Lesson 41: Chukat

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).

---

With God’s help

Concepts

• Two kinds of considerations connected to halakhic territory: depriving a person of the ability to transfer ownership and to consecrate outside his own territory, and depriving him of the ability to prohibit and disqualify outside his own territory.
• Two ways prohibitions take effect: those in which the person acts but the Torah applies the prohibition, and those in which the person himself applies it.
• A discourse of rights and a discourse of obligations: does the Torah also contain a discourse of rights?
• Two kinds of ownerlessness: absence of ownership, and ownership by the collective.

Summary

In this week’s article we discuss the disqualification of the red heifer, and ask whether someone other than the owner can also disqualify his fellow’s heifer. From there we arrive at the broader halakhic principle, “A person cannot prohibit something that is not his.” The source of this principle lies in the laws of forbidden mixtures, but the Sages expand it to the entire halakhic realm.

We examine various disputes concerning this principle and identify limitations on its scope. Some apply it only to prohibitions or disqualifications in which human intention is involved, while others tie it to kinds of disqualification that a person imposes, as opposed to those that the Torah imposes. The overall picture is that, in principle, so long as the matter depends on the person doing the disqualifying, one person cannot disqualify another person’s object.

We then ask why this is so. In doing so, we return to a discussion we conducted in our article on the portion of Acharei-Mot-Kedoshim, concerning the concept of “halakhic territory.” Our claim is that the inability to disqualify or prohibit another person’s object stems from a meta-halakhic principle, not from halakha (Jewish law) itself. A person cannot act or exert influence in areas beyond his own territory. Most likely, this principle requires no source text at all; it is grounded in reason.

We conclude the discussion with additional examples of the application of territorial considerations, expanding on examples already given in that earlier article. We also refer to our article on the portion of Lekh-Lekha, where we likewise discussed the significance of crossing the boundary of halakhic territory, though we did not use that term there, and connected it to the obligation to bring a guilt offering.

At the end we briefly address the question whether the Torah contains a discourse of rights or only a discourse of obligations. Our main claim is that halakha does indeed deal primarily with our obligations, but that does not mean rights are absent from the Torah altogether. There are limits to the validity of the discourse of obligations; therefore, even if balancing obligations would permit a certain step, and perhaps even require it, another person’s rights override the ordinary halakhic calculus and determine, on the meta-halakhic plane, that one must not act in accordance with the usual directives of halakha.

On the Disqualification of the Red Heifer

A Look at the Rule “A Person Cannot Prohibit Something That Is Not His”: More on “Halakhic Territory”

A. The Disqualification of the Red Heifer

Introduction

In our weekly portion, the Torah commands the purification of those rendered impure by contact with the dead. The core of that purification is the ashes of the red heifer and the waters of purification. The matter of the red heifer is obscure, and the Sages spoke of it in especially far-reaching terms. Even its classification and characterization—whether or not it falls under the category of consecrated offerings—are unclear.¹ In this week’s article we will address the question of how the heifer becomes disqualified.

The point of departure is the command in Numbers 19:1-2:

The Lord spoke to Moses and to Aaron, saying: This is the statute of the Torah that the Lord has commanded, saying: Speak to the children of Israel, and let them bring you a red heifer, flawless, in which there is no defect, upon which no yoke has come.

One of the basic conditions is that no yoke be placed upon the heifer. The conclusion is that if work was done with it, it is disqualified from serving as a red heifer. But what is the law if the one who worked with it was not its owner, but someone else? Can he disqualify the heifer?

Can Another Person’s Labor Disqualify the Heifer?²

The Babylonian Talmud, Bava Metzia 30a, discusses the disqualification of the red heifer and concludes that no direct manual act is required; it is enough that a yoke be placed upon it and that the owner consent:

For we learned in the Mishnah: If a bird rested on it, it is fit; if a male mounted it, it is disqualified. What is the reason? In accordance with Rav Pappa. Rav Pappa said: Had the verse been written and read in one form, I would have said that even something that happened on its own would suffice. Had it been written and read in another form, I would have said that only if he himself worked with it would it be disqualified. Now that it is written in one form and read in another, we require a case analogous to deliberate labor: just as actual labor is something the owner wants, so too any labor that disqualifies must be something the owner wants.

That is, even a bird’s coming onto it would disqualify it, provided that the owner is pleased with this.

Tosafot, in the passage beginning “so too labor,” ad loc., raises a difficulty from the Babylonian Talmud, Bava Kamma 56a:

If you ask: with regard to one who performs labor with a purification heifer, for it says in the chapter HaKones that he is liable in the heavenly court—why is it disqualified? Surely the owners do not want this.

Tosafot is troubled as to why one who performs labor with another person’s purification heifer is considered a damager—admittedly in a way that is not outwardly visible, and therefore liable only in the heavenly court—if the heifer is not disqualified without the owner’s consent. Tosafot offers two answers:

One may answer that the case is where he was a partner in it; alternatively, we do not require the consent of the owner, only the consent of the one performing the labor.

The first answer construes the statement in Bava Kamma as dealing with partners, and a partner can disqualify the heifer through his own consent. The second answer holds that even a stranger can disqualify the heifer, though he is not its owner. The consent required is that of the one performing the labor, not that of the owner. This is also explained in Tosafot, in the passage beginning “one who performs,” on Babylonian Talmud, Gittin 53a. By contrast, Kesef Mishneh on Maimonides, Laws of the Susceptibility of Food to Impurity 12:1, writes regarding the rendering of seeds susceptible to food impurity—see our earlier article—that it stands to reason that specifically the owner’s will is required.

With respect to the red heifer, Maimonides is terse and does not spell out his opinion. This is what he writes in Laws of the Red Heifer 1:7:

The red heifer is stricter than consecrated offerings, for labor disqualifies it, as it is said, “upon which no yoke has come.” … If labor was done with it on its own, or a yoke came upon it on its own, if this was to his liking, it is disqualified, as it is said, “with which no labor was done,” teaching that if labor is done with it willingly, it is as though one actually worked with it. Therefore, if a bird rested on it, it is fit; if a male mounted it, it is disqualified. Needless to say, if it became pregnant, it is disqualified. If he brought it into the herd and it threshed on its own, it is fit; if he brought it in so that it would nurse and thresh, it is disqualified, since he acted willingly. And so too in all similar cases.

Maimonides does not mention the case of another person placing a yoke upon it, and one might therefore think that another person cannot disqualify the heifer at all. Yet the heifer is never disqualified without the owner’s consent; therefore it is reasonable that if the owner consents, another person can also disqualify the heifer. But what about labor done by another person without the owner’s consent? Would Maimonides agree even here that the heifer is disqualified, as in the second answer of Tosafot?

At first glance, one can prove that Maimonides holds that in the case of the red heifer, labor done by another person is effective to disqualify it. In Laws of One Who Injures Person or Property 7:4 he rules:

Priests who rendered a sacrifice piggul intentionally are liable to pay; if unintentionally, they are exempt. So too one who performs labor with a purification heifer or with the waters of purification: if intentionally, he is liable to pay; if unintentionally, he is exempt.

Now, if one who performed labor with another person’s purification heifer truly could not disqualify it, Maimonides should have limited this law to a heifer jointly owned, as in Tosafot’s first answer. Since Maimonides states the law without qualification, it is clear that he means any person. It follows that he rules that any person can disqualify another’s heifer, and the consent of the one performing the labor is enough.

Minchat Chinukh, commandment 397, subsection 6, proves this specifically from Maggid Mishneh on that passage, which explains that this liability is not strict law—after all, it is damage that is not outwardly visible—but rather a penalty, so that not everyone will go about rendering another person’s pure items impure or disqualifying another person’s heifers. Now, if this law dealt only with partners, there would be no place for such a penalty, since the partner who disqualifies the heifer also causes loss to himself, and such a case is therefore unlikely. The penalty would be unnecessary. But in truth none of this is needed; the primary proof appears to lie in the very formulation of the law.

Minchat Chinukh there also notes that this certainly cannot refer to a case where the owners consent, for in such a situation the actor is surely not considered a damager; rather, the owners damaged themselves.³

A Difficulty Regarding the Overall Picture

This entire discussion, however, is conducted on the specific plane of intentional disqualification in the red heifer. The disputed question is whether the required consent must be that of the owner, or whether the consent of a stranger is enough to disqualify the heifer. But there is an additional, more general aspect here: a person cannot prohibit something that is not his, so how can one person disqualify another person’s heifer? We should emphasize that this question exists according to both answers of Tosafot. Even the answer that speaks of partners resorts to that only because of the specific law of consent in the red heifer, and not because of the general rule that a person cannot prohibit what is not his. For some reason, that aspect does not arise at all in the discussion.

B. A Person Cannot Prohibit Something That Is Not His

The Rule That a Person Cannot Prohibit Something That Is Not His

The principle that a person cannot prohibit something that is not his is discussed in several talmudic passages. The fundamental source is two mishnayot in Mishnah, Kilayim 7:4-5:

One who drapes his vine over another person’s grain thereby renders it forbidden and is liable for the resulting loss. Rabbi Yosei and Rabbi Shimon say: A person cannot sanctify something that is not his.⁴

Rabbi Yosei said: An incident occurred in which someone sowed his vineyard during the sabbatical year, and the case came before Rabbi Akiva, who said: A person cannot sanctify something that is not his.

Fields in the sabbatical year are ownerless, and therefore one who sows forbidden mixtures in them is considered as sowing in another person’s vineyard, and it does not become forbidden. As a matter of halakhic ruling, Maimonides, Laws of Forbidden Mixtures 5:8—and similarly Shulchan Arukh, Yoreh De’ah 296:4—rules in accordance with Rabbi Yosei and Rabbi Shimon:

Whether one planted or merely maintained the growth: once he saw forbidden mixtures sprouting in his vineyard and left them there, he rendered them forbidden. But a person cannot sanctify something that is not his. Therefore, if one draped his vine over another person’s grain, his own vine becomes forbidden, but the grain does not. If he draped another person’s vine over his own grain, the grain becomes forbidden, but the other person’s vine does not. If he draped another person’s vine over another person’s grain, neither becomes forbidden. For this reason, one who sowed his vineyard during the sabbatical year did not render it forbidden.

The view of the first tanna is based on an inclusion of another person’s vineyard from the verse in Deuteronomy 22:9; see Sifrei, Deuteronomy, piska 230, on the words “lest it become sanctified,” and Jerusalem Talmud, Kilayim 7:3.⁵ Rabbi Yosei and Rabbi Shimon, by contrast, hold that the verse says “your vineyard”—and not another person’s vineyard.

In any case, it appears from here that this is a principle unique specifically to forbidden mixtures, and even the wording is that a person does not “sanctify” something that is not his. Yet this principle seems to undergo expansion, and ultimately it is accepted as a general principle applying to all prohibitions in halakha. This indeed seems to be reflected in the standard formulation: a person cannot “prohibit” something that is not his.⁶ The rule is in fact applied in the Talmud to idolatry—see Babylonian Talmud, Avodah Zarah 44b, 53b, and 54b, and Hullin 41a—to the payment to a prostitute and the exchange price of a dog in the context of consecrated offerings, Babylonian Talmud, Pesahim 90a; to set-aside and worshipped animals, Babylonian Talmud, Zevahim 114a; and by the medieval and later authorities to additional prohibitions as well.

Limitations on This Rule

Already the medieval authorities note that there are several halakhic contexts in which a person does seem to succeed in prohibiting something that is not his. For example, Tosafot on the words “a person cannot,” Babylonian Talmud, Yevamot 83b, asks:

If you ask: how is this different from one who puts carrion or forbidden fat into another person’s dish, which thereby becomes prohibited?

If a person puts carrion or forbidden fat into another person’s dish, the dish becomes forbidden. The same is true of one who mixes another person’s meat with milk, or one who kills another person’s animal in a manner that renders it unfit for consumption, and so on. At first glance, such cases contradict the rule that a person cannot prohibit something that is not his.

Bartenura on that Mishnah resolves the issue as follows:

“A person cannot sanctify something that is not his”—and this is unlike the other prohibitions of the Torah, such as one who places forbidden fat or blood into another person’s pot, or who cooks another person’s meat with milk, and thereby prohibits them. Forbidden mixtures are different, because with respect to them it is written, “You shall not sow your vineyard with mixed seed,” implying: your vineyard, and not another person’s vineyard. The Rabbis say: from “You shall not sow your vineyard” I know only your own vineyard; from where do I know another person’s vineyard? The verse therefore says “mixed seed” in any case. And the halakha does not follow Rabbi Yosei, Rabbi Shimon, or Rabbi Akiva.

It emerges from his words that the rule that a person cannot prohibit something that is not his is valid only with respect to forbidden mixtures, since it is derived from scriptural exegesis concerning forbidden mixtures. This implies that for all other prohibitions no such rule exists. Yet these words are extremely puzzling, since, as we saw above, the Sages applied this rule in other halakhic contexts as well.

Tosafot there explains the basic distinction between these cases as follows:

Rabbi Isaac says that this rule applies only where the matter depends on intention, such as one who bows to another person’s animal, as in the second chapter of Hullin 40a; there there is even an opinion that, although he performed an act such as slaughtering it, he did not prohibit it. The prohibition of forbidden mixtures likewise depends on intention, as is stated in Mishnah, Kilayim 5:6, regarding one who sees vegetables and says, “When I reach them, I will gather them”: even if they increased two hundredfold, they are permitted. But if he says, “When I return, I will gather them,” they are prohibited. For this reason Rabbenu Tam explains in Bava Kamma 100a that the case “he despaired of it and did not fence it” means specifically that he despaired. But if he did not despair, and was engaged in fencing it and simply did not manage to finish fencing before it increased two hundredfold, he did not render it forbidden.

Tosafot assumes that this rule applies throughout the halakhic realm, not only to forbidden mixtures. It is indeed learned from forbidden mixtures, but from there it is extended to all of halakha. The distinction from cases in which a person does succeed in prohibiting another person’s object is explained by Tosafot as follows: the rule that a person cannot prohibit what is not his applies only to prohibitions that depend on intention. For example, one who bows to another person’s animal, where the prohibition depends on the intention behind the bowing—whether it was done for idolatry or not. But in prohibitions that depend only on facts, once the relevant factual basis exists, the prohibition takes effect even if the person causing it is not the owner. Tosafot then adds that the prohibition of forbidden mixtures also depends on intention and not only on facts, and it brings two proofs for that.

Application to the Red Heifer

According to this, it seems clear that with respect to the disqualification of the red heifer as well—where the matter depends on intention, that is, consent, and not only on factual data, namely whether work was done with it or a yoke was placed upon it—another person cannot prohibit it. Minchat Chinukh himself notes this there. Above we pointed out that the entire discussion was conducted in terms of the specific principle of the consent required to disqualify the red heifer, and not in terms of the general rule that a person cannot prohibit what is not his. Now, however, we see that these two contexts are actually linked, because the very fact that consent is required is what enables us to apply the rule that a person cannot prohibit what is not his. Precisely for that reason, it is specifically the owner’s intention that is required, and not the intention of the one doing the work.

This explains the view of Tosafot that another person’s intention—anyone other than the owner—indeed does not help. But as we saw, others disagree with this ruling, namely the straightforward reading of Maimonides and one view in Tosafot, and hold that for the red heifer the consent of the one doing the work is sufficient, and not specifically that of the owner. Here the problem is twofold:

1. Why, on their view, is the owner’s consent not required by force of the rule that a person cannot prohibit what is not his? If the disqualification depends on intention and not only on facts, then only the owner should be able to disqualify it.
2. Even if one separates the two principles—the local one, whose consent is needed, and the general one, that a person cannot prohibit what is not his—it is still unclear why the general rule does not come and validate the heifer despite the fact that another person used it. Even if the laws of consent would have led us to disqualify the heifer, the disqualification should still be cancelled by the rule that a person cannot prohibit what is not his.

To be sure, on the basis of Bartenura’s view cited above, one could understand this position by saying that the rule that a person cannot prohibit what is not his applies only to forbidden mixtures. But as we saw, that approach is problematic, since we find additional applications of the rule throughout the Torah.

A Proposed Solution

It is possible that the solution lies in understanding the role of intention in the disqualification of the red heifer. At first glance, it seems that the heifer is disqualified because of the labor done with it or the yoke placed upon it, while the intention—namely consent—is only a condition. This impression is strengthened by the fact that mere consent suffices, and no fully formed act of intention is required. But in our earlier article we saw that in the red heifer, as in impurity and consecrated items, intention has the status of an act. According to that, it is possible that in the red heifer the intention itself effects the disqualification, rather than merely serving as a condition for it.⁷

If so, Tosafot’s principle—that the rule that a person cannot prohibit what is not his applies only in disqualifications that depend on intention—may pertain only where intention is merely a condition for the disqualification. In such a case, only the owner’s intention can satisfy the condition for the application of the disqualification. But where the intention functions like an act that disqualifies the object—that is, where the intention itself disqualifies, and is not merely a condition for the disqualification—there the intention of others may also be effective. That would be exactly like a case in which the act is what disqualifies, as when forbidden fat is mixed into meat, where of course even an act done by others is effective.

It should be noted that one might have explained the matter in precisely the opposite way: in idolatry and the like, the intention itself is what disqualifies and prohibits. The act is needed only so that the intention becomes idolatry in action, but it is the intention that the act was done for idolatry that does the prohibiting. Therefore there a person does not prohibit what is not his. But in the red heifer, intention is only a condition for disqualification, while what actually disqualifies is the labor and the placing of the yoke upon it. In such a case, another person too can disqualify another person’s object. In other words, if the disqualification is effected by an act, it is effective, since the act is an objective fact. By contrast, another person’s intention is ineffective, and therefore where intention is what disqualifies, only the owner can disqualify his own object. A similar possibility will appear below in the next chapter in connection with Maimonides’ view.

In Kovetz He’arot, section 76, subsection 4, a distinction is suggested between prohibitions that are brought about by the person himself, and prohibitions that take effect automatically after a person’s act. If the prohibition is made by the person, this can occur only through the act of the owner. But in prohibitions that are effected from Heaven, where the human act is only a condition, a person can prohibit even another person’s object. In a certain respect this is similar to the distinction in Tosafot on Yevamot cited above, though it is certainly not identical.

Evidence from Maimonides’ View

We saw above that Maimonides’ language implies that in the case of the purification heifer, one may prohibit something that is not his. On the other hand, in Laws of One Who Injures Person or Property 7:6—two halakhot after the one we cited above about the purification heifer—Maimonides writes:

One who pours another person’s wine as a libation to idolatry does not thereby prohibit the wine, for no Jew can prohibit something that is not his. But if he had a share in it, or if he was an apostate, who is like a gentile, or if he was warned and accepted the warning, so that he is regarded as an apostate, then he does prohibit the wine and is liable to pay.

Maimonides thus appears to say explicitly that with regard to wine libation, a person cannot prohibit another person’s property. The same rule appears in exactly this form in Laws of Slaughtering 2:21; see also the beginning of the next chapter:

If two people hold a knife and slaughter, and one intends it for a purpose that renders slaughter forbidden, while the second had no intention at all—or even intended it for a purpose that is permitted—then it is invalid. Likewise, if they slaughtered one after the other, and one of them intended it for a disqualifying purpose, he disqualifies it. In what case is this said? When he has a share in it. But if he has no share in it, it is not prohibited, for no Jew can prohibit something that is not his; his intention is only to cause the owner pain.

Here too it is explained explicitly that a person prohibits what is not his only if he is a partner in it.⁸

The question therefore arises: why is the situation different for the purification heifer? There, as Minchat Chinukh notes, Maimonides does not limit the matter specifically to a partner. Yet in both cases the disqualification depends on intention. It would seem, then, that the purification heifer is an exceptional case. Our proposal above—that in this case the intention counts as an act—explains this very well. Perhaps one can explain it even according to the other two possibilities, but that would require further analysis of the nature of the disqualification in idolatry, libation, and the like, and this is not the place.

C. Can a Person Prohibit What Is Not His by Means of an Act?

Introduction

Until this point we have assumed the approach of Tosafot, which distinguishes between disqualifications rooted in facts and those rooted in intentions. At the end of the previous chapter we raised two further ways of distinguishing between different prohibitions. Is there a difference between a case in which the prohibitor acts through a concrete deed and a case in which he tries to prohibit through intention alone? That is the subject of the present chapter.

The Rule in the Context of Slaughter

In Laws of Slaughtering 2:21, Maimonides rules that a person does not prohibit another person’s animal; see the quotation at the end of the previous chapter. At the end of his words he adds a reason:

For no Jew can prohibit something that is not his; his intention is only to cause the owner pain.

Maimonides finds it necessary to stress that specifically a Jew cannot prohibit something that is not his. One should note that this reason also indicates that the reason a person does not prohibit another person’s property is only that he does not actually intend to prohibit it. This implies that there is no principled barrier to doing so; if he truly did intend to prohibit it, he could. Therefore a gentile can indeed prohibit a Jew’s property.

And in fact Lechem Mishneh there writes:

“For no Jew can prohibit” and so forth—but a gentile does prohibit, as explained there, where the baraita was established as dealing with two people holding the knife, one a Jew and the other an apostate.

Oneg Yom Tov, section 59, infers from here:

It is thus clear that he explains Maimonides to mean that a person can prohibit what is not his through an act; only in the case of a Jew do we say that his intention is merely to cause pain, whereas with idolaters and Jewish apostates we do prohibit. Such is also the view of Kesef Mishneh in Laws of Idolatry 8, in explaining Maimonides, and likewise in Beit Yosef, section 4, in Maimonides’ view.

That is, in principle, in such a case one can indeed prohibit another person’s property—were it not for the consideration that he is not really intending prohibition. How does this fit with the rule that a person cannot prohibit what is not his? Oneg Yom Tov explains that the reason is that here the other person’s act is a real act and not merely speech or thought. By means of an act, a person can prohibit what is not his. The rule that a person cannot prohibit what is not his was stated only when the prohibitor does not act, but seeks to prohibit through speech or thought.

In fact there is an amoraic dispute on this subject—whether by means of an act a person can prohibit what is not his—in Babylonian Talmud, Hullin 41a, and Maimonides ruled in accordance with the views that make the matter depend on an act. So too Kesef Mishneh on Laws of Idolatry 8:1.

However, Oneg Yom Tov disagrees with Kesef Mishneh and Lechem Mishneh on this point, and in his view Maimonides holds that the rule that a person cannot prohibit what is not his applies even when an act is involved.⁹ See there, where he adduces several proofs on this issue, reconciles all the talmudic passages, and elaborates on distinctions among different medieval authorities concerning this rule. In any event, we learn that there is a dispute among the medieval authorities, and also among the commentators on Maimonides, whether one can prohibit something that is not his by means of an act.

Libation Wine

One of the main proofs for those who hold that one can prohibit by means of an act comes from the very law of libation wine. According to the opposing view, there could seemingly be no such thing as libation wine in the world, since the pouring of the wine is done by a gentile while the ownership is that of a Jew—otherwise there would be no significance to the whole discussion of prohibition. We are therefore compelled to conclude that one can prohibit another person’s property by means of an act.

Oneg Yom Tov there, in the passage beginning “and I have seen, and according to Nahmanides,” explains that in the case of libation wine they were more stringent, and there the Torah itself introduced the rule that another person can prohibit another person’s property. According to the line we suggested at the end of the previous chapter, this could also be resolved in several additional ways—the question of what does the prohibiting, the intention or the act, and whether the prohibition is effected by the act or whether the act merely causes a prohibition that the Torah imposes—but this is not the place to elaborate.

Why Is There a Difference Between Act and Thought?

Why indeed should there be a difference between a case in which a person prohibits another person’s property through an act and one in which he does so through thought? Presumably the difference lies in the considerations we saw above: when the action is an act, the prohibition is a function of factual circumstances, of which the prohibiting act is one part. Put differently, and along lines similar to the distinction in Kovetz He’arot mentioned above, in such a case it is the Torah, not the other person, that prohibits. The other person merely creates the circumstances for the prohibition. By contrast, when the prohibition is effected by thought, then the prohibitor is the person, not the Torah, and a person has no power to prohibit another person’s property.

Thus all of these explanations rest on a common underlying assumption: a person has no ability to prohibit another person’s property, and the exceptional cases are only those in which the prohibitor is not the person but the Torah.

Summary

The picture, then, is as follows. According to those opinions that hold a person cannot prohibit what is not his even through an act, it is obviously the case, categorically, that one person cannot disqualify or prohibit another person’s property in any way. Sha’ar HaMelekh, Laws of Lulav 8:1, in the passage beginning “and know further,” writes that although there are opinions that a person can prohibit what is not his through an act, such as Nahmanides, Rashi, and others, at least according to some of them this is only a rabbinic rule. That is, even according to these views there is no genuine Torah-level possibility of prohibiting what is not one’s own.

This still leaves the opinions that maintain that, at the Torah level, one can prohibit another person’s property through an act. But as we saw, even that is only because in these situations it is not he who prohibits, but the Torah.

The conclusion is that, according to all views, there is no essential possibility of prohibiting what is not one’s own, whether through thought or through action. In the next chapter we will deal with the explanation of this principle.

D. The Rule as an Expression of the Demarcation of Halakhic Territory

Introduction

In our article on the portion of Acharei-Mot-Kedoshim, 5767, we dealt with the topic of “halakhic territory.” We pointed out there that there is a defined domain within which a person’s actions and decisions have significance, and beyond it, even if his considerations and decisions are valid, he does not have the power to act on them. We offered several examples, both from the mitzvah (commandment) of honoring father and mother and from monetary law and interpersonal law more generally. As a rule, in monetary law our claim was that a person has no power, by virtue of his own halakhic considerations, to decide with respect to another person’s money.

In this chapter we will suggest that the rule that a person cannot prohibit what is not his is likewise based on this idea, and we will present several additional examples and illustrations of the meaning of the limitation imposed by halakhic territory.

Explaining the Rule on the Basis of “Halakhic Territory”

As we have seen, a person has no essential ability to affect what belongs to another. Even where everything required by halakha has been done in order to prohibit the object, it nevertheless does not become prohibited—at least in cases where the prohibitor is the other person and not the Torah. It thus seems as though halakha ceases to operate when it reaches beyond the boundaries of the individual himself. A person’s ability to act and exert halakhic effect exists only within his own halakhic territory. Beyond that domain, halakha, as it were, suspends itself and neutralizes its various rules so that he cannot operate in a sphere external to him. To a certain extent, this picture undermines the famous parable of a person who drills a hole in his own compartment on a ship—or at least teaches us that a person cannot drill a hole in another person’s compartment.

Can a Person Prohibit Something That Is Not Under His Control?

A well-known rule in halakha is that just as a person cannot consecrate something that is not his, so too he cannot consecrate something that is not under his control. The source is a statement of Rabbi Yohanan; see Babylonian Talmud, Bava Kamma 68b and parallels:

He said to him: Here what are we dealing with? A case where the owners consecrated it while it was in the thief’s possession. But can it be consecrated? Did Rabbi Yohanan not say: If one stole an item and the owners have not despaired, neither of them can consecrate it—this one because it is not his, and that one because it is not under his control!

A person cannot effect consecration with property that is not under his control, even though before despair, in terms of ownership, the property is still his; it is only not under his control. In order to consecrate an object, halakha requires that it be both his and under his control. What about the rule that a person cannot prohibit what is not his? Does it also have such an extension? Is there any connection at all between the two discussions?

Oneg Yom Tov, in another responsum, section 82, deals with this question. The responsum opens with the following passage:

Question: One may doubt, regarding the rule we maintain in the case of idolatry that a person cannot prohibit what is not his, whether he can prohibit something that is not under his control. For example, if someone stole a brick from another and acquired liability for it as a robber, and the victim then came and bowed to it while it was still in the robber’s house—does it become prohibited or not?

Answer: At first glance it appears to me that specifically with regard to something that is not his do we compare prohibition to consecration: just as a person cannot consecrate something that is not his, so too he cannot prohibit something that is not his. But with regard to something that is not under his control, he can prohibit it even though he cannot consecrate it. For something that is not his is worse than something that is not under his control: with respect to something that is not his, everyone agrees that a person cannot consecrate it, whereas with respect to something that is not under his control there are tannaitic opinions that he can consecrate it, as we say in Bava Kamma 69 that the discreet ones hold that one can consecrate something that is not under his control. Since something not under his control is not worse than something not his, one can say that even according to our ruling in consecration, following Rabbi Yohanan, that when one stole and the owners have not despaired neither of them can consecrate—this one because it is not his and that one because it is not under his control—that is specifically with regard to consecration, because Scripture says: “When a man consecrates his house as holy”; just as his house is under his control, so too everything must be under his control. But with regard to prohibition, he can prohibit anywhere that it is his, even if it is not under his control.

The very comparison is noteworthy. What does the ability to consecrate and transfer ownership have to do with the ability to prohibit? The ability to sell or consecrate stems from control, or the lack of it, which limits the reach of one’s property control. A person must have proprietary control over an object in order to perform certain legal acts with respect to it. The Talmud here adds that actual control is itself a kind of dominion, and one whose object is his but not under his control does not have sufficient mastery over the object in question. No scriptural source is cited for this principle, because it probably follows from simple reason. By contrast, the rule that a person cannot prohibit what is not his is a halakhic rule derived from a verse, and on the face of it it has no connection to the principle governing the ability to consecrate.

Two Types of Halakhic Territory

Yet Oneg Yom Tov sees room to compare these two contexts. He apparently understands the rule that a person cannot prohibit what is not his as another example of a limitation on the reach of human control. As we saw, the rule is learned with respect to forbidden mixtures, but is expanded by the Sages to the whole range of halakha. Evidently the Sages too understood that there is a general principle here, not a narrow novelty limited to forbidden mixtures.

Even so, in his responsum Oneg Yom Tov immediately separates the two contexts. With regard to consecration, there is indeed a limitation even when the object is not under one’s control; but with regard to the rule that a person cannot prohibit what is not his, there is no such limitation. Here only ownership matters, not control. He does bring proof from the fact that, regarding something not under one’s control, there is a dispute whether a person can consecrate it. But that is only an indication of a difference; as a matter of halakhic ruling we generally hold that a person does not consecrate even something not under his control. So why is it important that there are dissenting opinions? And why, with regard to the rule that a person cannot prohibit what is not his, does this distinction remain even in the final halakha?

To understand this, let us consider a case in which a person prohibits something that is not under his control. For example, a person bows to his own object while it is in the possession of a robber who stole it from him. Here we are speaking about an act that a person performs with respect to his own property. The problem is not lack of control, since lack of control pertains only to the ability to consecrate and transfer ownership—that is, to perform legal acts. In the rule that a person cannot prohibit what is not his, what is at issue is lack of halakhic ability, stemming from halakha’s refusal to give a person control or power to damage what belongs to another. Here, where it is his own object located in another’s possession, and not even lawfully so, there is no reason at all to prevent that ability. Here ownership, not control, is obviously what matters.

Thus the basic similarity that Oneg Yom Tov sees between these two contexts really teaches us that the rule that a person cannot prohibit what is not his also concerns halakhic territory. The difference stems from a distinction between two kinds of territorial considerations in halakha: in transfer of ownership and consecration, the territory is the objective range of control—how far a person actually controls an object—whereas with regard to the rule that a person cannot prohibit what is not his, what matters is ownership, because the territory here is moral: halakha is unwilling to allow a person to act upon, and certainly to damage, another person’s property.

The Rule in the Context of Ownerless Property

In the second half of responsum 82, Oneg Yom Tov discusses the rule as it applies to ownerless property. Does the rule that a person cannot prohibit what is not his also apply to an object that belongs to no one?

At first glance, this discussion depends on the distinction we made above. If the issue is acting beyond what is one’s own, then ownerless property is likewise not his. But if the issue is that the Torah deprives a person of the power to damage and act upon what belongs to another, then here it does not belong to another, and therefore there would seem to be no obstacle to applying the Torah’s ordinary rules, according to which if a person bows to something he thereby prohibits it.

Indeed, Oneg Yom Tov opens the discussion by stating that with regard to consecration, a person certainly cannot consecrate ownerless property:

It still remains to clarify whether one can prohibit ownerless property or not. Now with regard to consecration, a person certainly cannot consecrate ownerless property. Although in Nedarim 34 we say: Rava said, if there lay before him a loaf of ownerless property and he said, “This loaf is consecrated,” then if he took it to eat he has committed sacrilege—and Ran and Rosh explained that it was within his four cubits, and since he could acquire it he could consecrate it—from this it appears that even ownerless property can sometimes be consecrated. But there the case is one in which he can acquire it, because it is within his four cubits. According to the view of Rabbi Eliezer of Metz cited there by Rosh, the case is one in which no one else can acquire it, only he, and therefore he can consecrate it. But ownerless property that is not lying within his four cubits, or that is within his four cubits but someone else is also standing within those same four cubits so that he cannot acquire it, he cannot consecrate.

Thus Oneg Yom Tov assumes that although consecration certainly does not work with ownerless property, with regard to the rule that a person cannot prohibit what is not his there is room for discussion—and this is precisely our point. He then formulates the doubt with respect to that rule:

But with regard to prohibiting ownerless property, there is considerable room for doubt whether he can prohibit it. For one can distinguish between consecration and prohibition: with consecration, we require that the object truly be his, as Scripture says, “When a man consecrates his house.” But for prohibition, we do not require that it truly be his, since even another person can prohibit it; only where the owners object does the prohibition not take effect. But where there is no objection from owners, as in the case of ownerless property, any person can prohibit it. This also explains why we maintain that although a person cannot prohibit what is not his, nevertheless if he performed an act upon it he prohibited it, as stated in Hullin 41. But with respect to consecration, where something is not his, certainly no act helps.

Here he already writes explicitly that the distinction between consecration and the rule that a person cannot prohibit what is not his is exactly as we suggested above. Consecration involves proprietary control over the object, whereas with respect to the rule that a person cannot prohibit what is not his, what matters is the objection of the owner, the other person.

He brings proof from the fact that with respect to the rule that a person cannot prohibit what is not his, there are views according to which an act is effective, whereas with respect to consecration we do not find such a distinction. On our reading, this can be explained by saying that where something is done by an act, the prohibitor is not the person but the Torah, and the act is only a condition; see our discussion above. But with respect to consecration, it is clear that the Torah does not consecrate anything. Rather, the person consecrates his own property, and therefore there is no distinction there between thought and act.¹⁰

The fundamental proof in this discussion is the Mishnah we saw above, Mishnah, Kilayim 7:4, which states that a field in the sabbatical year—which is an ownerless field—is treated as a case of one person attempting to prohibit something that is not his.

If so, this Mishnah would seem to prove the opposite of what we have said, for it does equate the rule that a person cannot prohibit what is not his with transfer and consecration, and in both cases one cannot act even with ownerless property. It would then seem that there are not two different types of halakhic territory here. Indeed, later in his words, Oneg Yom Tov rules that the rule that a person cannot prohibit what is not his also applies to ownerless property, on the basis of several proofs.¹¹

Rabbi Elchanan Wasserman’s View

However, Rabbi Elchanan Wasserman, in Kovetz He’arot, Addenda 22, wrote as a simple matter that with respect to the rule that a person cannot prohibit what is not his, it is obvious that a person also cannot prohibit ownerless property, because what matters there is not the owner’s objection but the absence of ability and control—and this is exactly our line of thought.

As for the proof from the Mishnah in forbidden mixtures, Rabbi Wasserman rejects it by saying that in forbidden mixtures there is a special verse, and therefore there it is newly taught that even with ownerless property one cannot render it forbidden by means of forbidden mixtures. It emerges clearly from his words that he understands the rule that a person cannot prohibit what is not his as not deriving from a verse at all, but rather as based purely on reasoning. In forbidden mixtures a verse is needed only because we apply it there even to ownerless property. This conception strengthens our thesis, because it follows that the basis of halakhic territory is simple reasoning alone. That is, it is a self-evident principle and does not require a textual source. That is why, in our article on Acharei-Mot-Kedoshim, we applied it to the mitzvah of honoring father and mother even without an explicit source.

A Further Rejection: Two Kinds of Ownerlessness

One could, however, continue to maintain the straightforward position that the verse regarding forbidden mixtures is the source of the rule that a person cannot prohibit what is not his throughout the whole halakhic realm, and still reject the proof we brought above from the Mishnah regarding the sabbatical year. It is possible that the ownerlessness of the sabbatical year has a different character from ordinary ownerlessness. In ordinary ownerlessness, the object belongs to no one, and therefore any person can prohibit it. But in the sabbatical year the fields are not merely ownerless. They no longer belong to their previous owners, but they do belong to the collective of Israel—or to the public at large—and therefore another form of ownership exists over them. For that reason specifically, during the sabbatical year one cannot prohibit the field, because it is not really ownerless. It has owners, and their objection removes the possibility of prohibiting the field.

If so, the sabbatical year is a different kind of ownerlessness: ownerlessness for the collective. Therefore the Mishnah, which applies the rule that a person cannot prohibit what is not his to a field in the sabbatical year, does not prove that this rule applies also to ordinary ownerless objects.

E. Another Look at Considerations of “Halakhic Territory”

Introduction

In this chapter we will examine several examples in which considerations of “halakhic territory” are at work. Some of these examples were already discussed by us in the article on Acharei-Mot-Kedoshim, where we saw that a person cannot, on the basis of valid halakhic considerations, lay hands on another person’s money or body—for example, by saving himself through another person’s limb. Here we will see further dimensions of such cases, which will sharpen the meaning of considerations of this type.

A Person May Not Save Himself with Another Person’s Property

In the earlier article we saw the rule that a person may not save himself with another person’s property. According to Rashi on Babylonian Talmud, Bava Kamma 60b, that rule is to be taken literally. That is, the prohibition “You shall not steal” becomes a case of “be killed rather than transgress.” We explained this by appeal to halakhic territory: a person’s halakhic considerations cannot determine anything with respect to another person’s property. Another person’s money lies outside my halakhic territory.

It should be emphasized that this consideration is not identical to the one mentioned above—the first kind of territorial consideration—according to which a person cannot consecrate or transfer ownership of something that is not his. Here there is no legal-property limitation, since the issue is not whether the person must pay for what he took—so understand most of the medieval authorities, though not Rashi—but whether he is permitted to take the property in the first place. On the other hand, the prohibition against taking the property is a prohibition grounded in legal status, since it stems from another person’s ownership, and not merely from the absence of power to harm another. Thus there is a component here that stands midway between the two kinds of considerations, and perhaps both are relevant.

Expansion Regarding Interpersonal Prohibitions: The View of Binyan Tzion

We find in the responsa Binyan Tzion a discussion of Rashi’s words just mentioned, in sections 167-169, where he seeks to show that they have a basis in halakha. Immediately afterward, in sections 170-173, he broadens this concept to all interpersonal prohibitions. In his view, with all interpersonal prohibitions one must be killed rather than transgress.

For example, in sections 170-171 he discusses whether it is permissible to desecrate the dignity of a corpse in order to save another human life, and in the course of section 170 he writes:

But we must still consider this, for there is a great principle in the Torah that nothing stands before the preservation of life, and there is no distinction between a definite and a possible danger to life. Yet it appears to me that even for this reason it cannot be permitted here, because I have already proven elsewhere, in section 167, that Rashi’s opinion, based on the Talmud in Bava Kamma 60, is that it is forbidden to save oneself with another person’s money; that is, a person may not steal another’s money in order to save himself from death, contrary to the view of Tosafot and Rosh, who explained that passage only to mean that he must pay, not that it is forbidden ab initio to save himself. Now according to Rashi, if it is forbidden to save oneself with another person’s money, then all the more so it is forbidden to save oneself through another person’s disgrace, for a person’s honor is dearer to him than his money, as we say in the chapter HaHovel in Bava Kamma regarding the woman who came before Rabbi Akiva. If so, how can we say that because of the danger to the sick person’s life it would be permitted to shame and degrade the dead, who presumably does not forgive his disgrace?

Similarly, in section 172 he proves that one is obligated to be killed rather than transgress the prohibition of publicly shaming another person, and he summarizes as follows:

It follows for us that if one can save himself from death by shaming an adult—or even a minor who feels shame—in the presence of two Jews, he is obligated to give up his life rather than shame him. But with regard to a small child who does not feel shame, we say: transgress rather than be killed. A sleeping person has the status of an adult, for one who shames a sleeping person is liable, as explained in Bava Kamma and in the halakhic authorities there; and therefore the same applies to our issue, that one must be killed rather than transgress by shaming him, since he will recognize his shame when he wakes and blush. Yet I have not seen all this stated explicitly by the halakhic authorities. So it appears to me. The minor one, Yaakov.

It should be noted that within his discussion he shows that not according to all opinions is this included under the accessories of murder. Thus what we have here is an expression of the principle that with every interpersonal prohibition there is an obligation of “be killed rather than transgress.”

What is the significance of this? It is clear from his words that he does not regard Rashi’s view as a property-law principle connected to the rule that a person cannot consecrate or transfer something that is not his, or not under his control, for he derives from it laws even for non-monetary prohibitions. We are dealing here with an expansion that leads us to territorial considerations of the second kind: any harm to another lies outside my halakhic territory. Hence it is also forbidden for a person to take another person’s limb in order to transplant it—into himself or into someone else—and thereby save a life. At first glance, there is here a prohibition of causing injury, and that prohibition should be set aside for preservation of life. Why then is it forbidden? The answer is that although the prohibition is indeed set aside, any halakhic consideration, even a valid one, cannot apply outside a person’s own halakhic territory.

Thus, when a person acts outside his halakhic territory on the basis of a halakhic consideration that is legitimate within his own sphere, it may be that the underlying prohibition is indeed set aside by that consideration. Therefore, if he does it, perhaps he has not violated the prohibition of causing injury—or of shaming and degrading, in Binyan Tzion’s examples. But the boundary of his halakhic territory still stands, because it does not depend on any halakhic considerations. Crossing that boundary is impossible in any way without the consent of the other person, the one into whose territory he is entering. In other words, even though the person seems to be acting on the basis of a valid halakhic consideration from his own point of view, there is here an extra-halakhic prohibition of crossing a meta-halakhic boundary. He applied his considerations in a domain where they are not relevant.

A Guilt Offering as the Crossing of a Territorial Boundary

As we saw above, considerations of halakhic territory are the product of reason, and it may be that they need no textual source at all. We now discover that they stand even in opposition to valid halakhic considerations.

In this context it is interesting to note what we wrote in our article on the portion of Lekh-Lekha, 5767: a guilt offering is generally brought for a prohibition that involves crossing a halakhic boundary—that is, passing into another person’s territory—even where no formal halakhic transgression is involved. According to this, one might propose that in every case in which a person acts outside his own halakhic territory he should have to bring a guilt offering. Such a proposal would of course require proof, and we raised it only as a way of sharpening the meaning of our claim. In any event, even without extending the idea to liability for a guilt offering, it is clear that all the examples discussed there are examples of crossing the boundary of a person’s halakhic territory.

The picture that emerges from our articles on the portions of Lekh-Lekha, Acharei-Mot-Kedoshim, and the present one thus lays out the full range of territorial considerations in halakha.¹²

A Note on Honoring Father and Mother

In our article on Acharei-Mot-Kedoshim we pointed to territorial limitations with respect to the mitzvah of honoring father and mother.¹³ We saw there that the obligation to comply with parents’ demands is not unlimited. There too we are dealing with a meta-halakhic layer, not with an ordinary internal limitation of halakha.

Against that background, it should be noted that the medieval authorities on Babylonian Talmud, Yevamot 6a, disagree as to whether the duty to honor parents includes only matters that concern them—their convenience and honor—or whether there is also a duty to obey them in matters that are simply their wish, even if they do not concern the parents themselves. Rabbi Yaakov Ariel discussed this at length in his article in Techumin that was mentioned there.

At first glance, this dispute seems to touch exactly on our present issue. The view of those authorities who hold that there is no duty to obey parents in matters that do not concern them expresses precisely a demarcation of the parents’ halakhic territory vis-à-vis their descendants. But this is not so. There the issue is an interpretation of the halakhic obligation itself. Those authorities hold that the laws of honoring father and mother themselves imply that there is no duty to honor them except in matters that concern them. This is a determination within the laws of honoring parents, not within meta-halakhic considerations.

Our main claim there was that even according to the view that there is a duty to obey parents even in matters that do not concern them, that duty still has a limit, and that limit is meta-halakhic. That is, it does not arise from an interpretation of the mitzvah of honoring parents. It is the result of a territorial, meta-halakhic consideration, not of local halakhic interpretation. According to these views as well, a son is not required to obey his parents in matters that concern the foundations of his way of life and his self-realization. This limitation has no source in halakha; it stems from meta-halakhic reason, as we saw with territorial considerations in general.

On a Discourse of Obligations and a Discourse of Rights in Halakha

It is commonly said that unlike other legal systems, halakha contains mainly a discourse of obligations and not a discourse of rights. According to this approach, halakha does not grant a person rights; rather, each of us has only obligations—to preserve another person’s honor, property, and other assets. In light of what we have seen here, it is important to note that this description is not accurate. The territorial consideration we have been discussing can be seen precisely along the axis of rights versus obligations.

Consider, for example, a case in which a person is deliberating whether to take another person’s limb in order to transplant it into a third person and thereby save his life. From the standpoint of the taker’s obligations, it would emerge that he is under no obligation to refrain from taking the limb. The halakhic obligations of every Jew are defined within the framework of the Torah’s prohibitions, and as we have seen, these do not prevent him from this action. The prohibition of causing injury is set aside in the face of preserving life, since it is not included among the three cardinal transgressions.¹⁴ But here the discourse of rights enters the picture. True, you have no obligation to refrain from taking the limb; but the other person has rights. The prohibition imposed upon you does not stem from your obligations—that is, from some halakhic “not-to-do” incumbent upon you—but from the right of the other person. And another person’s rights do not depend on your halakhic considerations. Therefore, as we have seen, this prohibition is meta-halakhic and not strictly halakhic. The same is true of the limitations on the mitzvah of honoring father and mother: they too do not arise from any limitation in the duty to obey, but from the rights of the child.

Thus it is true that halakha does not deal with rights but only with obligations, yet it is not true that this exhausts the totality of our normative guidance. There are meta-halakhic directives that very much express a discourse of rights.

Footnotes