Lesson 46: Vaetchanan

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

Concepts

• Mitzvot (commandments) of action/result.
• Mitzvot of process/state.
• Duties toward one’s fellow human being and interpersonal commandments.
• Interpersonal commandments and prohibitions, and their relation to the two previous distinctions.
• Simultaneous causality.
• A prohibition inferred from a positive commandment is indeed classified in halakha (Jewish law) as a positive commandment, but in essence it is a prohibition rather than a commandment.

Summary

This week’s essay deals with the prohibition of lo techanem. The Sages derive three prohibitions from this verse, but here we will focus on only one of them: the prohibition against giving a gentile a gratuitous gift.

We examine a comparison found among the early authorities between the prohibition against giving a gentile a gratuitous gift and the prohibition against emancipating a slave. Nahmanides apparently points to an identity between them, and this is how the author of Kovetz Shiurim, and perhaps Rashba as well, understand him. But the plain sense of his language suggests that he only sees lines of similarity between the two prohibitions. In both cases there is a prohibition against doing a favor for another person, but if the act is not done for that person’s sake, there is no bar to doing it.

Later authorities note that it is illogical to understand the prohibition against emancipating a slave as part of the prohibition against giving a gentile a gratuitous gift, since emancipation turns the slave into a Jew. The recipient of the gift is therefore a Jew, not a slave. Some have also noted more generally that it is implausible to prohibit gratuitous gifts to a slave in the same way as to a gentile.

From the Talmudic discussion in Ketubot it emerges that there is no problem with zekhiyah (effecting an acquisition on another’s behalf) for a gentile if the very acquisition turns him into a Jew; the case there is the conversion of a gentile minor. That would seem to contradict Nahmanides’ position.

We propose several ways of understanding Nahmanides’ view. In the course of the discussion we will need several conceptual innovations: a distinction between interpersonal commandments and prohibitions, on the one hand, and duties toward one’s fellow human being, on the other; within both of those categories, a distinction between action/result prohibitions and process/state prohibitions; and, in addition, the proposal that a prohibition inferred from a positive commandment, though treated in law as a positive commandment, is in essence a prohibition rather than a commandment. The present framework does not allow us to elaborate further.

Concerning “Lo Techanem”

An Overview of Interpersonal Prohibitions

A. The Prohibitions Derived from “Lo Techanem”

Introduction

In several places in our Torah portion, the Torah relates at considerable length to idolatry and its worshippers. At the beginning of Deuteronomy chapter 7, there is a discussion of the seven nations who lived in the land before Joshua’s conquest (Deuteronomy 7:1-6):

When the Lord your God brings you into the land that you are entering to possess, and clears away many nations before you—the Hittites, the Girgashites, the Amorites, the Canaanites, the Perizzites, the Hivites, and the Jebusites, seven nations larger and mightier than you—and the Lord your God delivers them to you and you defeat them, you shall utterly destroy them. You shall make no covenant with them and show them no favor. You shall not intermarry with them: your daughter you shall not give to his son, and his daughter you shall not take for your son. For he will turn your son away from following Me, and they will worship other gods; then the anger of the Lord will blaze against you, and He will destroy you quickly. Rather, thus shall you do to them: tear down their altars, smash their pillars, cut down their sacred trees, and burn their carved images in fire. For you are a holy people to the Lord your God; the Lord your God has chosen you to be His treasured people from all the peoples on the face of the earth.

One of the commands stated with regard to the seven nations is lo techanem. From the wording of the command, it is not entirely clear what it means to “favor” those nations. We find that the Sages expound it in three ways, which we will now present.

Babylonian Talmud, Avodah Zarah 19b-20a

The Mishnah in Babylonian Talmud, Avodah Zarah 19b presents two laws relating to idolatry:

One may not make ornaments for idolatry—chains, earrings, or rings. Rabbi Eliezer says: for wages it is permitted. One may not sell them anything attached to the ground, though one may sell it after cutting it down. Rabbi Yehudah says: one may sell it on condition that it be cut down.

The Gemara there gives a source for these laws from our verse:

Gemara: From where are these matters derived? Rabbi Yosei ben Hanina said: Because Scripture says, “Lo techanem”—do not give them a holding in the land. But is this phrase not needed for what the Merciful One means, namely: do not show them favor? If that were so, Scripture should have written lo techonem. Why then does it say lo techanem? Learn two things from it. But it is still needed for what the Merciful One means, namely: do not give them a gratuitous gift! If that were so, Scripture should have written lo techinnem. Why then does it say lo techanem? Learn all of them from it. So too it was taught in a baraita: “Lo techanem”—do not give them a holding in the land. Another interpretation: “Lo techanem”—do not show them favor. Another interpretation: “Lo techanem”—do not give them a gratuitous gift.

From the verse lo techanem, the Gemara derives three commands:

1. Not to give them a holding in the land.
2. Not to ascribe favor to them—that is, not to say, for example, “How beautiful this idol is,” and the like.
3. Not to give them a gratuitous gift.

From the Gemara’s wording, it is clear that these interpretations do not disagree with one another; rather, they are all derived from different nuances of the same word. Although from the baraita cited at the end of the passage one might have thought that these are competing interpretations, the Gemara treats the baraita as support for the combined reading, and it appears to understand that there is no disagreement among the different possibilities.

These prohibitions are codified by Maimonides in Mishneh Torah, Laws of Idolatry 10:4:

…And why may one not sell them land? Because it says, “Lo techanem”: do not give them a holding in the land, for if they have no land, their residence is only temporary. Likewise, it is forbidden to speak in their praise, even to say, “How handsome this idolater is in appearance.” All the more so it is forbidden to praise his deeds or to cherish anything of theirs, for it says, “Lo techanem”—they should not find favor in your eyes; for this causes one to cleave to them and learn from their evil deeds. And it is forbidden to give them a gratuitous gift, though one may give to a ger toshav (resident alien), as it says: “To the stranger who is within your gates you may give it, that he may eat it; or you may sell it to a foreigner”—by sale, not by gift.

Maimonides derives the first two laws from the verse lo techanem, whereas the third he derives from the verse “or you may sell it to a foreigner” — and his source is the continuation of that same passage in Avodah Zarah.

The law regarding a gratuitous gift also appears in Mishneh Torah, Laws of Acquisition and Gifts 3:11:

It is forbidden for a Jew to give a gentile a gratuitous gift, but one may give to a resident alien, as it says: “To the stranger who is within your gates you may give it, that he may eat it; or you may sell it to a foreigner”—to a foreigner by sale and not by gift, but to a resident alien both by sale and by gift, because you are commanded to sustain him, as it says: “The stranger and the resident shall live with you.”

And so too in Shulchan Arukh, Yoreh De’ah 151:11:

It is forbidden to give a gratuitous gift to a gentile whom one does not know.

In this formulation, it is clear that the intent is any gentile, not only the seven nations, with the exception of a resident alien. And this is indeed what Shakh writes there, section 18, in the name of Beit Yosef:

“To a gentile,” and so forth—the Beit Yosef wrote in Hoshen Mishpat 249 that this includes every gentile, even an Ishmaelite, excluding a resident alien; and this is obvious. See there.

Enumerators of the commandments

The enumerators of the commandments mention here only one biblical prohibition, the one concerning ascribing favor. For example, Maimonides, in Sefer HaMitzvot, negative commandment 50, writes:

The fiftieth commandment is that He warned us not to have pity on idolaters and not to beautify anything connected to them. This is His statement, exalted be He: “Lo techanem,” and the received tradition explains it as “do not give them favor,” to the point that if there is a handsome idolater, it is not permitted for us to say, “This one is handsome,” or “His face is beautiful,” as is explained in our Talmud, Avodah Zarah 20a. And in the Jerusalem Talmud, Avodah Zarah 1:9, they said: “Do not give them favor” is a negative commandment.

However, Sefer HaChinukh includes within the same commandment the law of a gratuitous gift as well (commandment 426):

That we should not pity idolaters, and that nothing of theirs should appear proper in our eyes; that is, we should distance them from our thoughts, and it should not come onto our lips to say that there is anything beneficial in any idolater, nor should anything about them find favor in our eyes in any respect. Thus our Sages, of blessed memory, said that it is forbidden to say, “How beautiful this gentile is,” or “How pleasant and agreeable he is.” Concerning this it says, “You shall not show them favor,” and the explanation of this is: “Do not give them favor,” as we have said. Some of our Sages also learned from lo techanem that one may not give them gratuitous gifts, and it is all one root. And in the Jerusalem Talmud on Avodah Zarah they said: “Do not give them favor” is a negative commandment.

He adds that these two laws share one root.

Is “Lo Techanem” a general prohibition?

One may indeed raise a point regarding the enumeration of the commandments: we find a parallel prohibition from which several commands are derived, yet it is counted as only one prohibition. For example, in Babylonian Talmud, Sanhedrin 63a, several prohibitions are derived from the verse “You shall not eat over the blood,” and an additional one was added in Babylonian Talmud, Berakhot 10b. Maimonides counts, from all these prohibitions, only the warning concerning the stubborn and rebellious son, as negative commandment 195. The detailed explanation of this appears in the ninth root of Maimonides’ Sefer HaMitzvot, where he writes:

However, when one prohibition includes many matters, then that prohibition alone is counted, not each and every matter included within it. This is what is called a general prohibition, for which lashes are not administered, as we shall explain. Thus, concerning the verse “You shall not eat over the blood” they explicitly said in its explanation: From where do we know that one who eats from an animal before its life has departed transgresses a negative commandment? Scripture says: “You shall not eat over the blood.” Another interpretation: From where do we know that one who eats sacrificial meat before the sprinkling of the blood transgresses a negative commandment? Scripture says: “You shall not eat over the blood”—do not eat the meat while the blood is still in the bowl. Rabbi Dosa says: From where do we know that one does not provide the meal of consolation for those executed by the court? Scripture says: “You shall not eat over the blood.” Rabbi Akiva says: From where do we know that a Sanhedrin that has executed a person may not taste anything all that day? Scripture says: “You shall not eat over the blood.” Rabbi Yosei son of Rabbi Hanina said: From where do we know the warning for a stubborn and rebellious son? Scripture says: “You shall not eat over the blood.” These are five different matters, all of which are prohibited and all of which are included under this one prohibition. And they also said in Berakhot 10b: From where do we know that one may not taste anything before praying? Scripture says: “You shall not eat over the blood”—do not eat before you pray for your blood, that is, your life.

And they explicitly said at the end of Sanhedrin, when listing all these matters, that one does not receive lashes for any of them because it is a general prohibition, and for a general prohibition one does not receive lashes. They also explained that a general prohibition is when two or three prohibitions come from one prohibition. It is therefore not proper to count every prohibition included under such a verse as a separate commandment; rather, the prohibition alone is counted, since it includes all these matters.

At first glance, this is exactly the case with the prohibition of lo techanem, and therefore it too is counted as one prohibition. In negative commandment 195, Maimonides does not spell out the other prohibitions derived from “You shall not eat over the blood,” and correspondingly he does not do so here either.

And in Sefer HaChinukh, commandment 248, he too counts only the prohibition concerning the stubborn and rebellious son, and focuses only on it, but he also mentions the other laws connected to this verse from the passages in Sanhedrin and Berakhot:

I will mention to you some of the matters that our Sages explained are included in this prohibition. They said that it contains a warning against eating from an animal before its life has departed; likewise against eating sacrificial meat before the sprinkling of the blood, as they said: do not eat the meat while the blood is still in the bowl. They also learned from it that one does not provide the meal of consolation for those executed by the court, and that a Sanhedrin that has executed a person does not taste anything all that day, and that one may not taste anything before praying, and likewise the warning for the stubborn and rebellious son, as we have said.

And yet we do not find in the Sages or the early authorities a discussion of lo techanem as a general prohibition. The explanation may be what appears in Sefer HaChinukh there, in an earlier passage:

Both of them [that is, Maimonides and Nahmanides] agree that this prohibition of “You shall not eat over the blood,” and anything similar that includes many matters, as we shall write here, does not consist of matters of one kind whose rationale is the same. Rather, Scripture prohibited them all in one prohibition and under one name; therefore it is called a general prohibition, and it is a rule that one does not receive lashes for a general prohibition.

That is, Sefer HaChinukh writes that one of the characteristics of a general prohibition is that the different prohibitions derived from it are not of one subject and do not share the same rationale; they merely share a source, namely the same verse. If so, then perhaps in our case this is not a general prohibition, because these two prohibitions—ascribing favor and giving a gratuitous gift—have one and the same rationale: not to value and endear idolaters, as we saw Sefer HaChinukh explicitly write.

The third prohibition, however—not to give them a holding in the land—appears to rest on a different foundation, and its purpose also seems different, namely, to keep the Land of Israel under Jewish control. It is possible that the early authorities also understand this prohibition as intended to prevent bonds of closeness and affection between Jews and idolaters.¹ Some wished to say that the basis of the prohibition does not lie specifically in idolatry, but in the prohibition against endearing and valuing gentiles as such.² This is not the plain meaning of the Talmud and the decisors, nor even of the verses themselves.

B. Emancipating a Slave

Introduction

In this section we will deal with the passage recounting that Rabbi Eliezer freed his slave in order to complete a minyan, that is, a prayer quorum of ten, and with its dubious connection to lo techanem.

The Gittin passage

In Babylonian Talmud, Gittin 38b, the Tannaim disagree whether it is forbidden to emancipate a Canaanite slave:

The Sages taught: “You shall keep them working forever” — this is discretionary, according to Rabbi Yishmael. Rabbi Akiva says: it is obligatory. But perhaps Rabbi Eliezer held like the one who says it is discretionary? That cannot enter your mind, for it was explicitly taught: Rabbi Eliezer says it is obligatory.

Thus Rabbi Eliezer and Rabbi Akiva hold that there is a prohibition against emancipating a Canaanite slave, and so the law is ruled by Maimonides in Mishneh Torah, Laws of Slaves 9:6, and in Shulchan Arukh, Yoreh De’ah 267:79:

…Likewise, it is forbidden for a person to emancipate a Canaanite slave, and whoever emancipates him transgresses a positive commandment, as it says: “You shall keep them working forever.” If he did emancipate him, he is emancipated, as we have explained…

But the Gemara there recounts the following story:

Returning to the matter itself: Rav Yehudah said in the name of Shmuel: Whoever emancipates his slave transgresses a positive commandment, as it is stated: “You shall keep them working forever.” An objection was raised: There was an incident involving Rabbi Eliezer, who entered the synagogue and did not find ten present, so he freed his slave and completed the quorum with him! A mitzvah is different.

That is, Rabbi Eliezer freed his slave—an emancipated slave is a Jew in every respect—in order to complete a minyan for prayer. This apparently contradicts Rabbi Eliezer’s own position, which agrees with Rabbi Akiva’s, as noted above. The Gemara resolves this by saying that emancipation for the sake of a mitzvah is permitted.

So too Maimonides rules there, and likewise Shulchan Arukh:

It is permitted to free him for the sake of a mitzvah, even for a rabbinic mitzvah, such as where there were not ten in the synagogue: then one frees his slave and completes the quorum with him, and similarly in any comparable case. Likewise, if there is a maidservant with whom the populace behaves promiscuously and she becomes a stumbling block for sinners, we compel her master to free her so that she may marry and the stumbling block be removed; and similarly in any comparable case.

Explanations of the permission to emancipate a slave for the sake of a mitzvah

The early authorities offer several explanations for the permission to free the slave for the sake of a mitzvah. Most of them explain it through mechanisms of override; that is, in their view the prohibition against emancipating a slave is overridden in the case of a mitzvah. See Tosafot on the words “Do we say,” Babylonian Talmud, Shabbat 4a, and Rashba here in our passage, to be cited below, among others.

Such an explanation, of course, raises serious questions. Why is the mitzvah of praying with a quorum more important than the prohibition against emancipating slaves? Had this been a standard negative commandment, one could discuss it under the principle that a positive commandment overrides a negative commandment, even though here the positive requirement is only rabbinic. But here the prohibition of emancipation is itself derived from a positive commandment. Why should the fulfillment of one positive commandment displace the fulfillment of another?

For that reason, Ritva here, and see also Ran, proposes that the verse “You shall keep them working forever” is merely a scriptural support, an asmakhta (a mere textual support), and that the prohibition is rabbinic:

A mitzvah is different. And if you ask: how can, because of this mitzvah, we override a positive commandment of the Torah? Our teacher wrote that from here we learn that this is not a full-fledged positive commandment but a rabbinic prohibition merely supported by a verse. And when Rabbi Akiva says below that it is obligatory, he means a rabbinic obligation.

But this seems forced in the Gemara’s language, which presents the verse as a full source. Moreover, the mitzvah of praying with a minyan is also rabbinic. Indeed, according to most opinions, prayer itself is rabbinic, apart from Maimonides’ view, and the obligation to do so with a minyan is at most rabbinic, if it exists at all; but this is not the place to discuss it.

Penei Yehoshua suggests another possibility: Rabbi Eliezer does not hold that there is a prohibition against emancipating a slave, but rather that there is an obligation to employ him as long as he remains a slave: “You shall keep them working forever.” This too is difficult in light of the Gemara’s progression. See the novellae of Hatam Sofer here, and further below.

Therefore, there is a group of early authorities, with Nahmanides at their head, who suggest a different, more substantive explanation, not based on mechanisms of override but on the character of the prohibition of “You shall keep them working forever.”³ This is Nahmanides’ language there; see also Ran and Rashba, who cite it:

As to what we say, “A mitzvah is different”: I wonder—did they really override a positive commandment of the Torah for the sake of the mitzvah of praying in public? Perhaps the Torah said “You shall keep them working forever” only in order not to give them gratuitous gifts, as in the case of the gentiles where it says “Lo techanem.” But when one emancipates him because he gives his own monetary value, or for the sake of a mitzvah, or for some need of the master, where there is no act of favoring, it is permitted. One may also say that indeed this mitzvah comes and overrides a positive commandment of the Torah, for when the Holy One, blessed be He, comes to the synagogue and does not find ten there, He is immediately angered.

Nahmanides is troubled by exactly our difficulty, and he raises the possibility that the mitzvah of public prayer is nevertheless weightier than the positive commandment to work a Canaanite slave. But before that, he proposes a different direction: when the emancipation is done for the sake of a mitzvah or for the master’s own needs, there is no prohibition to free him. The prohibition on freeing a slave is to do so gratuitously, like the prohibition against giving a gentile a gratuitous gift, which is derived from lo techanem. But if the owner does it for his own sake, or for some mitzvah, then there is no prohibition at all. If so, this is not a case of a positive commandment being overridden by another mitzvah; rather, in a case of mitzvah there is no prohibition in the first place.

It should be noted that according to this explanation, the permission to free the slave is not really connected to the fact that this is a mitzvah, but to the fact that the emancipation is not gratuitous. For example, Nahmanides himself rules that if the slave gives the master redemption money, there is no prohibition to free him. In such a case the emancipation is not done for the slave’s benefit but for the master’s, or for the sake of a mitzvah—that is, for the benefit of society or the world—and therefore it is not a “gratuitous gift.”

It should be noted that this is somewhat strained in the Gemara’s wording, because the Gemara makes the permission depend on the fact that prayer is a mitzvah. Nahmanides himself seems to sense this, and presumably for that reason adds the second possibility as well.

Rashba, commenting there, cites Nahmanides’ position and objects to it:

It is difficult for me. For according to all opinions it is permitted to give a gratuitous gift even to a resident alien who eats carrion, and all the more so to a Canaanite slave, who has accepted the commandments incumbent upon him like an Israelite. The verse says: “To the stranger who is within your gates you may give it.” And at the end of the first chapter of Avodah Zarah, on the discussion of not selling things attached to the ground, they say that the matter of a gratuitous gift is subject to a tannaitic dispute, for it was taught: “To the stranger who is within your gates you may give it”—I know only the case of giving to a resident alien and selling to a gentile. From where do we know selling to a resident alien and giving to a gentile? Scripture says: “that he may eat it, or you may sell it,” according to Rabbi Meir. Rabbi Yehudah says: the words are to be taken literally—giving to a resident alien, selling to a gentile. Thus, from the fact that we explain their dispute as concerning a gratuitous gift, we learn that even according to the one who holds that it is forbidden to give a gratuitous gift to a gentile, it is permitted with respect to a resident alien, and all the more so with respect to a Canaanite slave, as we have said. Rather, here a public mitzvah is different; and it is also preferable and permitted to separate the public from sin.

According to Rashba, there is no prohibition at all against giving a gratuitous gift to a slave, since he is not a gentile. Even to a resident alien who eats carrion it is permitted to give a gratuitous gift, and all the more so to a Canaanite slave, who is obligated in the commandments like a woman. Therefore Rashba rejects Nahmanides’ proposal. In his view, this is a case of the positive commandment “You shall keep them working forever” being overridden by the mitzvah of public prayer, because public prayer is a communal need; see on this our essay from last week. He explains in the same way the obligation to free a maidservant where there is concern that people will sin with her, since there too the issue is saving the many from transgression, not rescuing one individual.

The contradiction between the passages

In fact, Rashba’s point is explicit in the parallel passage in Babylonian Talmud, Berakhot 47b, which cites the give-and-take we quoted above and, after the answer “A mitzvah is different,” adds an objection:

But this is a mitzvah that comes through a transgression! — A public mitzvah is different.

Moreover, that passage seems to prove against Nahmanides’ view, since it clearly presents the matter as the overriding of a prohibition for the sake of a public mitzvah, not merely any mitzvah, and not as a claim that in such emancipation there is no prohibition at all. This is the objection raised by the author of Magen Avraham, Orach Chayim 90:30. So too several early and later authorities wrote; see Tosafot on the words “Do we say,” Shabbat 4a, and Magen Avraham there. On the relation between these two passages, see the novellae of Hatam Sofer on Gittin and elsewhere.

On the Meaning of a Prohibition Inferred from a Positive Commandment: Another Explanation of the Override

We mentioned above the view of those early authorities who understand the permission to free a slave for the sake of a mitzvah as a halakhic override, and we asked: in what sense is the mitzvah of prayer superior to the positive commandment to employ the slave? Perhaps there is another way to explain this, based on the definition of the prohibition against emancipating a slave.

As we saw, the prohibition against emancipating a slave derives from the positive commandment to work him. That is, there is no direct prohibition against freeing the slave; rather, there is an obligation to employ him. Yet in the Gemara this is presented as a prohibition, and apparently we are dealing with what halakhic literature calls a prohibition inferred from a positive commandment, which in law is treated as a positive commandment.⁴

In understanding the definition of such a prohibition, two possibilities may be proposed:

1. There is indeed a positive commandment to work the slave, and the prohibition against emancipating him derives only from the fact that emancipation prevents us from fulfilling that commandment. But on this understanding we are dealing with an ordinary positive commandment, and that does not seem to be the implication of the passages dealing with a prohibition inferred from a positive commandment.

2. There is no commandment at all to work the slave. Rather, the Torah chooses positive wording in order to teach us a prohibition. The reason it chose that formulation is to teach that the force of the prohibition is not that of a full negative commandment, but that of a weaker prohibition—for example, one does not receive lashes for it.⁵

If the correct understanding of a prohibition inferred from a positive commandment is indeed the second possibility, then it is very plausible that such a “positive commandment” would be displaced by an ordinary positive commandment. If a positive commandment can override an ordinary negative prohibition, then all the more so it should override a prohibition inferred from a positive commandment.

True, the passage in Berakhot implies that the override here is by virtue of a public positive requirement, and apparently according to our approach that should be unnecessary. But it is difficult to object from there, since, as we have seen, the two passages seem contradictory. In fact, according to our approach it may be possible to reconcile them and say that the passage in Berakhot merely gives a fuller account of what is also said in Gittin. The prohibition against emancipation is indeed overridden by the mitzvah of public prayer, but the mitzvah of public prayer as such is not a biblical positive commandment, as noted above, and therefore it cannot override even a prohibition inferred from a positive commandment. For that reason, the passage in Berakhot adds that this is a public mitzvah, and therefore, even though it is not a biblical positive commandment, it overrides a prohibition inferred from a positive commandment, for considerations like those presented in our essay from last week. But if one were freeing the slave in order to fulfill an ordinary positive commandment, then the prohibition on freeing a slave would be displaced even without the element of public mitzvah.

Of course, all this depends on the various understandings of the definition of a prohibition inferred from a positive commandment; see on this at length the ninth root of Maimonides and Nahmanides’ critiques there. This is not the place to elaborate.

Explaining Nahmanides

From Rashba’s words it emerges that he understood Nahmanides to mean that the basis of the prohibition against emancipating slaves comes from lo techanem. Rashba himself argues against this that there is no prohibition against giving a gratuitous gift to a Canaanite slave, since he is not a gentile—and certainly not when, by virtue of this very gift, he becomes a Jew; more on this below.

But the plain sense of Nahmanides’ wording shows that this is not his intention. He intends to bring lo techanem only as an analogy, not as the source of the prohibition. In particular, the Gemara itself says that the source of the prohibition is the positive commandment “You shall keep them working forever.” Nahmanides argues that just as in the prohibition of lo techanem there is no bar to giving a gentile something when it is done out of the Jew’s own interest, so too in the prohibition on emancipating a slave the same consideration applies. If so, Rashba is certainly correct that there is no prohibition against giving a Canaanite slave a gratuitous gift, but the prohibition against emancipating him resembles, in its character, the prohibition against giving him a gratuitous gift—at least in the sense that if it is not gratuitous and not for the slave’s sake, there is no prohibition.

Another explanation of the prohibition against emancipating a slave

It should be noted that Rashba too agrees that there is a prohibition against emancipating the slave—for that prohibition is explicit in the Talmud—even though there is no prohibition against giving him a gratuitous gift. Apparently, however, he does not see a similarity between the basis of the prohibition against emancipating a slave and the prohibition against giving a gentile a gratuitous gift. Therefore, in his view, one may not free a slave even where this is not gratuitous. A possible explanation of such an approach may be found in the words of Hatam Sofer there.

Hatam Sofer cites the above remark of Penei Yehoshua and comments on it in a way that allows the prohibition against emancipating a slave to be understood as follows:

Penei Yehoshua wrote that one could perhaps say that it is obligatory only if one lets him go free without a bill of emancipation, in which case he does not acquire the holiness of Israel; then there is a mitzvah of “You shall keep them working forever.” But if one wishes to free him and make him a full Jew, there is no prohibition. That is why the Gemara challenged from Shmuel, who said, “Whoever frees his slave…” But he then returned and asked: perhaps Shmuel follows his own reasoning, that a slave over whom the master has no authority does not require a bill of emancipation. If so, then it is forbidden to free him. But according to the view that a bill of emancipation is required—and this is indeed the law—the Torah was concerned only with abandoning him without emancipation; but when one makes him a full Jew, it is permitted.

In my humble opinion, however, the root of the Torah’s concern is “You shall bequeath them to your children after you,” and this is impossible once he has been freed. Therefore the foregoing cannot stand.

That is, the basis of the prohibition against emancipating a slave is not that there is an obligation to work him, since that obligation does not exist once he goes free and becomes a Jew, as Penei Yehoshua argued above. The problem is that there is a commandment incumbent on a person to bequeath the slave to his children, and if he frees him he will no longer be able to do so.

C. An Apparent Contradiction to Nahmanides

Introduction

We saw in the previous sections that Nahmanides and those who follow his approach connect the prohibition against emancipating a Canaanite slave to the prohibition of lo techanem. It appears that Rashba understood Nahmanides to mean that the prohibition against emancipating a slave is a detail subsumed under the prohibition of giving a gratuitous gift. We rejected that, since Nahmanides’ wording indicates otherwise. He only wished to borrow an illustrative example from lo techanem for the prohibition of emancipating a slave, and to claim that just as under lo techanem there is no prohibition if the gift is not for the recipient’s sake, so too with the prohibition of emancipating a slave. In this section we will broaden the analysis of Nahmanides’ view somewhat, independently of those two possibilities.

The remarks of the author of “Kovetz Shiurim” on this passage

Rabbi Elchanan Wasserman, may God avenge his blood, in his book Kovetz Shiurim, Gittin, no. 22, cites Nahmanides’ words and comments as follows:

Rashba, in chapter HaShole’ach, cites in the name of Nahmanides that the reason it is forbidden to emancipate one’s slave is because of lo techanem. This is difficult for me, for surely lo techanem applies only to a gentile and to a slave, but not to a convert or to an emancipated slave. And here, at the moment he acquires the gift—that is, freedom—he is already emancipated.

Consider the matter yourself: if one gives a gift to a gentile that is to take effect only after he converts, surely there is no prohibition of lo techanem. Even though one gives it while he is still a gentile, the effect of the acquisition comes only after he converts, and then he is already a Jew. The same is true here. Before he is emancipated, his acquisition has not yet taken effect; and at the moment the acquisition takes effect, he is already emancipated, and he is like a full Jew in every respect.

Nor can one say that even before the emancipation he gains peace of mind from knowing that he will be emancipated later. That cannot be, for we do not find that it is forbidden to give a gentile mere pleasure because of lo techanem. The prohibition of lo techanem exists only when one transfers some item to a gentile as a gift, but not where one merely causes a gentile enjoyment.

Rabbi Wasserman asks: how can the prohibition against emancipating a slave be connected to lo techanem? Emancipation is a gift that the slave receives when he is emancipated, and thus the actual recipient of the gift is a full Jew, not a slave.

However, his words are puzzling. As we saw above with Rashba, he assumes that Nahmanides means that emancipating a slave is literally forbidden under lo techanem. Moreover, he does not seem to regard that understanding itself as problematic, for he writes that the prohibition of lo techanem indeed applies to a gentile and to a slave, but not to one who has already been emancipated; his question is only that here the gift is to the emancipated person, not to the slave. But as we have seen, Nahmanides himself does not mean this. He too does not understand the prohibition against emancipating a slave as part of the prohibition of lo techanem. Nevertheless, the question of the author of Kovetz Shiurim is certainly a difficult one even on our reading of Nahmanides: how can the prohibition against emancipation be understood as a kind of prohibition against giving a gratuitous gift to a slave, if this very gift turns him into a full Jew? It is a gift to a free Jew.

The remarks of the author of “Kovetz Shiurim” on the Ketubot passage

The author of Kovetz Shiurim also addresses these words of Nahmanides in his novellae on Babylonian Talmud, Ketubot 11a, no. 34. The Gemara there deals with the conversion of a minor and says:

Rav Huna said: A minor convert is immersed on the authority of the court. What does this teach us? That it is a benefit for him, and one may confer a benefit upon a person in his absence. But we already learned: one may confer a benefit upon a person in his absence, but one may not impose a detriment on him in his absence. You might have said that a gentile prefers a life of license, for we maintain that a slave certainly prefers a life of license. Therefore it teaches us that this applies only to an adult, who has tasted the taste of prohibition, but for a minor it is a benefit.

Thus, a minor gentile may be immersed into Judaism even though he lacks legal capacity, on the authority of the court. The reason is that one may confer a benefit upon a person in his absence, and with respect to a gentile minor—who has not yet tasted the taste of prohibition—conversion is regarded as a benefit.

Tosafot there, on the words “They immerse him,” asks:

This is difficult, for zekhiyah operates by virtue of agency: since it is a benefit for him, we are as good as witnesses that he appoints this person his agent, as is evident in the first chapter of Bava Metzia 12a regarding courtyard, which is included under the rubric of “hand” and is no worse than agency. If so, how can we confer a benefit on behalf of a minor? After all, there is no agency for a minor, as is said in the chapter Eizehu Neshekh there, 71b. Moreover, he is still a gentile, and there too we say that a minor who will eventually come into the realm of agency has zekhiyah rabbinically, whereas a gentile, who will not come into the realm of agency, does not have even rabbinic zekhiyah.

Tosafot resolves these difficulties as follows:

It appears to Rabbi Yitzhak that here too we confer the benefit only rabbinically, as we say there that a minor has rabbinic zekhiyah. And although he is still a gentile, he will eventually come into the realm of agency. Alternatively, since through this very acquisition he becomes a Jew, he is like a full Jew with respect to this acquisition.

The problem of conferring the benefit on behalf of the minor is solved by saying that here the zekhiyah is only rabbinic. And the problem of conferring it on behalf of a gentile is solved in two ways: either it is enough that he will eventually enter the realm of agency, once he converts and grows up; or, with respect to conversion specifically, he is considered to fall under the law of agency because the conversion itself turns him into a Jew. For an act that itself makes him a Jew, he is treated as a Jew, not as a gentile.

This is a principle very similar to what we saw above in Gittin: since the emancipation itself turns the slave into a Jew, there should be no prohibition against emancipating him. The emancipation is given to the person as he stands at the end of the process; as it were, we are emancipating a full Jew, not a slave. Yet Nahmanides does not hold that way, since he understands the prohibition against emancipating a slave as a kind of prohibition against giving him a gratuitous gift—or, according to Kovetz Shiurim, as actually deriving from lo techanem. If so, there should be a prohibition against giving a gift that emancipates a slave.

And indeed, in Ketubot there, no. 34, the author of Kovetz Shiurim raises this very objection to Nahmanides’ words. In the end he remains in doubt regarding Nahmanides’ view, and from this passage he proves his own earlier claim that the basis of the prohibition against emancipating a slave is not lo techanem but an independent commandment of “You shall keep them working forever.”

In the following sections we will present two ways to resolve Nahmanides’ position.

D. First Approach: Interpersonal Prohibitions — Commandments of Action and Result

Resolving Nahmanides’ words

It would seem that Nahmanides would explain the Ketubot passage as follows: even though in the law of zekhiyah the halakha determines that a gentile cannot acquire through another, and even though in the prohibition of emancipating a slave the Torah determines that one may not give him emancipation gratuitously, the logic of the two contexts is different. In the law of zekhiyah, the question is: who is the recipient? If the recipient is a Jew, there is no problem in acquiring on his behalf. But in the law of lo techanem, or in the prohibition against emancipating a slave, the definition is different: the question is to whom the giver gives, not who the legal recipient is. When the master performs the act of emancipation, he performs it toward a slave, not toward a Jew. True, the act of emancipation turns him into a Jew, but the master emancipated a slave, not a Jew. Indeed, what meaning could there even be to the emancipation of a Jew who is not a slave? Therefore the act of emancipation contains a prohibition—unless, as above, it is done non-gratuitously or for the sake of a mitzvah. So too in the law of lo techanem, the foundation is that a Jew may not give a gift to a gentile, and therefore even a gift that will turn him into a Jew is forbidden, because it is a giving to a gentile.

This may be formulated somewhat differently. In lo techanem or in “You shall keep them working forever,” the question is not a legal one—when exactly the acquisition takes effect—but an experiential one from the giver’s side: to whom was the gift given at the moment of giving?

The conclusion of this distinction is that the prohibition of lo techanem, or the prohibition against emancipating a slave, is defined as a prohibition on the process rather than on the states that exist at its two endpoints.⁶ According to Nahmanides, there is no prohibition against the slave leaving the state of servitude to the master, nor even against the slave reaching the state of being a full Jew. The prohibition is to perform the act of emancipation, because it is a kind of giving performed by the master, and that is what is forbidden. The Torah has no problem with the slave’s being emancipated; its problem is only that the master emancipate him, because that is giving a gift to a slave. This is the halakhic definition that emerges from the essential distinction we proposed above.⁷

Generalizing to all interpersonal prohibitions: commandments of state and commandments of action

We may generalize this mode of thought and say that whenever we have a prohibition involving two parties—for example, a prohibition that A give something to B—we must always ask ourselves what the foundation of the prohibition is. Is the prohibition due to party A, namely A’s act of giving, or due to party B, namely B’s reception? A prohibition from A is a prohibition on a process or action, whereas a prohibition from B is a prohibition on a state.

We have asked similar questions in the past with respect to positive commandments as well. For example, in an essay on Parashat Bereshit, 5767, we deliberated about commandments such as charity: is the core of the commandment that the wealthy person give charity, or that the poor person receive it? There the discussion was conducted in the context of the distinction between commandments of action and commandments of result. It would seem that here too, understanding the commandment from the giver’s side yields a commandment of action, whereas understanding it from the recipient’s side—the addressee of the act—leads us to understand the commandment as one of state, that is, of the result of the act, rather than of the act itself.

Thus, the distinction between the two ways of conceiving interpersonal prohibitions links our present discussion to two distinctions we have presented in the past: the distinction between commandments of process and commandments of state, discussed in our essay on Parashat Balak, 5767, and the distinction between commandments of action and commandments of result, discussed in our essay on Parashat Bereshit, 5767, and elsewhere.

These points apply not only to commandments of giving or prohibitions of giving, but also to other interpersonal prohibitions. For example, with the prohibition against injuring another, or the commandment to love another, one may likewise ask whether the principal core of the commandment or prohibition lies in the lover or injurer, or in the beloved or injured person; and from that one may infer whether it is a commandment of action or result, process or state.

Interpersonal commandments and duties toward one’s fellow human being

At first glance, the category of “interpersonal commandments” might seem to be nothing more than another name for duties and prohibitions between one person and another. But that is not so. With respect to duties and prohibitions toward one’s fellow human being, the decision whether their aim is the recipient or the giver seems to be a general question. What we conclude about one will probably characterize them all. These are commandments such as loving one’s fellow, charity, and the prohibition against causing damage or injury, and so on. Here, however, we have been dealing with commandments such as the prohibition against emancipating a slave—which is really the positive commandment to employ him—or the prohibition against giving a gift to a gentile, and the like, which are hard to define as duties toward one’s fellow human being. These are commandments whose object is another person, but they resemble, to some extent, commandments between man and God, though not exactly.

As an example of this distinction, let us cite the words of Hatam Sofer regarding the commandment of charity. Several commentators discuss why one does not recite the blessing over commandments on the mitzvah of charity.⁸ In Haredim it is reported that Rabbi Eliyahu would bless over all the commandments, even when he gave charity or lent money to a poor person. His source is the Jerusalem Talmud, Berakhot, at the beginning of the chapter “How One Blesses,” which draws an analogy between Torah study and commandments, all of which require a blessing.

By contrast, in Responsa Rashba no. 18 it is written that one does not bless over the commandment of charity because it depends on one’s fellow—perhaps the other person will not consent to receive it. See also Ketzot HaChoshen 97:1. And see also Kesef Mishneh on Mishneh Torah, Laws of Blessings 11:2, who writes that one does not bless over charity because it is a commandment between man and his fellow. Later authorities objected to Rashba on the basis of the aforementioned Jerusalem Talmud, and also from the blessing over betrothal, which is likewise a commandment dependent on another person, namely the woman, and yet one is obligated to recite a blessing over it.

In Responsa Hatam Sofer, Orach Chayim 54, he writes that Rashba intended only commandments that are designed for the sake of the other party, not every commandment that depends on another person. The reason is that with commandments designed for the sake of the other party, if that person does not consent, there is no commandment in the act at all. But in commandments like betrothal—which indeed depend on the consent of another person, yet are not designed for her sake, since the commandment of procreation rests on the husband—there is a blessing even according to Rashba. In this way one may resolve several other objections that later authorities raised against Rashba and Maimonides, but this is not the place.

In our terminology, these are interpersonal commandments in which the other person is only the object of the commandment, not its goal. He constitutes merely a circumstance for the commandment and takes no active part in its realization. He functions here almost like a stage extra. In the cases we have discussed here the situation is slightly different, since the other person is not merely the object of the act but there is also some goal concerning him—in these cases, specifically not to benefit him. Even so, the underlying idea seems very close.

E. Second Approach: On Simultaneous Causality

Resolving Nahmanides’ view

Nahmanides’ position can also be explained differently. The author of Kovetz Shiurim assumes throughout that the acquisition of the slave or gentile occurs only after the emancipation, and therefore the acquisition or emancipation was given to a full Jew, and no problem can arise. But this assumption is puzzling. Seemingly, his becoming a Jew—in the case of conversion or in the case of emancipation—is itself a result of the acquisition effected by the conversion or the bill of emancipation. If so, how can the acquisition be seen as occurring after the change in personal status, when it is itself the cause that brings about that change?

It therefore seems clear that the acquisition in conversion and emancipation takes effect before the change in personal status. But if so, it really is not clear how this can be done, since there is a prohibition on giving to a slave or a gentile. To this very difficulty Nahmanides answers that in the emancipation of a slave there is no problem, because the gift is not gratuitous but for the sake of the master or for the sake of a mitzvah, and in such a case there is no prohibition at all. As for conversion, Nahmanides could adopt the first answer in Tosafot on Ketubot: namely, that the very fact that the child is on the way to becoming capable of agency—he will eventually enter that realm—renders him someone for whom an agent can act, and therefore the conversion takes effect even though it applies to him while he is still a gentile.

A general formulation of the dilemma

Until now we have assumed that the cause must appear before the effect, and therefore we rejected the assumption of the author of Kovetz Shiurim, according to which the acquisition occurs after the emancipation or conversion. The dilemma in such situations rests on a contradiction inherent in the case under discussion. On the one hand, the acquisition must occur before its result—the legal effect of conversion or emancipation. That is a simple logical, or meta-halakhic, assumption. On the other hand, as long as those effects have not yet occurred, the acquisition or emancipation cannot take place, because a gentile has no zekhiyah and one may not give a gift to a slave. Those are assumptions of a halakhic, not a logical, character.

Let us note that with respect to conversion the situation appears more problematic than with respect to emancipation. The Jewishness of the minor convert is a result of the conversion act, whereas the conversion can take effect only if he is already Jewish, since the rule of zekhiyah does not apply to a gentile. By contrast, in the emancipation of a slave, the act of giving is possible, but forbidden. That is, there is no legal impossibility preventing the emancipation from taking effect even if it is done through a prohibition. In such a case, it is entirely possible to solve the problem by saying that the emancipation takes effect first, thereby truly making the slave a Jew, and then his becoming a Jew clarifies retroactively that there was no prohibition in the act of emancipation that brought it about. Such a solution is not possible with respect to zekhiyah in conversion, because the conversion cannot take effect at all while he is still a gentile.

In any event, it appears that the author of Kovetz Shiurim chose the second principle as the more fundamental of the two, and therefore rejected the relevance of the first. Since the second principle cannot be violated, he rejects Nahmanides’ position. According to our proposal, by contrast, it is the first principle that is more fundamental, and we suggest local solutions in order to avoid conflict with the second principle.

“They come as one”

At first glance, there is also a third possibility for solving such a dilemma: the two things happen simultaneously. But is such a solution really possible? Does it indeed resolve the conflict before us? The matter is not entirely clear.

Seemingly, a cause that appears together with its effect is not a possible state of affairs. The cause must appear before the effect, not merely not after it, because the effect depends on the cause’s existence. As we suggested above, with respect to the emancipation of a slave the situation may be different. One could conceive the emancipation as taking place while he is still a slave, and after he has become a Jew it becomes clear retroactively that this was not a forbidden act. In the case of emancipation, the prohibiting principle is not categorical. It is normative in character, not logical. And certainly, if we understand the act of emancipation as occurring simultaneously with the slave’s becoming Jewish, the solution becomes more elegant.

We do in fact find in halakha the concept of ba’in ke-echad—“they come as one”—and it is brought precisely in order to solve problems of the sort with which we are trying to deal here. For example, in Babylonian Talmud, Gittin 77b, and see also Kiddushin 23b, the question is discussed how a Canaanite slave can be emancipated. The problem is very similar to ours. On the one hand, whatever is given to the slave is legally acquired by his master; that is, the slave has no independent “hand” for acquisition. On the other hand, in order to be emancipated, he must acquire the bill of emancipation given to him by his master, and without that he cannot become free. This dilemma is thus very close to ours: acquisition is the cause of emancipation and therefore should occur before it, but for a technical reason it cannot be performed as long as the slave is not yet free.

The passage in Gittin there discusses a parallel question with regard to a woman: how can she receive a divorce if, while married, she has no independent hand to acquire from her husband? The Gemara debates whether there is really such a problem with a woman—whether she truly cannot acquire while still under her husband’s authority—and in the course of the discussion it becomes clear that with regard to a slave the difficulty exists according to all opinions. The Gemara resolves the problem by saying:

Rava said to him: It is the slave’s hand that is difficult for me. According to the one who says that he is freed by a document through his own hand, the hand of the slave is like the hand of his master. Rather, his document and his hand come as one. Here too, her bill of divorce and her courtyard come as one.

That is, at least in the case of the slave, the two legal events occur simultaneously. This case resembles the dilemma concerning zekhiyah, not the dilemma we raised above concerning emancipation in light of lo techanem, because here the problem is logical and legal, not merely a prohibition from the outset. That is, legally speaking, this is an impossible act, not merely a forbidden one. And yet the Gemara solves it by saying that the two things “come as one.”

Above we asked whether such a claim resolves the problem of violating the principle of causality, namely that the cause must appear before the effect. It would seem that it does. How can that be? The answer is that here we are not dealing with physical causality but with normative causality. In the normative realm there is no obstacle to infringing the causal principle. We know cases in which the violation is even more severe, where the cause appears after the effect. In our essay from last week we even cited disputes among commentators on this very point, regarding a condition that operates backward in time, and discussed it somewhat; but this is not the place to elaborate.

Connection to the question whether exact simultaneity is possible

In an essay on another Torah portion in 5767, we discussed the dispute over whether exact simultaneity is possible: can two events occur at precisely the same moment? We distinguished there between a simultaneity that is “in the hands of Heaven” and one “in the hands of man,” and saw that at least with respect to the latter, decisors themselves disagree whether exact simultaneity is possible, whereas with respect to Heaven-made simultaneity all agree that it is not. Does our claim here commit us to one of the two sides in that dispute?

It would seem that there is no connection at all between the two issues. In our case the matter has nothing to do with a statistical question, namely the probability that two independent events should occur at exactly the same time. Here the question is halakhic-normative, and perhaps metaphysical as well; see our essay from last week. There is no obstacle to the two events taking place at the same time if halakha determines that this mechanism works that way. If, in legal terms, conversion operates simultaneously with the court’s zekhiyah on behalf of the minor convert, then that is how it works. We are not dealing here with two events that occur independently in actual reality, about which one might ask what the probability is that they happen in perfect simultaneity.

A note on simultaneous causality

In the literature of the early authorities⁹ we find a distinction between two kinds of causal relation. There is one kind of causality that involves a temporal gap between cause and effect, and another in which cause and effect appear literally simultaneously. For example, in Milot HaHigayon, chapter 12, Maimonides distinguishes among five ways in which one thing can be prior to another and related to it. In the course of that discussion he notes that the sun is the cause of light even though both appear together—there is no sun without light, and no sunlight without the sun.¹⁰ In fact, some early authorities extend this argument and generalize it, saying that if A is the cause of B, then whenever A exists, B must certainly exist as well, and therefore there can never be a moment in which A exists without B. If so, apparently simultaneous causality even in physics contradicts nothing, and the problem we have been discussing is illusory.

But it is important to note that according to the modern physical conception this is not correct. Even the relation between the sun as producer of light and the light produced by it must be spread out over time, even though the interval is extremely short because the speed of light is so great. There is never simultaneity between cause and effect. The fact that A is the cause of B means that after A appears, B will appear as well; but it is not correct to regard a state in which A exists without B as logically paradoxical.¹¹ This issue does not touch the main point of our discussion, and therefore we will not expand upon it here.

Footnotes