Lesson 40: Korach

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

• Constitutive and regulative mitzvot (commandments).
• Legal system and halakha (Jewish law).
• Different interdependencies of monetary and prohibitory/commandment elements.

Abstract

In this week’s essay we discuss the commandment of redeeming the firstborn son, which includes both a monetary aspect—the obligation to pay a priest—and a prohibitory/halakhic aspect—the obligation to redeem the son. We examine different dependencies between these two components through the question whether a firstborn son may be redeemed against the will of the priest, and against the will of the redeeming father.

We approach this question by comparing it to other transfers in halakha in which there is uncertainty whether giving against the recipient’s will is effective. It is clear that repayment of a debt is effective even against the creditor’s will, whereas an ordinary gift is not. The interesting cases are the intermediate ones, in which monetary elements interact with elements of prohibition or commandment.

We then turn to broader questions about the relationship between the legal and the halakhic parts of the Torah, and about the various relationships between components that exist within one and the same mitzvah. We distinguish between situations in which the Torah recognizes an existing reality and even seeks to validate it, and situations in which the Torah creates an alternative reality. We also hint at contemporary implications of this dispute for the understanding of Torah and halakha.

On the Redemption of the Firstborn Son under Coercion

A Look at Transfers of Ownership and Commandments

Introduction

Within halakha we recognize a distinction between the “legal” sphere—Hoshen Mishpat—and the specifically religious-halakhic sphere—Yoreh De’ah and Orah Hayyim. There are cases, however, in which the two become intertwined, because a transfer of ownership becomes a mitzvah. Consecration of property is a transfer of ownership that is also a mitzvah, and it also creates prohibitions. Misappropriation of consecrated property is an infringement of ownership that is a transgression. Giving priestly gifts to a priest is a mitzvah to effect a transfer of ownership, and the same is true of gifts to the poor. The same pattern appears in other halakhic contexts as well.

One of those contexts is the mitzvah of redeeming the firstborn son. In our weekly portion, the Torah lists several of the gifts due to the priests, and among them it commands the redemption of the firstborn son (Numbers 18:15-16):

Every first issue of the womb of all flesh that they offer to the Lord, whether human or beast, shall be yours; but you shall surely redeem the firstborn of man, and the firstborn of unclean animals you shall redeem. And their redemption price, from one month of age, you shall redeem according to your valuation: five shekels of silver, by the sanctuary shekel, twenty gerahs.

In this mitzvah we are commanded to redeem our firstborn son from the priest when the child reaches thirty days of age. The obligation rests on the father, and if the father does not redeem his son, then the son himself, once grown, must redeem himself. The redemption entails giving the priest the value of five sela’im in silver, or property of equivalent value, and by that act the son is redeemed. This giving is nothing other than a transfer of ownership, and it is governed by the ordinary laws of conveyance, requiring a legally effective act of transfer and the like.

In this essay we will discuss a question that lies at the boundary between transfers of ownership and mitzvot, as it appears in the redemption of the firstborn son and more generally. We will examine the question of redemption under coercion. These cases divide into two types: redemption against the father’s will, where the redeeming party is under duress, and redemption against the priest’s will, where the priest is under duress.

According to halakha, transfers of ownership require the consent and intentional participation of both the transferor and the recipient. We would therefore expect that one could not redeem a son under coercion. But as we shall see, the matter is not so simple.

A. Giving Against the Recipient’s Will, and Redemption Against the Priest’s Will

Giving Against the Recipient’s Will

The Babylonian Talmud, Gittin 74b, discusses Hillel’s enactment regarding one who redeems a house in a walled city. As is well known, someone who sells such a house may buy it back from the purchaser within twelve months. At a certain point Hillel saw that purchasers had developed a practice of avoiding the sellers throughout the year, so that the sellers would be unable to find them and redeem the sold house. To solve the problem, Hillel enacted that the house could be redeemed even in the purchaser’s absence, by depositing the money in a special chamber designated for that purpose. Once the money was deposited, ownership of the house reverted to the seller, against the purchaser’s will.

From this the Gemara seeks to infer the law of giving against the recipient’s will:

Rava said: From Hillel’s enactment we may infer the following. If a man says to a woman, “This is your bill of divorce on condition that you give me two hundred zuz,” then if she gave it with his consent, she is divorced; if against his will, she is not divorced. For since Hillel found it necessary to enact that giving against his will counts as giving, it follows that ordinarily giving against his will does not count as giving. Rav Pappa objected, and some say Rav Shimi bar Ashi: perhaps Hillel needed to enact only that it should work when done not in his presence; but if it is done in his presence, then whether with his consent or against his will, it counts as giving.

Rava learns from Hillel’s enactment that by basic law, giving to someone against his will is ineffective. Here Hillel found it necessary to enact that it would be effective, in order to solve the problem of purchasers evading the sellers. Rabbi Shimi bar Ashi disagrees with Rava. In his view, the main point of the enactment is that the redemption should work even when not done in the purchaser’s presence. But by basic law, redemption done against the purchaser’s will would already have been effective—provided it was done in his presence.

The halakha is ruled in accordance with Rava—see Maimonides, Laws of Divorce 8:21, and Shulhan Arukh, Even HaEzer 143:4—that giving against the will of the recipient is not considered a valid giving.¹ It should be noted that the discussion here concerns a giving meant to satisfy a condition, not an ordinary gift. In an ordinary gift it is fairly obvious that giving against the recipient’s will is ineffective, since title cannot be forced upon a person against his will.

Indeed, the Rashba, in his novellae there, writes this explicitly, and also relates it to several other cases of giving:

It follows that ordinarily giving against his will is not a giving. For where Hillel enacted, he enacted, and where he did not enact, he did not enact. The fact that we need to learn from Hillel’s enactment that giving against one’s will is not called giving applies only in a case where the recipient is legally bound to accept, such as redemption of the house. But an ordinary gift, where the other says, “I do not want it”—for that no proof is needed, since it is obvious that he does not receive against his will. For everyone agrees that if he protested from the outset, his protest stands (Babylonian Talmud, Bava Batra 138a), and in such a case Rav Shimi would not dispute and say that it counts as giving. Accordingly, we must explain that when he said to the woman, “On condition that you give me two hundred zuz,” he did not make receipt of the money depend on his own will, but on the woman’s will: whenever she wishes to give it, he is prepared to receive it. Therefore he is like one who is obligated to receive it. Hence we need to learn from Hillel that even in such a case, giving against his will is not called giving, despite the fact that he made it depend on the woman’s will. This is the point on which Rav Shimi disagrees.

It further seems to me that even according to the opinion that giving against one’s will is called giving, that is only where the giver is discharged by the giving and thereby gains what is in his hand through fulfillment of his condition. That is the reason in the case of the bill of divorce, and likewise in the case of the house in a walled city: the woman acquires the bill of divorce in her hand, and the other party acquires the house through fulfillment of their condition. The same applies to one who swore to give something to another: he may give it against the other’s will and thereby be discharged. But as for the recipient’s actually acquiring something against his will—that is impossible, because a person cannot acquire against his will. That is the reason in the case of an ordinary gift. And the same reasoning applies to a woman who says, “Give me a maneh and I will be betrothed to you,” and the man swears to give her the sum: if he gives it against her will, he has fulfilled his oath, but she is not betrothed. So it seems to me.

The Rashba establishes that in an ordinary gift it is obvious that giving against the recipient’s will is ineffective. On this point even Rav Shimi would not disagree with Rava. As a matter of halakha, even in the case of a conditional divorce the giving is ineffective. Yet here it was still necessary to learn that rule from Hillel’s enactment. In other words, it was not obvious to the Gemara that such a giving, if done against the recipient’s will, would not count as giving.

Why, then, was this not self-evident? Put differently: why does Rav Shimi disagree in this case? The Rashba offers two explanations:

1. One possibility is that in this case the divorce is made conditional on the giving of the money, and the husband undertakes to receive it whenever she wishes to give it. In such a situation, giving against his will could have been effective because he is obligated to receive it. The Rashba appears to mean that when the woman gives the money against his will, the husband would also acquire the money—even though ordinarily a person does not acquire against his will—because he is obligated to receive it. Hillel teaches us that even in such a case giving against his will is not valid giving.

2. The second explanation the Rashba suggests is that the woman’s act of giving would indeed be effective against the husband’s will, but only as fulfillment of her obligation. The husband certainly would not acquire the money if he is unwilling to receive it, since a person does not acquire against his will. This is Rav Shimi’s view. Rava, however, ultimately learns from Hillel that if the giving was against his will, then not only did the husband fail to acquire the money, but the woman also failed to fulfill her obligation.

According to this explanation, the condition in divorce is similar to the case of the house in a walled city, and the Rashba compares it as well to a case where Reuven swore to give something to Shimon. There too, giving against Shimon’s will is effective—but only in the sense that the one who swore, or the giver, has discharged his obligation; it does not transfer ownership of the money to the recipient. Rava, it seems, would disagree even with the claim that the giver has discharged his obligation.

In any event, in an ordinary gift, by all opinions and according to both explanations, it is clear that the giving is ineffective against the recipient’s will. And as a matter of halakha, even in the case of divorce conditioned on a payment, giving against the recipient’s will is ineffective.

What about repayment of a debt? It seems clear that in the case of debt one may certainly repay against the creditor’s will, since the creditor must either accept the money from the debtor or forgive the debt. It is also reasonable that even according to Rava, the creditor cannot refuse to accept the money and at the same time say to the debtor that he still owes it to him; see Ketzot HaHoshen 243:4, and below.

We thus have two clear extremes. Repayment of a debt is certainly effective even against the creditor’s will. By contrast, an ordinary gift is certainly ineffective against the recipient’s will. All the intermediate cases—such as one who swore to give, or divorce conditioned on payment, or houses in walled cities, and the like—are the subject of dispute between Rava and Rav Shimi. As a matter of halakha, Rava learns from Hillel’s enactment that giving against the recipient’s will is ineffective in those cases as well.

The derivation from Hillel’s enactment serves only as a textual source for this rule. The substantive question is why giving against the recipient’s will is indeed ineffective in these cases. The likely answer is that in all these cases there is no debt. This is an ordinary giving, except that there is either a mitzvah to give, or a condition that creates a framework in which the giving is not entirely voluntary. Even so, there is still no genuine debt here. Bottom line: for Rava, all these cases are like an ordinary gift, not like a debt.

The Redemption of the Firstborn Son

What, then, of the redemption of the firstborn son?² Here there is a Torah commandment to give the redemption money to a priest, and one could compare this to a debt. That is indeed the comparison made by the author of Ketzot HaHoshen, whose remarks will be cited below. On the other hand, it is clear that there is no actual debt here, and certainly not to any specific priest—perhaps only to the priestly tribe as a whole.

Indeed, the author of Pri Hadash, in the pamphlet Mayim Hayyim, responsum 5—cited by Ketzot HaHoshen there, s.v. “However, regarding gifts”—writes that the redemption of the firstborn son is effective even against the will of the receiving priest. He cites a case of a priest in a village who did not want to accept the redemption money from an Israelite, and rules that giving against his will is effective. The author of Or Gadol on the Mishnah, on Bekhorot chapter 8, mishnah 8, likewise inferred this from Rashi.

The author of Minhat Hinukh also inferred this from the Ran and the Rashba at the beginning of tractate Kiddushin. The Gemara in Kiddushin learns that property of equivalent value is treated like money for purposes of betrothal; that is, a woman can be betrothed either with money or with goods of equivalent value. The Ran and the Rashba there discuss this rule, and state that with respect to betrothal it requires no special textual source, because in betrothal the woman receives the money willingly—and without that willingness she is not betrothed—so it is obvious that if she agrees to be betrothed by means of property of equivalent value, that too is effective. They add that in the case of a Hebrew servant redeemed by a proportional deduction from his purchase price, a textual source is required to teach that equivalent value counts as money, since there the redemption takes place against the master’s will.

With respect to the redemption of the firstborn son, there is a special derivation that equivalent value counts as money—see Babylonian Talmud, Shevuot 4b and parallels, through the hermeneutical rule of generalization and specification. The author of Minhat Hinukh, commandment 392:6, concludes from this that giving against the priest’s will is effective in the redemption of the firstborn son, and that is why a special derivation is needed to establish the rule that equivalent value counts as money in this context.³

The author of Ketzot HaHoshen there discusses redeeming a firstborn by giving the payment to a minor priest. In the course of that discussion he cites what we have seen above: as a matter of accepted halakha, in the case of debts, payment against the recipient’s will counts as valid payment. He argues there that the redemption of the firstborn son is a kind of debt owed to the priest, and therefore concludes that giving against the priest’s will is effective here too, as with other priestly gifts. From this he further concludes that giving the redemption money to a minor priest is also effective, even though a minor lacks legal capacity to acquire, because such a giving is certainly no worse than giving to a priest who refuses to receive it.

Thus Ketzot HaHoshen compares the redemption of the firstborn son to a debt, and for that reason rules that giving against the priest’s will is effective. As we saw above in the Rashba, even where such an act is effective there is still room to ask whether the recipient actually acquires the money, or whether the act is effective without the recipient’s acquisition of the money.

From the wording of Ketzot HaHoshen here and later, it clearly emerges that his point is that although the priest does not acquire the money when it is given against his will, the Israelite nevertheless fulfills the mitzvah even if he gave it against the priest’s will. That is why he compares this to giving the redemption money to a minor priest: in the case of a minor too, the money is not acquired by the priest—since a minor cannot acquire by Torah law—and yet the giver has still fulfilled his obligation.

Another Proof from the Ran and the Rashba Regarding the Blessing over Redemption

The Ran, on Pesahim 4a in the pagination of the Rif—cited by Mahaneh Ephraim, Laws of Acquisition and Gift sec. 7, and also cited there from Maharit Algazi on Bekhorot 1:7, though that passage is not before us—writes that for circumcision and for the redemption of the firstborn son we recite the blessing in the form “concerning”—that is, “who has commanded us concerning the redemption,” rather than “who has commanded us to redeem”—because one may exempt oneself from these obligations through another person. He means that in these mitzvot the obligation is not that one personally perform the act of redemption, but that the result come about, even if through another person. Therefore the formula of the blessing should be “concerning.” He objects to this from the case of terumah, which can also be separated through an agent, and yet no blessing is recited there in that formula. He explains that in terumah the agent separates it with the owner’s consent, whereas in circumcision and in redemption another person can discharge the obligation even without the father’s knowledge. In other words, in terumah the person who separates it acts as the owner’s agent, and the mitzvah is therefore a mitzvah to perform an act of separation. When an agent does it on his behalf, it is as though he himself did it. But in the redemption of the firstborn son and in circumcision, the mitzvah is that the thing be done, even if the other person is not acting as the father’s agent.⁴ From this there is evidence that the redemption of the firstborn son is a repayment of debt: when someone else pays it, the debt is paid. We see that according to the Ran, redemption against the priest’s will is effective, as in the repayment of a debt.⁵

In Amrei Binah, Laws of the Redemption of the Firstborn Son sec. 2, a similar point is proved from Responsum 18 of the Rashba, namely that in the redemption of the firstborn son, giving against the priest’s will is effective. The Rashba explains there that no blessing is recited over the mitzvah of charity, over the severance gift given to a servant, or over other gifts to the poor, because those mitzvot do not depend only on the giver; the recipient may not agree, and the mitzvah will not be fulfilled. He adds that no blessing is recited over priestly gifts because the giver is not giving from his own property, since they are the priests’ property and he has only the benefit of choosing to which priest they will be given. But for the redemption of the firstborn son a blessing is recited. From this it follows that the priest’s consent is not required. Amrei Binah also proves this there from Abudarham, who cites the same responsum. It seems, then, that the Rashba and the Ran are each consistent with their own broader approaches.

It should be noted that from the Rashba’s words in that responsum it is clear that, before the giving, the redemption money is not the priest’s property but belongs to the father; otherwise a blessing would not be recited over the redemption for the same reason it is not recited over gifts to the poor. If so, this would seem to undermine the rationale of Ketzot HaHoshen that the redemption of the firstborn son is a kind of debt. At first glance we face a contradiction: on the one hand, redemption is effective against the priest’s will; on the other hand, it is not really a debt, and if so it should seemingly resemble an ordinary gift, which is ineffective against the recipient’s will. In other words, the ruling of Ketzot HaHoshen may be correct—that redemption is effective against the priest’s will—but his rationale may not be correct.

But now we are back at the starting point: if this is indeed a full-fledged giving without an underlying debt, why should it be effective against the priest’s will at all? In what way is it different from an ordinary gift?

Clarification: Between Debt and Transfer of Ownership

Until now we assumed that in repayment of a debt, giving against the creditor’s will is effective because the money is, in a sense, already his. He need not acquire it, and therefore nothing prevents payment against his will. But that is not necessarily נכון. When one person owes another money, this does not mean that the money already belongs to the creditor; it means only that the creditor has a legal claim against the debtor’s person and property, obligating him to transfer back that amount of money. Even in a debt, repayment is an act of conveyance, because the coins that are given do not belong to the creditor until the debtor gives them to him. In the language of the Sages, “a loan is given for expenditure.” The borrowed money belongs to the borrower, and what rests upon him is only the obligation to repay the debt.

If so, why is repayment of a debt effective even against the creditor’s will? It would seem that the reason is closer to the first explanation we saw in the Rashba: it makes no sense to allow the creditor to refuse to receive the money that is due him—though not yet his—and at the same time claim against the debtor that the debt has not yet been repaid. If the creditor refuses to receive the money, that is tantamount to waiving the debt, and therefore the payment is effective. He cannot refuse the money and at the same time continue to hold on to his rights.

If so, there is no necessity to say that in the redemption of the firstborn son the money already belongs to the priest before the giving. There may indeed be a debt to the priest, but the priest is not yet the owner of the money. And just as in an ordinary debt, so too in the redemption: the priest does not acquire the money against his will, but the Israelite nevertheless fulfills the mitzvah even without the priest’s acquisition. As we saw, this is precisely what Ketzot HaHoshen explicitly wrote. The very fact that the father gave the money suffices to discharge him, even if the priest did not acquire it. The reason for this can be one of two:

1. As with a debt: if the priest refuses to accept the money, it is as though he waived it. This, of course, assumes that waiver is effective in the redemption of the firstborn son.

2. The redemption depends on the act of giving the money, not on the recipient priest’s acquiring it. Therefore, if the priest refuses, he indeed does not acquire it, but that does not prevent the redemption.

What distinguishes the redemption of the firstborn son from houses in walled cities—by basic law, before Hillel’s enactment—or from divorce conditioned on payment, where we saw that as a matter of halakha giving against the recipient’s will is ineffective? It seems quite clear that in those two cases there is no debt at all toward the recipient. Therefore a mere act of giving does not suffice, and a real conveyance is required. Rav Shimi, who disputes Rava, perhaps holds that even in those two cases a giving without conveyance can be effective, even though in his view too there is no debt. In his opinion, even there the recipient cannot refuse to accept the money and at the same time claim that because he did not receive it he wishes to retain his rights. The difference between those cases and an ordinary gift is that in a gift, the recipient refuses to accept the money but is not claiming any rights for himself, whereas here he is. In the case of a debt, or of the redemption of the firstborn son—which for Ketzot HaHoshen is also a debt—the recipient cannot refuse to accept because he wishes to continue holding rights; that is simply impossible.

Opposing Views: In the Redemption of the Firstborn Son, Giving Against the Priest’s Will Is Not Effective

So far we have seen the opinions according to which, in the redemption of the firstborn son, giving against the priest’s will is effective. But among the commentators and halakhic decisors there are also other views. The author of Netivot HaMishpat, there in subsec. 8, wonders how priestly gifts can be discharged against the priest’s will, since this resembles a gift, and giving against the recipient’s will is not valid. We have already answered that objection above, but in any case this is the view of Netivot HaMishpat.

Ketzot HaHoshen himself also infers this from Tosafot, s.v. “From where do I know it,” on Kiddushin 8a, who write that in the redemption of the firstborn son the priest’s settled assent is required.⁶ That is so even though the initial assumption is that in priestly gifts giving against the priest’s will should certainly work.

He then cites several later authorities who assumed as obvious that assent is required—following the approach of Netivot HaMishpat—and therefore rejected the inference from Tosafot. They suggested that Tosafot’s point does not concern the giving itself—for that, they maintained, is certainly effective even against the priest’s will—but rather various conditions attending the giving:⁷

In the book Atzmot Yosef there (halakha 16) he wrote as follows: If he gave the priest five sela’im, why should the priest’s knowledge matter, since he has already given him five sela’im? It would seem that since the priest is the party entitled to this firstborn, if he has no knowledge of the value of the payment, the son is not redeemed, and assent is required—just as a woman must know the amount involved in betrothal. But according to what I wrote in the name of the Pri Hadash, that with respect to redemption by five sela’im it is effective even against the priest’s will, it follows that we do not require the priest’s assent at all, and so it appears; for it is certainly no more stringent than an ordinary creditor, regarding whom payment against his will counts as payment. And in the Derishah on Yoreh De’ah 305 it is written, concerning the present custom of redeeming with precious stones and pearls without appraisal, that in relation to the priest his consent is not required. That is against the words of Tosafot in Kiddushin mentioned above, who wrote that his settled reliance is required.

One may perhaps say that although payment against the recipient’s will counts as payment, that is when one wishes to put it into his hand and he does not wish to receive it, so one throws it before him in his presence. But when he wishes to receive it in his hand, one must give it into his hand, as explained in the Tur and the Shulhan Arukh, section 120. So too here, in the redemption of the firstborn son: one must give it to the priest in such a way that he can rely on its value, and therefore appraisal is necessary, following the reasoning of Tosafot. But if he does not wish to receive it, one may throw it before him, and then the words of the Pri Hadash are correct.

But in the end Ketzot HaHoshen himself is not satisfied with these resolutions, and writes:

Yet my heart still hesitates, because section 120 there implies that the need to give it into his hand when he wishes to receive it is only because the creditor can say, “Had you given it into my hand, I would have guarded it.” If so, the priest’s settled reliance is still not required. It therefore appears from the words of Tosafot that although payment against one’s will counts as payment, priestly gifts require a mode of giving, and one does not fulfill with a giving against the recipient’s will. Hence the priest’s settled assent is required. All this still requires further inquiry.

Thus the conclusion that emerges is that Tosafot hold that in all priestly gifts, including the redemption of the firstborn son, giving against the recipient’s will is ineffective. This differs from an ordinary debt, which can certainly be repaid against the creditor’s will. The rationale he offers is that priestly gifts require an act of giving, and giving against the priest’s will is not considered giving.

One could formulate the distinction somewhat differently. In an ordinary debt, a person can waive the obligation and thereby erase it; but in priestly gifts there is a mitzvah to give them, and if the priest waives his claim, he may perhaps lose the ability to demand them, but the person has still not fulfilled the mitzvah. The priest cannot waive the obligation that the mitzvah imposes on the giver. Only if the waiver were treated as though the priest had said, “I regard it as received,” would there be room to view it as a valid giving. Tosafot apparently do not understand waiver in that way.

Even According to Rav Shimi: Between Debt and Priestly Gifts

It seems that even according to Rav Shimi above—who, as we explained, holds that a creditor cannot refuse to accept the money and at the same time continue to hold on to his rights—the situation here is different. The priest may indeed be unable to retain his rights, but the Israelite still has not fulfilled the mitzvah. And as long as there is still a mitzvah, there is also still an obligation. By contrast, with respect to ordinary debt repayment, we saw that even Rava agrees that one can repay against the creditor’s will.

The explanation for this distinction may be formulated as follows. In ordinary debt repayment, the mitzvah to repay derives from the legal existence of the debt itself. The mitzvah is not the primary norm; it is a derivative norm, generated by the existence of the debt. By contrast, in priestly gifts the legal debt—even if we define it as a debt, as Ketzot HaHoshen argued—is itself derived from the existence of the mitzvah. In other words, the primary norm is the mitzvah, and the monetary obligation is the derivative norm. Therefore, in an ordinary debt, when the creditor waives it, even if that waiver is not treated as though he said, “I have received it,” the debt is erased, and there is consequently no longer any mitzvah—or duty—to repay it. But in priestly gifts, there can be no waiver of the mitzvah, and as long as the mitzvah remains, the obligation remains as well. A direct waiver of the debt will not help, because the debt derives from the mitzvah. And indeed, this is exactly what the author of Amrei Binah writes in Laws of the Redemption of the Firstborn Son, sec. 1.

This may underlie the dispute between the Rema and the Vilna Gaon in Yoreh De’ah 305. The Rema writes there that agency is ineffective for redeeming the firstborn son, and that a person must do it himself. The Vilna Gaon, in his gloss there, objects and says that redemption is nothing other than repayment of a debt—like the view of Ketzot HaHoshen cited above—and therefore repayment by another person is effective, even without the father’s authorization or knowledge, just as a debt may be repaid without the debtor’s knowledge.⁷

At first glance, the disagreement seems to reflect exactly what we have been saying. The Rema holds that priestly gifts are bodily mitzvot requiring an act of giving, and therefore the act cannot be done by an agent. Once the giving occurs, the debt may indeed disappear, but the existence or absence of the debt is the result of fulfillment or non-fulfillment of the mitzvah. A giving done without the father’s knowledge cannot count as his fulfillment of the mitzvah, and therefore the debt also does not disappear. As we saw, this is also the view of Netivot HaMishpat and those who follow him. The Vilna Gaon, by contrast, apparently understood this as an ordinary debt. Therefore, when another person repays it, the debt disappears, and the mitzvah is thereby fulfilled as well. In his view, as in that of Ketzot HaHoshen, the redemption of the firstborn son is simply a debt imposed by the Torah, and the mitzvah is merely to repay that debt; once the debt is repaid, the father has fulfilled the mitzvah. According to them, here too the mitzvah is a consequence of the debt.⁸

Three Additional Proofs

In later authorities we find three additional proofs in favor of the position of Tosafot, and against the Pri Hadash, that redemption of the firstborn son against the priest’s will is ineffective. All three are also cited in Rabbi Shimon Shkop’s novellae to Kiddushin, sec. 15, and in Hemdat Shelomo, Yoreh De’ah sec. 31:20; see also there in sec. 32.

1. Shulhan Arukh, Yoreh De’ah 305:19 rules—following the Rosh—that if a priest had a son who was a halal—that is, the offspring of a prohibited priestly union and therefore treated as a non-priest, hence subject to redemption—and the son died after thirty days, the father must set aside five sela’im and keep them for himself. This proves that the mitzvah is not merely repayment of a debt, for here there can be no debt payment at all, since a person cannot owe something to himself.

2. The Babylonian Talmud, Bekhorot 49b states that if a man who himself was never redeemed has only five sela’im, he redeems himself rather than his son, because his own mitzvah takes precedence over his mitzvah toward his son. Now if the redemption of the firstborn son were only a monetary debt, there would simply be two monetary debts, and there would be no room for a hierarchy in which his own comes before his son’s. The existence of such a hierarchy proves that these are mitzvot and not debts; from the standpoint of mitzvot, his own mitzvah precedes that of his son.

3. The third proof cited by the later authorities is more problematic. The law is that in a doubtful case of firstborn status, the father is not obligated to pay the priest, because the burden of proof rests on the one who seeks to extract money from another; see Babylonian Talmud, Bava Metzia 6b; Maimonides, Laws of First Fruits 11:19; and Shulhan Arukh, Yoreh De’ah 305:13, 20, and 25. At first glance, this seems to prove that the redemption is merely a debt, for from the standpoint of mitzvah one ought to be stringent in cases of doubt and nevertheless redeem the son. But the Shakh, at the end of the laws of interest, proves from this that even in debts that also contain an aspect of prohibition, we still rule that in monetary doubt one follows the lenient rule for the defendant—that is, the burden of proof rests on the one seeking to extract the money. Now if the redemption of the firstborn son were merely a monetary debt, this would prove nothing. Thus the Shakh’s words point specifically in the opposite direction: there is here a mitzvah, and not merely a debt. Yet his position itself is difficult, for if there is indeed a mitzvah in addition to the debt, why is the father not required to be stringent and redeem in a case of doubt? It therefore seems that this proof collapses under its own weight, and this law in fact supports the position of the Pri Hadash and Ketzot HaHoshen.⁹

A Difficulty in the Opposing Views

We saw that Ketzot HaHoshen tends toward the view that redemption of the firstborn son under coercion is effective. As noted, he grounds this in the disputed conception according to which the redemption is a debt. But we also saw that when a person redeems against the priest’s will, the priest does not acquire the money, yet the son is still redeemed. In other words, there is here redemption without conveyance to the priest. The view of Ketzot HaHoshen therefore implies that although the redemption is merely a debt, one can nevertheless discharge it without actually giving and conveying the money to the priest. The reason is that, just as in an ordinary debt, the obligation can disappear through waiver even if the creditor never acquired the money.

By contrast, Netivot HaMishpat holds that redemption is a mitzvah and not merely a debt. Yet in his view, unless the priest actually acquires the money, the mitzvah has not been fulfilled, because waiver does not amount to fulfillment of the mitzvah.

An interesting result thus emerges: precisely Netivot HaMishpat, who separates the monetary dimension from the mitzvah, insists on an actual monetary conveyance of the money in order for the mitzvah to be fulfilled; whereas precisely Ketzot HaHoshen, who sees this mitzvah as purely repayment of a monetary debt, agrees that no monetary conveyance is required for fulfillment of the mitzvah.

A Note on Defining the Mitzvah According to Ketzot HaHoshen

At first glance, it would follow from Ketzot HaHoshen that the mitzvah is one of giving, not of conveyance, for in his view the father fulfills his obligation even without conveyance.¹⁰ The author of Kehillot Ya’akov, Bava Metzia sec. 18, distinguishes between ordinary priestly gifts and the redemption of the firstborn son. Priestly gifts are the priests’ property even before they are given—in the case of terumot and ma’asrot, from the moment of separation—and all that the owner retains is the benefit of choosing which priest will receive them. But in the redemption of the firstborn son, as long as the money has not been given it belongs entirely to the father, for there is no act of separation here. Therefore, in that case a giving that includes actual conveyance to the priest is required.¹¹ And as we saw above, even according to Ketzot HaHoshen, although there is a debt upon the father, the actual coins certainly belong to him until they are given to the priest.

On our approach, however, this distinction is not correct. Even in the redemption of the firstborn son, the mitzvah is conveyance—namely, repayment of the debt. But just as in an ordinary debt, if the priest refuses to receive it, the debt is discharged even without the money actually being conveyed to him. This does not mean that all that is required is a bare physical act of giving without conveyance. It means rather that in such a situation halakha treats the matter as though conveyance occurred as well.

The proof is the parallel case of an ordinary debt. In a regular debt, no one would imagine that the obligation is merely to perform a physical act of offering the money to the creditor, rather than to convey the money to him. The obligation is to return the money to the creditor. And yet when the creditor refuses to accept the money, the payment is valid. The reason is not that the debtor’s duty is only to perform an act of giving, and not actually to repay; rather, if the creditor refuses to accept the money, he loses his rights, and this is treated as though the debtor had actually paid him, or as though the duty of repayment had lapsed.

This is also borne out by the wording of Ketzot HaHoshen itself. For when he discusses the view of Tosafot in Kiddushin, he speaks specifically of the mitzvah that there be an act of giving, and says that according to that view, giving against the priest’s will is not giving. This implies that according to the other medieval authorities who disagree with Tosafot—and who hold that giving against the priest’s will is effective—it is not enough to have a mere act of giving; what is required is an actual conveyance of the money, only that in this special case halakha treats that conveyance as accomplished. See also Minhat Hinukh, commandment 392:6, who understood Ketzot HaHoshen this way.

We again find essentially this idea in Mahaneh Ephraim, Laws of Acquisition and Gift sec. 7, where he discusses whether one person may redeem the son of another. At the beginning of his discussion he asks whether this should be understood in terms of agency or under the rule that one may confer a benefit on a person in his absence; he apparently assumes that the redeemer must perform an act of giving, and therefore if someone else does it on his behalf, that person should have to act as his agent for the act to be effective. But in the end he concludes that there is no need here for agency, or for the rule of conferring a benefit, because this is like repaying another person’s debt, which is effective even without the knowledge—and even against the will—of the one on whose behalf the payment is made. After all, once the other person paid the money, the debt has in fact been discharged, and therefore it no longer exists; the obligation to pay has lapsed. This clearly shows that there is no obligation to perform an act of giving as such, but simply to discharge the debt.

B. Giving Against the Father’s Will

Introduction

Until now we have dealt with a redemption carried out against the will of the receiving priest. We now turn to a redemption carried out against the will of the father. There are certainly grounds to make the validity of such a redemption depend on the nature of the redemption itself: is it a monetary debt or a mitzvah? If it is a debt, then even a coerced redemption should be effective, since we compel the father to pay his debt, and once the payment is made the debt is discharged. That indeed seems to follow from the words of Mahaneh Ephraim cited at the end of the previous section. But if this is a mitzvah, then we are dealing with fulfillment of a mitzvah under coercion, and that may be more problematic.

Redemption by Another Person: The View of the Ran and Mahaneh Ephraim

The main source for this discussion is Mahaneh Ephraim, Laws of Acquisition and Gift sec. 8. Already in sec. 7, cited above, Mahaneh Ephraim notes that on his approach one may redeem another man’s son; that is, one may redeem the child without the father’s knowledge, and even against the father’s will. We saw above that the Ran in Pesahim states this explicitly, distinguishing between redemption, where the other person is not acting as the father’s agent, and the separation of terumah, which does require agency—or the rule of conferring a benefit in absentia.

But all that is where some other person redeems the son on the father’s behalf, against the father’s will. What if the priest himself seizes the money by force from the father? In that case, can the father recover it from him?

Seizure by the Priest

From the Babylonian Talmud, Bava Metzia 6b, it appears at first glance that the law of a human firstborn and that of a firstborn animal are the same, and in both cases the rule in a doubtful case is that the burden of proof rests on the one who seeks to extract money. In the case of a firstborn animal, the Gemara there debates whether the priest may seize the animal from the owner, or whether if he seized it we remove it from him. Maimonides rules in Laws of Firstborn 5:3 that if the priest seized it, we do not take it from him. This is stated regarding a firstborn animal, but the straightforward assumption is that the same should apply to a human firstborn in a doubtful case—namely, where it is uncertain whether the child is subject to redemption.

Indeed, at the beginning of sec. 8, Mahaneh Ephraim assumes that in the case of a human firstborn too, if the priest attacks and seizes the money, we do not take it away from him. But on the basis of proofs from the sugya in Bekhorot 51b, he concludes that the law of a human firstborn is different. The explanation he proposes is exactly the explanation of Kehillot Ya’akov that we saw above: the legal status of the five sela’im for the redemption of a human firstborn differs from the legal status of other priestly gifts prior to their delivery. In other priestly gifts, from the moment they are set aside they become the priest’s property, and the owner retains only the benefit of choosing the recipient. But in the case of a human firstborn there is no stage of separation, and therefore the money is not the priest’s property until after it is given. For that reason, with the coins for redeeming a firstborn son, it is clear that if the priest seized them, they are taken away from him.

Of course, this conclusion is problematic in light of the views of Ketzot HaHoshen, Pri Hadash, and those who follow them. If this is indeed a mitzvah and not merely a monetary debt, then why should there not be an obligation to give the priest the money even in a case of doubt, in order to fulfill the mitzvah? It would seem that, at least on the plane of the laws of prohibition, the father is indeed obligated to be stringent and redeem his son even in a doubtful case. But the priest has no claim against the father, because on the monetary plane he has no rights in a doubtful case. For that reason, seizure of the money will also not help him.¹² But if this is a debt, why can the priest not engage in self-help and seize the money to satisfy that debt?

One might have said that all we saw above is only that another person may pay from his own pocket and thereby redeem the father’s son, even without the father’s knowledge. The ability to redeem against the father’s will exists only when the redeemer pays from his own money and redeems another person’s son. But one may not forcibly take the father’s money in order to redeem his son—except that a court could do so under the general power to compel fulfillment of commandments. If so, the priest himself is no exception, and he too would not be able to seize the five sela’im from the father by force.

A Priest Who Seizes the Money

The issue in the sugya of Bava Metzia and in the halakhic decisors concerns a case of doubt, and the discussion is whether there is an obligation of redemption and whether seizure is possible. Our principled discussion here concerns a case of certainty: a man does not want to redeem his son, and the question is whether another person may seize money from him and give it to the priest.

It seems that the conclusions in the two cases are related. If, in a case of certain obligation, a person cannot seize the money and effect the redemption, then all the more so in a case of doubt he cannot do so. Conversely, if in a case of doubt he can seize and redeem, then in a case of certainty it would seem obvious that he has the right to seize the money.

According to the view of Mahaneh Ephraim cited above, the conclusion is that in a doubtful case the priest cannot seize. But in a case of certainty there may still be room to discuss whether perhaps he would have such a right. From his words in sec. 7 it appears that one may do so only with one’s own money, not with the father’s money.

These matters also depend on whether the obligation to redeem is defined as a monetary debt—in which case seizure may perhaps be possible—or as a pure mitzvah—in which case seizure is certainly impossible—as discussed in the previous section.

C. Money and Commandment/Prohibition

Introduction

We have seen a dispute among the decisors about the relationship between mitzvah and transfer of ownership. Some mitzvot serve as the basis for a monetary claim—such as the redemption of the firstborn son and, according to some opinions, houses in walled cities—and some mitzvot are themselves derived from a legal condition, such as the repayment of a debt. The distinction between these two types bears on the question whether the rule “the burden of proof rests on the one who seeks to extract money from another” applies. That rule certainly applies where the debt is the foundation of the matter; but where the mitzvah is the foundation, one would seemingly have to repay even in a doubtful case, by the rule that doubts concerning prohibitions are treated stringently.

Moreover, we saw the view of the Shakh, according to which even where mitzvah and prohibition are both present at the same time—and neither is dependent on the other—the rule remains that the burden of proof rests on the party who seeks to extract the money.

We explained these distinctions by referring independently to the monetary dimension and the prohibitory dimension. That is, with respect to the monetary aspect we say that the burden of proof rests on the claimant, whereas with respect to the aspect of prohibition, we do not. Even in the Shakh’s view, it may be that he agrees that from the standpoint of prohibition there is an obligation to pay in a doubtful case, but he argues that the other side has no standing vis-à-vis the obligor, because from the standpoint of monetary law there is a rule that the burden of proof rests on the claimant.

This picture raises a number of questions that call for further thought and discussion. First, what is the relationship between prohibitions and monetary law in general? What is the real difference between the laws of Hoshen Mishpat, that is, legal obligations, and the rest of halakha? Are not all halakhic norms “commandments”? What is the relation between this question and the distinction in modern law between civil and criminal law?¹³ Why are there situations in which the legal obligation is the result, whereas in other situations it is the foundation and the mitzvah is the result? More generally, in every halakhic context in which two aspects appear, when do we treat one as derivative of the other, and which one, and when do we assign them equal and parallel standing?

Each of these questions deserves a full essay of its own. Here we will briefly address one particular aspect that bears on the last questions, and through them somewhat on the first ones as well.

Constitutive and Regulative Halakhot

We saw that a debt is first and foremost a legal reality. Out of the existence of that debt on the legal plane there arises a mitzvah to repay it—”repayment of a debt is a mitzvah.” One may generalize and say of all monetary law that before halakhic norms can be applied to it, there must exist a legal infrastructure that determines relations of ownership and transfer. For example, if the Torah prohibits theft, that means injury to monetary ownership. If so, the prohibition “You shall not steal” presupposes the existence of rules of ownership and transfer that precede it, and perhaps precede halakha in general.

Thus, in debt repayment—as in all monetary law—there is a unique halakhic dimension: the halakhic obligation applies to an existing legal reality. It does not constitute that legal reality, but regulates it. Of course, the Torah could have chosen not to recognize that legal reality, and could have abolished private ownership—for example, by adopting communist or nihilist positions, and the like—but it did not do so. In such cases, the Torah anchors systems that precede it by casting over them a halakhic-normative cloak. The Torah decided to reinforce and stabilize the rules of civil law by clothing them in a prohibition. From this point on, one who harms another’s property is not merely civilly wrongful, but also halakhically wrongful.

But this addition is not merely the addition of a parallel norm. The legal picture described thus far could have yielded a structure of simple parallelism: there is a legal rule of ownership, and there is a halakhic prohibition of theft, and the two do not depend on one another. But that does not seem to be the case. For where there is no ownership, there is also no prohibition of theft. In other words, the general legal rule determines the halakhic rule and serves as its condition. They do not exist side by side; one is conditioned by the other,¹⁴ and in this case the halakhic by the legal.

Rabbi Shimon Shkop’s Reasons

We have already mentioned elsewhere—see our essay on the weekly portion Lekh Lekha, 5767, and elsewhere—that this thesis is developed extensively by Rabbi Shimon Shkop in his book Sha’arei Yosher, throughout Gate 5. He offers several proofs for it, and resolves a number of halakhic difficulties on its basis. At the beginning of that gate he gives two reasons for our obligation to obey the legal system that precedes halakha:¹⁶

Just as the types of acquisition and the laws of ownership in property are juridical matters even without the warning “You shall not steal,” as we explained above—for it is impossible in any way to say that the fact that we ascribe an object to Reuven is because Shimon is warned by the Torah not to steal it from him. Rather the matter is the reverse: the prohibition of theft comes only after the issue has been determined by the laws that define the boundaries of ownership…

And although at first glance this seems puzzling—what necessity or obligation can there be upon a person to do something without a command and warning of the Torah?—if we examine the matter carefully, it becomes understandable. For even the obligation and necessity of serving God and fulfilling His will is itself an obligation and necessity grounded in the judgment of reason and moral recognition. So too monetary obligation and liability are juridical obligations, incurred through the mechanisms of acquisition…

Two central reasons emerge from Rabbi Shimon Shkop’s words:

1. The prohibition “You shall not steal” is a prohibition against injuring ownership. But for that prohibition to have meaning, we must first define the very concepts of ownership. Only after those concepts are defined can we say that one who violates them also transgresses the prohibition of theft—in addition to violating the legal norm.

2. The binding force of the obligation to obey the legal system exists even without a command. Rabbi Shimon Shkop’s reason is that even the binding force of the general obligation to serve God is not itself derived from a command—for the obligation to uphold any system cannot itself be just one norm within that same system.¹⁵

It is worth noticing that the second reason presupposes a further assumption about the relation between the two planes. In light of the first reason, one might have viewed the legal plane merely as the conceptual definition of ownership, and thus as background to the halakhic prohibition of theft. On that view, one who harms another’s property violates only one prohibition: the prohibition of theft. But Rabbi Shimon Shkop’s formulation indicates that this plane has independent normative significance as well. One who harms another’s property violates, in addition to the halakhic prohibition of theft, a legal prohibition too.¹⁶ The legal plane is not merely a conceptual definition of the boundaries of ownership; it also has its own normative force. For example, Rabbi Shimon Shkop himself argues that even according to those opinions that regard robbing a gentile as permitted by Torah law—that is, the violator has not transgressed the Torah prohibition of theft—there would still be a legal prohibition, since no one disputes that a gentile has ownership of his property, and legal ownership itself generates an independent prohibition, apart from “You shall not steal.”

Returning to the Picture from the Previous Sections

We can now understand why, with respect to debt repayment, the mitzvah is derived from the legal situation, so that in the absence of a legal debt there is no mitzvah of repayment. As we have seen, in such cases the Torah does not create an independent prohibition of its own, but rather backs and reinforces a legal prohibition that exists independently of halakha.¹⁷ In such a situation, we would indeed expect the dependence to run in that direction.

But this also gives us a clue for understanding why in other cases the situation is different. For example, in the redemption of the firstborn son, or in priestly gifts, we saw views according to which the debt depends on the mitzvah and not the reverse, and therefore cannot be waived. The reason is that in these cases it is the Torah that constituted the legal situation, rather than merely granting it ex post facto validation and force. Without the Torah’s command there would be no debt of the father to the priest, whether in the redemption of the firstborn son or in other priestly gifts. There the mitzvah is the primary foundation, and the debt is built upon it.

True, there can also be situations in which it is the Torah that constituted the debt, but once the debt has been constituted it serves as an independent legal infrastructure and is no longer conditioned by the mitzvah. As we saw, there are views regarding the redemption of the firstborn son according to which the debt can be waived, or repaid against the priest’s will, because once the debt has been discharged, the mitzvah has thereby been fulfilled as well. In such a case, at least according to those views, the Torah is not merely conferring force on a reality that exists independently of it; it is the Torah itself that created the debt. But all the Torah wants in such cases is that one person give money to another person, and once the money has been given, the mitzvah has no additional significance. Therefore, although the mitzvah is the primary foundation, at the normative level the mitzvah nevertheless depends on the debt and not the reverse. In such cases, all the Torah has done is add an element to the a priori legal system, and from that point onward it should be treated as an integral part of that system.

Constitutive and Regulative Commandments

We will conclude by sketching, very briefly, a broader extension of the distinction we have made here. There is a common conception in the Torah world according to which the Torah creates an alternative world to the real one. The ordinary, mundane world is not relevant to the Torah; some go so far as to say that it is nothing but a test for us, to see how far we can ignore it and live inside the alternative bubble of Torah.¹⁸

Others, however, would say that the Torah is not a substitute for reality, but rather its purpose is to direct and elevate reality.¹⁹ According to this approach, when the Torah deals with building a family unit, it does not constitute that notion out of nothing. The family is not a creation of the Torah; it exists independently of the Torah, and the Torah merely regulates it. This is somewhat analogous to what we saw above regarding the relation between halakha and the legal system that precedes it.

Of course, there is no need to take either position in an absolute and sweeping way. It is entirely possible that there are mitzvot which the Torah constitutes, and others which the Torah merely regulates.

One example, among many, may perhaps be found in the wording of the Torah in the portion of Shelach. In the section dealing with tzitzit, the Torah says as follows (Numbers 15:37-39):

The Lord spoke to Moses, saying: Speak to the children of Israel and tell them to make for themselves fringes on the corners of their garments throughout their generations, and to place on the fringe of each corner a thread of blue. And it shall be for you as fringes, and you shall look upon it and remember all the commandments of the Lord and do them, and not stray after your heart and after your eyes, after which you go astray.

After the Torah defines the concept of tzitzit, and together with the Oral Torah we understand it as a combination of blue and white threads tied in certain ways on the corners of the garment, it uses a rather puzzling formulation: “And it shall be for you as fringes.” This wording suggests that the concept of tzitzit already existed beforehand. The Torah does not constitute the concept of tzitzit from nothing; it merely instructs us how to make tzitzit. This will count for you as tzitzit, and not something else. In other words, the concept of tzitzit existed even without the Torah’s command, and the command merely regulates it rather than constituting it. What is that prior concept of tzitzit? Ibn Ezra explains that the term means a sign or marker, like the forelock of the head. If so, the Torah does not constitute the concept of tzitzit; it merely instructs us how proper tzitzit are to be made, and what will not count as proper tzitzit.

Thus, those who adopt a more closed approach will regard the concept of tzitzit as one that exists wholly within the halakhic sphere. By contrast, those with a more open approach will see it as a concept with broader, generally human meanings, which the Torah merely guides and shapes. It certainly exists outside the halakhic context as well—but this is not the place for a fuller discussion.

Footnotes