Enhanced Performance of a Mitzvah After Fulfilling the Obligation (Column 604)

In column 599 I mentioned later authorities’ discussions about performing hiddur mitzvah (beautifying a commandment) after one has already completed the mitzvah. For example: must one cut away residual skin (tzitzin she’einan me‘akvin) after the infant has already been circumcised, or can hiddur be done only during the performance of the mitzvah and not afterward? We saw there that Maimonides (Rambam) and the Tur apparently disagree on this point (though it’s also possible that they agree on the principle and argue only about the parameters of the mitzvah of circumcision). In that discussion I cited a question raised by the author of Beit HaLevi (Part II §47) in the course of his analysis of this Rambam–Tur dispute:

For some time I have wondered: if one took a kosher lulav on the festival of Sukkot and afterward happened upon a more beautiful lulav, is he obligated to take the more beautiful one? For one could say that although at the outset, had both been before him together, he would have been required to take the more beautiful, now that he has already taken [the first] and fulfilled the mitzvah, he no longer bears the obligation of the mitzvah—so by what mitzvah-act would this adornment be effected?

A person took a kosher (but not especially beautiful) lulav, and then a more beautiful one became available. Must he now take the more beautiful one in order to fulfill hiddur mitzvah, or has the opportunity been lost because the mitzvah was already fulfilled? A slightly different version of this question circulates in yeshivot in the name of R. Chaim (Brisker): before him are a kosher but not-beautiful etrog and a doubtfully kosher etrog that is exceptionally beautiful; which should he take first? The common answer is to take the more beautiful one first, since if he takes the merely kosher one he will have discharged his obligation and will no longer be able to perform the hiddur. As I noted, the Sha’agat Aryeh (§50) also treats a similar issue at length.

In this column I wish to address that very question.

A First Look: The Etrog vs. the Residual Skin

At any rate, it seems the Beit HaLevi sees a connection between that question and his discussion of the residual skin, for here too it appears to be about hiddur after the mitzvah has been performed. But of course one must distinguish: even if it is possible to add hiddur after performing the mitzvah (as in cutting residual skin that do not invalidate, thereby beautifying a circumcision already done), it may be that where the mitzvah has already been fulfilled, there is no place for performing it again. In the etrog case, the second performance does not beautify the first performance; it constitutes a renewed fulfillment of the mitzvah—this time with hiddur. That is obviously not the case with non-invalidating residual skin in circumcision, where cutting them is not a new circumcision but a hiddur of the existing circumcision, i.e., an improvement to the prior mitzvah-act.

This distinction can point us in two opposite directions:

• One might say that even if there is no scope to beautify via residual skin after the mitzvah’s fulfillment, in the etrog case one could first take the kosher etrog and afterward the beautiful one, since taking the beautiful one constitutes a new mitzvah-act; the hiddur there is not separate from and subsequent to the mitzvah, but part of performing the mitzvah itself. The problem there is different: is there room to perform a new mitzvah after we’ve already discharged our obligation—that is, does the second taking count as the mitzvah of taking the etrog at all? If not, then we are back to late hiddur: the mitzvah-act was the first, and the hiddur is only afterward. But that is not correct because of the second side I will now explain.
• Assuming one cannot fulfill the mitzvah again after having discharged the obligation, the etrog problem is in fact more severe than the residual-skin case. The “hiddur” in the second taking does not beautify the previous mitzvah but rather the present one—and if the second taking is not a mitzvah at all, there is no hiddur here. In other words, it is not late hiddur; it is no hiddur at all. According to this, even if in the etrog case there is no place to take it again, in the residual-skin case there may still be room to cut them after the fact.

In short, there is a difference between the two-etrog case and the residual-skin case: if one can fulfill a mitzvah a second time—then both Rambam and the Tur would agree that it is worthwhile first to take the kosher one and then the beautiful one. If one cannot fulfill a mitzvah again, then both would agree that taking the beautiful one after the kosher one is of no avail. This brings us to the question whether a mitzvah can indeed be fulfilled again after it has already been fulfilled.

Another Example: Sefirat HaOmer

In a “Midah Tovah” essay for Parashat Beshalach (2007), we discussed performing a mitzvah with hiddur after having discharged one’s obligation. Among other things, the example of counting the Omer was brought.

In Shulchan Aruch, Orach Chayim §489:3–4, we read:

3) One who prays with the congregation while it is still daytime counts with them without a blessing. If he remembers at night, he recites the blessing and counts.

4) If, during twilight, a friend asks him how many days the count is that night, he should say: “Yesterday it was such-and-such,” for if he says, “Today it is such-and-such,” he may no longer return and count with a blessing; but before twilight, since it is not the time of counting, it does not matter.

Of course, counting the Omer—even if done without obligation—does not involve a transgression, and therefore there is no impediment to performing an act of counting even if one has already fulfilled it. Whether to recite a blessing is a separate question, and here the Shulchan Aruch seems contradictory. In §4 he rules that if one told someone how many days the count is, he has fulfilled his obligation and therefore cannot return and count with a blessing. Presumably his assumption is that nowadays Sefirat HaOmer is rabbinic, so during twilight—which is a doubtful time—one has fulfilled the obligation out of doubt. Yet in §3 he says that if he counted during the day, should he remember at night he may count with a blessing.

In truth this is not necessarily a contradiction, for, as he himself notes at the end of §3, if one counts while it is still daytime (before twilight), there was no mitzvah at all, and therefore he returns and counts with a blessing at night. In §4, however, the case is where he counted at a time that does fulfill the mitzvah. But the Vilna Gaon, in his glosses there, assumes that §3 also refers to twilight; thus in his view the Shulchan Aruch contradicts itself. He explains that the source is in the Abudraham, who later retracted: in §3 the Shulchan Aruch rules like the Abudraham’s initial position—that even after fulfilling the mitzvah one can return and fulfill it again with a blessing (to do it more completely, or more beautifully); in §4 he rules like the Abudraham’s conclusion—that one may not fulfill it again with a blessing. This assumes (based on the Abudraham’s initial thought) that one can fulfill a mitzvah again for the sake of hiddur, even after discharging the obligation. That would seem to run counter to the above-cited assumption of the Beit HaLevi and what is generally accepted in halakhah.

Another Example: A Fat vs. Lean Sin-Offering

In Bavli Menachot 64a the Gemara discusses someone who brought a sacrifice twice.[1] There, a statement of Rava is cited:

Rabbah said: If before him are two sin-offerings—one fat and one lean—and he slaughtered the fat one and then slaughtered the lean one, he is liable; if [he slaughtered] the lean one and afterward the fat one, he is exempt—and moreover we tell him: bring a fat one ab initio and slaughter it.

It follows that one who slaughtered a lean sin-offering (less beautiful) may go back and slaughter a fat one on Shabbat in order to beautify the mitzvah (“Offer it, if you please, to your governor” is a separate source for beautifying offerings), even though he already discharged his obligation—and seemingly thereby transgresses the prohibition of slaughter on Shabbat (taking life) and [the prohibition of] unconsecrated animals in the Temple. This is also codified by Rambam, Laws of Inadvertent Transgressions 2:15.

The Sha’agat Aryeh (§50) infers from here, regarding residual skin that invalidate the circumcision, that one may go back even on Shabbat. It would seem he would also say, regarding lulav, that one can repeat the mitzvah to beautify it—contrary to the above-cited Beit HaLevi. Here we have an explicit Talmudic source that a mitzvah may be repeated for the sake of hiddur. Indeed, other later authorities adduce from this the possibility of performing a mitzvah with hiddur after discharging the obligation. For example, the Birkei Yosef (O.C. §272:1) learned from here that if one made kiddush on wine that had been left uncovered, he may repeat kiddush on wine that was not uncovered—even according to the opinion that one does fulfill the obligation with uncovered wine.

Yet we must recall that, plainly, the Menachot passage concerns slaughter, not the actual offering. Slaughter precedes the sprinkling of the blood; i.e., at that point he has not yet discharged the core of the mitzvah (bringing the sin-offering and achieving atonement—the sprinkling being the essence of atonement). It may be only for that reason that he may slaughter the fat one afterward, since the second is now his true sacrifice. But if he already sprinkled the blood of the first (lean) animal, it is certainly possible that he may not slaughter another sin-offering. This, it seems, is how the Beit HaLevi would reject a proof from that sugya. Indeed, the Kli Chemdah, Kunteres HaMilu’im, Parashat Yitro §4 (“ha-Birkei Yosef”), rejects the Birkei Yosef’s proof about kiddush along these lines. But the Sha’agat Aryeh and the Birkei Yosef apparently understood that it is indeed possible—and thus they join the Vilna Gaon’s view noted above.

Explaining the Dispute

In the aforementioned essay we linked the dispute to whether hiddur is part of the mitzvah itself or a distinct matter (i.e., whether “This is my God and I will beautify Him” constitutes an independent mitzvah, or a detail within all other mitzvot—to do them beautifully). According to the Beit HaLevi, who holds that one may not repeat a mitzvah for the sake of hiddur, the hiddur must accompany the mitzvah itself; a mitzvah without hiddur is lacking meaning. But those who hold that one may repeat a mitzvah to beautify it seem to view the hiddur as part of the mitzvah itself; without hiddur the mitzvah is lacking, and therefore he may return and perform it a second time. Yet one could understand it exactly the other way around: these opinions hold that hiddur is specifically not part of the mitzvah; even if he performed the mitzvah, he still remains with an obligation of hiddur. However, hiddur cannot be fulfilled without the mitzvah-act, for it is the mitzvah that is being beautified. Therefore, he may repeat the mitzvah solely in order to fulfill the obligation of hiddur.

Either way, it remains unclear how, after fulfilling a mitzvah, one could return and fulfill it again—even with hiddur. For even if hiddur is part of the mitzvah, and a non-beautiful mitzvah is lacking, it is still clear that one discharges the obligation without hiddur (it does not invalidate). How, then, can one fulfill again a mitzvah whose obligation has already been met? Before addressing this, I will bring an additional, even more extreme, example.

Kiddushin Performed by an Agent

The Gemara at the start of Kiddushin chapter 2 establishes that marrying a woman directly is preferable to doing so via an agent: “It is a mitzvah for him more than through his agent.” Let me preface with the observation that the plain sense of the sugya shows this principle does not apply exclusively to mitzvot; any worthy deed is preferable to do oneself rather than via an agent. Thus, for example, kiddushin are not a mitzvah according to most opinions, but rather a means toward a mitzvah (procreation), and nonetheless this principle applies to them. Likewise with preparations for Shabbat (at least according to some opinions).[2]

In Responsa Rivash §82 (and briefly in §98), a great novelty from the Raavad is cited in light of this sugya. The questioner writes there:

“You also asked: Reuven appointed an agent to betroth a woman for him in another city, and that agent betrothed her to Reuven properly—with the presumption that an agent carries out his agency—and they recited the betrothal blessing. The woman came with the agent to Reuven’s place to marry him. The woman and the agent say she was betrothed to Reuven by the agent. Must the husband betroth her a second time with his own hand and recite the betrothal blessing again before the wedding, or not? And you said that a case just like this came before you in Majorca: you wished to recite the wedding blessings but R. Vidal Efrayim, of blessed memory, did not allow you until the husband would betroth her a second time with his own hand. And you said to him: but the agent already betrothed her on his behalf; if the husband now betroths her again, you cast aspersions on the first betrothal done by an agent, and people will say betrothal by an agent is not valid. He answered you that the Raavad wrote in his Halakhot that one who betroths via an agent must betroth her again himself, based on [the principle in] ‘He Who Betroths’ (41a): a mitzvah for him more than through his agent. But in order not to pronounce God’s Name in vain—since one who recites an unnecessary blessing transgresses “You shall not bear [God’s Name] in vain”—he ordered that the Name not be pronounced in the blessing, only saying ‘Blessed are You, Hashem’ without pronouncing the Name. And you added that such a case again came before you, and you would have the husband betroth her again himself since the agent did not bring a written attestation from the place of the betrothal, even though the agent and the woman say she was betrothed there properly on behalf of the sender, and the agency document was drawn up here appropriately.”

The Raavad asserts that if a man betrothed a woman via an agent, he must betroth her again himself by virtue of “It is a mitzvah for him more than through his agent.” There is discussion there about the blessing, but the act of kiddushin with hiddur is certainly required.

He also cites views that if one betrothed a woman without reciting the blessing, he returns and betroths with a blessing (Tashbetz and others). Admittedly, that ruling could be understood as a blessing on the original kiddushin, and the second kiddushin is performed merely to avoid making a mockery. That is: the Tashbetz too might hold that one cannot perform a mitzvah after discharging the obligation, and the repetition is only to allow the blessing to be recited without it appearing odd—thus preventing confusion or mishap later.

The Rivash himself, at the end of the responsum, rejects the Raavad’s idea and writes:

“As for what R. Vidal Efrayim told you—that the Raavad wrote in his Halakhot that one who betroths via an agent must return and betroth her himself at the time of the wedding, based on [the rule in] ‘He Who Betroths’: ‘It is a mitzvah for him more than through his agent’—I am astonished how a holy man like the Raavad could say such a thing. For there they spoke only about when he comes to betroth at the outset—that it is a mitzvah for him more than through his agent. But after she has already been betrothed via his agent, and there are witnesses, what mitzvah is there in returning to betroth her when she is already betrothed and stands as such? This is nothing but an idle and pointless act—akin to what was cited there: that Rav Safra would singe the head [of an animal] and Rava would salt a fish for Shabbat; had someone else already singed or salted, they would not do it a second time.”

He takes it as self-evident that once betrothal has been performed, there is no value to a further act of kiddushin.

Thus the Raavad (and perhaps the Tashbetz) aligns with the Sha’agat Aryeh and other later authorities we cited, who are prepared to accept a second performance of a mitzvah after it has already been done; whereas the Rivash follows the Beit HaLevi. Note that regarding kiddushin this is an even greater novelty, since, as noted, according to most views it is not even a mitzvah but a procedural mechanism (a legal “act”) toward a mitzvah. All the more difficult, then, to understand the meaning of performing kiddushin upon a woman already betrothed. Furthermore, even were it a mitzvah, here we are speaking of a mitzvah that effects a legal status (chalut), and once that status has been created it cannot be created again. Hence, even if we would accept the possibility of taking a beautiful etrog again, that would be because for some reason a mitzvah can be fulfilled again after discharging the obligation (God regards the second act as a mitzvah in its own right). But when a mitzvah or act’s essence is to produce a legal outcome, it seems there is no value to a further act once that outcome exists.

We might push the question further: if kiddushin are not a mitzvah but a procedural definition (the creation of a legal status), it is unclear how hiddur mitzvah even applies.[3] Once the woman is betrothed, the deed is done—and that is all that matters. What could “beautifying” kiddushin mean? Perhaps the answer is that this is not hiddur of a mitzvah but beautifying a worthy deed. Everyone agrees that kiddushin is an act the Torah desires, even if not formally defined as a mitzvah.[4] And, as noted, the principle “It is a mitzvah for him more than through his agent” applies also to deeds that are not mitzvot—apparently one can speak of hiddur for them as well.

In any case, the rulings of those authorities who instruct to perform a mitzvah again with hiddur after discharge of the obligation still require explanation: how can one perform the mitzvah once the obligation has been met? And even for those who allow it, the Raavad’s words are very difficult: after all, the woman is already betrothed—what sense is there in an additional act of kiddushin for a woman already betrothed? Little wonder that, according to most Rishonim and poskim (as in the cited responsa of the Rivash), one certainly may not betroth a woman a second time merely to do so more beautifully—and likewise may not perform a mitzvah again after discharge of the obligation.

Possible Explanations

One first possibility is that the initial mitzvah is the mitzvah we did, and the second act is performed only to enable us to effect the hiddur. For, as the Beit HaLevi writes, hiddur that does not accompany a mitzvah-act is not hiddur. I raised this possibility above, but it is difficult: once the obligation has been discharged, the second act is not truly a mitzvah, and thus cannot achieve hiddur. Regarding kiddushin, which are not a mitzvah at all, this is even harder—especially since the legal status has already taken effect.

Another possibility: anyone who performs a mitzvah without hiddur implicitly stipulates that, should he later be able to perform it with hiddur, he does not intend to discharge his obligation through the first act. Thus, when an opportunity arises to perform it again with hiddur, it is clarified retroactively that he did not intend to fulfill the obligation with the first act, and he may repeat it in a beautified manner. Perhaps the same applies to kiddushin, which are not a mitzvah but admit of hiddur.

But this explanation depends on the disputed question whether one may make conditions with respect to mitzvot.[5] One could also suggest that this is not an individual’s condition, but a condition imposed by the court—that is, the Torah itself conditions the act in this way. But that too needs a source; it’s not clear how poskim could assert it purely by reasoning. This naturally leads us to the sugya of “The Sages voided the kiddushin” (afke’inhu rabbanan), after which we will return to this point once more.

Afke’inhu: The Ketubot Sugya

There are several cases where the Sages annul kiddushin performed properly—for instance, where a man coerces a woman into betrothal (and she says “I want” under duress), or where a man sends an agent to deliver a bill of divorce and cancels the agency not in the agent’s presence (see an overview here). The Gemara asks how this annulment mechanism works: how can the Sages void a legal status that has already taken effect, such that a married woman becomes single without a get? This seems to contravene the law (see the first mishnah in Kiddushin on how a woman is released: by a get or the husband’s death). Although, according to most opinions (not all), the annulment is retroactive—undoing the kiddushin—so that no get is needed, it still remains unclear how such a thing is possible. How can they make kiddushin that already took effect disappear as if they never were? Here too one is inclined to speak of an implicit condition: one who betroths does so subject to the Sages’ will, and when they void it, the kiddushin are void by virtue of the condition.

The Gemara discusses this at the start of Ketubot (3a). On 2b it cites a case: a man divorced his wife conditionally, and was prevented by circumstances from satisfying the condition; the woman would remain married, but Rabba says the Sages voided the kiddushin (for concerns of modest or immodest behavior; see there). The Gemara (3a) then wonders how such a mechanism could operate:

“Is there such a thing that, by Torah law, this would not be a get—and for concerns of modesty or impropriety we permit a married woman to the world?!”

It answers:

“Yes: whoever betroths does so subject to the Sages, and the Sages voided his kiddushin.”

The common explanation takes this to mean that one who betroths does so al da’at chachamim (subject to the Sages)—i.e., all kiddushin are conditional; the condition mechanism undoes them. Note that, by Talmudic law, “there is no condition in marriage”—conditions lapse after the wedding, since “a man does not render his intercourse promiscuous.” Hence it is not clear how to make the annulment depend on a condition.

On this Ravina objects:

“Ravina said to Rav Ashi: that works if he betrothed with money; if he betrothed by intercourse, what is there to say?”

If he betrothed with money, the Sages can void the kiddushin, but with betrothal by intercourse it is unclear how this works.

This objection is puzzling. If there is an implicit condition, why should it matter whether the kiddushin were by money or by intercourse? The man betrothed subject to the Sages. Again it appears the Gemara itself does not see this as a condition mechanism, but bases it on the rule that “property placed under the court’s jurisdiction is ownerless” (hefker beit din hefker). Thus the Gemara says: with kiddushin by money, we understand how the Sages can annul it; with betrothal by intercourse, it is not clear.

Note that an “ownerless” mechanism cannot explain every case of annulment. If a man betroths a woman against her will, one could perhaps say the Sages placed the money outside his ownership, and thus the kiddushin never took effect at the moment of transfer. But if a man betrothed a woman properly and years later sent an agent to divorce her and canceled the agency not in his presence—how can the Sages retroactively make the money “ownerless”? The money was already given and the woman was betrothed properly. Can you effect a property forfeiture twenty years in the past? Since the “ownerless” explanation is presented as an alternative to a condition mechanism, the difficulty of retroactivity is even greater.

One might have said that the forfeiture explanation applies only to the coercion case and not to cases calling for retroactive annulment. But that is also implausible, since the case under discussion in Ketubot is one of retroactive annulment: a man betrothed a woman properly, and later divorced her conditionally but was prevented by circumstances from satisfying the condition. There too, then, we have retroactive property forfeiture on account of a later event. From here it is proven that the Gemara is prepared to accept retroactive forfeiture of property by the Sages.[6]

Ultimately the Gemara answers:

“The Sages treated his intercourse as promiscuous intercourse.”

Here it is quite unclear what the Gemara means. Our question was how the Sages can void kiddushin by intercourse; the answer is that they render his intercourse promiscuous. But how do they do that? What explanation is being given? How does this resolve the difficulty?

Perhaps the discussion is not about whether the Sages have the power or authority to do this, but a wonderment at why they would do so. For by voiding kiddushin they retroactively render all previously legitimate marital relations illicit, and it seems unlikely they would do that. To this the Gemara answers that in these cases it is justified. This is possible, but still reads awkwardly.

Commentators disagree about the sugya’s conclusion. Some understand that once the final mechanism was established (for most, an implicit condition: “whoever betroths does so subject to the Sages”), the “court-forfeiture” proposal falls away, and thus annulment of kiddushin is unrelated to property forfeiture. Others maintain that forfeiture remains the explanation for kiddushin by money, while another mechanism applies for kiddushin by intercourse (or by document).

The commentators greatly elaborate on this weighty sugya, with many opinions and disputes. For my purposes none of this is crucial; to complete the picture, I will briefly present my own reading.

Afke’inhu: An Explanation

The condition mechanism commonly proposed to explain annulment seems to fit the opening phrase: “Whoever betroths does so subject to the Sages.” On a closer look, however, it is problematic. First, I already noted that the Gemara’s flow suggests it did not understand this as a condition—certainly not at the outset; even later the terminology of conditionality does not appear. Second, it is hard to say that every man conditions his kiddushin on the Sages’ consent—especially a criminal who wishes to betroth a woman against their will. It is implausible that such a villain would be so pious as to condition his kiddushin on their will. On the contrary: he might refuse to condition them, and then the Sages could not annul an act done deliberately against their will.

I think the natural explanation is that this is a condition imposed by the Torah or by the court, not by the betrother. That is, the law itself conditions kiddushin on the Sages’ consent. From where do we learn this? As I understand it, from the rule of hefker beit din hefker (itself derived only from a verse in Ezra—likely an asmakhta). This is grounded in the notion that monetary law depends on public consent. That is the meaning of legal principles of property and ownership: without a legal system and public agreement on its principles, there is no meaning to ownership and property law (see my articles on monetary law in the Kovno Ghetto and on halakhic rulings under extreme conditions). In every legal system the governing authority has the power to confiscate citizens’ property; it also determines the value of things and the currency that purchases them. So too in halakhah, by logic, that authority is given to the governing body or the court. If the Sages, as representatives of the public, do not recognize something as your property, then it is not yours.

We can then understand afke’inhu similarly. Just as hefker beit din concerns monetary law, here we have a principle concerning personal-status law. Note that in every legal system these two domains are part of law—i.e., determined by society and deriving authority from it. We saw that without public recognition of ownership there is no ownership; similarly, when society does not recognize a marriage, there is no marriage (in its legal sense—i.e., kiddushin). Hence, just as a court has authority to confiscate property, it has authority to annul kiddushin. Incidentally, this suggests the possibility of prospective annulment (from now on), without retroactively voiding the original act: they simply stop recognizing this couple as married—just as with property forfeiture, which is prospective (the asset ceases to be mine from the moment of forfeiture).

In my view this is the root of the Sages’ power to confiscate property and annul kiddushin. This authority pertains to all halakhic domains belonging to the legal sphere—i.e., Choshen Mishpat and Even HaEzer—as opposed to Orach Chayim and Yoreh De’ah, which are not legal in this sense. Therefore, there is an implicit condition by the Torah itself upon all property and personal-status law: all are subject to the Sages’ approval.

We can now understand the Gemara’s flow in Ketubot. First it wonders how the Sages can annul kiddushin. It cites that this authority derives from the legal standing of society vis-à-vis law. Then the Gemara initially thought this applied only to property—Choshen Mishpat—since “property under the court’s jurisdiction is ownerless.” In its answer it extends this to Even HaEzer: the Sages render his intercourse promiscuous, i.e., they do not recognize it as creating a valid legal status (kiddushin). If so, it is simply illicit intercourse. This also resolves the other difficulties: the betrother is not the one making a condition, and retroactivity is addressed.

Back to Our Topic: Performing a Mitzvah for the Sake of Hiddur

At first glance we encounter two mechanisms in Ketubot: implicit conditionality (of the individual or of the court), which of course can operate retroactively; and court-forfeiture, which is not about conditions (and yet for some reason also operates retroactively). I presented an interpretation under which afke’inhu can also operate prospectively, i.e., not necessarily retroactively. Moreover, retroactive property forfeiture must, in the end, rely on conditionality, since the dependence of the legal status on the Sages’ consent operates from now on, not backward. It may be that even property forfeiture is only from now on, and the kiddushin become void from that point forward (hence no get is required because the status is voided, not altered by the husband).

For our purposes, we seek an explanation for views that allow betrothing a woman already betrothed, or performing a mitzvah already fulfilled. If we wish to avoid the forced option that the second performance is a legal fiction purely for hiddur (rejected above), we must look for a mechanism that cancels the first action/mitzvah, leaving the second as the relevant act.

Regarding kiddushin, although this is a matter in the legal sphere of halakhah, we could, in principle, see it as a kind of afke’inhu: the Sages void the first kiddushin to allow a second, beautified kiddushin. But this is forced, lacking a clear Talmudic source. From where did the Raavad know that the Sages actually annul kiddushin in such a scenario? Moreover, the need to perform kiddushin with hiddur hardly seems weighty enough to justify afke’inhu (perhaps even rendering prior relations “promiscuous”). Beyond that, we saw that other mitzvot—not belonging to the legal sphere—can, according to some, be performed a second time.

It therefore seems the explanation must be based on a condition mechanism—and that exists beyond the legal sphere. According to this, there is an implicit condition accompanying any non-beautified mitzvah: one may return and perform it with hiddur, with the first performance nullified. This is a difficult option: if it is a condition imposed by the Torah (a court’s condition), we need a source. We are forced to say it is the individual’s own condition: when he performs a mitzvah without hiddur he implicitly stipulates that, should he be able to perform it beautifully, the initial performance is void. But then we must ask whether such a stipulation is in fact made. Perhaps, logically, we assume that any reasonable person wishes to have the option to perform the mitzvah with hiddur, and therefore we view this as an implicit condition by the particular individual performing the mitzvah or betrothing.

One might further suggest that the Torah voids the first act/mitzvah prospectively—that is, only from the time the second act/mitzvah is performed. Any mitzvah performed without hiddur stands subject to a condition: if it will be performed with hiddur, the first gives way (not retroactively), and the second act is deemed the mitzvah from then on. This need not be a condition mechanism, since it operates prospectively. Although we are not speaking only of acts in the legal sphere (we are dealing with mitzvot), perhaps we can extend the mechanism seen above beyond the legal sphere.

Where the performance is without a blessing (as with counting the Omer)—which is rabbinic—one could say that all mitzvah performances are subject to the Sages’ consent; they can therefore uproot the first in order to enable an additional performance according to their ordinance. This could also explain the Sages’ authority to uproot a biblical law. In this way we might also understand the Tosafot, Sukkah 3a s.v. de’amar lach, who write that one who does not perform the mitzvah as instructed by the Sages fails to discharge even the Torah-level obligation.

However, in kiddushin or in the “lean vs. fat sin-offering” case, we are plainly speaking of a Torah-level hiddur, not a rabbinic ordinance. There we might say that the Torah itself conditions the first performance on there being no subsequent, beautified performance; if there is, the latter is deemed the mitzvah-act, and the first is nullified. Still, the source remains unclear: from where did those poskim learn that the Torah does this? Therefore the option of an individual’s implicit condition seems more reasonable—but then, of course, it operates retroactively.

[1] See also the end of the “Midah Tovah” essay that same year for Parashat Vayechi.

[2] See my class on this topic (Kiddushin ch. 2).

[3] See a similar discussion regarding the Birkas Shmuel’s question on invalid gittin, in my essay in Midah Tovah, 2007, Parashat Ki Teitzei.

[4] See at length my response article to Rivka Lubitch, where I argued that all agree that living with a woman without kiddushin violates the Torah’s will—akin to negating a positive command—even if there is no mitzvah in kiddushin themselves. It is a kind of “negative derived from a positive,” or a means, for the Torah instructed us to precede marriage with kiddushin.

From here also a note to those who interpret Rambam as holding that kiddushin are a mitzvah. This is not necessary. He indeed includes such a “mitzvah” in his count, but he also includes there procedural halakhot (see, for example, positives 95–96, etc.). It is true that machshirei mitzvah (preparatory acts) are not counted for him (see the tenth principle in Rambam’s introduction and our article on this in the book Yishlach Shoreshav).

[5] See surveys here and here.

[6] On this is based Prof. Brachyahu Lifshitz’s proposal to solve the agunah problem by having the Knesset retroactively forfeit the kiddushin money of the recalcitrant husband, thereby voiding the kiddushin. The Gemara innovates that even a court can forfeit property (and, according to most, only the leading court of the generation; it is doubtful that such a court exists today), but a governing authority (a king) certainly can do so by virtue of his rule. For that one does not even need the innovation of hefker beit din; it is part of dina de-malchuta.