Beha’alotcha (5765)

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

---

With God’s help

Mida Tova — Friday Eve, Parashat Beha’alotekha, 5766

Questions

1. Is the rule that “what is derived from an inference is sufficient if it is like the source case” a logical rule?
2. Why, if at all, does it require a tradition of a halakha le-Moshe mi-Sinai (a law transmitted orally to Moses at Sinai)?
3. Is the rule “If you grasp much, you have grasped nothing; if you grasp little, you have grasped” the basis of dayyo?
4. What is the relation between these two rules and the rule that “when one possible analogy yields leniency and another stringency, we analogize to stringency”?
5. “Dayyo at the beginning of the inference” and “dayyo at the end of the inference.”
6. What is the rule “from the place from which you came”? Is it an extension of dayyo?

The principles

• kal va-homer (an a fortiori inference)
• it is sufficient for what is derived from an inference to be like the source case
• if you grasp much, you have grasped nothing; if you grasp little, you have grasped
• when one possible analogy yields leniency and another stringency, we analogize to stringency
• from the place from which you came

And Moses cried out to the Lord, saying: “O God, please heal her.”

Numbers 12:13

Rabbi Ishmael says: The Torah is expounded through thirteen hermeneutical principles: by kal va-homer, by verbal analogy…

(3) What is an example of kal va-homer? “The Lord said to Moses: If her father had but spit in her face, would she not be shamed seven days? Let her be shut out seven days.” By kal va-homer, in relation to the Divine Presence it should be fourteen days. However, it is sufficient for what is derived from an inference to be like the source case. Miriam was therefore shut outside the camp seven days, and afterward she was brought in.

Baraita of the Hermeneutical Principles, beginning of Sifra

A. Summary of last year’s article

In last year’s article we dealt with the principle of kal va-homer, and with the limitation placed upon it by the rule that “what is derived from an inference is sufficient if it is like the source case” — dayyo. The main source for the discussion was the exposition brought in the baraita of examples, where the verse itself derives a kal va-homer regarding Miriam: if when her father spits in her face she must be ashamed for seven days, then all the more so when the Holy One Himself does so.

At the beginning of the article we analyzed the structure of the verses in the passage of Miriam and the talmudic passage in Babylonian Talmud, Bava Kamma 25a, and we saw that the Sages and Rabbi Tarfon disagree regarding the appearance of the kal va-homer and the dayyo in the verses. We saw that the principle of dayyo limits the potential amplification of the kal va-homer, by laying down the principle that the derived case can never be more severe than the source case.

In the background of all this, one must remember that every kal va-homer is based on the assumption that the derived case is more severe than the source case. Hence there naturally arises a potential for amplification — that is, for applying to the derived case a halakha (Jewish law) found in the source case with greater force. However, since the law under discussion is learned from the source case, the rule of dayyo states that we cannot apply it more severely than we find it in the source case.

In the example we discussed, the kal va-homer regarding Miriam could itself have led to the conclusion that when the Holy One spits in her face she should be ashamed for more than seven days, but dayyo limits the amplification and fixes her shame before the Holy One at seven days. In other words, the consideration that appears in the Torah is not merely a kal va-homer, but an amplifying kal va-homer limited by dayyo, and thus we arrive at the conclusion of seven days even in the derived case.

We presented several explanations found in the medieval authorities for the amplification of the kal va-homer regarding Miriam: how far should it be amplified — to fourteen days, to something more than seven, or even forever? From this we also arrived at several explanations of the principle of dayyo, which limits the amplification and fixes Miriam’s exclusion at seven days, as in the source case.

After that we dealt more generally with the role of the examples in the baraita of examples. We saw that most of them are meant to illustrate how the hermeneutical principle in question works. By contrast, regarding the principle of kal va-homer, Rashi in Babylonian Talmud, Zevahim 69b, offers a different explanation of the word “How so?” He explains that here “How so?” means: what is the source that allows us to expound by kal va-homer at all? Clearly this interpretation is relevant only to this principle, for in the other principles the midrashic inference cited in the baraita does not describe a line of reasoning carried out by Scripture itself. In the other principles, only examples are brought of hermeneutical inferences made by the Sages on biblical verses.

But with regard to kal va-homer, the baraita does indeed bring a source in which the Torah itself performs a kal va-homer inference, unlike the examples brought for the other principles. From the exposition in the baraita of examples it emerges that the Torah itself also limits the kal va-homer by means of dayyo. This may depend on the tannaitic dispute between Rabbi Tarfon and the Sages in Babylonian Talmud, Bava Kamma 25a.

Finally, we cited the Raavad in the name of whom it was said that the principle of “two verses that contradict one another” is also exceptional in the baraita of examples. There too the Torah itself performs the “midrashic” inference, and there too the word “How so?” in the baraita is interpreted in the way Rashi interprets the example given for kal va-homer.

However, according to what we have received from our teachers, kal va-homer too was given to us as part of the thirteen hermeneutical principles, all of which were given as a halakha le-Moshe mi-Sinai. Hence it is quite clear that the instances in which Scripture itself performs kal va-homer reasoning cannot exhaust the full range of kal va-homer reasoning, for if they did, the halakha le-Moshe mi-Sinai would be superfluous.

Indeed, we find that all the scriptural kal va-homer arguments cited by the Sages are based on only a single assumption — either of the type in which the greater automatically includes the lesser, or of the type based on straightforward reasoning. See on these types the article on Parashat Noah, 5765. It is therefore entirely possible that the halakha le-Moshe mi-Sinai expands the scriptural kal va-homer and enables us to carry out hermeneutical kal va-homer arguments — that is, arguments based on three assumptions — and these are in fact the more common kind in rabbinic literature.

B. Rules of limitation in interpretation and halakhic exegesis: on dayyo and other rules

Introduction

In the Mishnah in Babylonian Talmud, Bava Kamma 24b, a dispute is presented between Rabbi Tarfon and the Sages regarding liability for damages caused by goring in the injured party’s courtyard. Rabbi Tarfon derives by kal va-homer that one must pay full damages, whereas the Sages impose only half damages because they apply the rule that “what is derived from an inference is sufficient if it is like the source case.”

The plain sense of the Mishnah would seem to indicate that the Sages and Rabbi Tarfon disagree about the very use of dayyo. According to Rabbi Tarfon there is no dayyo, and the kal va-homer is amplifying; therefore, although goring in the public domain incurs only half damages, in the injured party’s courtyard it incurs full damages. The Sages, by contrast, hold that goring in the injured party’s courtyard must be compared to goring in the public domain because of the principle of dayyo.

However, the Gemara there, in Babylonian Talmud, Bava Kamma 25a, explains that this is not so. The principle of dayyo is accepted even by Rabbi Tarfon; he simply does not apply it here because applying it would refute, or make redundant, the kal va-homer. The Sages apply dayyo even in such cases. See on this the article on Parashat Shemini, 5766.

In this year’s article we will try to examine the principle of dayyo as a limiting rule, and its relation to other limiting rules.

Dayyo is from the Torah itself

The talmudic passage in Babylonian Talmud, Bava Kamma 25a opens as follows:

Does Rabbi Tarfon not accept dayyo? But dayyo is from the Torah itself! For it was taught: How does one derive by kal va-homer? “The Lord said to Moses: If her father had but spit in her face, would she not be shamed seven days?” By kal va-homer, in relation to the Divine Presence it should be fourteen days. However, it is sufficient for what is derived from an inference to be like the source case!

A similar assumption appears in Babylonian Talmud, Zevahim 69b, which deals with another tannaitic dispute. There the Gemara asks concerning Rabbi Meir:

Does Rabbi Meir not expound dayyo? But dayyo is from the Torah itself! For it was taught: How does one derive by kal va-homer?…

This assumption of the Gemara is problematic on its face. Are there not disputes among the Sages about biblical laws? Rabbinic literature contains dozens and hundreds of disputes concerning laws of Torah origin, which arise from differing interpretations or differing expositions of verses. If so, why should the fact that this is a Torah law force Rabbi Tarfon to agree?

It seems that the Gemara means to say that dayyo is stated explicitly in the Torah, not merely that its authority is biblical. Hence the Gemara took it for granted that Rabbi Tarfon must concede its existence, for one cannot dispute what is explicit in the Torah. As we saw in last year’s article, the Torah itself carries out a dayyo consideration in the passage of Miriam, and therefore the Gemara assumes that even Rabbi Tarfon must accept this.

In several earlier articles — see, for example, the article on Parashat Yitro, 5765, and many others — we discussed Maimonides’ view that the term de-oraita does not necessarily indicate legal authority, but rather the fact that the law is found in the Written Torah. Therefore, according to him, what is not explicit in the Torah but is derived through the methods of interpretation — and even a halakha le-Moshe mi-Sinai — is not called de-oraita. The wording in our passage is evidence for Maimonides’ position, for here the term de-oraita clearly refers to what is explicit in the Torah, not necessarily to the authority of the principle under discussion. Let us note that this does not compel one to adopt Maimonides’ view about authority. Even one who disagrees with Maimonides and maintains that interpretations or expositions not explicit in Scripture also possess biblical authority can still read the Gemara here as meaning “explicit in the Torah,” rather than “of biblical authority.”

The relation between inferences explicit in the Torah and the hermeneutical principles

We saw that in the example brought by the baraita of examples for the principle of kal va-homer, the Torah itself performs an inference of kal va-homer and dayyo. This is unlike the other hermeneutical principles, which we received as a tradition from Sinai, but which the Torah itself does not employ. It is not entirely clear why this should compel the Gemara to conclude that we too must apply this principle in scriptural exegesis. Must every form of reasoning that appears in the Torah necessarily be applied in the world of midrash? It is entirely possible that the Torah itself uses dayyo, but that within the hermeneutical principles we would not include such an inference.

Granted, if this is a logical principle, there is no reason not to adopt it in the world of interpretation as well. But it would seem more plausible to say that even if we do include dayyo in exegetical inferences, it should not be regarded as a hermeneutical principle, but rather as a rule of plain interpretation — ordinary human logic.

One can ask the same question about kal va-homer itself. The fact that the Torah performs such an inference would seem to indicate that it is a plain-sense inference and not a distinct hermeneutical principle. We have dealt with this issue in several earlier articles, beginning with Parashat Noah, 5765, and onward. There we saw that kal va-homer, as used by the Sages, is much broader than its scriptural appearances. Below we shall see a similar phenomenon with respect to dayyo.

Why is a source required for dayyo?

One may further ask why a source from the Torah is required for the principle of dayyo.¹ On the face of it, this is a logical rule that we would apply even without a source. After all, we have no other way to stop the amplification of the kal va-homer except by saying that what is derived from the inference must be exactly like the source case. We have no evidence for applying it more stringently, for where would we stop the amplification? In our example, if before her father she is shamed for seven days, what should we say with respect to the Holy One?

True, last year we saw several proposals for stopping the amplification at other values — fourteen days, or lifelong shame — but the straightforward reading is that we have no way to stop the amplification except at the value found in the source case.

Beyond this, there is the further question whether the principle of dayyo was also given to us by tradition as a halakha le-Moshe mi-Sinai, as part of the hermeneutical principles. If so, the question arises why a tradition is needed for a logical rule — and moreover for a logical rule that has an explicit scriptural source.

Extending the considerations of dayyo

From this it would seem, at least prima facie, that there must be some kind of dayyo that does not fall within the framework of the considerations that the Torah itself employs, and that this is what belongs to the hermeneutical principles. That would be a nonlogical dayyo.

There is, however, another possibility, one that does not require expanding the principle of dayyo. One could conclude that kal va-homer is indeed a full-fledged hermeneutical principle, whereas dayyo is merely a sub-principle that limits the amplification of kal va-homer. Its basis would then lie in ordinary human reasoning, not in Sinaitic tradition — as noted, this consideration is explicit in the Torah. On this view, dayyo as such really would not belong to the world of midrash.

In any event, we are dealing here with an exceptional case, in which we learn from the Torah a methodological principle rather than a concrete law. Perhaps this explains why, when the baraita of examples seeks an example or a source for kal va-homer, it attaches dayyo to it. Dayyo is not an additional hermeneutical principle, but the logical limitation of kal va-homer.

Let us now turn to the implications of the logic underlying dayyo. After that we will examine whether all the instances of dayyo in rabbinic literature are in fact logical.

“If you grasp little, you have grasped”

To examine one implication of the logic of dayyo, let us turn to a similar interpretive principle found in rabbinic literature: “If you grasp much, you have grasped nothing; if you grasp little, you have grasped.”

The main talmudic discussion of this principle is found in Babylonian Talmud, Sukkah 5a-5b. The Gemara asks there how we know that the cover of the Ark was one handbreadth thick. It tries to learn this from the smallest of the sacred vessels, the frame, which measured one handbreadth. The Gemara then asks why we do not learn it from the vessels themselves, and answers with the rule “If you grasp much, you have grasped nothing; if you grasp little, you have grasped.” Afterwards it derives the measure from the word “face,” for a face is never less than a handbreadth. And when it is asked why we do not derive it from the face of Bar Yokhani, a gigantic creature, the answer is again that we take the smallest possible measure.

At first glance, this principle seems identical to dayyo. In the case of dayyo as well, we face several possible ways of fixing the law, and we determine it according to the minimum.

The relation between these two principles

A closer look shows that there is a basic difference between them. Dayyo always appears as a limitation on the result of a kal va-homer, whereas “If you grasp little, you have grasped” is not connected to the results of kal va-homer reasoning. Moreover, the latter principle selects, from among several possible sources for a derivation, the minimal one. By contrast, kal va-homer operates on the basis of a single source; rather, the amplification of the kal va-homer has several possible outcomes, and dayyo selects the minimal one among them.

In cases governed by “If you grasp little, you have grasped,” there is also another plausible option: choosing, from among the possible sources, the one that seems most similar, not necessarily the minimal one. If we are looking for a measure for some sacred vessel, it would make sense to choose as the source the one most similar to it, even if it is not the minimal one. For example, in the talmudic passage in Sukkah the Gemara entertains the possibility of deriving the measure from the priestly front plate, which was two fingerbreadths wide, rather than from the frame, which was one handbreadth. At first glance, that ought to be the conclusion required by the rule “If you grasp little, you have grasped.” Yet the Gemara rejects it by saying: “We derive one vessel from another vessel, and we do not derive a vessel from an ornament.” Similarity is thus a parameter in determining the relevant source for the derivation.

From this we may conclude that even if there were several possible sources, all of them sacred vessels, it would still have been possible to compare the cover of the Ark to whichever one resembled it in some relevant respect, and not necessarily to the minimal one. To this the rule responds that among all the possibilities that are in fact admissible, we choose the one that gives us the minimal value.

By contrast, when by kal va-homer we derive the proper period of shame before the Divine Presence from the period of shame before one’s father, there are infinitely many possible outcomes — any number greater than seven days. The principle of dayyo says that we choose the minimum, but even without this principle it is hard to see what criterion could lead us to stop the amplification at any value other than the minimum. In other words, dayyo is a logical rule, whereas “If you grasp little, you have grasped” is not necessarily so.²

“When one possible analogy yields leniency and another stringency, we analogize to stringency”

When there are several sources, as in the case of “If you grasp little, you have grasped,” one might also think of another alternative: applying the rule that “when one possible analogy yields leniency and another stringency, we analogize to stringency.” See on this the article on Parashat Ki Tissa, 5766. That is, when there are several possible sources from which to derive, there is reason to make the analogy specifically to the stricter case and not to the minimal one, as would follow from the rule “If you grasp little, you have grasped.”³

By contrast, in the case of kal va-homer it is hard to see any logic in stopping specifically at the most stringent outcome. There it seems that one stops in any event at the minimal value, which is usually also the more lenient result.

And yet, both of these rules seem logical. Stopping the amplification of a kal va-homer at the minimum is logical. We have no evidence for anything beyond that, and therefore there is no room to raise the possibility that perhaps the result is more severe. Put differently: if the result really were more severe, the Torah should have stated it explicitly and not left us confused. But analogizing to stringency rather than to leniency when there are several possible sources is also a logical conclusion drawn from the laws of doubt, at least according to some views. Where there are several sources, the doubt has already arisen — unlike the situation among the various possible outcomes of a kal va-homer. Once a doubt exists, we must be stringent.

By contrast with these two, the rule “If you grasp little, you have grasped” does not seem inherently logical. Why choose the minimal source rather than the most similar or the most stringent one? It appears that this rule belongs to the system of hermeneutical interpretation, and that its basis lies in tradition.⁴

Views that see logic in values of amplification other than the minimum

The logical picture of dayyo emerges precisely from the perspective of Maimonides — see his Commentary on the Mishnah on the Mishnah in Bava Kamma there — who writes that the number fourteen is not meant precisely. One could stop the amplification at any value whatever, all the way to infinity — lifelong shame. Here logic says that we should stop at the minimum, for without the rule of dayyo there is no preferred value. If so, even without dayyo we would stop at the minimum, since we have no other value at which to stop. So too wrote the author of Keritut, book 1, section 3.⁵

However, as we noted in last year’s article, there are commentators who explain why there would have been a logic in stopping the kal va-homer of Miriam and the Divine Presence at fourteen days. For example, some understood this as a result of an equivalence between the Holy One and the two parents — Rabbenu Tam in Tosafot to Bava Kamma there. Others tried to show that it is the Torah’s way to double the basic unit, namely, seven days of confinement; see Ramban, novellae to Bava Batra 111a, and so forth.

Now let us ask ourselves: if indeed, were it not for the principle of dayyo, we would stop the amplification at fourteen days and not at seven, then the view returns that dayyo is not a logical rule. As in the case of “If you grasp little, you have grasped,” we now have another natural point at which to stop the amplification, and not necessarily the minimum. If so, the stopping at the minimum dictated by dayyo is not the logical outcome.

Hence, according to the proponents of those approaches, dayyo is a principle similar to “If you grasp little, you have grasped,” for there too there is a preferred alternative, and only by force of the formal rule do we decline to adopt it. According to those approaches, dayyo as well causes us to reject the value we would have adopted without it.

According to these medieval authorities, it is clear why the principle of dayyo must be learned from the Torah, since it is not a logical principle. But what, then, should be the status of such a principle? On the face of it, it is not a plain interpretive consideration, since it does not accord with simple reasoning. On the other hand, it is not midrash, since it appears explicitly in the Torah.

We are dealing here with a rare and unusual situation, in which the Torah itself teaches us an interpretive or methodological principle, rather than a concrete law. The fact that this principle is explicit in the Torah indicates that it belongs to plain sense rather than to hermeneutical derivation. But it is a plain sense that is not necessarily logical; a scriptural decree too belongs to plain sense. The need for a source for dayyo — whether from the Torah or from a halakha le-Moshe mi-Sinai — now also becomes clear, for without a source we would amplify the law being learned and stop at a different value.

By contrast, according to Maimonides and Keritut, dayyo is a logical rule. The fact that a source is nevertheless brought for it from the Torah — and perhaps also from a halakha le-Moshe mi-Sinai — teaches us that there is probably another type of dayyo, an extension of the original dayyo, but one that is not logical in the same way.

Let us now present two examples of types of dayyo that do not arise from the logic of a minimal default, as in the explanations of Maimonides and the author of Keritut: “dayyo at the end of the inference,” and “from the place from which you came.” Below we will discuss whether the latter is in fact a type of dayyo at all.

“Dayyo at the end of the inference”

In several earlier articles we discussed the dispute between Rabbi Tarfon and the Sages about goring in the injured party’s courtyard — see, for example, the articles on Parashat Shemini, 5765-5766, and others. We noted that in the give-and-take between them in the Mishnah in Babylonian Talmud, Bava Kamma 24b, two different kal va-homer arguments arise, and the Sages apply the principle of dayyo to both.

The data of the problem consist of three scriptural laws:

1. Damage by tooth and foot — that is, grazing and trampling — in the public domain is exempt from payment.
2. Damage by goring in the public domain requires payment of half damages.
3. Damage by tooth and foot in the injured party’s courtyard requires full damages.

According to the explanation of most commentators, the first kal va-homer in the Mishnah is what the writers on the rules call a “kal va-homer of places.” From the laws of tooth and foot we learn that the injured party’s courtyard is more severe than the public domain. On the basis of that principle, we then infer that if goring incurs half damages in the public domain, then all the more so in the injured party’s courtyard it should incur full damages. This is the amplification that Rabbi Tarfon performs on the kal va-homer, just like the conclusion of fourteen days in the case of Miriam.

To this the Sages reply: “It is sufficient for what is derived from an inference to be like the source case.” In other words, goring in the injured party’s courtyard — the derived case — cannot be more severe than goring in the public domain — the source case. Therefore goring in the injured party’s courtyard must also be liable only for half damages. Writers on the rules call this “dayyo at the beginning of the inference,” and this is the ordinary and logical dayyo that limits the amplification Rabbi Tarfon wished to make.

After that, Rabbi Tarfon proposes another kal va-homer, a “kal va-homer of subjects.” From the laws of the public domain we learn that goring is more severe than tooth and foot. We then infer, in the injured party’s courtyard, that if tooth and foot require full payment, then all the more so goring, which is more severe than they are, should require full payment.

Here Rabbi Tarfon’s kal va-homer itself contains no amplification, for the law is applied in the derived case with the same force as in the source case — full damages in both. We would therefore expect the principle of dayyo not to be applicable to such reasoning. To our surprise, the Sages answer Rabbi Tarfon’s kal va-homer here too with dayyo. Moreover, the Gemara explains that Rabbi Tarfon himself does not disagree with this dayyo either; he only rejects its application because it refutes the kal va-homer. See on this the article on Parashat Shemini, 5766.

This kind of dayyo is called by the writers on the rules “dayyo at the end of the inference.” On its face, it does not seem logical at all. In the final accounting, the derived case here comes out lighter than the source case — we tried to clarify something of this in the article on Parashat Shemini this year. Not only is this dayyo not entailed by the relation between source and derived cases; it actually contradicts the premise of the kal va-homer itself. If goring is indeed more severe than tooth and foot, as is evident from the laws of the public domain, then how can the opposite emerge in the injured party’s courtyard — namely, that goring is lighter than tooth and foot?

To this difficulty we answered by means of the transparency model; see there. According to that model, one cannot refute the generalization arising from the scriptural premises on the basis of the results of the kal va-homer itself. But even if no problem of refutation arises here, it is still not clear why the notion of dayyo should be applied at all in such a case.

This is an example of a nonlogical and nonintuitive dayyo. True, we proposed some explanation for it there, but it is clear that from the example of Miriam we could never have inferred the mechanism of “dayyo at the end of the inference.” A tradition and a halakha le-Moshe mi-Sinai are required to teach us this principle, even if afterwards we can find some rational basis for it.⁶

“From the place from which you came”

Another example of a different kind of dayyo is found in several places in rabbinic literature under the formulation “from the place from which you came.” It would seem that elsewhere in rabbinic literature as well a similar form of limitation is used without explicit use of this expression. Let us note that usually a limitation of the “from the place from which you came” type appears after a kal va-homer derivation, but there are also cases in which it limits another kind of derivation.

Let us take an example from the discussion of doubtful impurity derived from the law of the sotah, a woman suspected of adultery, in Babylonian Talmud, Sotah 28a-28b:

From here you may reason to a creeping creature: if in the case of the sotah, where unintentional and intentional acts are not treated alike and coercion and willing conduct are not treated alike, nevertheless uncertainty is treated as certainty, then in the case of a creeping creature, where unintentional and intentional acts are treated alike and coercion and willing conduct are treated alike, is it not all the more so that uncertainty should be treated as certainty? And yet, from the place from which you came: just as in the case of the sotah it is in the private domain, so too in the case of a creeping creature it is in the private domain; and just as in the case of the sotah it is a matter involving something capable of being asked, so too in the case of a creeping creature it is a matter involving something capable of being asked. From here they said: where it is a matter involving something capable of being asked, in the private domain its doubt is impure, while in the public domain its doubt is pure; and where it is not a matter involving something capable of being asked, whether in the private domain or in the public domain, its doubt is pure.

The Gemara derives the law of impurity from a creeping creature from the law of the sotah. In the case of the sotah, unintentional conduct is not treated like intentional conduct, and coercion is not treated like willing conduct, with respect to her prohibition to her husband. Yet even so, uncertainty — perhaps she became defiled — is treated as though it were certain, for she is forbidden to her husband as long as she has not undergone the ordeal of the bitter waters. From here it follows that in the case of a creeping creature, where unintentional contact is indeed treated like intentional contact, and coerced contact like willing contact — for in any event whoever touches it is impure — uncertainty should all the more so be treated as certainty. The conclusion is that doubtful impurity from a creeping creature, and indeed any other impurity, is impure like certain impurity.

The Gemara now introduces a limitation based on comparison of the impurity from a creeping creature — the derived case — to the sotah — the source case. “From the place from which you came”: just as in the case of the sotah the law of her prohibition to her husband is stated only in the private domain, where the seclusion occurs, so too in the case of impurity from a creeping creature, uncertainty is treated as certainty only in the private domain. And just as the sotah concerns the impurity of a person, who is capable of being asked, so too in the case of impurity from a creeping creature it applies only where there is a person capable of being asked.

The differences between dayyo and “from the place from which you came”

As we have seen, the principle of dayyo is in its essence a logical rule. By contrast, “from the place from which you came” does not look like a logical inference. Why should the kal va-homer from the sotah to impurity from a creeping creature dictate a limitation that the law treating doubt as certainty in impurity from a creeping creature applies only to a person and only in the private domain? Is this connected to some logic or to some degree of force in the law of the sotah, the source case? There is no apparent reason to compare the sotah to impurity from a creeping creature with respect to location. In the case of the sotah, seclusion by its very nature takes place in the private domain, but in the case of impurity the parameter of location does not seem relevant, and certainly not for the same reason as in the case of the sotah. It would seem to be a purely formal comparison.

Moreover, one might have extended the comparison and said that just as the sotah is a woman, so too in the case of impurity from a creeping creature the doubtful case would be impure only if the possibly defiled person were a woman. The Sages did not derive such a conclusion through “from the place from which you came.” Presumably the reason is that there must be relevant similarity in the parameters of limitation. The fact that the possibly defiled person is a woman did not seem to the Sages to be a relevant parameter. But why are the capacity to be asked and location relevant parameters?⁷

In any event, it is clear that the degree of relevance required here is less than in dayyo. In dayyo we limit the quantity learned from the kal va-homer, and the character of the law is exactly the same as in the source case. If the source case is goring in the public domain, which incurs half damages, then goring in the injured party’s courtyard also incurs half damages. The kal va-homer inference concerns the amount of tort payment, and the limitation imposed by dayyo also concerns the amount of payment. In such a situation, it is very plausible to say that there is nothing in the derived case beyond what we found in the source case.

The limitation of “from the place from which you came” is of a different character, and more far-reaching. There we limit the law being learned by qualitative parameters and not necessarily by quantitative ones. Their connection to the basic inference is also less clear-cut.

From another angle, the difference may be defined as follows: dayyo is based on the difficulty of knowing where to stop the amplification of the kal va-homer. There are many possible levels of liability for goring in the injured party’s courtyard — it is more than half damages, but it is not clear how much more — and dayyo points to the stopping point of the amplification. By contrast, the consideration of “from the place from which you came” does not stop amplification at all, but rather transfers limitations. In the background there is no perplexity among several possible outcomes of the kal va-homer, and in this sense it is not similar even to the rule “If you grasp little, you have grasped.” It does not solve a perplexity, but constitutes a positive principle that says that only what exists in the source case may exist in the derived case.

Moreover, dayyo is a rule that always comes as a limitation on kal va-homer. By contrast, “from the place from which you came” is indeed applied chiefly as a limitation on kal va-homer, but also to inferences of other kinds. This difference is related to the previous one. If we are dealing with the stopping of amplification, that can of course occur only in the context of kal va-homer. But “from the place from which you came” does not stop amplifications; it makes substantive comparisons between the derived case and the source case. A principle of that sort would seem equally valid for every kind of derivation.⁸

Is “from the place from which you came” connected to dayyo?

Let us take another example of “from the place from which you came,” from the talmudic passage in Babylonian Talmud, Gittin 23b-24a:[^9]

It was taught in accordance with Abaye. Rabbi Shimon ben Elazar said in the name of Rabbi Akiva: A woman is believed to bring her own bill of divorce, by kal va-homer. If women concerning whom the Sages said that they are not believed to say, “Her husband died,” are nevertheless believed to bring her bill of divorce, then she herself, who is believed to say, “My husband died,” should it not follow all the more so that she is believed to bring her bill of divorce? And yet, from the place from which you came: just as there they must say, “It was written in our presence and signed in our presence,” so too she must say, “It was written in my presence and signed in my presence.”

The Gemara derives from the credibility of certain women with respect to testimony about a bill of divorce the credibility of the woman herself to testify regarding that bill of divorce. It then limits the credibility of the woman who brings the bill of divorce to a case in which, on her arrival, she says, “It was written in my presence and signed in my presence.”

This consideration, although formulated in the language of “from the place from which you came,” already resembles dayyo much more closely. The limitation here is a qualification of the scope of credibility itself, and not a limitation related to some external parameter, as in the previous case. The woman’s credibility is limited to situations in which she declares that the bill of divorce was written in her presence, for without that declaration the source women are not believed either. The limitation that she must say, “It was written in my presence,” certainly touches the very issue of reliability. By contrast, in the previous example the limitation of location to the private domain did not appear relevant to the parameter learned in the basic inference, namely, the equation of doubt with certainty in impurity.

Reflection on this example and on others suggests that the principle of “from the place from which you came” appears to be an extension of dayyo. Some of its forms are very close to the original, while others have moved farther away from it. As we have seen, this extension can already be much less intuitive. It is therefore no wonder that even according to Maimonides and Keritut, a tradition from Sinai and a scriptural source are required for the use of dayyo in addition to ordinary reason.

On the other hand, the principle of “from the place from which you came” can also cast new light on dayyo. Once we have seen this extension, which is apparently the result of a Sinaitic tradition, dayyo no longer has to be understood as a choice among several possible outcomes of the kal va-homer, that is, as a solution to a difficulty and a stopping of amplification. Dayyo too can now be seen as a positive and binding principle: one transfers to the derived case only what exists in the source case. The stopping of amplification and the resolution of difficulties are merely one particular expression of that general principle.

Tosafot’s caveat regarding “dayyo at the end of the inference”

In light of what we have said, the words of Tosafot in Babylonian Talmud, Bava Kamma 25a may perhaps become clearer. They set a limitation on the application of “dayyo at the end of the inference,” and this is their language, s.v. “I”:

You might ask: How can the Sages say dayyo? Every kal va-homer works this way: because of some other, relatively minor stringency found in one case and not in the other, one would ascribe to the more stringent case all the stringencies of the lighter case. It may be answered that since the stringency is of the same kind as the law that we are seeking to learn, it is entirely fitting to say dayyo.

And if you ask: In the chapter “Cases of Monetary Law” in Babylonian Talmud, Sanhedrin 35b, it says: Let the burial of a met mitzvah override the Sabbath by kal va-homer. If the Temple service, which overrides the Sabbath, is itself overridden by the burial of a met mitzvah, then the Sabbath, which is overridden by the Temple service, should all the more so be overridden by a met mitzvah. Now let us say: just as it does not override the Temple service except through passive nonperformance, so too let it not override the Sabbath except through passive nonperformance. It may be answered that since the very body of the Temple service is set aside because of the burial of a met mitzvah, we have no basis for saying that the Sabbath should be more stringent than it in any respect.

There is here a principle that one does not invoke “dayyo at the end of the inference” unless the limitation is connected to the stringency learned through the kal va-homer. This principle strongly resembles the conclusions we drew from the rule “from the place from which you came.” A formal and nonintuitive application of dayyo must take place only within a framework that tests the relevance of the parameters, but this is not the place to elaborate.

Footnotes