Halakha and Law – Lesson 1

[Rabbi Michael Abraham] We basically finished the topic of mixture that we talked about in the last few sessions, and today I wanted to start dealing with halut, or with the halakhic way of relating to law. We talked about this from other aspects, but here I wanted to touch on some aspect that we hadn’t really devoted a topic to. True, it came up here and there, but we hadn’t given it a topic of its own. And the question really is, or the background question is, what is the relationship between the legal part of Jewish law and its other parts? I spoke about this from a certain angle when we talked about the four sections of the Shulchan Arukh, if we ever talked about that, about the four sections of the Shulchan Arukh. How do you define Choshen Mishpat? And my claim was—I’ll just say this briefly because it’s only background here, it’s not the topic—usually if you ask an average Torah student how he defines Choshen Mishpat, he’ll tell you: obligations between one person and another that are connected to money, or something like that. But that’s not an accurate definition, because there are obligations of that sort that also appear in Yoreh De’ah. For example, interest or charity. Those are monetary obligations in relation to another person, and they are not in Choshen Mishpat; they are in Yoreh De’ah. That means there’s something else missing when we talk about the slice called Choshen Mishpat, about what defines Choshen Mishpat. It’s not enough to say these are obligations between one person and another concerning money; there’s something more. And my claim there was—and I spoke about the legal dimension in Jewish law—my claim was that Choshen Mishpat is obligations whose foundation is rights that another person has toward me. Meaning, if I borrowed money from someone, then I owe him that money. But my obligation to repay that debt is not the same kind of obligation as my obligation to give charity to a poor person, or to return interest to the lender—or borrower, sorry—who paid me interest. The difference is that charity is an obligation on me to give charity to a poor person; for certain reasons I have an obligation to give charity to a poor person. In contrast, repaying a debt is a right that another person has to receive that debt from me. That right gives rise to my obligation. On one side, he has a right against me, and the other side of that is that I have an obligation to give him what is his by right, or not to infringe his right. And that is what defines Choshen Mishpat. Choshen Mishpat is basically obligations whose foundation is the rights of the other person. That’s why, for example, a poor person cannot sue me in religious court if I didn’t give him charity. The charity is not owed to him. I’m obligated to give, but he has no right to receive charity from me. So if he has no right, he has no standing. Meaning, he can’t come to religious court and sue me even in circumstances where I truly am obligated to give charity, because that obligation—

[Speaker B] So where do terumot and ma’asrot come in?

[Rabbi Michael Abraham] That’s an interesting question. In the simple sense, terumot and ma’asrot are also Yoreh De’ah. But there are certain aspects that are legal, and later authorities struggle a bit with how to define it. Meaning, there are those who want to claim, say, that terumah is some kind of obligation toward the tribe of priests—not to any specific priest, no individual has a right to it, but the priestly tribe does have some kind of right in my terumah. That’s a big question; I’m not sure that’s the right definition. In the simple sense it’s Yoreh De’ah. It’s clear that commandments dependent on the Land, for example, appear in Yoreh De’ah, but that doesn’t necessarily prove anything, because commandments dependent on the Land obviously involve many laws that aren’t specifically about the monetary aspect. The question is whether the monetary aspect of those laws might in fact belong to Choshen Mishpat—that’s something one could debate a bit. So what I’m saying is that the definition of Choshen Mishpat, or of the legal part of Jewish law, is that the obligations imposed on me are grounded in the right of the other person, as distinct from other obligations that may also be monetary but won’t appear in Choshen Mishpat. So I spoke about this once—I don’t remember in what context—and I tried to define it a little more. I pointed out two opposite features that we find in these laws of Choshen Mishpat. On the one hand, the view of Rashi and other medieval authorities (Rishonim), who seem at least in principle to join him, is that one must accept martyrdom rather than infringe another person’s property—rather than damage or steal, one must be killed rather than transgress. A person must accept death rather than steal. This doesn’t appear among the three cardinal sins; Tosafot raises this difficulty against Rashi. That’s one feature. On the face of it, that says these laws are an iron wall—meaning there is no way around them. And on the other hand, it is accepted that one can make stipulations regarding monetary law. You can’t stipulate against what is written in the Torah—if someone makes a stipulation against what is written in the Torah, his stipulation is void. You can’t stipulate against Torah law. But in monetary matters this is a tannaitic dispute, and in practice we rule like Rabbi Yehudah that his stipulation stands. So that would mean that monetary laws are the most flexible of all. So what is it? Are they the most rigid or the most flexible? My claim is that it depends from which side you approach it. Since this is a law whose foundation is an obligation grounded in another person’s right, then like this: because it is founded on the right of the other person, it’s obvious that if the other person agrees to waive it, there’s no problem. Right? Therefore, if we make a stipulation between ourselves, and that stipulation is always by mutual consent, then if we stipulate between ourselves, that means he waived his right. If he waived his right, then what’s the problem? It’s his right, and that’s the meaning of a right. A right is something that stands to your benefit; you can take it and you can choose not to take it. It depends on you. You have a right to receive it. That’s the meaning of a right. On the other hand, if he doesn’t waive it for me, then there is no way to infringe it unless he waives it. That’s the rigid side. Meaning, the flexible side—that one can stipulate—is because if he agrees to waive it, then he waives it, and it’s a right, and a right can be waived.

[Speaker B] But what does the side that disagrees with Rabbi Yehudah hold—that he’s not allowed to waive it? What? Someone who disagrees with Rabbi Yehudah—can one stipulate or not? What? He thinks he’s not allowed to waive it? What if I brought a person a hundred shekels? I mean, the person doesn’t—

[Rabbi Michael Abraham] You can waive. You can say, don’t repay. You can say, it’s waived for you. But to stipulate—you can’t stipulate. You can’t waive that right in that form. It’s not even a right; it’s an obligation that you have to pay. He can say it’s waived for you. But there are definitions among the medieval authorities (Rishonim) and later authorities (Acharonim), a dispute here on this issue, whether “waived” means as if—

[Speaker B] I’ve already been repaid, or waived—

[Rabbi Michael Abraham] —means not that I’ve been repaid, but rather that I even received it and returned it. Or that it means: don’t repay. That will probably depend on the laws of the Sabbatical year.

[Speaker B] Right, that’ll probably depend on that.

[Rabbi Michael Abraham] Can one waive?

[Speaker B] What? Interest? If I’m willing to pay interest and he’s forbidden to take it? I’m willing to pay him and he’s not—

[Rabbi Michael Abraham] Interest is prohibited even with consent.

[Speaker B] Right. No.

[Rabbi Michael Abraham] Interest is prohibited even with consent—that’s exactly the point. This is not a stipulation in monetary matters; it’s Yoreh De’ah. I’m forbidden to pay interest even if I agree. It’s unrelated. By the way, the one who violates it is both the lender and the borrower. Both of them violate the prohibition. That’s exactly one of the indications that this belongs to Yoreh De’ah and not Choshen Mishpat.

[Speaker C] As opposed to bribery. What? As opposed to bribery. In what sense? That only taking it is forbidden.

[Rabbi Michael Abraham] Bribery—there’s no prohibition on giving it. I don’t remember right now; maybe you’re right. I don’t remember at the moment. In the simple sense, bribery too is a Yoreh De’ah prohibition. So it’s clear that even if he agrees to give, you would violate “do not place a stumbling block.” No, “do not place a stumbling block” is certainly here. The question is whether there is also a prohibition of bribery on the giver. Anyway, where were we? Right. So the claim is that because this is an obligation founded on another person’s right, that explains both sides. On the one hand, it’s completely flexible, because if the other person waives it, then he waived his right, and there’s no problem. On the other hand, if he didn’t waive it, I can’t do anything. I have to accept martyrdom rather than transgress, because only he can decide regarding his rights. And even if my life is in danger, danger to my life overrides prohibitions that rest on me—but how does it cancel his right? The danger is mine. My danger overrides prohibitions that apply to me, but how does that override his right? His right still exists and stands—what does that have to do with the fact that I’m in danger? So all this is only to explain the legal context I spoke about then. But today I want to talk a bit from a somewhat different angle, and that is the question of how to relate at all to legal acts. Not the legal obligations—what I am obligated or not obligated to do, and what the meaning of that obligation is; that’s what I’ve been talking about until now. Rather, now I want to talk about what it means to be an owner. What does it mean to create ownership? To perform an acquisitional act that creates ownership—what is that? What is this thing? Is it a convention? Is it a public agreement that whoever does this, lifts something, then suddenly becomes the owner in the sense that nobody else can take the object from him without his permission or something like that? Or is there behind this what I’ll already now call a metaphysical aspect? Meaning, that something changes, as it were, in reality itself, and the legal norms are only derivatives of that thing?

[Speaker B] Rabbi Shimon Shkop. Rabbi Shimon Shkop.

[Rabbi Michael Abraham] Yes. And others too. It may be—I simply don’t remember exactly the lecture about halut that came before the laws of—

[Speaker B] Yes, yes.

[Rabbi Michael Abraham] Okay, so we’ll see. If I repeat too much, then stop me, because I myself don’t remember here exactly what. I lived through these topics—in the list of topics I have, this didn’t appear. Many years have already passed, so I don’t know.

[Speaker B] Why can society confiscate property, while for the individual it’s such a severe prohibition?

[Rabbi Michael Abraham] It’s the same issue. The moment society confiscates something, it’s like a stipulation. Stipulation is the flexible side of monetary law. When society determines something, then whoever does it is basically my representative and yours together—the legislator, say, or the king in the halakhic context. And what does that mean? It’s as if both of us agreed, because our representative determined that this is what is binding for all subjects, all citizens.

[Speaker B] Yes, but if I planted a tree in the field and grew it, and then society comes and tells me, “From now on it’s mine”—by what right? I worked on it and now you come and take it from me? How can that be?

[Rabbi Michael Abraham] But from the outset, your ownership is conditional on society’s agreement; otherwise there is no ownership at all.

[Speaker B] Why do I need to ask anyone in order to grow a tree?

[Rabbi Michael Abraham] You can grow whatever tree you want, but to be an owner you need the agreement of the public. To be an owner requires the agreement of the public. Ownership is a public institution. If the public doesn’t—

[Speaker B] In one’s courtyard—what?

[Rabbi Michael Abraham] Is it yours? Just like that—by what authority? No, in his courtyard—who determined that it’s his courtyard? That’s the agreement of the public. Exactly. I grew fruit; ownership over it is no different.

[Speaker B] I can write a book now and society can decide that it’s taking it from me. Not land, not air, nothing.

[Rabbi Michael Abraham] Of course. It’s unrelated. All laws of ownership are a function of society’s agreement. I think I spoke about this once—maybe it was in that same context. I said that both in Choshen Mishpat and in Even HaEzer, these are the two legal columns within Jewish law, in both of them the Sages have total authority. There is court confiscation in monetary law, in Choshen Mishpat, and there is “whoever betroths does so subject to the will of the Rabbis” in personal status. In both of them, somehow the Sages can nullify the law—nullify with an aleph, meaning cancel the legal status. That’s very strange. My claim was that this is the meaning of a legal layer. The meaning of a legal layer is that it is determined by society. That’s how law is determined everywhere in the world as well. Society is basically what constitutes the law. My claim was that in Jewish law too that is the case. Meaning, therefore, in Jewish law, once society does not recognize your ownership, you are not an owner. More than that: if society does not recognize your betrothal, then you—you can give her a ring in front of two valid witnesses and she is unmarried.

[Speaker B] It’s not legal ownership, but morally he’s still the owner?

[Rabbi Michael Abraham] No, ownership is a legal concept. What does “morally” mean?

[Speaker B] When I worked for that thing—

[Rabbi Michael Abraham] Fine, here there’s room to hesitate. But once society determines that it is not yours, then you are not an owner. The question is whether, without society having determined that—say society says it’s ownerless property, and now I come and take it—have I violated a moral prohibition? That depends on why society determined it’s ownerless. If it has a good reason, then probably I haven’t violated anything. If it has no good reason, then its decision is not valid either. Meaning, court confiscation is valid only when it is done for a proper purpose, what today they call in law a worthy purpose. Medieval authorities write this.

[Speaker C] Isn’t it because really nobody owes anybody anything, and the whole reason we give someone the right—or grant him the right at all—to be owner of something, is only because we agreed that we will preserve this arrangement, that what’s yours is yours and what’s his is his? Because it’s just this kind of social agreement. Otherwise, in a place where there is no society, there is no ownership.

[Rabbi Michael Abraham] Yes, but that’s a novelty—to say this also within the halakhic framework. In legal theory, certainly that’s the case, but in halakhic thought it’s a novelty. In halakhic thought, you might have said that it derives from the Holy One, blessed be He, not from society, like all of Jewish law. The claim is that the legal part of Jewish law is different in this sense from the religious part—or whatever else you want to call it—the other parts, Orach Chayim and Yoreh De’ah. The legal part of Jewish law is like law anywhere else. Meaning, it is a function of social agreement. And therefore if society does not agree that you are an owner, then you are not an owner. And the Sages act as representatives of society, and therefore court confiscation belongs specifically to the courts of the current generation—not just any court can confiscate property—because the court is basically the representative of the entire public. And the same is true of annulment of betrothal.

[Speaker C] The Torah too was basically given to an already existing society; it wasn’t given at the very beginning. It’s not like Adam was created and then there was Torah.

[Rabbi Michael Abraham] But with a prohibition like eating pork, society can’t say there’s no prohibition. But with the prohibition “do not steal,” it can. Or with betrothal—with the prohibition of a married woman—it can. It can say that she is not a married woman. I think Pnei Yehoshua writes that the reason witnesses are required for the very legal existence of the matter in betrothal—after all, witnesses are required—the witnesses have a constitutive role in betrothal, unlike ordinary rules of evidence, where you need witnesses only as part of evidentiary law; you simply need to know what happened. But obviously if I borrowed, I owe you the money even if there are no witnesses. It may be that I can lie when there are no witnesses, but in principle the loan obligates me, not the witnesses. In betrothal, without witnesses there is no betrothal—not because we don’t know about it; they have a constitutive role. So I think it follows from Pnei Yehoshua that he understands the role of witnesses for the legal existence of the matter as providing the social stamp of approval, and they are basically representatives of society. In principle, a court should have been sitting there, but in order to streamline things, just take two valid Jews to stand there; they are agents of the public to give it a stamp, that the public recognizes this betrothal.

[Speaker B] A woman is acquired by money—

[Rabbi Michael Abraham] —document, and intercourse.

[Speaker B] What? A woman is acquired by money, document, and intercourse.

[Rabbi Michael Abraham] Yes, those are the ways in which you apply the betrothal.

[Speaker B] Do you need witnesses for intercourse?

[Rabbi Michael Abraham] There’s no such thing—this is always the question—there are no direct witnesses to intercourse.

[Speaker B] Right, so that’s only in the acquisition—

[Rabbi Michael Abraham] No, no, no. You need witnesses for everything. You need witnesses for all three modes of acquisition; witnesses are required. Now with intercourse, the question is what do you do? So they say: these are the witnesses of seclusion, these are the witnesses of intercourse. Meaning, when the witnesses see them entering a place where it is clear that this is what they did, from our point of view that counts as witnesses to intercourse. A big novelty. And indeed the Sages prohibited betrothing by intercourse; rabbinically it is forbidden to betroth by intercourse. But on the Torah level, witnesses for the legal existence of the matter are required for all types of betrothal, not only money. Also with a document—document means delivery, signature—he needs witnesses.

[Speaker B] Here it was physical and conventional.

[Rabbi Michael Abraham] Yes—well, I started, I told some story about someone who asked something, I don’t remember anymore. Fine. So I really do want to get a bit into the question of the nature of legal acts or halut. Basically, I’ll begin by clarifying what a legal halut really is. I once heard—this was one of the first articles I wrote on this topic of halut, and I open the article with: I once heard in the name of Rabbi Shagar, back when he was still alive. He said there is a problem for the average hesder yeshiva student with the concept of halut. Meaning, everyone knows what a married woman is, what an owner is, everything is fine. But what is a halut of married-woman status, or a halut of ownership—that he doesn’t understand. Well, maybe yes, maybe no. In my opinion, this problem exists throughout the yeshiva world, not only among hesder students, but it’s true that in the Haredi world there is a more intuitive grasp of this. If you ask them to define it, they won’t know how to define it, but they’ll use the concept correctly. Meaning, there is some intuitive sense of this matter that I think is more common there. You somehow have to breathe the concept in the air around you in order to use it correctly, and it turns out people do use it correctly, even though everyone I asked didn’t know how to define it.

[Speaker C] Defining it isn’t simple.

[Rabbi Michael Abraham] Not only with halut. No, but more than that. Meaning, I’ll show you implications and then— The claim basically, I want to sharpen the question: what is the difference between saying that a woman is a married woman and saying that there is upon her a halut of married-woman status? On the face of it, it’s the same thing, no? To say the same thing in two words, in two concepts.

[Speaker B] If he died, as long as we don’t know that he died, as long as we don’t have clear testimony that he died, then she is maybe—

[Rabbi Michael Abraham] Status. In modern terminology that’s a halut of married-woman status, and she is also a married woman. Why does that distinguish between the two concepts? If there is a halut of ownership on the object, that means I am the owner of the object, no? Aren’t these synonyms? So what is halut? Just on the linguistic level—why did they create this term?

[Speaker B] Suppose he’s going to be released, and retroactively it turns out that when she left, he had actually already been dead for a long time. So what’s her status? Unmarried.

[Rabbi Michael Abraham] Unmarried. Right, we don’t—

[Speaker C] We don’t know that she’s unmarried, but she is unmarried.

[Rabbi Michael Abraham] We don’t know. There are doubts. But in principle, when the husband dies, he dies. That’s it. No, if she is bound to levirate marriage, if there is a brother-in-law, then she is still bound. No, I’m saying it’s like a presumption. No, it’s not like a presumption, because a presumption is a real linkage. Here it’s only knowledge. She is unmarried; I just don’t know it. Okay? That’s not essential. The point is really: why was this concept created? Why create the concept of halut at all? Why can’t I say that I own the object, or that this woman is my wife? Why do I need to say that there is upon her a halut of married-woman status, or that there is a halut of ownership on the object? What does that add? Other than the fact that it’s much more convenient to wave your hands around when talking like that. It feels much more geshmak to say “there is a halut of ownership,” not just “ownership.”

[Speaker B] Because it’s a legal term that isn’t always attached to the fact. “She is a married woman” is a fact, that this act exists, the act of betrothal, so she is a married woman. The halut of married-woman status could be that the facts did not create the state of a married woman, but the legal state that we want to analyze contains those laws too even though, factually, the thing didn’t happen.

[Rabbi Michael Abraham] I didn’t understand. Describe a case for me.

[Speaker B] It could be that there’s doubt in the facts whether she is or isn’t a married woman.

[Rabbi Michael Abraham] So again we’re back to what Yossi said—that if there is doubt, then there is doubt. I don’t think it changes whether it’s “a married woman” or “a halut of married-woman status.”

[Speaker B] Let’s say there was no act at all that—

[Rabbi Michael Abraham] If there wasn’t, then there is no halut of married-woman status and she is not a married woman. And if there was, then she has both. And if I’m in doubt, then the doubt applies to both. Why does that create a distinction between halut of married-woman status and married-woman status?

[Speaker C] I don’t know—it’s the field. The halut is the field, and when you bring a charge there then there will be— It needs something to happen there, it’s the possibility, I mean.

[Rabbi Michael Abraham] Halut is the concept.

[Speaker C] Halut of married-woman status is the concept, but—

[Rabbi Michael Abraham] It has no legal expression.

[Speaker C] It’s like a magnetic field. If there’s nothing there for it to affect, then it isn’t there.

[Rabbi Michael Abraham] Meaning, what you’re really claiming is this: ownership is a concept, and a concrete application of the concept is to be the owner of something. Right. And the abstract concept, the idea, is called a halut of ownership.

[Speaker C] Say there were no objects at all in the world, okay, and there is the concept of ownership.

[Rabbi Michael Abraham] Whereas if there were an object, that would be called ownership, not halut of ownership. There is being owner of something, and there is ownership, the Platonic idea. But halut of ownership is in the legal field, not in the meta-legal field. The point is that this concept seems, on the face of it, contentless. It doesn’t say anything beyond what is said even without it, so basically it is just empty. In fact, after I wrote the article, there was some debate over a number of issues of Tzohar. It was in issue 2 of Tzohar, right at the beginning. Then there was an ongoing debate with Rabbi Baruch Katz from Efrat, I think. He was in Gush, learned in Gush or taught there too, I think. He’s the son-in-law of Rabbi Fischer and the husband of Chana Katz—

[Speaker B] The daughter of Chana Katz.

[Rabbi Michael Abraham] So I had a debate with him. He argued against what I’m going to say today, that halut is the action. To apply a halut of ownership means to turn something into something under my ownership. Meaning, the process, the action of creating ownership, that is really what applying a halut of ownership means. It is not a standing state in which there is a halut of ownership on the object. I can’t say “there is a halut of ownership on the object”; I can say “I am now applying a halut of ownership to the object.” After I finish applying it, then I am the owner. Once the action is over, I can no longer speak about the halut. That was his claim. First of all, that’s not how people speak—not sure how much of a proof that is, but that’s not how the term halut is used. Many times people say “to apply a halut,” of course, but not only that. They also say “there is a halut of ownership on the object,” or a halut of married-woman status, or whatever. People also speak about a state, not only about the action that creates the state, that brings the state about. Maybe an example will make the point a little clearer. What I basically want to claim is that the halut of ownership is the metaphysical state that is created when I perform an acquisitional act. Now there is a halut of ownership on the object. The concept of ownership is the collection of legal or halakhic consequences that this metaphysical state has.

[Speaker C] What’s the difference? I’ll explain.

[Rabbi Michael Abraham] This distinction also has halakhic implications—that’s what’s nice here about the whole thing. Yes. You know, this reminds me of Kant, who distinguished between the thing-in-itself, the noumenon, and the phenomenon—that is, the way I see it. Okay? Zeitlin remarks in one of his books that this distinction itself is also part of the phenomenon. After all, I too think this; I have no access to the world as it is in itself. So the very distinction itself is also part of the phenomenal world. So what is the meaning of speaking about the thing-in-itself? That’s his claim. A claim that needs discussion, but that’s what he argues. Here I want to argue something stronger. On the face of it, this is the same distinction. Meaning, the halut of ownership is the thing itself, and the legal consequences—the ways it projects toward us, what it means on the legal plane—that is what is called ownership. But I want to argue that the fact that there is a halut of ownership has practical implications beyond the implications of ownership. Meaning, this distinction really does have significance also in the phenomenal world, in the world of how I perceive the world, not only in metaphysics. Not only as some kind of meta-halakhic statement; it is also a genuinely halakhic statement. Maybe I’ll bring an example. The Talmud in tractate Gittin 42 discusses whether there is a penalty payment in the case of one awaiting a bill of manumission. One awaiting a bill of manumission is—let’s remember we’re talking here about a Canaanite slave. With a Canaanite slave there is an prohibition-acquisition and a monetary acquisition. On the one hand, he belongs to me, meaning I have property rights in him, rights to use him in daily life. And he also has some kind of status: he may eat terumah if his master is a priest, he may marry or have relations with a Canaanite maidservant. There are various halakhic statuses that speak about—sorry, Canaanite slave, Canaanite slave, not Hebrew slave. He is acquired to me, he is obligated in commandments like a woman, he has prohibitive statuses, halakhic statuses that derive from the fact that he is a Canaanite slave. What happens if I declare him ownerless? He belonged to me monetarily. I declared him ownerless, now he is not mine. This is a dispute in the Talmud, but according to Jewish law we rule that one awaiting a bill of manumission still needs the bill. Meaning, one who renounces his slave has not thereby set him free. There is a dispute between Rav and Shmuel whether one who renounces his slave thereby frees him. And in practice we rule that he does not go free; he needs a bill in order to be freed. Okay, so therefore the status of a slave whom I have renounced is the status called one awaiting a bill of manumission. That’s what it’s called. One awaiting a bill of manumission—meaning he is still a slave as long as he has not received the bill of manumission, but in fact he is no longer mine, because I gave up my property rights in him; I renounced him. Okay? Now, regarding this waiting slave there are various questions. If he is the slave of a priest, may he eat terumah? He no longer belongs to him, but he is still somehow connected to him. Is there a penalty payment in the case of such a slave? An ox killed him. There is the law of a slave: when an ox kills a slave, the owner of the ox must pay thirty silver pieces. Now the ox gored one awaiting a bill of manumission and killed him. Must he pay thirty silver pieces or not, because perhaps he is no longer considered a slave for purposes of the penalty? To whom does he—

[Speaker B] —pay it?

[Rabbi Michael Abraham] Okay, also a good question. In the plain sense, the assumption of the Talmud is that it goes to the owner, because the slave died, and halakhically it’s clear that if you pay anyone, it would be the owner. There might be room to say his heirs, but that’s a different discussion. So there is a question whether there is a penalty payment in the case of one awaiting a bill of manumission, and the Talmud wants to argue that there is—just as when one injures a slave, the payment goes to his master, so too with one awaiting a bill of manumission. If one injures such a slave, one pays his master. So likewise the penalty also goes to his master.

[Speaker B] So he asks—that too is novel. In the case of injuring such a slave, where do we learn that from? That if one injures a slave—

[Rabbi Michael Abraham] Wait, I’m just… I don’t have the Talmudic text in front of me right now, it works backwards. There’s a law of a fine… Tosafot… yes. The Talmud assumes that when someone injures a slave, the payment goes to his master. Okay? So yes, the Talmud assumes that. And on that Tosafot asks: why, when someone injures him, does the payment go to his master? After all, the one who lost out, when I injure a slave, is the slave, because the slave is already awaiting a bill of emancipation, he already no longer belongs to his master. So if I injured the slave, the slave can no longer do various kinds of work. Who lost from that? The master didn’t lose, because he can no longer work the slave anyway; the slave has been relinquished, he’s no longer his property. So why in the world should the injury payment go to his master? Both the work of his hands and his person and so on. So Tosafot says: because the fine goes to his master, the damage payment does too. And since the fine goes to his master, therefore the damage payment does too: what difference is there between killing him entirely and killing him halfway? When they kill the slave completely, the fine goes to his master, so when they kill half of him—when they injure him—that’s a partial killing, that also goes to his master. What’s the difference between a full killing and a partial killing? That’s what Tosafot says. The Pnei Yehoshua asks about that—and I had a real Torah-law dispute about this with my shiur teacher in yeshiva, at Netivot Olam. The Pnei Yehoshua asks: what kind of proof is Tosafot bringing from a fine to an injury case? A fine is punitive payment. So the Torah introduced a novelty here, that there is a fine, so it’s not compensation, it’s a fine. If it were compensation, then really where would it go? The person who ought to be compensated is no longer with us. But if it’s punishment, a punitive payment, then it makes a lot of sense that you have to pay it. Even if he’s awaiting a bill of emancipation, what difference does that make? But to whom do you pay? Give it to the master. What difference does it make? After all, it’s a punitive payment. The purpose of a punitive payment is that the payer pays, not that the recipient receives. The fact that the recipient receives is less important. The point of the payment is that you pay; it’s a sanction. Okay. But I’m saying: if you’re paying already, then give it to the one who was harmed. But the purpose of the payment is not like an ordinary monetary payment meant to compensate the injured party. So there, in the fine where someone’s ox kills a slave who is awaiting a bill of emancipation, I understand that the Torah introduced the novelty that there is a fine, and so it also goes to his master. But injury payments are compensation, they’re damages. You want to compensate the one who lost. Who lost? Did his master lose? His master lost nothing; the slave no longer belongs to his master, after all he’s awaiting a bill of emancipation. How can you learn—from a fine that goes to his master—to injury that goes to his master? A fine is punitive payment; injury is compensation.

[Speaker B] Compensation should go to the one who lost out.

[Rabbi Michael Abraham] And here the one who lost out is the slave, not his master. Never mind.

[Speaker B] In the original case, let’s say, of a slave who isn’t awaiting emancipation, if he’s injured, it goes to the master.

[Rabbi Michael Abraham] But it doesn’t go by virtue of a fine, it goes by virtue of…

[Speaker B] Injury isn’t a fine at all, in any situation. Right. So now, the Torah says that with injury, if the ox kills him, then—

[Rabbi Michael Abraham] There are fine payments—why? Because he’s a slave. So whether it’s…

[Speaker B] No. Why call it a fine?

[Rabbi Michael Abraham] It is a fine. That’s what the Torah says. Someone who kills a slave pays a fine. An ordinary slave, he pays a fine.

[Speaker B] Why call it a fine?

[Rabbi Michael Abraham] Because it’s not compensation, it’s a fine. It’s a fixed payment. It doesn’t matter whether the slave is excellent or weak, good or bad—a fixed amount. The Torah says: “He shall pay thirty shekels to his master.” Yes, that’s not compensation. No, no. It’s a valuation. Just as free people don’t have a monetary valuation. When you kill a person, you don’t pay compensation. Didn’t they give that to you?

[Speaker B] No, if the assessment is fixed, then it isn’t compensation.

[Rabbi Michael Abraham] No—if the assessment is fixed, then it isn’t an assessment. Compensation has to be proportional to the damage. If the damage is such-and-such, compensate accordingly. When the assessment is… that’s the indicator the Talmud itself gives. In every situation where the payment is fixed and not dependent on what happened, that’s a fine. That’s the sign that it’s a fine. So the Pnei Yehoshua asks Tosafot: then how can you learn from a fine to injury? Injury is a compensatory payment, it’s monetary payment, while a fine is punitive payment. So a punitive payment—why should I care that it wasn’t he who lost, but the master? What difference does it make? It’s punitive payment, so you pay the master. Especially since the slave is no longer here, there’s no one to pay anyway—so all the more so, even if it were compensation, to whom would you pay? There’s no slave to pay. So only the master remains. But in injury, the slave is still here. And there is someone to pay, and the essence of the payment is compensation. You want to give it to the one who lost. So why in the world give it to the master? The master lost nothing in the case of someone awaiting… awaiting. Okay? That’s the Pnei Yehoshua’s question. As if: “What a slave acquires, his master acquires.”

[Speaker B] But that doesn’t have…

[Rabbi Michael Abraham] But he’s ownerless.

[Speaker B] If you’re paying his master, that implies there is a master.

[Rabbi Michael Abraham] Yes, there is a master in the prohibition sense, in a prohibition-based ownership. As if what the slave acquires… why? But that’s apparently part of the product of his labor, part of the output we got from him. That depends on property ownership, not on prohibition-ownership. It doesn’t say in the Torah, “What a slave acquires, his master acquires”; it’s simply the meaning of being a slave, that everything he produces, including what he acquires, belongs to me. That’s just part of the monetary ownership I have in the slave. So the Pnei Yehoshua answers something that isn’t entirely clear. I understood him to mean that actually injury payments… injury payments are not compensation. Injury payments are not compensation, or not compensation in the full sense. It’s not a fine, because there are various indications, even in Maimonides, that some of the five payments are like a fine; in injury, apparently that’s not the fine. The damage itself is not a fine. But it is a monetary payment that goes to the owner, and it may be that every compensation payment is like that, by the way. It’s a monetary payment that goes to the owner, but not to the one who lost out—to the owner. Now usually that is of course the same thing: who lost out? The owner, right? That’s true both for a slave and for any property. If I damage property, who lost out? Its owner. But if you have a pathological case where there is an owner but he’s not the one who lost, where the one who lost is the slave, not the owner—the claim is that the assessment of how much you pay for injury is according to the measure of the loss: how much the slave was worth before and how much he’s worth now after the damage. But to whom does the payment go? To the owner. That’s the claim.

[Speaker B] But what about the fact that he relinquished him? He isn’t considered the owner.

[Rabbi Michael Abraham] Right, and as a result I have to assume—if that really is what the Pnei Yehoshua is saying—then I have to assume that he is still the owner. And how can it be that he’s still the owner if he has no monetary rights at all—he relinquished him? So we argued about that, whether that’s really what the Pnei Yehoshua means, whether it makes sense or not, and then we went to one of the other yeshiva teachers in the yeshiva, as a kind of Torah-law court. Just, you know, to hear what he would say. So he represented me—my rabbi, when I was arguing with him, he represented me—and he asked him: tell me, why is it that the expression used by the medieval authorities, it doesn’t appear in the Talmud, but the medieval authorities call the ownership a master has in a slave “prohibition ownership” and “monetary ownership”? There are two things: there is the prohibition aspect and the monetary aspect. When I relinquish the slave, only the prohibition ownership remains. But with a regular slave there is both prohibition ownership and monetary ownership.

[Speaker B] So what is prohibition ownership?

[Rabbi Michael Abraham] It means that he is considered a slave for purposes of the prohibition aspects. He is obligated in commandments like a woman, he needs a bill of emancipation in order to be freed. Now this is exactly what he asked: why is that called prohibition ownership? Why is that ownership? Monetary ownership I understand—he is mine. But the prohibition status of the slave is a status; what does that have to do with ownership? He is considered a slave in terms of his status. But why is that called my having prohibition ownership in him? And more than that: after all, I’m the only one who can free him. Now he’s being held back, he no longer belongs to me. Who can give him a bill and turn him into a Jew? Right—after a Canaanite slave receives a bill, he becomes a Jew. That’s conversion. Okay? So who can do that? Only his master. Wait, what master? I already relinquished him. I relinquished him, I’m not a master anymore, I even relinquished half—no, I relinquished him entirely. I have no rights at all.

[Speaker C] You have the right of the bill.

[Rabbi Michael Abraham] That’s not a right—it’s a right.

[Speaker C] It’s like, I don’t know, like a caveat, something like that, some other kind of thing.

[Rabbi Michael Abraham] What kind of caveat? I can’t derive any benefit from it.

[Speaker C] In the sense of a bill, it’s only a check.

[Rabbi Michael Abraham] I can’t get anything out of it.

[Speaker C] It’s like the bond of a levir.

[Rabbi Michael Abraham] A bond is fine, but it’s not ownership.

[Speaker C] Fine, but ownership. What is bond?

[Rabbi Michael Abraham] A bond, yes—but not ownership. I have bonds in many things.

[Speaker C] And that’s a right; it has, I don’t know, it has significance. Where?

[Rabbi Michael Abraham] What significance? Tell me—what?

[Speaker C] That if only you can free him, then you can… it’s like a woman’s bill of divorce. Right?

[Rabbi Michael Abraham] Are you the owner of your wife?

[Speaker C] In a certain sense, yes. Of course. Well yes, in the sense that she can’t go with anyone else; only you decide.

[Rabbi Michael Abraham] But that’s unrelated.

[Speaker C] You’re the owner in that respect.

[Rabbi Michael Abraham] I also can’t decide; I can divorce her. I can’t decide that she can go with someone else.

[Speaker C] True, but as long as you… in a certain sense, you can.

[Rabbi Michael Abraham] That isn’t ownership.

[Speaker C] I agree that it’s… but it’s a kind of… something remains from the ownership, not full ownership.

[Rabbi Michael Abraham] De facto control. De facto control. But I’m asking: what ownership is this? Why is this ownership? Why is it prohibition ownership? Because I have control over him in that I can free him. But that itself is the question—why is that?

[Speaker B] When he is the owner, then he has all the rights.

[Rabbi Michael Abraham] When he is the owner—

[Speaker B] then he’s the owner, wait, wait. And therefore, since this right to free him is a different right than… and it’s not a right.

[Rabbi Michael Abraham] What right? What do I gain from it? What difference does it make to me to free him?

[Speaker B] That’s not relevant from my perspective.

[Rabbi Michael Abraham] The slave has that you should activate this thing. No, there’s no right. I can choose not to free him and I can choose to free him. But you’re the only one who can free him. I can free him if I decide to, true. So maybe in that respect they come and say: true, you are not his owner in the monetary sense—wait, in what sense am I the owner? What? In what sense am I the owner?

[Speaker B] Exactly.

[Rabbi Michael Abraham] Like what we said about a woman’s bill of divorce. There too I’m not the owner. Why? Until you gave her—

[Speaker C] a bill, she is considered within the husband’s domain.

[Rabbi Michael Abraham] A wife is not acquired by her husband. What are you talking about? A wife is not acquired by her husband. She is not acquired by him, she is not—

[Speaker B] his property, not his possession.

[Rabbi Michael Abraham] No, of course not. Maybe we’ll talk about that later. The medieval authorities write this—it’s not even modern apologetics.

[Speaker B] Maybe one could say that if the slave is half free and half slave, then the half—

[Rabbi Michael Abraham] the freed half of him—

[Speaker B] wants to buy from you his half that’s still held back? If he’s half, that’s something else; I’m not talking about half, I’m talking about someone awaiting emancipation. Half means there are two owners. Half slave and half free is something else. No, he’s not half awaiting emancipation and half free; he is completely awaiting emancipation. I’m saying, maybe you could argue that half awaiting—

[Rabbi Michael Abraham] and half free, then his freed half would come to you and say: I want to buy from you—that is, that you should free—my half that’s still held back. Okay, and then I become fully free? Could be. So I can extort money from him for that. I can manipulate the control I have there, even though he isn’t half slave and half free. Fine, but that’s not… then everything is just derivative. I’m asking how it is created. In what sense am I the owner? And like there used to be, you know…

[Speaker C] The very fact that you have a connection to him is a kind of ownership. Some kind of connection.

[Rabbi Michael Abraham] What, connection is ownership? Ownership is a kind of—it’s a hierarchical connection, not just any connection. I have a connection to many things. What is “connection”? I also have a connection to my father, so does that make him my owner? Or me his owner? Lots of things involve connection. Once, in the Talmud, Rabbi Yosei HaGelili says that lesser sancta are the owner’s property. Lesser sancta are literally the owner’s property. For example, one can betroth a woman with them. But with the highest-level sancta one cannot betroth a woman with them—they belong to the Temple treasury, they aren’t mine. And the question that always bothered me was: in what sense are lesser sancta the owner’s property? So the medieval authorities say: as if, because one can betroth a woman with them. That’s not an explanation! The fact that you can betroth a woman with them is a result. Once it’s monetary property, since it’s property, I can give it to someone else, and because it has monetary value I can betroth a woman with it. You can’t tell me it is monetary property because I can betroth a woman with it. After all, I can’t do anything with it except sacrifice it and eat the meat as the owner, as one is supposed to do with a sacrifice. I can’t do anything else with it. And this very thing that I can’t do anything with, I can transfer to a woman and betroth her with it, and she also won’t be able to do anything except what I couldn’t do. So ownership needs some foundation that defines me as owner. Once I am owner, then I can already betroth a woman with it.

[Speaker B] What foundation? Look—now you have the right to eat it.

[Rabbi Michael Abraham] Their share of the sancta.

[Speaker B] Right, that’s a right, so you have a right in it.

[Rabbi Michael Abraham] Okay, so that right could be an explanation for why lesser sancta are the owner’s property. But not the fact that I can betroth a woman with them. The fact that I can betroth a woman with them is not an explanation of why I’m the owner. The explanation of why I’m the owner is that I have rights in the thing—for example, to eat it. Now you can tell me that because I have rights in the thing, I can also betroth a woman with it. But you can’t tell me that the fact I can betroth a woman with it is what makes me the owner. That’s a derivative consequence of the fact that I’m the owner. It’s not the explanation. I’m saying, here too, same thing. You can’t tell me that because I’m the owner, the meaning is that I’m the one who can free him. The reverse: I’m the one who can free him because I’m the owner. And I’m asking: why am I the owner? In what am I the owner? After all, I can’t do anything with him. So in what am I the owner? The implication is that if I’m already the owner, then I’m the one who can free him. But I’m asking an earlier question: why am I defined as owner at all? In what sense am I the owner? What right do I have in this slave? Nothing—I can’t do anything with him.

[Speaker B] Apparently also in the realm of prohibition. Even in corporate law in the State of Israel there’s a golden share. That means I don’t get dividends from the company as an owner; rather, with Bezeq, let’s say, the state can say: you will not be the owner. Why? Because I have a golden share. Even if that share grants nothing, it—

[Rabbi Michael Abraham] grants a prohibition.

[Speaker B] Exactly, it grants a prohibition—that this won’t happen and that won’t happen. It’s exactly the same thing. Okay, and still they call it a golden share.

[Rabbi Michael Abraham] So I’m asking why that is ownership. In what is that ownership?

[Speaker C] In that the other person won’t be. In that I will decide that you will be and he won’t be.

[Rabbi Michael Abraham] I don’t know what you mean by “you will be,” but in this complexity, this connection—

[Speaker C] this one—you can’t decide who will be his master. There’s no ownership of this person.

[Rabbi Michael Abraham] You can decide who won’t be his master. No, you can’t decide who won’t be.

[Speaker C] Yes, I just won’t free him. Every time someone comes I’ll say I’m not freeing him.

[Rabbi Michael Abraham] No, and whether you free him or don’t free him, he cannot be acquired by anyone. It’s unrelated. It doesn’t depend on you. He is now a slave only in his prohibition status. That’s it. You can’t sell him to anyone, you can’t do anything with him. It’s not that—you can’t determine whose he is. He belongs to no one; he belongs to himself. That’s it. You can only free him and turn him into a Jew, or leave him in the status of a slave. The practical difference is whether he is obligated in commandments like a woman or fully obligated in commandments. That’s all.

[Speaker C] But there is a right here: if you decide to free him, you have a right in everything he will do from then on.

[Rabbi Michael Abraham] Fine, the right is a right in the sense that it really borders on the realm of prohibition.

[Speaker C] It’s on that same prohibition side. Exactly, but it isn’t a right in the property sense.

[Rabbi Michael Abraham] So I’m asking why it’s called prohibition ownership.

[Speaker B] Are there views that if you relinquished your leavened food, you still violate the prohibition of “it shall not be seen”? There are views…

[Rabbi Michael Abraham] Leavened food that you relinquished during the holiday? Or before? Before. No, once you relinquished leavened food, that’s it. Nullification—again, there’s a dispute among the medieval authorities about what nullification is. If you nullified it, there’s a dispute whether nullification is relinquishment or something else. But if you relinquished it, in any case you don’t violate “it shall not be seen.” Relinquishment definitely works. The question is whether nullification is relinquishment, or whether one can nullify without relinquishing. Relinquishment definitely works. Relinquishment before the time of prohibition, not just before the holiday. So he asked that second rabbi—I’m getting back to the story—why is it called prohibition ownership? Good question, really, why is it called prohibition ownership? Why is it called prohibition ownership? The claim, really, what I wanted to argue—and he argued it in order to present my position—that is, what I wanted to argue is that I am the owner, but not in the monetary sense. He is completely mine, he belongs to me, but without rights. Ordinary ownership is a metaphysical bond of mine to the thing, whose consequences are the monetary rights I have in the thing. I can use it; others cannot use it without my permission; someone who takes it from me is a thief; someone who damages it is liable, and so on. But all those are consequences of ownership; they are not ownership itself. To say I own the thing means I have a bond—let me now phrase it this way—I have an operative status of ownership over the thing. What does that mean? That there is some kind of, let’s call it, metaphysical entity resting on it, and it expresses the hierarchical relation between me and it. Usually that has legal consequences; in itself, that’s metaphysics. Usually that has legal consequences; as a result I can use it, others cannot use it, all the things ownership gives a person over his property, okay? But it’s possible that a situation will arise where only the noumenon appears for the time being, where only the metaphysical state appears without any proprietary consequence. And that means that I own this relinquished slave exactly as I owned the unrelinquished slave; I fully own him, but without any consequence. Because ownership is a metaphysical state; the legal consequences are results or derivative implications of ownership, not ownership itself. Then the claim is that if I relinquished the slave, I cannot release the bond between me and him without a bill. So what is relinquishment? Relinquishment means I give up all the rights that ownership grants, but I cannot relinquish ownership itself; ownership itself is removed only through a bill. And therefore even when I relinquished the slave, I still have prohibition ownership in him, because the slave’s prohibition status stems from the fact that he is mine—and he is entirely mine. You can’t do anything with him. Not only am I forbidden—I can’t do anything with him; in a moment I’ll clarify the difference—but his prohibition status depends on that, on his being mine, mine in the metaphysical sense, not mine in the sense that I have rights in him that I can exercise. I can’t exercise anything. In other words, the concept of ownership appears here without its legal consequences. But here is a legal consequence: the fact that if someone injures him, or an ox gores him and kills him, then the payment goes to me. Why? Because I am still the owner. Owner in the metaphysical sense, not owner in the sense that I have rights.

[Speaker C] So how not? There is a right—you get the money.

[Rabbi Michael Abraham] No, again, that’s a result—

[Speaker C] I understand that that’s a—

[Rabbi Michael Abraham] result, a result of the fact that I’m the owner. I’m asking: in what am I the owner? It’s like Rabbi Yosei HaGelili—you own his body. No, that’s a result of the fact that I’m the owner. Since I’m the owner, they pay me the fine and the injury compensation. But in what am I the owner? First explain to me in what I’m the owner. The answer is that ownership is a metaphysical concept; it does not depend on rights. Usually rights accompany it, and therefore it’s very confusing, and so we feel that really the collection of rights is the ownership. But one has to be very careful: correlation is not identity. The fact that these things always come together does not mean they are identical, that they are the same thing. Rather, it may be that the concept of ownership casts legal consequences, but the collection of legal consequences is not ownership.

[Speaker B] Why, by the act of relinquishment, do I not also negate the metaphysical concept? I relinquished it—I don’t want the metaphysical concept. I, who received this right to be owner by means of a metaphysical definition, have now relinquished that thing.

[Rabbi Michael Abraham] That’s a question about every kind of property: there are ways to acquire it and ways to get rid of it. Jewish law determines it. It all depends on you, but you have to do it in the way Jewish law established. And Jewish law established that ownership over a slave is removed only with a bill. As a matter of Jewish law, this is a dispute between Rav and Shmuel, and according to Shmuel, if you relinquished him then he is no longer a slave; if you relinquished the slave then he is no longer a slave. But Jewish law rules like Rav, that one who relinquishes his slave does not thereby free him. The meaning is that removal of ownership is effected only by giving a bill. You can give up all your monetary rights, no problem, give them up—they’re your rights, you can waive them. But the concept of ownership you cannot remove until you have given a bill.

[Speaker B] Why is Jewish law like Rav? Isn’t this a monetary matter?

[Rabbi Michael Abraham] Monetary or not? Because there, “he goes free” is about the prohibition side, after all. The fact that you lost the rights is the monetary aspect, and on that both Rav and Shmuel agree. The question is whether the prohibition remnants remain. So it turns out that their argument is specifically about the prohibition aspect. About the prohibition aspect of the ownership. Right, exactly—but about the prohibition aspect of the ownership.

[Speaker B] But why can’t you explain this whole thing without your definition involving the metaphysical and so on? That I’m the owner and I can relinquish; what I can relinquish is what comes to me by virtue of ownership. What I can’t relinquish is when the ownership gives the slave a certain right—the fact that he can’t be freed unless the owner gives him the bill—you can’t free yourself of all your ownership advantages, but you can’t free yourself from something that harms someone else.

[Rabbi Michael Abraham] No problem—you can absolutely explain it that way. But you won’t succeed in explaining why the fine and the injury payment go to him. You’ll succeed in explaining why someone awaiting a bill of emancipation is ownerless and still has the prohibition status of a slave. That can be explained as you said. But that’s why I didn’t stop there. I started from the Talmud saying that if there is an ox that gores this person who is awaiting emancipation, the fine goes to me. Or the injury payment goes to me. If I waived all the rights, why does it go to me? That means I am apparently still the owner, not just in prohibition status. The prohibition status is a derivative result of ownership. My claim, for example, is the same with eating terumah. Someone awaiting a bill of emancipation may eat terumah—or that’s how it is in the Talmud; halakhically he eats terumah. Why? Because eating terumah also is not determined by whether the priest has monetary rights in the slave, but by whether he owns him. Therefore, for example, even a betrothed woman—a woman betrothed to a priest and not yet married to him—eats terumah. She eats terumah, and that’s one of the proofs, by the way, that a wife is not her husband’s property, because they derive it from “the acquisition of his money, he may eat of it,” and then the Talmud says: but this is not “the acquisition of his money.” It doesn’t derive it from “the acquisition of his money,” but from the very fact that there is a bond between them. And that metaphysical bond between them is what creates the right to eat terumah. And my claim is that this is also what creates the person entitled to receive the fine and the injury payment: the owner, not the person who lost. The assessment is how much he lost; the addressee of the payment is the owner. Usually the owner and the one who lost are the same person, but here’s a pathological case where they are two different people: the one who lost is the slave, and the owner is the owner. And here that’s the practical difference. And we see—at least this is how the Pnei Yehoshua explains it—that the payment for injury or the fine goes to the owner even though the assessment is based on the damage, but the payment goes to the owner and not to the one who lost out.

[Speaker B] Wait, can you bring Tosafot? What? Because Tosafot says—what you brought here—why in injury does the owner receive it? He says, “What difference is there between all of him and half of him?”

[Rabbi Michael Abraham] Wait, listen to Tosafot.

[Speaker B] The Pnei Yehoshua—

[Rabbi Michael Abraham] explains Tosafot; I’m explaining the Pnei Yehoshua.

[Speaker B] No, but you could say, simply, like you said: why does he get both half of him and all of him? Because you’re the owner.

[Rabbi Michael Abraham] Because you’re the owner—that’s what I’m saying. No, but someone awaiting a bill of emancipation—in what sense am I the owner?

[Speaker B] Wait—who said that…? What?

[Rabbi Michael Abraham] In what sense am I the owner of someone awaiting a bill of emancipation? But that’s what I’m saying: I want to claim that even over someone awaiting a bill of emancipation I am the owner, and therefore I receive the money. That’s what I said.

[Speaker B] No, because one could have understood it this way: the ox that gored the slave pays thirty shekels. To whom does it pay? We have no idea, simply no idea. Because we have no idea, it pays the owner, because what’s the alternative? To whom should he pay?

[Rabbi Michael Abraham] The slave is dead; there is no alternative.

[Speaker B] Therefore they pay the owner because we have no solution. Injury is something else: “What difference is there between all of him and half of him”? Why in the world?

[Rabbi Michael Abraham] After you explained to me very nicely and sensibly why the fine goes to his master—because there’s no choice, and also because it’s a fine and not compensation—okay, but that very thing should tell you that in injury you should give it to the slave. What is this “what difference is there between all of him and half of him”? What kind of terrifying argument is that? This is exactly what the Pnei Yehoshua argues against Tosafot: what can be learned from a fine to injury? That’s exactly what you explained—it applies to a fine but not at all to injury. And that’s exactly the Pnei Yehoshua’s question. Therefore I want to claim that both the fine and the injury payment go to the master, and that both the fine and the injury payment are not compensation. The assessment is according to how much was lost, but the essence of the payment is not compensation. It is a payment that goes to the master, and not necessarily to the one who lost. Usually, again, I’m saying, it’s the same person, but here for example there is a difference between them. I’ll give an example that may sharpen the point. What I really wanted to show from this passage is that… it’s possible to separate the question of whether I am the owner from the question of whether I have rights. Usually they come together. In other words, usually if I’m the owner, that also gives me rights. Here my claim is that there can be situations in which I am the owner but I have no rights at all. And that’s the interpretation I’m proposing for the concept of operative status. I’m claiming that there is on this slave an operative status of my ownership, but I’m not an owner in the sense that it grants me rights. It grants me no rights at all. But there is on him an operative status of ownership that is mine. Ownership itself, and all the legal ramifications of the fact that there is upon him an operative status of ownership—it is a kind of metaphysical bond between me and him. And it has legal ramifications. In this case there is only the metaphysical aspect without the usual ramifications. From that metaphysical state there are other ramifications, not rights that let me use the slave, but that the injury payment and the fine come to me.

[Speaker B] Why did we call it an operative status and not ownership plus something?

[Rabbi Michael Abraham] Because in what sense am I the owner? Again I’m asking.

[Speaker B] Specific things of the slave—that is, the fine and the injury payment.

[Rabbi Michael Abraham] So again, that’s a consequence. I’m asking: why am I the owner? Once I’m the owner, you can say that the fine and injury payment go to me. But you can’t explain the ownership itself with the fine and injury payment. Explain to me why the fine and injury payment go to me, and then I’ll agree with you that I’m the owner. I’m asking from the outset why it goes to me. You answer: because I’m the owner. And why am I the owner? Because it goes to me, therefore I’m the owner.

[Speaker B] So that’s circular. So what’s your answer?

[Rabbi Michael Abraham] My answer is that there is an operative status of ownership, and because of that there is ownership here. Because what I’m claiming is that the concept of ownership itself is not at all a collection of rights. So there’s no question that if I don’t have the collection of rights, in what sense am I owner? The question is mistaken, because ownership does not mean a collection of rights. That’s just not true. Ownership is what generally generates the rights, but it has independent existence. There can be a situation in which there is ownership but there are no rights.

[Speaker C] Okay? Isn’t this like the field of gravity in a world without objects?

[Rabbi Michael Abraham] Maybe you can say that there too, although here—

[Speaker C] if there’s no object and it falls, then explain that there is gravity because there are objects.

[Rabbi Michael Abraham] No, because here I can be the owner of a slave. Or here I can make him work. Here I can’t; I’m forbidden, he’s not mine. So it’s not exactly the same as a gravitational field. There is a certain similarity. So that is basically the meaning I want to propose for the concept of operative status. I’ll say more about its implications and bring more proofs, but this is the point: the concept of operative status describes the metaphysical bond between me and the thing. And ownership is the legal consequences of the fact that there is an operative status of ownership here. Now even after I have applied the operative status—contrary to what Rabbi Katz suggested earlier—even after I have applied the ownership, there is an operative status of ownership over the slave. Here, for example, I have an operative status of ownership over this slave long after I already applied it. He has long been my slave. He has been with me for years. So according to Rabbi Katz’s rabbi, there would be no point in speaking here about operative status, only about ownership. I claim no—even in this state I have an operative status whose consequences are the rights usually called ownership in legal contexts. But they have a metaphysical basis. And my claim is that the metaphysical basis can appear without the legal consequences. We’ll see this in other contexts too, but here I first want to sharpen the point. Look, there’s another place where apparently one might explain the same thing. The medieval authorities disagree over whether there is ownership over things from which benefit is prohibited. If a certain thing is prohibited for benefit, am I considered its owner or not? The practical difference is whether you can take an etrog on the first day—“it shall be yours,” yours, your own. Okay? Now the question is: if the etrog is prohibited for benefit, an etrog from orlah, can I take it on the first day? Okay? Some of the medieval authorities say no and some say yes. It’s a dispute. According to those authorities who say that I am indeed owner of things prohibited for benefit, one might apparently say—and somebody wanted to tell me this when I brought up this passage—that from there too we have proof. See, there can be ownership without any right of use, just like we saw here with someone awaiting a bill of emancipation. The fact is that I am still defined as owner. But that is not a proof. It isn’t true. In the case of someone awaiting emancipation it is a proof; here it is not a proof. Why not? Because I certainly can use it—what do you mean? I’m just forbidden. This is ritual law, not civil law. The slave who is awaiting a bill of emancipation is not mine; I can’t use him. It’s not that I’m forbidden to use him—he simply isn’t mine, how could I use him? But the etrog of orlah, or any fruit of orlah, I can do whatever I want with it, I can eat it, I can do whatever I want with it—the Torah just forbids me from doing certain things. The Torah can forbid me things even in relation to what is my right, what I own. The Torah also forbids me leavened food on Passover. It didn’t remove the ownership. So I want to say: there the ownership is full ownership, including rights of use. Unlike someone awaiting emancipation—there it’s only a lion crouching on it, as the Talmud’s expression goes. A lion is crouching on it and preventing me from exercising the rights, but those rights are mine. And if I use the slave, the slave could sue me in religious court as a robber. The slave has standing, because I used him even though he isn’t mine. But if I use an etrog of orlah or fruit of orlah, can someone come and complain that I took it and harmed his rights? That it doesn’t belong to me, that it belongs to someone else? No. The religious court may try to stop me because I’m committing a prohibition, but there is no person who can sue me. I’m not acting outside my legal domain, outside my sphere of rights. My rights in the fruit of orlah are complete, absolutely complete, all of it is mine, I can do whatever I want with it. I’m just forbidden from doing things with it. That’s all—it’s a prohibition, not a lack of right. With the slave it’s a lack of right. Again we come back to civil law versus ritual law. Therefore, according to that view which says there is ownership over things prohibited for benefit, there is no proof for what I’m saying here.

[Speaker B] What about leavened food on Passover, where the Torah treated it as being in my possession so that I would violate “it shall not be seen”?

[Speaker B] That implies it’s as if it isn’t in your possession, and because of that the Torah has to put it in your possession.

[Rabbi Michael Abraham] Right, that’s one of the proofs they bring in favor of the view that there is ownership over prohibited things—or that there isn’t ownership over things prohibited for benefit. I don’t remember right now what the others answer to that. Maybe it’s a distinction between possession and ownership. With a pit in the public domain and with leavened food on Passover—two things that Rabbi Yehuda says are two things that the Torah treated as though they were in a person’s possession so that he would violate them.

[Speaker B] Maybe that’s the difference between possession and ownership. Possession isn’t ownership. Possession is like…

[Rabbi Michael Abraham] To violate the prohibition of “it shall not be seen,” ownership alone is not enough; there also has to be some sense of possession or control. That could be. Yes, say my leavened food is on someone else’s property—then the question is what its status is. But by the way, according to the second opinion among the medieval authorities (Rishonim), there actually is proof here. The opinion that says that if something is forbidden for benefit then it is also not mine—not the opinion I brought earlier, which says it is mine, but the opinion that says it is not mine—that one is actually proof in the opposite direction. Because there you see that rights of use are what ownership is, and if I have no rights of use, then there is no ownership. And according to that opinion, there cannot be a case of one whose slave’s emancipation has taken effect but who is still awaiting a bill of release, because if I have no rights of use then I also have no ownership, since ownership means rights of use. Meaning, if you can bring any proof from there at all, it would actually be from the second opinion of the medieval authorities. And then it could be that there is a dispute among the medieval authorities on this issue. But from those medieval authorities who say that there is ownership even though benefit is forbidden, you cannot bring proof to our case, because what I want to argue is a legal claim, not a prohibitory claim: that there can be a situation where I have no rights of use at all—not that I am forbidden to use it, but that I simply have no such rights—and still I am considered the owner. So what I am really claiming is that the slave was mine, so he was under my ownership, he belonged to me, and everything. Now all the rights of use have been removed. What still remains is the metaphysical bond between me and him, because as long as I have not given the bill of release, it remains hanging there in the air; it has not expired. Maybe I’m getting ahead of myself when I talk about a woman. With a woman too they say, “A woman is acquired in three ways and acquires herself”—that’s the Mishnah in the first chapter. So what does “is acquired” mean? Usually there’s a lot of resentment from feminists and people like that, that this is chauvinistic—the husband acquires his wife. So the truth is that the marital framework is not egalitarian, on the one hand; I’m not coming to defend that because it’s true, Jewish law is not egalitarian. But it is not true that the woman is owned by her husband. The medieval authorities already write that a woman is not her husband’s property. We do not need to apologize to feminists; this was written a long time ago. A woman is not her husband’s property, and there are several proofs of this. I’ll give you an example. For instance, the Talmud at the beginning of tractate Kiddushin derives betrothal by money from the acquisition of a field, from the phrase-linkage “taking-taking” from Ephron’s field. They do this through a verbal analogy: “When a man takes a woman,” and “I have given the money for the field; take it from me.” That is “taking-taking,” a verbal analogy from Ephron’s field. Then the Talmud discusses: from where do we learn betrothal through intercourse, and from where do we learn betrothal through a document? Betrothal through a document comes from “and she leaves and becomes”—becoming is compared to leaving; just as divorce is through a document, so too betrothal is through a document. And intercourse is learned from elsewhere. Why do we need to get to that? There is already a comparison between a woman and a field. A field is acquired in exactly those same three ways: by money, by document, and by taking possession. That’s the Mishnah in Chazkat HaBatim: money, document, and possession. Exactly those same three ways exist for a woman: money, document, and intercourse. Intercourse is the use of the woman, which is exactly parallel to taking possession, which is the use of the field. Really the same thing. So it would have been natural that once they made the “taking-taking” analogy from Ephron’s field, which is a verbal analogy, we would learn all three methods of acquisition of a woman from a field. So why do we learn only acquisition by money, and then suddenly—wait—“and from where do we know document?” “and from where do we know intercourse?” Because it is obvious to the Talmud that even the monetary acquisition of a woman is not really learned from a field. And the Ritva writes that there. This is apparently a dispute between him and Tosafot. The Ritva writes that this is just clarification, not a verbal analogy. It is clarification that says that “taking” is done through money. Not that I acquire the woman. I do not acquire the woman. She is not mine. Rather, it says “taking” here and “taking” there, so the bond between husband and wife is effected through money, just as the bond between a person and his field is also effected through money. But there is no similarity between them. I am not acquiring the woman. Because if that were the case, then I would expect document and intercourse to be learned from the same place too. More than that: there is a rule that you do not apply a verbal analogy halfway. If something is learned by verbal analogy, then the verbal analogy teaches everything. And here we see that not only does it not teach everything, but even the things that really are similar are not learned through verbal analogy. They do exist, both in the case of a woman and in the case of a field, the same thing, and even though that exists we still do not learn it through verbal analogy. Fine, if you tell me it is not similar, so we do not learn it—then okay, that law really does not apply to a woman, only to a field. But no, that law also applies to a woman, so it is similar. So then why didn’t we learn the whole thing through the verbal analogy? Because it is obvious to the Talmud that it is not the same thing. A woman is not her husband’s property. That’s in the medieval authorities; several of them write this. And there are other proofs too: a woman cannot be acquired through barter exchange, and from all sorts of reasons you can see that a woman is not her husband’s property. But even with a woman they call it acquisition: “A woman is acquired in three ways,” “and acquires herself.” Why is this called acquisition? I think the point is—and again, this is a linguistic distortion that results from correlation—we understand acquisition to mean becoming an owner, but that is not true. Acquisition means an act that creates a legal effect. That is acquisition. It does not have to be a hierarchical relation of owner and property. For example, I perform an act of acquisition to reinforce a matter; I appoint an agent, I perform some act of acquisition in order to apply the agency. It is not required according to Jewish law, but say, yes, they lift a pen like this, as they often do in the sale of leavened food, right? What are they transferring there? There they are empowering the rabbi to sell. They are not transferring any object there.

[Speaker B] They’re not transferring the leavened food to him.

[Rabbi Michael Abraham] What? He is empowered to sell, or I appoint him as my agent to sell. The leavened food is not his. He does not need that trouble too, that my leavened food should also put him under the prohibition of “it shall not be seen.” So why do I perform an act of acquisition? In order to strengthen the fact that he is my agent. So an act of acquisition—and this is true throughout Jewish law—very often an act of acquisition is done in order to effect a contract. It is not because you are now becoming my slave or belonging to me or anything like that. An act of acquisition means creating a legal effect. That is what it is called. It’s just that in most cases when we discuss creating a legal effect, we are discussing ownership. We are used to acquisition meaning the creation of ownership, but that is not true. Acquisition means the creation of a legal effect, and ownership is only one of the legal effects. The same applies to the legal status of a married woman, the marital bond. The same with many, many other things: there is an act of acquisition that we perform in order to bring about all kinds of things. Therefore it is wrong to understand the concept of acquisition as a synonym for ownership. Acquisition is the act that applies ownership. But acquisition can also apply other legal effects; it can also apply other legal results, not only ownership. And because it is so ingrained in us that acquisition applies ownership, it has stuck, so that every time we talk about acquisition it means we become owners of something. When we “acquire” the woman, what that means is that we create a bond of married status between us and her, or between her and us. And does that mean she is owned by me? No. Is that ownership?

[Speaker C] No. Husband—woman and her husband—or…

[Rabbi Michael Abraham] Her husband is the one who had relations with her.

[Speaker C] It’s not from the word ownership?

[Rabbi Michael Abraham] No, the one who had relations with her. Meaning, it is an action. This was on the first day, in the laws of acquisition, that there is—

[Speaker B] Ownership, there is rental, and there is also a right of use.

[Rabbi Michael Abraham] No, but yes—but there that is still all different types of ownership. So I own the produce and not the principal.

[Speaker B] No, acquisition is a right of passage.

[Rabbi Michael Abraham] Doesn’t matter—a right of passage is also a right. I created proprietary rights, but it is still a legal right, usually a proprietary right—ownership over a right of passage. Now when you acquired the right of passage without ownership of the principal itself, then you acquired something that usually belongs to ownership, so you acquired only part of it and not all of it. But it is still—it is still that. I am talking about an act of acquisition whose purpose is only to show clear intent. That is the role of an act of acquisition in Jewish law. The role of an act of acquisition in Jewish law is to do some act that shows that I have fully resolved in my mind. Fully resolved about what? Whatever you want. I can do an act of acquisition in order to separate terumah. And that applies the legal status of terumah to the item. I have not yet transferred the terumah to anyone, but I performed an act—an act that created a legal result here, that created a legal effect. Okay? An act of acquisition is an act that creates a legal effect. What legal effect? It could be ownership, it could be the status of a married woman, the status of betrothal, all kinds of things. All kinds of legal effects. Agent, partner, I don’t know, all sorts of things like that, a contract, all kinds of things. Okay. Therefore the claim is that both the concept of acquisition and the concept of legal effect are actually connected to the metaphysical infrastructure from which the legal consequences are usually derived, but it can also appear detached from the legal consequences. That is the claim. And one of the consequences here is one who is awaiting a bill of release, and we will see other consequences too. In the case of one who is awaiting a bill of release, the fine and compensation for injury go to his master, even though his master is an owner only in the metaphysical sense. That is also the answer to why this is called an “acquisition of prohibition,” the question he asked there in the yeshiva. Why is it called an acquisition of prohibition? Because it really does begin with acquisition. The bond between me and the slave remains intact as it was when he was my property. It is just that now this no longer gives me any of the rights, but it leaves the prohibitory status, because the prohibitory status begins from the acquisition of ownership that I had in the slave. In that case it is also an ownership acquisition, not just any acquisition. Okay? Because it began with ownership; only afterward did I waive all the rights. But the acquisition is an ownership acquisition. Okay? And the acquisition of prohibition is a derivative of the fact that I am the owner of the slave, that I have the legal effect of ownership over the slave, but without any rights.

[Speaker B] If the slave causes damage, who has to pay for it?

[Rabbi Michael Abraham] As for a slave who causes damage—even with a slave who is completely mine, I do not have to pay. Yes, with a slave and a woman, their damage is problematic.

[Speaker B] Yes, that’s because of an enactment, so that he won’t go—

[Rabbi Michael Abraham] And take revenge.

[Speaker B] On his master for something.

[Rabbi Michael Abraham] I think that is the basic law, actually. It seems to me.

[Speaker B] As an indication, because if it’s damaging property, you should have to pay.

[Rabbi Michael Abraham] Yes, but he is mentally competent. So what if he causes damage? He is mentally competent. A mentally competent person can do what he wants. I think that is only the indication, what the Talmud says there at the beginning of Bava Kamma, that if he causes damage he can drain me of all my property—as an indication that we are dealing here with a mentally competent person. It seems to me this is Torah law. I’ll look again, to be more certain, but it seems to me this is Torah law, not an enactment.