurity, for thought does not nullify the effect of thought until he performs an action on the object itself, such as polishing it or fastening it in a manner used for an animal. If the ring had been for a person and he intended it for an animal, it remains capable of contracting impurity as before, for vessels do not leave their impurity by thought. If he acted upon it and altered it for an animal, it no longer contracts impurity, because a deed nullifies the effect of a deed.

It should be noted that the significance of this, in our context, is that thought does not undo an already effective thought, whereas a deed certainly overrides thought. By contrast, in sacrifices we saw that thoughts, such as piggul, an intention that disqualifies an offering by planning to consume it outside the proper time, or an intent that the sacrifice be not for its proper sake, disqualify deeds, whereas deeds do not disqualify other deeds with that same force. So there is indeed a similarity between sacred offerings and purity, in that in both realms thought is like deed, but the similarity is not complete.

The Source for the Requirement of Awareness in Purity: The Kiddushin Passage

Immediately afterward, the Gemara brings an example proving that in impurity thought is like action, specifically in the rendering of seeds susceptible to impurity, even though the Mishnah cited above deals with vessels:

And this is in accordance with Rav Pappa. For Rav Pappa raised a contradiction: it is written, “if one gives,” and yet we read it, “if it is given.” How can that be? “If it is given” must be similar to “if one gives”: just as “if one gives” implies that he is pleased with it, so too “if it is given” implies that he is pleased with it.

This exposition is based on the written form and traditional reading of the verse in Leviticus 11:38 cited above. The consonantal text suggests “if one gives,” but the traditional vocalization yields “if it is given.” “If one gives” implies that the owner must place the liquid on the seeds in order to render them susceptible to impurity, whereas “if it is given” implies that the liquid merely has to be placed on the seeds, regardless of what the owner actually does. It is therefore unclear whether an act on the part of the owner is required or not. Should we follow the traditional reading or the written text?

Rav Pappa assumes that both must carry meaning, and therefore asks how they can both be implemented together.⁵ His conclusion is that no actual human act is required, but some element of action must nevertheless be retained and required in rendering food susceptible to impurity. In other words, it is not enough that the liquid simply fall on the seeds by itself; the person’s awareness, or at least his acquiescence, is also required.

This is the source the Gemara brings for the fact that thought is required in rendering food susceptible to impurity. Rashi writes there:

“Because it is like a deed”—the Merciful One called it a deed, as it is written, “if one gives,” which means with the hands. And even though it is only thought, for even if they fell by themselves and he is pleased with it, this constitutes susceptibility and is called “if it is given.”

Rashi here sharpens what is already visible from the course of the Gemara. What the Gemara sought to prove was not merely that thought suffices and a deed is unnecessary, but that in impurity thought is like action. Therefore Rashi emphasizes that the verse and the Gemara show more than that thought alone is enough. They show that thought itself is called an action and has the status of an action.

This formulation very much recalls what we saw regarding sacrifices. There too the verse itself treated thoughts as actions, both in the case of a thought concerning placement and in the case of piggul. There too we saw that the claim that thought is like action, in Babylonian Talmud, Zebahim 13b, does not mean merely that thought alone is enough, but that thought has the status of action.

Active and Passive: Awareness and Acquiescence

In the discussion in Kiddushin we saw that the owner’s acquiescence is required. This is a weak expression of the requirement of his consent. If he is content with the situation, the law treats it as if he wants it.

In Babylonian Talmud, Bava Metzia, however, there is a general legal discussion whether acquiescence is equivalent to actual consent, for example with respect to eating or using someone else’s property, where it is reasonable to think that the owner does not mind but he has not said so explicitly. Within that broader discussion, there is also a discussion of the awareness required in rendering food susceptible to impurity: is actual awareness required there, or only passive acquiescence? The Gemara cites the following baraita:

Come and hear: If the dew was still upon them and he was pleased, then this falls under “if it is given.” If they had dried, then even though he was pleased, they do not fall under “if it is given.”

The baraita deals with a case in which the person sees that the fruits are wet but does not see the dew actually falling on them. The rule is that if he sees them wet, that is enough to render them susceptible to impurity. But if he becomes aware that they had been wet only after they have already dried, then his later consent no longer helps until they become wet again with his approval.

The Gemara begins by examining the latter clause of the baraita:

What is the reason? Is it not because we do not say: since it has now been revealed that he is pleased, he must also have been pleased earlier? — The case there is different, for it is written, “if one gives”—until there is a giving attributable to him.

The Gemara thus learns that retroactive acquiescence is not enough to render seeds susceptible. That is, if he did not see the water but is pleased that the fruit had been wet, the food is not thereby rendered susceptible to impurity.⁶ Apparently, then, retroactive agreement is not enough here, unlike the case of using someone else’s property.

Yet that conclusion would seem not to fit the first clause of the baraita:

If so, then the first clause too! — There the rule follows Rav Pappa. For Rav Pappa raised a contradiction: it is written, “if one gives,” and we read it, “if it is given.” How can that be? We require “if it is given” to be similar to “if one gives”: just as “if one gives” is with awareness, so too “if it is given” must also be with awareness.

In the passage in Kiddushin, Rav Pappa’s exposition was presented as a leniency: there is no need for an actual act of applying liquid, and acquiescence is enough. Here the Gemara explains that Rav Pappa’s exposition also has a stringent side: mere acquiescence is not enough; the owner’s awareness is required. Hence the difference in wording. In Kiddushin Rav Pappa derives that the owner must be pleased with it, whereas here he derives from the verse that it must be with his awareness.

It is important to note that the awareness discussed here is not identical with the requirement of the owner’s consent that we saw above in Maimonides and Sefer HaChinukh. That consent can be expressed retroactively, and there is no reason why the owner must actually have seen the fruit in its wet state. Here, by contrast, we are dealing with an additional requirement: the owner must also know of it while the fruit is still wet. The owner cannot be entirely passive; some degree of activity is required.

Explanation: Awareness as Action

As noted, if the only requirement here were the owner’s consent, then retroactive acquiescence should suffice, exactly as in the case of using another person’s property, where it is enough that he not mind once he knows of it. Here, however, awareness is required because the owner’s thought plays a role in effecting the susceptibility to impurity. The person’s thought brings about the susceptibility to impurity; it is not merely a condition for its taking effect.

If the person knows that the fruit became wet, and is also pleased with that, then this awareness is treated as an act of wetting that he performs upon the fruit. As the verse says, “if one gives,” meaning that such a situation is treated as though the owner himself put the liquid upon the food. In order to bring about a legal status through an act attributed to the owner, retroactive acquiescence is not enough. A thought that is to count as an action must be active and not wholly passive. Yet the traditional reading is “if it is given,” which means that no actual deed is required. The compromise reached by the Gemara is that what is required is a thought that can be treated as an action. The contact with the water is now legally regarded as his action.

As we saw last week regarding sacred offerings, so too here with respect to impurity thought constitutes virtual action. Legally it is as though an act took place, and therefore thought can act upon reality.

According to this explanation, it would seem that the owner’s awareness does not relate merely to the fact that the fruit is already wet. Rather, the owner must be pleased that the fruit became wet, that is, with the very act of coming into contact with the liquid. This is, of course, a direct consequence of the position of Sefer HaChinukh, and apparently also of Maimonides, according to which contact with liquid is the person’s completion of preparation. If there is to be a completion of preparation here, an act of washing with liquid is required.

By contrast, according to Nahmanides, whose view is that the purpose of contact with liquid is to make it possible for impurity to adhere, that is, this is the beginning of impurity rather than the completion of the food’s preparation, it is entirely possible that awareness that the fruit is wet is enough, and awareness of the act of becoming wet is not required.

Thus Maimonides and Sefer HaChinukh will learn that the baraita requires awareness while the fruit is still wet, because only then can the act of wetting be attributed to the person. Nahmanides, however, will understand this as a requirement that the person acquiesce in the fruit’s being wet.

It is possible that the dispute between Maimonides and Rashba runs in the same direction. According to Maimonides, only the owner’s awareness helps render food susceptible to impurity. The reason is that the owner is performing the completion of preparation that defines the thing as food for his own use. According to Rashba, however, the awareness of another person may also suffice, because he would follow Nahmanides, according to whom awareness is required only so that the susceptibility by which impurity comes to adhere should occur with human awareness and not of itself.

One Step Further: Thought Between Impurity, Sacred Offerings, and Property

We have seen thus far that thought in impurity operates in a manner very similar to what we found in the realm of sacred offerings. In both contexts thought is not merely central; it is itself what counts as an action.

It may be possible to go further and say, with respect to impurity as well, what we proposed regarding sacred offerings: that in truth the whole point is only the thought, not the action. The action serves merely to give content to the thought, to define when and about what the thought must be directed. Contact with liquid merely defines a stage at which the person is supposed to decide that this thing is food for his use. The halakhic system does not make do with bare thought, because that is not legally well-defined. The thought must be anchored in a practical stage, and that stage is the completion of preparation.

Something similar is found in acts of acquisition. There too, according to most views, the act that transfers ownership of the object from the transferor to the acquirer is the owner’s final resolution of mind. The physical action is required only in order to create, or perhaps to verify the existence of, that resolution.

In the essay from two weeks ago we noted that prayer is part of the concept of divine service, and therefore, as with sacrifices, so too in prayer thought is primary and not action. According to this approach, the enactments of the Men of the Great Assembly, who established fixed and obligatory forms for prayer, were meant only to cast thoughts, desires, and intentions into a practical mold. The practical level exists only in order to provide a framework for thoughts and intentions.⁷

In this respect, the context of the Bava Metzia discussion actually resembles what we find in rendering food susceptible to impurity. With respect to another person’s property as well, thought is primary. When I eat food that belongs to my fellow, which is the case discussed there, the permission depends on his allowing me to do so, that is, on his being comfortable with it. The practical expressions are meant only to verify the presence of consent in the heart. In terms of the content of the inner thought, however, there is a difference between the two contexts: in impurity an operative thought is required, in place of an act, whereas in monetary acquiescence passive acquiescence is sufficient, because the thought need not act.

Thus, in both fields the essence is thought, and no actual deed is required. But in monetary law the thought is not treated as an action. It is simply enough that there be thought and acquiescence. It does not itself act; it merely indicates the existence of a state, namely acquiescence. In impurity, by contrast, thought replaces the action, and therefore it brings about legal states of susceptibility to impurity. For that reason, some degree of activity is required there as well. That is the fundamental difference between the two fields.

There is, however, also a difference between sacred offerings and impurity. In sacred offerings we saw, in the essay on the Torah portion of Vayikra, that the sacred act has significance even without the commandment, and from this we derived the rule that when Scripture altered the wording, it did so to make the matter indispensable. In impurity, it is unlikely that the situation is similar. In this respect, the laws of purity should apparently not be compared to sacred offerings. In sacred offerings, the centrality of thought derived from the fact that these actions have value even apart from the commandment, as in prayer and in divine service generally. In impurity, by contrast, it seems likely that the natural plane has no significance at all without the commandment. On the contrary, this is a field that is defined in a thoroughly direct way by the Torah’s commands, and only by them.⁸

D. An Intermediate Case: The Red Heifer

Introduction

We have seen that in both the laws of purity and the realm of sacred offerings, thought is the primary constitutive element of these halakhic domains, while action is defined only in order to provide a framework that guides and directs thought and its contents. We find another striking example of an exposition on the pattern of “if one gives” and “if it is given” in a different halakhic context, in Babylonian Talmud, Bava Metzia 30a, and it seems to be an intermediate case between the laws of purity and sacred offerings.

Between Activity and Passivity in the Red Heifer

The Gemara there discusses the treatment of lost property, and rules that one may perform actions for the benefit of the lost object, but not for the benefit of the finder. It then addresses the question what the law is if the finder performs an action that benefits both, both the lost object and himself. In the course of that discussion, the Gemara cites the following baraita:

Come and hear: If he brought her into the team and she threshed, she is fit. If he did so so that she should nurse and thresh, she is unfit. But here it is for his sake and for her sake, and yet it teaches that she is unfit. — The case there is different, for the verse says, “on which no work was done”—in any case. — If so, then even the first clause should be unfit. — Rather, it is comparable only to the following, as we learned: If a bird rested upon her, she is fit; if a male mounted her, she is unfit. What is the reason? In accordance with Rav Pappa. For Rav Pappa said: Had the verse been written and read only in the form that implies work occurring on its own, I would have said that even work that happened by itself disqualifies. Had it been written and read only in the form that implies he himself worked with her, I would have said that only if he himself worked with her does it disqualify. Now that it is written one way and read another, we require the one to be like the other: just as the one implies that he is pleased with it, so too the other implies that he is pleased with it.

The basis here is a verse from the passage of the calf whose neck is broken, Deuteronomy 21:3:

And it shall be that the city nearest to the slain man shall take a heifer of the herd which has not been worked with and has not drawn in a yoke.

The verse teaches that a calf whose neck is to be broken becomes disqualified if work has been done with it. Indeed, the word as written suggests an active sense, in which case an actual deed of labor upon the calf would be required, while the Masoretic vocalization points in a passive sense, implying that it is enough that work was done with it of itself.

This is parallel to what we encountered in the exposition of “if one gives” and “if it is given.” And indeed, the Sages derive here too that with this calf there is no need for an actual deed, but there is a requirement of human acquiescence.

A first important point is the dispute between Rashi and Tosafot regarding the subject of this exposition. Rashi writes there, “it refers to the calf whose neck is broken,” meaning that the subject of the exposition is that calf. But the cases brought immediately afterward, namely a bird resting upon it and a male mounting it, concern the red heifer. Tosafot there, on the words “if he brought her in,” disagree with Rashi and cite the view that the entire baraita deals with the red heifer, its source being Tosefta Parah 2:3.

According to Rashi, the discussion concerns the calf whose neck is broken, and the examples are merely borrowed from the red heifer in order to illustrate the laws of the calf. According to Rashi, however, it is difficult to know where the baraita cited here comes from, for we find such a baraita only with regard to the red heifer. Presumably what led Rashi to assume that the subject is the calf rather than the heifer is the fact that the verse expounded here comes from the passage of the calf. According to Tosafot, however, there is a difficulty in the flow of the Gemara, since the Gemara is discussing the red heifer, yet the basic exposition teaching us the need for acquiescence is taken from the verse regarding the calf, “on which no work was done.” Tosafot, on the words “so too works,” address this difficulty and write that the law is learned from the calf whose neck is broken, either by reasoning or by verbal analogy. This also seems clear from Maimonides, Laws of the Red Heifer 1:7. In Laws of the Murderer 10:3-4 he writes that the same laws apply also to the calf whose neck is broken, though he does not spell them out there. It therefore seems that in his view as well, the basic exposition in the Gemara, as in the Tosefta, concerns the red heifer, and from there the law is learned also for the calf.

Comparisons to Rendering Seeds Susceptible

The exposition we cited above appears almost identical to the exposition concerning the susceptibility of food to impurity. And indeed, Tosafot raises an objection from rendering seeds susceptible to impurity in relation to the red heifer, because it assumes that the similarity should be complete:

Tosafot asks: if he did not know at the time the male mounted her, why is she unfit? How is this different from rendering susceptible, where we said above that once they dried, they do not fall under “if it is given”?

Tosafot asks why, in the case of rendering seeds susceptible, if a person expresses acquiescence when the seeds are already dry, that does not help render them susceptible retroactively, whereas here acquiescence would seem to disqualify retroactively even after the male mounted the heifer. Tosafot answers:

If we say that she becomes unfit only when he knew at the time it mounted, all is well.

That is, the heifer does not in fact become unfit if he did not know of it at the time it happened. This is again in line with what we saw above, namely that the acquiescence must count as an action, and therefore later consent is not enough; a more active awareness is required, so that the mounting can count as the person’s own action, as though he had himself caused a male to mount her.

Tosafot then asks:

Tosafot continues: with regard to one who performs work with the heifer of purification, where it is said in the chapter HaKones that he is liable by the laws of Heaven, why does she become unfit? Surely the owners do not want this. And it answers: perhaps he was a partner; or alternatively, we do not require the acquiescence of the owners, only the acquiescence of the one doing the work.

Here two views are presented: whether the required acquiescence must be that of the owner, or whether the acquiescence of any person who works with it is enough to disqualify it. Here too the law resembles what we saw in the dispute between Maimonides and Rashba regarding the rendering of seeds susceptible to impurity, namely whether the acquiescence of the owner is required or that of any person.

The Nature of the Red Heifer

What is the red heifer? At first glance, it belongs to the domain of sacred offerings. Yet several commentators have already noted that the heifer does not fully belong to that domain, for all of its rites are performed outside the Temple precincts. Even with respect to its disqualifications, they are not necessarily derived from the disqualifications of sacrifices; see the dispute between Maimonides and Raavad at the beginning of Laws of the Red Heifer, and Keren Orah on Sotah 46. In this sense it resembles the calf whose neck is broken, which also does not belong to sacred offerings in the full sense. Indeed, Maimonides places the Laws of the Red Heifer in the Book of Purity and not in the Book of Offerings or the Book of Service. He also places the laws of the calf whose neck is broken in the Laws of the Murderer. The Mishnah as well includes tractate Parah in the Order of Purity rather than in the Order of Offerings.

And yet, it is clear that many laws concerning both the heifer and the calf are learned from the domain of sacred offerings, and there is a real affinity between the two fields. After all, the heifer certainly possesses sanctity. Thus the red heifer and the calf whose neck is broken are attenuated forms of sacred offering.

On the other hand, with regard to the red heifer we must not forget that it also belongs to the domain of purity, since its entire service is meant to play a part in the purification of those impure through contact with the dead. It may therefore belong to the laws of purity for that reason as well.⁹ The conclusion is that the red heifer is a case situated between sacred offerings and the laws of purity.

At the beginning of our discussion we noted that sanctity is always the opposite of impurity. We now see that the red heifer is a form of sanctity whose role is to erase and nullify impurity. It is active sanctity, and therefore it purifies the impure.

As is well known, the heifer purifies the impure and renders the pure impure. That is, in certain cases it also nullifies sanctity and turns it into impurity. There is a paradox in it that stems from its standing between impurity and sanctity and operating in both directions.

From this it follows that in the red heifer, even if it belongs neither wholly to sacred offerings nor wholly to the laws of purity, thought will be central and significant, both because of its sacred-offerings aspect and because of its purity aspect. We should therefore not be surprised to find an exposition similar to the one we saw regarding the rendering of food susceptible to impurity, “if one gives” and “if it is given,” also in the disqualification of the red heifer, “worked” and “works.”

There are differences between the requirement in the laws of food impurity and the requirements in the red heifer, and some of them seem related to the fact that the heifer does not belong fully to the domain of sacred offerings, but this is not the place to elaborate.

Footnotes

And in truth, as we noted above, it seems that the laws of purity should not be compared to sacred offerings on this point; see the explanation there. If so, the situation here in the laws of the red heifer will depend on the question whether what is decisive is its sacred-offerings component or its purity component, and the matter still requires further study.