2019-04-22 – The Thought of Rabbi Gedaliah Nadel – Divrei Sofrim – Lesson 3

Table of Contents

• [0:00] The gezerah shavah of taking and the acquisition of a woman
• [0:02] The gezerah shavah of taking-taking — concept and application
• [2:28] Defining kinyan and the act of acquisition
• [2:29] Understanding the concept of kinyan — what a kinyan is and what happens
• [5:42] The point in time for determining a kinyan
• [6:25] The Talmud on charity — when is a decision binding?
• [9:10] The act of kinyan — its role and its connection to firm intent
• [13:26] Effective and ineffective kinyan in Bava Metzia
• [13:26] Effective and ineffective kinyan — the example of a lost object and falling on it
• [17:29] Kiddushin — a contract of belonging
• [17:29] Kiddushin as an agreement — belonging, not ownership
• [20:28] How the meanings of words change in Hebrew — for example, to visit
• [21:21] Belonging in the concept of kiddushin
• [23:03] Conventional discourse and modernity in language
• [24:10] The desolate house and the connection to demons
• [24:10] Demons and metaphysics — modern theories of phenomena
• [26:21] Memory in the Bible — the meaning of “blot out the memory of Amalek”
• [26:48] The memory of Amalek and understanding its meaning
• [28:02] The question of ownership and kinyan in metaphysics
• [28:02] Ownership and kinyan — from metaphysics to the world of law
• [29:16] Acquiring an inheritance — the meaning of connection and obligation
• [29:16] Acquiring an inheritance and the kiddushin of a woman — similarity and meaning
• [30:31] The dispute between the Taz and the Sma over acquisition by money
• [30:32] The dispute between the Taz and the Sma over acquisition by money
• [31:36] Is an additional perutah required in a kinyan?
• [33:02] Acquiring a woman and the comparison to a field
• [33:02] Acquiring a woman — money, document, and intercourse
• [42:18] Maimonides on kiddushin by money and by document
• [42:19] Maimonides on the three ways of kiddushin
• [44:23] Rabbinic statements versus Torah law in kiddushin by money
• [45:06] Rabbinic statements versus Torah laws in kiddushin
• [52:42] “The fruit of a beautiful tree” — interpretation and understanding
• [52:48] The exposition of “the fruit of a beautiful tree” and understanding the verse
• [54:19] The money in kiddushin

Summary

General Overview

The text presents a difficulty with the gezerah shavah of kikhah kikhah from Ephron’s field to the kiddushin of a woman by money, because of an asymmetry in the “taking,” and ties that difficulty to how one understands the nature of a gezerah shavah: as a “substantive” exposition versus a technical-formal tool. It then examines what a kinyan is according to the agreement-based, conventionalist view of Rav Gedaliah and the Chazon Ish, according to which a kinyan establishes legal status through the expression or creation of firm intent, as opposed to a metaphysical view that claims there is a change in the bond within reality itself. On that basis, it explains the role of the act of kinyan as the marker of the moment when the legal effect takes hold, applies this model to kiddushin as human belonging rather than ownership, and connects it to the derivation from “I have given the money for the field; take it from me.” Finally, it discusses Maimonides’ statement that kiddushin by money is “from the words of the Sages” even though one can be stoned for relations with a woman so betrothed, presents explanations by the Tashbetz and by Rav Gedaliah, and links the discussion to the topic of annulment of kiddushin in Ketubot and to the question of the Sages’ power in kinyanim.

The gezerah shavah of taking-taking and its meaning

The text presents a problem with the gezerah shavah of kikhah kikhah from Ephron’s field to kiddushin by money, because in the case of the field, “taking” means taking the money from the buyer, whereas in kiddushin, “taking” means taking the woman, and these seem to point in opposite directions. Rav Gedaliah interprets the gezerah shavah as a substantive derivation that clarifies the meaning of a concept through its appearances, and therefore the asymmetry creates a difficulty. The author disagrees and argues that a gezerah shavah is a technical tool that compares passages and transfers laws, regardless of the meaning of the word, so the asymmetry is not a problem to begin with. The author attributes this tension to the dispute between Tosafot and the Ritva at the beginning of tractate Kiddushin over whether “kikhah kikhah” is merely revealing an already existing point or is an actual gezerah shavah.

What is a kinyan: the agreement-based view versus the metaphysical view

Rav Gedaliah defines a kinyan as a full agreement in settled intention to transfer ownership from the transferor to the buyer, while the object itself does not change; rather, the legal status and the exclusive rights and obligations change. The author defines this as a conventionalist view, according to which the meaning of “yours” is only social recognition and legal consequences, with no reality beyond those practical implications. The author presents an alternative view of kinyan as a metaphysical conception in which there is an ontological bond between a person and an object, and from that bond the legal consequences flow. As an example, he cites the issue of a slave awaiting a writ of emancipation, to show that in Jewish law there is room for the idea of a change in reality that is not merely legal. The author says that for Rav Gedaliah, “there is no metaphysics,” and ownership is identified only with the system of rights.

The role of the act of kinyan: the moment of legal effect and firm intent

The text argues that people hesitate in transactions, and there must be a point in time that forces a final decision and prevents regret. Every legal system has to determine when words become binding. The author brings the example of charity from the phrase “with your mouth” — this is charity — in order to distinguish between general thought or speech and a binding statement or decision of “I have decided to give,” and explains that the question is what counts as an irreversible “decision.” Rav Gedaliah explains that acts of kinyan are symbolic acts whose role is to express or create firm intent and to signal to both sides that the transaction has been clearly decided, because thoughts, and even words, are not unambiguous. The author adds that according to the metaphysical view, the act of kinyan has a causative role in generating a change in the bond, and is not just a way to resolve doubt or a means of communication. Without the act, “it did not happen,” and not merely “we do not know whether it happened.”

Practical implications and illustration from Talmudic passages about kinyan

The text brings the topic of “effective and ineffective kinyan” at the beginning of tractate Bava Metzia concerning falling on a lost object, which does not acquire it, as opposed to the acquisition of one’s four cubits, which does acquire rabbinically. It asks whether a kinyan takes effect when a person intended an ineffective act, but an effective act also occurred without explicit intention. The author argues that understanding kinyan as the expression of firm intent reduces the importance of the type of act, whereas understanding the act as creating reality requires intention for that specific act as a condition of the kinyan act. The author raises a conceptual difficulty regarding ownerless objects and lost objects, which are not transactions between two parties, and suggests that if firm intent alone were enough, one could “acquire” lost objects from a distance. Therefore a practical framework, such as one’s four cubits, is required. The text uses this example to illustrate the difference between the agreement model and the model in which the act itself creates the legal effect.

Kiddushin as human belonging rather than ownership, and caution against linguistic anachronism

Rav Gedaliah describes kiddushin as a mutual agreement entered into willingly by both sides, but emphasizes that kiddushin concerns an inner human belonging, not merely legal obligations of sustenance, clothing, and conjugal rights, using the language of “belonging” rather than “ownership,” and citing “and he shall cleave to his wife, and they shall become one flesh.” The author explains that the use of the term kinyan with respect to a woman is jarring in modern terms, but is not necessarily identical to “ownership,” and warns against imposing modern concepts on the language of the Torah and the Sages. The text cites Moshe Shapira on “to visit in His sanctuary” in order to show how modern Hebrew can mislead one’s reading of the Bible, and distinguishes between “to visit” someone and “to be present in” or “to frequent” a place. The author suggests that here too Rav Gedaliah is translating a metaphysical bond into the psychological-legal language of belonging and severe significance that follows from the prohibition of a married woman.

Deriving acquisition by money from Ephron’s field: “I have given the money for the field; take it from me”

Rav Gedaliah argues that buying land too is a serious matter that requires thought, similar to kiddushin, and therefore an act is needed to determine the point at which the legal effect takes hold. The text analyzes the wording “I have given the money for the field; take it from me” and asks what the repetition adds, explaining that “take it from me” means “and with this the transaction will be completed,” and the taking marks the firm intent of the other side. According to this, giving the money is not merely payment but also the mechanism that cuts off further hesitation and finalizes the transaction. From here we learn that kiddushin by money works in the same way, by establishing firm intent. The text incorporates a discussion of the Taz and the Sma concerning acquisition by money — whether the transfer of money serves two separate functions, payment and the act of kinyan, or just one function — and emphasizes that in the kiddushin of a woman, the money is not understood as payment, so there is room to see it as a symbolic kinyan act. The text cites Tosafot that with a document and with intercourse, the language of kinyan also applies, because a document expresses the will of the parties, and intercourse is the beginning of life together, so in those too there is firm intent.

The continuing difficulty in the gezerah shavah and a note on the sources for document and intercourse

The author argues that Rav Gedaliah’s explanation eases the asymmetry problem by treating the “taking” as a two-sided act of firm intent, but still does not completely explain how “when a man takes a woman” teaches specifically money and not a document. The author cites the difficulty raised by medieval authorities (Rishonim): why, after “kikhah kikhah,” does the Talmud still search for a source for a document and for intercourse? He concludes that there is no full comparison between a woman and a field, only a narrow formal derivation regarding money. The author argues that if there were a full substantive comparison, one could derive a document from a document and possession from intercourse in parallel fashion, and the fact that the medieval authorities reject this proves that the derivation is not built as an all-encompassing analogy.

Maimonides: “from the words of the Sages” regarding kiddushin by money and its implications

The text quotes Maimonides at the beginning of the Laws of Marriage, where kiddushin can be effected by three things, with document and intercourse being from the Torah, and money from the words of the Sages. It emphasizes that later Maimonides rules that one who has relations with a betrothed woman is liable to death by the religious court even if she was betrothed by money. The text brings the explanation of the Tashbetz, according to which “from the words of the Sages” refers to the interpretive source, derived through the hermeneutical principles by which the Torah is expounded, even though the law itself is Torah law. Rav Gedaliah suggests that there is no need for that and cites Maimonides’ responsum to the sages of Lunel, by way of Nachmanides in his comments on the second root, which distinguishes between document and money: intercourse is explicit in the verse, and a document is required by the Torah from the verse “a betrothed maiden,” who has not yet had intercourse, and therefore there must be a way of betrothal that is not intercourse. Logic identifies that with a document by force of the analogy: just as a document finalizes and ends, so it finalizes and brings in. Money remains dependent on the Sages’ derivation from the gezerah shavah, and therefore Maimonides calls it “from the words of the Sages,” while stressing in his language that “the law of money is Torah law, but its interpretation is from the words of the Sages.”

A rabbinic kinyan that works for Torah law, annulment of kiddushin, and reading the passage in Ketubot

Rav Gedaliah explains that Jewish law recognizes rabbinic kinyanim, and assumes that a rabbinic kinyan is effective for Torah law, because the enactment creates a reality of firm intent: a person knows that a certain act will acquire, and therefore when he does it, he is making a final decision, and that firm intent itself causes the kinyan to take effect under Torah law. According to this, even if “kikhah kikhah” is only a scriptural support, the resulting law is still Torah law, because the act creates firm intent that is sufficient for the legal effect. The text brings the passage in tractate Ketubot 3a on annulment of kiddushin, the Talmud’s question, “That works if he betrothed her with money; but if he betrothed her through intercourse, what can be said?” and the answer, “The Sages treated his intercourse as promiscuous intercourse.” It presents the interpretation of Rashi’s teachers, according to which kiddushin by money is rabbinic, alongside Rashi’s rejection, holding that it is Torah law derived by gezerah shavah. Rav Gedaliah attributes to Maimonides a reading close to that of Rashi’s teachers, and explains that although kiddushin by money is called “from the words of the Sages,” its law is Torah law and one can be stoned for violating it, and the Sages can also cancel it in certain circumstances because the binding framework depends on their determination. The text raises a conceptual difficulty about a model based only on firm intent, and connects it to the explanation of situmta as a commercial custom that acquires under Torah law, and to the concern that such a model could blur boundaries even in kiddushin. It then ends with criticism of Dorot HaRishonim by Rabbi Yitzhak Isaac Halevi as a tendentious book, even though it contains some beautiful ideas.

Divrei Sofrim, page 31. At the end of the previous page he was dealing with the verbal analogy of “taking, taking” from the field of Ephron. Just as a field is taken with money, so too a woman is taken—or a woman is betrothed—with money. He pointed out that there’s a problem with this verbal analogy, because in the “taking” of the woman, the one who is taken there is the woman. But in the “taking” involving the money, the one taken there is the money: “I have given the money for the field—take it from me.” Take the money from me. So these are opposite directions. So how does this verbal analogy work? I said that it depends on the question of how we understand the concept of a verbal analogy, and according to his approach he understands that what’s going on here is really a content-based derivation. Meaning: you can learn the meaning of a concept by examining other places where that concept appears. So if it’s the same concept in two places, then its meaning in one place can teach you about its meaning in the other place. But I said that I don’t agree with him. I think this is what’s called a clarification of a fact. But it’s not a real verbal analogy. A verbal analogy is a technical matter. When there are two identical words in two places, we compare the places, not the words. We compare the places to each other and transfer laws from here to there regardless of the meaning of the word. And if that’s how you understand it, then the question of this asymmetry in the verbal analogy doesn’t even arise. Because he says: there, they take the money in exchange for the field, and here they take the woman, as it were, in exchange for the money. So it’s reversed. How can you learn that the meaning of “taking” is with money? But if you understand that the fact that the verb “to take” appears here and the verb “to take” appears there means that I can learn from this place to that place not because of the meaning of the word, but because it’s a kind of code—meaning, like if the same word appears in two places, then one teaches about the other—then the question doesn’t arise. And I said that this is probably the dispute between Tosafot and the Ritva at the beginning of tractate Kiddushin: whether this verbal analogy of “taking, taking” is just a clarification of a fact—that seems to be how the Ritva understood it—or whether it’s an actual verbal analogy, which is what seems to emerge from Tosafot. And then it will depend on this question. In any case, that’s what he asks.

And then he began answering it on page 31. He says as follows: the concept of acquisition. What is acquisition? What happens when one performs an act of acquisition? I already started reading these lines—I just commented on them; in another moment I’ll also return to what I commented. What is acquisition? What happens when one performs an act of acquisition? Does something change in the object? When I buy an object, nothing at all happens to the object. What changes here is a legal status. It is clear that acquisition is nothing more than a complete meeting of minds regarding the transfer of ownership from the seller to the buyer. In other words, this is basically a convention—let’s call it a legal convention. The idea of private ownership means that a person has exclusive rights of use over an object he owns, and also exclusive obligations, such as liability for damage caused by his property, and so on. And here I already commented last time—I think that’s where we finished—that he is basically presenting here a consensual theory of law. The moment society agrees that this object is yours, that is what it means for it to be yours. Meaning, there is nothing beyond the expression of society’s recognition that this object is yours. This is a kind of conventionalist view of the concepts of ownership.

I said that there are at least several halakhic sources from which a different conception of ownership emerges, a metaphysical conception. Meaning that when I say I own an object, it means that there is some kind of bond between me and the object. And the rights, or the consequences, the legal ramifications, are the results of that metaphysical bond. For Rabbi Gedaliah there is no metaphysics. Meaning, there are only consequences. Meaning, to own something means that the rights are yours. Meaning that you are permitted to use it, others are forbidden to use it without your permission. Meaning that the rights in this thing are yours. There is nothing in ownership beyond its legal consequences. By contrast, in Jewish law, I tried to show—we brought there the case of a slave awaiting a bill of emancipation—that in Jewish law you see that the concept of ownership really begins with some sort of meta-legal, ontic bond; that is, in reality itself something changes in the object. As against what he says—does something happen to the object? We said that according to that conception, yes, something happens to the object. Not to the object’s molecules, but something in reality itself. And the halakhic and legal consequences are the result of what happens to the object. But I’m not going to go back over that here; I discussed that last time.

In any case, here he is offering a consensual, conventionalist conception, as it’s called. The object belongs only to him, but he has the power to transfer ownership of it to someone else when there is mutual agreement between them about that. After all, both sides agree—you’re buying and I’m selling—no problem, this ownership can be transferred to someone else.

We are familiar with the phenomenon that many times people hesitate when buying an object. A person goes into a store to buy a suit. He looks, tries it on, asks the price, talks and talks. He takes the suit in his hand and tells the seller that he’s buying it, and suddenly he regrets it. No, I wanted something else, it doesn’t suit me, and so on. There has to be some point in time that determines the transfer of ownership, forcing the person to decide definitively, in such a way that he can no longer retract. And that point has to be set. Every legal system has to determine when all this talking turns into a decision. Meaning: from when I said that the object is mine and he agreed and we already made the deal, now it’s mine. Finished—with all the consequences. Right? We’re talking, wavering, going back and forth, yes, no, considerations this way, considerations that way. When does it end? When, when? And for that purpose too there is the act of acquisition.

But he says—that’s what’s called, first of all, deciding on a point in time. Maybe I’ll bring some example. The Talmud in tractate Rosh Hashanah says, “With your mouth”—this refers to charity. They learn from here that even something that you… meaning, with charity you don’t need to physically carry it out. It’s enough that you thought… “With your mouth” means to say it verbally. Meaning, you don’t need a formal act of transfer; speech is enough. There are those who say that even thought is enough. In any case, for terumah, thought is enough. Yes, terumah can be separated by estimation and by thought. But in charity, in the plain meaning of the Talmud, it says speech, though in the Talmud itself there are already indications that even thought may suffice. But the point is: no act is required—that’s what “with your mouth” means regarding charity.

Now this is a very delicate matter, because it basically says that the moment I decide—even if only in thought or speech—to give charity, that’s it, I can no longer retract. Okay? What counts as deciding? After all, when I… if a poor person comes before me, I say: wow, really, it would indeed be proper to give him. Is that it? Am I stuck? Meaning, the moment I said it would be proper to give him, I already can’t go back? Or… one is allowed to deliberate too. Meaning: it would be proper to give him—maybe not? I’m thinking. At some point, of course, one has to decide. When I decide, then it obligates me. That’s what is learned from “with your mouth”—this is charity. But it’s quite clear that this… people have asked me several times: “After all, you thought of giving him—am I obligated to give?” No, you’re not obligated to give. Meaning, if in thought… you haven’t yet decided. Exactly. If in thought or verbally you say, “I’ve decided to give him,” not “it would be proper to give him, there are considerations one way and another,” but “I’ve decided to give him”—that kind of decision is binding.

Now that is exactly what he is describing here regarding acquisition. You have to decide, or determine on the legal level, from what moment such a thing is considered final. From what stage did we stop hesitating and actually do the thing? And this is basically the meaning of why Jewish law, according to his conception—I’m saying—why Jewish law requires an act of acquisition. An act of acquisition is a symbolic act whose purpose is to express the fact that… because if it all remains in thought, then it’s really terribly problematic. For charity, okay, I still just have to decide with myself. But in acquisitions, in monetary law, I’m speaking with someone else. We have to decide when we’ve concluded the matter, because he needs to know whether he can rely on it. I need to know whether I can rely on what he decided. So we have to determine some marker that signals to both sides: that’s it, here it has been decided. So you can’t leave it—or you can hardly leave it—to speech or thought. Because speech or thought—you never know. For charity, okay, I can still debate with myself and at worst I missed the chance, but there’s no opposing party, no one else with whom I now… have to establish something jointly, and something that will be clear to both of us, not just inside my own thoughts. So thoughts don’t help here. But speech isn’t unequivocal either. Once you did an action—you picked up the pen or the handkerchief or something—that’s the role of the act of acquisition. The act of acquisition is meant to express complete intent; some say to create complete intent. That’s not a contradiction. Those are two sides of the same coin. There are halakhic consequences to these different conceptions—there are practical differences between whether the act expresses complete intent or creates complete intent. But for our purposes that isn’t important, because basically what he wants to say is that the role of the act is to fix that same point from which onward it already takes effect, meaning it’s already over in terms of acquisition, okay? Legally speaking.

Let me formulate it already now following the comment with which I opened: according to the metaphysical conception—not the consensual one—of the act of acquisition, the act of acquisition could in fact have a different meaning. In the simple sense, it does have a different meaning. The act of acquisition is what creates the change in reality whose meaning is… that metaphysical, or meta-legal reality, so that can be done only by means of an act. Here the act no longer necessarily has the role of creating complete intent or reflecting complete intent; rather, the act has some role of its own. Meaning, you need to perform an act of acquisition because otherwise there simply is no acquisition. Not because otherwise we don’t know whether there is or isn’t one. There isn’t one. It’s not that we are in doubt. According to his conception, if no act of acquisition was done, then we’re supposedly in doubt. You could say that Jewish law also determines: fine, but we ignore that doubt so long as no act was done. But at the essential level we are really in doubt as long as the act of acquisition hasn’t been done. Because maybe we did decide, maybe there really was complete intent. But as long as no act was done, it’s impossible to know—at least you certainly can’t know whether I really resolved it in my mind. I myself might know. Fine? So I’m supposedly in doubt. According to the conception I’m presenting here, it’s not a doubt. If you didn’t do an act of acquisition, it didn’t happen. Because the act generates the ownership; it doesn’t express complete intent where complete intent itself is the ownership.

So all throughout this discussion he assumes a conventionalist conception, meaning a consensual conception. And therefore he also interprets the act of acquisition in a totally formal way. Meaning, you need to set a point in time from which onward the convention starts to operate. Meaning: we all recognize that this object belongs to you. Fine? So it’s all consensual. Meaning, he doesn’t see it as something acting upon reality.

But is there a practical difference? Is there a practical difference between the two… Yes. For example, if I have another indication of complete intent, not by means of an act of acquisition, then according to his view that should work. For example, the Talmud says, “These are the very things acquired by speech.” Match arrangements before betrothal are acquired by speech. “These are the very things acquired by speech”—meaning you don’t need an act of acquisition. That is indeed often brought as support for the conception that acquisition is merely consensual. Because you see that in places where it is clear that they are serious, you don’t need the act. According to the conception I’m presenting here, that’s not so. And then one would have to explain why there it really is acquired by speech.

Yes, the point of the act of acquisition is that point in time, it is the marker of complete intent regarding the transfer of ownership. The main thing is the mutual agreement, the complete intent. That is really what determines it. By the way, this is his teacher, the Chazon Ish. This is the Chazon Ish’s conception in a very consistent way: the purpose of the act of acquisition is to express complete intent. Meaning, one doesn’t really need an act of acquisition. The act of acquisition is only an indication that there is complete intent. Complete intent is what matters, not the act. The act is only an indication. Meaning, if we said verbally that this is now an absolute purchase and I can’t retract, and I spelled that out, in principle it ought to take effect, yes. In principle. I’m saying there are reservations—maybe there’s a rule of no distinctions and things of that sort—but yes, in principle it ought to take effect. If it’s clear that you were fully resolved, if you said it before two people, not just alone and so on, meaning it’s clear you meant it seriously, then it ought to take effect.

Now that is a bit problematic, because in Jewish law we generally do not assume that it takes effect, but all right, that’s a separate topic—how we understand the act of acquisition, the formal act of acquisition. Let me give you what may be an interesting practical difference. At the beginning of tractate Bava Metzia—it’s a topic one could elaborate on, but it just occurred to me now—someone falls on a found object, at the beginning of Bava Metzia. Yes, someone sees a lost object on the road and wants to acquire it, and he sprawls out and falls on it in order to seize it. Now there is acquisition by one’s four cubits—this is a rabbinic acquisition. If the lost item is within my four cubits, I acquire it. But falling on it does not acquire it. And this person doesn’t know—he’s not some great Torah scholar—he thinks that if you fall on the lost object it becomes yours. Falling on it does not acquire a lost object, okay? So he intended to acquire the lost object, certainly—that’s what he wanted to do—but he did it with the wrong action. This is what the later authorities call “an effective and ineffective act of acquisition.” That’s what they call this topic. A dispute between Rashi and the Ran, and Rabbi Akiva Eiger there. An effective and ineffective act of acquisition. Meaning, I performed an effective act of acquisition but I did not intend to acquire through it. I intended to acquire through another act, but that other act is ineffective. I intended to acquire by falling on it, but falling is not an effective act of acquisition. However, I also performed an effective act—my four cubits—only I wasn’t aware of it; meaning, I didn’t intend that that should be what acquired it for me. The question is whether it acquires or not.

Now, if I understand that complete intent is required and that is really the important thing, then what difference does it make which act of acquisition you performed? Right? As long as you did an act, that act expresses complete intent. What difference does it make which act you did? But if you understand that the act does more than that—because that’s not enough, because that very topic also says that if there were no four cubits there, it wouldn’t help. You need… you need an act too. He didn’t intend the act, but the act needs to be done. Now according to that approach even the act wouldn’t be necessary. Right, so there they’ll start saying no distinctions, or things of that sort. But I’m saying: according to the metaphysical conception of ownership that I presented earlier—not the conventionalist one—according to that conception, you need the act of acquisition in order to impose the ownership, in order to change the relation between you and the object. Complete intent doesn’t help. Exactly. The correct intention. The correct orientation. Exactly.

And more than that. Exactly. But then what is the doubt there? So what’s the problem? I did the act and everything is fine. No. You need a condition for the act to operate—and we all agree on this—that the person has to fully intend to acquire. After all, if someone places something in my courtyard and I didn’t intend to acquire it, my courtyard won’t acquire it for me against my will. I need to want to acquire by means of that act. But here, according to that conception, that is only a condition. The act itself is what does the work; it’s just that if I didn’t intend for this act to acquire on my behalf, then it’s not my act at all. An act to which I’m not directing intention isn’t called an act. Fine? But that’s a side condition. For the Chazon Ish, intention is the thing that is required—meaning, complete intent. The act just comes to express that. But complete intent is what matters. So there you go—that’s one practical difference, for example, and there are many more.

But it seems different to me, because the whole rationale of complete intent seems to belong to an acquisition between two people—when one transfers his property to another. No—the claim is that it applies also to a lost object. Because if someone else comes and takes the lost object, you will say, “Wait a second, I already acquired it.” And he’ll say, “What are you talking about? You only wanted to acquire it.” That too is litigation between two people. It seems to me to be something entirely different. Because I can’t claim—not from that angle, but from the angle that it seems clear to me that in the acquisition of ownerless property, complete intent cannot suffice. Otherwise we’d have to say that I can acquire all the lost objects in the world for myself without even seeing them. Because I say… Seeing them? Let’s say I hear that some lost item fell somewhere, so I fully decide that it’s mine. Obviously it’s not mine. So maybe that can actually explain why according to the Chazon Ish you still need the acquisition of four cubits. You still need it to be within your four cubits. Maybe that really is the explanation. Right. Fine, I’m not getting into it—it’s just an example to illustrate the difference between the two conceptions.

Okay, so I return to our text. Betrothal too is an agreement between two people. The woman becomes betrothed of her own will, and the man betroths her of his own will. However, in betrothal we are speaking about belonging in a human sense. Not only obligations of food, clothing, and conjugal rights, but also an inner emotional belonging—“and he shall cleave to his wife and they shall become one flesh.” Here he is careful, I think, with his wording: he calls it belonging, not ownership. I think in this he means what I said before, when I spoke about this in the previous lesson, right? I said that the concept of acquisition is very upsetting to modern eyes. What, you own your wife? So I said that the concept of acquisition is precisely this: the term acquisition means complete intent in order that the legal effect should take place. That’s what is called acquisition. Acquisition is not necessarily connected to ownership at all. In ownership too one performs an act of acquisition, that’s true. And therefore somehow in Hebrew the use of acquisition as an expression for ownership became standard. But in its original halakhic meaning… Yes, right. Because most of the legal acts we perform are acts of acquiring ownership. And the husband is called ba’al. What? The man is called ba’al. Is he called ba’al because he has relations, or does he have relations because he is a ba’al? Well, so the question is what is primary and what is secondary… “A woman possessed by a husband”—that’s what the Talmud says. The Torah says. Not because of ownership. Not owners.

In any case, no, all these are really modern sensitivities, which, okay, one can understand, but one has to be a little careful because we think about these things in a somewhat anachronistic way. We impose our own conceptual system on the Torah’s or the Sages’ conceptual system, which doesn’t necessarily preserve the same meaning. We once spoke about Eliezer Ben-Yehuda’s Hebrew, which doesn’t exactly fit the meaning of biblical Hebrew. And many times we are convinced we understand something… I think I once brought the example of “to visit His sanctuary.” I heard this example once from Moshe Shapira. “One thing I asked of the Lord, that I shall seek: that I dwell in the house of the Lord all the days of my life, to behold the pleasantness of the Lord and to visit His sanctuary.” “That I dwell in the house of the Lord all the days of my life”—what does “to visit His sanctuary” mean? So what do our little sermons say today? That even though you sit there all the days of your life, every day it should appear to you as though you are only visiting. Be amazed by it, be moved. Every day let it be new in your eyes. Those are little sermons that arise from modern Hebrew. In old Hebrew, so he claimed—I didn’t check it, but that’s what he claimed—“to visit” means to be fixed, established. It does not mean to come occasionally. That is what “to visit” means. What is the state comptroller? We take it today to mean that he comes to inspect, to criticize. But “state comptroller” is like “as a shepherd counts his flock.” Meaning, it’s something serious, not something casual. There’s “to inspect” and there’s “to visit someone.” Those are two different things. What? That’s what I’m saying. So “to inspect” is really an expression of serious attention, not casual attention. His claim is that “to visit His sanctuary” means that. And today “to visit someone” has exactly the other meaning. But his claim was that in biblical Hebrew, once again I haven’t checked, but that’s his claim, in biblical Hebrew these are not two meanings; it’s the same meaning. “To visit His sanctuary” means “to dwell in the house of the Lord all the days of my life.” That is what it means to visit His sanctuary. It’s not…

Now, we are used to tons of these little sermons because they’re the result of our Hebrew. And we are sure that we are reading… I once said that for people from abroad it’s actually easier. They don’t know Hebrew. They don’t know Hebrew, so they only have this. There’s nothing misleading them. That has its own disadvantages, but in this respect they aren’t exposed to the errors we’re exposed to. We can very easily fall into this kind of anachronism.

Okay. So here he speaks of belonging and not ownership. He is basically saying that betrothal is a contract, an agreement between two people. The woman becomes betrothed willingly and the man betroths her willingly. And when we speak there about belonging in the human sense, not only obligations of food, clothing, and conjugal rights, okay? but also an inner emotional belonging—“and he shall cleave to his wife and they shall become one flesh.” At first glance that returns us to the model I was speaking about. Meaning, you are saying that it is not only obligations of food, clothing, and conjugal rights—the legal consequences—but that some kind of bond is created here, which he calls belonging, between husband and wife. So you are saying that beneath the legal consequences there lies something meta-legal or metaphysical. Okay? But it seems to me that he is careful about this; he does not go in that direction. He is talking about psychology. Meaning, “belonging” means creating some kind of marital bond, as we speak about it today, not in the sense of producing some different reality. Fine? But what does “belonging” mean? Is emotional belonging a halakhic concept? Meaning, what? It sounds like… wait, I haven’t finished reading yet, just one more moment.

From betrothal follows the prohibition of a married woman. Betrothal is a serious matter, unlike buying an object. A person must think very carefully before agreeing to betrothal. He means belonging only in the sense that you should understand that it has very far-reaching meanings. It isn’t only obligations of food, clothing, and conjugal rights; it has very weighty implications, and you need to think about it a great deal. And as a result, therefore, you need a point in time—right away it becomes clear from the continuation—a point that says, okay, from when have we actually decided. But I’m saying that here too, although apparently he suddenly moves into metaphysical language and abandons the conventionalist language, I don’t think that’s right. He continues with the conventionalist language.

I once spoke at Menachem Finkelstein’s with some group, and I said there that many concepts that we today perceive as psychology were once perceived as metaphysics. For example, that we are afraid of the night. Fine? Today we attribute that to psychological phobias. What is there to fear in the night? What is there in the night that isn’t in the day? I’m not talking right now about robbers and the like, but fears deeper than merely the possibility of robbers. Okay? But once people thought there were destructive spirits there. Meaning, demons. So what was once called demons and destructive forces is now called psychological symptoms or psychological effects. We translate the objective, metaphysical realm into the subjective. Fine? Basically psychology is the modern translation of the ancient discourse of demons.

But it’s not only psychology. We once spoke about “desolation strikes the gate,” yes? The rabbinic name for the second law of thermodynamics. Meaning, that if a house remains uninhabited, the Talmud in Bava Kamma, chapter 2, says there that if a house remains desolate, it falls apart, fills with dust. Why? Because there is a demon called desolation that strikes the gate, as it were, and tears down houses. And if we live in the house, then demons don’t like places where people are, demons don’t roam around there. Yes, like in the desert, where it’s dangerous because there are demons—because there are no people there. Where there are people, there are no demons. That of course is the answer to why we never see them. It’s like Russell’s teapot. Because everywhere there are people, demons don’t come, so what kind of question is it why we never see demons? Obviously. But if you go alone then, yes… I’m joking, but never mind.

This demon of desolation is just a metaphysical way of looking at what today, with modern eyes, we would call… what was then an entity is now… now it’s a phenomenon. It’s a phenomenon that houses crumble. Not that there is some demon here that is a kind of being, yes? Rather, we translate the realm of non-material entities into metaphysical things, into subjective things. But that’s not—is that a different claim? Obviously. It’s a different claim. No, translation—translation is not the same thing. Obviously. I mean that we have moved to a different kind of discourse. We translate that discourse—not in the dictionary sense. “Translate” means to transfer or shift the discourse from a discourse about entities to a discourse about phenomena. Yes, that’s what I mean. I mean philosophical translation, not dictionary translation. You know?

Now, by the way, I don’t know who’s right. I don’t know who’s right. Although I actually tend to support that earlier method. I don’t know. Here, in ownership for example, that’s a classic case. Among the Sages and the medieval authorities (Rishonim), it seems to me that one can see—not sure among all of them, but quite strongly—a conception of ownership as some sort of reality. And in the modern translation that he gives it, he says no, it’s a legal condition. Meaning, nothing at all happens in the object itself. Was the Chazon Ish modern? What? Was the Chazon Ish modern? Yes, right. No, the Chazon Ish really was modern in many of his modes of thought; he really was modern. That’s true.

Where do you see this very strongly? What is memory? This first occurred to me when I had to speak on Memorial Day at the yeshiva in Yeruham. So I tried to think: what is memory? In the Bible, when it says “blot out the memory of Amalek,” memorial day in the Bible means something else. Yes, obviously. No, the meaning is similar. God remembers us on Rosh Hashanah. But what does “blot out the memory of Amalek” mean? To stop remembering him? The opposite—there is a commandment not to forget Amalek. So what does “blot out the memory of Amalek” mean? The memory of Amalek means a remnant of Amalek itself. “Blot out the memory of Amalek” means that no physical remnant of Amalek should remain—not in people’s memories. So what is “memory”? “Memory” means a part of the thing, a remnant of the thing, or a part of the thing.

Now today we use the term memory as a psychological phenomenon. We remember someone. Say, when he dies, we remember him. What does that mean? That something of him—as in that Hava Alberstein song—something of him is in my head. Once, they understood that “something” in a metaphysical sense. Something of him is really here. When I remember him, he is here. I keep him alive. “We do not make monuments for the righteous; their words are their memorial.” What does “their memorial” mean? Today we understand it to mean that through their words we remember them. No! Their words are part of them. Meaning, when we engage with the Torah of someone who has died, something of him is still truly alive in a metaphysical sense. He is here. At least something of him is here. In the modern translation, of course, we remember him. Meaning, it has become something psychological. Because we have some tendency not to recognize the existence of non-material, non-physical entities.

Okay? Now here the question really is to what extent ownership underwent the same process. Once I saw an article by someone who I think used to be my student, Roni Rosenstein, I think he wrote about this—about the act of acquisition in the transition from the Mishnah to the Talmud. That the Mishnah has one conception of what an act of acquisition is, while the Talmud has a different one. The Talmud is more modern. Meaning, it turned it into something formalistic and less metaphysical, less part of the everyday fabric. It’s not a matter of either it’s there or it isn’t there. The question is what we determine; it’s a convention. It’s not something that is…

Anyway, so here too he has translated what I called a metaphysical bond into psychology. There is a belonging between husband and wife, and that belonging must be protected. The Torah imposes very severe prohibitions on damaging that belonging, and therefore this is something very significant. No metaphysics, nothing. It’s all psychology, or I don’t know what, law. But it is very significant. So what?

Now let’s see his derivation of “taking, taking” from Ephron’s field. In buying an estate too, a person thinks carefully before buying. Purchasing land is a serious matter. It’s not like buying clothing or other movable items. Meaning, both buying land and betrothing a woman are significant acts, serious acts. Meaning, you create a bond here—not in the metaphysical sense but belonging in the legal or psychological sense—between two things, and it’s a significant bond. It’s not like a shirt that I wear and then throw away once it wears out or something like that. Meaning, there is a significant bond here. So what?

And behold, regarding the cave of Machpelah it says: “I have given the money for the field—take it from me.” The plain meaning is: I do not want to receive it for free; I want to pay. Take the money from me. Fine? But by the way, if that’s really the case, then the money is only consideration for the transaction; it is not the act of acquisition. Right? And in that sense—“I want to pay, I don’t want it for free, take the money”—in that sense it wouldn’t be correct to say that the giving of the money there was the act of acquisition. Why? I want to buy the field by means of money. No—I want to pay money for the field. That’s not the same thing.

There is a dispute between the Taz and the Sema at the beginning of section 190 in the Shulchan Arukh about what an acquisition by money is. What is an acquisition by money? It is clear that money does two things. When you buy a field—movable items are not acquired by money according to Torah law; rabbinically one needs pulling. But a field is acquired by money, document, or taking possession. When you buy a field with money, what are you really doing? First of all, you are paying consideration; a person won’t agree to sell you the field if he doesn’t receive consideration. On the other hand, the transfer of the money is also the act of acquisition. That is not the same thing. If I buy the field by document, I still have to pay the money, because otherwise he won’t agree to transfer the field to me. But that separates the two functions. Meaning, the act of acquisition is done by document; the money is transferred as consideration in order to persuade him to agree to sell me the field. When I make an acquisition by money, I am really doing two things in one action. I am both transferring consideration and performing the act of acquisition.

Now the Taz and the Sema disagree over whether—let’s say we set the price of the field at, I don’t know, a thousand shekels—do I need to give him a thousand and a perutah? Because one perutah is not consideration at all. That one perutah, its transfer is the act of acquisition—that’s how I acquired the field—while besides that I also promised him a thousand shekels as consideration. How can I include that perutah as part of the consideration I promised him? Right? So that’s the dispute. The Sema says you do not need to add a perutah. Why? The Taz says that you do. But even the Sema does not say you don’t need to add a perutah because one can overlap the two functions. Rather, his claim is that acquisition by money is defined as acquisition effected by transferring the consideration. That is what acquisition by money means. Acquisition by money is not just some symbolic action—take a perutah, as opposed to writing a document. No. Acquisition by money means that when you transfer the consideration, that itself is the act of acquisition. The act of acquisition is the transfer of consideration. That is the act of acquisition. So what’s the problem? I gave you the consideration; that made the acquisition, and I don’t need one more perutah. It’s not that you need one perutah for the act of acquisition and a thousand shekels for the consideration. The transfer of consideration is the acquisition-money. They disagree about whether these two functions performed by the transfer of money are really two functions or one. The Taz understands that there are two distinct functions here and even two distinct sums are needed to do this work. One of them is the act of acquisition; the other is the transfer of consideration. The Sema says no, these are two things done together. The transfer of consideration is what effects the acquisition.

The acquisition of a woman, where a woman is acquired… Exactly. The Sema himself brings a proof from a woman. Because in the case of a woman there is no market value. So how can you say there is acquisition by money with a woman? Is a woman’s value one perutah? How can you say she is acquired by value? Right? For example, according to the Sema, if I want to acquire the field, ostensibly I should have to transfer the full consideration. One perutah wouldn’t be enough. They can agree that transferring part of the consideration will also count as an act of acquisition from our perspective, but in principle that has to be agreed; meaning, at the conceptual level, it should be the transfer of all the consideration. But with a woman there is no consideration at all—not that her value is high and one perutah isn’t enough. Some understand the question that way. I don’t think that’s the question. With a woman, it’s not consideration at all. This is not a commercial transaction in which you buy and pay consideration. So what relevance does acquisition by money have there at all? That is one of the claims the Taz levels against the Sema. There you see that with a woman… meaning, it works there too, and with a woman there is no consideration. So you see that transferring the money is a symbolic act; it is not a transfer of consideration.

Of course, if you understand—and this is very closely connected to our topic—that the transfer of money in the case of a woman is really learned through the verbal analogy “taking, taking” from Ephron’s field, then if you understand like Rabbi Gedaliah that a woman and a field are simply genuinely similar, and therefore we make the verbal analogy, then the question is a good one. But if we understand that this is a verbal analogy—leave it, I’m not buying a woman, I’m not transferring consideration, rather just as with money for the field you transfer consideration and the field is acquired, so too with a woman: transfer the money and she is betrothed. Not that the money is consideration; you don’t need it to be the same thing. Rabbi Gedaliah assumes that it does have to be the same thing. Fine? But if not, then the Sema will indeed say no and the Taz will say yes. This disagreement with Rabbi Gedaliah here could be the dispute between the Taz and the Sema. Okay?

Yes, and that’s what he says: “I do not want to receive it for free; I want to pay; take the money from me.” So here the money is presented as payment money, money of consideration. But if we read precisely, what does “take it from me” add? “I have given the money for the field—take it from me.” “I have given the money for the field,” or “take from me the money for the field.” What is “I have given the money for the field—take it from me”? What is this strange duplication? If Abraham gives it to him, then obviously he takes it. It’s obvious that if I give you the money for the field, then you take it. So what is “I have given you the money for the field—take it from me”? What is this repetition?

Rather, there is an additional intention here: take it from me, and by doing so the deal will be complete. The moment you take the money for the field, the transaction is complete. Fine? “I have given the money for the field.” Okay, because that expresses the complete intent of the other party. Yes, exactly. The one who gives the money—exactly. So I have given the money for the field, obviously you take it. It’s not the physical taking; rather, the moment you take the money for the field, the deal is complete. And therefore they understand from here that this is where acquisition by money is learned from. Because otherwise, indeed, according to the conception he stated above, I only transferred payment money—what connection does that have to money in buying a field as the act of acquisition? The acquisition was done by taking possession. How do you know how they did the acquisition? I gave the money only as consideration; that has nothing to do with the act of acquisition. Who says the act of acquisition there was done by money at all? But because of this duplication—“I have given the money for the field, take it from me”—that means that the giving of the money is not only the transfer of consideration, but the giving of the money also creates the taking. Meaning, that is what cuts the acquisition into place. Taking the money marks complete intent. And by way of the verbal analogy we learn that also in “when a man takes a woman,” the taking of money will mark complete intent.

The taking of the woman by the man is their mutual agreement that she become betrothed to him, and that is the essence of the acquisition itself. The act of acquisition is learned from the field of Ephron. In betrothal there are additional modes of acquisition: document and intercourse—by the way, with a field too, yes? document and taking possession. And Tosafot already wrote that one should not challenge the Talmud’s answer, “The tanna taught two because of one,” because both with document and intercourse the language of acquisition is also relevant. Meaning, a document in which the will of both parties is explicitly written also constitutes complete intent, and all the more so intercourse, which is already the beginning of life together. And if so, in both of them too—more than in money—the law of acquisition applies. Meaning, acquisition means complete intent; document and intercourse also create complete intent. But acquisition really means the creation of complete intent.

So what exactly is his claim? His claim is this: we began with the problem that the two sides of this equation, this verbal analogy, aren’t similar, because there you take the money in the field of Ephron, and here they take the woman—the taking of the woman. So it’s not symmetrical. What he is claiming, basically, is that the moment you take the money, there is complete intent here. And that complete intent is complete intent on both sides—my complete intent to buy and your complete intent to sell. If it’s on both sides, then there’s no problem. Then with a woman too you can say that the moment I give the money, complete intent is reached, and then the woman too is taken to me, because the “taking” is something bilateral. After all, this transaction is sealed from both sides. If there is complete intent on my side together with complete intent on your side, then not only did I not give to you—you also didn’t give to me. In a bilateral transaction, the complete intent of one side is meaningless. If I, say, fully intended and you didn’t, then what? Neither did you acquire mine nor did I acquire yours. Therefore complete intent must exist on both sides. And therefore he says that when I understand that the transfer of money creates complete intent, I am really understanding that it does both things on both sides. So then it is no longer difficult why, with a woman, this is learned about the taking of the woman whereas in the field it is the taking of the money. Fine? That is basically the claim.

Although I’m saying this still doesn’t entirely resolve the difficulty. Because after all you want to learn that giving money creates complete intent, right? Now with taking a woman—“when a man takes a woman”—that is not what is written. “When a man takes a woman” says that I take the woman. How can you learn from here that giving money to the woman is the taking? Meaning, if you really want to say that it’s supposed to be similar—not as I said, that this is a verbal analogy and therefore it doesn’t need to be similar—he assumes it does need to be similar, like the Ritva’s approach that this is really just a clarification of a fact, not an actual verbal analogy. It still isn’t similar to what he said. Because it’s not enough to explain to me that here too there is complete intent and there too there is complete intent. Explain to me how you understand that there too it is done with money, in the case of the woman. How do you know? Maybe it’s by document? Right, the document would create her complete intent called “taking,” just as money does in the field. In the field too we know that a document works, and intercourse also works in the case of the woman. Okay? Therefore I think this explanation is not a complete explanation. He leaves an unresolved difficulty here.

By the way, as an aside, this is another comment on what I said about there being no ownership over the woman, that one does not buy the woman. Where is there proof of this? One of the proofs: after all, we make a verbal analogy from taking a field to taking a woman. And from that we learn betrothal by money. Afterwards the Talmud goes on and asks: from where do we know document? And then: from where do we know intercourse? For each of them we bring a source. I don’t understand. There is a verbal analogy between woman and field. A field has three ways of being acquired: money, document, and taking possession. And the same with a woman: money, document, and possession. How possession? Sorry—with a woman, money, document, and intercourse. Intercourse is the equivalent of possession, after all. Possession means use of the field—locking it, fencing it, breaching it. So intercourse is use of the woman. What’s the problem? It’s perfectly parallel. So why, after the Talmud brings the verbal analogy “taking, taking” from Ephron’s field, does it still search for sources for betrothal by document and betrothal by intercourse?

And indeed there is no such comparison. They do not make a comparison between a woman and a field. And all the medieval authorities, by the way, ask this—the Nachmanides, Tosafot, all of them—and all explain in various ways that no, of course intercourse is not learned from… we do not learn intercourse from possession; that’s obvious. None of them even entertains such a thing. Each explains differently exactly how these derivations work. Why really not? Because there is no real comparison here between acquiring a field and acquiring a woman. If this were a real comparison, as he says, then I really… then the question of the medieval authorities would be difficult. So I don’t understand why additional sources are needed for betrothal by document and by intercourse. What’s the problem? There is a verbal analogy from field to woman. Just as a field is acquired, so too a woman is taken in those same three ways. What’s the problem? Why do we need two more sources? Rather, what do we see? We see that no, this is a technical, formal derivation of verbal analogy: money effects betrothal as in… just as in a field because in the field. It is not a comparison between woman and field; it is a comparison between the section about Ephron and the section about betrothing a woman. And in Ephron’s section the acquisition was by money, not by document and intercourse. Therefore what you can learn from there is only that a woman too can be acquired by money, can be betrothed by money. Document and intercourse are separate topics and need separate sources. Yes.

Now there is a very interesting point about Maimonides here. Maimonides writes at the beginning of the laws of marriage: once the Torah was given, Israel was commanded that if a man wishes to marry a woman, he must first acquire her before witnesses, and afterward she becomes his wife, as it says, “when a man takes a woman and comes to her”; and these acts of taking are a positive commandment of the Torah. And by one of these three things a woman is acquired—this is Maimonides’ wording—by money, or by document, or by intercourse. By intercourse and by document, from the Torah; by money, from the words of the Sages.

Yes, Maimonides is famous, at the beginning of the laws of marriage, for saying that there are three ways a woman is acquired—that is the first Mishnah of tractate Kiddushin—money, document, and intercourse—but that document and intercourse are Torah law and money is from the words of the Sages. That is what Maimonides says. You should remember: the title of this chapter is Divrei Sofrim, “the words of the Sages.” That is the topic we are dealing with. At first glance, from the wording “from the words of the Sages” as opposed to “from the Torah,” it sounds like Maimonides means that betrothal by money is actually rabbinic. Meaning, betrothal by money is only rabbinic. Betrothal by document and intercourse is Torah law. But of course that cannot be.

But Maimonides continues—and all the commentators there point this out—that a woman who is acquired by one of these three ways is called betrothed or espoused. And once the woman has been acquired and has become betrothed, even though she has not had relations and has not entered her husband’s house—meaning, there is only the betrothal, not yet the marriage—she is a married woman, and one who has relations with her other than her husband is liable to the death penalty by the court. Maimonides says that all three ways by which a woman is acquired—money, document, and intercourse—if someone has relations with her, he is liable to the death penalty. Now if money were only rabbinic betrothal, then one who had relations with the woman would have violated only a rabbinic prohibition. So how can he be liable to death by the court? Capital punishment is only for a Torah prohibition. Right? If it’s rabbinic, how could there be death? So clearly, from the continuation of Maimonides’ words, you see that money too is Torah law. The proof is that if a woman is betrothed by money, one who has relations with her is liable to death. So how can Maimonides first say that money is from the words of the Sages, while only document and intercourse are Torah law?

What is the meaning, then, of the phrase “from the words of the Sages”? According to what was said above, it can be understood that since betrothal by money was learned through a verbal analogy, and it is the Sages who derive the law from the verses through the hermeneutic principles by which the Torah is expounded—a verbal analogy from Ephron—therefore the matter is called “from the words of the Sages,” even though in every respect it is Torah law. So it is called “from the words of the Sages” because of the question of source, not because of the question of authority. The source is from the Sages, not that the force of the betrothal is the force of rabbinic law. And about that I spoke in some lesson—I don’t remember when—one of the recent lessons. I spoke about Maimonides’ method regarding divrei sofrim, where Maimonides says that anything learned through hermeneutic principles is called “from the words of the Sages.” And most of Maimonides’ commentators understand him in this sense: namely, that the source is the Sages, not that the halakhic status of that law is rabbinic. I said that I think I don’t agree with this. There are several proofs in Maimonides that he means it seriously—that if there is doubt one is lenient, that there are practical implications, and that Maimonides intends that such laws are genuinely rabbinic.

So how does he explain it here? Right, so here indeed he says that here we apparently see that “from the words of the Sages” means Torah law. And in fact the Tashbetz was, I think, the first to find this explanation in Maimonides, and ever since then everyone follows him. And that is how he reconciles these two rulings in Maimonides; the Tashbetz already reconciles them this way. Also with a field, isn’t it the same? In “taking”? What? That money is rabbinic? No, with a field it is written explicitly in the Torah. But with a woman we learn it through a verbal analogy; that is only a hermeneutic derivation, so that was done by the Sages. Fine, so therefore it’s called “from the words of the Sages.”

So Rabbi Gedaliah says: but it seems there is no need to say that. Meaning, we don’t need this explanation. This is basically the explanation of the Tashbetz, but we don’t need it. Nachmanides now… so what then? He says: Nachmanides brings, in his glosses to the second root, that Maimonides was asked why he said about money that it is “from the words of the Sages,” and did not say the same about a document. There is a famous responsum of Maimonides—he saw it through Nachmanides in the glosses to the second root, but the Kesef Mishneh also brings this responsum, and in the Frankel edition they print it there, at the beginning of the laws of marriage—where the sages of Lunel asked Maimonides this question: what is this thing? What do you mean “from the words of the Sages”? This is full Torah law, learned by a verbal analogy. And there Maimonides says: I have a root, called the second root. People didn’t know it. I think one of the reasons is that the roots were written in Arabic, unlike the Mishneh Torah, which was originally written in Hebrew. Maimonides wrote that in Hebrew. But the roots, like the Commentary on the Mishnah, were written by Maimonides in Arabic. And I think quite a few of the medieval authorities did not know the roots. You can see very clearly—maybe even very clearly—that they knew the Mishneh Torah but did not know the roots.

In any case, he says that Maimonides was asked why he said that money is from the words of the Sages, but did not say the same about a document. After all, acquisition by document too is learned through the hermeneutic principles by which the Torah is expounded, by analogy between becoming and leaving. “Just as leaving is by document, so too becoming is by document.” Yes, because: “when a woman has two wives…” no, “and she departs from his house and goes and becomes another man’s wife.” Fine? So “she departs” and “she becomes” creates an analogy between divorce and betrothal; this is what the Talmud calls the analogy between becoming and leaving. “Becoming” means creating the betrothal, “leaving” means dissolving it. The Talmud brings this as a source for betrothal by document. Because how does one divorce a woman? “And he shall write her a bill of severance and put it in her hand”—by document, like a divorce document, a get. Okay? Since there is this analogy—“she departs” and “she becomes”—so too betrothal is effected by document just as divorce is effected by document. That is one of the sources the Talmud brings for betrothal by document.

So the sages of Lunel asked Maimonides: if so, then betrothal by document is also really the result of an analogy, so it too should be called “from the words of the Sages.” Why do you write that only money, which is learned by verbal analogy, is from the words of the Sages? Even document, which is learned—according to your own view—that things learned by derivation are “from the words of the Sages”—you are not being consistent. So say it about a document too. Why only about money?

And Maimonides answers: as for intercourse—and the sages of Lunel ask about that too—intercourse is understandable, because it is explicit in the text, for it is learned from “and comes to her” or from “possessed by a husband,” so it is explicit in the Torah that there is a mode of acquisition through intercourse. But a document is only learned by analogy from becoming to leaving, so according to Maimonides’ method it should be “from the words of the Sages.” What makes a document different from money?

Maimonides answers that a document too is from the Torah because of what the Talmud says: how do we find an espoused maiden of whom the Torah says she is liable to stoning? Rav Nachman bar Yitzchak said: you find it in a case where he betrothed her by document. Since a document both completes and terminates, it also completes and brings in. The Torah speaks there about an espoused maiden who is a virgin, right? If someone has relations with an espoused maiden who is a virgin, then… no, not the fine of rape or seduction; an espoused maiden is liable to stoning, to death, okay? Because she is a married woman. Now the Talmud asks: how can there be an espoused maiden who is a virgin? If she is espoused, then she has already had relations—after all, how does one espouse? By intercourse, right? Since it says “possessed by a husband,” intercourse is the only way of betrothing a woman explicitly written in the Torah. Betrothal and espousal are the same thing. So to betroth a woman… intercourse is the only way written in the Torah. So how can she be an espoused maiden and still a virgin? It’s impossible! From here there is proof that there is another way to betroth a woman. There is proof of this from the Torah itself. You understand? True, the specific way is learned from a verbal analogy or from analogy, money or document—but in the Torah itself there is proof that there is at least one more way, besides betrothal by intercourse, which is explicit in the Torah.

It necessarily follows that there is another mode of acquisition besides intercourse, and reason suggests that it is a document, since we find that the document terminates the bond in divorce, and it stands to reason that it can also create the bond. And thus Maimonides wrote later in the laws of marriage: one who betroths through intercourse, these are Torah betrothals; and she also becomes betrothed by document according to Torah law, just as a document completes and divorces, as it says, “and he shall write her a bill of severance,” so too it completes and brings in.

Fine? So what does that mean? Betrothal by intercourse is ordinary Torah betrothal, since it is written explicitly in the Torah. Besides that, we have proof from the Torah that there is another way of betrothal, because otherwise how can there be an espoused maiden who is a virgin? There must be another way of betrothing a woman that is not by intercourse. Maimonides says: which is that other way? It could be either document or money, both of which we learn through hermeneutic derivation. He says it is more plausible that it is a document. Why? Because just as the document terminates, so too it introduces. So reason says that if I had to choose one of the two, I would choose a document. Thus regarding a document I have proof from the Torah that it effects betrothal. Money, perhaps yes and perhaps no, I don’t know, but through the verbal analogy money emerges, though it is not clear that it is explicit in the Torah. Therefore concerning a document Maimonides says that it too is Torah law.

Betrothal by intercourse is plain Torah betrothal, because it is explicitly written in the Torah; and betrothal by document is also from the Torah because it is necessarily implied by Scripture through a plausible line of reasoning, as above. And regarding betrothal by money, Maimonides writes there in that same responsum which Nachmanides brings: but money is from the words of the Sages, though the law of money is Torah law and its explanation is from the words of the Sages. As it says, “when a man takes a woman,” and the Sages said: these acts of taking shall be by money, as it says, “I have given the money for the field—take it from me.” It seems from Maimonides’ wording that only the law of money is Torah law, but the betrothal itself is rabbinic. Fine?

Now I once thought to explain that in Maimonides too you see in several places that there are derivations he treats as Torah law. When? When those derivations explain a verse. For example, “the fruit of a beautiful tree.” What is the fruit of a beautiful tree? They say: a fruit that dwells by water, or one that remains on its tree from year to year—that is an etrog. Exactly. So now after I make the derivation, I understand that what the Torah meant by “the fruit of a beautiful tree” is etrog. Fine? So the derivation revealed the meaning of the verse. But after the derivation, now that is the verse. So it is Torah law. This is a revealing derivation, not an expansive derivation.

“You shall fear the Lord your God”—to include Torah scholars. The word “et” comes to include. That’s not that after I include Torah scholars I now read the verse differently. There isn’t some word in the verse whose meaning I didn’t understand before and understand now. No. Before, I fully understood that the meaning is that one must fear God; the derivation expands it to say that one must also fear Torah scholars. That is a derivation that is from the words of the Sages. But “the fruit of a beautiful tree”—before I made the derivation I didn’t know how to read the verse. What is “the fruit of a beautiful tree”? A clementine? What is “the fruit of a beautiful tree”? I don’t know. The derivation revealed to me that “the fruit of a beautiful tree” means etrog. So now the derivation only helped me understand the verse, but now the verse says one must take an etrog, so etrog is Torah law, not from the words of the Sages.

Now in betrothing a woman too, since the concept of betrothal exists in the Torah, and document and intercourse are from the Torah as we have just seen according to Maimonides, now we have learned by derivation, by verbal analogy, that money too effects betrothal. If so, there is certainly room to say that here too the derivation is an explanatory one, not an expansive one. Because the concept of betrothal already exists; the Torah already speaks of it, and we already know at least two ways to betroth a woman, not just one. So now when we have a verbal analogy saying that money too is a way to betroth a woman, it is entirely possible that money joins the methods by which the Torah means one may betroth a woman. Fine? The derivation revealed to me that when the Torah speaks of betrothal, it means betrothal by intercourse, by document, or by money. That’s all. So here again the derivation merely reveals. By the way, when you read Maimonides—where is it? In the Sefer HaMitzvot on the positive commandment of betrothal; it doesn’t matter, not critical—in Maimonides’ wording you can see this very clearly, that this is really how Maimonides learned in the Sefer HaMitzvot regarding the positive commandment of betrothal: that the concept of betrothal is a Torah concept, and the derivations merely color it, meaning they explain to us in greater detail what that concept is, because the Torah left it vague. But if so, these are not expansive derivations; they are explanatory derivations, interpretive, revelatory. Therefore it is Torah law. Therefore Maimonides says it is from the words of the Sages because it is a derivation, but its halakhic status is Torah status—as opposed to expansive derivations whose status is rabbinic.

We saw this too where Maimonides says that if I have a supporting derivation—meaning, I have a tradition that transmits the law to me, and a derivation that supports this known law on the verse—then the result is a Torah law. Why? Because when the law is supported and not generated, the derivation is supporting and not creating, that means that the derivation is really not expanding but revealing. For the law was given to us from Sinai; the derivation only says where it came from. That means the derivation explains to me that the law came from the verse. If it came from the verse, it is Torah law, not expansion. So that’s how I think one could explain Maimonides. Therefore he calls it “from the words of the Sages,” yet they still execute one who has relations with a married woman who was betrothed by money, even though this is “from the words of the Sages.”

But he explains it slightly differently—similar, but not exactly the same. He says as follows: it appears from Maimonides’ language that only the law of money is Torah law, but the betrothal itself is rabbinic. How can that be? We find rabbinic acquisitions. There are acquisitions instituted by the Sages—for example, pulling. Right? By Torah law, money acquires, and the Sages enacted that one must pull, lest he say to him, “Your wheat burned in the attic.” Meaning, it is a rabbinic enactment that one acquires by pulling. Though that may not be the best example, because there are those who want to argue that pulling is effective by Torah law as well; what the Sages enacted was only that money alone should not acquire, that if you pay money you must also add pulling. But not that the concept of pulling itself was added by the Sages—perhaps it already existed by Torah law.

But there specifically money is Torah law. Right, it’s the dispute between Rabbi Yochanan and Reish Lakish. Money is Torah law, but the question is: when you say they added pulling, have you thereby said that pulling is not effective by Torah law, or not? It is effective by Torah law; it’s just that with money alone the Sages enacted: don’t suffice with that, also do pulling. If you do only pulling, no problem—that’s effective by Torah law, okay? In any case, perhaps that’s not such a good example. But “presence of all three parties,” for example, is a good example. Or acquisition by four cubits is a good example, what I mentioned earlier. Acquisition by four cubits is an acquisition instituted by the Sages; it does not work by Torah law, okay? The same with the presence of all three parties. “Presence of all three parties” means: if someone owes me money and I want to transfer the debt to someone else, then the three of us assemble and I say to him: you owe me money; now I am assigning the debt to someone else. Thus I can transfer a debt to him. Normally one cannot transfer a debt—it’s an abstract thing, okay? One cannot transfer a debt even by document; that’s at least Maimonides’ view. You cannot transfer debts. But if you do it in the presence of all three parties, then you can. That too is a rabbinic enactment, not Torah law. Fine?

Now a rabbinic acquisition can be effective for Torah law. Fine? That is Rabbi Gedaliah’s assumption, of course. The later authorities discuss this at great length—the question whether a rabbinic acquisition can be effective for Torah law. Meaning, if I acquired something by the acquisition of four cubits, fine? then now it is mine only rabbinically. Now I want to betroth a woman with it. Does the woman become my wife by Torah law or only rabbinically? The object is mine only rabbinically, so how can it be that—I need to give her money that is mine, something that is mine—how can it be that she is betrothed by Torah law? So among the medieval and later authorities there is a dispute whether a rabbinic acquisition is effective for Torah law or not. There are very strong proofs that a rabbinic acquisition is effective for Torah law, but the fact is that there are opinions that deny it. In the standard understanding, there is the Machaneh Ephraim who discusses this at length and others as well, that a rabbinic acquisition is effective for Torah law. And he assumes it here as something simple. Namely, if a person knows that the Sages determined that a certain act acquires, and until he performs that act he has to decide, then he fully resolves in his mind, and that is what is required for the acquisition to take effect by Torah law.

He is basically saying that this enactment—that the act determines complete intent—is a self-building enactment. Once the Sages established: know this, person, the moment you do the act of acquisition, from our standpoint that is as if you fully resolved it in your mind. Now the person himself also knows that when he performs the act of acquisition, he really has fully resolved it in his mind, otherwise he wouldn’t perform the act, because he knows we will regard him as one who has fully resolved it. So this enactment builds itself. And we find a few examples of such things, where an enactment sometimes builds itself, and he says that here too it built itself. Once the Sages established that a certain act acquires, then that act itself also creates in the person—or expresses in the person—complete intent. And thus it is with acquisitions, and thus also regarding betrothal. And it turns out that even if the verbal analogy “taking, taking” is merely scriptural support, nevertheless the law that emerges from it is a Torah law.

So how does he explain the contradiction in Maimonides—that betrothal is “from the words of the Sages” because it is learned from a verbal analogy, but one who has relations with a woman betrothed by money is liable to a Torah death penalty? Why? He does not say, as I said earlier, that this is an explanatory derivation and not an expansive one. Rather, he argues that this is indeed a rabbinic acquisition—a rabbinic betrothal in the sense of the mode of acquisition—but a rabbinic acquisition can be effective for Torah law. Since I performed here a rabbinic acquisition, now the woman is betrothed by Torah law. And therefore he says that even though the law is “from the words of the Sages,” its halakhic standing is Torah standing, because a rabbinic acquisition can be effective for Torah law.

It seems that Maimonides’ source is the passage… actually, his argument is the following, and I’ll sharpen it further. After all, all that is required for something to take effect is complete intent; the act isn’t really needed. Only complete intent is needed. The act expresses or creates—there are two possibilities here, either expresses or creates—complete intent. Fine? Now let’s say the Sages said that an act is effective rabbinically. Once the Sages said that this act is effective, when I perform this act, I will fully resolve it in my mind, right? Because I know that the Sages decided that it becomes his the moment I do this act. So certainly I’ve fully resolved it. But if I’ve fully resolved it, then that is already effective by Torah law. Because complete intent is really what is needed. The act isn’t necessary. The act only creates complete intent. So why should I care that this act was instituted by the Sages? As long as that act causes me to resolve it completely in my mind, then it is an acquisition. What? It’s a little like a coerced bill of divorce. Somewhat similar, yes. Although here perhaps it creates the complete intent, whereas there it only expresses it. But here the act… no, although he says he doesn’t want to give the bill of divorce, yes, our claim there is that he really did want to, and the act draws out of him something already present within him. But here I’m claiming that once you perform the act and we enacted that this act should work, that creates your complete intent rather than reveals it. Fine? Maybe. But yes, the mechanism is similar.

So that’s how he explains in general why a rabbinic acquisition is effective for Torah law, and that’s how he explains why rabbinic betrothal takes effect for Torah law. It takes effect for Torah law because at bottom there is complete intent here. Of course, according to this conception, it is very far-reaching. If we now decide that betrothal is done by standing on one foot—that’s what we want. And it wouldn’t even matter whether some authorized body decided this. Just suppose we, as a group of people, decide among ourselves that standing on one foot counts as betrothal. Fine? According to his view, that would be Torah betrothal. Because each of us understands the implications, and therefore he fully resolves it in his mind. I don’t think he would say such a thing. And this subjective, conventionalist conception is somewhat problematic. A conception that says basically: it all depends only on complete intent. If it all depends only on complete intent, then everything is open-ended.

That, by the way, is how they explain the concept of commercial custom. “This custom acquires,” says the Talmud—what does that mean? Merchants’ modes of acquisition, yes, what is customary among merchants. They always bring the “mazal and blessing” formula in diamonds as an example, yes? In a place where it is accepted that a handshake constitutes an expression of complete intent, meaning that the acquisition takes effect, then it takes effect by Torah law. According to most views, commercial custom is Torah law. There are opinions that commercial custom is rabbinic, but in the straightforward understanding it is Torah law. The merchants’ custom acquires by Torah law. Why? Here they explain it according to the same approach he used here for rabbinic acquisition. Why? Because just as the Sages can make something effective for Torah law, what difference does it make whether it’s the Sages or not? If there is an action that society sees as a decisive action, then by definition when you did that action, it expresses the fact that you really had complete intent. But if you really had complete intent, then it is Torah law. I don’t care who created that complete intent—whether it was the Sages or ordinary people. What difference does it make? The main thing is that it’s clear to us that you truly meant it seriously, because all that is needed is complete intent.

But then according to that, one could also make commercial custom for betrothing a woman. Would he accept that? If there were a custom in the world—say among non-Jews, for example—where if you live among non-Jews, they go register before a judge and then you are married, right? Or at city hall, or whatever place—according to his approach. Okay, two Jews go and register at city hall as betrothed. According to the law of Moses and Israel? No. Betrothed. That’s all. Why “according to the law of Moses and Israel”? All that’s needed is complete intent to become betrothed. Fine. There is complete intent. We see that if we go to city hall, we understand that this creates the bond, the belonging between us, right? The betrothal. So what’s the problem? That is exactly like commercial custom in acquisitions. Commercial custom in acquisitions means the merchants’ custom—not specifically Jews, not specifically Torah scholars. Wherever merchants customarily do things a certain way. So if he says betrothal works by exactly the same mechanism as acquisition, what difference is there? Then in betrothal too you could say the same thing.

But there is—there is a difference between this and that, not between property and a woman. Why? What difference does that make? What is the difference? He himself says there is no difference, according to his view. After all, he says the same thing. He said: why is a rabbinic acquisition effective in betrothal? Because rabbinic betrothal is effective for Torah law just as a rabbinic acquisition is effective for Torah law. But commercial custom in acquisitions works. But on condition… for example, with a woman he’ll say… In monetary matters, a condition works. I don’t think in betrothal a condition works. Of course it does—what are you talking about? One can betroth conditionally. There are long passages, two chapters in Maimonides, the laws of marriage chapters 6 and 7, entirely on the laws of conditions in betrothal. Of course.

It seems that Maimonides’ source is the passage in tractate Ketubot on page 3, yes, the teachers of Rashi, and elsewhere, where there are cases in which the Sages retroactively annulled betrothal. And the Talmud asks about this: granted, if he betrothed her with money; if he betrothed her by intercourse, what can be said? Yes, the Talmud says that the Sages annulled betrothal—“the Sages annulled his betrothal from him”—in all sorts of situations where the Sages annul betrothal. For example, someone who canceled his agent not in his presence, or all sorts of cases, someone who betroths a woman against her will—so they annulled the betrothal. So the Talmud says: how can the Sages annul betrothal? What do you mean? The Torah established that she is betrothed, and the Sages say: no, we decide she is not betrothed? Do they uproot a Torah law by active intervention? How can they nullify…? Can the Sages permit eating pork? From today, pork is permitted. What do you mean? The Torah said that this woman is a married woman. How can you annul the betrothal, deciding that she is not a married woman?

So the Talmud says: granted, if he betrothed her with money. If he betrothed her by intercourse, what can be said? Why is money okay? Well, we’ll soon see, if it’s rabbinic. The straightforward explanation is that with money there is the rule that what the court declares ownerless is ownerless, so the Sages can confiscate the money, and then it turns out she did not receive money—or he did not transfer money—because it wasn’t his. And therefore there is no betrothal. You understand? Because she didn’t receive money. But what about intercourse? How can the Sages nullify betrothal effected by intercourse? What about the intercourse? So the Talmud answers: the Sages rendered his intercourse promiscuous intercourse. A truly astonishing answer. What does it mean that the Sages rendered his intercourse promiscuous intercourse? How? The question is how they do that. I understand that that is what they want to do—to annul the betrothal and declare this intercourse not to be intercourse of betrothal but promiscuous intercourse. But the question was: how can they do such a thing when the Torah says that intercourse does effect betrothal? So with money we have the rule that what the court declares ownerless is ownerless, but how can they do it with intercourse? “The Sages rendered his intercourse promiscuous intercourse.”

Rashi there brings that all his teachers explained “granted, if he betrothed her with money” to mean that betrothal by money is rabbinic. Some say that this is the source of Maimonides’ view. Rashi’s teachers in Ketubot 3, who say that betrothal by money is rabbinic. And what it means there, “granted, if he betrothed her with money,” is that since betrothal by money is rabbinic, the Sages can also uproot it. But what about intercourse? Then one has to understand the answer: “the Sages rendered his intercourse promiscuous intercourse.” Fine? Not as I explained earlier—that “granted, if he betrothed her with money” works even if betrothal is by Torah law, because the Sages have the authority of what the court declares ownerless is ownerless; they can confiscate the money and then there is no betrothal. Rashi’s teachers did not explain it that way. Rashi’s teachers said it is not because of what the court declares ownerless is ownerless, but because if betrothal by money itself is only rabbinic betrothal, then the Sages who created it can also cancel it. If they established the betrothal, they can say that the betrothal is void. But what about intercourse? That is how they explain the Talmud’s question.

And Rashi rejects this explanation by saying that something learned by verbal analogy is Torah law. He says: after all, “taking, taking” from Ephron’s field—we learn betrothal by money by verbal analogy—that is Torah law. Yes? So his teachers are really adopting Maimonides’ view. There is such a geonic position that betrothal by money is rabbinic. I once saw someone who found a position among the Geonim like that. And further, asks Rashi, how can they stone someone for betrothal by money? These are all the questions we asked on Maimonides, right? But Maimonides too says it is “from the words of the Sages” and yet also says that one is stoned for it. Meaning, Rashi’s teachers can also be explained in the same way we explained Maimonides. There is no difference.

So he says: and Rashi explains “granted, if he betrothed her with money” to mean that in that case the Sages can retroactively remove the money from him through the principle that what the court declares ownerless is ownerless. That is the first explanation I gave. But it seems that Maimonides learned like Rashi’s teachers and understood from the question “granted, if he betrothed her with money” that betrothal by money really is rabbinic. How do I know that what he says isn’t right? Because when Maimonides was asked in that same responsum why he says that betrothal by money is rabbinic, he does not bring this Talmudic passage. He should have brought it. He should have said that this is his proof, that this is where he got it. So why don’t you bring it? They asked you. He says no, because it is learned by verbal analogy, and for me whatever is learned by verbal analogy is “from the words of the Sages.” So why? Bring proof from the Talmud that it is “from the words of the Sages”; the Talmud says so. He doesn’t bring this proof. Fine, it doesn’t matter, but that is how he explains it.

And therefore the Sages can stipulate that in certain circumstances they will be voided. And according to the Talmud’s conclusion, even in Torah betrothal a person can stipulate that if the Sages do not want his betrothal, it will be void, even though it will turn out that his intercourse was promiscuous intercourse. Yes, in the case of intercourse. What does “the Sages rendered his intercourse promiscuous intercourse” mean? Usually the medieval authorities explain it by the formula: “Behold, you are betrothed to me according to the law of Moses and Israel.” What does “according to the law of Moses and Israel” mean? That I condition the betrothal on the agreement of Moses and Israel. “Moses” means the Torah and “Israel” means the Sages. So if that is so, then I have made a condition. One may certainly make a conditional betrothal. So if I condition the betrothal on the Sages’ consent and they do not consent, then the betrothal is void, and even Torah betrothal becomes void. So the Sages… Does “Israel” here mean the Sages? “According to the law of Moses and Israel”… are you saying “Moses” is the Sages? No, no, I just had that in mind. One of them means the Sages. Yes, yes. That’s what they bring. Tosafot explains that “Behold, you are betrothed to me according to the law of Moses and Israel” is the basis for why the Sages can annul betrothal. Because I condition it on their view, suspend it or condition it on their view. Fine? So that is the claim, and therefore—and this is what Maimonides wrote—that betrothal by money is “from the words of the Sages,” meaning rabbinic. And nevertheless its law is Torah law and one is stoned for it. Fine? Because basically the claim is that the betrothal is rabbinic betrothal but it creates complete intent of Torah force.

Now, by the way, how can the Sages cancel it? After all, that’s what he said: if the Sages can institute this mode of betrothal—here it is a verbal analogy, not an enactment, but never mind—then the Sages can also cancel it. That itself is a further novelty: that a rabbinic matter of verbal analogy the Sages can also cancel, not only introduce. In the case of enactments I understand: they enacted, they cancel. But with verbal analogy, even if it is “from the words of the Sages,” it is a different kind of “from the words of the Sages.” If this really is the meaning of the Torah, how can you cancel it? This is the proper expansion of the Torah—so how can you cancel such a thing? Fine? So this is a little strange. But that’s how he wants it. I’ll still talk about all this.

So that is how it works. But when the Sages cancel it, apparently once they canceled this form of betrothal, one can no longer make betrothal by money. So now anyone who performs betrothal by money no longer has complete intent either. Because all of his complete intent is built on the fact that he knows the Sages will view this act as a binding act. That’s what he explained above. Therefore once the Sages say: no, we will not view this as a binding act, then automatically even by Torah law it won’t take effect. So on the one hand, when it does take effect, it has Torah force. On the other hand, the Sages are the ones who established it, so they can also cancel it—even though it is Torah law. That is his claim.

And regarding this explanation in Maimonides, we were awakened by the book Generations of the First Ones by Rabbi Isaac Isaac Halevi. He was a great man and his book is an important book from which one can learn a great deal. Still, we do have criticism of him, because at times he is tendentious, agenda-driven. Meaning, sometimes he first marks the goal and then looks for how to prove it. Even in Torah thought one has to think freely and seek the truth, not proceed in an agenda-driven way. And there is no book more agenda-driven than Generations of the First Ones. I think it’s the most agenda-driven book ever written. I really don’t like that book. Even though there are some nice ideas there, it really is terribly agenda-driven, and that is very disturbing there.

I’ll talk about this passage next time, because here he says… yes, yes.