Lesson 2: Ki Tavo

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Recitation of First Fruits: A Study of the Halakhic Meaning of Speech

A. The Relationship Between the Recitation of First Fruits and the Bringing of First Fruits

At the beginning of the portion, the Torah commands us to set aside bikkurim (first fruits), and when bringing them to recite the passage of bikkurim (Deuteronomy 26:1-11):

And it shall be, when you come into the land that the Lord your God gives you as an inheritance, and you possess it and dwell in it,

that you shall take of the first of every fruit of the ground that you bring in from your land, which the Lord your God gives you, and you shall place it in a basket and go to the place that the Lord your God will choose for His name to dwell there.

And you shall come to the priest who will be in those days, and say to him: I declare today to the Lord your God that I have come into the land that the Lord swore to our fathers to give us.

And the priest shall take the basket from your hand and place it before the altar of the Lord your God.

And you shall answer and say before the Lord your God: An Aramean sought to destroy my father, and he went down to Egypt and sojourned there with few people, and there he became a great nation, mighty and numerous.

And the Egyptians dealt harshly with us, afflicted us, and laid hard labor upon us.

And we cried out to the Lord, the God of our fathers, and the Lord heard our voice and saw our affliction, our toil, and our oppression.

And the Lord brought us out of Egypt with a strong hand and an outstretched arm, with great awe, with signs and with wonders.

And He brought us to this place and gave us this land, a land flowing with milk and honey.

And now, behold, I have brought the first of the fruit of the ground that You, Lord, have given me. And you shall place it before the Lord your God, and you shall bow down before the Lord your God.

And you shall rejoice in all the good that the Lord your God has given you and your household, you and the Levite and the stranger in your midst.

The commandment to bring bikkurim is counted by most of the enumerators of the commandments under the portion of Mishpatim. Here, however, the main issue is the commandment of recitation over the bikkurim.

The enumerators of the commandments count both commandments separately: the bringing of bikkurim and the recitation of the declaration of bikkurim.

What is the relationship between these two commandments? Ramban mentions the commandment of recitation in his discussion of the blessing over Torah study, in his additions to Maimonides’ list of positive commandments, commandment 15. He writes as follows:

Commandment 15: We were commanded to give thanks to His blessed name whenever we read from the Torah, for the great good that He did for us in giving us His Torah and making known to us the deeds that are desirable before Him, through which we inherit the life of the world to come. And just as we were commanded regarding a blessing after every act of eating, so too we were commanded regarding this… From all this it is clear that this blessing is from the Torah. And it is not proper to count it as one commandment together with the reading, just as the recitation of bikkurim is not counted together with bringing them, nor the telling of the exodus from Egypt together with eating the Passover offering.

Ramban says that the commandment of mikra bikkurim, the recitation of the first-fruits declaration, is counted separately from the bringing of the bikkurim, and it would seem from this that these are two distinct commandments. Other obligations accompanying the bringing of bikkurim, such as song, an offering, and the like, are not counted separately. He compares this to the telling of the exodus from Egypt as opposed to eating the Passover offering, or the blessing over Torah as opposed to Torah study. Still, one can see that there is a close connection between them, just as there is between the blessing over Torah and Torah study.

Maimonides, in Positive Commandment 132, writes as follows:

The 132nd commandment is that He commanded us to recount His kindnesses, by which He benefited us and saved us, beginning with the story of our patriarch Jacob and ending with the bondage of the Egyptians and their affliction of us, and to praise Him for all this and ask Him to continue the blessing when one brings the bikkurim. This is His statement, may He be exalted: “And you shall answer and say before the Lord your God: An Aramean sought to destroy my father,” and all that follows in that passage. This commandment is called, in the Mishnah, Sotah 7:2-3, mikra bikkurim. Its laws have already been explained in tractate Bikkurim and in the seventh chapter of tractate Sotah, Babylonian Talmud, Sotah 32a-33a. Women are not obligated in it.

From Maimonides’ language, it appears that the commandment to recite is merely a commandment of verbal declaration, while the bringing of the bikkurim serves only as the occasion for that declaration, somewhat like the entry into the sanctuary on Yom Kippur. According to this, there is no law here concerning the bikkurim themselves; rather, it is a commandment whose time of fulfillment is the bringing of the bikkurim. Perhaps this is why Maimonides writes at the opening of chapter 4 that the recitation of the declaration is not indispensable, unlike the other accompanying obligations, such as song and an offering. It is not a law in the bikkurim, but a personal obligation to say the passage.

However, in the introduction to the Laws of Bikkurim, Maimonides writes:

The laws of bikkurim, together with the other priestly gifts that apply outside the Temple, contain nine commandments: eight positive commandments and one negative commandment. These are their details:

1. To set aside bikkurim and bring them up to the Temple.
2. That the priest not eat bikkurim outside Jerusalem.
3. To recite over them.

From here it appears that the commandment is “to recite over them.” The laws of the recitation are also brought in the Laws of Bikkurim. In Sefer Ha-Chinukh, this is even clearer: the title of commandment 606 is “the commandment of recitation over the bikkurim.” And at the start of his discussion there, he writes:

We were commanded that when we bring the bikkurim to the Temple, we should recite over them these verses mentioned in this section…

If so, there does appear to be a connection between mikra bikkurim and the bringing of the bikkurim. This also emerges from the wording of the Torah above, since in the verses it is presented as an organic part of the process of bringing the bikkurim. Compare this with the entry into the innermost sanctuary on Yom Kippur in the portion of Aharei Mot, where there is a detailed command concerning entry into the sanctuary, and only afterward a command to perform this on every Yom Kippur.

Still, one must ask whether this connection is merely external or whether it is essential. Are these two commandments that are performed together, like the blue and white strands in tzitzit, or is mikra bikkurim part of the bringing of the bikkurim themselves? And even if the connection is essential, one must still ask whether it is a law pertaining to the object itself, that is, to the bikkurim, or a duty incumbent on the person, that is, an obligation accompanying the act of bringing.

B. Halakhic Implications

As we mentioned, Maimonides writes at the opening of chapter 4 that the recitation is not indispensable, since there are many who bring and do not recite. It would seem from here that the recitation is not an essential part of the bringing. Maimonides indeed writes there:

Everyone who brings bikkurim requires an offering, song, waving, and overnight stay, but the declaration is not the same for all, since there are some who are obligated to bring bikkurim and yet do not recite over them.

Who are those who cannot recite? Maimonides details them in halakha 2 and later in the chapter:

And these bring but do not recite: a woman, a tumtum (a person of indeterminate sex), and an androgynous person, since the latter two may be female and therefore cannot say, “which the Lord gave me.” Likewise guardians, a slave, and an agent, since they cannot say, “which the Lord gave me.”

On the other hand, we do find cases in which the recitation is indispensable.

The foundation of the matter is the discussion in Babylonian Talmud, Makkot 18b, with a parallel in Babylonian Talmud, Bava Batra 81b:

Rabbi Elazar said in the name of Rabbi Hoshaiah: Regarding bikkurim, the placing down is indispensable, but the recitation is not indispensable.
But did Rabbi Elazar really say this? Rabbi Elazar said in the name of Rabbi Hoshaiah: If one set aside bikkurim before the festival and the festival passed over them, they must rot. Is this not because he can no longer recite over them? And if you say that the recitation is not indispensable, why must they rot?
This follows the principle of Rabbi Zeira, for Rabbi Zeira said: Anything fit for mingling, the mingling does not prevent it; but anything not fit for mingling, the mingling does prevent it.

Thus, one who set aside bikkurim before the festival and brought them after the festival must let them rot, because with regard to them the recitation is indispensable. The bikkurim are not fit for recitation after the festival, as Rashi explains there in light of the Mishnah, Bikkurim 1:6:

Bikkurim before the festival are fit for recitation; after the festival they are not fit for recitation. For after the recitation it is written, “And you shall rejoice in all the good.” From Shavuot until the festival, which is the season of rejoicing in the fruit harvest, one brings and recites; from the festival until Hanukkah, one brings but does not recite.

Now Maimonides rules in chapter 4, halakha 13:

One who brings bikkurim from after the festival of Sukkot until Hanukkah, even if he set them aside before the festival, brings and does not recite, as it is said, “And you shall rejoice in all the good,” and recitation exists only at a time of rejoicing, from the festival of Shavuot until the end of the festival. All others who bring, apart from these, bring and recite.

That is, Maimonides apparently does not hold that inability to recite is indispensable. At first glance, this stands in opposition to Rabbi Zeira’s statement.

The Gemara there, and in Bava Batra, discusses one who bought trees from another person: is he obligated to bring bikkurim from them? As is well known, one who has no land cannot bring bikkurim, since he cannot say, “the first of the fruit of the ground that You, Lord, have given me.” In the case of one who bought trees from another person, the Gemara is uncertain whether he also acquired the land along with them. The law is that he brings bikkurim but does not recite. The Gemara discusses what happens on the assumption that these are not bikkurim, which would exempt them from priestly gifts and tithes, and then what happens if they are indeed bikkurim:

But perhaps they are bikkurim and require recitation!
Recitation is not indispensable.
Is it not? But Rabbi Zeira said: Anything fit for mingling, the mingling does not prevent it; but anything not fit for mingling, the mingling does prevent it!
It treats them like the case of Rabbi Yosei bar Hanina, who said: If he harvested them and sent them by the hand of an agent, and the agent died on the way, he brings and does not recite. What is the reason? Because it is written, “And you shall take… and you shall bring” — the taking and the bringing must be together, and here they are not.
Rav Aha the son of Rav Avya said to Rav Ashi: After all, they are only verses; let him recite them!
He said to him: Because it appears false.
Rav Mesharshiya the son of Rav Hiyya said: Lest he come to exempt them from priestly gifts and tithes.

Thus, the assumption is that recitation is not indispensable, and therefore one can always bring without reciting, just to be safe. But the Gemara immediately rejects this and says that this is not correct: sometimes recitation is indeed indispensable, and only when recitation is possible does the lack of actual recitation not prevent fulfillment, just as with the mingling of meal offerings. This is what we saw above with bringing after the festival.

The Gemara also shows that a case of doubt is regarded as a situation in which recitation is impossible, and therefore recitation is indispensable. Only when a person simply did not recite is the recitation not indispensable. If there is a substantive reason that prevents him from reciting, the bikkurim are invalidated. The Gemara here also rejects the possibility of reciting just in case, even in cases of doubt. True, we are speaking only of verses that there is no prohibition against saying, but to say them in this context is still an “appearance of falsehood.”¹

Now Maimonides rules here, in chapter 4, halakha 4:

One who buys two trees in the field of his fellow brings but does not recite, because the matter is doubtful whether he has land or does not have land. What does he do? He first consecrates them for Temple maintenance, because they are possibly ordinary produce, and ordinary produce is not brought into the Temple courtyard. The priest redeems them from the consecration and afterward eats them. He separates from them priestly gifts and tithes, because they are possibly ordinary produce, and he gives their tithes to the priests, lest they be bikkurim and therefore forbidden to non-priests. He does not bring them himself, but sends them by an agent, so that the recitation should not prevent them from being eaten, for whenever something is unfit for recitation because of doubt, the recitation prevents it.

Thus, in this case Maimonides holds that inability to recite does indeed prevent fulfillment when the case is not fit for the relevant act. This stands in tension with his statement above in chapter 4, halakha 13.

There is yet another law concerning bikkurim: bikkurim that were fit and then rejected must rot. This law is brought in Tosafot, on the words “and harvested them,” in Babylonian Talmud, Bava Batra 81b:

“If he harvested them and sent them by an agent, and the agent died on the way, he brings and does not recite.” This is difficult: they were fit for recitation and then were rejected, and we should therefore say that they must rot, as Rabbi Zeira said in the final chapter of Makkot, Babylonian Talmud, Makkot 18b: if one set aside bikkurim before the festival and the festival passed over them, they must rot, because before the festival they were fit for recitation and after the festival they were no longer fit; for this very reason they are considered there as not fit for mingling, and mingling prevents them.

Tosafot explains the law of bringing after the festival differently: if there are bikkurim that from the outset are not fit for recitation, then the recitation does not prevent them, even if one cannot recite. Only when the bikkurim were once fit for recitation and were later rejected does the recitation become indispensable. Tosafot continues and answers its own question:

Rabbeinu Hayyim answered that here we are dealing with a case in which, from the outset, when he harvested them, he intended to send them by another person. In that case he may send them by another person as though they had never been fit for recitation at all, as is proved from the Jerusalem Talmud, tractate Bikkurim, chapter 1, where it says: Rabbi Yohanan and Resh Lakish said in the name of Rabbi Hoshaiah that this is when he gathered them in order to send them by another person; but if he gathered them in order to bring them himself, he may not send them by another person, because all bikkurim that were fit to be released through recitation are not released except through recitation. And it says afterward: the Mishnah disagrees, for we learned that if he set aside his bikkurim and sold his field, he brings and does not recite. This is established as a case where from the first moment he intended to sell. And what we learned, “if the tree dried up or was cut down, he brings and does not recite,” is a case where it dried up from the first moment.

Tosafot thus brings from the Jerusalem Talmud that where bikkurim were from the outset not fit for recitation, the recitation does not prevent them. Rabbi Zeira’s statement deals only with bikkurim that were fit and then rejected, not with bikkurim that are simply not fit for recitation. Tosafot concludes:

According to this, if one set aside bikkurim before the festival on condition that he would bring them after the festival, they do not rot; rather, after the festival he brings and does not recite.

That is, if when he harvested them he already intended to bring them after the festival, then although he cannot recite, the bikkurim were never fit for recitation from the outset. In such a case the recitation is not indispensable.

We therefore learn that if there are bikkurim that were set aside with the intention of being brought in a manner that requires recitation, and they later reached a state in which recitation is impossible, then the recitation is indispensable and the fruits must rot.

Let us now return to Maimonides’ view. We saw a contradiction in Maimonides, since in halakha 4 he rules that because of doubt they must be treated in a way that avoids the problem of invalidation, whereas in halakha 13 he rules that after the festival one brings and does not recite. More than that: in halakha 4 he is discussing one who bought two trees, and there the fruits are from the outset, from the time of harvest, unfit for recitation. It is precisely there, then, that Maimonides should have ruled that the recitation does not prevent fulfillment.

Kesef Mishneh there, on halakha 13, resolves this as follows:

“One who brings bikkurim,” etc. There the Mishnah says that from the festival until Hanukkah one brings and does not recite, and in Babylonian Talmud, Pesahim 36b, the reason is given as that it is not a time of rejoicing. As for what our master wrote, “even if he set them aside before the festival,” this is difficult, for in Babylonian Talmud, Makkot 18b, Rabbi Elazar said in the name of Rabbi Hoshaiah that if one set aside bikkurim before the festival and the festival passed over them, they must rot. The Gemara gives the reason there on the basis of the rule that anything not fit for mingling is prevented by the lack of mingling. It must therefore be said that our master set that ruling aside in favor of the one in Babylonian Talmud, Gittin 47b, where Rabbi Yosei bar Hanina said: if he harvested them and sent them by an agent and the agent died on the way, he brings and does not recite, for it is written, “And you shall take and you shall bring,” meaning that the taking and the bringing must be together. And although the Jerusalem Talmud explains this as referring to one who gathered them in order to send them by an agent, but if he gathered them to bring them himself he should not send them by another, because all bikkurim that were fit to be permitted through recitation are not permitted except through recitation — since our Talmud brings Rabbi Yosei bar Hanina’s ruling in Babylonian Talmud, Bava Batra 81b, and in Babylonian Talmud, Gittin 47b, without qualification, and if our Talmud agreed with the Jerusalem Talmud it would not have remained silent about so great a distinction, we follow our Talmud. Moreover, the Mishnah of one who set aside his bikkurim and afterward sold his field, and the Mishnah of one whose spring dried up or whose tree was cut down, both are stated without qualification and accord with Rabbi Yosei bar Hanina. Even though the Jerusalem Talmud gives them a strained answer, we do not rely on it. According to this, what our master wrote earlier in this chapter concerning one who bought two trees, that whenever something is unfit for recitation because of doubt, the recitation prevents it — there the case is different, because it is due to doubt.”

Kesef Mishneh cites Rabbi Zeira’s law that bikkurim that were fit and then rejected are not permitted without recitation, and argues that the various discussions disagree on this point, so Maimonides does not rule in accordance with that view. According to Maimonides, even bikkurim that were fit and then rejected are brought without recitation.

If so, why does Maimonides rule in halakha 4 that in a case of doubt the inability to recite does prevent fulfillment? Kesef Mishneh leaves the matter cryptically, writing only: “there the case is different, because it is due to doubt.” His meaning is not entirely clear.

It seems that he means the following: in a case of doubt, there is one possibility that these are bikkurim that currently require recitation, assuming he does indeed have land. On the other hand, it is impossible to recite, because perhaps he does not have land and the statement would appear false. In such a situation the obligation cannot be fulfilled, and therefore the fruits must rot, unless he sends them by an agent. This is Rabbi Zeira’s point when he says that where something is not fit for mingling, the mingling is indispensable. He is speaking only of a case in which the bikkurim presently need recitation, not of a case in which there was once a need for recitation and that need later fell away.

We thus learn that according to Tosafot, where there are bikkurim that were once fit for recitation and later rejected, they must rot. The same is true in a case of doubt, which for Tosafot amounts to the same state of affairs. According to Maimonides, however, these are different situations: if the bikkurim were fit and then rejected, one brings and does not recite, because at the end of the day it is now clear that they no longer require recitation. But if there is a case in which they may presently require recitation and he cannot recite for an external reason, as in a case of doubt, they must rot. What underlies the difference between these two positions?

The very rule that if one does not recite, the bikkurim must rot — that is, that recitation is indispensable — means that at least in these cases the recitation is part of the bringing of the bikkurim itself, and not merely an accompanying commandment, such as the blue and white strands in tzitzit. The recitation can block the bringing.

According to Tosafot, when the bikkurim were once in a state that required recitation and were later rejected, there remains a law in the object itself, in those bikkurim, that requires recitation. Therefore, if he does not recite over them, they must rot. Maimonides disagrees with this, because in his view, if the bikkurim are now not fit for recitation, there is no need for recitation. There are no residual legal requirements embedded in the fruits themselves.

At first glance, Maimonides seems to hold that recitation is a duty incumbent on the person and not a law in the object itself. When recitation is required and not performed, no invalidating deficiency takes effect in the fruits themselves.

However, as we saw, in a case of doubt even Maimonides agrees that if one does not recite, the fruits must rot. There, according to everyone, there is a law in the fruits themselves that requires recitation. If there are bikkurim that presently require recitation, there is no possibility of bringing them without recitation. Therefore, even according to Maimonides there is a law in the object itself, and his disagreement with Tosafot is secondary: does a residual law remain in the object after the possibility of recitation has been rejected?

By contrast, if one simply fails to recite over bikkurim that do require recitation, then according to everyone he has fulfilled his obligation and the bikkurim are not invalidated. But this is by virtue of the rule: anything fit for mingling is not prevented by the lack of actual mingling. The plain understanding of this rule is that what the meal offering requires is not the mingling itself, but the possibility of mingling. Therefore, when mingling is possible, there is no need to do it in practice. So too with bikkurim: what is required of the bikkurim is the possibility of recitation, not the recitation itself. Hence the actual recitation does not prevent fulfillment when recitation is possible.

It may be that the recitation is only an expression of entirely different requirements relating to the bikkurim: that the person have land, that he be the owner, and so forth. In practice, this means that these are not requirements in the recitation, but in the obligation of bringing the bikkurim itself. This expresses the fact that the recitation is not separate from the duty of bringing. Here we saw that the recitation is also a law in the object itself, since when this requirement is not fulfilled the rule is that the bikkurim must rot.

We find another law concerning bikkurim in halakha: if a person has already recited once, then when he brings additional bikkurim he brings them but does not recite. At first glance, the very rule that once he has recited he no longer recites would indicate that this is a person-based duty. But the accepted halakha is that this applies only to the same species. If he brings a different species, he does recite over the second species. If so, it is clear that there is also an object-based aspect here. Presumably the definition is that only the first bringing of each species counts as full-fledged bikkurim, and therefore only over that bringing is there a law to recite. Whatever does not count as bikkurim cannot be recited over. Therefore this is not a law in the reciter or in the person as such, but a law in the object-status of bikkurim, provided that they are indeed bikkurim. As for the fact that one may nevertheless bring a second batch from the same species, that is only because of the law of adornment of bikkurim or addition to bikkurim, and this is not our subject here.

Now Minhat Chinukh, on commandment 606, section 10, raises a difficulty. On the one hand, we rule that if someone brings bikkurim twice from the same species and recited over the first batch, then with the second batch he brings and does not recite — “I declare this day” means that once in a year he declares, and not twice. And if he did not recite over the first batch, then with the second batch he may recite as well. We explained that this is because of the category of adornment or addition to bikkurim: he may bring them, but not recite. Yet in section 8 it is explained that if a person bought a field after the seller had already set aside bikkurim, the buyer brings and does not recite, even if the first owner brought without reciting.

Plainly, an exemption from recitation based on the fact that recitation has already been performed is an exemption from recitation. But an exemption from recitation based on the fact that the fruits have already been brought is a determination that the second fruits are not really bikkurim, and the absence of recitation is only the consequence. Why, in the case of the buyer of a field, are the later fruits not bikkurim at all, whereas in the case of the same person bringing the same species again, the fruits are still bikkurim and he may even recite over them, unless he has already recited?

It seems that in the case of the same person, this is indeed only an exemption from recitation and not a deficiency in the fruits themselves, because they count as an adornment of the bikkurim. The same person can bring an adornment to his bikkurim, but not recite over it. And if he has already recited, it may be that in such a case the true bikkurim are the second batch, while precisely the first batch, over which he did not recite, constitute the adornment of the bikkurim. But in the case of one who buys a field, the second person cannot adorn the bikkurim of the first person, and so those fruits do not even have the status of adornment. Why, then, can he bring them at all, albeit without reciting? Perhaps one should distinguish and say that those can indeed count as adornment, whereas in the earlier cases we were dealing with addition to bikkurim. That would yield three kinds of object-status: the primary fruits, an addition, and an adornment.

C. Recitation in the Holy Tongue

The Mishnah at the beginning of chapter 7 of tractate Sotah states that the declaration of bikkurim is recited only in the holy tongue, that is, in Hebrew; see there for the source. In the Gemara there it appears that the language of “saying” allows any language, whereas the language of “answering” requires specifically the holy tongue. “Answering” is always directed toward someone or something — compare the expression “bread of affliction,” over which many things are said. Above we saw Ramban’s comparison between the commandment of telling the story of the exodus from Egypt together with eating the Passover offering and matzah, and the declaration of bikkurim together with their bringing. In both cases one “answers” or says something over a concrete object. Even so, the telling of the exodus can be done in any language, whereas mikra bikkurim can be done only in the holy tongue.

Now, in Maimonides, Laws of Bikkurim 3:10, the rule is stated that the bikkurim passage must be said in the holy tongue. Minhat Chinukh on commandment 606 notes that in the Gemara there is also a derivation that it must be said in a loud voice, and this does not appear in Maimonides. He adds that by contrast, in Laws of Prayer 14:11, both rules are stated with regard to the priestly blessing in the Temple. It is not entirely clear, however, where he found this derivation, for in Babylonian Talmud, Sotah 33a, lower down, “loud voice” appears as a scriptural expression used for an analogy between texts, not as a derivation that mikra bikkurim itself requires a loud voice. This requires further investigation.

One should also note the discussion in Babylonian Talmud, Berakhot 15a, where the tannaim, Rabbi Yose and Rabbi Yehudah, disagree regarding the recitation of the Shema: whether it may be said in any language, and whether it must be said audibly. Rashba writes there:

Rabbi Yose can say to you that from this one learns automatically: “in any language that you hear.” Rashi explained that two things are learned: once you interpret “hear” as “in any language that you hear,” you also learn from the language of hearing that one must make it audible to his own ear. This is not satisfactory in my view, for how do we know that two things are learned from it? And moreover, that is not what “automatically” means. It seems to me that the meaning is as follows: once you derive from it “in any language that you hear,” it follows automatically that he must make it audible to his ear. For if not, why did the Torah need to permit any language that he hears? That is obvious, since if he need not make it audible to his own ear, then even mere thought in the heart would be permitted, as appears later, in Babylonian Talmud, Berakhot 20b, regarding one who experienced a seminal emission. And in thought of the heart, language has no relevance. It therefore follows that there is no distinction between the holy tongue and all other languages. Clearly, then, from the fact that the Torah needed to permit any language, we automatically learn that he must make it audible to his ear. It is possible that Rabbi Yehudah does not accept this, because he holds that although one need not make it audible to his ear, he still must articulate it with his lips and not merely think it. Therefore the Torah had to permit any language that he hears. So it seems to me.

Rashba explains Rabbi Yose’s position: how can two things be learned from the same verse? He explains that from the derivation of “hear” — in any language that you hear — we also learn that it must be made audible. The explanation is that if one need not make it audible to one’s own ear, and mere thought suffices, then it would obviously be possible in any language, since thoughts are not tied to any particular language. Hence, if the Gemara brings a source to prove that it may be said in any language, that itself proves that it must be made audible.

According to Rashba, thought is not performed in any specific language. Therefore, if there is a requirement to use a specific language, it is obvious that thought is insufficient. And if thought is sufficient, then it is obvious that there is no requirement of a specific language.

Some have wanted to explain that Rashba means that thought itself is not conducted in any language at all. Rashash, on Babylonian Talmud, Shabbat 40a, wrote that Tosafot there disagree with Rashba on this point. However, not all commentators accepted that interpretation. They explained that Rashba’s point is that in the case of thought there is no legal category and no need for speech, because the legal significance of thought is grounded in its content. A specific language is needed only where there is a legal requirement of verbal utterance.

Thought is an act that accompanies action. Speech is an operative act. Thought consists of contents, and an action is supposed to be accompanied by those contents. But in order to create a legal effect in reality, not only the content matters, but also the form of speech.²

Let us illustrate this with an example. As is well known, there are various rules governing stipulations in halakha (Jewish law), and most of them, perhaps all of them, are learned from the section dealing with the tribes of Gad and Reuben. For example, the stipulation must be doubled, the stipulation must precede the act, the positive condition must precede the negative, and so on; see Maimonides, Laws of Marriage, chapter 6. According to one opinion in Tosafot on the words “this woman is hereby,” Babylonian Talmud, Ketubbot 56a, all the formal rules of stipulations are required because the purpose of a stipulation is to uproot an act. For example, a stipulation in betrothal is meant to uproot the act of betrothal if what the groom demanded in the stipulation is not fulfilled. Ordinarily in halakha, speech does not uproot an act. According to this view in Tosafot, the Torah’s innovation in the section of stipulations is that if a person makes the stipulation in accordance with all the formal rules, then the speech of the stipulation can indeed uproot the act.

Now, in Responsa Rabbi Akiva Eiger, no. 48, citing Shitah Mekubbetzet on Babylonian Talmud, Nazir 11a, it is brought that in the case of a Nazirite who makes a stipulation about his Naziriteship, there is no need for the formal rules of stipulations. The reason is that Naziriteship is undertaken by speech, and to undo speech, ordinary speech suffices. The formal rules of stipulations are required only when we want speech to uproot an act.

Rabbi Elhanan Wasserman, in his Kovetz Shiurim, part 1, Ketubbot, section 168 and onward, raises a powerful difficulty against Rabbi Akiva Eiger and Shitah Mekubbetzet. Once the Naziriteship has taken effect, it is no longer speech but an act. One can undo the speech of Naziriteship as speech only so long as it has not yet accomplished its effect. But once it has created the legal status of Naziriteship, what stands before us is an actual legal reality. To uproot such a reality, mere speech would seemingly not suffice. If so, even in the case of Naziriteship, for a stipulation to be effective in uprooting that status, one should have to formulate it in accordance with the formal rules of stipulations.

Rabbi Akiva Eiger and Shitah Mekubbetzet apparently hold that there is no such distinction. In their view, there is no meaningful difference between preventing the formation of a legal effect and uprooting it after the fact. The essential distinction here is between speech and act. According to them, when something is effected by an act, it cannot be uprooted through ordinary speech, even before it takes effect. By contrast, when something is effected through speech, it can be uprooted through ordinary speech, even after it has taken effect.

The conclusion of all this is that speech that creates a legal act is treated as an act, and therefore ordinary speech does not cancel it. Ordinary speech remains speech, something akin to thought. Speech that generates a legal reality is speech in the holy tongue, and that is the type of speech involved in bikkurim.

See also the Nazir’s discussion of the holy tongue, and the opening of Orot Ha-Kodesh. Perhaps Maimonides here is consistent with his own general approach, since, as we saw, he may not regard mikra bikkurim as a law inhering in the object itself.

We saw in the previous section that the declaration of bikkurim is part of the obligation to bring the bikkurim. We saw that without it, the bikkurim may be invalidated and must rot. If so, the recitation imposes the legal status of bikkurim upon the fruits. That is why we require the holy tongue and a loud voice. This is speech that effects a legal status. Therefore, what is needed here is actual speech, not merely the content of accompanying thought.

Footnotes