Rights and Obligations in Halakha – Lesson 3
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The distinction between Choshen Mishpat and Yoreh Deah and Orach Chaim
- Charity and interest as monetary obligations without a right of claim
- “Be killed rather than transgress” versus the flexibility of stipulations and custom in Choshen Mishpat
- Right as the source of the prohibition, and Rashi’s explanation of saving oneself with another person’s property
- The Tur and the conceptualization of dividing Jewish law into categories
- Religious court versus rabbi: governmental authority versus professional expertise
- Coercion regarding commandments: coercion of Yoreh Deah and coercion of Choshen Mishpat
- Even HaEzer as a social institution and its inclusion in the legal sphere
- “What the religious court declares ownerless is ownerless” and “whoever betroths does so subject to the rabbis”
- Prospective annulment and the Nimukei Yosef on dating bills of divorce
- The Kovno Ghetto, the collapse of a legal system, and a claim about ownership and marriage
- Constitutive witnesses, a litigant’s admission, and the Rashba on harming third parties
- Comparison to Christianity and the Pope
Summary
General Overview
The text presents a fundamental distinction between Choshen Mishpat and Yoreh Deah and Orach Chaim: in Yoreh Deah and Orach Chaim there are obligations imposed on the individual, whereas in Choshen Mishpat a person has rights, and those rights generate obligations for someone else. On the basis of this distinction, it explains why charity and interest, although they are interpersonal commandments involving money, belong in Yoreh Deah rather than in Choshen Mishpat. It then develops a broader model according to which monetary law and personal status are social institutions that operate through the religious court as a governmental authority. From this, it also explains apparent paradoxes in the laws of Choshen Mishpat, such as the rigidity of “be killed rather than transgress” alongside the flexibility of custom and stipulations, and it argues that Even HaEzer should be viewed as a legal domain similar to Choshen Mishpat because it depends on social recognition and on special rabbinic powers such as “what the religious court declares ownerless is ownerless” and “whoever betroths does so subject to the rabbis.”
The distinction between Choshen Mishpat and Yoreh Deah and Orach Chaim
The text states that in Yoreh Deah and Orach Chaim, Jewish law imposes obligations on the individual, whereas in Choshen Mishpat the starting point is the rights of one person, which generate obligations for another person. The text illustrates that when someone lends money or is harmed, the injured party or the lender has a right to make a claim, and from that right arises the obligation to repay or compensate. The text defines the ability to sue in religious court as existing only when the plaintiff is asserting his own rights, not when he seeks to force someone else to fulfill duties that do not derive from his rights.
Charity and interest as monetary obligations without a right of claim
The text explains that charity and interest do not appear in Choshen Mishpat but in Yoreh Deah, because the obligation to give charity does not arise from the poor person’s right to receive it, and the poor person cannot sue for charity in religious court. The text adds that the same is true regarding interest, even fixed interest that “is recovered by the judges”: the coercion there is coercion of Yoreh Deah, coercion to fulfill commandments, not coercion of Choshen Mishpat, and therefore there too there is no claim by the other party based on a direct monetary right. The text states that the other person cannot sue for the return of interest, not even fixed interest, just as he cannot sue for charity, because “I have an obligation to give, but he has no right.”
“Be killed rather than transgress” versus the flexibility of stipulations and custom in Choshen Mishpat
The text presents two features of Choshen Mishpat that seem contradictory. On the one hand, there is the rigidity of the prohibition against violating rights, to the point of “be killed rather than transgress” in the case of theft according to Rashi, and following him the Binyan Tziyon, who expands this to commandments between one person and another only in the sense of obligations rooted in the rights of another, but not to commandments like charity or honoring parents. On the other hand, the text emphasizes great flexibility through stipulations and custom, such as “an unpaid guardian may stipulate to be like a paid guardian” and the rule “everything follows local custom.” The text resolves this by saying that the rigidity exists from the side of the right-holder, whose right is not pushed aside because of the life-threatening situation of the violator, while the flexibility exists from the side of the right-holder himself, who can waive, forgive, or alter matters through agreement and stipulation, because “the Torah does not obligate me to take the money; it gives me the right to take the money.”
Right as the source of the prohibition, and Rashi’s explanation of saving oneself with another person’s property
The text explains Rashi’s view in Bava Kamma that a person “may not save himself with another person’s property,” even in a life-threatening situation, because the property belongs to the other person and that person’s property right is the foundation of the matter, not the prohibition “you shall not steal” as the primary source. The text states that the prohibition “you shall not steal” is generated by the other person’s right, not vice versa, and therefore a life-threatening situation can override obligations, but it does not override another person’s rights without his consent. The text emphasizes that this is not a claim about the severity of theft as compared to other transgressions, but about the nature of violating a right whose control is entrusted only to the owner of that right.
The Tur and the conceptualization of dividing Jewish law into categories
The text argues that the division between legal domains and halakhic domains is not a substantive innovation of Rabbenu Yaakov, author of the Tur, but rather his conceptualization and formalization of an existing distinction. The text compares this to Aristotle, who “conceptualized logic; he did not invent logic,” and argues that already in the Talmud we can see an awareness of different categories, such as the rule “we do not derive from prohibitions.” The text states that the innovation of the Tur lies in organizing Jewish law according to this classification and presenting the distinction in an explicit and systematic way.
Religious court versus rabbi: governmental authority versus professional expertise
The text distinguishes between a rabbi as a halakhic expert who gives an opinion, and a religious court as a governmental institution with enforcement authority that binds the parties through a legal ruling. The text argues that ordination for judging is not merely an examination of knowledge but a grant of authority to judge by virtue of a governmental institution, and it cites the Talmud in Sanhedrin regarding the need for a Nasi or Exilarch as a sign of this authority. The text compares this to the difference between a law professor, who has no authority to compel, and a judge, who represents a governmental system.
Coercion regarding commandments: coercion of Yoreh Deah and coercion of Choshen Mishpat
The text states that coercion regarding the commandments of Yoreh Deah and Orach Chaim belongs to the religious court because coercion requires governmental authority, even though the commandment itself is a private obligation toward the Holy One, blessed be He, and not the “business” of another person. The text distinguishes between coercion of Yoreh Deah, which does not descend to taking money because its purpose is that the person himself perform the commandment, and coercion of Choshen Mishpat, which does descend to taking money because its purpose is that the money reach the holder of the right even if the obligor does not comply willingly. The text mentions the view of Nachmanides that “if you compel him in his body, you compel him in his money,” but presents the basic distinction that taking money belongs to the implementation of rights, not to replacing someone else’s fulfillment of commandments.
Even HaEzer as a social institution and its inclusion in the legal sphere
The text argues that Even HaEzer joins Choshen Mishpat as the legal part of Jewish law because it deals with personal status and social relations, not merely with a private obligation. The text presents marriage as a social unit recognized by society, and explains that the laws of personal status are not merely derivatives of obligations and rights but determinations of status, such as who is married and who is divorced. The text connects this to special rabbinic powers similar to those in monetary law and emphasizes that judicial ordination includes Even HaEzer, while rabbinic ordination focuses on Orach Chaim and Yoreh Deah.
“What the religious court declares ownerless is ownerless” and “whoever betroths does so subject to the rabbis”
The text presents “what the religious court declares ownerless is ownerless” as a power by which the religious court can expropriate property even when the acquisition was fully valid, and it frames this as a power with no clear biblical verse as its source, but one that depends on reason and on the legal structure of the field. The text parallels this in Even HaEzer with the principle “whoever betroths does so subject to the rabbis” as authority for the sages to uproot valid betrothal, and it distinguishes between “nullification,” which implies a flaw in the original act of betrothal, and “annulment,” which means uprooting a valid status by means of governmental action. The text argues that explaining this through a “condition” is, in his view, incorrect, and emphasizes that the authority is understood as the status’s dependence on the consent of society as represented by the sages.
Prospective annulment and the Nimukei Yosef on dating bills of divorce
The text argues that there are cases where annulment of betrothal does not operate retroactively but only from that point onward, and presents this as strengthening the idea that status itself depends on continuing recognition and not only on a one-time act. The text cites the Nimukei Yosef, who asks how the sages instituted dating in bills of divorce, and describes an approach in which validating an undated bill of divorce can be based on the authority of “the rabbis annulled the betrothal.” The text uses this example to argue that the sages can alter status in the present even when the original act was valid.
The Kovno Ghetto, the collapse of a legal system, and a claim about ownership and marriage
The text cites a claim in the name of Rabbi Gibraltar that in the Kovno Ghetto “there was no monetary law,” and therefore there was no ownership, and it recounts a case in which, after the Holocaust, someone wanted to repay a loan and he said, “That money wasn’t mine.” The text proposes a theoretical extension according to which, in a world where there is no social recognition of institutions of property or personal status, then marriage too does not exist even if it was performed “according to law,” and it emphasizes that the claim is brought in order to sharpen an idea, not as a practical ruling. The text adds a distinction according to which personal status may perhaps remain even when monetary law collapses, and gives the example that in the ghetto there may have been personal status even if there was no ownership.
Constitutive witnesses, a litigant’s admission, and the Rashba on harming third parties
The text discusses the dispute between the Ketzot and the Rashba regarding a couple who betrothed one another privately without witnesses, though both admit it happened, and presents the Ketzot as arguing that constitutive witnesses require actual witnesses and not an evidentiary substitute such as a litigant’s admission. The text presents the Rashba as connecting the invalidity of a litigant’s admission here to “harming third parties,” and interprets this as a principle of a social institution in which the public must be able to know and recognize the marital status. The text explains that the witnesses to betrothal are understood as representatives of society who provide the evidence that makes public recognition possible, and therefore the marriage is not the “private business” of two individuals.
Comparison to Christianity and the Pope
The text gives an example from Catholicism according to which the Pope can uproot marriage retroactively, and describes this as the only way to dissolve marriage in Catholicism. The text presents the difference that in Christianity “there is no law that comes from heaven,” but rather a system of ecclesiastical decisions, and therefore “the mouth that prohibited is the mouth that permitted,” and the leadership institution can change and cancel things. The text presents this in contrast to the conception that in our system the Torah is the legislator and the sages operate within a unique framework of authority only in the legal domains.
Full Transcript
[Rabbi Michael Abraham] The difference between Choshen Mishpat and Yoreh Deah, Orach Chaim, is that in Yoreh Deah and Orach Chaim a person has obligations, while in Choshen Mishpat a person has rights, and from those rights other people have obligations. Meaning, if I lent someone money, then the other person has a right that I repay him the money, or if I damaged him, then he has a right that I compensate him. Because of that right, I have an obligation to pay him, or compensate him, or repay the debt. As opposed to interest and charity, which also, on the face of it, are interpersonal commandments involving money, and nevertheless they do not appear in Choshen Mishpat but rather in Yoreh Deah. And the reason for that is that my obligation to give charity does not arise from the poor person’s right to receive charity. The poor person has no right to receive charity; he cannot sue me if I don’t pay him. And the same with interest, even fixed interest that is recovered by the judges. We talked about that, that this is coercion, coercion of Yoreh Deah; it is not coercion of Choshen Mishpat, it is coercion regarding commandments. True, at the beginning of the chapter Eizehu Neshekh—I’m not going to get into that issue now—there is Rav Shmuel in Bava Batra there, in two long sections, you can look there, it’s a puzzling Talmudic passage in many ways, that passage. In any case, it’s pretty clear that coercion regarding interest is coercion of Yoreh Deah, not Choshen Mishpat. Why there they tie it to theft is another question. So charity and interest are found in Yoreh Deah; basically these are my monetary obligations toward another person when that other person has no right against me. Okay? The other person cannot sue me to return the interest, not even fixed interest, and he cannot sue me to give him charity. Okay, even in a case where I am obligated to give charity, not only in places where it goes beyond my clear obligation, he cannot sue because he has no right. I have an obligation to give, but he has no right. And your ability to sue in religious court exists only when you are standing up for your rights. You cannot sue me to fulfill my obligations; it’s not your business whether I fulfill my obligations or not. That’s the basic definition. I explained last time that this is really what lies behind two apparently contradictory characteristics of Choshen Mishpat. On the one hand there is—yes, I called it wooden law, yes—that on one hand the law is like a worm and on the other hand hard as wood, as cedar, because on the one hand Rashi, and following him the Binyan Tziyon, say that there is “be killed rather than transgress” with respect to theft. Binyan Tziyon expands this to “be killed rather than transgress” for interpersonal commandments, where of course what he means is not interpersonal commandments in general; he means only obligations whose basis is the rights of the other person, not commandments of charity. There is no “be killed rather than transgress” for charity, not for honoring parents, and not for any interpersonal commandment. There is “be killed rather than transgress” only for commandments whose basis is the rights of the other person—that is, commandments of Choshen Mishpat. And I said there that it’s not only Rashi; the Rashba apparently joins him as well, and there are several other medieval authorities who join him in this fundamental conception, not all perhaps, but some of them. That’s on one side. Meaning, on one side it seems that the transgressions of Choshen Mishpat are the most rigid transgressions there are—even a life-threatening situation does not override them. On the other hand, in Choshen Mishpat you can stipulate conditions, and it depends on custom—the most flexible thing imaginable. The Mishnah in Bava Metzia on page 94 says there: an unpaid guardian may stipulate to be like a paid guardian. The Mishnah at the beginning of Bava Batra says: everything follows local custom. Meaning, it really seems that this whole thing is just putty. Meaning, we can knead it however we want; it’s the most flexible thing there is. How do these two opposite characteristics fit together? On the one hand, it’s not pushed aside even for saving a life, and on the other hand, no problem, do whatever you want—if you agree, then you can stipulate, you can alter the laws of guardians, you can do whatever you want. So I said it depends on from which side you look at it. If I’m talking about an obligation, say guardians’ obligations, okay? Guardians’ obligations basically mean that if the guardian to whom I entrusted the deposit is a paid guardian and it was stolen or lost, then I have a right to compensation from him, and consequently he has an obligation to compensate me because of my right. These two sides of the coin are exactly the two sides I described earlier. When he wants not to pay what I am owed—what he owes, sorry—then it’s “be killed rather than transgress.” My right—he cannot do anything with that, even if he is in mortal danger, because his mortal danger does not override my right; it overrides his obligations. But his obligations will come back and reawaken, because my right still stands. Okay? Therefore Rashi there in Bava Kamma says that a person may not save himself with another person’s property, even though it’s a life-threatening situation. Why? Since the money belongs to the other person. The fact that you don’t steal it is not because of the prohibition “you shall not steal.” You don’t steal it because the other person has a right, a property right. The prohibition “you shall not steal” is generated by the other person’s right; it is not that the other person’s right is generated by the obligation not to steal, by my obligation not to steal. It starts with the right; the obligation is a derivative. And because of that, if I have an obligation, then yes, it is overridden by a life-threatening situation. That’s true. But the other person’s right—how is that overridden by my life-threatening situation? What does he have to do with it? He decides about his rights, not me. So I also explained that this is not because theft is more severe than other transgressions. It’s not a question of severity; it’s a question of character. This is someone else’s right. And only he can determine what to do with that right—whether to take it or not take it, whether to waive it or not waive it. That is only his decision; it has nothing to do with me. So I may be in mortal danger, but if he doesn’t agree, then from my side that’s the situation. But on the other hand, if there is another person’s right and he decides to waive it, fine. What, I’m owed compensation? I can say, no need, thanks, I waive it for you. What’s the problem? It’s my right. So someone who is not the holder of the right cannot touch the right even if he is in mortal danger. But someone who is the holder of the right—what’s the problem? He can waive it, he can do whatever he wants. The Torah does not obligate me to take the money; it gives me the right to take the money. If I want, I’ll take it; if I don’t want, I waive it. It’s permitted to give gifts. Fine, whether this is waiver, it doesn’t matter whether forgiveness is a gift or whether forgiveness is waiver—we won’t get into that here. So yes.
[Speaker C] Is this whole model basically an innovation of Rabbenu Yaakov, the author of the Tur? Is this the first time this distinction is created?
[Rabbi Michael Abraham] No, I think it’s his conceptualization, not his innovation.
[Speaker C] It’s a conceptualization. Because he brings two or three examples—charity, honoring parents—and from them moves from the specific to the general to make a claim about all of Choshen Mishpat and all of Yoreh Deah, and is all that just according to Rabbenu Yaakov, author of the Tur?
[Rabbi Michael Abraham] No, no. I think, as I explained, the author of the Tur conceptualized this division; he didn’t invent it. Just as Aristotle conceptualized logic; he didn’t invent logic. Meaning, I think that already in the Talmud we see lots of cases of “we do not derive from prohibitions.” Meaning, the Talmud understands that there are different categories. But nowhere is the law organized according to those categories. That is the innovation of the author of the Tur, of the Tur. The Baal HaTurim was more a commentary on the Torah. Fine, yes, it’s the Baal HaTurim, but in the conventional jargon, yes. So the conceptualization of this division and the fixing of the division of all kinds of laws according to this classification—what is legal and what is halakhic—that the Tur did for the first time. But he didn’t invent these categories; he just noticed that they exist and defined and analyzed them explicitly. Okay? Just as logical arguments existed even before Aristotle; he was simply the one who noticed that there’s some fixed pattern here. So I don’t think the Tur invented these laws, but he definitely sharpened this difference and helped us notice something that already existed before. I brought—I told the story about apartment rental, I told that, right? In Yeruham with my student. And also the story with Yechezkel Abramsky and the interest. Those are really two stories that express exactly this difference between Choshen Mishpat and Yoreh Deah. Okay. Now I want to…
[Speaker D] Why split it up? In practice it’s true that it’s like monetary doubt and prohibition doubt, that these are two categories: with a prohibition doubt we rule strictly, and with a monetary doubt we rule leniently.
[Rabbi Michael Abraham] Strictly and leniently isn’t clear. “Monetary doubt leniently” is just an expression. It’s lenient for the defendant but stringent for the plaintiff. It’s not exactly that there’s leniency and stringency there.
[Speaker D] About the question of these definitions, right. But here too, even though it’s true that there is this difference regarding money, when a person wants to violate someone else’s monetary rights, it’s true that from the monetary perspective we certainly look at whether he has a right or doesn’t have a right, but violating rights is a prohibition. Obviously. So the prohibition is a prohibition. It’s not money. So in the end you can still return this to…
[Rabbi Michael Abraham] I can. But the fact is that Rashi and the Binyan Tziyon don’t do that. I’m not saying this is the only possible understanding, because many decisors don’t say this. But I’m trying to show a fact: in the realm of money there are other approaches. And with pork, nobody would say that you can stipulate, that two people can decide that eating pork is permitted, or that local custom is to eat pork so everything is fine. There’s no such thing. The law of the kingdom, local custom, stipulations—such flexibility exists only in Choshen Mishpat. Okay, I think I also explained about Even HaEzer, right? That in Even HaEzer too, basically—why does it also belong to judicial ordination together with Choshen Mishpat and not to the category of Orach Chaim and Yoreh Deah? I think I explained that, didn’t I? That Even HaEzer too—why really in Choshen Mishpat does this belong to the legal part of Jewish law and not the halakhic part? Because it concerns relationships between people. It’s not a private matter. Meaning, Yoreh Deah and Orach Chaim—each person for himself. Even when you pray with a quorum, that matters, but it’s not your obligation toward somebody else; there’s no connection between you and someone else. All ten of you need to pray together with a quorum; each one needs to fulfill his own obligation to pray with a quorum, okay, but these aren’t relations between people in society, and therefore it belongs to the halakhic part, not the legal part of Jewish law. The legal part of Jewish law deals with relationships between people. So Choshen Mishpat deals with rights and obligations, which basically express the fact that these laws speak about relationships between people and not about laws of a private individual. In that sense, Even HaEzer too belongs to judicial ordination and not to rabbinic ordination, yes? Because Even HaEzer too is basically a social institution, personal status, yes? When a husband and wife get married, society recognizes them as a married couple, and only then are they a married couple. It’s a social institution. It is not a private obligation. It’s not some private obligation or right, it doesn’t matter, yes, a private prohibition or commandment. Rather, it’s how society sees this marital unit. And if society does not see it as such, then it won’t exist—just like in Choshen Mishpat. And therefore we also find in Even HaEzer and in Choshen Mishpat a mandatory authority vested in the sages: “what the religious court declares ownerless is ownerless” in monetary matters, and “whoever betroths does so subject to the rabbis” in marriage and divorce. And usually people understand “whoever betroths does so subject to the rabbis” as a condition. In my view that’s an incorrect conception; it is not a condition. There are various difficulties with the condition approach, even though there are medieval authorities who write that. Because what I said, basically—seems to me I said this, right? I explained Even HaEzer. I didn’t explain it? Okay, then maybe I need to do it a bit more slowly.
[Speaker C] If the Rabbi can address within this framework food, clothing, and conjugal rights on the one hand, and ketubah obligations on the other. Obligations or rights?
[Rabbi Michael Abraham] Obviously rights. Every obligation is by virtue of rights. It’s not Yoreh Deah. It’s either Even HaEzer or Choshen Mishpat, but it’s not Yoreh Deah.
[Speaker C] A ketubah isn’t an undertaking?
[Rabbi Michael Abraham] It’s an undertaking, but guardianship is also an undertaking. We sign a guardianship contract. It’s a contract between people. Contract belongs to the legal part of Jewish law.
[Speaker C] That’s true, a right the sages granted the woman.
[Rabbi Michael Abraham] There’s a right granted by the sages, and there’s a right conferred by a contract. But even in modern law today, they distinguish between several types of rights. There’s a right that is granted to you simply by virtue of your being a citizen or a human being. There’s a right that arises from the fact that we signed a contract, and the contract grants you rights by virtue of our agreement. The difference is that in a contract, for example, your right exists only against me. Meaning, your right creates only my obligation, not the obligation of the whole world, because only the one who signed. But there are rights that are granted to you simply—if the money is yours, that’s your right not by virtue of a contract. The whole world has obligations to respect your right over the money. Those are two types of rights. Every legal system makes this distinction, and Jewish law also has this distinction. But it doesn’t matter: contract law too belongs to Choshen Mishpat, because in the end, after the contract, there are rights and obligations here. True, you need a contract for that.
[Speaker E] What do you mean, if society doesn’t see a person as a married couple, then he won’t be? The Torah defined it, didn’t it?
[Rabbi Michael Abraham] I claim not. I’ll explain in a moment—I claim not. So basically I’ll do this a bit more slowly. I was sure I was just giving a summary here. In Choshen Mishpat—I’ll start with Choshen Mishpat and then I’ll explain why Even HaEzer also joins judicial ordination and not rabbinic ordination. Choshen Mishpat, as I explained earlier, is the relation of obligation versus right, Hohfeld’s table, where one person has a right and corresponding to it the other has an obligation. Even HaEzer is not, in the simple sense, exactly obligation and right—although of course obligations and rights derive from this marital connection—but the discussion itself is not exhausted by the discussion of rights versus obligations. The monetary discussions in Even HaEzer you can call Choshen Mishpat; that’s not what I’m talking about. I’m talking about the laws of personal status, meaning who is married, who is not married, how one gets divorced, all those things. Why does Even HaEzer also join Choshen Mishpat, and together the two of them basically create the legal part of Jewish law, while Orach Chaim and Yoreh Deah are the rabbinic ordination exams, not the judicial ordination exams? What’s the difference? So there we understood what Choshen Mishpat is versus Orach Chaim and Yoreh Deah—where does Even HaEzer fit into this? So what I want to claim now is to broaden the picture even more. In Choshen Mishpat, I said that these are basically obligations whose basis is the rights of the other person—obligations whose basis is the rights of the other person. Meaning, here we are basically dealing with obligations on me, or commandments imposed on me, that are not just about me, but are tied to a connection between me and someone else, another person. It’s not just something of mine. Therefore, in essence, it is a social matter. And that’s why the one who handles it is not a rabbi; the one who handles it is a religious court. A religious court is a governmental authority. A rabbi is a halakhic expert, a professional expert. Meaning, he says what Jewish law says in such-and-such a case. A religious court is a representative of society; it has authority. It enforces, and there is a legal ruling, and that binds the parties. Okay? A rabbi, if he makes a mistake then he makes a mistake; I’m not interested in what he said. He’s just an expert. I trust him because he’s a professional expert. So if he…
[Speaker D] The religious court also compels in those areas. What? The religious court also compels in those areas.
[Rabbi Michael Abraham] Correct, so what? That’s unrelated, all these things. It’s unrelated. Coercion appears in Choshen Mishpat. This coercion—
[Speaker D] It’s not coercion for… doesn’t matter, it’s coercion entrusted to the religious court.
[Rabbi Michael Abraham] The one who compels is not a rabbi; the one who compels is the religious court. Why? Even though it’s Yoreh Deah and Orach Chaim.
[Speaker D] It compels for all commandments.
[Rabbi Michael Abraham] What? Right, even commandments of Yoreh Deah and Orach Chaim—I explained this in the previous lecture. Even commandments of Yoreh Deah and Orach Chaim, the coercion regarding them belongs to the religious court. Why? Because to coerce you need governmental authority. Because no one—Orach Chaim and Yoreh Deah are your private obligation between you and the Holy One, blessed be He.
[Speaker F] It’s not my business whether you do your obligations. So it becomes social.
[Rabbi Michael Abraham] No, it doesn’t become social. The obligation to compel is an obligation on society, not the commandment. The Holy One, blessed be He, imposed an obligation on society to compel the person to fulfill his commandments.
[Speaker D] Doesn’t that somewhat contradict itself?
[Rabbi Michael Abraham] No, it doesn’t contradict.
[Speaker D] Because you’re saying that the person’s obligation, in itself, is toward himself and not toward society.
[Rabbi Michael Abraham] Toward the Holy One, blessed be He, not toward himself. Yes, okay. And then how can society suddenly compel? Because now the Holy One, blessed be He, says: you, as My representatives, force people to do their commandments. Now, when you talk about someone who has to make the decision, the institution that compels is a governmental institution; it is not an institution of professional expertise. And therefore coercion regarding Yoreh Deah and Orach Chaim appears in Choshen Mishpat. Because the authority is entrusted to the religious court. For this you need a governmental institution; you can’t have a person with professional expertise compelling. Who is he? It’s like a professor of law forcing me to do something. I can consult with him and ask him, what do you say about such-and-such a case—what does the law say about it? He’s a professional expert, but he has no authority. Only a judge has authority. Okay? He is a governmental institution. It’s not only a question of what you know. Okay? Ordination for the religious court is not only an examination that you know, but also giving you permission to judge. Fine? With a rabbi it’s not like that. With a rabbi they call it ordination, but really it’s not ordination. With a rabbi it’s just checking that he knows. That’s all. If he knows, let him be an expert and advise people. A religious court needs authorization from the Exilarch, from a king, from a Nasi, whatever, from some governmental institution. The Talmud in Sanhedrin says after all that you also need an Exilarch, or whatever, or a Nasi in Israel. Why? Because a judge, unlike a rabbi, is a governmental authority. It’s a governmental institution, like a court as opposed to a legal expert, as opposed to a law professor. Yes, it’s the same thing. Therefore, when I impose an obligation on society to make sure citizens fulfill their private obligations, Orach Chaim and Yoreh Deah, such an obligation can only be entrusted to a governmental institution, an institution with authority. Such an institution does not exist in the Orach Chaim and Yoreh Deah department. Such an institution exists only in the Choshen Mishpat department, where there are judges. Therefore the authority to compel is entrusted to Choshen Mishpat, to the judges. Because the authority to compel is a social act, even though the commandment being enforced is a private commandment.
[Speaker D] Isn’t that a paradox?
[Rabbi Michael Abraham] No, not at all. The commandment is to compel the person to do his obligations, but he doesn’t owe that to me. There’s no plaintiff here.
[Speaker D] He doesn’t owe it to you and yet you’re interfering in his…
[Rabbi Michael Abraham] Correct, by virtue of the Holy One, blessed be He, having appointed me. I’m not interfering. If this were Choshen Mishpat…
[Speaker D] It was formulated in some way so that it would indeed become social and therefore…
[Rabbi Michael Abraham] No, no, no. It’s a straightforward explanation; these aren’t excuses.
[Speaker G] The Torah says—the Holy One, blessed be He, says to the judges: obligate him, compel him.
[Rabbi Michael Abraham] Fine, this isn’t excuses, it’s not… it’s a simple point. Meaning, in the end, in Choshen Mishpat, why does the religious court act? As a representative of the Holy One, blessed be He? No—as the representative of the plaintiff. The plaintiff’s rights were harmed, and he asks the religious court to intervene and protect him. Right? But in Yoreh Deah and Orach Chaim, when the religious court compels, no one is activating it. There’s no one petitioning the religious court saying, wait, he’s desecrating the Sabbath, force him not to desecrate the Sabbath. What business is it of yours if he desecrates the Sabbath?
[Speaker D] Desecrating the Sabbath involves punishment; that’s different.
[Rabbi Michael Abraham] No, no, also to force him not to do it, not only punishment. Also to separate him from prohibition, it doesn’t matter—it’s not only positive commandments. It’s only for positive commandments? “I refuse to build a sukkah and I refuse to take a lulav”—there is also for prohibitions. In the simple sense there is also for prohibitions. Positive commandment. I know, but I’m saying that the same coercion that exists for positive commandments also exists for prohibitions. Even though the examples brought there are positive commandments. To separate him from prohibition.
[Speaker D] Yes, it’s the same thing, the same principle.
[Rabbi Michael Abraham] In both cases it is coercion by the religious court. I’m talking about coercion before, not punishment afterward. And the coercion is that you perform your obligation or be prevented from committing a prohibition. Okay? What? Yes, so then basically the claim is that social action, social activity, is entrusted to the religious court. Concern for one person’s rights vis-à-vis another, or the performance of society’s role regarding the obligations of the private individual in Orach Chaim and Yoreh Deah—that is entrusted to the religious court. And therefore all of it belongs to Choshen Mishpat. Even regarding the commandments of Orach Chaim and Yoreh Deah, the coercion regarding them is Choshen Mishpat. And these are two different kinds of coercion: here we descend to money, there we do not descend to money. I explained all that. In coercion of Yoreh Deah, we do not descend to money. In coercion of Choshen Mishpat, we do descend to money. There is the view of Nachmanides that then “if you compel him in his body, compel him in his money,” but that is only indirect. Fundamentally, we do not descend to money. And why not? Because I want him to fulfill his commandment. If I take his money, then I am fulfilling the commandment in his place, not he. There is no point, in coercion of Yoreh Deah, in descending to money. In Choshen Mishpat, I don’t care whether he does the commandment or not. I need the money to pass to the one to whom it belongs. If he won’t give it on his own, I’ll take it from him. Is the source the right? Yes, the source is the right, so you need to look after the other person’s right. In Yoreh Deah I need to ensure that he performs the commandment. How does it help if I perform the commandment in his place? We’ve gained nothing. We need to ensure that he performs the commandment. Okay, so now that brings me to Even HaEzer. Even HaEzer too belongs to the legal part of Jewish law. Why? Because Even HaEzer also speaks about social institutions. When a person marries a woman, it is a relationship between spouses. As a result of that relationship, there is public testimony, it affects third parties, and so on. Meaning, we are dealing here with a social institution from which society is affected; society needs to understand what is going on, to recognize what is going on, and of course to provide some sort of validation, which I’ll explain in a moment why I say that. Okay? Therefore this too basically belongs to the legal part of Jewish law. And the one who judges in Even HaEzer is the religious court and not the rabbi. And that’s why this belongs to what I mentioned, when I sat there on that panel where we nullified the marriage, so basically yes, the three of us sat as a religious court. And we wrote a legal ruling and nullified the marriage. Afterward I thought the whole thing was unnecessary. Nullification of marriage doesn’t require a religious court. Nullifying a marriage is a ruling in ritual law, prohibition and permission. Annulment of marriage is religious court. “Whoever betroths does so subject to the rabbis,” meaning that the religious court decides to annul valid marriage. That is a governmental act. That can only be a religious court, maybe the supreme religious court of the generation, whatever, but it has to be a religious court. But when I say to a woman: listen, you’re simply living in error, you are not married, you are not married—I did not annul anything; I am simply explaining her situation to her.
[Speaker I] As it really is.
[Rabbi Michael Abraham] What was the point there? I’m saying, nullification of marriage is not annulment. Nullification means there was a flaw—because she didn’t agree, because under these circumstances she would not have become betrothed, all kinds of arguments of that sort that basically say: this marriage was in fact never valid. I’m only the expert explaining her situation; she didn’t understand her situation before. I explain to her, but I did not perform an act of uprooting, I did not uproot a marriage—I explained to her that it never existed. She has been living in error until now, and now it’s not…
[Speaker C] Like the case where the husband disappeared from morning till night?
[Rabbi Michael Abraham] Yes, it doesn’t matter, all these kinds of cases.
[Speaker J] No, but there are things that are matters of discretion—
[Rabbi Michael Abraham] Even things that depend on discretion are like that. It’s not connected. Only when you annul a marriage is it a governmental act. If the marriage is valid, there is no flaw in the marriage, but you as a religious court decide that you want to uproot it—that’s like cancellation of agency and all those things. That is a governmental act. There you need a religious court. That’s not an opinion. Who uproots? Is that an opinion? There you are doing something; you’re not merely expressing your opinion about the legal situation. Nullification of marriage is an opinion: she was never married, she just didn’t know that. Now I come and tell her that she was never married. That’s all.
[Speaker I] But this is a point where society has to recognize that the marriage…
[Rabbi Michael Abraham] Therefore the practice is apparently nevertheless to do it in a religious court, but that’s a custom, it’s basically… yes, but basically it’s not, it’s not—
[Speaker I] just his private business.
[Rabbi Michael Abraham] No, I understand, but in the end I’m only saying that it’s really just a technical matter, meaning you don’t truly need the religious court. Apparently that’s why they nevertheless always have the practice of seating a religious court for these things.
[Speaker C] So then why can a person betroth a woman privately between the two of them?
[Rabbi Michael Abraham] No, he can’t. You need witnesses.
[Speaker C] Witnesses, yes—but not a religious court.
[Rabbi Michael Abraham] No, you’re right—these witnesses, that’s exactly the point. I’m getting to that in a moment, just one second. Okay, witnesses in a contract: a contract can work even without witnesses. In a contract, witnesses do not have a constitutive status. In a contract, the witnesses are only there because “witnesses are needed only against liars,” meaning only liars need witnesses, but they do not have constitutive status such that without them the contract is invalid. A verbal contract, if both of us are talking about it, is fully valid. It depends on the content, of course—if it concerns future matters then the contract won’t help even with witnesses—but a contract that is valid is valid even without witnesses. That’s unrelated. Or with real estate… what? Also with real estate… why do you need witnesses in real estate? You don’t need a document. A document is for proof. Only if you make an acquisition through a document, then the document is an acquisition document, a document that performs the act, but there is no such rule that with real estate you must have documents. You don’t have to. It’s advisable to do so, so that you’ll have proof. In fact, Rabbi Elchanan, for example, wants to argue that even an acquisition document works by virtue of the fact that you transfer proof to the other person. Essentially, the basic document in land is a proof document; so how do you acquire through a document? By transferring to the other person proof that he bought the land, you reveal that you fully intended to transfer the land to him. Basically, in its foundation the document is a proof document; even an acquisition document there is a proof document. That fits with Maimonides, who says that all documents are rabbinic, but that’s what he says. Right, so what I basically want to say is this: social institutions and action on behalf of society—that’s adjudication. Professional opinions—that’s rabbinate. And by this definition, Even HaEzer belongs to the first category, meaning to the action of the religious courts. One indication of this—there are several indications—one indication, as I said earlier, is the exceptional powers that exist in the area of Choshen Mishpat and Even HaEzer that do not exist in Orach Chayim and Yoreh De’ah. In Choshen Mishpat there is the rule that property declared ownerless by the court is ownerless. A religious court can confiscate property even though the property was acquired lawfully—there was no flaw in the acquisition, both of us agreed, everything is fine—and the court nullifies my ownership, nullifies my ownership, nullifies the property. In Even HaEzer there is the authority that whoever betroths a woman does so subject to the rabbis’ consent. The sages can annul betrothal—not invalidation, as I discussed earlier, where someone says there was a flaw in the act of betrothal, but annulment. The betrothal is valid; we do not agree that you should be betrothed, so you are not. Exactly like with money. By the way, neither of these two places really has a clear source. For court-declared ownerlessness they bring some verse from Ezra, but it’s not clear that it’s really a source; it’s logic. Something so far-reaching comes just from logic? Why? It’s obvious—it follows from the law itself. Once I say that these parts are legal parts of Jewish law, what have I said? I’ve said that these are social institutions; society determines what happens there. The governing representation of society is the religious court. If the court does not agree that you are the owner, then you are not the owner. If the court does not agree that you are husband and wife, that you are lawfully married, then you are not married. Why? Because society has to give its stamp of approval to that social status—whether ownership or personal status. All of these are social status. That is one indication. For example, every legal system in the world contains neither Orach Chayim nor Yoreh De’ah. It has no laws of those kinds at all; they don’t exist there. In Jewish law they exist, but they are not in religious court. But every legal system does include personal status and civil law, including monetary law. Every legal system in the world. Why? Because every society in the world understands that regulating personal status—who is married, who is not married, who is divorced, and what your personal status is—and regulating monetary law and acquisitions and ownership and contracts and compensation and torts and all those things, that is society’s role.
[Speaker L] And that’s only because there are third parties affected by it; otherwise only because of that. They’re not representatives of society for no reason. You can decide that…
[Rabbi Michael Abraham] No. Representatives of society in this sense—even when there is a private right, there is still a right that is general. Meaning, the right that people not harm me is my right against the whole world. A contractual right, say in the laws of bailees, is only between us because we signed a contract, so it’s between us—that doesn’t matter. You still need a social institution that both of you are part of, that will dictate what happens here, that gives some kind of stamp of approval.
[Speaker L] It gives some kind of stamp because of the reality—meaning because there are third parties affected by it, therefore it’s like that. You could just have some violent guy I rely on to enforce justice, and that’s the end of the story, and I don’t care whether he recognizes the system.
[Speaker M] If there’s a contract between two people, where is the third party affected here? No one is affected.
[Speaker L] Why? If I make a contract with you that I gave you my house, and the day after tomorrow there’s an attachment order on my house, then I tell him goodbye because it’s been transferred to you—so he can object.
[Rabbi Michael Abraham] There are third parties in almost every contract you’re
[Speaker L] talking about; there is an effect on third parties.
[Rabbi Michael Abraham] Every contract we sign—a contract where something of mine passes to you—why was it transferred to him?
[Speaker L] I preceded him.
[Rabbi Michael Abraham] We determine who the owner is here. When? In a moment I’ll also get to the effect on third-party factors.
[Speaker C] So does that mean that, fundamentally, three of us could sit down, turn ourselves into a religious court, and inform a woman that she is permitted to the world?
[Rabbi Michael Abraham] Even without turning yourselves into a religious court. What do you mean? Are you talking about invalidation or annulment? Annulment. Annulment? Who said every court can do that? Only a court that is accepted, an authorized court, the leading court of the generation. That’s how most halakhic decisors hold.
[Speaker C] From whom does it receive that authority?
[Rabbi Michael Abraham] From the Jewish people. Exactly—that is governmental authority of the Jewish people. It’s not that the two of you decide.
[Speaker C] A religious court as representation of society? Representation of society—what does representation of society mean?
[Rabbi Michael Abraham] If all of society agrees to the three of us, no problem. But if the three of us appoint ourselves, that’s like that Sanhedrin those clowns set up a few years ago. They decided they were the Sanhedrin. Fine—so what? I can decide that I’m Napoleon.
[Speaker C] I remember the Rabbi sat on it, for that matter.
[Rabbi Michael Abraham] That was invalidation, not annulment. That’s what I’m saying. I sat on a religious court.
[Speaker C] I thought it was in a court and it wasn’t needed. No, on the contrary. Not a recognized court. Suppose you sat as a court at the Kaveret institution and so on. Right. Who appointed you?
[Rabbi Michael Abraham] The woman sought release before us, and we…
[Speaker C] You were just three Jews.
[Rabbi Michael Abraham] Obviously, and we imposed nothing. That’s what I’m saying—I could have sat alone. I didn’t need two others at all.
[Speaker C] So why all the staging?
[Rabbi Michael Abraham] Because usually things like this are done in a court, so we did it in a court. But that’s custom. No, that’s how it’s done—that’s the custom. Really, only afterward I thought that in fact a court wasn’t needed at all.
[Speaker C] A court wasn’t needed at all. There aren’t even two opinions about it.
[Speaker K] But there’s a practical difference according to your approach. Seemingly, according to what you’re saying, when a religious court annuls, they don’t… because in every ruling I’ve seen where courts annul, they say: look, if the woman had known that the husband would betray her or something like that, then the betrothal would never have taken effect. That’s from the outset, that’s annulment—no, that’s exactly it! That’s invalidation! According to what you’re saying. If so, I haven’t seen a single ruling of annulment where they say: look, everything is fine, the betrothal took effect, everything is valid, only what? We’re annulling it.
[Rabbi Michael Abraham] Of course! Because today they don’t do that. What do you mean? Of course, because today they don’t do it, since there is no court recognized by everyone. That’s the whole problem—today the power of annulment is not used.
[Speaker K] In the last hundreds of years—like the wayward and rebellious son, “study it and receive reward”—there never was and…
[Rabbi Michael Abraham] No, I’m speaking now about how Jewish law is structured. I don’t care what happens today. What happens today is all degenerated.
[Speaker K] No, throughout all history—did any court ever annul without reason, without reason…
[Rabbi Michael Abraham] What do you mean, without reason? With reason.
[Speaker K] Without a rabbinic reason, let’s call it that.
[Rabbi Michael Abraham] Without a rabbinic reason, but not a reason that defects the betrothal, because then it’s not annulment, it’s invalidation. The Talmud… there are three laws that we still practice today. If I now send an agent to divorce my wife and I revoke him without his knowledge, the betrothal is void. The betrothal, not the divorce. We’ve already been married for thirty years, okay? I sent an agent to divorce my wife and I revoked him without his knowledge.
[Speaker K] Then you don’t need a court to annul.
[Rabbi Michael Abraham] Why don’t you need one? Because there was a court that annulled—a court in the Talmud. The Talmud determined that such betrothal is void. It annulled it. By the way, there is a Rashi in Bava Metzia on page 57, I think, something like that, from which it sounds like today’s court is actually considered the one that annuls. He’s talking about money, not personal status, but it’s the same principle. “Who committed the misuse?” apparently that Rashi there—“who committed the misuse?” Was it the woman, the husband, or someone else, in a rabbinic matter. So he says: the court of that… the community’s court is the one that committed the misuse.
[Speaker E] Annulment, in the sense that a religious court annuls betrothal and it’s not because of some conditional clause—from that it is proven that betrothal is a social institution. Not everywhere that a court is the representative of the community… they can also be representatives of the community, but also representatives of the Holy One, blessed be He, who said “when a man takes a woman,” and so on. They permit it by virtue of being the community’s representatives.
[Rabbi Michael Abraham] There’s no difference. Agents of the Merciful One. A religious court, fundamentally, is agents of the Merciful One. Ordination comes from above, not from below. Ordination comes from Moses our teacher downward, not because the public decides who it will be. Only Maimonides wanted to innovate ordination from below.
[Speaker E] So the public has to authorize them…
[Rabbi Michael Abraham] No, they are representatives of the public. You’re assuming democracy.
[Speaker E] The very fact that the rabbis can annul betrothal, that a religious court can annul betrothal, is a sign that betrothal is a social institution.
[Rabbi Michael Abraham] Because the community is what authorizes them. Not because the community authorizes them. No, there you made a leap. That’s what I’m saying. You’re too democratic. You’re living too much in modern times. No, representatives of the public are appointed by the Holy One, blessed be He. Tosafot says this even about priests, right? Agents of the Merciful One and our agents—they’re both. Why are they both? Because the Holy One, blessed be He, appoints our agents. It is not our agreement; there is no democracy.
[Speaker E] So what was the proof you wanted to bring from annulling betrothal?
[Rabbi Michael Abraham] I’m saying that in these two areas, both in betrothal and in monetary matters, the sages have authority to override Torah law, and there is no source for it. There is no source. Where did it come from? So I’m offering an explanation; offer another one. I claim that it stems from logic, because the sages understood that these things are social institutions—just as every legal system in the world understands that personal status and monetary law are legal matters. And therefore they require the stamp of the state. There is no ownership anywhere if there isn’t a legal system that decides ownership. That’s obvious. In some place on the moon where you happen to be, there is no ownership on the moon because there is no government there establishing ownership. Okay? The same with personal status. That’s my claim. The same thing. And it all emerges from logic; there is no source. And that is what leads several medieval authorities to write that it’s because of a condition, because there is no source. So how can the sages suddenly annul? So apparently it’s a condition. But a condition doesn’t work. Why? Because there are cases where they annul someone’s betrothal because “he acted improperly, so we too will annul his betrothal,” right?—when he betroths a woman against her will. So if he acted improperly, is he conditioning it on my consent? That wicked person?
[Speaker F] He says, “according to the law of Moses and Israel.”
[Rabbi Michael Abraham] So he says it—so what if he says it? But he’s wicked; clearly he did not intend to condition it on my view. The Torah conditioned it on my view. The Torah conditioned it on the sages’ consent. He is not the one making the condition; it’s not the person. The Torah made betrothal, as part of the legal part of the Torah, contingent on society’s consent, whose representatives are the sages. That’s all. “Whoever betroths does so subject to the rabbis’ consent”—that’s what it means. It’s a rule of the Torah, not because the two parties agreed between themselves. It’s not a condition. More than that—I’ll tell you, if it were a condition, then it would have to work retroactively, right? That’s usually how people understand it, right? That annulment of betrothal works retroactively—it turns out there never was betrothal. And there are several places where we see that it does not happen retroactively. What in legal language is called prospective. I annul the betrothal from now on. There is—just recently I saw the Nimukei Yosef.
[Speaker C] The children are completely valid. What? The children are completely valid.
[Rabbi Michael Abraham] The children are valid in any case, because at worst they are children from an unmarried woman.
[Speaker C] They’re not even disqualified from marrying a priest?
[Rabbi Michael Abraham] Not even disqualified from marrying a priest, in any case.
[Speaker N] There’s no difference. Whether with annulment or from the outset.
[Rabbi Michael Abraham] What? Look, I saw it just recently—I saw the Nimukei Yosef. The Nimukei Yosef asks: how could the rabbis institute a date in bills of divorce? And the Nimukei Yosef says: because they have authority to annul betrothal. Because what happens when they institute a date in bills of divorce? It means that if you didn’t write a date, the divorce document is invalid. Let’s say void for our purposes, because that’s not exactly the law, but never mind—that’s how he assumes it there. Then he says the divorce document is void by Torah law, because by Torah law it needs a date. Now the sages came and waived the date. They waived it—you don’t need to write a date in a bill of divorce. And afterward—“for what reason did they institute a date?”—that’s the third stage according to the Nimukei Yosef, okay? But let’s talk about the second stage. They canceled the date. So what happens? I wrote a bill of divorce without a date. By Torah law she is a married woman, right? Because the divorce document is invalid, void. But the sages say: no date is needed; the document is valid even without a date. I don’t understand. By Torah law she is a married woman, and the sages turn her into an unmarried woman? How? The sages are saying that a bill of divorce without a date, which in principle by Torah law is void, is valid. So what they are actually doing is taking a woman who is a married woman and determining that she is unmarried. So the Nimukei Yosef says: the rabbis annulled the betrothal. They have authority—whoever betroths does so subject to the rabbis’ consent. Which means that someone who wrote a bill of divorce…
[Speaker D] Who says that’s from now on?
[Rabbi Michael Abraham] Wait. Does that mean that someone who wrote a bill of divorce without a date was never betrothed? The woman isn’t divorced? Maybe? Heaven forbid. No such thing. That’s not what is written there. It’s obvious that when you write a bill of divorce without a date, they validated the document. The document works from now on. No, that’s not what he suggests. They validated the divorce document, not that they nullified the betrothal. They have the power to validate the document because of that authority to annul betrothal. But validating the document means that if you divorced her with a bill of divorce lacking a date, the woman is divorced—not that the woman was always unmarried.
[Speaker D] What—was there some period when that’s how they did it? Or what was it?
[Rabbi Michael Abraham] Historically, I don’t know; he doesn’t explain there what happened. But yes, on the conceptual level.
[Speaker D] Is that the law in some case?
[Rabbi Michael Abraham] It doesn’t matter—why do I care? So from the standpoint of the law, why do I care whether there was ever such a period?
[Speaker D] Maybe it’s from now… how retroactively?
[Rabbi Michael Abraham] No, but he says a bill of divorce without a date is a divorce document valid by rabbinic law. It’s not true to say that it is a valid divorce document if really the woman is not betrothed; then it’s not a valid divorce document.
[Speaker D] She can, from the outset, marry anyone in the world.
[Rabbi Michael Abraham] And can she marry a priest too? Ah—that’s exactly it. But no, she’s divorced. He said the divorce document is valid. He did not say the betrothal never existed. The divorce document is valid. What does that mean? That it is from now on. The sages annulled the betrothal now, not retroactively. How does such a miracle happen? The woman leaves the betrothal without a bill of divorce. By the way, this is only one case among several; there are several other places where the invalidation is prospective and not backward, not retrospective. Not according to everyone, but several medieval authorities in several places can be seen to hold that the invalidation is prospective. How can that happen? The answer is that the only reason you are betrothed is because the sages agree. If the sages do not agree, you are not betrothed. It’s not that the act is contingent; even your status is contingent on that. Even if the act was completely in accordance with the law—if we do not agree, you are not betrothed. And if we do not agree from today, then you are not betrothed from today, even though there was a complete act of betrothal. I once wanted to argue—by the way, parenthetically, I see this is taking me a lot of time—I once began an article on, maybe I talked about it, monetary law in the Kovno Ghetto. There my claim was based on someone named Rabbi Gibraltar. There was a whole series of articles and critiques about it, that it doesn’t fit with monetary law and this and that, and I argued that it does fit with monetary law. And the claim was that in a ghetto there is no monetary law. There is no ownership. Why? Because in a ghetto there is no legal system. Any Ukrainian kid can take what he wants from you, shoot you in the head. A lawless world. In such a world there is no ownership. There is no ownership. Meaning, if you hold a certain object, it is not yours. And Rabbi Gibraltar said that there after he had been in the ghetto and had lent money, and after the war they came to repay him, he said: that money wasn’t mine; you don’t need to pay me back. There was no ownership in the ghetto. There were many implications; there was—it was a very interesting topic. And that was my claim: that in a place…
[Speaker C] So then you can’t betroth? What?
[Rabbi Michael Abraham] In a moment we’ll see. So Rabbi Shimon Shkop speaks about the theory of legal systems—that social agreement actually creates the laws of property. And the Torah prohibition “do not steal” comes on top of the property laws. Once there are property laws, the Torah imposes “do not steal” on anyone who violates them. But who established property law? Society. That is something that exists prior to Jewish law. Now what I wanted to claim is that since I hold that Even HaEzer is also like this, like Choshen Mishpat, then someone who betroths a woman in a world of ownerlessness—the old kibbutz, say—she would not be betrothed. He could do it with two valid witnesses, and the woman would not be betrothed. Because it’s a world in which there is no concept of betrothal, just as in a world where there is no concept of acquisition there is no Choshen Mishpat, no property law. In a world where there is no concept of personal status, in a world where everyone swaps partners and the couple-unit has no meaning at all—and there were such places in history—then there would, in principle, be no betrothal.
[Speaker C] Even
[Rabbi Michael Abraham] if it was done according to the law.
[Speaker C] Before that—the act of betrothal itself is an act in which you have to give the woman something worth a perutah.
[Rabbi Michael Abraham] No, what you wanted to say earlier was that because there is no property, you can’t betroth, and then I’ll betroth through intercourse. That’s not the point. You’re talking only about betrothal by money. Fine, betrothal by money—but what can be said about betrothal by intercourse? That’s exactly what the Talmud asks. I say no, no—I’m saying there is no betrothal at all. And by the way, that is also the answer to the Talmud’s difficulty in Ketubot. It’s a strange Talmudic passage. The Talmud says: the rabbis annulled his betrothal. The Talmud asks: fine if he betrothed with money, because court-declared ownerlessness is ownerlessness. But if he betrothed through intercourse, what can be said? The Talmud says: whoever betroths does so subject to the rabbis’ consent, and the rabbis annulled his betrothal. What kind of answer is that?
[Speaker C] That marriage is based on the court’s consent and…
[Rabbi Michael Abraham] Some say it’s a condition. No—once you understand that the whole foundation of betrothal is society’s agreement or recognition, then it has nothing to do with whether it was money or not money. What kind of answer is “the rabbis annulled his betrothal”? I’m asking you: but why did they annul it? That was the question. What did you answer? Fine, so here the medieval authorities really write: maybe it’s a condition. And I say that doesn’t hold water in many places; at least according to many views among the medieval authorities it cannot hold water. I think the straightforward explanation is not that, and even in the Talmud itself the straightforward explanation is not that.
[Speaker D] Can one distinguish between the case of the ghetto and the case of personal status? Because with money one can say it depends on control, and the agreement about ownership also depends on control.
[Rabbi Michael Abraham] What—in enforcement of monetary law?
[Speaker D] Because property over which there is no control is not really…
[Rabbi Michael Abraham] I agree. So you’re narrowing it more. I want to make a more far-reaching claim.
[Speaker D] So theoretically, could it be that they just aren’t considered legally competent at all?
[Rabbi Michael Abraham] That distinction is possible, but I’m bringing these things now not as practical Jewish law, but in order to show how far the matter goes. Meaning, I want to claim that the problem is not only the lack of enforcement, but that there is no such system here at all. It’s not just that we cannot enforce it. It doesn’t exist; it’s irrelevant. There is no recognition here of monetary law. So too with personal status: if betrothal is not recognized here, then there is none. Then there will be no betrothal. You cannot decide between yourselves about betrothal. Okay? That’s my claim. Now if that really is so, think of a situation where we were lawfully betrothed, husband and wife. And now the world became like that. Suddenly it becomes anarchic. No separation, everything is lawless—Sodom and Gomorrah.
[Speaker E] Fine? The betrothal would be annulled.
[Rabbi Michael Abraham] That’s what I’m saying. So I claim the betrothal would be annulled. Annulled now, not retroactively. Why? Because what is contingent here is not the act of betrothal. What is contingent on social recognition is the very fact that you are a married couple. Therefore, even if the act of betrothal was according to the law, and after ten years this happened, it makes no difference. Every moment that you are a married couple is only by virtue of society’s recognizing you as a married couple. The act is not contingent on society’s consent; your state is. And then you can understand why the annulment is prospective. At every moment, if we do not agree, then there is no betrothal. And this follows from logic, since this is the legal part of Jewish law. The legal part of Jewish law is contingent on lawmakers, on the people who determine the legal standards.
[Speaker D] Could it be that there are objective social laws that even
[Rabbi Michael Abraham] if the government
[Speaker D] doesn’t recognize them, maybe there could be?
[Rabbi Michael Abraham] Maybe, but then of course in monetary matters as well it would not be so. Fine. I said that to get to practical rulings there are still several things to clarify. I also wrote about this, by the way, in that article.
[Speaker C] If a married couple managed to survive the ghetto and the camps and get out—no, to go through the camps—
[Rabbi Michael Abraham] There was personal status there.
[Speaker C] He doesn’t have to betroth them again?
[Rabbi Michael Abraham] No. There was personal status there. Ownership of property did not exist there, but personal status did. There were couples, and other people did not take one another’s spouses.
[Speaker F] And that did function there.
[Rabbi Michael Abraham] Monetary matters were ownerless, but status…
[Speaker C] Didn’t the Rabbi distinguish? The Rabbi said that once the legal system collapses—
[Rabbi Michael Abraham] No. Once the system of personal status collapses, then personal status falls away. Once the system of Choshen Mishpat collapses, ownership falls away. They do not have to collapse together. It could be—I’m saying it could be. I’m saying that to state this in practice depends on several more clarifications. I’m bringing it only to sharpen the point—what exactly the idea is behind these things. Let me maybe give you another example. There is a dispute between the Ketzot and the Rashba about someone who betroths—a man and woman who betrothed themselves privately. You need two witnesses, right? They betrothed themselves privately and, since “a litigant’s admission is like a hundred witnesses,” both of them admit it. Both admit there was betrothal, so their admission is like a hundred witnesses, and it’s as though they were betrothed before witnesses. So the Ketzot—if I remember correctly—says this doesn’t work because you need actual witnesses.
[Speaker D] Constitutive witnesses, not merely witnesses of observation.
[Rabbi Michael Abraham] No, they’re asking about constitutive witnesses. So he says that for constitutive witnesses you specifically need witnesses, not proof that is like a hundred witnesses.
[Speaker D] But then it doesn’t belong to say “constitutive witnesses” in connection with a litigant’s admission.
[Rabbi Michael Abraham] That’s what you’re assuming. So I say—that’s the Ketzot, but the Rashba doesn’t say that.
[Speaker D] If admission is an obligation, then admission is not…
[Rabbi Michael Abraham] An admission is not an obligation; it is credibility.
[Speaker D] It doesn’t apply, because constitutive witnesses are not about credibility. It’s not that they tell us and we believe them. Constitutive witnesses are a reality—you need them in some, I don’t know, mystical sense.
[Rabbi Michael Abraham] First of all, admission is not an obligation; it is credibility. That’s first of all. According to no one is it otherwise. Meaning, both the Mahariban Lev and the Ketzot—everyone agrees to that. Anyone who says otherwise is simply mistaken. Meaning, it’s just not correct. In some later authorities where it’s written, people also don’t understand them properly; they didn’t mean to say that. Others are simply wrong. No—it is credibility. It is clear that it is credibility.
[Speaker B] Okay, but constitutive witnesses are not credibility.
[Rabbi Michael Abraham] No, constitutive witnesses—that’s another question. Constitutive witnesses are witnesses who serve as proof, but their role is to constitute the betrothal. And that is what the Ketzot and the Rashba are debating. So if so, some other proof could also constitute the betrothal, because on the evidentiary level a litigant’s admission is like two witnesses. So that too could constitute the betrothal. That is the question. So the Ketzot answers that. And the Ketzot answers: for constitutive witnesses, proof won’t help; you need the witnesses—not the evidentiary force that lies in the witnesses, but the witnesses themselves; they constitute the matter. By the way, there is quite a bit of evidence that this is not true. Meaning, these witnesses serve here as proof, and that is how they constitute the betrothal.
[Speaker D] So then any proof would be constitutive?
[Rabbi Michael Abraham] Proof equivalent to two witnesses.
[Speaker D] That’s the question. A document is like two witnesses. So then also. Any proof that has the force of two witnesses.
[Rabbi Michael Abraham] Then why do you need witnesses?
[Speaker D] If a man betroths—you don’t need them. How does a man betroth a woman with a document without witnesses?
[Rabbi Michael Abraham] So I said: according to this question, you don’t need them. Only if you say that you specifically need witnesses, as the Ketzot says, then a document won’t work and nothing else will. So that’s the question. Fine—but the Rashba, for example, doesn’t say that. The Rashba says that because it harms others, a litigant’s admission is not effective. What does that mean? It means that if it did not harm others, he would have had no principled problem with a litigant’s admission effecting betrothal. Why? Don’t you need witnesses? Witnesses for the existence of the matter. What does that have to do with it? The fact that it harms others might affect their credibility, or whatever, that’s not the point right now. What does it have to do with our discussion? The Rashba understands that something that has credibility equal to two witnesses can effect betrothal. The Ketzot himself cites him and disagrees with him.
[Speaker D] So then according to his view, would a document work, or all kinds of other methods?
[Rabbi Michael Abraham] If it really works like two witnesses, yes, it would work. Yes.
[Speaker E] Who can say “it harms others” in such a case? Who can say it harms others?
[Rabbi Michael Abraham] If there are only two people in the world, then it’s not at all clear that there is betrothal, because it is a social institution. So between themselves they can do whatever they want. If he prohibits her to no one else in the world, I don’t know whether betrothal has any meaning—that is already a tannaitic dispute.
[Speaker B] He prohibits her if someone comes.
[Rabbi Michael Abraham] There is no one else—just Adam and Eve alone in the world—so someone will come. Their son? Their son is forbidden to them anyway. “The sons of God came to the daughters of men”—what is going on there, how were more people created? That’s a mystery. Fine, never mind. In any case, then—kindness—
[Speaker H] “The world is built on kindness”; the midrash says that was brother with sister. Yes.
[Rabbi Michael Abraham] So the Rashba says it harms others. What does that mean? It seems to me that what the Rashba means is as follows: basically, constitutive witnesses—and this is also the Pnei Yehoshua—why do you need witnesses for the existence of the matter in betrothal? That is a difficulty; Rabbi Shimon Shkop already asks it. After all, we learn the need for two witnesses from the analogy “matter-matter” from monetary law and from matters of sexual prohibition, right? And suddenly a miracle happens: in matters of sexual prohibition, two witnesses are witnesses for the existence of the matter, while in monetary law, which is the source, witnesses are only there against falsehood—meaning only to prevent lies. So he argues that there too they are witnesses for the existence of the matter; even in monetary law he has a whole approach on this, Rabbi Shimon Shkop. But basically it seems to me that what is written there is something completely different. What the Talmud is really saying is that when there are two witnesses, that means that we essentially have proof that there was betrothal, and society can know from that that there was betrothal. For that you need proof. But this proof is not intended for the court—they’re not actually going to testify. Therefore, for example, there are views that the rule of finding among them a relative or someone disqualified does not apply to witnesses of betrothal, and witnesses of betrothal do not know that they are coming to testify. “A relative or disqualified person found among them” applies only to witnesses who come to testify. It is even a dispute brought in the Shulchan Arukh, which gives two opinions. But what is happening here is that this has to be proof, and that proof constitutes the betrothal. Why? Because proof is the way the public knows that betrothal took place. Anyone who asks can verify it, because there is proof here that there really was betrothal. If that is so, then society is willing to give it its stamp of approval, and the two witnesses are essentially representatives of society. They are society’s representatives sitting there in order to bring the information to society and to give the stamp of approval in society’s name. And that is what constitutes the betrothal.
[Speaker L] What is society going to do with that information? Why is it needed?
[Rabbi Michael Abraham] In order to know who is permitted and who is forbidden—that is exactly the implication for others.
[Speaker L] Only because of the implication for others? Only because there are other parties?
[Rabbi Michael Abraham] That’s what the Rashba says. That’s what I’m saying—that’s what I’m talking about. What the Rashba wants to argue is not that it harms others like in an ordinary litigant’s admission, where an ordinary admission is not believed when it harms others, but rather that because it harms others, therefore you need witnesses. “Harms others” means this is a social matter. Betrothal is not Yoreh De’ah; it is Even HaEzer.
[Speaker L] There’s some public element here—the public determines whether you’re married or not married. It’s not that the public determines; the public just gives a stamp.
[Rabbi Michael Abraham] What does “determines” mean?
[Speaker L] It’s not giving a stamp—once you made a contract with him, it’s exactly like making an ordinary contract. Okay, so we’re one hundred percent agreed, then we want witnesses that the contract you made with him was on date X. Why? Because on date Y before that date we made some other agreement. It’s only that, no?
[Rabbi Michael Abraham] So I claim not.
[Speaker L] Yes, but I’m asking—let’s take an ordinary contract, not between spouses.
[Rabbi Michael Abraham] Any contract that society does not recognize—there is no contract.
[Speaker L] It’s not that it recognizes it for no reason.
[Rabbi Michael Abraham] No, if society does not recognize an ordinary contract, then certainly if it doesn’t recognize it, there is no contract. Even if we both agreed, there is no contract. A loan contract? What do you mean?
[Speaker L] No
[Speaker K] contract.
[Rabbi Michael Abraham] No contract in Choshen Mishpat—if society does not recognize the contract, there is no contract, even if we both agreed. Court-declared ownerlessness is ownerlessness—what does that mean? It means that society, or its representatives, the sages, do not recognize it. The two of you agreed; court-declared ownerlessness is ownerlessness—there is no contract. There is no contract because legally it depends on recognition by the legal system.
[Speaker L] What does “recognize” mean?
[Speaker I] Is it only a matter of whether it can be claimed in court?
[Rabbi Michael Abraham] Exactly—no, but that’s an indication, only an indication. That’s what I’m saying. It’s not only enforcement. Enforcement is a result. First of all, it’s because society is the basis for the existence of contracts. Contracts are a social institution.
[Speaker L] But what is society? I’m just unable to understand the whole idea. What is court-declared ownerlessness? Just that the court decides it wants to confiscate something? It’s not because it just decides—meaning it’s not that society now agreed. It’s because there is some order like this, and if we don’t preserve it then again there’s no contract.
[Rabbi Michael Abraham] Don’t preserve it? In court-declared ownerlessness it’s not when the contract is perfectly
[Speaker L] fine, nothing happened, the contract is fine, and then court-declared ownerlessness—what, they take
[Rabbi Michael Abraham] your money?
[Speaker L] They’re not taking your money. You agreed something with him. It’s not that they take it. They take your money because they suspect the agreement you made with him is fictitious, and now you’re harming him just because suddenly…?
[Rabbi Michael Abraham] You’re talking about invalidation; I’m talking about annulment. Again, it’s the same distinction. I’m not talking about a situation where there was a flaw in the contract—that is not court-declared ownerlessness. The court says there was a flaw in the contract; the contract is invalid. I’m talking about annulment: a valid contract, both parties intended it, and the sages cancel it.
[Speaker L] What example is there of a court being able to annul a contract I made with him if not because of credibility issues that harm some third party?
[Rabbi Michael Abraham] No, there are other public interests. What does that have to do with it? But not because of your two parties’ meeting of minds. If it’s because of your meeting of minds, then it’s not court-declared ownerlessness—the contract is invalid and there’s no need to annul. There’s no need to annul, because you didn’t agree. That parallels invalidation, as I said earlier, not annulment. Court-declared ownerlessness is to annul. It is explicit in the Talmud, it’s not—there are all kinds of examples. Here, for instance, the example we brought: the sages can declare ownerless something prohibited for benefit by rabbinic law, okay? Or a transfer in the presence of all three parties—a rabbinic acquisition, okay? We acquired something by a transfer in the presence of all three parties, transferring from this one to that one, this and that are transferred from one to another. By Torah law one cannot transfer ownership that way at all; the rabbis instituted that one can transfer ownership through a three-party transfer. Now I acquired this money—can I betroth a woman with it? It belongs to me only by rabbinic law.
[Speaker L] Yes, he can betroth a woman with it.
[Rabbi Michael Abraham] Why? Because the sages said that although it is not mine, the sages decided that it is mine. Every rabbinic monetary enactment is basically based on court-declared ownerlessness, because it removes property. So the point is that the sages’ powers—this “harms others” of the Rashba, at least it seems to me—that “harms others” of the Rashba is not “harms others” as in any ordinary litigant’s admission, where the problem is that a litigant’s admission is only credibility about yourself, not about others. The “harms others” of the Rashba comes to say: this is a social institution, it harms others—it’s not some private matter between the two of you, so you need witnesses for the existence of the matter. And if that is so, then the Rashba too is like the Ketzot. That’s what I want to claim. And now you’re right. Meaning, the Rashba also doesn’t mean to say that a litigant’s admission would help, only there is some technical problem because it harms others. Rather, he means that because it harms others—that is, because there is a public social issue whether you are married or not; it is not your private matter—that is what “harms others” means. Therefore I need two witnesses for the existence of the matter, because only two witnesses are society’s representatives and they establish the matter. That is what he means, and not that otherwise—as you asked—you could have acquired, you could have betrothed with a document, or with all kinds of proof, an unceasing public rumor, it doesn’t matter, all kinds of proofs that have the force of two witnesses. I don’t think so, but okay, everyone can decide. In any event, the claim is—
[Speaker L] that the enactment for returning thieves, in the case of robbers—that too is society’s agreement, that too is because society has to be managed. But it’s not—it’s only because there are other parties that… but what other parties are there?
[Rabbi Michael Abraham] But that beam—I bought it; you didn’t buy it, the robber did. It’s mine.
[Speaker L] Fine, but he is a robber, but we nevertheless try—even if some…
[Rabbi Michael Abraham] I understand the justification, but justification is not enough. I also understand why we would want to permit an agunah, but we don’t permit her if there is no possibility to permit her, right?
[Speaker L] I don’t know. In my opinion, even in a totally criminal world there are still some rules that run the system and preserve those rules, because otherwise there wouldn’t be…
[Rabbi Michael Abraham] The enactment for returning thieves is something that exists in every… what? It’s a special enactment of society, what do you mean? It explicitly…
[Speaker L] breaks through the boundaries of the law.
[Rabbi Michael Abraham] What do you mean, codes of behavior? I want my beam! What do you mean? It’s my beam! How can you take it from me?
[Speaker L] So society, because it wants to fix things, and we know that it… right, society. So then it wants to—and I want to as well. So the price you pay… it has authority! Of course it has authority.
[Rabbi Michael Abraham] Fine, it wants to—okay, so it wants to. But that…
[Speaker D] that it
[Speaker I] wants is not enough.
[Rabbi Michael Abraham] It needs to have the authority also to implement what it wants, and I’m asking where that authority comes from, not why it wants to. I understand the logic of why they want to do it, but I’m asking how they manage to do it. The authority is only because it has power. It only has power—is that the authority? Jewish law recognizes that it has power; Jewish law recognizes it because in fact it can do it. What does that mean? I also have power, I’m also a thug, so because of that Jewish law lets me rob? What does that have to do with anything? Jewish law recognizes this; this is something that is halakhically legitimate, it’s not a matter of being a thug. The disqualification of women as witnesses—is that a function of the social status of a woman, or is it something inherent? That’s a big question you asked. I don’t know. But why is that relevant here? No, because if the role of the witnesses is to be, so to speak, representatives of the public… then maybe women could also do it. Seemingly. There’s room to discuss it. I don’t know. The problem here is either that this is really a legal memorandum, that all of Even HaEzer is under some legal category. Basically, everything you’re saying is only about the legal effect of betrothal, but even with betrothal, say, the Sages can’t say that if she is betrothed to a particular man she’ll be permitted to another man, or the reverse; or that if she is subject to levirate marriage she’ll be exempt from levirate marriage; or that she needs… They can’t shape the betrothal itself, obviously. To change from the laws… right, there it’s certainly different. Fine, but in all the laws, only in one law do they have control over it, and that is marriage. The most basic law, all personal status, is whether she is betrothed or not betrothed—that’s the whole story. Right, but only that. Fine, because the Torah itself said things; therefore in questions of marriage and conjugal obligations you can’t make a stipulation against it, exactly the same way the Sages also can’t determine that it will be without that, because that’s against the Torah. But in civil law it’s not against the Torah, fine, because here too the Torah set a framework; in civil law it didn’t set one. But within the framework that the Torah established, the Sages have authority to decide. And the framework is only about one law. Again, that one law includes almost all of Even HaEzer, yes—betrothed or not betrothed, that’s the whole issue; everything else is decorative details. If someone gives another theory about… yes, exactly, fine. If we give another theory about betrothal, levirate marriage… yes, exactly, fine. Give me… only about this law, it seems to me. Right. In monetary law too, it’s only about this law, that one can declare property ownerless. Well, so what? Why is personal status also everything? Personal status is whether you’re married or not married, and we can decide whether you’re married or not. So in money too we can decide whether the money is yours or not yours. To decide about a woman that she won’t need halitzah or that she won’t need a bill of divorce? They can’t say that. Okay, obviously, because the Torah established that. In monetary law it didn’t establish anything. I’m saying: within the framework that the Torah left, the Sages can decide. Fine. Right. Indirectly, fundamentally all these laws are not social laws. They are objective laws that don’t depend on anyone. You explain to me why judges deal with this and not rabbis. Can you explain that to me? In Even HaEzer. I’m asking, I’m giving a picture—it’s a big difficulty. I’m giving a whole picture; you explain the whole picture, don’t give me some local distinction here. Explain the whole picture. Why does adjudication include Even HaEzer and Choshen Mishpat, while Orach Chayim and Yoreh Deah are something else? Why here do they go down to property and there they don’t? Why here is it a religious court and there it’s a rabbi? Why here does a stipulation work and there a stipulation doesn’t work? Why do the Sages have authority here and not there? I’m giving a whole list of things—the whole picture. So fine, maybe all these things each have a different explanation. By all means, let’s hear it. Wait a second, is a mamzer only a mamzer if a religious court determined it? Say a married woman committed adultery and a son was born? Of course not. Ah, so what do you see from that? That it’s not always so. It doesn’t depend on a religious court. If there was no betrothal he won’t be a mamzer. No, I’m asking him. A son was just born to a married woman outside the marriage. But if a religious court decides she isn’t married, then he isn’t a mamzer. A religious court can’t decide that he isn’t a mamzer. A religious court can decide that his mother wasn’t married; automatically he isn’t a mamzer. That it can do. Obviously. Suppose nobody asked. Now someone comes and asks the rabbi: I come to ask the rabbi, is this Jew a mamzer? What will he say to me—wait, I’ll refer you to a religious court? He’ll tell me, no, sorry, he’s a mamzer. That’s a legal opinion, it’s not related. Wait, but the legal status that he is a mamzer is a status in itself. Obviously. What do you mean? In money too, look. A religious court might rule differently. The Torah established that a child who is born to a married woman is a mamzer. What do you mean? Obviously. Ah, so what does that have to do with anything? And I ask: does the institution of betrothal and divorce itself depend on the consent of the Sages? It’s like if you go to someone in the market and you want to rob him. Will you go ask a rabbi? Will you go to a religious court to tell you that you’re forbidden to rob? You’ll go to a rabbi and he’ll tell you that in such a case you’re forbidden to rob. That’s not determining ownership; that’s determining the implications of ownership. So you’ll go to a rabbi and he’ll tell you that robbery is forbidden, yes, exactly like in this example. Performing actions that change the legal status—that’s only a religious court. A legal opinion about what is permitted and forbidden to do in any given situation, in both Choshen Mishpat and Even HaEzer—I brought this example from Yerucham—also regarding Choshen Mishpat and Even HaEzer, when you go to get a legal opinion, go to a rabbi. No problem; you don’t need a religious court for that. It’s commonly said that unlike marriage among Christians, where the priest creates the legal effect on the declarant, among us the rabbi only has the role of advisor or expert who makes sure the wedding protocol… The rabbi in betrothal really has no role at all; the witnesses have the role. Because of the secret of the witnesses specifically, they have a role. Obviously, witnesses to the establishment of the matter; that has nothing to do with me. You can get married even without a rabbi. That also has nothing to do with me. The witnesses—if you take it that the rabbi is like the photographer and the witnesses are like the priest. But Ido, that has nothing to do with everything I said. It has nothing to do with everything I said. It exists even without what I said. Witnesses to the establishment of the matter—that’s not my invention, that without them there is no betrothal. That’s obvious. There, by the way, I think it’s the pope. The pope can uproot betrothal retroactively. Did you know that? After all, that’s the only way Catholics can get divorced. There’s Henry VIII and the Protestants—Henry VIII wanted not to be Catholic. Catholics, yes. Fine, among Catholics the only way to dissolve a married couple is only by a decision of the pope, that he uproots the betrothal retroactively. He doesn’t cancel it. The current pope was attacked by a priest who changed a few things in… According to Catholicism, a person who divorced his wife may not marry her a second time, like a priest with us. And now the pope declared that it is permitted, after it became clear to him that in various small communities priests were remarrying couples who had decided to go back to living together. Or if she had married in the meantime, then it would be taking back one’s divorced wife. If she hadn’t been married, then it’s fine. According to the Torah, but not according to Catholicism. In that respect, in Catholicism—no, but for them—it’s like the divorced wife of a priest. But the point with them—we’re already moving into a lesson on Catholicism—but with them, among Catholics, there really is no law coming from heaven. Their law was created by the popes and the assemblies, I don’t know what, cardinals, I don’t know what they call it. Okay. So the mouth that forbade is the mouth that permitted. Their whole law is founded on decision. So that pope thought not, and this pope cancels it. If he is greater than him in wisdom and number, he can cancel what that one did. Fine? Understand, among us, what happens is that the Sages in principle are not the legislators. The Torah legislates. Understand, Catholics, or Christians in general, do not recognize law; there is no law. Meaning, they did not receive law from heaven. It is all decisions of church institutions. So if they decided, they can also cancel. I understand. It’s not fixed, but since from the outset it is only a human decision, then today’s pope can decide differently, and that’s…