2019-04-22 – The Thought of Rabbi Gedaliah Nadel – Divrei Sofrim – Lesson 2

Table of Contents

• “Words of the Scribes” in Maimonides: source, not authority
• A binding exposition versus an asmakhta, and the spectrum of connection to the text
• Strengthening an asmakhta among the medieval authorities (Rishonim), and the difficulty of an exposition that generates a rabbinic law
• Gezerah shavah, tradition, and the loss of linguistic-midrashic skill
• Tosafot and harmonization: divergent passages versus Talmudic coherence
• The Mishnah in Kiddushin: “the woman is acquired” versus “the man betroths”
• Kiddushin is not acquisition of ownership, and the halakhic meaning of “kinyan”
• “Kichah-kichah” from Ephron’s field: reversing the direction, and gezerah shavah versus gilui milta
• The essence of kinyan: rights and obligations versus a metaphysical legal effect

Summary

General overview

The text presents Maimonides’ conception of “words of the Scribes” as a label for the source of halakhic knowledge and not necessarily for rabbinic status, and sets out a continuum of degrees of connection to the written text, ranging from fully Torah-level law to fully rabbinic law, including binding expositions as opposed to asmakhtot. The speaker disputes several common assumptions: he challenges the identification of derash with peshat in Maimonides as it is usually presented, criticizes the tendency of medieval authorities (Rishonim) to read an exposition as a mere asmakhta without pointing to an internal flaw in the exposition, and develops the view that we have lost a linguistic-midrashic skill that would enable us to evaluate expositions properly. From there he moves into the topic of “the woman is acquired” in Kiddushin, Tosafot on “kichah-kichah from Ephron’s field,” and the mistaken modern conception that kiddushin is a property-acquisition of the woman, and then lays out a fundamental dispute about the nature of kinyan and legal effect: are they merely a description of rights and obligations, or a metaphysical reality that generates the legal consequences?

“Words of the Scribes” in Maimonides: source, not authority

In the second root of Sefer HaMitzvot, Maimonides defines laws derived through the thirteen hermeneutic principles or through textual amplification as “words of the Scribes.” In many places in Maimonides, the phrase “from the words of the Scribes” indicates a fully rabbinic law, in contrast to a Torah law, but here that is not the case. The meaning of the term “words of the Scribes” is matters that became known to us through the Scribes, and the label describes the source of the laws rather than their halakhic authority. The source is the sages who know how to analyze the language of the Torah precisely and derive laws from it according to what Moses our teacher received at Sinai—that this is how new laws are to be generated—and the hermeneutic principles themselves are defined as a law given to Moses at Sinai. Maimonides’ language there is: “For everything that was not heard at Sinai explicitly—behold, it is from the words of the Scribes.” So a law derived from expositions can be Torah-level in status even though its source is “from the words of the Scribes.” The speaker says he does not agree with this understanding, even though it is accepted by most commentators on Maimonides, and he claims there is good evidence that it is incorrect.

A binding exposition versus an asmakhta, and the spectrum of connection to the text

The text distinguishes between creative, binding expositions and an asmakhta, and grounds the distinction in the degree of plausibility of the reading of the biblical language and the strength of the connection to the text. A law can be Torah-level when it can be derived from the text in a binding way, and it can be rabbinic when the derivation from the text is only by way of an asmakhta. An asmakhta is defined as a law whose basis is a rabbinic enactment or decree, except that the sages anchor it to the language of a verse in some way, and the connection to the text appears at different levels, from “full connection” to “no connection at all.” Maimonides is presented as holding that the expositions reveal the true meaning of the verse, and the speaker says he disagrees and cites the Vilna Gaon, who says that derash is interpretation on a plane parallel to peshat and not a measure of the depth of peshat.

Strengthening an asmakhta among the medieval authorities (Rishonim), and the difficulty of an exposition that generates a rabbinic law

The text cites the Ritva and Tosafot in at least two places as saying that the status of rabbinic laws that have an asmakhta in the text is, in certain respects, stronger than rabbinic laws that have no scriptural anchor. It describes a phenomenon in which medieval authorities (Rishonim) work through a Talmudic passage and conclude that a given law must be rabbinic, even though the Talmud brings an exposition for it, and they solve this by saying that the exposition is only an asmakhta. The speaker argues that such a claim requires an explanation of what is flawed in the exposition and why it is not compelling, and he says he does not know of a single case where one of the medieval authorities (Rishonim) said something was an asmakhta and also explained why. He presents the view that a good exposition is a necessity, not an option, and therefore one cannot say of a full-fledged exposition that its product is merely an asmakhta without identifying the flaw.

Gezerah shavah, tradition, and the loss of linguistic-midrashic skill

The text returns to the claim that the hermeneutic principles are a law given to Moses at Sinai, and rejects the understanding that a gezerah shavah has to be transmitted in its entirety through a detailed tradition. It notes that the Talmud says a person may not derive a gezerah shavah on his own unless he received it from his teacher, but cites Nachmanides and his students, who explain that one needs to receive a hint or support, not a full tradition of the exposition and the law, and the support may be that the word is free for exposition or that there are irregularities in the text hinting “interpret me.” The speaker argues that we have lost the sensitivity and skill needed to interpret verses and evaluate expositions, and therefore people sometimes conclude externally that a law is rabbinic and then define the exposition as an asmakhta without being able to indicate the reason. He emphasizes that the basis for midrash is always a straightforward textual interpretation that identifies irregularities and redundancies in the language, and that halakhic intuition is also needed in order to decide to which matter one transfers the comparison in a gezerah shavah.

Tosafot and harmonization: divergent passages versus Talmudic coherence

The text presents the method of Tosafot as striving for harmonization and coherence between Talmudic passages, on the assumption that the Talmud was edited in a way that makes it consistent. In contrast, it describes the Spanish approach as it is perceived in academia, where one accepts the possibility of divergent passages. It gives the example of a chalutzah marrying a kohen, which according to “the standard academic archaeology” was treated in early passages as Torah-level and later became established as rabbinic, and it presents Tosafot as seeing this as a difficulty and trying to resolve it. The speaker questions how sharp that division between approaches really is and notes that this is a matter of degree, but he describes Tosafot as almost never willing to accept contradiction between passages except in extreme cases. He adds that the Talmudic text does not really look as though it underwent meticulous harmonization across tractates, although there are exceptional cases where the Talmud refers to “later on” in a way that hints at local editing that knows what is going to appear afterward.

The Mishnah in Kiddushin: “the woman is acquired” versus “the man betroths”

The text analyzes the opening of tractate Kiddushin, where the Mishnah says, “The woman is acquired in three ways,” and the beginning of the second chapter, where it says, “The man betroths the woman, by himself or through his agent,” and the Talmud asks, “What is different here … and what is different there?” The Talmud ties the wording “is acquired” to the fact that the Mishnah needs to deal with money, and then asks, “And from where do we know money?” and answers, “It derives ‘taking’ ‘taking’ from Ephron’s field,” from the verses “When a man takes a woman” and “I have given the money for the field; take it from me,” and then adds, “And ‘taking’ is called acquisition,” from “the field that Abraham acquired.” The text notes that Tosafot object to the length and clumsiness of the Talmud’s move, and cites their answer: money for a field is indeed called acquisition, but from that alone we still would not know that money used for kiddushin is called acquisition, because betrothal of a woman is not a monetary transaction like buying a field, but a bond between a man and a woman; only because of the gezerah shavah does the Mishnah use the wording “the woman is acquired.”

Kiddushin is not acquisition of ownership, and the halakhic meaning of “kinyan”

The text says that modern criticism sees the language of acquisition as reflecting a conception that the husband acquires the woman as his property, but says this is a mistake and a distortion that stems from the modern meaning of the word “kinyan.” It presents as a clear position in the sources that “betrothal of a woman is not a monetary transaction,” and brings evidence from the Talmud and from the medieval authorities (Rishonim) that the woman is “not the husband’s property,” including attribution to the Ran and the Rosh, and notes that there is a Tosafot HaRosh that wants to say otherwise, but that is an esoteric position. He explains that in Jewish law, “kinyan” means applying a legal effect and changing legal status through an act that expresses final intent, as in kinyan sudar in the sale of leavened food or in making a contract, and the act is not necessarily the transfer of ownership of the sudar object itself, but a symbolic act. He argues that since ownership is the most common legal effect, in modern Hebrew “kinyan” became a synonym for ownership, but in the language of the sages kinyan is a tool for applying legal effects of all kinds, and therefore “the woman is acquired” is not a claim that she is his property.

“Kichah-kichah” from Ephron’s field: reversing the direction, and gezerah shavah versus gilui milta

The text points out an internal difficulty in the gezerah shavah: in kiddushin, “When a man takes a woman” refers to taking the woman, whereas in Ephron’s field, “take it from me” refers to taking the money, so the direction seems reversed. It quotes Tosafot: “It is concerned only with finding the expression ‘taking,’ even though the contexts are not similar,” and explains that according to one understanding, a gezerah shavah is a formal trigger that does not require similarity of context. It presents a distinction discussed in previous chapters between gezerah shavah and gilui milta, and cites the Ritva, who holds that “kichah-kichah” here is a gilui milta that clarifies the meaning of the word “taking” as an action done by means of money, rather than a legal comparison between passages, and from this comes an answer to the question why we do not also derive document and intercourse from the field. The speaker argues that if this is a case of gilui milta, Tosafot’s question about the lack of similarity becomes even sharper, and therefore he thinks there is a mixing of different interpretive tools when people try to explain the move.

The essence of kinyan: rights and obligations versus a metaphysical legal effect

The text moves to the words of Rabbi Gedaliah, who presents a conception according to which, in a kinyan, nothing happens to the object itself, and kinyan is “a fully intentional agreement to transfer ownership,” meaning a system of usage rights and obligations such as liability for one’s property and the requirement that one’s animal rest on the Sabbath. The speaker stops there and says he disagrees, and proposes an alternative conception according to which kinyan and legal effect are a metaphysical or meta-legal reality that generates the consequences, and not merely the set of consequences itself. He brings an example from the laws of conditions in the words of Rabbi Shimon, where one can get a situation in which a woman is “both divorced and married at the same time,” and interprets this as an accumulation of “two legal effects,” like “a dish that contains both sugar and salt,” while the practical halakhic result is determined by the side of prohibition and does not depend on a mechanism of doubt. He brings another example from Gittin 42 about a slave whose bill of manumission is delayed, “ownership of prohibition” and monetary ownership, and Tosafot who write, “What difference does it make whether he killed all of him or whether he killed half of him,” and he cites the Pnei Yehoshua’s question how one derives from the thirty-shekel penalty payment for a slave to the laws of bodily injury, where the payments are compensatory. He presents an understanding according to which “ownership of prohibition” is called ownership because it is a real bond that remains even after the monetary rights have been abandoned, and therefore payments can go to the “master” even when he has no usage rights. From this he reinforces the claim that ownership is not just a bundle of rights but a bond that generates rights and obligations. He concludes by saying that Rabbi Gedaliah presents a consistent anti-metaphysical position, whereas he himself argues that there are sources indicating that kinyan changes something in the object itself in the sense of a legal effect, and he asks to continue from there to “kichah-kichah” from Ephron’s field.

Page 30, chapter 7 of Rabbinic ordinances. I started this a bit last time — more than a bit, actually. We went through the first paragraph, but at the beginning I gave some kind of description of how Maimonides understands the different halakhic categories. So there are Torah-level laws and rabbinic laws, and for Maimonides, rabbinic law and “the words of the Sages” are a whole continuum of categories. It’s not just one distinct category that includes enactments and decrees — and everybody agrees those are rabbinic — but even a law given to Moses at Sinai, for Maimonides, is “the words of the Sages,” and also laws learned from interpretive derivations — if they are creative derivations and not merely textual support — that too is called “the words of the Sages.” So in the first paragraph of chapter 7 he says that “the words of the Sages” are basically things that became known to us through the Sages. Not necessarily things whose status is rabbinic. He argues that really there are — yes — the Sages who know how to analyze language carefully, maybe let’s read. In the second root in Sefer HaMitzvot, Maimonides says that laws derived from the thirteen interpretive principles or from inclusive wording are “the words of the Sages.” It is known that in many places Maimonides’ phrase “the words of the Sages” indicates a fully rabbinic law, in contrast to a Torah law. But here that is not the case. The meaning of the term “the words of the Sages” is things that became known to us through the Sages. In other words, “the words of the Sages” describes the source of the laws, not their halakhic force. The source is the Sages, but the halakhic force may be Torah-level. I said that I disagree — I don’t think that’s correct — but that is the accepted way to learn Maimonides. Most commentators on Maimonides understand him this way, even though there is some pretty good evidence that it’s not true. “The Sages” are the wise men who count all the letters in the Torah — the Talmud in Kiddushin — who know how to analyze the language of the Torah carefully and derive laws from it, based on what Moses our teacher received at Sinai, that this is how new laws are to be generated. We said that the interpretive principles are a law given to Moses at Sinai. Sometimes these laws are Torah-level, when they can be derived from the verse in a binding way, and sometimes they are rabbinic when the learning from the verse is by way of mere support. Maimonides’ language in Sefer HaMitzvot there is: “For anything that they did not hear explicitly at Sinai, behold, it is from the words of the Sages.” And he is basically saying that when he assumes that laws that emerge from derivations are Torah laws, only their source is “the words of the Sages,” but their halakhic status is Torah-level law. What is the difference between those and derivations that we call mere support? We discussed that in the previous chapter. Mere support is basically a law whose foundation is an enactment or decree of the Sages, but they attach it to the language of a verse in one way or another. So what is the difference between attaching something to the language of a verse and deriving a teaching from a verse? So he says: it depends on understanding biblical language, on how reliable that derivation really is. In other words, how much this thing is really in the verse, or whether it’s only hinted at in the verse, the spirit of the matter. And I spoke about this continuum last time already — this continuum of connection to the text. The connection to the text can appear on many levels. Full connection to the text is Torah-level. No connection to the text at all is the agreed-upon rabbinic category, enactments and decrees. But there are different levels of connection. There is mere support, there are things that come out of derivations, there are various levels of connection to the text. So for him this runs across — that connection determines some sort of range, yes, a spectrum of possibilities that takes us from fully rabbinic to fully Torah-level. So that is what he says: when it is possible to derive them from the verse in a binding way. And sometimes the derivation is not really that strong — it is hinted in the verse, but you can’t really say that that is what the verse means, that this is the verse’s intention. He, of course, is following his own view that derivations are the way to uncover the true meaning of the verse. I said I don’t agree with that. I also brought support from the Vilna Gaon that derivations are interpretation on a parallel plane. There is plain-sense interpretation and there is midrashic interpretation, and midrashic interpretation does not aspire to the depth of the plain sense; that is not the criterion. The depth of the plain sense is what is called plain sense. Parallel to that, there is derivation. But he follows his approach, which identifies these two things, so he says that basically when the derivation is a tool that reveals to us the true meaning of the verse, then it is Torah-level. But if it only expands it somehow in the spirit of the matter or something like that, then it is basically rabbinic and we call it mere support, mere support alone. I think I brought the Ritva, and there are also Tosafot in at least two places, who say that the status of rabbinic laws that have textual support is stronger in certain respects than the status of rabbinic laws that have no textual support in a verse. Even though people usually understand that mere support — even though people usually understand that mere support means nothing, just that we hung it on a verse, we managed somehow, in some remote way, to hang it on a verse — but it’s not really a derivation, it doesn’t really come from the verse. So the Ritva argues no — it is a real connection to the verse, just not a complete one. That too is a very important point. Many times medieval authorities (Rishonim), especially Tosafot by the way, and also other medieval authorities and sometimes later authorities, make some sort of calculation in a Talmudic passage and reach the conclusion that a certain law must be rabbinic. But the Gemara brings a derivation for it. And then there is always the question: how can that be? According to Maimonides there’s no problem, because something that comes out of a derivation is indeed rabbinic, but most medieval authorities don’t understand it that way. And then it is a difficulty. It’s always difficult — what do you mean, the Gemara brings a derivation, so why do they always say it’s a rabbinic law? Then they say, fine, so the derivation is mere support. You have to say that the derivation is only support. Now when you say that a certain derivation is support, that can’t end with just a calculation that it has to be that way, because in the end the law can’t be Torah-level — we know it is a rabbinic law. You have to explain what is defective in the derivation. After all, the Gemara brings some derivation from which this law emerges, a derivation from a verse. Fine. Now once your calculation yields that in other passages or in other sources this law turns out to be rabbinic, then that’s difficult. How can that be? There is a derivation; the derivation says it is a Torah-level law. How can it be that the Gemara says such a law is rabbinic? You have to say the derivation is support. What does support mean? You made a verbal analogy. There are two equal words; you made a verbal analogy from one place to another. What does it mean to call that support? A verbal analogy is an interpretive principle. If that verbal analogy holds water, then it holds water, and it is Torah-level. What do you mean? Something in the derivation must be defective or insufficient, yes, not enough. You have to explain to me what in this derivation is actually not necessary, why it is not a full derivation, in order to say that it is support. I don’t know of any case where people do that. None of the medieval authorities, at least from what I’ve seen — and I’m not pretending to know everything, but from what I’ve seen, and I’ve been dealing with this for quite a few years — I don’t know of even one case where one of the medieval authorities said something was support and also explained why. In other words, what the problem is in those derivations. Because basically it’s an escape hatch in the argument: you say, it’s support. But you can’t point to why. Why? There is a verbal analogy here. What is the difference between this derivation and another derivation? After all, you made a verbal analogy here, so how is this different from another verbal analogy? You can’t just say: this is support. Let’s say there weren’t a rabbinic law like this — if there are equal words, Jewish law tells us, this is a law given to Moses at Sinai, that if there are two identical words, you have to make a comparison. You make the comparison. That’s a verbal analogy. But people say that at least this is how they wanted to understand it: that the verbal analogy itself has to be transmitted by tradition. No, we discussed that in earlier sessions — that’s not true. Nachmanides and his students already pointed out that this is not true. The Gemara says a person does not derive a verbal analogy on his own unless he received it from his teacher, but Nachmanides says you need to receive some hint or something like that. He himself discussed this in one of the earlier chapters, so we talked about it. It is not a matter of this derivation itself being handed down as tradition — clearly not. In other words, anyone can make a verbal analogy? Yes, but you need some sort of hint; that’s what Nachmanides says. You need some support, unlike other derivations. We said that the support can be that the word is available for interpretation. Or that there is some irregularity in the text indicating that there is some word here that needs to be interpreted. But that’s all — not that the derivation together with the law that comes from it is all passed down as tradition. Otherwise it just sounds rigged. What is the point of doing all this? You already know that this is the law. Right — so I’m saying that derivations of that type, where you determine that they are support, you have to explain in principle — again, maybe you don’t know how to explain it. Your calculation leads you to conclude that it was probably support, and since we no longer know how to make derivations or evaluate derivations — we lost that sensitivity, that linguistic or midrashic skill — therefore we don’t know how to characterize laws. So we make a calculation, conclude that the resulting law here is rabbinic, and therefore the derivation is probably support. But we don’t really know how to point out why this derivation is support, what’s wrong with it. But that is part of the same phenomenon I’ve already spoken about several times — that we really lost this skill or this linguistic sensitivity: how to derive from verses, how to interpret them on the plain-sense level. And that is also important in order to understand how to derive, even though I claim they are two parallel planes, as I discussed. Because, for example, in the context of a verbal analogy, in order to understand that two such words are indeed meant for a verbal analogy, you first have to do plain-sense interpretation and see that these words are really irregular, unnecessary. And then, through plain-sense considerations, if that’s what you get, you understand biblical language, the rules of the language, and you understand that the word is superfluous, then you make a verbal analogy. In other words, the foundation of midrash is always plain-sense interpretation. Even though midrash, in my opinion at least, does not aspire to the depth of the plain sense, still you do need skill in plain-sense interpretation in order to produce the midrash. Because you need to understand when a word in the Bible really says, “Interpret me.” And that you do with the tools of plain-sense interpretation. Beyond that you obviously also need some kind of halakhic intuition to say: okay, there are two words that say “interpret me” — what do we do with this comparison? In what regard do I compare these two passages? Here too this is a question where anybody could do completely different things. And here too there was probably some sort of tradition, skill, I don’t know, something that apparently once existed, and today the feeling is that we don’t really have it. In other words, even if you gave me two words that are supposed to be compared in their two contexts, I’m not sure I would know what to do with the comparison. What law would I transfer from here to there or from there to here? Should I transfer from here to there or from there to here? All kinds of things. We also talked about that a bit. So that’s why I say that really the medieval authorities do not point to the defect in the derivation, but if their calculation is correct, then there must be some defect there. And if there is no defect there, then you need to find another solution. It’s Torah-level. You can’t say of a good derivation that its product is support. There’s no such thing. A derivation is necessary. A derivation is not optional. In other words, if there are two equal words, you are obligated to make a verbal analogy there. It’s not optional. There is no such thing as optional. That is the meaning. That’s how the text must be treated. When there are two equal words, we make a comparison. That is a verbal analogy. So if I made a comparison and this law came out of it, then that law came out of a derivation. You can’t tell me it’s support. Okay? Fine, but that’s part of the same loss of skill. Again, I’m saying, it’s not anybody’s fault. They didn’t know how to do it, so they didn’t point to the flaw in the derivation. But are you saying that chronologically they first determined that it was rabbinic, right? And only then asked, “But there’s a derivation,” and started handling the derivation? Yes. So what did the one who determined it was rabbinic rely on? Let’s say in the Gemara there’s another passage where you see that this law is rabbinic. It says so in the Gemara. Now in another passage you see that this law comes out of a derivation. So Tosafot — later medieval authorities — come and say: wait a second, there’s a contradiction here between the two passages. Here it says it’s rabbinic, here there is a derivation. Now the approach of Tosafot is that there is no contradiction between Talmudic passages. They create coherence among all the — they make the Talmud into a circle, as Yam Shel Shlomo called it. Basically, they claim that the text is supposed to be consistent. Unlike, say, the Sages of Spain, who went less in that direction. They were more willing to say that the passages disagree. These held it was rabbinic, those held it was Torah-level. For example, a woman released from levirate bond to a priest, as opposed to a divorced woman to an ordinary priest. In early generations — at least according to standard academic archaeology — in the earlier passages, a woman released from levirate bond was forbidden to a priest as a Torah prohibition. But in practical Jewish law we rule that it is only rabbinic. A divorced woman to a priest is Torah-level; a woman released from levirate bond to a priest is rabbinic. Okay? There are conflicting passages about this. Now the academics do chronological layering here. In other words, earlier passages say it is Torah-level, and over time the view that took over was that it is really only rabbinic. Tosafot doesn’t do things like that, because that means saying there are conflicting passages. For Tosafot, that’s a difficulty, and he will try to produce resolutions. Now once you produce resolutions, then fine — but now you are not really explaining why in this passage it is this way and in that passage it is that way, because you don’t know. You don’t know how to make derivations. But the facts as established by those who did know how to derive — the Sages — the assumption is that they did know how to derive, and they teach us something, and we do the best we can with what we know. We cannot really track these things, and of course that leads to many mistakes. In other words, clearly the medieval authorities made many mistakes in these areas. There’s no doubt about it, because they themselves say they don’t understand how this business works. They make an external calculation without the real understanding of the matter. So you can make many mistakes. That’s only to be expected. When you say the Sages of Spain held differently, which Sages? The assumption is that the Rif, for example, Maimonides. Maimonides maybe less so, although there are those who want to say Maimonides too, but the Rif is the clearest example, because the Rif usually issues local rulings. I wasn’t completely convinced even about that. That’s what is accepted in academia. No, but among the commentators, the ones who should address this explicitly are the commentators, meaning Nachmanides, Rashba. Yes, Nachmanides and Rashba — I don’t know whether I can state very categorically that they were in that camp, because it’s a matter of degree. Obviously everyone raises difficulties between passages and tries to reconcile them. The question is how willing you are to accept that passages disagree and not build some huge tower in order to reconcile them. Tosafot is hardly willing to accept such a thing. There really are extreme cases where even Tosafot says there are conflicting passages and nothing can be done. But those are very extreme cases. Tosafot’s basic approach was a coherence-based one, what they call harmonization. In other words, the approach of Tosafot is to harmonize the Talmud, while the Rif is viewed as the father of the Spanish approach, which says no: if this passage comes out rabbinic and that one comes out Torah-level, then these are conflicting passages. Okay. Tosafot’s assumption was probably that the redaction — Rav Ashi and Ravina, let’s say, or whoever; redaction involved much more than Rav Ashi and Ravina — but the redaction should somehow have ensured that the entire text would be coherent. Even though it is obvious that the raw material was a collection of many passages from different places, and there is no reason to assume they had to fit one another. But Tosafot probably assumed that the redaction smoothed it over — in halakhic language, smoothing over means leveling the piles in a way that obligates tithing, right? To smooth over the text. Yes, final processing, exactly. So somehow it organized the text and basically turned it into something coherent. Or perhaps because it became sanctified, it had to be, as it were… Yes, but the question is what the basis for that is. What does “had to be” mean? What, divine providence did it? Fine, some divine power, what difference does it make? A computer or someone who harmonized all this mess. Honestly, it doesn’t look that way. The text doesn’t look like that. It does not look like it underwent strict harmonization. By the way, on the other hand — I once wrote about this too — there are a few places where it surprised me the first time I noticed it, until I saw that I had actually seen it several times. There is a passage that says, “And later we will discuss this.” A passage in the Gemara that says, “And later” — not like what we said later. Remarks of that sort show that there is some editor here who also knows what will come afterward. He doesn’t write now and then later paste in another passage. But usually that’s a reference to the next page or something like that. In other words, there’s no reference to another tractate. There’s no such animal, I think, in the Talmud. There’s no case where in a passage in tractate Beitzah it says not like there. There’s no such thing in the Gemara. In other words, it’s not… No, Rashi says explicitly “later on.” Rashi is something else. No problem, because Rashi came afterward; he obviously knew the entire text. But the writer of the holy Gemara itself — no, there is such a thing, but it’s unusual. There are a few such cases. The Gemara says it? Yes, yes, the Gemara says “and later”; there are several. I once collected them. There are a few such cases. But that is a more local kind of redaction. I’m not impressed that there is any synchronization between tractates. It doesn’t seem — it doesn’t look built that way. The Mishnah at the beginning of tractate Kiddushin says — let’s keep reading on page 30 — “A woman is acquired in three ways.” And the Gemara there says: “Why is it that here it teaches ‘a woman is acquired’” — yes, by money, document, and intercourse — “and why is it that there it teaches ‘a man betroths’?” In the Mishnah at the beginning of the first chapter it says “A woman is acquired in three ways,” and in chapter two it says “A man betroths a woman by himself or through his agent,” right? So why here does it say “A woman is acquired” and there it says “A man betroths”? It should say: “A man betroths in three ways,” and “A man betroths by himself or through his agent.” Why here is it “A woman is acquired” and there “A man betroths”? Okay? It’s a question — and by the way this is a very interesting point, because there is really some sensitivity here that I don’t know whether the average learner would have noticed. But the Gemara was sensitive to how Mishnayot are phrased. When you compare the Mishnah at the beginning of chapter one with the Mishnah at the beginning of chapter two, once you notice it, it really does demand interpretation. Why later, regarding the woman too, how does it appear? After “A man betroths by himself or through his agent”… “A woman becomes betrothed.” Yes, so not “is acquired.” What? So not “is acquired.” Right. So why… I didn’t understand. That’s exactly the question. Right, so the question is: why does the first Mishnah in Kiddushin speak about “A woman is acquired,” while the Mishnah in chapter two speaks about “A man betroths” or “A woman becomes betrothed”? So the Mishnah… the question is because there are two changes between the Mishnayot. One is the language of betrothal versus the language of acquisition, and the other is whether the man is the active subject or the woman the one being betrothed. Yes, those two differences exist there. So: “And why is it there that it teaches ‘A man betroths’?” Because it wants to teach money, and where do we know money from? It derives “taking” “taking” from the field of Ephron. It says here, “When a man takes a woman,” and it says there, “I have given the money for the field; take it from me.” So regarding Ephron it says “take it from me,” language of taking, and regarding betrothal also it says taking. So if Ephron’s field was acquired through money, then a woman too is acquired through money. That is what they learn for money. “And taking is called acquisition,” as it is written, “the field that Abraham acquired.” Okay? When we speak about the modes of betrothal — money, document, and intercourse — then the language is “A woman is acquired,” because the language of acquisition deals with the mode of betrothal when we acquire her through money. The Mishnah at the beginning of chapter two deals with the question of whether I do it myself or through an agent. So there it says, “A man betroths” or “A woman becomes betrothed.” He can do it himself or through his agent. So Tosafot asks: why all the elaboration? “And where do we know money from? He derives ‘taking’ ‘taking’ from the field of Ephron,” and then “taking” is said here and there and “taking” is called acquisition — a very cumbersome formulation. I’m not getting into that whole issue now; I once gave a class on it, and it’s a very interesting derivation. But never mind — it’s a terribly cumbersome formulation there at the beginning of Kiddushin. It could have simply said immediately that money is called acquisition, as in a field. It says regarding Ephron that money is called acquisition. Why do you need verbal analogy and betrothal and money? Money is called acquisition; that’s all. That’s really all you need to say. And therefore the Mishnah uses the language “is acquired.” It should have said that money is called acquisition as in a field, as we find in Ephron’s field, and therefore the Mishnah uses the language “is acquired.” And Tosafot answers — here is Tosafot’s question today — Tosafot answers that from the fact that money used for a field is called acquisition, I still would not know that betrothal money is called acquisition. Because field-money is money that acquires the field; betrothal money is money that effects betrothal, not that it acquires the woman. Betrothal of a woman is not a monetary transaction like buying a field and the like. Betrothal is a bond between a man and a woman, and we would not have thought that the language of acquisition is suitable for betrothal. And only because of the verbal analogy “taking” “taking” does the Mishnah use regarding betrothal the language “A woman is acquired.” Okay? Here maybe I’ll just say a few words. Sorry, I just wanted to note something. Just a few words. What is commonly accepted today — the apologetics, or the criticism before the apologetics — there is criticism that in the halakhic conception the husband acquires the wife as his property. In a modern view that is very upsetting, even apart from feminism. It really is upsetting. As Allan Bloom writes, if only the modern man would guard his wife the way he guards his car or his smartphone. In any case, this is very upsetting, and then all kinds of apologetics come along. But actually, when you look at the sources, long before all the criticism, it is entirely clear — and this is not apologetics — it is clear that this is true: to betroth a woman is not to buy her in any sense whatsoever. There is a Tosafot HaRosh somewhere that wants to say yes — that is an esoteric position. Most medieval authorities — and there is endless evidence from the Gemara that this is not so. One very simple proof: the Gemara brings three ways in which a woman is acquired — by money, by document, and by intercourse. Now a field is acquired by money, by document, and by possession. What is possession? Possession means use of the field — locking, fencing, making an opening. Right? When you use the field as an owner, you acquire the field. One might have expected that intercourse with a woman would basically be acquisition by possession. It is completely parallel to acquiring a field, right? Now the Gemara brings “taking” “taking” from the field of Ephron to teach why a woman becomes betrothed through money. They learn it from the field, “taking” “taking” from the field of Ephron. After that the Gemara asks: we found money — where do we know document from? So it learns document from somewhere else, from “and she shall go out and become another’s,” not from a field. Intercourse is learned from somewhere else entirely, from “her husband,” never mind — it is learned from somewhere else. Why, what’s the problem? There is a verbal analogy between woman and field, there are three ways a field is acquired, there are three ways a woman is acquired — what could be more natural than to say this is learned from that? There is a verbal analogy. Just as you acquire a field, so you acquire a woman. Why only money and not document and intercourse? Money is learned from the verbal analogy — meaning, the Gemara makes the verbal analogy; we don’t have to invent it. The Gemara makes it, and then afterward it searches: and what about document, where do we know it from, and where do we know intercourse from? What do you mean? There is a verbal analogy between a woman and a field. Any way that you acquire a field, you should be able to acquire a woman. What’s the issue? More than that, the medieval authorities ask questions — they ask this. Why don’t we learn it from a field? From a field, sorry. Nachmanides and Tosafot there at the beginning of Kiddushin ask why we don’t learn it from a field. They give all kinds of answers, but it is completely clear that we do not learn it from a field. Why not? For the same reason Tosafot writes here. Because you are not buying the woman. That verbal analogy, by the way, is a linguistic clarification. That “taking” is called money. It is not really a comparison. You can also see it from the style of the Gemara: the Gemara learns that the word “taking” refers to an act done by money. It has nothing to do with acquisition in the sense of ownership. Nothing at all. Therefore the Gemara hesitates here: so why use the language of acquisition? Because it really does not belong here. So the verbal analogy says yes, but the language of acquisition refers to actions, to the creation of legal effect through money. Now why, after all, okay, after the verbal analogy they still call it acquisition. After the verbal analogy they call acquiring a woman, as it were, an acquisition — “A woman is acquired in three ways.” Does that not mean she is the husband’s property? The Ran writes, by the way, that a woman is not the husband’s property. The Rosh writes it; several medieval authorities write that there is no such thing — a woman is not the husband’s property, no. In many laws they derive consequences from that, or negate consequences on that basis. She does not belong to him in any way. But then what is the meaning of the fact that this is called acquisition? Here you have to know that in Jewish law the concept of acquisition is not in its — not only in its modern sense. The modern meaning is just one example. Acquisition means creating legal effect. When you make an acquisition — if you sign a contract, you sign a contract… In modern language you don’t say, “I made an acquisition so that the contract would take effect.” What did you acquire? You are not the owner of anything. You signed a contract with someone; you want the contract to be valid. Nobody here owns anybody. You are making a mutual agreement. That doesn’t need acquisition. In Jewish law, when you sign a contract, you make an acquisition. When you appoint the rabbi to sell leavened food, you lift the pen or the cloth or whatever it is. What is that? Does the rabbi belong to you now? I always understood it as though one side is supposedly receiving ownership of that pen in exchange for his undertaking to… Isn’t it about transferring ownership of the pen or the scarf or whatever it is? No, no — it’s not about transferring ownership. No. Acquisition by cloth exchange is not transfer of ownership. There are disputes in the Gemara and then among the medieval authorities. It is not transfer of ownership. It is not transfer of ownership; it is a symbolic act. A symbolic act meant to express full intent. A symbolic act that has nothing to do with transferring ownership of the pen? Or the cloth? Or whatever one uses for the acquisition? No. There is even a dispute whether exchange is done with the vessel of the buyer or the vessel of the seller. It is not clear that it is done with the vessel of the seller. In any case, what does this symbolic act do? It expresses full intent. When is full intent required? Full intent is required when you create any legal effect, when you want to change a legal state. You betroth, you divorce a woman, you buy something, you create a contract, you appoint an agent — all kinds of things like that. So you have to determine when the legal effect takes hold. That is a legal determination. You have to decide from when the contract is concluded, from when it becomes binding. So you need to do some action that says: from now. Now we have finally resolved it. It is no longer just thoughts, no longer just deliberation — that’s it, now it takes effect. So you have to establish that somehow. When do you do that? You perform an act of acquisition. To make the matter explicit, as they say — to express the full intent I have. So you need to express it by doing some act, not just by speaking. Because if it’s only speech, I can always say: I thought about doing it but I didn’t decide; it wasn’t certain yet. Okay? So you need an act. But that means that when we speak about an act of acquisition in the halakhic context, it does not necessarily mean buying something in the sense of owning it. An act of acquisition means creating legal effect. Legal effect of any kind; it is not connected to ownership. Now true, ownership too is one kind of legal effect, maybe even the most common one. Usually that’s the legal effect we create all the time: buying, selling — these are the things we do most often, more than betrothing and divorcing a woman, for example, or whatever. Separating terumah is also a legal effect. Okay? Or all kinds of things of that sort. So the most common legal effect is ownership. Therefore somehow in modern Hebrew the concept of acquisition automatically gets linked for us with acquiring ownership. If I make an acquisition in something, that means now I own it. But that is not correct in the language of the Sages. In the language of the Sages, to make an acquisition means to establish or change a legal state. That’s all. So if I now betroth the woman, meaning I want to change a legal state, to create betrothal, then I need to perform an acquisitional act. Acquisitional does not mean that the woman is my property, that she belongs to me, but that I perform this act and then the legal effect takes hold — the effect of betrothal. Or the effect of divorce. Or the effect of terumah. Or the effect of acquisition, ownership. Okay? Today somehow in modern law we don’t make other kinds of legal effects; we usually make ownerships. Ownership. Okay? So ownership has effectively become… acquisition has become synonymous with ownership. But that is a modern artifact. In the time of the Sages it simply was not like that. The medieval authorities were not even bothered by this. They did not think that the language of acquisition expresses the idea that the husband is the wife’s master or owner. Quite the contrary. In a number of places the medieval authorities actually ask, when there are places in the Gemara where it seems there is some situation of mastery, of ownership, then the medieval authorities ask on the Gemara: but a woman is not the husband’s property. They don’t say this as an answer to difficulties, as if “a woman is not…” as proof that a woman is not… No. That is their starting assumption. A woman is not the husband’s property. If they see something else in the Gemara, they challenge it. Meaning this conception is not apologetic because today there is feminism or a more egalitarian view; rather it is clear that this was always the halakhic conception. This is not about buying the woman into ownership. It is simply a mistake, a distortion caused by the modern distortion of the term acquisition. Okay, so that is basically what Tosafot says here. Now he continues and says: but at first glance this verbal analogy is very strange. Page 31 at the top. In Kiddushin we are speaking about taking the woman, who is what is acquired: “When a man takes a woman.” The man takes the woman. Whereas in the field of Ephron we are speaking about taking the money: “I have given the money for the field; take it from me.” If we make the analogy, let’s say — who is the merchandise in betrothal? Merchandise not in the sense I spoke of before, but in the analogy regarding money. The woman, right? The woman is the merchandise and the money is the money, parallel to giving money in buying a field. Okay. But when they make the verbal analogy here, notice, the direction flips. The “taking” written in the field of Ephron is taking the money — “I have given the money for the field; take it from me” — and then you take the money and I receive the field in exchange. Okay. Whom are we talking about here — Abraham? What? In that sentence? Yes. “I have given the money for the field; take it from me.” So Ephron takes the money from him. In betrothal it is “When a man takes a woman” — one takes the merchandise, not the money. So this verbal analogy is a bit problematic. There is no real comparison here. It should have been either that the money is taken or that the merchandise is taken. But how do you make such a verbal analogy? So there really is the possibility of saying — look, Tosafot already notes this — and Tosafot indeed comments on it and quotes: “He is concerned only with finding the language of taking, even though it is not similar.” Even though it is not really similar. “Because the taking there refers to the money of the field, while the taking of a woman does not refer to the money of the woman but to the woman herself.” But he is not bothered by that; a verbal analogy is made even in such a case. How is this usually explained? In a moment he’ll explain it. But how is it usually explained? If we really understand a verbal analogy as a formal comparison — here and there there is the same expression or the same root, in this case “take” and “takes,” not exactly the same word but the same root, yes, the same expression — then there is a comparison between the two passages. Now I have to decide what comparison I make. The trigger is a formal trigger. There is no real comparison here; it is not that I’m saying the taking here is exactly like the taking there. Rather I say: here there is the word taking and there there is the word taking; that is a verbal analogy. Since that is so, I have to compare the two passages in some respect. Since there the taking is by money, here too the taking is by money. So this basically means that there is a verbal analogy based on the fact that the same word appears here and there, but it does not have to appear in the same context, because we are not making a real comparison. Otherwise it would be a plain-sense comparison, not a verbal analogy. A verbal analogy is a midrashic comparison. A midrashic comparison only means that if the same word appears here and there, then I make a halakhic comparison — not that I really think it is the same thing. The second type, those who understand this as verbal interpretation, is what is called — we saw this in the previous chapter — clarification of a word. Clarification of a word is something that the Gemara also sometimes relates to as a verbal analogy, and the medieval authorities already write that this is a verbal analogy of a different type. By the way, the Ritva and Tosafot — I think Tosafot too implies — that “taking” “taking” in the field of Ephron is clarification of a word; it is not a verbal analogy. And what does that basically mean? That it reveals to me the meaning of the word “taking.” Not that the equal word is a trigger to compare passages — which is a verbal analogy. What does “less than a verbal analogy” mean? Less in what sense? It explains the meaning of the word, yes. So it doesn’t compare the passages? No, not at all. You understand that taking means transferring money. That’s all. Okay? Therefore you don’t even need to make a halakhic comparison between the passages. And that, by the way, answers very easily why they don’t learn from it money, document, and intercourse. Because there is no real verbal analogy between woman and field. It is just clarification of a word that “taking” means with money. That’s all. You only have a source for money. So there is a dispute among the medieval authorities there as to whether this is a verbal analogy or clarification of a word. But we discussed verbal analogy versus clarification of a word in one of the previous chapters — I think the previous chapter or the one before that — and I said there that clarification of a word really does not belong to the world of derivation. The medieval authorities already write that. The Gemara calls it a verbal analogy, but clarification of a word means: it is an interpretive tool. You want to understand what a certain word means? Go to another place where the same word appears and see how it is interpreted there. From that, understand how the word is interpreted here too. Okay? But such a thing is not derivation; such a thing is plain sense. Okay? That’s how you learn in every text, not only in the Torah. You don’t need a law given to Moses at Sinai to give you verbal analogy in order to do that kind of interpretation. Now if indeed “taking” “taking” is a real verbal analogy, then Tosafot can be understood simply. The fact that here they take the money and there they take the woman is not difficult, because I am not really comparing the two passages. Here there is the word taking, there there is the word taking — that is a formal trigger to say there is a comparison between the two passages. That’s all. Why should I care in what context the word taking appears? It does not matter whether the word taking characterizes the money or the woman; the question is that the same word appears in both places. What do we learn from that? If here it is with money, there too it is with money. Then it really is a verbal analogy. And then everything I said before — so why not intercourse and document, and all kinds of things like that — can start to be asked. Okay. But Rabbi Gedalia apparently understood — and there are medieval authorities who understand this way — and I think Tosafot here does not seem to understand this way, because he says: true, it is not similar. In a moment he’ll show that it is similar. But Tosafot says explicitly: no, it is not similar, and that doesn’t bother me. Because Tosafot understood that this is a genuine verbal analogy, not clarification of a word. And if it is a verbal analogy, it doesn’t have to be similar. It is enough that the same word appears here and there, and that’s it — I compare the passages. It does not have to appear in the same form. But if you understand it as a dictionary, as clarification of a word, then look — decide. Does taking mean taking the money or does taking mean taking the field? You have to explain the word to me. So then this doesn’t work: the word appears with different meanings in the two places, so how do you learn from one to the other? Once you assume it is clarification of a word, that requires explanation. Therefore I think he is mixing unlike things a bit here. In a moment he’ll explain… Maybe Tosafot simply held that it wasn’t problematic because verbal analogy… that he basically wants to say verbal analogy is support, as it were? No, because verbal analogy is a formal tool, not clarification of a word. I mentioned earlier that the Ritva says “taking” “taking” is clarification of a word. It teaches me the meaning of the word, what “taking” means. “Taking” is apparently, in Torah language, money. That is what you see from the field of Ephron. Okay? If you understand it as clarification of a word, Tosafot’s question is very difficult. As clarification of a word, by the way, it’s a bit… if it’s a plain-sense consideration, on the face of it it seems rather strange. Because “taking” in our language is a very general thing; it doesn’t refer to one specific object. No, but the assumption is that when the Torah says “When a man takes a woman,” the Torah needs to define for me how to take the woman. How do you take the woman? What does it mean to take the woman? How do you take? Apparently the Torah understood that the word taking is enough to explain to me what has to be done here. So now I look for another place where “taking” appears, and I see that it is with money. Okay? But in my opinion Tosafot, in his answer, is saying exactly this: it is not clarification of a word, it is a verbal analogy. In a verbal analogy the words do not have to appear in the same form. Therefore he says he is not concerned with it, even though it is not similar. And he says it is not similar. Because Rabbi Gedalia in a moment will explain why it is similar. That perhaps fits the Ritva, who makes this into clarification of a word, but Tosafot probably understood that it was really a verbal analogy. A verbal analogy truly does not need to be similar because it is not plain-sense interpretation. Okay? But in a moment he’ll explain why it really is similar, and therefore I say: that’s not an explanation of Tosafot; on the contrary, it’s an explanation in Ritva against Tosafot. In Tosafot it doesn’t seem that way. So now he explains. What does this mean… and still the matter is not clear, yes? That’s what he says. What do you mean, we don’t care? It appears reversed. And according to his approach, of course, in his view there is no difference between derivation and plain sense. Derivation is basically just another way of interpreting the plain sense. Okay? So we need to understand: then how does this derivation of verbal analogy help me understand the plain sense? In his view, everything is basically clarification of a word in the terminology I used just now. What is acquisition? he asks. What happens when one performs an act of acquisition? Does something change in the object? Let’s say, does something change in the object? In other words, does something happen to the object itself? Clearly acquisition is nothing but complete agreement to transfer ownership from the seller to the buyer. The idea of private property means that a person has exclusive rights of use in the object he owns, and also exclusive obligations, such as liability for damages caused by his property. In other words, if I have property and that property is an animal and it causes damage, I am responsible for that. So the laws of property damages are an obligation that I have with respect to my property, not only rights that the property gives me. Also the Sabbath rest of one’s animal, by the way, same thing. Yes, if I have an animal I have to make sure it rests on the Sabbath. That too is an obligation imposed on me by virtue of my property, or regarding my property. The object belongs only to him, but he may transfer ownership of it to someone else. Here again is another important point. Once again, according to his rationalist approach, of course, he understands that in acquisition nothing at all happens to the object. He is hinting here, of course, at the yeshiva approach that understood… that understands otherwise. In other words, he wants to claim that acquisition is not — it is a legal agreement between two people. Something does not happen in the world. Saying “I acquired an object” does not mean that something in the object’s reality changed. Not even in its spiritual reality. Again, physically nobody claims that something changed there. He says: this is not a change in reality; it is a change in legal state. In other words, now I have rights and obligations regarding this object that I did not previously have. We call it acquisition, but that’s just words. In the end we are talking about a legal state, not metaphysics — not some factual condition. And here I already want to stop and open parentheses, because on this too I disagree. At least one can see at least some good evidence in the Gemara and the medieval authorities that this is not correct. Acquisition is a thing in the object itself. Maybe I once spoke about this, I don’t remember. One of the first articles I wrote was about the concept of legal effect. And there something clicked for me in a class I once gave, where we were discussing the laws of conditions. A person divorces a woman… what happens during that year until it becomes clear whether the woman fulfilled or did not fulfill the condition? There are many discussions in the Gemara — never mind — medieval and later authorities. Rabbi Shimon defines the situation, a condition of “from now,” never mind, there are several kinds of conditions, but under certain circumstances he defines the situation as a woman who is both divorced and married at the same time. Both divorced and married at the same time. Or both divorced and not divorced at the same time, yes? So I said this there in the class, and the students opened their eyes wide at me. What do you mean? If she is divorced then she is not married. What do you mean she is a single married woman — what exactly? If she is divorced then she is not married; if she is married then she is not divorced. What does it mean that she is divorced and married at the same time? Both together? That’s a logical contradiction. And I got stuck for a moment, because I hadn’t even seen any difficulty at all. In yeshivas you get used to this, you know — you make the calculation, yes, there are two laws, she is divorced and married, and everything is fine. You move on. Stop for one second — what do you mean, both divorced and married? That’s contradictory. So it took me a few seconds, because sometimes people who are not deeply rooted in learning from a young age can open your eyes to things you are so used to that you just recite them and do not really understand them, or can’t even explain them to yourself, not just to others. But I was sure it was true. I was sure they hadn’t caught me in a mistake; rather I just didn’t know how to explain it to them. There was something here. So after a few seconds the penny dropped for me. I told them: what is legal effect? The effect of divorce. When I say that the legal effect of being divorced is imposed on the woman — does that only mean she is divorced, that now one may marry her? Or does it mean I changed something in her reality? In other words, something is different — she is now carrying a different backpack on her back. There is on her the legal effect of divorcee. That legal effect is a backpack, a metaphysical backpack, yes? Something is resting on her that has consequences saying she may marry and is unmarried and all kinds of things, and is forbidden to a priest and all kinds of things like that. But those are consequences. That is not the content of the concept “divorcee”; rather those are consequences of the fact that she is divorced. As opposed to what he says here, yes? What he says here is basically that a legal state is the collection of its consequences. You have rights and duties in an object, but ownership of the object is not some sort of reality. Rather it is consequences. What I want to claim here is that that is not true. Rather, ownership of an object is a kind of metaphysical or meta-legal reality — call it what you like — that has legal consequences. Every such state of course has laws: what is right, what is forbidden, what is permitted in any legal state. But a legal state is a kind of reality. And when I say there is acquisition in an object, that means something happened to the object itself as a result — some bond was formed, say, between me and it, a bond in the metaphysical sense. An actual bond. It just has consequences in the sense that I have rights and obligations regarding this object and others are forbidden to take it. Those are already the consequences, but that itself is not the concept of ownership. Then I told them: if I say that in a dish there is both… I think I once spoke about this, right? With the opposite. If there is something without an opposite. Yes, that… I have a good friend I occasionally debate with. He’s secular, but we argue about all kinds of things. Once I came to him with the question: I can’t find anything that has no opposite. He said, I don’t understand — table has no opposite, bird has no opposite, whatever, lots of things have no opposite. And then I sort of caught myself — so really, why hadn’t I found anything until now? And indeed every concept he brought from the world had no opposite. Then I understood that I had been looking for descriptions, adjectives, that have no opposite. He gave me objects. Objects have no opposite. There is no opposite of a table. But there is an opposite of salty or sweet or good or bad. Descriptions — every such thing has its opposite. Black and white, hot and cold. Whatever, things like that. So descriptions have opposites. The relation of contrast or opposition is a relation between descriptions or between attributes. It is not a relation between objects. Right? An animal is not the opposite of a bird. It is different from a bird, but not the opposite of a bird. Okay? So among objects… objects have no opposite by definition. Therefore every object you find has no opposite. There may be an object that has opposite properties, perhaps, but the opposition is a relation between properties, not between objects. If you say that a dish is both salty and sweet, that is problematic. But if you say there is both salt and sugar in the dish, what is the problem with that? There is no problem. Those are two different objects; nothing happened. But you can’t say it has two opposite flavors at the same time. Salt and sugar are objects that have opposite properties, but the objects are not opposites of each other. Okay? I told them this: when I say that a woman is both divorced and married at the same time, I have said something that is a logical contradiction, because I have assigned two contradictory descriptions to the same woman, in the same state, at the same moment in time. Clearly you cannot say such a thing. But if you understand that what I am saying here is not what the legal state of the woman is — I am asking what the metaphysical state of the woman is, what legal effects are sitting on her — on her rests the legal effect of married woman and the legal effect of divorcee. She is carrying both legal effects at the same time, two backpacks. That is like a dish that has both sugar and salt. No problem, right? The interesting question is of course what taste comes out of that. The resulting taste has to be one. Never mind — let’s say sweet-and-salty together is also some kind of flavor — but the taste has to be one. There cannot be two opposite tastes at once. Right? Because taste is a property of the dish. But the dish — the objects within the dish — there is no problem that the dish contains two different objects. Because it is not a logical contradiction to say the dish contains both sugar and salt. The same with the woman. It is a logical contradiction to say she is both married and divorced, because those are legal states. Either she is permitted to a priest or forbidden to a priest. Either she is permitted to the world or forbidden to the world because she is married. Okay? But if I say that on her rests both the legal effect of married woman and the legal effect of divorcee — no problem. That is like there being both salt and sugar in the dish. The interesting question is: what laws emerge from such a state? Would it be permitted for her to marry a priest? Would it be permitted for her to marry another man? Maybe because she is married she would be forbidden to marry another man. That is a question. There the result would already be one. There is no result that is both forbidden to a priest and permitted to a priest. Because forbidden to a priest and permitted to a priest — that is the consequence, that is a property. A property can only be one. Opposition, contradiction between properties — that is a contradiction. There cannot be two opposite properties for the woman. But there can rest on her two legal effects. She can be both married and divorced. What law comes out of that? It is like the laws of doubts. That is what Rabbi Shimon calls it, even though it is not exactly doubt. There is no doubt here at all; it is certain. She is both divorced and married — there is no doubt. Now what am I asking: is she permitted to marry someone else? No, because of doubtful marriage? Not doubtful — because of the married aspect in her, not doubtful. Because of the married aspect in her she is forbidden to marry another man. After all, from the divorced aspect in her there is no prohibition against marrying someone else; it’s not that there is a positive permission. There is no such thing as positive permission in Jewish law. In Jewish law there are only prohibitions, no permissions. If there is no prohibition, it is permitted. So from the divorced aspect there is no prohibition on marrying someone else — not that there is some positive permission — there is no prohibition. But from the married aspect there is a prohibition. So if there is prohibition and no prohibition together, what is the result? That there is a prohibition, so she may not marry. Certainly forbidden, not doubtful. A practical difference would be if she were married and divorced at the rabbinic level. There are such cases. Okay? But if he writes “doubt,” why not understand him to mean doubt? Because he doesn’t mean doubt; you can see it from the context. He uses it as “like doubt.” If there were a rabbinic case — divorced and married at the rabbinic level — same thing, she would be forbidden to marry someone else. Because it is not doubt. If it were doubt, a rabbinic doubt would be ruled leniently. But it is not doubt. From the married aspect in her she is forbidden to marry another man. From the divorced aspect in her she is permitted. Ah, so from the married aspect she is forbidden. Finished. She cannot marry. Okay? Is she forbidden to her husband? What? As a divorcee, she is forbidden as an unmarried woman. Unmarried woman is not such a prohibition, right. There would be the prohibition of an unmarried woman. Fine, that’s not… So here I am showing you an example of the consequence of the halakhic conception that says: when I speak about a woman who is divorced, I can do so on two planes. One: what legal effect rests on her. That is a metaphysical perspective. What happened… to the woman herself, some legal, spiritual, whatever, non-physical change happened in reality itself. And there are halakhic consequences to that: forbidden to a priest, permitted to a priest, forbidden to the world, permitted to the world. Those are the halakhic consequences. But the legal state of “divorcee” is not just that she is forbidden to a priest and permitted to the world; first of all it means that the legal effect of divorcee rests on her. Something happened in the woman herself. There are halakhic consequences to this. As opposed to what he says — that a legal state is only the collection of obligations and rights or prohibitions and permissions that it carries within it. There is nothing beyond that. It is the set of its legal properties, not the state itself. I’ll give maybe another example. There is a Gemara in Gittin, on page 42. The Gemara there speaks about a slave whose bill of emancipation is delayed. In other words, this is a slave whose owner — regarding a slave, I’m speaking of a Canaanite slave — a non-Jewish slave owned by a Jew is obligated in commandments like a woman. He is half-Jew, half-gentile, sort of. He has left the category of Noahide but has not entered the category of Israel; some define it that way. He is kind of half-Jewish. Now, so he also has a status in terms of prohibitions. He is obligated in commandments. By law he is like a Jew. He is obligated in commandments like a woman — there is a verbal analogy — but he is like a Jew. And there is also acquisition: he belongs to me. In other words, he is like my ox and my donkey; he is my property, the slave. Okay? These are two aspects. In the medieval authorities this is called ownership of prohibition and monetary ownership. There is ownership of prohibition — meaning his status in terms of prohibitions, his personal status — and there is monetary ownership, meaning that he belongs to me. What happens if I renounce the monetary ownership? I can renounce my property. I renounce it. Is his status in terms of prohibition also gone? Does he also cease to have the slave status in the sense of prohibition? In other words, has he now basically become Jewish? A freed slave becomes Jewish. Wait — if I sell him, can I sell him to a gentile? Selling — yes, you can. To a gentile, I don’t remember. I think maybe you can. Maybe it’s forbidden but effective. So maybe it’s forbidden but valid. And then does he lose his half-Jewish status or does he remain? I assume yes, but I don’t remember — I’d have to check. I’d have to check that. But “delayed bill of emancipation” is someone in whom the monetary ownership has lapsed. The slave was renounced. Okay? But the ownership of prohibition remains. The ownership of prohibition remains. What? Immersion — he already entered slavery, he needs… immersion and another immersion. Now when I free him — sorry, when I renounce him — the ownership of prohibition remains. That means he remains in the status, the personal status, of a slave. Okay? He is permitted to a Canaanite maidservant, never mind, there are various things where he is not like a normal Jew. That is a status, and also not like a gentile. Okay? So there is some status here that remains, but no longer the monetary aspect. Okay? Now the Gemara says — never mind, the outcome there is — that if someone injures him, injures this slave, the one who injures has to pay. Okay? Really he should pay five categories — damage, loss of work, medical costs, humiliation, and so on. To whom does the money go? The Gemara says: to his master. Even though he no longer belongs to his master. He only has the status of slave — what does that have to do with it? There is no connection between him and his master anymore. He doesn’t belong to him. The entire ownership link no longer exists. Okay? Tosafot asks — the Gemara says, wait, no, that’s Tosafot. Tosafot there asks why this is so. Why does it go to his master? His master doesn’t own him. Tosafot says: because if an ox kills him — someone’s ox kills a slave — then there is what is called the thirty shekels for a slave. One pays thirty silver pieces. That is what the Torah says. To whom do you pay? To the master. What happens with a slave whose bill of emancipation is delayed? This is called delayed bill of emancipation — meaning I renounced him monetarily, but he is still in the status of slave until he receives a bill of emancipation, at which point he becomes Jewish. So that is called delayed bill of emancipation. Okay? That makes it clear that even before we say the money goes to his master, it is clear that even after the owner renounced him, he is still the one authorized to give the bill of emancipation. Yes, yes, that’s clear. Now what happens if an ox kills him? The thirty shekels for a slave go to his master; they learn this from a verse. Okay? Tosafot says: what is the difference between killing him entirely and killing him partially? If you injure him, that is only partial killing. But just as the payment when you kill him goes to his master, so too when you kill him partially, meaning injure him, the payment also goes to his master. That is what Tosafot says. In any event, there are huge differences. After all, a slave whose bill of emancipation is delayed does not belong to his master. So once you are talking about a fine — the thirty shekels for a slave is a fine. How do I know it is a fine? Because it is a fixed sum. Right? If it were compensation, you would have to assess how much the slave was worth, and pay accordingly. But if it is… a fixed sum is always a fine, okay? Therefore it is a fine. What is a fine? What is the difference between a fine and compensation? A fine aims to punish the wrongdoer. Compensation aims to compensate the victim. Okay? A fine is criminal; compensation is civil. Okay? So I say: the thirty shekels for a slave is criminal. So I have to pay — true, my ox gored a slave and killed him, I have to pay. To whom will I pay? The slave is dead; he has no heirs. So to whom will I pay? Only to his master, there’s no alternative. I have to pay in order to be punished. Now there is no one to give the money to — the slave is dead — so I give it to his master; that’s obvious. But how from this do Tosafot derive, asks the Pnei Yehoshua, that if I injure him and he is still alive and standing here, and the master does not own him, and injury payments are not a fine — injury payments are monetary compensation — why should that go to his master? What kind of reasoning is that? What Tosafot says — what difference is there between killing him entirely and killing him partially — obviously when an ox kills a slave that is a fine, a punishment I have to pay in any event. To whom will I pay? To his master — whom else can I pay? The slave is already dead. But if I injure him, I should pay him the compensation for what I did to him. Why on earth to the master? Why to the master? That is what the Pnei Yehoshua asks. Now his answer is worded somewhat vaguely. I had an argument about this with my maggid shiur, Rabbi Eichenberg. I had a major argument with him about this issue. I understood the Pnei Yehoshua in a certain way; he understood it differently, or I don’t know if he understood it differently, but he did not agree with my understanding. In the end we went to arbitration, as it were, before another maggid shiur in the yeshiva. He presented my view better than I could, and in the end I think we were convinced that I was right. I claimed that the Pnei Yehoshua says the following: what is ownership? Why in the language of the medieval authorities is this called ownership of prohibition? That was how he presented my position; I hadn’t formulated it that way. Why in the language of the medieval authorities is this state called ownership of prohibition? Monetary ownership I understand — he belongs to me, he is my property. But why is it called ownership of prohibition? He has a prohibitory status or personal standing of some kind as a slave. Apparently — and this is what I claimed the Pnei Yehoshua says, and it is an argument in my favor that he brought it — apparently his status in terms of prohibition is a consequence of his being my property. In other words, there is a state — property means that I have a bond to the thing; that is what it means that the thing is my property. I have a metaphysical bond to the thing. As a result, I have rights in it and obligations regarding it, all that we saw. But that is only the consequence. The fact that it is my property first of all means something metaphysical: there is a bond between me and it. It is considered my periphery, and that has all kinds of consequences. That’s also why I am obligated in the Sabbath rest of my animal; it must rest. Why? Because it is basically an extension of me. Just as I have to rest on the Sabbath, so too my animal has to rest on the Sabbath. Even though animals are not obligated to observe the Sabbath, still this is considered in some sense a Sabbath violation of mine, because the animal is some kind of periphery of me. So my property is some kind of periphery of me. The fact that it is my periphery means I have rights and obligations regarding it. But that is only a consequence; it is not the essence of ownership. What happens when I renounce it? Does renunciation sever the bond between me and the thing? I claimed that the Pnei Yehoshua says no. Renunciation is waiver of the rights I have in the thing, but the metaphysical bond between me and the thing remains intact until I give him a bill of emancipation. And his personal status, the fact that he is still considered a slave, is rooted in the fact that I have ownership in him. Ownership of prohibition, not monetary ownership. I have no monetary rights, but the ownership of prohibition is the same ownership as monetary ownership, just without the rights. In other words, the metaphysical state remains, but the rights it normally grants are absent. They have lapsed. And therefore now, essentially, he belongs to me. I am still his master, even after I have renounced him. Therefore if someone injures him, he pays me, because I am his master. In the laws of injury, the rule is that the injury payment goes to the master. Not because the master suffered loss — that is another matter, and I can also prove that in the laws of injury this is not compensation in the usual sense. In Maimonides it is almost explicit. It is not compensation in the usual sense. It is not a fine, but it is money you pay because of the damage you caused. But the money does not necessarily go to the person who suffered loss; rather it goes to the master of the damaged property. Usually that is the same thing; the master is the one who lost. But here in the case of a slave that is not so. The master is the owner who renounced him, but the one who suffered is the slave himself, because the master no longer has any rights in the slave. Why should he care if the slave is injured? He loses nothing from it; he cannot use him, he has no rights in the slave. So here there is a split between who is the master of the slave and who suffers from the slave being injured. The slave is the victim, but the master is the owner who renounced him. And the law is that injury payments go to the master, not the victim. Again, usually that is the same person, but here it is not. And that too is a claim one can prove, and I think that is what the Pnei Yehoshua says. And that is how he explains Tosafot. And since — basically he says: why does the fine of the thirty shekels for a slave go to the master? Because a fine goes to the master. But you see that even in delayed bill of emancipation, the fine goes to the master. So he says that even in delayed bill of emancipation he is still his master. So if so, also in injury, even though it is not a fine, the payment will go to the master even though he has no rights in him, he is not the victim, but he is the master despite not being the victim. Therefore the money goes to him. What do we see here? Again the same thing: that the concept of ownership is not the collection of rights I have in the thing. The collection of rights is a consequence of ownership. The fact that I am the owner means there is a metaphysical bond between me and the object. That gives me rights. Otherwise it is hard to understand why, if I own something, I am also obligated in its Sabbath rest. Why is there a law of one’s animal resting? What difference should it make? If you see it as my periphery, then when that animal violates the Sabbath, in some sense I too violated the Sabbath. In a lesser sense — of course one is not stoned for that — but it is still a Torah prohibition, the Sabbath rest of one’s animal. So I am saying: since it is my periphery, when it violates the Sabbath that is in some sense my Sabbath violation. But then you are basically saying that ownership means a metaphysical bond between me and the thing, and that has monetary consequences. It gives me monetary rights. But ownership is not the collection of rights. This is evidence for what I said also earlier regarding Rabbi Shimon; there are more proofs of this, but this is just a side note on what he said here. He proceeds from a different point of view. He is a clear legal realist. Rabbi Gedalia does not like metaphysics; there are no metaphysics for him. For him there are legal conceptions with ordinary simple logic — what’s the problem in understanding them, what’s the problem if you don’t do it, ordinary explanations the way jurists generally interpret laws. So he also claims that all of Jewish law should be interpreted that way. Very consistently, he refuses metaphysicization — I don’t know, metaphysicization? maybe that’s the word — I would say mystification, not mystical and not metaphysical, yes, he refuses it. If the slave causes damage? If this slave causes damage? Yes. Who pays the damages? Who is liable? The master. The master, even when his bill of emancipation is delayed? Yes. I’m not saying that as information; according to this conception it should be the master. But seemingly I would have said, taking it in another direction, I would try to suggest that a slave who has been renounced is not regarded as a regular person who is in his own domain — not exactly what I just said — but as ownerless property, meaning he is not mine. I would try to claim he is not the master’s property but ownerless. So why do injury payments go to me? For the same reason as with the dead slave. The dead slave is a fine. It is punishment. My ox accidentally killed him or my ox killed him; I have to pay because I must be punished. To whom will I pay? The slave is already dead. It goes to the master. How can you learn from that that injury, which is compensation, also goes to the master? Ah — meaning if it is compensation, you say because if I damage ownerless property I should not have to pay anybody, because one may damage — or not may, it is forbidden because of needless destruction, but I do not pay compensation for damage to ownerless property. Permitted legally, not halakhically, yes. Why did I say earlier that it was not precise? Because the Gemara at the beginning of Bava Kamma says that a slave, a minor, and a woman — I think — “their injury is bad,” because when they cause damage there is no one to pay. They have no property from which to pay, but the owner does not have to pay. The owner doesn’t have to pay generally? He doesn’t have to pay even with a regular slave, not only one with delayed emancipation. With a regular slave. Why? It makes very good simple sense. Because a slave can make his master’s life miserable. He is a human being with free choice. If he decides to ruin his master, he goes and damages everyone around him and his master will go bankrupt. Should he pay for all the damages of the slave? It’s not… You don’t say maybe I would have expected them to say that the slave himself would then… so the master loses his right… the master loses the slave. But in that way he still doesn’t… there’s nobody to pay. So what do you do? I don’t know, the court will deal with the slave, punish him, whatever. But liability is not imposed on the master. That is the Gemara in Bava Kamma. Therefore I… in principle it should have been an obligation on the master even in the delayed-emancipation case probably, but with slaves generally there is no liability on the master. Fine. So his assumption, basically — maybe I’ll summarize because we won’t be able to continue — his assumption is that acquisitions or halakhic legal effects are simply the collection of their consequences. There isn’t some metaphysical thing underlying the consequences. I claimed that I disagree. At least according to certain sources there definitely emerges a metaphysical conception of Jewish law, according to which the halakhic consequences are only consequences of a metaphysical state. Now he opens and says: what happens when one performs an act of acquisition? Does something change in the object? The answer is yes. This is not a rhetorical question. Clearly not. All that happens in an act of acquisition is only that we decided to transfer the object to your ownership, to transfer the rights from me to you. It is just… subjective. Yes, exactly. It is only a change in legal state, but there is nothing that happens in the object itself. What I claimed now is that this is not correct. At least according to certain conceptions it is not correct. Rather, the legal consequences are the result of some metaphysical change that happens to the object itself. Now let’s see how he continues from this in relation to “taking” “taking” from the field of Ephron.