Is It Possible to Act Against the Torah? (Column 651)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

On the Shabbat of Parashat Bechukotai, I spoke in the synagogue about the rule of “i avid lo mehani” (“if one acted [in violation], it does not take effect”), which pertains to the section on temurah that appears in this parashah. The question discussed there is whether the Torah allows us to act against its will. I later saw that this branches into additional topics, and I thought to discuss them here.

The Section of Temurah: “Both it and its substitute shall be holy”

At the end of Parashat Bechukotai, we find the section of temurah (Leviticus 27:9–10):

“And if it be a beast whereof they bring an offering to the LORD, all that a man gives of such unto the LORD shall be holy. He shall not exchange it, nor substitute it, whether it be good for bad or bad for good; and if he shall at all substitute beast for beast, then both it and the substitute shall be holy.”

If there is an animal that I sanctified as an offering, and I now wish to substitute it with another animal (perhaps an inferior one, to save money—though the verse also speaks of substituting bad for good), it is not possible to do so. And if I nevertheless did it, then the Torah states that the sanctity of the first animal remains as is, and the second one becomes sanctified as well.

Further on we find a similar rule regarding the animal tithe (Leviticus 27:32–33):

“And all the tithe of the herd or the flock, whatsoever passes under the rod, the tenth shall be holy unto the LORD. He shall not distinguish between good and bad, neither shall he substitute it; and if he does substitute it at all, then both it and the substitute shall be holy; it shall not be redeemed.”

We may wonder what we would have thought without the verse. It seems there are two possibilities:

1. The substitution would have been effective, and the Torah comes to be stringent and to say that it is not effective. According to this, the Torah’s novelty concerns the first animal, which remains holy. As for the second animal, I would have known even without the verses that it is holy, since there is no reason to prevent its sanctification.
2. Even without the verses I would have known that the substitution is not effective, and the Torah comes to be stringent regarding the second animal to say that although the first remains holy, the second also becomes holy.

What is the difference between these two possibilities? According to the second approach, even without a verse it is clear, as a matter of reason, that an act against the Torah cannot be effective. The first approach maintains that without the Torah it would have been effective, and it is the Torah that innovates that it is not.

What will happen in other matters that are not temurah and about which the Torah did not state whether they are effective? This will apparently depend on a general question that has already arisen here in the past (see Column 411): does every verse teach the opposite of what is written in it? That is, from the fact that Scripture teaches that temurah is not effective, can one infer that without the verse it would have been effective and we have only its novelty? In other words: in temurah it is newly taught that it is not effective, but in the rest of halakhah it is effective. Alternatively, this may be a paradigm for the entire Torah, i.e., from temurah we learn for the whole Torah that it is not effective. However, that is only according to possibility 1 above, namely, that the verses indeed teach that in temurah it is not effective. But according to possibility 2 above, even in temurah it was obvious from the outset that it is not effective (and the novelty was to be stringent about the second animal), and from there it would follow that in the rest of the Torah it is also not effective.

The Sugya of “I avid lo mehani”

At the beginning of tractate Temurah the Gemara brings a dispute between Abaye and Rava on this matter (4b):

Abaye said: For any matter where the Merciful One said “do not do,” if one did it, it is effective. For if it should enter your mind that it is not effective, why does he incur lashes? Rava said: It is not effective at all, and the reason he is lashed is because he transgressed the statement of the Merciful One.

According to Abaye, an action performed against the Torah is effective; according to Rava, it is not. Abaye challenges Rava that if, as he says, it is not effective, why does the person receive lashes? After all, in practice the prohibited result did not occur. Rava answers that the lashes are for having transgressed the Torah’s command, even if the intended result did not succeed and did not materialize.

The Gemara then challenges both Abaye and Rava from several halakhic passages. In each case the rebuttal is that there is a special verse that teaches it is effective or not, and therefore one cannot learn from there. Among other things, the Gemara challenges Rava from the section on temurah (5b):

“Behold temurah: the Merciful One said, ‘He shall not exchange it and not substitute it,’ and the Tanna taught: Not that a person is permitted to substitute, but that if he did substitute, the substitution takes effect and he receives forty lashes—apparently, it is effective! A refutation of Rava. He (Rava) can say to you: It is different there, for the verse states, ‘Then both it and its substitute shall be holy.’ And according to Abaye: If the Merciful One had not said, ‘Then both it and its substitute shall be holy,’ I would have said: this one (the original) goes out and that one (the substitute) enters; hence it teaches us otherwise.”

Rava answers that this is precisely the Torah’s novelty—that temurah is effective. It is not clear to which animal he refers. If indeed the Torah says that the substitution is effective and he is lashed, it implies that the reference is to the second animal (since the first remains holy; in that respect the substitution did not “help” remove its sanctity). In other words, according to him the discussion—whether “if one acted [against the Torah], does it help or not”—concerns only the second animal. The first remains holy regardless. It is possible that the sanctity of the first animal cannot lapse regardless of whether “i avid mehani” or not, because sanctity of the body (kedushat haguf) does not lapse “for nothing” (see Nedarim 29a; indeed, there Abaye holds that it does lapse “for nothing,” against Bar Padda). And Abaye answers that the novelty concerns the first animal, which remains holy (for according to his view in Nedarim there, kedushat haguf would have lapsed but for the Torah’s novelty), while the fact that the second becomes holy proves, according to his view, that “if one acted,” it does take effect. It seems, in principle, that Rava understood like possibility 2 above (though only regarding the second animal), whereas Abaye understood like possibility 1.

However, in the Gemara—both for Abaye and for Rava—this is not presented as a rule derived from the section on temurah. That is, the Gemara does not claim that from the very fact that a law was taught there, we learn that it is effective (if a verse teaches the opposite of what is written) or not effective (if it teaches what is written). In the Gemara the dispute appears to be based on reasoning: can there be a transgression even when the prohibited result is not obtained (simply because he “transgressed the statement of the Merciful One”)?

In practice, most decisors rule like Rava (as in all his disputes with Abaye except for the ya’al kegam cases), though some commentators on the Rambam claim he rules here like Abaye. If the halakhah is like Rava, then the conclusion is that acting against the Torah does not take effect, and in temurah there is a special novelty regarding the second animal, which does become holy. Perhaps this is a kind of penalty, but it is specific to that case.

Note: What is a “transgression”?

In parentheses I will add a note that emerges from this sugya. I have already cited in the past (see Columns 71, 342, 503, and elsewhere) the words of Ramchal in Derekh Hashem (as quoted in Rav Elchonon Wasserman’s Kovetz Ma’amarim, essay “HaTeshuvah”), who writes that every mitzvah or transgression has two aspects: obedience/rebellion and benefit/damage. When a person performs a mitzvah, he does two things: he fulfils the command and achieves the benefit for which the mitzvah was intended. And in a transgression there are two parallel aspects: rebellion against the command and the harm that the Torah sought to prevent by commanding us not to do it. Based on this I explained the words of Tosafot ha-Rosh and Ritva regarding “greater is one who is commanded and does [than one who is not commanded and does],” who write that he is greater because, if he is commanded, beyond the benefit of the mitzvah he also has the element of obedience to the command—something absent from one who is not commanded yet does.

And in Kiddushin 81b we find:

“As it was taught: ‘Her husband nullified [her vow], and the LORD will forgive her’—about what is the verse speaking? About a woman who vowed to be a Nazirite, and her husband heard and annulled it, and she did not know that her husband had annulled it, and she drank wine and defiled herself to the dead. When Rabbi Akiva would reach this verse, he would weep and say: If one who intended to eat pork and [instead] lamb came to his hand—the Torah said that he needs atonement and forgiveness; how much more so one who intended to eat pork and pork came to his hand! Likewise you say regarding the verse ‘and he did not know and is guilty and shall bear his iniquity’: when Rabbi Akiva would reach this verse he would weep—if one who intended to eat permitted fat and [instead] forbidden fat came to his hand, the Torah said “and he did not know and is guilty and shall bear his iniquity”; how much more so one who intended to eat forbidden fat and forbidden fat came to his hand.’ Isi ben Yehuda says: ‘“And he did not know and is guilty and shall bear his iniquity”—for this all who grieve shall grieve.’”

In the first case the woman intended to do a prohibition but did not succeed—like one who intended to eat pork and lamb came to his hand. In such a case it is written that she requires forgiveness and atonement; and simply understood, this is not a full halakhic transgression (though the Brisker Rav, in stencil notes on the parallel sugya in Nazir, wrote that it is a full transgression, and the novelty is only that without the result there are no lashes). In the second case it speaks of one who intended to eat lamb and forbidden pork came to his hand; that is a case of an inadvertent transgression (shogeg), which is of course a full transgression, albeit inadvertent.

It seems from here that the essence of a transgression is the result, not the rebellion against the command. If there is only rebellion without a prohibited result, there is no transgression (or at least no lashes). This conclusion stands in tension with Rava’s words we saw, who said that lashes are for the rebellion itself (“he transgressed the statement of the Merciful One”) even without the prohibited result having been achieved. And it is forced to say that this Gemara reflects only Abaye’s view and not the halakhah.

It seems that where a person did everything such that the result would take effect and it is only the Torah that prevents the result from taking hold, this is considered a full transgression. In such a case the person did everything from his side, and the result was blocked only by a Torah law. But where the person himself did not bring about the result through his actions, even if he fully intended to transgress, there is no transgression—only a need for forgiveness and atonement.

One Who Slaughters on Shabbat and Yom Kippur

The later authorities (see, e.g., Responsa of R. Akiva Eiger, first edition, §129 s.v. “gam im,” and §174 s.v. “uma’ha’hei”) challenged the Gemara in Temurah, especially Rava’s view accepted as halakhah, from the Mishnah (Chullin 14a), which states that one who slaughters on Shabbat or on Yom Kippur—his slaughter is valid. Seemingly, according to Rava we should invalidate the slaughter.

Several later authorities (see, for example, Kovetz He’arot §74 §2 s.v. “vehinei,” and Netivot HaMishpat §240 §2 s.v. “uv’vo’i”) wrote that when the prohibition is on the act and not on the resultant status, we do not say “i avid lo mehani.” The prohibition of slaughtering on Shabbat concerns the act of slaughter itself, unrelated to the fact that the act renders the animal permitted for consumption—and indeed, in reality he slaughtered. In such a case, one cannot say that it is not effective—i.e., that the animal is not slaughtered. The permissibility of the animal for consumption is not itself a prohibition, and therefore it is not nullified merely because the act was done in violation. In a different formulation: some explained that “i avid lo mehani” is stated only where nullifying the result would nullify the prohibition; but if even if we declare it “not effective,” the prohibition would still stand, then the result is not nullified. In one who slaughters on Shabbat, even if we invalidate the validity of the slaughter, the prohibition was still transgressed (he took a life on Shabbat). Therefore there we do not say that his act was ineffective.

There seems to be a difference between these formulations. From the first, it follows that where the prohibition is on the act, there is no possibility to undo the act since, in fact, it was done. From the second, it seems that there is a reason to nullify, but the Sages did not penalize where the penalty would not help (for the goal of the penalty would be to neutralize the transgression). However, this interpretation of the second formulation is implausible, for we saw in the Gemara that according to Rava, the prohibition lies in having transgressed the Divine command—so nullifying the result does not alter his status as a transgressor. It is thus unlikely that we would nullify the result merely to prevent transgression, since that does not prevent it.

It seems more likely that the intent there is: if there is a prohibition in the matter, then clearly the Torah will not allow the matter to occur. But that is only where the prohibition concerns something that the Torah itself defined (like temurah, for the act of consecration is an act the Torah defined; it would not exist without the Torah’s innovation of consecration). For such an act, when there is a prohibition, the Torah does not allow that legal state to come into being—“the mouth that prohibited is the mouth that permits.” The Torah defined that status, and it is not reasonable that it agrees to define it even when it is done in violation and against its will. But if there is an act that is not defined by the Torah (e.g., killing is a physical act, not defined by the Torah), then one cannot say that, because of the prohibition, the act did not occur.

According to this interpretation, the second explanation is already very close to the first, but there is still a difference between them. For example, consider a transaction (kinyan). If someone buys on Shabbat (at least if that would be a Torah-level prohibition), that is an act not defined by the Torah; it exists in every legal system. Therefore, according to the first formulation, it would be nullified since here the prohibition concerns the resulting status rather than the physical act (but see discussion here); but according to the second formulation it exists, since a kinyan is not an act instituted by the Torah. It exists independently of it. These issues arise in Mishnah Beitzah 36b, and in R. Akiva Eiger there (see a concise summary here).

In any case, the conclusion is that, simply, when the Torah defines a certain legal act, if that act is performed in violation, it is not defined at all. It’s not that we “invalidate it” as a penalty; rather, from the outset it does not take effect, because the Torah did not create such a state—and without it, it does not exist. This brings us to the discussion of stipulating against what is written in the Torah.

Stipulating Against What Is Written in the Torah

In Columns 642–643, I discussed the laws of conditions (t’na’im). We saw there that, at least according to R. Yitzhak (Tosafot Ketubot 56a) and those who follow him, the mechanism of a condition was innovated by the Torah, and without it, it would not exist. This, of course, raises the question: what happens when a person makes a condition that entails a prohibition? In light of the above, we could argue that the Torah did not define such a condition, and therefore when a condition is made in violation it does not exist. This is the sugya of “stipulating against what is written in the Torah.”

One of the examples brought regarding stipulating against what is written in the Torah is the dispute between R. Meir and R. Yehuda in Ketubot 56a (cited in Column 643):

“As it was taught: One who says to a woman, ‘Be betrothed to me on condition that you have no claim upon me for sustenance, clothing, and conjugal relations’—she is betrothed, and his condition is void, these are the words of R. Meir. R. Yehuda says: In monetary matters his condition stands.”

That is, if a man makes his betrothal contingent on not undertaking the obligations a husband owes his wife (sustenance, clothing, and conjugal relations), the condition is void and the act is valid. R. Yehuda agrees in principle, but he holds that these are monetary matters, and therefore his condition stands. However, regarding similar conditions in matters of prohibitions (the Rashba there writes that “conjugal relations” is an issur matter rather than monetary; hence even according to R. Yehuda the condition would be void in that respect), even according to him the condition cannot stand.

Seemingly, this is an application of the general rule “i avid lo mehani” to conditions. The Torah defined the very concept of a condition; if it is made in violation, against the Torah’s will, it is not defined at all—therefore such a condition is void. If so, we should find that Abaye, who holds “if one acted it is effective,” would also disagree here and say that a condition made against what is written in the Torah stands. Moreover, not a few Rishonim hold that the rule “one who stipulates against what is written in the Torah—his condition is void” derives from the “laws of conditions” learned from the case of the tribes of Gad and Reuven. This implies that without the novelty taught there, we would not void the condition, despite the rule “i avid lo mehani.” It may be that those Rishonim do not follow R. Yitzhak’s view; in their opinion, the concept of a condition was not innovated by the Torah but exists independently; what the Torah innovated are merely the procedural “laws of conditions.” If so, here one cannot apply the rule of “i avid lo mehani.”[1] According to this, it would seem that at least according to R. Yitzhak and those who follow him, the law of stipulating against what is written in the Torah is indeed not among the “laws of conditions” but a specific instance of “i avid lo mehani”: the Torah is unwilling to define a legal state when it is created against its will. The novelty of conditions does not apply when the stipulation is a prohibition.

What Exactly Is “Stipulating Against What Is Written in the Torah”?

The Gemara in Gittin 84a brings a condition whereby a husband stipulates, in his wife’s divorce, that she commit a prohibition:

“They asked: ‘This is your bill of divorce on condition that you eat pork’—what is the law? Abaye said: It is the same [as a condition] regarding a matter not in her control [e.g., “on condition that you ascend to the sky”]; therefore the condition is void and the act stands. Rava said: It is possible that she could eat—and incur lashes.”

Abaye identifies this case with the previous sugya of a condition concerning something not in her power to fulfil (“on condition that you ascend to the sky”), and in his view the condition is void and the act valid. Rava argues that this is not similar, because here she does have the ability to fulfil it (and take lashes).

Thereafter the Gemara continues and asks (84b):

“Let him derive that this is ‘stipulating against what is written in the Torah,’ and one who stipulates against what is written in the Torah—his condition is void.”

The Gemara asks: Let us invalidate this condition based on the rule of stipulating against what is written in the Torah. This appears difficult even for Abaye, for as we saw he indeed voids this condition—but not due to stipulating against the Torah, rather due to a condition beyond her power to fulfil.

In any case, the Gemara distinguishes between stipulating that she eat pork and stipulating against what is written in the Torah (such as “on condition that you have no claim upon me for sustenance, clothing, and conjugal relations”):

“Rav Adda the son of Rav Ika said: When we say, ‘One who stipulates against what is written in the Torah—his condition is void,’ that is, for example, [regarding] sustenance, clothing, and conjugal relations, for he is the one uprooting [the Torah’s law]. But here—it is she who uproots.”

In stipulating against what is written in the Torah, he uproots the Torah, and therefore his condition is void. But in the stipulation that she eat pork, she is the one uprooting what is written in the Torah, and that condition is valid. That is, there is no essential difference between the cases; the question is: who is doing the uprooting? Only when the stipulator is the one who uproots is it considered stipulating against what is written in the Torah, and only then is the condition void.

Ravina rejects this answer:

“Ravina challenged: Is she uprooting anything? She is only fulfilling his condition; it turns out that he is the one uprooting.”

He argues that even here the husband is the one uprooting (though his words are puzzling, since the decision was still hers).

Therefore Ravina explains the difference otherwise:

“Rather, Ravina said: When we say, ‘One who stipulates against what is written in the Torah—his condition is void,’ [that is] for example [regarding] sustenance, clothing, and conjugal relations, for there is certainly uprooting. But here—did he say to her, ‘It cannot be that you will not eat; if you do not eat, you will not be divorced’? [No.]”

In stipulating against what is written in the Torah there is certainly an uprooting, whereas in the condition to eat pork there is no necessity that anything be uprooted from the Torah.

Simply understood, his intent is not specifically to the question of necessity, but to whether the uprooting is embedded structurally within the condition or not. In stipulating, “you have no claim upon me for sustenance, clothing, and conjugal relations,” the husband seeks to create a state of betrothal against the Torah; such a state cannot be created. In the stipulation that she eat pork, the divorce will be a regular divorce that is merely conditional on a transgression. Here, the stipulation is not itself an act against the Torah, and therefore there is nothing to invalidate.

The conclusion is that according to Rav Adda, one cannot make a stipulation where the stipulation runs against the Torah. This is a kind of penalty the Torah imposes on one who tries to go against it—or, alternatively, it is not a penalty at all: the condition is simply undefined when made in violation. Therefore, when the one uprooting is the woman and not the stipulator, the condition remains valid because the condition itself contains no prohibition. According to Ravina, the situation is quite similar. He too holds that the Torah is unwilling to define a condition that entails a transgression.

However, in Ravina’s view it seems more that stipulating against what is written in the Torah is an attempt to create a partial or distorted legal state, independent of committing transgressions. One cannot impose a state of betrothal without sustenance, clothing, and conjugal relations—simply because no such halakhic state exists in the Torah. Betrothal is defined by the Torah, and when one seeks to impose a partial state of betrothal not in accordance with the Torah’s definition, one attempts to create a state that does not exist in the halakhic arsenal; therefore, it does not take effect.[2] This, too, is similar in principle to what we saw in Rav Adda. The focus is not the prohibition as such, but the non-existence of such a legal state. Still, even when the focus is the prohibition, the condition is void due to “i avid lo mehani,” and as we saw, that rule also says that one cannot impose a non-existent legal state.

Regarding the stipulation upon the woman to eat pork, we see that such a condition is valid. In stipulating against what is written in the Torah, the condition is void only if the condition itself constitutes a transgression. A stipulation to commit a transgression is not void, because the stipulation itself is not prohibited. This parallels what we saw above: if the result is a transgression, the act is not uprooted; to uproot it, the act itself must involve a prohibition.

Resolving a Puzzle in Mishnah Pe’ah

In light of the above, we may perhaps understand a puzzling example in Mishnah Pe’ah 6:11:

“[…] If he said, ‘Behold, I am harvesting on condition that whatever I forget I will take’—he has [the law of] shikhechah (forgotten sheaves).”

And the Bartenura there:

“‘On condition that what I forget I will take’—he has shikhechah; for he stipulates against what is written in the Torah, and his condition is void.”

The Mishnah says that if a person harvests the grain and stipulates that he does so on condition that what he forgets not be Pe’ah but that he himself will take it, he has shikhechah. That is: if he forgets something, he is forbidden to take it; he must leave it for the poor.

Now, in Tosafot R. Akiva Eiger to the Mishnah there, note 69, he writes:

“On the Bartenura s.v. ‘on condition’—‘and his condition is void’: This is difficult—what need is there for this? Even if elsewhere his condition would stand, a condition applies only where the act is performed on condition that if the condition is not fulfilled the act is void—like betroths, divorces, sells ‘on condition.’ But here—with whom is he making a condition? How does it make sense to suspend the harvest on a condition? How could one say that if the condition is not fulfilled, the harvest will not be a harvest? This requires investigation.”

He points out that harvesting is not an act upon which one can impose a condition. It is a physical act; even if one did not intend to harvest, he nevertheless harvested. So why can this person’s intent—“if I must leave Pe’ah, I don’t want to harvest”—function as a condition at all? Why resort to the explanation that this is a condition against what is written in the Torah? Can a person stipulate, “I am eating the meat on condition that it is not pork”? If he ate, he committed a prohibition. If he forgot grain in his field and took it, he transgressed. What has this to do with conditions? To sharpen: the ruling of the Mishnah is of course correct—he has shikhechah. The question is on the Bartenura, who attributes it to the rule that “one who stipulates against what is written in the Torah—his condition is void.”

It seems from here that when the Bartenura says this is “stipulating against what is written in the Torah,” he does not mean the specific laws of conditions, for this case is no condition at all. His intent is: just as in the laws of conditions and stipulating against what is written in the Torah, so too here—there is a rule of shikhechah; and all of it is based on the general principle that one cannot act against the Torah. What the Mishnah states is that an act against the Torah is ineffective; and the Bartenura explains that this is analogous to “stipulating against what is written in the Torah.” This is a general principle: one cannot act against the Torah.[3]

Note that here we are not speaking of nullifying the harvest, for harvesting is a physical act; and we saw that the rule “i avid lo mehani” does not apply to a physical act or to an act not defined by the Torah. What is nullified here is the condition, not the act—that is, the attempt to limit the laws of shikhechah. The moment you try to uproot a Torah law, you will not succeed. In Pe’ah, this is even simpler, since the declaration “I do not wish to leave forgotten sheaves” is neither a condition nor something defined by the Torah. It simply does not work, because it contradicts the Torah’s command to leave forgotten sheaves. Still, the Bartenura’s use of the term “stipulating against what is written in the Torah” hints that that rule, too, is nothing but a specific case of the general principle that one cannot act against the Torah.

A Note on Other Cases Where Halakhah Limits Itself: “Territorial” Considerations

Here I will merely note several somewhat different situations where halakhah operates on a similar logic (I have called them in several places “territorial considerations”).

There is a halakhic rule that a person cannot prohibit what is not his. For example, when a person pours his fellow’s wine as a libation to idolatry, or brings his grain field close to his fellow’s vineyard, thus creating kil’ei hakerem (forbidden mixtures). The wine is not forbidden in such a case. By contrast, regarding the vineyard, the Tannaim dispute (Mishnah Kilayim 7:5) whether the vineyard is prohibited on this account. The halakhah follows R. Akiva that it is. On the face of it, this is very puzzling: when wine is libated to idolatry, it becomes forbidden; how is it that if someone else libates my wine, it is not forbidden? The rule is: only if I libated it. But if another person did so, it is not. There is no claim here that since the act is prohibited, the wine did not become libated to idolatry. It did—the reality is what it is; and we saw that we do not say “i avid lo mehani” regarding physical acts. But when someone else did it, the wine is not forbidden. The reason is that it is the Torah that defined this wine as forbidden; and “the mouth that prohibited is the mouth that permitted,” so the Torah can also permit it in such circumstances. Indeed, in one who slaughters on Shabbat, the slaughter is valid because permissibility is the result of the act and not the prohibition itself; and similarly regarding libation of wine. Therefore, when the person himself libates it, it is indeed forbidden. But when another person does so, it is not—for the Torah that prohibited can also permit. This is a territorial consideration: halakhah limits its reach when a person invades another’s “territory.”

What about the example of kil’ei hakerem? The Gemara in Chullin 40a explains that there the prohibition occurs by means of an act, and in such a case the Torah does not permit. It is like one who mixes milk into his fellow’s meat. A prohibition that arises by thought cannot prohibit what belongs to another (libation is an act, but the core of the prohibition is his intent to libate to idolatry); but if a forbidden reality has been created, then the objective reality determines, and it does not matter who created it. This is very similar to the distinction we saw regarding “i avid lo mehani.”

Similar things are found in additional cases (see on this in Middah Tovah 5756, in a paper for Parashat Chukat, and at length in a paper on killing a thief, and in several other places on the site[4]). For example, when a person threatens me with a gun to give him one shekel, I am permitted to kill him rather than give him the shekel. This is so even though, halakhically, it is clear that if a person’s life can be saved with a shekel, one must give it—human life is worth more than a shekel. But here the assailant is attempting to exploit the Torah’s law, which sees supreme value in human life, to extract my money—counting on my adherence to the Torah’s instruction not to kill him but rather to give him my shekel. In such a situation, the Torah “freezes” the law and permits me to kill him. Again: the mouth that prohibited is the mouth that permitted. The Torah prohibited the matter, and therefore in certain circumstances it can also permit it. In the paper cited, I argued that this is the basis of the law of “ba bamachteret.”

Similarly, the Gemara in Sanhedrin 82a states that Zimri could have killed Pinchas under the law of a pursuer (rodef) and been exempt. The later authorities ask (see, e.g., Kli Chemdah to the end of Parashat Balak): Why was Zimri permitted to kill Pinchas? He could have ceased sinning, and Pinchas would not have harmed him. The rule is that if one can save the pursued without killing the pursuer (e.g., by injuring one of the pursuer’s limbs), there is no permission to kill the pursuer. Here Zimri could have saved himself without killing Pinchas—he could simply stop sinning. The Kli Chemdah explains that although he could have saved himself by ceasing to sin, he is not obligated to do so. If Pinchas tries to coerce me, under threat to my life, into a certain conduct that I do not desire (even if what I desire is sinful), I have the right to kill him under the law of a pursuer. This is exactly like the robber who demands a coin from me, except that here the novelty is that this is true even when the matter concerns doing a prohibition—my right to commit a prohibition creates the law of a pursuer.

In all these cases the Torah “freezes” the law when a person uses the law to achieve an end (laudable or not). “The mouth that prohibited is the mouth that permitted.” The Torah prohibited the thing, and therefore in certain situations it can also permit it. This is logic similar to what we saw above regarding “i avid lo mehani” and stipulating against what is written in the Torah.

[1] We saw in the above columns that the Rishonim who disagree with R. Yitzhak (the Ritva and Rabbeinu Tam) hold that “one who stipulates against what is written in the Torah—his condition is void” because it is like exaggerated or idle words (mavligah bed’varim). This is very puzzling, in light of the Gemara we will see now, from which it emerges clearly that these are two different rules (and this has already been noted in Kovetz Shiurim to that passage in Ketubot).

[2] This seems to be the difference between “reservation” (shiyur) and “condition” (tenai) (see Nazir 11a). When one tries to create a partial legal state, that runs against the Torah’s will. But if one merely stipulates, then it is not a partial state but a full state subject to a condition. In fact, one might say that even “sustenance, clothing, and conjugal relations” is not the imposition of a partial state but a full state on condition that it will not include those obligations. But that is wordplay: as long as the request is from the Torah and not from the woman, it is the imposition of a partial state. If one asks the woman to waive, then indeed the condition may stand (see Bava Metzia 51a).

[3] Further there, R. Akiva Eiger adds and wonders whether betrothal “on condition that you have no claim upon me for sustenance, clothing, and conjugal relations” is a condition or a reservation:

“Regarding ‘on condition that you do not remit my debt in the Sabbatical year,’ one could say that the condition is: if you wish to remit me, the money will retroactively have been only a deposit. And regarding ‘on condition that you have no claim of overreaching (ona’ah) against me,’ this too means that if the buyer wants to have his overcharge returned and the sale remain in effect, he conditions that the sale will retroactively not be a sale and will be null. And in the case of rescuing from the river: if there is a court, let him stipulate before the court—this is merely an announcement that he does not wish to rescue as a “resting worker,” for he prefers the work and to profit much, and therefore his full wage is due to him.”

“But I am most perplexed regarding ‘on condition that you have no claim of overreaching against me’: this is not, at all, in the manner of a condition; rather, he does not wish to sell except on the basis of the benefit that there will be no claim of overreaching against him, and once the buyer accepted this upon himself, it is as if the buyer removed himself from the law of returning overcharge. And likewise in Shemitah: he does not wish to lend except on the basis of this benefit that he will not remit him in the Sabbatical year, and the borrower accepted this upon himself. And nonetheless he cannot remove himself from this against the Torah’s law—like in Ketubot, beginning of ‘HaKotev,’ ‘no litigation and no contest’ against your property—there too it is considered stipulating against what is written in the Torah if the Sages strengthened their words like those of the Torah, even though it is not in the manner of a condition, as Tosafot wrote there, for she did not stipulate with him. What stands against me are the words of Tosafot there 56a regarding ‘on condition that you have no claim upon me for sustenance, clothing, and conjugal relations,’ who asked that according to R. Meir we require a doubled condition; but according to the above, this is not in the manner of a condition at all, but rather he betroths her with the “discount” of the right that those obligations will not be upon him. Tosafot did not go in this direction; this needs analysis.”

Even in the case of betrothing “on condition that you have no claim upon me for sustenance, clothing, and conjugal relations,” or selling on condition that there is no claim of overreaching—according to him, this is not a condition but a reservation. It is an attempt to impose a partial legal state against the Torah; one cannot “reserve” against the Torah. In his view, this is “stipulating against what is written in the Torah”—the condition is void because the result is against the Torah (and not because of the laws of conditions). There is no betrothal without sustenance, clothing, and conjugal relations; no harvest without leaving forgotten sheaves; no loan with remission in the Sabbatical year; and no sale without the law of overreaching.

But according to what we saw above, this is precisely “stipulating against what is written in the Torah.” A person attempts to impose a partial legal state, and such a state does not exist in the Torah. Even in the context of ordinary conditions, such as in betrothal, the problem is not the manner of stipulation but the result—betrothal against the Torah. The Torah commanded that one give his wife sustenance, clothing, and conjugal relations, and he does not give them. Such a legal state does not exist.

[4] Search for “territorial considerations” and “a person cannot prohibit what is not his.”