Halakha and Law – Lecture 2

This is an English translation (via GPT-5.4). Read the original Hebrew version.

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[0:00] The connection to Rivka Lubitch’s article on kiddushin
[0:00] Kiddushin as acquisition — Rivka Lubitch’s article
[1:22] Writing a response article and the connection to the concept of acquisition
[3:03] What an act of acquisition is and its halakhic significance
[3:03] Defining an act of acquisition and its halakhic effect
[4:30] The legal status of marriage and the need for a tangible act
[5:46] Kiddushin by document — who writes it and why?
[8:41] The parallel between buying a field and kiddushin
[11:09] The metaphysical meaning of ownership and attachment
[11:24] Ownership of a slave whose bill of emancipation is delayed — prohibition-acquisition
[12:23] The marital bond — a bond different from acquisition
[26:31] Defining property damage and the difference in damaging property
[27:32] Proving negligence and shifting the burden of proof
[28:48] Fire damages on the Sabbath and lighting candles
[34:57] The concept of a metaphysical bond to ownership
[37:03] Splitting testimony in cases of interest-bearing loans
[39:44] The principle that “a person does not render himself wicked” in testimony
[47:10] The mechanism of stipulation in the Talmud and its implications
[49:15] The passage about a woman being both a married woman and divorced
[53:47] The contradiction in non-essential characteristics
[??:??] The resting of one’s animal — the prohibition on its labor on the Sabbath (NONE)
[??:??] The metaphysical connection between owner and property — the body and money (NONE)

Summary

General Overview

The text rejects the claim that kiddushin is a monetary acquisition in which the husband “buys” the wife, and argues that the term acquisition in Jewish law primarily means an act that creates a halakhic legal status and not necessarily ownership of property. It establishes that marriage is a separate halakhic legal status distinct from ownership, and that the halakhic inequality between man and woman does not stem from the woman being the husband’s property. Therefore, abolishing kiddushin does not solve the problem even if one wants to improve symmetry. Later he presents a conception of ownership as a metaphysical bond between a person and his property, from which rights and obligations derive, and brings examples from the resting of one’s animal on the Sabbath, damages caused by property, and the laws of testimony. Finally, he opens the topic of stipulations in divorce and kiddushin that produce an apparent “both-and” state, and ends with a puzzle.

Kiddushin, Rivka Lubitch, and the proposal for life without kiddushin

The speaker was asked to write a response article to an article by Rivka Lubitch, the wife of Rabbi Ronen Lubitch, which argues that presenting kiddushin as the husband’s acquisition of his wife is incorrect, and that the conclusion is that one should live today without kiddushin. He says that even if she had criticism of inequality or harm to femininity, the conclusion of abolishing kiddushin does not follow. He states that, in his view, her arguments are incorrect. He describes that she proposes three alternative models, including Noahide marriage, concubinage, and another model attributed to Feldman, and in practice they all converge on a proposal for life without kiddushin while claiming they have halakhic foundations.

The meaning of “acquisition” as an act that creates a legal status, not as monetary ownership

The speaker argues that many people interpret “acquisition” incorrectly, as though it always means buying property, whereas in Jewish law an act of acquisition is an act that creates a halakhic legal status and is meant to express full intent, because speech or thought alone do not produce halakhic results. He says acquisition can serve to reinforce something (“an acquisition to strengthen the matter”), and to create various legal statuses such as partnership, contract, agency, and even setting aside terumah, in the sense of applying the legal status of terumah to the produce and not necessarily transferring it to a priest. He states that the legal status of marriage and of being a married woman are halakhic legal statuses, not statuses of ownership, but they are created by an act of acquisition such as giving a ring / money worth a perutah or by intercourse. Therefore the term “acquisition” in this context is misleading and does not prove that the husband has monetary ownership over the woman.

“When a man takes” and the document of kiddushin as evidence against understanding kiddushin as monetary purchase

The speaker deals with a common proof that the husband is the buyer because the Torah says “when a man takes” and not “when a woman is taken,” and brings the example of the kiddushin document, which the Talmud says is written by the husband. He points out that in a bill of sale, the document is written by the seller, so if kiddushin were a monetary purchase of the woman, one would expect the woman or her father to write a document to the husband. But in fact the husband writes it. He concludes that the Torah wants the act of kiddushin to be done by the husband even where “acquisition-like” considerations would seemingly suggest the opposite, and therefore one cannot prove from the asymmetry of who performs the act that the essence of the matter is monetary ownership of the woman.

The verbal analogy of “taking-taking” from Ephron’s field and the claim that there is no similarity between a woman and a field

The speaker explains that the Talmud at the beginning of tractate Kiddushin derives kiddushin by money through the verbal analogy “taking-taking” from Ephron’s field, which at first glance seems to compare acquiring a woman to acquiring a field. He emphasizes that although tractate Bava Batra teaches that a field is acquired by money, by document, and by possession, the Talmud does not derive from this all the methods of kiddushin, but instead looks for a separate source for intercourse (“and has relations with her”) and a separate source for document through the analogy of becoming married to going out (that is, kiddushin from divorce). He argues that it is clear to the Talmud and to the medieval authorities (Rishonim) that one cannot learn woman from field, and he cites the Ritva as saying that the “taking-taking” here is a mere clarification of the meaning of the word “taking” as involving transfer of money, not a verbal analogy that creates an essential resemblance. Therefore the transfer of money does not teach that the husband “buys” the woman as property.

Ownership as a metaphysical bond rather than a bundle of rights, and the marital bond as a different kind of bond

The speaker returns to the claim that the status of ownership in Jewish law is not merely a bundle of rights but the creation of a real, metaphysical state of connection between a person and his property, with the rights being consequences of that legal status of ownership. He brings the example of a slave whose bill of emancipation is delayed, where there are no monetary rights but ownership still exists in the form called “prohibition-acquisition,” and interprets this as the bond existing without all its usual consequences. He states that the marital bond is a bond between two people that is not ownership, even if it has halakhic consequences such as mutual obligations, and emphasizes that the asymmetry in Jewish law does exist, but its basis is not the purchase of the woman as property.

The ketubah, contract, and her earnings as derivatives and not as ownership-acquisition

The speaker says that a woman’s earnings are not acquired by the husband through kiddushin, but result from the ketubah arrangement and the mutual commitments between the parties. He explains that a contract can obligate two sides toward each other without ownership, and compares it to hiring a worker, where the worker’s output goes to the employer by force of agreement and not because the person himself was bought. He distinguishes between ownership contracts and other kinds of contracts, and argues that the mutual obligation in the ketubah is a contractual framework, not proof that the husband owns the woman.

Halakhic inequality, mistaken diagnosis, and proposals for improvement without abolishing kiddushin

The speaker argues that even if one accepts that there is a problem of inequality, abolishing kiddushin will not change the root of the problem because the diagnosis that treats kiddushin as a property-acquisition is mistaken. He suggests that anyone who wants to improve the situation can think about stipulations, annulment of kiddushin in the case of a get-refuser, and other proposals aimed at reducing the asymmetry. He raises the broader question whether the asymmetry is a binding reading of the Torah’s will or a rabbinic reading shaped by the world of the Sages, such that in another world the Torah might need to be read differently, but he isolates that question from the claim that the woman is property.

The resting of one’s animal, “uprooted verses,” and the gap between an explicit verse and Jewish law

The speaker brings the Sabbath discussion in the chapter “One Who Was Overtaken by Darkness,” where it is said that it does not help to place a burden on a donkey because there is a prohibition of one’s animal resting on the Sabbath, derived from the verse “so that your ox may rest.” He notes that the verse also includes “your son and your daughter,” but the Sages do not develop from it a law of “the resting of your son and daughter.” He cites the Rashba as suggesting that there is such a law, but the medieval authorities do not accept this, and in the chapter “All Sacred Writings” the discussion shifts to the general question whether a court is commanded to separate a minor from transgressions. He describes the idea of “uprooted verses” as explicit biblical verses that are not translated into Jewish law if they are not anchored in the words of the Sages, and raises a question about this phenomenon and about the possibility that the Sages were acting out of transmitted tradition rather than free invention, while arguing with his interlocutor who says this does not solve the difficulties posed by dialectics and interpretations.

Leading an animal versus the resting of one’s animal, and the animal as a person’s periphery

The speaker cites a dispute in the interpretation of the resting of one’s animal, and brings the Ritva, who distinguishes between leading an animal while it performs labor and the prohibition of one’s animal resting, where the very desecration of the Sabbath by the animal is attributed to the owner. He argues that this makes sense if property is a person’s periphery, similar to the body as a periphery of the “self,” whose actions are still considered the person’s actions. Therefore, even when the animal “does” certain labor, the act is related to the owner on a weaker level. He combines this with the example of a person who causes damage and is liable even under coercion, to show that liability can arise from the belonging of the periphery and not only from mental blameworthiness.

Damages caused by property: liability from guarding versus liability from the bond itself

The speaker presents an inquiry among later authorities (Acharonim) whether liability for damages caused by one’s property comes from negligence in guarding it or from the mere fact that a person’s property caused damage. He explains a practical difference regarding burden of proof: if the ground of liability is negligence, the injured party must prove negligence; but if the damage itself creates liability, then the one whose property caused the damage must prove that he guarded it properly in order to be exempt. He suggests that the model that imposes liability from the damage itself relies on that same conception of periphery and metaphysical bond, while exemption through proper guarding reflects the greater distance of property from the person compared to the body. He notes that the Rogatchover in Bava Kamma 17 links this to the resting of one’s animal as a conceptual parallel.

Splitting testimony, “a person does not render himself wicked,” and extending the periphery to his ox and his wife

The speaker presents the law of splitting testimony in tractate Sanhedrin in a case of testimony about an interest-bearing loan, where the witness testifies both about himself as borrower and about his fellow as lender, and Jewish law accepts the part of the testimony concerning the other person but not the self-incriminating part, because a person does not render himself wicked. He emphasizes that this is a problem of admissibility and not necessarily of credibility, and criticizes the modern legal use that cites the principle in the context of the Miranda ruling with a mistaken understanding of the halakhic reason. He cites the Raavad’s distinction that testimony about oneself is not “invalid testimony” but not testimony at all, because the person is a litigant. Therefore this is not a case of “testimony partially invalidated is wholly invalidated.” He explains that the Talmud’s initial thought to apply splitting even to his ox and his wife fits with this, because his ox is his property and part of his periphery, while his wife is described with the phrase “his wife is like his own body,” giving the bond a character that is not like ordinary kinship but a different kind of closeness. He also weaves in an incidental discussion of women’s testimony through Terumat HaDeshen and Noda B’Yehuda regarding a murder case in a women’s ritual bath, arguing that when male testimony is impossible, a woman’s testimony is accepted so that no practical loophole is created whereby a murderer cannot be punished.

Stipulations in kiddushin and divorce, and the contradictory state of “both married and divorced”

The speaker opens the discussion of stipulations, distinguishing between a stipulation of “if,” where the legal status takes effect only upon fulfillment of the condition, and “from now” / “on condition that,” where the legal status takes effect now on condition that something will happen in the future. He notes that in such cases the Talmud asks, “what is her status during those days,” until the condition is clarified, and cites the view of Rabbi Shimon Shkop in Kuntres HaTna’im, who holds that there is an essential mixture in which a woman under a stipulation in divorce is both a married woman and divorced, and in kiddushin is both a married woman and unmarried. He brings support from Maimonides through the Maggid Mishneh in the case of a get “from now if I do not return within twelve months,” where the husband dies during the period, and despite our knowing that he will not return, she still must wait until the twelve months pass before remarrying. He explains that the problem is not only lack of knowledge but a complex halakhic state that forms until the time passes. He concludes with students challenging the logic of the contradiction of “both divorced and a married woman,” and leaves it as a puzzle for next time.

Full Transcript

[Rabbi Michael Abraham] Last time I started talking a bit about the meaning of the concept of ownership, and it’s interesting because just yesterday, completely independently, someone sent me an article and asked me to write a response article to an article written by Rivka Lubitch, the wife of Rabbi Ronen Lubitch, about the problem that kiddushin is basically the husband’s acquisition of his wife.

[Speaker B] So that’s not really unrelated. What? There’s always a connection. Yeah.

[Rabbi Michael Abraham] Fine, that’s already an old argument between us.

[Speaker B] Right, but you see, here’s another one.

[Rabbi Michael Abraham] So listen. The claim is that kiddushin is basically the husband buying his wife, and despite all the usual apologetics — among them she also brought things I wrote — she argues that this isn’t true, tries to show it from various sources, and reaches the conclusion that today we need to live without kiddushin. So they asked me whether I’d be willing to write a response article, and by chance, or not by chance, I had just gotten into this issue of what exactly acquisition is, which is our topic.

[Speaker B] So you had no choice but to say yes.

[Rabbi Michael Abraham] The claim? No, that I should write a response article.

[Speaker B] Yes. Not because you came from the inside.

[Rabbi Michael Abraham] No, I would have responded even if she hadn’t mentioned my views. I think what she writes there is a major mistake.

[Speaker C] Even if she’s right, why does that mean we have to live without kiddushin? What?

[Rabbi Michael Abraham] Even if it’s unequal, or all kinds of things like that — she says it harms femininity and women don’t want kiddushin, all kinds of arguments — in my opinion none of them are correct. But even if she were completely right, and even if it is unequal, why does that mean we have to live without kiddushin? Because equality is a fundamental value, so she thinks—

[Speaker C] —that it shouldn’t be done that way.

[Rabbi Michael Abraham] What’s the alternative? To live… She has a proposal there of three models: one is Noahide marriage, one is concubinage, and what else? And some other Feldman thing, some kind of exclusivity without… I already don’t remember what it’s called. They’re all the same thing — just living without kiddushin. She gives them three different names. Fine, she claims these are mechanisms that exist, or foundations that exist, in Jewish law. You can argue about that too; in my opinion those proposals are not entirely accurate. But the foundational question that’s relevant here is whether she’s right in her interpretation of the concept of kiddushin. My basic claim — and maybe I’ll say it in a word before I have to go to a meeting — why this connects to us, is that what I’m claiming, following what we talked about last time and what we’ll continue today, is that the concept of acquisition is interpreted incorrectly by a lot of people. In terms of Jewish law, when you perform an act of acquisition, what that means is that you perform an act that creates a halakhic legal status. Not necessarily buying property or creating ownership over something. When you perform an act of acquisition, it can be what’s called “an acquisition to strengthen the matter,” meaning to reinforce something. All it’s really saying is that you have full intent, and once you have full intent, then the legal or juridical result is valid. Okay? There can be acquisition for partnership, for a contract, for agency, I don’t know what — lots of things. You could even say that setting aside terumah is basically some sort of act of acquisition — not in the sense of transferring it to a priest, but in the sense of applying the legal status of terumah to the produce or grain. Therefore, in the halakhic context, what’s called an act of acquisition is an act whose purpose is to create a halakhic legal status. One of those legal statuses is ownership — that is, becoming the owner of some property. But because that may be the most common of the legal statuses people talk about, people always associate an act of acquisition with buying something and becoming its owner. But that’s not true. To perform an act of acquisition means to perform an act, because speech or thought alone don’t work — you can’t create halakhic results by speech or thought alone, you need an act. That’s called an act of acquisition. Now, the legal status of being a married woman, or the legal status of marriage, is also a halakhic legal status, and it’s not a status of ownership — there’s a lot of evidence for that. And therefore that too is created by an act of acquisition. Meaning, you can’t do it by speech alone; you need to give a ring, or money worth a perutah, or through intercourse — in other words, you have to do some kind of act. And that act creates the legal status of marriage, the legal status of being a married woman. So it’s called an act of acquisition, but that has absolutely nothing to do with the husband being the owner — owner in the monetary sense — of his wife. So this terminology is misleading. And this… what?

[Speaker C] Why is the husband the one who does the act?

[Rabbi Michael Abraham] The Torah says the husband does the act. I brought a proof there, unrelated to whether he acquires her — I brought an example, a proof against that conception. This is one of the proofs people always bring, that the fact that only the husband has to do the act — it says “when a man takes,” not “when a woman is taken.” But if so, after all, the Talmud says there — the Talmud says that a kiddushin document is written by the husband. It says “when a man takes.” Now, in a bill of sale it’s written by the seller. So kiddushin by document is one of the three methods of kiddushin, right? If the reason the husband does it is really because he’s the one who acquires the woman, and this is an acquisition act, then I would expect that in kiddushin by document, the woman would write a document to the husband, or the woman’s father if she’s a minor, whatever — he would write a document to the husband. And the Talmud says explicitly that the kiddushin document is written by the husband. Why? Because the Torah is interested in the act of kiddushin being done by the husband. That has nothing at all to do with the question of whether he acquires the woman or not. Because even where the acquisition considerations would specifically lead to the conclusion that the woman should perform this act, even there the Torah says that the husband should do the act and not the woman. So you see from that itself that it has nothing to do with the question whether he acquires her or not. That also doesn’t prove that he doesn’t; it only proves that you can’t infer from there that he does. That’s the proof I brought against the claim that this understanding is correct.

[Speaker D] To acquire wisdom, to acquire — doesn’t that mean, sort of, that you create some belonging to yourself? Not in the sense of ownership.

[Rabbi Michael Abraham] Right, exactly what I’m saying. You create some kind of connection to the thing, or even independently, you bring about something in the thing. And you do that through an act. That act is called an act of acquisition. When you sell your Passover leavened food through the rabbi, he lifts some pen or whatever, some object. What are you transferring there? You’re appointing him as an agent to sell your leavened food for you.

[Speaker D] But with a wife too there are lots of things — her earnings go to him and all kinds of…

[Rabbi Michael Abraham] Those are consequences, but they’re not related.

[Speaker D] I agree they’re consequences, but with everything you own there are also consequences.

[Rabbi Michael Abraham] It’s not connected to kiddushin. He doesn’t acquire her earnings through kiddushin; that’s in the ketubah. Kiddushin doesn’t do that. There’s an agreement, the ketubah agreement, in which there are mutual obligations, the woman to the husband and the husband to the woman. By the way, that too is an agreement and not acquisition. An agreement has two sides. When you hire a worker, did you buy him? You didn’t buy him, but the product of his labor goes to you. Why? Because that’s what you agreed with him.

[Speaker D] Can he sell himself? Like if you buy a Canaanite slave?

[Rabbi Michael Abraham] No, but that’s not this. This is a contract. A contract has two sides. But it’s not ownership. This contract is a contract with two sides: I’m obligated to the woman in certain things and she’s obligated to me in certain things. It’s a contract between two parties. It’s not because I own her. Obviously it obligates her in certain things, just as it obligates me in certain things. A contract can obligate two sides to one another not because I own the other as my property, but because we agreed. We have an agreement between us, and the agreement is binding. You make an agreement in order to get things from each other — that’s the essence of agreements.

[Speaker D] If you buy land from me and made a contract with me, isn’t it by force of the contract that you’re the owner of the land?

[Rabbi Michael Abraham] No, no. That’s an ownership contract. There are ownership contracts too, obviously. But there are other contracts as well. Yes. I’m speaking precisely about the point that there are acts of acquisition that create ownership — I’m not claiming there’s no ownership in the Torah. I’m only saying that an act of acquisition doesn’t always create ownership; sometimes it does something else. Now, in the context of marriage, one of the proofs — well, I’m basically saying here almost everything I intended to say — but one of the proofs is that the Talmud at the beginning of tractate Kiddushin learns “taking-taking” from Ephron’s field, that a woman is acquired by money, by document, and by intercourse. How do we know by money? We learn “taking-taking” from Ephron’s field. Just as with Ephron’s field I gave money and the field was acquired, so too in kiddushin, “when a man takes a woman” — “taking-taking” teaches that this is done with money. That’s a verbal analogy. On the face of it, that’s really a proof that acquiring a woman is like acquiring a field. But immediately afterward the Talmud asks: how do we know intercourse and document with regard to a woman? Now, you have to know that the Mishnah in tractate Bava Batra says that a field is acquired by money, by document, and by possession. That’s exactly parallel to a woman. Possession there means, say, use of the field — that’s called possession. If I had to define possession in the context of a woman, it would be intercourse, right? So what would be more natural than to say: what’s the problem? There’s a verbal analogy between woman and field, so all the methods of acquisition of a field should apply to a woman. We’ve already found the source for all the methods of acquisition of a woman. But no. The Talmud learns “taking-taking” from Ephron’s field that kiddushin is by money. Then it searches for intercourse, and says: “when a man takes a woman and has relations with her” — that’s explicit in the Torah. And document is derived by comparing becoming married to going out, so kiddushin is learned from divorce. In other words, each of these things has a different source. What does that mean? It means it was obvious to the Talmud — and more than that, the medieval authorities don’t even ask why the Talmud doesn’t do that. And I looked for it, because it would have been expected — why don’t the medieval authorities comment on it? They don’t even ask why, because it’s obvious to them that you can’t learn woman from field. It’s irrelevant. As the Ritva writes, “taking-taking” here isn’t really a verbal analogy; it’s a clarification. It’s a clarification that the meaning of the word “taking” is transfer of money. But what does the transfer of money accomplish? Does it mean I’m buying something with it? Obviously not. There is no similarity at all between a woman and a field. Therefore, the fact that we learned money in the case of a woman from money in the case of a field has nothing to do with the fact that for intercourse and document you need independent sources — you don’t learn those from field too, because it’s not the same act. If it were the same act, then half the opening pages of tractate Kiddushin would be unnecessary. We’d immediately know that whatever applies to a field applies to a woman, and that would be it. What’s the problem? Why do I need to search for all kinds of sources there and go back and forth over where this is learned from and where that is learned from? Why does this connect to us? As I said last lesson and as we’ll continue today, the act of ownership, or the status of ownership, the meaning of ownership, is not merely a collection of rights. The meaning of ownership is basically to create some kind of real metaphysical state, whose rights are consequences of it. Meaning, if I own something — we talked about a slave whose bill of emancipation is delayed — then if I own that slave, that means I have all sorts of rights in him: others may not use him without my permission, he is my property. Okay. But the fact that he is my property is not merely the collection of rights; there is some state here, some bond between me and him, some metaphysical state, a legal status of ownership that I have over him, and the rights are a result of the fact that I have the legal status of ownership over him. Ownership is not the bundle of rights. In other words, there is metaphysics at the root of the legal aspects. As opposed to a regular legal conception that says that being the owner of something basically means I have a set of rights in the thing, and others may not use it without my permission. That’s what it means to be the owner. In terms of Jewish law, those are consequences of the fact that I’m the owner, but that is not ownership itself. Ownership is the bond between me and it. Now obviously there are other bonds too, not only bonds of ownership, and these various bonds have halakhic consequences. The marital bond is also a bond between two people, but it is not a bond of ownership. It’s a bond in which we’ve formed some kind of marital unit, whatever, but it’s not ownership. And of course it has halakhic consequences, among them mutual obligations — that’s true.

[Speaker C] Okay, but it’s not a symmetrical bond, because the husband can marry—

[Rabbi Michael Abraham] —a woman. I didn’t say it was symmetrical.

[Speaker C] No, I mean that the husband can have several wives, but a woman can’t have several husbands metaphysically. Of course, obviously.

[Rabbi Michael Abraham] But I never said it was symmetrical in any sense. I’m saying the asymmetry between men and women certainly exists in Jewish law; there’s no argument about that. The question is whether the basis of the asymmetry is that the act of kiddushin means buying the woman as property. That’s not true. Now the practical question is what to do. Meaning, if you abolish kiddushin, will that change anything? It won’t change anything. Because the diagnosis is wrong — kiddushin is not the root of the problem. Even assuming I accept that this situation is problematic, still kiddushin is not the root of the problem. So now you have to think what to do about it. Fine, so maybe you can think about stipulations, maybe you can think about annulling the kiddushin of a get-refuser, whatever — there are various proposals for what to do in order to improve the symmetry, the equality between husband and wife. There are those who say there’s no need to improve it; I do think that if it’s possible, it’s worth improving. But that has nothing to do with the question whether kiddushin means buying her. It absolutely does not mean buying her.

[Speaker C] But maybe it expresses some kind of attitude that this is how the relationship between man and woman is supposed to be.

[Rabbi Michael Abraham] That’s why I’m saying: there are those who would say that the inequality doesn’t need to be improved, because if the Torah said it, then apparently that’s how things really should be. That’s a big question, because it wasn’t the Torah that said it — the Sages said it, and they also derived it from the Torah. Now the question is whether this was taken from their own world, and therefore perhaps in another world the Torah should be read differently, or whether this is really the correct decoding of the Torah’s will, and therefore always binding. That’s a different discussion. But I’m saying: the question of inequality is a different question, and that can be discussed. But this diagnosis, that the foundation of the matter is that the woman is the husband’s property, is simply not true. I’ll bring — okay, now I’m returning to our discussion — I’ll bring a few examples for my claim that there is some metaphysical bond between a person and his property, and that the rights he has in the property are only consequences of that bond; they are not ownership itself, but consequences of the fact that ownership exists. One example I already brought: a slave whose bill of emancipation is delayed. I have no rights in the slave at all, I’ve gotten rid of him in the monetary sense, and still I am considered his owner. That’s called a prohibition-acquisition. We talked about that. And basically my claim is that prohibition-acquisition means the existence of the metaphysical state of ownership without the consequences — without the rights, without the legal consequences. Okay, and of course that has other implications, but not the rights that I can make use of — for example, that if someone injures him the payment goes to his master. We talked about that last time. Now I’ll bring a few more implications. One implication is the resting of one’s animal on the Sabbath. There is a Talmudic discussion at the beginning of the chapter “One Who Was Overtaken by Darkness” in tractate Shabbat. The Talmud discusses what happens if someone gets stuck outside the city and the Sabbath is beginning, and he has things he’s carrying with him. What should he do? Can he put it on a donkey, give it to a non-Jew, things of that sort. Among other things, the Talmud says that putting it on the donkey doesn’t help because he violates the prohibition of his animal resting on the Sabbath. Meaning, what a person is forbidden to do, the animal is also forbidden to do — my animal. Meaning, if my animal carries from one domain to another, then I violated a prohibition. Not the prohibition of labor itself, not the kind that incurs stoning, but the prohibition of the resting of one’s animal. Parenthetically: “so that your ox may rest,” etc. — from there they derive the resting of one’s animal. And it also says “and your son and your daughter” in that same verse. Nobody talks about the resting of your son and your daughter. It doesn’t appear anywhere. There’s a Rashba there, in that very place in the chapter “One Who Was Overtaken by Darkness,” and the Rashba really claims that there is the same thing, because it’s in the same verse. But the Sages derive nothing from it. More than that: at the beginning of the chapter “All Sacred Writings,” chapter 16 in Shabbat, the Talmud says there that if a minor comes to extinguish a fire, you don’t tell him “extinguish” or “don’t extinguish,” because his resting is upon you. So you may not tell him to extinguish, because then you’re sending him, but you also don’t need to stop him if he comes on his own to extinguish. Right? So it would have been natural to say that this is the resting of one’s child. But the Talmud immediately begins discussing whether a person is required to prevent his child from transgressions.

[Speaker B] “Your son and your daughter” — is that above bar mitzvah age?

[Rabbi Michael Abraham] Minors. Like an animal — they don’t need independent understanding. We’re not talking about sovereign adults. Adults themselves are obligated to rest; that has nothing to do with me. So the Talmud there discusses whether, if a minor eats forbidden carcasses, the court is commanded to separate him from it — which in more general terms is whether when a minor commits a transgression, we’re supposed to prevent him. By the way, halakhically, no — you don’t have to prevent him. You may not feed him a transgression with your own hands, but you don’t have to stop him if he commits the transgression on his own. Now, the Rashba asks about this — actually there’s also Tosafot there about the prohibition of directly causing him to transgress, whatever, various questions. The Rashba asks: what is this whole discussion? It says “so that your ox may rest, and your son and your daughter.” The child is obligated to rest; this has nothing to do with the general question whether I have to prevent my children from transgressions, or children in general from transgressions. By the way, it’s not specifically my children but children in general. And it’s not by virtue of education, because education is a rabbinic commandment. Here we’re talking about a Torah-level law. So he says: what does all this discussion have to do with anything? On the Sabbath there is a special law: “so that your son and your daughter may rest.” It’s unrelated. Even if when he eats forbidden food I don’t need to prevent him, if he desecrates the Sabbath then I do, because it’s in the verse.

[Speaker C] What? It doesn’t say — it doesn’t say about the resting of one’s child.

[Rabbi Michael Abraham] But regarding the animal they certainly do derive an obligation from it. The resting of one’s animal is indeed a prohibition.

[Speaker C] It’s counted among the commandments. Yes.

[Rabbi Michael Abraham] The resting of one’s animal is a Torah prohibition.

[Speaker C] Where’s the prohibition here? The word “forbidden”? Or something like that.

[Rabbi Michael Abraham] I don’t remember. In any case it doesn’t matter, because you’re not punished for it. It’s a lighter prohibition, not the prohibition of labor itself. So maybe really it’s just neglect of a positive commandment, but I think it’s actually a prohibition, it seems to me. Maybe it’s only neglect of a positive commandment. Need to check again. In any case, there is a Torah prohibition. So the Rashba says: what do you mean? Here we’re dealing with the laws of the Sabbath, and in the laws of the Sabbath there is an obligation of the resting of your son and your daughter. But the medieval authorities don’t agree with any of that. And once, in an article in Midah Tovah, I wrote about this in the framework of “uprooted verses.” What are uprooted verses? Explicit verses in the Torah from which no one derives any Jewish law, even though they explicitly state a law. These aren’t interpretive readings or something — they say things explicitly. And no one brings them into Jewish law, and they don’t appear in the Talmud or in the halakhic decisors, so nobody cares. Why, really? I have no idea.

[Speaker B] I don’t know.

[Rabbi Michael Abraham] It’s a phenomenon I wonder about; I don’t know. But the fact is that even those who know it — the Rashba already raises this possibility, and I assume other medieval authorities knew this verse too, and certainly the Talmud did. Nothing. There’s an explicit verse and nobody does anything with it. Meaning, it’s not translated into Jewish law unless the Talmud does something with it, unless the Sages do something with it. If not, then I don’t care that it’s written in the Torah. And that’s strange. There are uprooted verses — that’s what I called them. A particular verse says something, but it doesn’t appear in Jewish law because a verse is not Talmud. And that strengthens the claim.

[Speaker D] That they only did what they received and passed on to one another, what didn’t get lost, or—

[Rabbi Michael Abraham] That it all supports and doesn’t create, you mean?

[Speaker D] That’s what keeps running through my head every time we…

[Rabbi Michael Abraham] That doesn’t help at all. The question is—

[Speaker D] I’ll tell you why, because… why didn’t Moses discuss this? That’s something else. But I mean…

[Rabbi Michael Abraham] That solves nothing. What does it solve? What you’re suggesting suffers from exactly the same difficulty.

[Speaker D] Every time, Rabbi, I try with all these reasons — whether he is fit or not fit, and you read the Talmud and you say, listen, I could explain this the exact opposite way and it would be perfectly fine, and there are no reasons here that you can really see — and in the end they accepted it.

[Rabbi Michael Abraham] But your proposal doesn’t solve the problem; it still remains in place. If they do this after everything is already given, there’s still the question why you say things that are not correct, or not necessary. So leave it alone — don’t do anything. Take what you received and keep what you received. Why are you engaging in all kinds of pointless dialectics? It doesn’t solve the problem.

[Speaker D] Pointless dialectics, you know, that’s…

[Rabbi Michael Abraham] The Talmud? That’s where they derived the laws from. What do you mean they derived the laws from it? How can that not be so? There are proofs from the Talmud that this isn’t right. Fine, we talked about it long ago. Obviously there are proofs from the Talmud that there are creative interpretations, not just supportive ones.

[Speaker C] Maybe we can understand together what the connection is to future generations’ helpers keeping the Sabbath, and also future generations keeping the Sabbath.

[Rabbi Michael Abraham] Maybe, I don’t know. Although about future generations it doesn’t say they should keep the Sabbath. A list like that — your labor, and your animal, and your son and your daughter — it sounds like it means your whole household, including the animals, including everything, everyone around you. That seems to me the simple meaning of the verse, I don’t know. This reminds me of something: the Minchat Chinukh writes on “do not place a stumbling block before the blind.” Now the Sages derive from that not to give improper advice and not to cause someone to sin. That’s what they learn from “before the blind.” But what about actually placing a stumbling block before a blind person?

[Speaker C] That’s obvious, no?

[Rabbi Michael Abraham] The Minchat Chinukh says that’s not prohibited. Only giving improper advice and causing him to sin. The Torah says, “before the blind you shall not place a stumbling block.” The Sages interpret additional things from it — okay, I can understand the connection between the things the Sages interpret — but what you’re saying is: how can you ignore what the verse itself says? Now with “before the blind,” does he bring it under that commandment? “A verse never loses its plain meaning”? “A verse never loses its plain meaning”? That’s exactly the question. I’m saying…

[Speaker B] That’s exactly the question.

[Rabbi Michael Abraham] In Midah — if you call it an uprooted verse… in Midah, no, I don’t call it an uprooted verse; I call it a mistake of the Minchat Chinukh. Just a mistake. Obviously it’s… obviously it is prohibited by Torah law.

[Speaker C] What, there’s no commandment not to put it there?

[Rabbi Michael Abraham] Fine, but there is the prohibition of “before the blind.” It’s not that there’s no prohibition.

[Speaker E] So that applies to anyone? What? Before any person, don’t place a stumbling block.

[Rabbi Michael Abraham] Obviously. Everyone is blind in that regard. Anyone can literally be blind, but if someone can’t see and you put an obstacle in front of him, he’s blind with respect to that because he can’t see the obstacle.

[Speaker B] If this was convenient for them with children, fine, but they canceled it — they put it entirely on the child. The child should rest? The child should rest.

[Rabbi Michael Abraham] And what about the truth? That doesn’t interest them. Their question was what’s convenient? I don’t—

[Speaker B] know, I’m not inclined to think that way.

[Rabbi Michael Abraham] I have some kind of… I give them credit. Okay, anyway, let me get back to our topic. The resting of one’s animal—there, in the Talmud at the beginning of the chapter “Mi Shehechshikh,” that’s where we were. The Ritva brings two opinions; the Tosafot Rid, in his view, disagrees with him. One of them says that basically the prohibition is that I perform labor by means of the animal. There’s an extension of the prohibition of a person’s labor, such that even if he does the labor through the animal, that counts as labor. It’s not the severe Sabbath prohibition, it’s not the prohibition punishable by stoning, but it is still a Torah-level prohibition, some kind of extension of the labor prohibitions, so that if you do them—I don’t know—through an animal, you violate a prohibition. But the Ritva and the Tosafot Rid says, I think—and the Ritva himself disagrees with him, because he says this is what is called leading an animal with a load, this is not the resting of one’s animal, it’s another prohibition on the Sabbath. There is leading an animal with a load—meaning to commit a prohibition by means of the animal, or to steer it or I don’t know, to make it do this or that kind of action. The resting of one’s animal, the Ritva explains, means that when an animal desecrates the Sabbath, I have violated a prohibition. It has nothing to do with whether I did something through it. If the animal carries from a private domain to a public domain, or if the animal nibbles grass, then it is violating the labor of reaping. So if the animal committed a prohibition, that is my prohibition; that is called the resting of one’s animal. As for nibbling grass, the Talmud says that because it is its food, that is fine; it is not considered my prohibition. But on the basic conceptual level, when the animal does one of the thirty-nine primary categories of labor, or their derivatives, I have violated a prohibition. That’s what the Ritva says. How can such a thing be understood? We’re talking about my animal, of course. How can such a thing be understood? It seems to me that what lies behind this is that same idea I spoke about earlier: the fact that I own the animal is not just a bundle of rights that I have in the animal, that I can make use of it; rather, there is some kind of bond between me and it. That bond has legal consequences, in that I can make use of it, but the bond itself basically turns the animal into part of my periphery. Just as my body—after all, when I speak about myself, I am my soul, not my body. The body is the donkey, meaning it is something that is a kind of periphery of the self. And still, it is obvious that if I do something with my body, it is considered that I did it, right? It is my act. A person who causes damage, for example, is liable even under compulsion. Why? Because his body caused damage. So what? But I was asleep. I am my soul; my soul did not cause the damage, my body caused the damage. So why am I liable even under compulsion? The body is not me, the soul is me. Fine, but the body is your periphery, and if your periphery caused damage, you are liable for it. The claim is that property too is your periphery—a more distant periphery than the body, but still your periphery. That is the metaphysical bond between a person and his property: not only that I have rights in the thing, but it is some kind of periphery of me, and therefore I also have rights to use it—but that is a result. Since it is my periphery, then for example when my property desecrates the Sabbath, it is like my body desecrating the Sabbath, on a lower level because it is a more distant periphery. But still, the prohibition is not that I am doing labor through the animal, as the Ritva says; rather, the animal itself, when it commits a prohibition, it is as though something of mine committed the prohibition.

[Speaker C] And that’s my next example.

[Rabbi Michael Abraham] Not my next example.

[Speaker C] Exactly, not my next example.

[Rabbi Michael Abraham] And that really is the position of Ben-Tor. The next example is property damage. Meaning, you know there is a person who causes damage and there is property that causes damage. In Maimonides it’s the laws of personal injury and damage, and the laws of property damage; it’s divided into two things. The laws of property damage are when my property causes damage—not when property is damaged, but when my property goes and causes damage, and then I have to pay. Now why? So the later authorities (Acharonim) disagreed about this. There are approaches that say that the fact that my property causes damage obligates me to pay because I was negligent in guarding it. I simply acted carelessly, I was negligent in guarding it—a simple rationale, the rationale of guarding. But there are later authorities who argue no: I am liable simply by virtue of the fact that my property caused damage. True, if I guarded it properly that is an exemption claim, but—but—but what obligates me is not negligence in guarding it; what obligates me is the very fact that my property caused damage. What practical difference does this make, for example? One possible difference—people can debate this endlessly, but it seems to me we talked about it once—the difference is, for example, damage occurred and the injured party sues me. Say my animal damaged him, and the injured party sues me, and now I claim against him: I guarded it properly, I’m exempt. Now the question is: on whom does the burden of proof lie? If I hold that negligence in guarding is the tort basis on which you are suing me, then as long as you have not proven that there was negligence in guarding, what do you want from me? Bring proof that I was negligent; without that, you have no basis to sue me at all. But if I say that the very fact that my property caused damage obligates me to pay, then it is obvious: we both agree that my property caused the damage. I want to exempt myself by claiming that I guarded it properly—an exemption claim—so the burden of proof is on me. I need to prove that I guarded it properly; he does not need to prove that I was negligent. Okay, so that is one practical difference. In practice it’s almost the only one—it’s not entirely the only one—and in the yeshivas they grind this into every tractate Bava Kamma and this conceptual analysis, and almost nothing is connected to it.

[Speaker D] How otherwise would you have to be liable to pay? If your fire—you know, my property, my whatever-it-is, that desecrated the Sabbath, okay. Why specifically with an animal? Because it says “your daughter”?

[Rabbi Michael Abraham] No, no, I’m talking now about damage.

[Speaker D] I understand, I’m going back to the Sabbath. Yes.

[Rabbi Michael Abraham] In the case of damage, the fact that the fire is burning is not a prohibition; lighting the fire is the prohibition.

[Speaker D] Ah okay, from the side of the Sabbath—kindling on the Sabbath.

[Rabbi Michael Abraham] Yes. When I light candles, after all there’s the well-known difficulty of Tosafot in Bava Kamma: I light candles—how is it permitted to light candles? I light them on Friday, but it continues—and because of “his arrows,” as it were—it continues on the Sabbath itself. So it turns out, this is not a matter of the resting of one’s animal.

[Speaker C] It’s a continuation of what you started, but—

[Rabbi Michael Abraham] The resting of one’s animal is only with an animal, not all property.

[Speaker C] Not all property, so—

[Rabbi Michael Abraham] That’s another thing, because there is the resting of utensils, which is a dispute between Beit Shammai and Beit Hillel, and Jewish law is ruled like Beit Hillel: there is no resting of utensils, only the resting of one’s animal.

[Speaker F] And what about damage and a child who is a minor, where you don’t need to guard him because he isn’t part of me? Right? We’re talking about the fact that they don’t derive “resting” there.

[Rabbi Michael Abraham] What it says there is, “so that your ox and your donkey may rest”—it says it in the verse, what do you want?

[Speaker F] And because of that it’s forbidden for you to tell him to desecrate the Sabbath, just like—you—but does that come out of this verse?

[Rabbi Michael Abraham] The medieval authorities (Rishonim) and the Talmud say not like that. It’s forbidden for you to tell him because it is forbidden to tell him to commit prohibitions in general; it’s not specifically connected to the Sabbath.

[Speaker F] No, but with the animal too you explain that it’s sort of prohibited from labor not because of the body. Its resting is on him.

[Rabbi Michael Abraham] Right, because of the bond. That comes from the verse. The verse says that its resting is incumbent on me because of the bond—that is the meaning of the verse. But the verse also says that my son and daughter need to rest. And I also have a bond with them. I don’t own them, but I do have a bond with them. So one could say that in the verse, anyone with whom you have a bond—not necessarily a bond of ownership—you are responsible to make sure that he does not desecrate the Sabbath. And what about slavery?

[Speaker C] That’s—

[Rabbi Michael Abraham] That’s what is written in the verse: “your male servant and your female servant.”

[Speaker C] Same thing. If they desecrate the Sabbath, then I am violating it.

[Rabbi Michael Abraham] Is there something else? I really don’t remember.

[Speaker C] What don’t you remember, really? A slave—if he caused damage, you’re exempt because you have no bond.

[Rabbi Michael Abraham] No, not on the Sabbath—in damages.

[Speaker C] But there he’s exempt because there’s no independent mind.

[Rabbi Michael Abraham] “Their injury is bad”—that’s something else. He’s talking about rest on the Sabbath, not damages.

[Speaker C] Why isn’t one liable for the damages caused by his slave? The master is not liable for the damages caused by his slave. Because he might get him angry. Meaning, it’s a dispute. Meaning, it’s a dispute.

[Rabbi Michael Abraham] There is one side that says indeed—

[Speaker C] that he is exempt because perhaps—

[Rabbi Michael Abraham] the slave and the minor and the woman—”their injury is bad”—it appears in Bava Kamma.

[Speaker C] Yes, but the question is why is “their injury is bad”? One side says what does “their injury is bad” mean?

[Rabbi Michael Abraham] That if they cause damage, you’re done for, because I don’t need to pay for what the slave and the woman did.

[Speaker C] One side says that perhaps the husband or master will provoke the slave and then the slave will go and intentionally cause damage.

[Rabbi Michael Abraham] Okay, so they exempt him basically. Not that he is really exempt, but we don’t want… Fine, but still at the end of the day he is exempt.

[Speaker C] A second side says no, altogether because he is an—

[Rabbi Michael Abraham] independent person, so the responsibility is on him and not on me.

[Speaker C] So what about a minor? Maybe someone with understanding?

[Rabbi Michael Abraham] If he has understanding, he’s a minor.

[Speaker C] Yes, but it’s not like an animal, meaning that I can—

[Rabbi Michael Abraham] Why not? Especially when the Torah says—again, the Torah includes your son and your daughter in the verse.

[Speaker C] It also includes your servant. But not in damages. Maybe…

[Rabbi Michael Abraham] No, regarding the Sabbath it’s something else. Really I need to check, but here we’re talking about damages. In damages it isn’t written.

[Speaker C] If regarding the Sabbath a servant and a minor are exempt in relation to their Sabbath desecration, then here there would be exemption regarding the son?

[Rabbi Michael Abraham] It’s the same question about the servant as about the son. That doesn’t help me; it still doesn’t become clear. Explain to me why regarding a servant I’m exempt. The verse says that I’m liable. Regardless of what the logical explanations are, I can accept the logical explanations. But the verse says it! No, he has independent understanding. So what? The verse says, “so that your servant may rest”; the verse says that. In the same breath as the animal. So why… how do you ignore that?

[Speaker C] And with an animal it is…

[Rabbi Michael Abraham] After all, the verse gives a whole list. Decide—how do you read this verse?

[Speaker C] And the animal doesn’t have understanding. So what?

[Rabbi Michael Abraham] I understand the distinction logically, but the verse doesn’t distinguish. The verse says all of them in the same list. It’s not that I have no… if the verse had said the opposite I would understand. You can invent logical arguments. I’m just saying: how do you ignore what the verse says?

[Speaker F] Maybe one can understand the verse to mean only that it is forbidden to cause him to desecrate the Sabbath.

[Rabbi Michael Abraham] That’s what needs explanation, because that is true for all prohibitions. So you don’t need a verse about the Sabbath for that. On the contrary, the verse says that on the Sabbath there is something unique: their rest is incumbent upon you. That’s indeed what the Rashba says about a minor. Okay, anyway, back to our topic: regarding damage caused by one’s property, I said there is an opinion that says the obligating factor is not negligence in guarding, but the very fact that my property caused damage. Then of course the question arises: why does that obligate me—what does it have to do with me? If not negligence in guarding, meaning some blame that I contributed to the matter, why does the mere fact that my property causes damage obligate me to pay? And the answer is the same principle: that property is basically some kind of periphery of me. Just as when my body causes damage—and even if I’m not at fault, a person who causes damage, even under compulsion, is always considered forewarned; a person is liable to pay even under compulsion—so too with my property: the very fact that it caused damage, that is a periphery of mine that caused the damage, and I am responsible for it. True, that periphery is more distant, and therefore where I guarded it properly and the property nevertheless went and caused damage, there I am exempt, unlike with the body. With the body, if I am under compulsion and did what needed to be done, I am still not exempt. Okay? Because a person is always considered forewarned. Everything depends on the degree of closeness, or how close that periphery is to me. But still, the foundational obligating factor is the very fact that it is a periphery of mine. And indeed, the Rogatchover in Bava Kamma on page 17 brings the resting of one’s animal into this discussion. Meaning, he says that it is exactly like the resting of one’s animal. And the idea behind it is that the bond between me and my property is not just a bundle of rights. First of all, it means that it is my periphery. Once it is my periphery, that has halakhic consequences. I must ensure that it rests on the Sabbath; if it causes damage, I must pay; it also gives me rights of use. Fine, these are all consequences. But the very determination that I own the thing means that there is a metaphysical bond between us. Meaning, it is some kind of factual determination. The legal consequences are results—the halakhic and legal consequences.

[Speaker D] And if we talk about this bond, this ownership, what brings it about?

[Rabbi Michael Abraham] The act of acquisition—what I said earlier. When you perform the act, you are basically bringing about a legal effect, creating something, some new metaphysical reality, and the result of that is that there are all kinds of halakhic, legal, and similar consequences.

[Speaker D] So the fact that you want to be the owner or you want to do this—what brings it about is the act of acquisition.

[Rabbi Michael Abraham] You need to perform an action, an act of acquisition, for it to take effect. By the way, that’s what I said before: that’s why an action is needed. Because the action basically has to create something in the world, to impose the legal effect, and then the consequences will apply.

[Speaker B] But if you have a bigger periphery that is also yours and you own, say, a factory building, and all the workers are basically also your periphery—

[Rabbi Michael Abraham] But the workers are independent human beings; you can’t place the responsibility on them—they can do what they think.

[Speaker B] It could be there’s a larger periphery here. Meaning, you could say this too is a periphery—

[Rabbi Michael Abraham] But this is a periphery that does have independent standing of its own. By the way, it reminds me of what you said earlier as two possible explanations for damage by a slave, why I’m exempt. One explanation: because the slave is liable. A second explanation: because there is concern that he’ll come and terrorize me—he’ll do whatever he wants and I’ll have to pay for him every time. By the way, in the Tur these are two explanations, and it’s the same thing. Because the fact that the slave can basically decide to do various things and make me pay means there is someone here who has independent standing; he is responsible for his actions. And since that is so, then he should pay and not you. The indication is what? You want me to be responsible for someone who makes decisions? He makes decisions. Even my animal—why do you impose responsibility on me every time it goes and causes damage? Why don’t they say that there? Because the animal doesn’t decide to cause damage; an animal is an animal. But a slave is a person. Meaning, you can’t hand my fate over to someone who can decide to abuse me. So that is really only an indication that he has independent standing; it isn’t necessarily a different position. So that is the second example. A third example: there is a Talmudic passage in tractate Sanhedrin that discusses splitting up a statement. Splitting up a statement means, say someone comes and testifies: so-and-so lent me money with interest. And he comes with another witness. So say he is Reuven, and he says: Shimon lent me money with interest. And another witness comes and indeed says that Reuven borrowed from Shimon with interest. Fine? There are two witnesses regarding Reuven that he borrowed with interest, and of course two witnesses regarding Shimon that he lent with interest, and the prohibition applies both to lending and to borrowing; it’s the same thing. Okay? But on the other hand, once I borrowed with interest, I am disqualified from testimony, because I committed a prohibition. So if I am disqualified from testimony, then my testimony about the lender is also worthless. But of course, if we don’t accept that I borrowed with interest, then my testimony is valid, and then he lent with interest. In any case, we won’t get into it—there are lots of interesting loops here in splitting up a statement. But the Talmud says as a matter of Jewish law—there’s a dispute among the Amoraim—the Talmud says as a matter of Jewish law that we do split up a statement. Meaning, we divide his statement. We do not believe him regarding the fact that he borrowed with interest, but we do believe him regarding the fact that the other person lent him with interest. What does “we do not believe him” mean? We do not accept the testimony. That does not necessarily mean that what he says is false; rather, the testimony is inadmissible. It is a problem of admissibility, not of credibility. By the way, this is one of the mistakes in Israeli courts when they quote “a person cannot declare himself wicked,” and this is based on that principle—you testify about yourself that you borrowed with interest. They quote it from the Miranda ruling in the United States. The Miranda ruling in the United States brought Maimonides and the Talmud about “a person cannot declare himself wicked”—this is, by the way, the Fifth Amendment; the Miranda ruling is based on it. And that ruling brings Maimonides and the Talmud about “a person cannot declare himself wicked,” and there are long discussions there in Talmudic and halakhic sources. And all the judges in Israel, who of course don’t know the Talmud and Maimonides—or not all of them, but most of them—take it from the Miranda ruling, and of course they are all mistaken, including the Miranda ruling. It is an incorrect interpretation. Because from the standpoint of Jewish law, the claim is that it is inadmissible, not that he is not credible. In Miranda the problem is that if you confess, that means something here went wrong—it can’t be true, it’s false, you’ve gone crazy, I don’t know exactly what. But in Jewish law it is not because of that. It is inadmissible, not that we don’t believe you. If you ask me what happened—that is what happened, what he said. But we do not do anything based on a person’s own testimony about himself. We do not punish him on the basis of his own testimony. Why?

[Speaker B] What? Why is that actually true?

[Rabbi Michael Abraham] The Torah says a person cannot declare himself wicked; he is an interested party, and an interested party cannot testify about himself. Again, this too is a problem of admissibility and not credibility, and that is also the law regarding witnesses. So the Talmud says we split up the statement. Meaning, when I testify that Reuven lent me money with interest, I accept the testimony that Reuven lent; I do not accept the testimony that Shimon borrowed—the testimony of a person about himself—because a person cannot declare himself wicked. About this the Raavad comments in secondary sources—I think I’m not sure we have the original Raavad—but the Rosh in Makkot brings it, and other medieval authorities (Rishonim) bring it in the name of the Raavad—that generally we say that testimony part of which is invalid is wholly invalid. If part of the testimony is invalid, then the whole testimony is invalid. So the question is: why does that not apply here? Part of the testimony—about himself—is invalid, but we accept the remaining testimony? The Raavad says: because here we are dealing with testimony of an interested party. A person testifying about himself—that is something else. Why? If, for example, I testify about my brother that he borrowed with interest, then the testimony about my brother is invalid because I cannot testify about my brother, but then the testimony about the lender would also be invalid. Partially invalid testimony invalidates the whole. But if I testify about myself that I borrowed with interest, then no. Why not? Because a person’s testimony about himself is not invalid—it is not testimony at all. He is an interested party; he is not a witness. It is not even entered into the record at all when I say I borrowed with interest. It is not that it is entered and an X is put next to it and the court disqualified the testimony. It is not disqualified testimony; it is not testimony at all. You are speaking here as a litigant, not as a witness. So it is not entered at all as testimony. Then your testimony is only that Reuven lent; there is no portion of the testimony that you borrowed. So here it is not that part of the testimony is invalid; the whole testimony is only the second half. The first half is not part of the testimony at all. That is his argument. So on this, several later authorities ask: the Talmud in Sanhedrin on page 9 raises the possibility—the question of what remains as the conclusion is debated among the medieval authorities (Rishonim)—but the Talmud raises the possibility of splitting up a statement also regarding his ox and regarding his wife. A person testifies about his ox, or testifies about his wife that she has something. The Talmud says that we split it up, at least in the initial assumption. Now how do you explain that according to the Raavad, who said that with relatives, if part is invalid the whole is invalid? So there are two well-known answers: “one’s wife is like oneself.” A wife is not merely a relative; a wife is part of the man himself. “One’s wife is like oneself.” Wait, first of all, that’s his wife. Now the claim is that this is not just kinship; it is not like testifying about a brother. But what do we say about his ox? The claim is that it is the same thing. When I testify about my ox, my ox is my periphery, just as we saw in the resting of one’s animal, just as we saw in property damage; here too it is the same. Therefore one can split up a statement when I testify about my ox. When I testify about my ox, it is like testifying about myself; it is not like testifying about something else. It is not testimony that is invalidated; it is not testimony at all. When I speak about my ox, that is not testimony. Here, in the context of testimony, it is even completely obvious. My ox is really me testifying about my property; that is literally testifying about myself. The ox is my property. Fine. Okay, the question is whether this is criminal testimony about an ox or civil testimony about an ox—that is the question. If it is criminal testimony about an ox—say my ox killed so-and-so, criminal testimony about an ox—yes, in that case can you split it up?

[Speaker C] Ah, no, it isn’t accepted?

[Rabbi Michael Abraham] About the ox itself, no. If there is another implication, then yes; about the ox itself, no.

[Speaker C] A person about himself—not about a criminal act—

[Rabbi Michael Abraham] A person cannot declare himself wicked. A person who testifies about himself that he is a thief—that is not accepted.

[Speaker C] So all convictions based on the defendant’s confession? No.

[Rabbi Michael Abraham] According to Jewish law it would be impossible—

[Speaker C] to convict.

[Rabbi Michael Abraham] In civil law, a litigant’s admission is like a hundred witnesses. In criminal law, a person cannot declare himself wicked.

[Speaker B] So the ox is more in your periphery than your brother?

[Rabbi Michael Abraham] Yes, because my brother is an independent person. Again, there may be a bond between me and him, but he is an independent person; he is not part of me. Whereas the ox has no independent standing of its own; the ox is simply my periphery. And a wife—it is indeed clear that she also has independent standing, after all she is obligated in commandments and everything in her own right, but the bond between me and her is not a bond of kinship, but a bond of—let’s call it identity or… Does this also apply in a murder case? What? If one sees his wife being killed, she cannot testify? Obviously it’s the same thing. The question is whether this law applies to her too. Did you read Agatha Christie’s book “Murder in the Mikveh”? Murder in the Mikveh. There is Terumat HaDeshen and Noda B’Yehuda, who say that if… what happens if someone murders in a women’s ritual bath? After all, no man is there, so that’s the best place to murder, right? Because basically a woman is disqualified from testimony, so you can murder freely in front of all Israel and no one can do anything to you, because they are disqualified from testimony.

[Speaker C] What do you mean, in front of all Israel?

[Speaker B] But they would be witnesses… if it’s in front of all Israel?

[Rabbi Michael Abraham] No, in front of all the women of Israel. Ah, in front of all the daughters of Jacob. So Noda B’Yehuda and Terumat HaDeshen say that if it was done in a mikveh, we accept a woman’s testimony. One of them says this is Torah-level… It can’t be, it can’t—

[Speaker D] be that a woman comes to testify that I received—that all my money went missing?

[Rabbi Michael Abraham] Why yes? Because male witnesses can be brought; male witnesses can exist. As long as male witnesses could exist, but when male witnesses cannot exist, that is a sign that the Torah must allow a woman’s testimony. So you mustn’t make loans in a mikveh. What?

[Speaker D] Also don’t make loans in a mikveh.

[Rabbi Michael Abraham] Make loans in a mikveh if you want, when there is testimony that isn’t available—

[Speaker D] not of men. If a man made a loan in a women’s mikveh, he’s lost it.

[Rabbi Michael Abraham] It’s not that it’s forbidden. Do it—but you lost the money if he lies. A man who gave a loan in a mikveh. Why?

[Speaker B] It’s very nice that there is no—

[Rabbi Michael Abraham] where men are commonly found there, his testimony is invalid; there is women’s testimony there, right?

[Speaker B] What do you mean nice? It’s nonsense, so it works with this.

[Rabbi Michael Abraham] Right, that is a very interesting consideration, a very interesting consideration, yes.

[Speaker B] Very interesting, yes.

[Rabbi Michael Abraham] Common and uncommon—there is some whole doctrine here, like with legal fictions. Okay, anyway, the claim is that according to the Raavad, who hold that we split up a statement only in testimony of a person about himself, the fact that the Talmud says to split it up also regarding an ox is the third proof or third example that the bond between a person and his property is not a set of rights of use, but rather there is some factual bond between the owner—a metaphysical bond, a connection between them—they are basically one thing in a certain sense, while the legal and halakhic outcomes are only consequences of the situation. Now before we need to start wrapping up, I want to bring another proof or another implication. There is—just a moment, this implication. There is—I’ll just begin here, we’ll have to stretch the time a bit. There is in the Talmud a mechanism of condition. In the Torah and the Talmud they formulate the mechanism of a condition. A person can do things conditionally. And what happens is that the halakhic act that you perform depends on some future event that will occur. There can be an “if” condition, in which case it means that the legal effect takes place only from the time that in the future the condition is fulfilled. And there can be a “from now” condition or “on condition that.” And anyone who says “on condition that” is regarded as if he said “from now,” so it is a condition such that, assuming the condition is fulfilled in the future, the legal effect takes place already now. For example, if a man betroths a woman if she gives him two hundred zuz in a week, that means that if she gives him two hundred zuz in a week, she will be betrothed from then. And if a man betroths a woman on condition that you give me two hundred zuz, the meaning is that the betrothal is from now, provided that you give me two hundred zuz, because if not, you are not betrothed; return the coin and I will demand the two hundred zuz back—and in betrothal they use this a lot. In any case, she has to agree. In any case, these betrothals create a problematic situation. The Talmud already asks: what is her status during those days? Meaning, in those seven days until we do or do not fulfill the condition, what is her status? The status of the woman or of the property? So we have debates with different formulations. Rabbi Shimon Shkop claims that the status is that she is both a married woman and divorced. Sorry—that is in a condition in divorce. In a condition in betrothal, the idea is that she is both a married woman and unmarried.

[Speaker C] And that’s not just a doubt about what will be at the end, because it’s not a doubt.

[Rabbi Michael Abraham] What doubt? I don’t know, fine, but something will happen in the end, and if it happens then it is definitely like that. And in the meantime I don’t know. No. What you are saying is that the mechanism of condition is retroactive clarification, and the whole problem is only with the person: the person doesn’t know what reality will be until it happens. Rabbi Shimon Shkop says not like that. He says there is a state of essential mixture, not just that I don’t know. The woman is in the status of both a married woman and a divorced woman.

[Speaker C] Now if—

[Rabbi Michael Abraham] someone has relations with her during those days, and afterward she fulfills the condition and it turns out that she is a married woman, then he did not—he did—

[Speaker C] he—

[Rabbi Michael Abraham] had relations with a married woman on the married-woman side within her. Yes, but she is also unmarried, she is also divorced—both a married woman and divorced, or both unmarried and married. And it is not just a question of doubt. Okay?

[Speaker B] Now, that’s crazy, huh? That’s crazy to hear.

[Rabbi Michael Abraham] Yes, that is his claim.

[Speaker C] The Mahari of Bruna brings a proof: say I know for certain that she won’t fulfill the condition—say she’s in a place where it’s impossible to do it—still it remains forbidden for her, say…

[Rabbi Michael Abraham] That is one of the proofs Rabbi Shimon Shkop brings for his view. In his treatise on conditions at the end of Gittin, he brings a whole series of very puzzling rulings of the medieval authorities (Rishonim). One of these rulings is Maimonides. Let me just say parenthetically—I don’t want to get into it too much—Maimonides says: suppose someone divorces his wife unless he comes within twelve months, meaning if he does not come within twelve months she is divorced. Because he simply didn’t want to leave her chained; he went off to some faraway place and said to her: if within twelve months I don’t arrive, you are divorced—and he traveled. And he said to her: if I drown at sea, or whatever, so that she should not remain an agunah, if within twelve months I haven’t returned, you are divorced. Fine? Then she doesn’t require levirate marriage and so on. Now he dies after a month; clearly he won’t come, he died. The Maggid Mishneh, according to Maimonides, says that she has to wait—wait twelve months before getting married.

[Speaker D] On a divorce “from now”?

[Rabbi Michael Abraham] No, on a divorce of “if.” It can’t be a divorce of “if,” because the divorce can’t take effect after death. Therefore he said to her: a divorce from now. In such a situation, if he said to her, “a divorce from now,” you still cannot get married until the twelve months have passed. And this is one of Rabbi Shimon Shkop’s proofs. Rabbi Shimon Shkop shows from here that it is not just a problem of human knowledge. If the whole problem were simply that I don’t know what will be, then let’s wait twelve months and see what happens—but reality was already determined now. If that were the conception, then here she could get married the moment you know that the person died. If the person died, then clearly he won’t come, right? So what’s the problem? She’s divorced. But no—even if I know he won’t come, the twelve months still actually have to pass before she can get married. And why? Because as long as they have not passed, the state is that she is both a married woman and divorced. And therefore only after the twelve months, in the end, will she be fully divorced.

[Speaker C] Wait—if I know he died after a month, why isn’t she a widow?

[Rabbi Michael Abraham] No, she is a widow, not divorced. A practical difference would be, for example: what happens if there is a levirate bond? Ah—then if she is a widow, she requires levirate marriage; she cannot just get married—she needs halitzah or levirate marriage. But if she was already divorced, then she is divorced; a divorced woman doesn’t require levirate marriage, she can get married. Okay? The question is whether she is divorced or widowed.

[Speaker C] What? In the usual situation where there is no levirate bond, she would remarry quickly. Yes. In the status of widow and not in the status of divorce. Yes. More than that, the question is whether she can marry a priest.

[Rabbi Michael Abraham] An ordinary priest. A widow may marry him, but a divorced woman may not marry him. So he asks: is she both a widow and a divorced woman? You already know that she is a widow, right? On the other hand, you also know that she is destined to become divorced. In any case, that is what Rabbi Shimon Shkop says. I’ll just end with a question. When I taught this in Yeruham in the yeshiva, a pair of eyes opened at me and they said: what do you mean, both divorced and married? A divorced woman is not a married woman; a married woman is not divorced. I said: what do you mean? Are you both triangular and round? How can two contradictory things exist simultaneously? Like Schrödinger? Yes, exactly. So I got a bit stuck for a moment, because it had seemed to me so obvious and self-evident. I said: yes, she is both a married woman and divorced, and I did the calculations about what to do and everything was fine and I went on. Until they said: wait a second—sometimes there is an advantage to people who aren’t trained in Talmudic-analytic thinking. When you’re not trained in Talmudic-analytic thinking, suddenly you stop the person and say: listen, think for a second about what you’re saying; it doesn’t make sense. Both a married woman and divorced at the same time—that is a contradiction. It’s both black and white together. It’s not like your analogy. Why not?

[Speaker B] It’s their essence. Which essence? That’s the very definition of a married woman and of a divorced woman.

[Rabbi Michael Abraham] A married woman is a married woman, she isn’t divorced; a divorced woman is—

[Speaker B] someone who got divorced.

[Rabbi Michael Abraham] A contradiction. So we need to explain why. That’s the puzzle I’m leaving you with for next time. Next time I’ll explain why. I also think that this is…

[Speaker B] And what if it’s not certain that it’s essential?

[Rabbi Michael Abraham] What? It doesn’t matter if it’s not essential; it’s still a contradiction. Even in non-essential properties—

[Speaker F] there can’t be a contradiction.

[Speaker B] Maybe there can.

Halakha and Law – Lecture 2

Table of Contents

Summary

General Overview

Kiddushin, Rivka Lubitch, and the proposal for life without kiddushin

The meaning of “acquisition” as an act that creates a legal status, not as monetary ownership

“When a man takes” and the document of kiddushin as evidence against understanding kiddushin as monetary purchase

The verbal analogy of “taking-taking” from Ephron’s field and the claim that there is no similarity between a woman and a field

Ownership as a metaphysical bond rather than a bundle of rights, and the marital bond as a different kind of bond

The ketubah, contract, and her earnings as derivatives and not as ownership-acquisition

Halakhic inequality, mistaken diagnosis, and proposals for improvement without abolishing kiddushin

The resting of one’s animal, “uprooted verses,” and the gap between an explicit verse and Jewish law

Leading an animal versus the resting of one’s animal, and the animal as a person’s periphery

Damages caused by property: liability from guarding versus liability from the bond itself

Splitting testimony, “a person does not render himself wicked,” and extending the periphery to his ox and his wife

Stipulations in kiddushin and divorce, and the contradictory state of “both married and divorced”

Full Transcript

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Table of Contents

Summary

General Overview

Kiddushin, Rivka Lubitch, and the proposal for life without kiddushin

The meaning of “acquisition” as an act that creates a legal status, not as monetary ownership

“When a man takes” and the document of kiddushin as evidence against understanding kiddushin as monetary purchase

The verbal analogy of “taking-taking” from Ephron’s field and the claim that there is no similarity between a woman and a field

Ownership as a metaphysical bond rather than a bundle of rights, and the marital bond as a different kind of bond

The ketubah, contract, and her earnings as derivatives and not as ownership-acquisition

Halakhic inequality, mistaken diagnosis, and proposals for improvement without abolishing kiddushin

The resting of one’s animal, “uprooted verses,” and the gap between an explicit verse and Jewish law

Leading an animal versus the resting of one’s animal, and the animal as a person’s periphery

Damages caused by property: liability from guarding versus liability from the bond itself

Splitting testimony, “a person does not render himself wicked,” and extending the periphery to his ox and his wife

Stipulations in kiddushin and divorce, and the contradictory state of “both married and divorced”

Full Transcript

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