A Look at Metaphysical Dimensions in Halakhah (Column 521)

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.

I have already written several times in the past about the differences between Halakhah and other legal systems. In my article on property law in Halakhah and in secular law and in my article “What is a ‘Chalut’ (Legal Effect)?” I argued that Halakhah assumes the existence of a metaphysical stratum underlying its norms. In recent days this point came up again in a comment by Tirgitz to the last column, where the discussion dealt with the mechanism of “mikan u-lehabah le-mafreaʿ” (“from now and retroactively”) as defined by R. Shimon Shkop. See also the brief discussion that followed it. I was reminded of this topic again when I touched, in a class I gave recently, on the law of “Kalta Kinyano,” which in my view likewise assumes a metaphysical stratum. That is what I wish to show here.

Kiddushin to Take Effect After Thirty Days

The Mishnah in Kiddushin 58b presents two cases of betrothal (kiddushin) that will take effect after thirty days. The first case:

And so, one who says to a woman, “Behold, you are betrothed to me after thirty days,” and another came and betrothed her within the thirty days—she is betrothed to the second; a daughter of Israel [betrothed] to a priest may eat terumah.

The man giving the ring says to the woman that she is betrothed to him “after thirty days.” In such a case, as long as the thirty days have not elapsed, she remains unattached; therefore, if another comes and betroths her, she is betrothed to the second, and if he is a priest she may also eat terumah.

The second case:

“From now and after thirty days,” and another came and betrothed her within the thirty days—she is betrothed and not betrothed; a daughter of Israel to a priest, or a priest’s daughter to an Israelite, may not eat terumah.

Here the formula differs slightly: “From now and after thirty days.” The Gemara explains that in this case the kiddushin develop gradually from the act of betrothal over the thirty days; during this period she is loosely, or doubtfully, betrothed to the first. The kiddushin are completed and crystallized at the end of the thirty days. Therefore, during the thirty days, the second’s kiddushin also take hold to some extent, and in such a case she is doubtfully betrothed to both—or, more precisely, partially betrothed.

For our purposes, the focus is the first case. There the woman remains unattached until thirty days have passed, and thus the second’s kiddushin take effect. The Mishnah does not say what happens once thirty days pass if no other man betrothed her. One might have said there are simply no kiddushin. But the plain sense of the Mishnah, and this is how the commentators understand it, is that if no other man betrothed her, she becomes betrothed to the first immediately when the thirty days elapse.

The Ramban here brings a Yerushalmi that goes even further:

“And another came and betrothed her within thirty days—she is betrothed to the second.” Since it does not state “and she is not betrothed to the first,” learn from here that if the second divorced her within the thirty days, the first’s kiddushin take effect; and so it is explicit in the Yerushalmi. Therefore, if the second died within the thirty days or divorced her, the first’s kiddushin take effect upon her after thirty days. If he died after thirty, or divorced her, the first’s kiddushin do not take effect upon her. Moreover, they said there that if the second died and he had a brother, since she is bound to levirate marriage (yibbum), the first’s kiddushin do not take effect upon her.”

His claim is that if another came and betrothed her and then died, still—if at the thirty-day mark she is unattached—she becomes betrothed to the first. All the more so, if no other man betrothed her at all, then after thirty days she is betrothed to the first.[1]

The Difficulty

The question that arises concerns the first man’s kiddushin taking effect. How do kiddushin suddenly take effect after thirty days, when the act was performed and concluded long ago? Suddenly the woman jumps from the status of unattached to that of a married woman (eshet ish) without anything occurring to trigger it. It seems the initial kiddushin created a potential that actualizes for no visible reason after thirty days.

The difficulty is sharpened in light of the Ramban and the Rosh citing the Yerushalmi. There the woman had already been betrothed to the second and then he divorced her or died. Now she is unattached again, and when the thirty days arrive, the old act of kiddushin performed before her marriage to the second operates upon her and she becomes betrothed to the first. It appears that even her kiddushin to the second do not dissipate the potential created by the first man’s act.

This difficulty rests on a principle cited by the Rishonim (inferred from the Talmud itself), which they call “Kalta Kinyano.”

Kalta Kinyano

The Ran, Nedarim 28b s.v. “ve-katav,” writes in the name of the Rashba:

“Since this is so, he wrote, of blessed memory, that we learn for monetary law: one who says to his fellow, ‘Go take possession and acquire this field,’ or, ‘Let it be given to you from now until I go up to Jerusalem,’ and [the recipient] then sold it back to him before he went up to Jerusalem—when he later goes up to Jerusalem, the recipient acquires it again. For he said to him, ‘Let it always be yours until I go up to Jerusalem,’ and from now until the time he will re-acquire it from him, he is giving it to him.”

“However, specifically if he said ‘from now’; but if he did not say ‘from now,’ he does not acquire. Since the acquisition is by chazakah (act of possession), and this chazakah that he now performed has already expired once the original owner re-acquired it, it is like saying, ‘Pull this cow, but you will not acquire it until after thirty days’—if it will not be in his domain after thirty days, he does not acquire. So here too, since that second acquisition does not take effect now but only after he will again buy it from him, at that time the original chazakah has already expired, and he cannot acquire.”

Reuven transfers a field to Shimon “from now and when I go up to Jerusalem.” Within that period Reuven buys the field back from Shimon, and then he goes up to Jerusalem. Does the field become Shimon’s at the moment of ascent? The Ran says yes, because the initial acquisition was meant to take effect only upon going up to Jerusalem. But if he did not say “from now,” then Shimon does not re-acquire the field upon the ascent. The reason is that Shimon initially acquired the field by chazakah, but that chazakah was nullified by Reuven’s re-acquisition; when the moment of ascent arrives, Shimon has no way to acquire, since the act of chazakah has already occurred and then lapsed—“his acquisition has expired (kalta kinyano)”—and is no longer in the world.

This again raises the question with respect to the case where he did say “from now”: why can he acquire the field upon the ascent, when the act of chazakah has already concluded? As we saw above, when he says “from now,” the act begins at that moment and continues gradually until it concludes at the ascent to Jerusalem. Thus the chazakah has already begun to effect the acquisition, and in such a case it can continue until the period ends and the acquisition is finalized.

The principle learned from here is that an act of acquisition that does not generate a legal effect (chalut) cannot generate that effect later. Such a delay renders the act irrelevant—“kalta kinyano.” The act is no longer in the world and cannot create a legal effect. But if at the outset something was already created, then the application of that effect upon the object (the field) can be delayed to some time. A chain of causes and effects must exist, and if it is broken, the entire chain dissipates.

We can describe the situation as follows. A proprietary act necessarily creates a legal effect immediately. If there is a legal effect, it must immediately apply to the object; otherwise it dissipates. There are two ways to delay the application of the effect to the object: first, to perform an ongoing act that ends only when the effect is finalized (“from now and after thirty days”). Another possibility is that at the time of the act, the effect is created, but so that it will not apply immediately, one simultaneously creates something that holds it “in the air” until the relevant moment, when it “lands” on the object. If the act is not ongoing and one did not create something to hold the effect aloft, there cannot be a gap between the moment the act is performed and the moment it applies to the object.

Further on, the Ran explains why, in the Mishnah in Kiddushin, betrothal “after thirty days” is possible, and we do not say “kalta kinyano”:

“However, when we say that wherever he did not say ‘from now’ he does not acquire, that is specifically when he acquired by chazakah; but if he acquired by money, even if he did not say ‘from now,’ he acquires, because the lien of the money still exists. It is like one who says to a woman, ‘Behold, you are betrothed to me after thirty days’—she is betrothed even if the coins have been consumed, because these coins are neither like a loan nor like a deposit, as stated in Kiddushin 59.”

The Ran explains that in our case we do not say “kalta kinyano,” because in acquisition by money, the monetary lien remains (even if the coins themselves no longer exist. This relates to the continuation of the sugya in Kiddushin; I will not enter that here). This is similar to a case where the object is in the buyer’s domain—there are opinions that he can acquire it even after thirty days.

Essentially he claims that our Mishnah concerns kiddushei kesef (betrothal by money; this is an “ukimta”—it seems from his words that by document or intercourse this would indeed not be possible), and giving the money to the woman creates a lien that remains in the world until the condition is fulfilled or not; therefore the legal effect can take place later. An act of giving money, unlike chazakah, does not end at the moment it is performed and does not “expire,” and therefore the effect it creates can arise and take hold later.

Implications for Conditions

In Beit Yeshay §35, R. Shlomo Fisher applies this principle to the laws of conditions (tena’im), with the background being R”I (the Ri) in Tosafot, Ketubot 56a. The Gemara discusses a man who betroths a woman on condition that he will not be obligated to provide her sustenance, clothing, and conjugal relations. Although generally one cannot condition against what is written in the Torah, here it concerns monetary matters (at least regarding sustenance and clothing). Indeed, R. Meir and R. Yehudah dispute whether, in monetary matters, one can condition against the Torah:

“As it was taught: One who says to a woman, ‘Behold, you are 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, words of R. Meir. R. Yehudah says: In monetary matters his condition stands.”

Note that according to R. Meir, the condition is void and the act stands—i.e., she is betrothed to him and he owes her sustenance, clothing, and relations. Moreover, even R. Yehudah, who disagrees with him, does so only because in monetary matters one may condition against the Torah; but were it not so (e.g., if he conditions regarding a non-monetary matter), he agrees that the condition is void and the act stands.

Tosafot (s.v. “harei”) ask there:

“‘She is betrothed and his condition is void’—necessarily the case concerns a doubled condition, that he said to her: ‘If you will have no claim upon me for sustenance, clothing, and relations—be betrothed; and if not, do not be betrothed,’ since later the reason for R. Meir—that the condition is void—is that he conditions against what is written in the Torah. And if he had not doubled the condition, the condition would be void for R. Meir anyway because a condition must be doubled (Kiddushin 61). And it is astonishing: if so, why is she betrothed? He explicitly conditioned that if she will have a claim for sustenance, clothing, and relations, she is not betrothed.”

Tosafot preface that the case involves a doubled condition (otherwise the condition is invalid even if it is not against the Torah). But if he doubled the condition, then he clarified that if the obligation of sustenance, clothing, and relations will arise, he does not want the kiddushin. How then can the law be that she is betrothed to him and he owes her those three obligations? He did not intend to betroth her on those terms at all. This is a kind of “mistaken transaction.”

Tosafot then cite R”I’s answer:

“R”I explained: Were it not that we derive from the condition of the tribes of Gad and Reuven, we would have thought that no condition at all can nullify the act, and even if it is not fulfilled, the act stands. Now that we derive from there that a condition can nullify an act, we say that this is only when one does not condition against what is written in the Torah—similar to the tribes of Gad and Reuven, who did not condition against what is written in the Torah.”

The Acharonim elaborate on R”I’s words. In brief: R”I maintains that the very concept of a condition is a Torah innovation learned from the condition of the tribes of Gad and Reuven; without this, conditions would not work, because words cannot undo deeds. The Torah innovated that a person can empower his words so that, if the condition is not fulfilled, they cancel the act. But to do so one must stipulate in full accordance with the laws of conditions, including not conditioning against what is written in the Torah. What happens if one stipulates not in accordance with the rules—for example, against the Torah? In such a case, the Torah’s innovation does not operate, and words cannot cancel the deed. Hence the deed stands and the condition is void.

R. Shlomo Fisher explains there that an act of kiddushin with a condition immediately creates a legal effect; otherwise we would face the problem of “kalta kinyano.” However, that effect does not apply to the woman until the condition is fulfilled. Until then, it hovers, as it were, in the air—but this can occur only because, together with it, the condition creates a mechanism that holds it aloft and prevents it from applying to the woman (hence the need to stipulate in exact accordance with the laws of conditions learned from the tribes of Gad and Reuven; without this, the mechanism cannot be created). When the condition is fulfilled, the restraining force is canceled (by what he calls a “destructive force”), and the effect descends upon the woman. If the condition is not fulfilled, the effect dissipates and vanishes.

The Status of Acquisition by Money

Before proceeding, we can now see that the Rambam and the Raavad, Mechirah 2:9, apparently dispute the Ran’s ruling above:

“One who says to his fellow, ‘Pull this cow, but you will not acquire it until after thirty days,’ and he pulled—he did not acquire. But if he said to him, ‘Acquire from now and after thirty days’—he acquired, even if on the thirtieth day the cow was standing in the marshland. For this is like one who transferred it to him from now upon condition; once the condition is fulfilled, the acquisition is effected; and all who say ‘on condition’—it is as though they said ‘from now.’”

/Raavad’s gloss/ “On the thirtieth day,” etc. I say: If the cow stands in the buyer’s domain on the thirty-first day, it is his—just as [in the case of] ‘Behold, you are betrothed to me after thirty days,’ where the kiddushin take effect on that day.”

The Rambam likens this to a condition; i.e., when he says “from now,” he creates an effect with a restraining force, and therefore it works. But if he did not say “from now,” and the cow is in the buyer’s domain—did he acquire? The Rambam does not state this explicitly, but the simple reading suggests he did not. The act of acquisition was the initial pulling, and that did not effect acquisition. The Raavad disagrees and holds that he did acquire. His analogy to kiddushin is not obvious, for there the woman is not in his domain and the initial act can no longer betroth her. It seems he means that if the cow stands in his domain, it resembles kiddushei kesef, for in both the act of acquisition still exists in the world, and thus we do not say “kalta kinyano.”

Why Assume All This Metaphysics: The Causal Relation Between Act and Effect

The rule of “kalta kinyano” assumes a causal relation between the act and the legal effect. If act A causes effect B, then when the act occurs, the effect must also come into being immediately, and once it is generated it applies at once to the relevant object or person. The causal relation also works in reverse: if the effect applies to the person or object, this means that cause A occurred exactly at the moment preceding it. If there is a temporal gap between the act and the emergence of the effect, the assumed causal relation between them is broken. One cannot have a cause without the effect, nor an effect without the cause. Temporal contiguity flows from the principle of causality.

This may be compared to the principle of “action at a distance” in physics. The accepted assumption among physicists is that there can be no action at a distance between two bodies. For body A to act upon body B, something from A must arrive right up to B. A body cannot move another body distant from it unless it sends something to it. In physics this is done by a field, or in the quantum picture by force-carrying particles (photons, gravitons, etc.). In any case, there is a philosophical assumption that action at a distance is impossible.

It seems this is precisely the basis for “kalta kinyano”: there cannot be temporal distance between cause and effect. If A causes B, there must be contact between them along the time axis; they must occur simultaneously. If there is a temporal gap, we have a cause without an effect and an effect without a cause. The basis for this is what I described in the series of columns 459–466 devoted to the causal relation. There I showed that the cause is a sufficient (and perhaps also necessary) condition for the effect. This means that if A causes B, it cannot be that A occurs and B does not. And if A is the sole cause of B, it also cannot be that B occurred without A immediately preceding it. Therefore there can be no temporal gap between cause and effect. Logically one might say that A suffices for B to occur a month later, but it is commonly held that the “productive” (physical) component of causation—as opposed to the purely logical component (that the cause is a sufficient condition)—does not allow this. The demand that there be no temporal or spatial distance between cause and effect does not derive from the logical component of causation but from its “physical” (productive) component.

Back to Halakhah

So too in Halakhah: if a proprietary act is performed that is supposed to create a legal effect, then if the act occurred, the effect must immediately arise—and vice versa. When the cause unfolds over time in a continuous, gradual manner (“from now and after thirty days”), then there is no impediment to the effect emerging during the process or only at its end. But every event must be linked to the event before it in a chain: the act → the emergence of the effect → the creation of the legal state (i.e., when the effect applies to the object or person). Each stage in this chain necessitates the next. If there is any delay, there must be something holding it back and ensuring that the next stage does not occur. In the absence of such a thing, the next stage occurs automatically, or the entire chain dissipates. Because of the principle of causality, continuity is required; without it, everything dissipates.

Thus, when a man betroths a woman “from now and after thirty days,” the legal effect is not yet created; rather, the act itself does not “expire” until the thirty days are complete. It seems here that the act is ongoing and the effect emerges gradually, and therefore if another man betroths her, there are weak kiddushin for both. If no one else betrothed her, then at the end the effect is completed, lands upon the woman, and she is betrothed. And if one betroths a woman “after thirty days” by money, there is a lien created immediately. True, the Mishnah states that if another betrothed her she is betrothed to the second; this indicates that no effect exists until the thirty days are complete. What is created is only the monetary lien, and only at the end can the effect arise on its basis. It seems in that case that the kiddushin occur only at the end, and the “kiddushin money” is the lien created when the money was given (not the coins handed initially). Note that there is continuity here—something exists the whole time—hence it is possible. By contrast, with kiddushin by document or intercourse to take effect after thirty days, this cannot happen, because there is no continuity. After the act is performed, an effect must arise; otherwise the act expires (there is no lien here, since it is not money, and the act is not ongoing). But the effect cannot apply to the woman until thirty days, because the man does not wish to betroth her now. That is impossible, for after thirty days the act has expired and the effect has dissipated (there is nothing to hold it “in the air,” as in the case of a condition). The woman cannot become betrothed without an act of kiddushin performed immediately adjacent to that moment.

The Metaphysical Substrate of Halakhah

Here we reach the punchline. Seemingly, all this pertains to cause and effect in the physical world, where, absent continuity, the causal relation breaks. But in the legal realm we deal with norms—our legal or halakhic definitions. What prevents us from defining the possibility of betrothal by intercourse or document to take effect after thirty days? Why assume this is impossible? There is nothing physical here that truly exists or expires—just definitions. Can we not simply define betrothal by document after thirty days as valid? What prevents it?

Therefore it seems to me that Chazal understood causality here as objective, not merely a subjective legal definition. If so, we cannot define whatever we wish, for the questions are factual: did the act of acquisition actually create an effect or not, and can it create a delayed effect or not. If the principle of causality applies to legal acts and effects, there cannot be a temporal gap between the act and the effect it produces—just as a physical body cannot act at a distance even if we very much wish it to. Factually, without a cause, the effect simply will not arise. This is not a matter of definition and is not up to us.

Between Entities and Properties

In my critique columns on Asaf Inbari (518–519) I argued that just as entities exist in reality, so too do events and properties of things belong to reality. The red color of the chair beside me is something real and not merely subjective (though expressed in subjective language, since it is color and not the crystalline structure of the chair), and so too the speed of the car beside me. The car is an entity and its speed is a property or event; the chair is an entity and its color is a property. All of these belong to objective reality.

At the beginning I mentioned my article “What is a ‘Chalut’?”, where I argued that legal effects are treated in Halakhah as a kind of metaphysical entities and not merely as normative definitions. My claim there was that they are actual entities (and therefore two contradictory effects can, in principle, apply to the same woman simultaneously—for example: married woman and divorcee). In my article on “property law in Halakhah and in secular law” I discussed how Halakhah treats its determinations as factual, not merely definitional. When Halakhah says that after despair (ye’ush) a lost item no longer belongs to the loser, this is not only a normative determination but a metaphysical claim. I showed there that this is imposed upon the Sages, not created because they deemed it appropriate. Note that here I need not assume these are entities at all; it is enough to say they are factual properties of entities. Saying that so-and-so is a married woman is a description of a halakhic state. Saying that the effect of “married woman” applies to her says she bears some sort of entity. But one can say that her being a married woman is a property of hers, and the emergence of the effect is some occurrence—property and occurrence belonging to the metaphysical (not physical) dimension of reality. A woman’s height is a physical property; her being a married woman is a metaphysical (or meta-legal) property—not necessarily a metaphysical entity.

This is very similar to the thesis I raised in column 456 regarding moral realism—that is, the existence of “moral facts.” In ethics as well, the common view is that we are dealing with norms of our own making, dependent upon us. I argued (and here David Enoch and I agreed) that if we see morality as binding norms rather than mere delusions or conventions, we are necessarily assuming in the background the existence of moral facts imposed upon us and not subject to our decision. In that panel, David Enoch emphasized that these need not be entities; they may be properties of entities. Moral realism is a moral view that posits claims about reality—but not necessarily about entities.

Even so, it seems to me that in the context of “kalta kinyano” one can discern that we are dealing with entities and not only properties. The legal effect is a kind of entity, for the proprietary act creates an effect. It is unlikely that the act merely creates a state of the object (the woman or the field); for if the effect is hovering in the air and not applying to any person or object until the thirtieth day, then in that intermediate state there exists something that is not a property of a person or object. It is therefore unlikely to see it as a property or occurrence. In that state the effect exists as an independent object. The conclusion, here too, is that the possibility of delaying the effect indicates that it is a metaphysical object, not merely a metaphysical property of a physical entity.

Conclusion

It is important to remember that all these determinations are grounded in sevara (reasoned analysis). I know of no commentator who offers a verse from which the principle of “kalta kinyano” emerges, nor all the limitations and assumptions of when it applies and when not. All of these are the Sages’ reasoned analyses, and likewise regarding the examples discussed in my two articles cited above. Precisely for this reason it is clear that if we do not see legal reasons for these determinations, it is likely that we are dealing with a metaphysical conception of Halakhah. Were there plausible legal reasons for these determinations, we could view them as purely normative. But I see no such reasons, and there is no scriptural source for them; therefore the compelling conclusion is that the Sages likely understood this as reality. The legal effects are metaphysical entities or properties, not merely legal definitions, and therefore the halakhic outcomes are imposed upon them.

[1] In Pnei Yehoshua here, he cites this in the name of the Rosh and questions the inference from the language of the Mishnah. His objection is weak; I will not enter it here.