Ketubot, Chapter 2, Lesson 15

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🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

Rami bar Hama’s first position and the proposed explanation of “the mouth that prohibited” as an alternative proof
Rami bar Hama’s second position: “cannot retract and testify differently” and “the mouth that prohibited”
The shift to the dispute between Rabbi Meir and the Rabbis, and establishing that the Mishnah is speaking about coercion under threat to life
The Talmud’s question about Rabbi Meir and what it implies about the nature of “the mouth that prohibited”
The lender’s presumptions versus the claims of “disqualified witnesses” and “minors,” and Tosafot’s complication
Rav Hisda’s explanation of Rabbi Meir: “let them be killed rather than sign falsely,” and the return of “a person cannot render himself wicked”
Rava’s rejection, the tension with Rashi’s explanation, and a proposed alternative reading of “signing as indirect causation”
Nachmanides: pious conduct and “a person does not present himself as lacking piety,” and an external baraita
Locating the dispute in the rule: “if one admits to a document he wrote, it does not require validation”
Tosafot: “the mouth that prohibited” as migo, validation of a document, and migo in the face of witnesses

Summary

General Overview

The text sets up the Mishnah in a case where the witnesses say, “This is our handwriting,” and then add, “We were coerced,” and it examines how the principle of the mouth that prohibited works against two different problems: a person cannot render himself wicked as a problem of admissibility, and cannot retract and testify differently, where at first it is examined whether that is a problem of credibility or admissibility. After Rami bar Hama’s two positions, the reading is fixed that the Mishnah is dealing with coercion under threat to life, and from there the dispute between Rabbi Meir and the Rabbis opens up: are the witnesses believed to invalidate the document even when the mouth that prohibited applies? The discussion progresses through Rashi’s explanation that the mouth that prohibited joins the two parts of the statement into one testimony, through an attempt to explain Rabbi Meir by saying they should have “let themselves be killed rather than sign falsely,” and finally to Rava’s rejection and an alternative position that the dispute depends on the rule that “if one admits to a document he wrote, it does not require validation.” Throughout, the text weaves in systematic distinctions between Rashi and Tosafot on the question whether the mouth that prohibited is a proof in the style of migo, and what force it has against a presumption, a document, and document validation.

Rami bar Hama’s first position and the proposed explanation of “the mouth that prohibited” as an alternative proof

Okay, so this is basically what we saw in the previous lecture, and the first position starts from the assumption that the Mishnah is speaking about coercion for financial reasons. In the first clause, the witnesses are believed by virtue of the mouth that prohibited, which replaces the problem of a person cannot render himself wicked. The text argues that the difficulty is that a person cannot render himself wicked is a problem of admissibility, not credibility, and therefore the mouth that prohibited does not “prove that the witnesses are telling the truth,” but rather creates a “proof” that the judges treat as standing on its own in place of inadmissible testimony. The text illustrates this with the model of “the murdered man walked in on his own feet,” where Shimon’s behavior creates a proof that is not his testimony, and from there it argues that here too, the speech of the witnesses creates a proof of the mouth that prohibited even though the testimony itself has been “erased.” The text emphasizes that this solution works only when the problem is the admissibility issue of self-incrimination as wicked, and not when the problem is credibility, and it illustrates that with the example of a religious court seeing a theft with its own eyes.

Rami bar Hama’s second position: “cannot retract and testify differently” and “the mouth that prohibited”

Okay, so in the second position two things change, and the moment witnesses say, “We were coerced under threat to life,” the problem of cannot retract and testify differently arises in addition to the problem of wickedness. The text states that in the first clause, when the document has not yet been validated and the witnesses are the ones validating it, the mouth that prohibited removes the problem of cannot retract and testify differently, but when they say, “We were coerced for financial reasons,” the mouth that prohibited does not help, because that is an admissibility problem of a person cannot render himself wicked. The text suggests one possible understanding from this: that cannot retract and testify differently is a credibility issue, because retracting testimony raises suspicion, and then the mouth that prohibited removes that suspicion by “showing there is no credibility problem”; but it immediately says that the straightforward understanding is that admissibility underlies cannot retract and testify differently. The text presents Rashi as the central explanation: the mouth that prohibited works here not as proof, but because the two parts of the statement are “one continuous statement,” and therefore there are not two testimonies, one retracting from the other. This is an unusual use of the principle, one that is expected to create difficulty later in the passage.

The shift to the dispute between Rabbi Meir and the Rabbis, and establishing that the Mishnah is speaking about coercion under threat to life

Okay, so the text clarifies that before the dispute between Rabbi Meir and the Rabbis, we have to remember that the conclusion is that the Mishnah is dealing with coercion under threat to life and not coercion for money, because the setup of coercion for money was rejected on the basis of “once he has testified, he may no longer retract and testify differently.” The text presents the baraita: “The Sages taught: They are not believed to invalidate it—these are the words of Rabbi Meir; and the Rabbis say: they are believed,” and explains that according to the straightforward reading of the Talmudic text, and of Rashi and Tosafot, this refers to the first clause, where the mouth that prohibited applies. The text then sets up the new difficulty: if the mouth that prohibited already solved the problem of cannot retract and testify differently, why does Rabbi Meir not accept their credibility, and what exactly is the focal point of the dispute between him and the Rabbis?

The Talmud’s question about Rabbi Meir and what it implies about the nature of “the mouth that prohibited”

Okay, so the Talmud explains the Rabbis with the phrase, “because their reasoning is: the mouth that prohibited is the mouth that permitted,” and asks, “but according to Rabbi Meir, what is the reason?” And the text wonders why the Talmud assumes that it cannot be that Rabbi Meir would accept the mouth that prohibited in other contexts, but not give it the power to solve the problem of cannot retract and testify differently. The text concludes that either way, the Talmud’s question hints at a conception in which the mouth that prohibited is not just migo, but a principle according to which “you cannot split” the statement, which fits very well with Rashi, who explains it here as joining the two parts of the statement. The text adds that if medieval authorities (Rishonim) hold that the mouth that prohibited is an “upgraded migo,” they will have to explain that the mouth that prohibited solves cannot retract and testify differently because it is a proof of credibility—which would require seeing cannot retract and testify differently as a credibility issue rather than an admissibility issue.

The lender’s presumptions versus the claims of “disqualified witnesses” and “minors,” and Tosafot’s complication

Okay, so the Talmud distinguishes between “disqualified witnesses” and “minors” on the one hand, and “coerced” on the other, and states that in the case of disqualified witnesses, “the lender himself checks carefully from the outset and has them sign,” and in the case of minors, “there is a presumption that witnesses do not sign a document unless it was done when one was an adult,” and therefore according to Rabbi Meir, they are not believed in such claims. The text sharpens the question of how a presumption can stand against testimony, and shows that Tosafot converts the clash into “migo in the face of a presumption,” because he understands that when witnesses need migo, what is operating here is not the power of testimony but only the power of migo. The text emphasizes that Tosafot assumes two things: the mouth that prohibited is migo, and when the testimony depends on migo, “what I have here is migo; it is not witnesses,” and therefore the presumption is tested against migo and not against two witnesses. The text adds that we also have to remember the status of a validated document as “treated as though their testimony had been investigated in court,” so the document’s witnesses stand against the retracting witnesses, and all they are left with is the force of the mouth that prohibited.

Rav Hisda’s explanation of Rabbi Meir: “let them be killed rather than sign falsely,” and the return of “a person cannot render himself wicked”

Okay, so Rav Hisda explains: “Rabbi Meir holds that in the case of witnesses who were told, ‘Sign falsely or be killed,’ they should let themselves be killed rather than sign falsely,” and from that it follows that according to Rabbi Meir, the witnesses who respond, “We were coerced under threat to life,” are “rendering themselves wicked,” because they should have given up their lives and did not do so. The text notes that this brings the principle of a person cannot render himself wicked back in “through the back door,” even though the Mishnah is now being read as a case of coercion under threat to life. It points out that according to Rabbi Meir, each of the Mishnah’s three claims ends up failing for a different reason: minors and disqualified witnesses because of the lender’s presumption, and coerced because the act is defined as wickedness. The text explains that Rashi interprets this literally, so it comes out that according to Rabbi Meir there is also a rule of “be killed rather than transgress” even regarding theft, and it connects this with Rashi in Bava Kamma 60 on “a person may not save himself through another person’s money.”

Rava’s rejection, the tension with Rashi’s explanation, and a proposed alternative reading of “signing as indirect causation”

Okay, so Rava rejects this: “If they had come before us to ask what to do, we would have said to them: go sign and do not get killed… nothing stands in the face of saving life except idolatry, forbidden sexual relations, and bloodshed alone.” And the text presents the difficulty of understanding Rava’s challenge if Rabbi Meir is really introducing a rule of “be killed rather than transgress” for theft. The text suggests that the move makes sense if we distinguish between direct theft and signing in a way that allows someone else to steal, so that the signing is at most falsehood or indirect causation, and not actual theft. In that case, from the outset they would be instructed to sign, and there would be no reason to classify them as wicked. The text explains that within the framework of the passage, Rava is acting to reject this explanation of Rabbi Meir, not to establish Jewish law in accordance with Rabbi Meir, and from here an alternative explanation of the dispute is required.

Nachmanides: pious conduct and “a person does not present himself as lacking piety,” and an external baraita

Okay, so the text brings Nachmanides, who refuses to accept “be killed rather than transgress” for theft, and therefore explains that Rabbi Meir is demanding here a measure of piety involving self-sacrifice, and innovates that the witnesses are not believed because “a person does not present himself as lacking piety.” The text presents the strain in this innovation, but shows that it stems from Nachmanides’ desire not to attribute to Rabbi Meir the position of “be killed rather than transgress” in the case of theft. The text adds that Nachmanides also brings another possibility בשם “some say,” based on an external baraita according to which “Rabbi Meir says: even robbery,” and notes that if so, Rava’s challenge looks like a principled rejection of the possibility of such a view.

Locating the dispute in the rule: “if one admits to a document he wrote, it does not require validation”

Okay, so after rejecting Rav Hisda’s explanation, the text presents the Talmud’s conclusion that Rabbi Meir’s reason is “in accordance with Rav Huna quoting Rav: if one admits to a document he wrote, it does not require validation.” The text explains that when there is no need to validate a document in a case where the borrower admits to the document, the witnesses’ admission, “This is our handwriting,” does not give the document its force, and therefore does not create the mouth that prohibited; consequently, they are not believed to invalidate the document with a claim of coercion. The text locates the dispute between Rabbi Meir and the Rabbis in the question whether admission to a document replaces document validation or not, and notes that the continuation of the learning will deal with this topic.

Tosafot: “the mouth that prohibited” as migo, validation of a document, and migo in the face of witnesses

Okay, so the text closes with notes from Tosafot that consistently present the mouth that prohibited as migo, and distinguish between a case where the statement undermines the very validation itself and a case where one is trying to make a migo claim against a document that already stands with the force of witnesses. Tosafot on “these are believed” explains that since the Rabbis required validation, the statement “This is our handwriting” is not considered validation when, immediately within the same utterance, they say “we were minors” or “we were coerced,” so this is not “migo in the face of witnesses,” because the document has still not acquired the status of witnesses. Tosafot on “they are not believed” states that in the latter clause there is no room for a migo of “it was paid,” because that is already “migo in the face of witnesses,” since it does not undermine the document’s validation but only stands up against it. Tosafot on “under threat to life” asks why they should not be believed by migo to say “we were coerced… under threat to life,” and answers that coercion under threat to life “is not common,” and that “with two witnesses we do not say migo,” while emphasizing that the mouth that prohibited is an upgraded migo that is accepted even with witnesses, whereas ordinary migo does not function in the same way.

Full Transcript

[Rabbi Michael Abraham] Okay, so this is basically what we saw in the previous lecture. The situation we’re at right now is as follows. At first we thought that the Mishnah—the one Rami bar Hama says is dealing with coercion for financial reasons. In the first clause, the witnesses are believed because the mouth that prohibited solves the problem of a person cannot render himself wicked. And then I asked: how can that be? After all, a person cannot render himself wicked is apparently a problem of admissibility, not a problem of credibility, so how does the proof of the mouth that prohibited help? I already commented there—and this is important regarding Rav Shimon, whom I hope we’ll get to today, or maybe not, but I hope so—I commented there that maybe this can be understood in the following way. The mouth that prohibited does not prove that the witnesses are telling the truth, because that doesn’t help me. I wasn’t suspicious to begin with that they weren’t telling the truth; that’s not the issue. The issue is that they are not believed to render themselves wicked. That’s an admissibility issue. But it could be that the mouth that prohibited itself constitutes a proof. Not that it proves the witnesses are telling the truth, but that now we, standing before the judges, have before our eyes a proof of the mouth that prohibited, not a proof of witnesses. And then there’s no problem—it replaces the witnesses. Meaning, the speech of the witnesses created for us some kind of proof that we call the mouth that prohibited. But it’s not that this mouth that prohibited shows that the witnesses are telling the truth. This mouth that prohibited shows that there was a loan—sorry, that there was no loan. This proof was created by the speech of the witnesses, but it’s not that this proof is testimony. Rather, the speech of the witnesses created proof. I brought examples of this when we learned the topic of migo; there too we saw a similar phenomenon. I brought the example of “the murdered man walked in on his own feet,” if you remember, right? Where a person comes—in other words, witnesses come and testify that Reuven murdered Shimon. Then suddenly Shimon walks into the court. So he proves that he wasn’t murdered. Now you could come and say, okay, but he’s a litigant, he can’t testify, he isn’t believed. That’s irrelevant. Why? Because we are not accepting Shimon’s testimony as testimony that he wasn’t murdered. Rather, Shimon’s behavior generates some proof for us. So the fact that the proof came from Shimon—why should that matter to me? Shimon’s testimony is inadmissible, so if he had come and testified, I wouldn’t accept him as a witness. But if his behavior creates proof for me, then fine. If so, the same thing is true here. When the witnesses come and say, “This is our handwriting, and we were coerced”—coerced for financial reasons, right?—which means they are rendering themselves wicked, then they have the mouth that prohibited. This mouth that prohibited, or migo, or whatever, some kind of proof—this mouth that prohibited or migo is now the proof before us, not the witnesses. We erased the witnesses. A person cannot render himself wicked—not admissible, the testimony is not admissible. But I do have the mouth that prohibited. The mouth that prohibited constitutes proof, not the witnesses. The mouth that prohibited I’m allowed to accept; the witnesses I’m not. As long as that’s really correct, as long as there’s no credibility problem. But the mouth that prohibited really does prove that this is true—in other words, there’s no credibility problem here. The whole issue was an admissibility issue, and the admissibility issue applies only to a person’s testimony when he renders himself wicked. If his behavior proves that he is wicked—for example, say the religious court sees a person stealing. The judges see it with their own eyes, all three judges see the theft, the act of theft itself. Would we say that since the thief isn’t believed because he’s a litigant, therefore we can’t accept his testimony that he is a thief? Of course not. We convict him not because he testified about himself that he’s a thief. We convict him because his behavior created for us the proof, the understanding that that’s what he did. If we are convinced, why shouldn’t we act on that? His testimony is inadmissible, but if his behavior, his speech, created proof for us, there is absolutely no reason not to accept that proof. So maybe that solves the problem in Rami bar Hama’s first position. Why—how can the mouth that prohibited in the first clause solve the problem of a person cannot render himself wicked? The answer is: it doesn’t solve the problem of a person cannot render himself wicked. The witness still isn’t admissible. But it constitutes alternative proof in place of the witness. Now I have proof—the mouth that prohibited. That’s regarding the first clause. If they say, “We were coerced under threat to life,” then apparently there’s no problem at all—the Mishnah isn’t dealing with that, but there’s no problem. In the latter clause, “We were coerced for financial reasons,” and they do not have the mouth that prohibited, then they are not believed, right? Why are they not believed? Because there is no proof at all.

[Speaker B] There’s no testimony and no proof.

[Rabbi Michael Abraham] Because there’s a document against them, right? And they themselves can’t contradict the document. If they say, “We were coerced under threat to life,” and there is validation testimony—in the latter clause I mean—then it says they are believed, right? Rami bar Hama himself says they are believed. Meaning, Rami bar Hama is not bothered by the problem of cannot retract and testify differently. In other words, as far as he is concerned there isn’t… So that’s the situation in Rami bar Hama’s first position. Everything was basically clear except for the question of how the mouth that prohibited solves the problem of a person cannot render himself wicked, and about that I said that maybe it doesn’t solve it. It comes in its place. When is a person not believed to render himself wicked? But instead we have the proof of the mouth that prohibited. That’s the first position. What happens in the second position? In the second position there are two changes. First, when witnesses come and say, “We were coerced under threat to life,” suddenly the question of cannot retract and testify differently comes up. You come and it’s not just a person cannot render himself wicked, but also cannot retract and testify differently. And therefore in the latter clause, says Rami bar Hama, in the latter clause, when they do not have the mouth that prohibited, they are not believed. What if they say, “We were coerced for financial reasons”? Then all the more so they are not believed. There they are even rendering themselves wicked, not only retracting and testifying differently. Right? What happens in the first clause? In the first clause they do have the mouth that prohibited, right? Because there is no validation of the document; they are validating the document. So when they come and say, “We were coerced under threat to life,” it explicitly says they are believed. Right? Because they have the mouth that prohibited. So in the first clause, the mouth that prohibited removes the problem of cannot retract and testify differently. When they say, “We were coerced for financial reasons,” then they are rendering themselves wicked, and in that situation the mouth that prohibited won’t help—unlike what we said in Rami bar Hama’s first position. Now this is also very clear—in other words, before we challenged it, but this conception doesn’t need explanation, because if a person cannot render himself wicked is a question of admissibility and not credibility, then the mouth that prohibited obviously doesn’t help to remove it. The big question is how the mouth that prohibited helps to remove cannot retract and testify differently. So apparently that proves that the problem of cannot retract and testify differently is a problem of credibility. And maybe that can be understood, even though that’s not the straightforward conception. You could understand it that way. Why? Because if the witnesses come and testify in a certain way, and suddenly they retract—why did you suddenly retract? Apparently something happened that made you lie. There is no reason to assume that what you said originally isn’t true. If you retract, that’s suspicious. Right? So basically I have a credibility problem. If they say, “We have the mouth that prohibited,” then the mouth that prohibited shows there is no credibility problem, that they are telling the truth, they are not lying. That’s one possibility for explaining it. But as I said, the straightforward conception of cannot retract and testify differently is that it’s an admissibility issue, not a credibility issue. And then the question is why the mouth that prohibited removes the problem here. So on that Rashi comes and says: the mouth that prohibited removes the problem—why? Because the principle of the mouth that prohibited is that the two parts of the statement are really one continuous statement. It is one testimony. And if that’s so, then regarding cannot retract and testify differently as well, there aren’t two testimonies, one retracting from the other. It is one testimony: “We signed and we were coerced.” And therefore basically—that’s Rashi. And then you don’t have to say that cannot retract and testify differently is a credibility issue in order to explain why the mouth that prohibited removes it. Okay? That’s basically the point. Now, of course, this is an unusual use of the principle of the mouth that prohibited. Because usually the mouth that prohibited serves as proof. If I have the mouth that prohibited, then presumably I’m telling the truth. Here it’s something completely different. The mouth that prohibited is simply a principle showing that the two parts of the statement are one statement. So the question of cannot retract and testify differently simply never arises. Here it doesn’t function as proof at all. We’re not using the principle of the mouth that prohibited as a kind of proof. And that, of course—or “of course,” we’ll soon see why I say of course—but this is going to raise a problem at this stage of the Talmudic discussion, and now I’m continuing. Up to here, that’s what we saw last time. Now I continue in the Talmud when we enter the dispute between Rabbi Meir and the Rabbis. We didn’t see this last time. So the Talmud says as follows: “The Sages taught: They are not believed to invalidate it—these are the words of Rabbi Meir; and the Rabbis say: they are believed.” I’ll just remind you: according to the conclusion, what is the Mishnah dealing with—coercion for money or for life? Money? What do you say? You have to remember where we stopped, where the Talmud is standing right now.

[Speaker D] Money. That’s what it seems to me.

[Rabbi Michael Abraham] Why? Where do you see that?

[Speaker D] “We were coerced for financial reasons—they are not believed. What is the reason? A person cannot render himself wicked.”

[Rabbi Michael Abraham] Where are you reading? I’m talking now about the section from before, before we begin now. Where are we standing right now? Before we start the dispute between Rabbi Meir and the Rabbis.

[Speaker E] The first and second positions.

[Rabbi Michael Abraham] Yes. How did Rami bar Hama’s first position try to set up the Mishnah? As coercion for money, right? Then we reached the conclusion that that can’t be, because “once he has testified, he may no longer retract and testify differently.” And therefore the Talmud says: “Rather, when it was stated, it was stated on the first clause: ‘These are believed’—Rami bar Hama said…” not just the positions. There is also a difference in interpretation. Meaning, how they read the Mishnah. The first position reads the Mishnah as dealing with coercion for money. The second position reads it as dealing with coercion under threat to life. Okay? So as far as we are concerned right now, we know that the Mishnah is dealing with a case where the witnesses come and say, “We were coerced,” meaning coercion under threat to life. That’s what we have to remember and carry with us from here on as we read the Mishnah. We read it that way. That’s an important point: at every stage in the Talmud you have to understand where you are standing, not lose the thread—exactly. And now all the discussion of Rabbi Meir and the Rabbis begins. Okay? So that’s a very important point. “The Sages taught: They are not believed to invalidate it—these are the words of Rabbi Meir; and the Rabbis say: they are believed.” What is this talking about? To invalidate the document?

[Speaker B] Yes. It was possible

[Rabbi Michael Abraham] to say that this is talking about the first clause, and it was possible to say that it is talking about the latter clause. If it’s talking about the first clause, then in the first clause it says they are believed, and that would go with the Rabbis and not Rabbi Meir, right? But it was possible to say that this is talking about the latter clause, and in the latter clause it says they are not believed, and then it would go like Rabbi Meir and not like the Rabbis. Fine—it’s not clear from the language of the Talmud, it’s not clear what

[Speaker E] it refers to. Tosafot—

[Rabbi Michael Abraham] Tosafot here write

[Speaker E] that it’s on the first clause, right?

[Rabbi Michael Abraham] Tosafot here write that it’s on the first clause. Yes, and Rashi writes that too—it’s the straightforward meaning of the Talmud. I’m just saying that when you read the Talmud as it brings the dispute between Rabbi Meir and the Rabbis, in principle the Talmud itself does not state what it refers to. You can explain it on the first clause, and then our Mishnah is like the Rabbis, or on the latter clause, and then our Mishnah is Rabbi Meir. Of course it is preferable to establish our Mishnah like the Rabbis—anonymous Mishnah, meaning Jewish law follows the majority. So the simple possibility, beyond the straightforward sense of the Talmud, is that this deals with the case of the first clause—that is to say, in a situation where they have the mouth that prohibited, right? And about that the Talmud says: even if there is the mouth that prohibited, Rabbi Meir does not believe them. The Rabbis accept the mouth that prohibited, but Rabbi Meir, even when there is the mouth that prohibited, does not accept it. Why not? “We were coerced under threat to life”—the problem is retracting and testifying differently, right? There is no issue of wickedness here. It’s a problem of retracting and testifying differently. And we saw that the mouth that prohibited removes the problem of retracting and testifying differently. Rashi explained it because it turns it into one statement. It could have been explained differently, that because retracting and testifying differently is a problem of credibility, the mouth that prohibited proves they are credible. Either way, though, the Talmud’s conclusion until now was that the mouth that prohibited removes the problem of cannot retract and testify differently. Right? Here suddenly we discover that it doesn’t. Maybe for the Rabbis, but not for Rabbi Meir. Rabbi Meir doesn’t accept it. If there is a problem of retracting and testifying differently, he does not accept their testimony even though they have the mouth that prohibited. Fine, so maybe he disagrees—or he disagrees about the mouth that prohibited, he doesn’t accept the idea of the mouth that prohibited. Or he claims that the mouth that prohibited doesn’t remove the problem of cannot retract and testify differently. Right? There are a lot of possibilities here. It is not clear what exactly they are disputing. So the Talmud now starts discussing what exactly the dispute is. So the Talmud asks like this: “Granted, according to the Rabbis, their reason is: the mouth that prohibited is the mouth that permitted. But according to Rabbi Meir, what is the reason?” The Talmud says: I understand the Rabbis’ view. Why? And here you can see explicitly that this is dealing with the first clause, right? Because it’s speaking about a case where there is the mouth that prohibited. In the latter clause there is no the mouth that prohibited. So clearly the Talmud brings this and understands that this baraita is dealing with the case of the first clause, where there is the mouth that prohibited. And about that it says: the Rabbis’ view is understandable to us, because he has the mouth that prohibited. What does Rabbi Meir hold? How can he ignore the mouth that prohibited? After all, we saw the Talmud on page 22, right? The Talmud says: from where do we know the mouth that prohibited from the Torah? “I gave my daughter to this man”—there is a scriptural derivation. Does Rabbi Meir disagree with that? Does he not accept the mouth that prohibited? First of all, already here I would make several comments. First: who says Rabbi Meir disagrees with the mouth that prohibited? Maybe Rabbi Meir claims that the mouth that prohibited does not remove the problem of cannot retract and testify differently. In other contexts he may well accept the mouth that prohibited as proof. He says it just doesn’t remove the problem of cannot retract and testify differently. That’s the use we are making here of the mouth that prohibited. It could be that this is what Rabbi Meir disagrees with—what’s the problem? Why does that bother the Talmud? I’ll say more than that: according to Rashi it’s much harder. Because according to Rashi, the use we are making here of the mouth that prohibited is not even the usual use of the mouth that prohibited, right? We are not using the mouth that prohibited as proof; rather, the mouth that prohibited turns the statement into one statement, and therefore there is no problem of retracting and testifying differently. What does that have to do with the mouth that prohibited? It could be that Rabbi Meir accepts the principle of the mouth that prohibited; he is just not willing to make this other use of it that removes the problem of retracting and testifying differently. As proof he sees the mouth that prohibited as proof—why not? But here we are not using the mouth that prohibited as proof. So why is it so clear to the Talmud that, first, it is obvious that the Rabbis are right—even there I would say, what do you mean obvious, who says so? And second, the Talmud doesn’t understand how Rabbi Meir can say what he says. And on that I ask—the other side of the same coin—why not? What’s the problem? It could be that I… it could be that I do not accept the mouth that prohibited. It could be that I do accept the mouth that prohibited, but I don’t think it removes the problem of retracting and testifying differently. Why not? Either because I think the problem of cannot retract and testify differently is an admissibility problem and the mouth that prohibited is proof, or because… From the fact that the Talmud asks this, it’s as though the Talmud assumes that it is impossible: anyone who accepts the mouth that prohibited must also accept that it removes retracting and testifying differently. Right? That’s how it seems from the Talmud. Already from here I would infer the following conclusion. Two possibilities. If you go with Rashi—and Rashi explained that here the mouth that prohibited functions not as proof, but as a joining of the two parts of the statement, and therefore there is no problem of retracting and testifying differently—then you have to say that the mouth that prohibited is explanation three or four. Do you remember the explanations of the mouth that prohibited? Two explanations were that it is an upgraded migo, and the other two explanations were that the mouth that prohibited is some kind of principle of credibility that is unrelated to migo. Either you accept the whole statement or you don’t accept it at all, or the principle of fairness—that is, don’t use the power you got from me against me. Okay? These two principles are principles that have nothing to do with migo at all, but rather with the mouth that prohibited, and both of them—especially the fourth one, by the way, but both I think—are based on the fact that the mouth that prohibited has two parts: you can’t accept one and reject the other. Right? That was the idea of the mouth that prohibited if I don’t see it as migo. So if that’s so, says Rashi, then why shouldn’t that also solve the problem of retracting and testifying differently? If you see these two parts of the statement as one unit, then there it leads to the fact that I have proof that I’m right, but the basis of why it is proof is because I see the two parts of the statement as one statement. Well then, here in this context, true, I don’t need it as proof, but the principle itself—that the two parts of the statement are one statement—is enough for me to say there is no problem of retracting and testifying differently. And that is what the Talmud is asking. Someone who accepts the mouth that prohibited—how can Rabbi Meir say that there is still a problem of retracting and testifying differently here? How can that be? The Talmud apparently takes for granted that the mouth that prohibited is according to explanations three and four and not one and two. It’s not an upgraded migo, but some principle that you have to accept the whole statement or reject the whole statement—you can’t split it. And then I can understand the Talmud’s challenge here. Now anyone who says—and we saw there a dispute among medieval authorities (Rishonim), right? The Machaneh Ephraim, if you remember, even brought a practical difference whether it works after the amount of time of “within the same utterance” or not. Right? Is it a kind of migo, in which case it’s retroactive migo; if it’s something else, then I don’t care that it’s retroactive. So we saw a dispute among medieval authorities (Rishonim) on this. What will the medieval authorities (Rishonim) who hold that the mouth that prohibited is an upgraded migo and not some other principle say? How will they explain the Talmud’s question here? They will have to explain the whole move not like Rashi. They will have to explain that the mouth that prohibited removes the problem of retracting and testifying differently not because it turns the statement into one statement, but because it brings proof that these witnesses are telling the truth. And cannot retract and testify differently is a problem of credibility, not admissibility—that’s what they will have to say. And the mouth that prohibited shows that they are credible; it proves it. They have a strong migo like the mouth that prohibited that proves they are credible. Therefore it helps. And if that’s so, then the Talmud rightly asks: what, does Rabbi Meir not accept the mouth that prohibited? It is the best proof there is. Here the mouth that prohibited is functioning as proof. So then there is no problem with what the Talmud says: wait, so how does Rabbi Meir not accept this? According to Rashi it was difficult for me, but those medieval authorities (Rishonim) will apparently explain unlike Rashi: the mouth that prohibited is proof. Okay? So those are the two ways to read the Talmud. And from Rashi here, by the way, it comes out that the mouth that prohibited really is not migo, the way Rashi explains the Talmud here, and that too was what came out for us there.

[Speaker D] The idea of the mouth that prohibited as proof—is that basically a kind of migo?

[Rabbi Michael Abraham] Yes, an upgraded migo. So the Talmud says: “Granted, disqualified witnesses…” After all, several cases appear in the Mishnah, right? These witnesses come and say: “We were coerced,” “we were minors,” “we were disqualified witnesses.” There are three possibilities here. So the Talmud says we have to distinguish between the different cases. “Granted, disqualified witnesses—the lender himself checks carefully from the outset and has them sign.” Meaning, when the lender comes to have witnesses sign, there is a presumption that he does so with qualified witnesses. Why? What, because he’s righteous?

[Speaker B] No, it’s in his interest.

[Rabbi Michael Abraham] Obviously, because he wants good proof in order to get his money back, right? So obviously, when he checked these witnesses, he made sure they were not disqualified witnesses, and therefore they cannot say, “We were disqualified witnesses.” “Minors as well,” in accordance with Rabbi Shimon ben Lakish, for Resh Lakish said: “There is a presumption that witnesses do not sign a document unless it was done when one was an adult.” Yes, the lender also won’t have minor witnesses sign; he gets adult witnesses to sign, for the same reason. So basically we have a presumption that the lender probably checked the witnesses’ qualifications, both regarding those who were minors and those who were disqualified. Regarding the coerced, we don’t understand—what is the reason? Why are they suddenly believed to say, “We were coerced”? After all, the claim is that the lender himself coerced them to sign the document. Obviously—because who profits from this document? The lender. This document shows that the borrower owes him money. He wants to gain money—the lender—that’s the suspicion. So when they say, “We were coerced,” they mean the lender coerced us. So you can’t say there is a presumption that the lender checked that we weren’t coerced—the lender is the one who coerced us, that’s what we’re claiming. Okay? There’s a point here you have to notice. When they say, “We were disqualified witnesses,” or “we were minors,” there is a presumption that the lender probably checked. He couldn’t have had disqualified witnesses sign. Can that presumption work against witnesses? Or against the mouth that prohibited? How can that be?

[Speaker D] So that’s what we said in Tosafot. What? Didn’t you point us to Tosafot?

[Rabbi Michael Abraham] Right, this is Tosafot on 19a near the top. Tosafot says like this—let’s read it. “Here it seems that we do not say migo in the face of a presumption. But according to the Rabbis, we do say it,” because all this is according to Rabbi Meir; according to the Rabbis, we do say it. “And this requires investigation, because it is a question in the first chapter of Bava Batra, and it was not resolved, regarding one who was claimed against within the term and said, ‘I paid you within the term.’” And in Bava Batra we know there is a doubt whether migo works against a presumption or not. Which prevails, migo or presumption? Here Tosafot says we see that presumption prevails over migo. How does that fit? There the Talmud is in doubt, it didn’t resolve it. And here we see that presumption prevails over migo. Tosafot is very strange here. Why? The presumption is not operating here against the migo. That’s the point. The presumption is operating against the witnesses—that’s much worse. After all, there are two witnesses here saying, “We were disqualified witnesses,” right? Or “we were minors.” Now there is a presumption that the lender checked the witnesses and didn’t let disqualified witnesses sign. Can that presumption help against two witnesses? They are two witnesses! How does that work? Two witnesses are the strongest proof. How can it be that a presumption works against two witnesses? So why is Tosafot talking here about a presumption versus migo? He should say something much stronger: how does this presumption help at all, given that there are witnesses against it, not migo? Tosafot asks a weaker question. He says: against this presumption there is migo. Who is this migo, by the way? What migo is it?

[Speaker D] No, we didn’t say. I said “within the term.” That’s not it.

[Rabbi Michael Abraham] No, that’s the Talmud in Bava Batra. In our case—they come and say, “We were disqualified witnesses, we didn’t sign.” The mouth that prohibited. They could have just not said at all that it was them, right? Tosafot understands that the mouth that prohibited is migo, first of all. And we also saw that this is Tosafot’s view against Rashi. Therefore in the Talmud as well, what we explained according to Rashi, that the mouth that prohibited solves the problem of retracting and testifying differently—Rashi said that’s because it turns it into one statement. According to Tosafot, he will apparently learn the Talmud differently. The mouth that prohibited is migo; it constitutes proof that we are telling the truth. And cannot retract and testify differently is a credibility issue, not an admissibility issue. And Tosafot will apparently read the Talmud differently from Rashi. Tosafot assumes that the mouth that prohibited is migo. A further assumption of Tosafot is that if these witnesses cannot be believed and they bring the mouth that prohibited in their favor, what I have here is not witnesses but the mouth that prohibited. Not that the mouth that prohibited preserves their status as witnesses. The mouth that prohibited shows they are telling the truth, and now I have two witnesses who are telling the truth. Because if that were the case, Tosafot should have asked: how does the presumption help, since there are witnesses against it? But Tosafot doesn’t ask that. Tosafot asks: how does the presumption help, since there is migo against it? Why is there migo against it? The migo shows that we are telling the truth; now we are two witnesses going against the presumption. We are telling you that we were minors. The presumption says the lender checked us and we were not minors. Well then, a presumption against two witnesses—obviously two witnesses prevail. Why does Tosafot ask that this presumption stands against migo? He should ask that it stands against witnesses! Okay, right. Tosafot understands that when witnesses need migo, what I have here is migo, not witnesses. Why? First of all because the strength of a chain is the strength of its weakest link. Say I have testimony of witnesses that without migo would not be accepted, right? So now there is migo. What is the force of that testimony now? The force of migo, right? It can’t suddenly have greater force than migo, because without the migo it wouldn’t have been accepted. So how can it suddenly become as powerful as witnesses? After all, all I have here at the base is only migo, not witnesses. Right? So therefore Tosafot says: when migo supports the testimony of witnesses, that testimony is not testimony. What I have here is migo. And if you remember, that is exactly what I said in Rami bar Hama’s first position. I said there: how does the mouth that prohibited solve the problem of a person cannot render himself wicked? After all, that is a problem of admissibility and not credibility. So I said: the mouth that prohibited does not solve the problem; it comes in its place. Meaning, the witnesses disappeared, because someone who needs the mouth that prohibited is no longer a witness, but I have here the mouth that prohibited, not witnesses. The mouth that prohibited is the proof I have here. Exactly the same thing we see here in Tosafot. Meaning, Tosafot understands that when there is testimony supported by migo or by the mouth that prohibited, what I have here is not testimony, but migo or the mouth that prohibited. It’s impossible—just think in mechanical terms—say I have a chain made of links, and one link is made of plastic and the rest are metal. When I want to break the chain, obviously its strength is the strength of the weakest link, right? Same thing here. I have testimony leaning on migo. Now I ask myself: what is the strength of the proof this chain gives me? Obviously no more than migo. Anything that overcomes migo will send this whole chain flying, right?

[Speaker B] So—

[Rabbi Michael Abraham] Therefore Tosafot says: the fact that this testimony is supported by migo—and he calls the mouth that prohibited migo—means that basically what I have here is migo and not testimony.

[Speaker B] Migo versus presumption, not witnesses versus presumption.

[Rabbi Michael Abraham] Okay? Against. It’s—

[Speaker B] Yes. Not “in place of,” against. That’s what it means, yes—migo against a presumption.

[Rabbi Michael Abraham] All right, so that’s the first thing. The second thing Tosafot says—now, after Tosafot—Tosafot is working here with two assumptions. First, that “the mouth that forbade is the mouth that permitted” is a migo. In that sense, it seems he’s not like Rashi, because earlier we saw in Rashi that Rashi chooses explanations three or four, that “the mouth that forbade” is something else; it’s not an upgraded migo. In Tosafot you see that “the mouth that forbade” is a migo. And by the way, I’ll remind you that in the class on “the mouth that forbade” we saw that this is probably a dispute between Rashi and Tosafot. It fits their general approaches. The second thing Tosafot assumes is that if you have testimony supported by a migo, then what I have here is not testimony but migo. And now, in light of those two assumptions, Tosafot asks: fine, so these witnesses are being helped by a migo. Opposite them there stands a presumption. So Tosafot doesn’t ask, wait a second, this is a presumption against witnesses, because Tosafot says this is not a presumption against witnesses; witnesses supported by a migo are not witnesses—it’s a migo. He says yes, so it’s a migo, נכון, but even against a migo it’s not so clear that a presumption works. The Talmud in Bava Batra says explicitly that there is doubt about which is stronger, migo or presumption. So how can the Talmud here assume as self-evident that the presumption overcomes the migo? That’s Tosafot’s question. Clear?

[Speaker D] But here you have the example of “I repaid you within the term.”

[Rabbi Michael Abraham] That was the example from the Talmud in Bava Batra.

[Speaker D] And there we said that the presumption is that a person does not repay before the due date, but—

[Rabbi Michael Abraham] In a place where he has a migo—if he’s already after the due date and he says, “I repaid within the term,” but he could have said, “I repaid now,” after the due date—then the Talmud leaves it unresolved. It doesn’t know which one prevails. The presumption stands against a migo, and we don’t know which is stronger. So Tosafot says: then how is it suddenly obvious here to the Talmud that the presumption overcomes the migo? Okay? So that’s one comment in Tosafot. So Tosafot says: yes, it’s not clear how this presumption can overcome a migo, and he leaves it as requiring further analysis. Meaning, he really doesn’t know how the Talmud says this. The truth is that if someone were to hold—and there are some medieval authorities (Rishonim) who do hold—that when witnesses are supported by a migo, that is testimony, not migo, then of course the question becomes much sharper.

[Speaker C] How—

[Rabbi Michael Abraham] How can such a presumption possibly stand up against testimony? Okay? Now of course, even according to the views that a migo supporting witnesses turns them into witnesses, it could still be that the presumption manages to prevail, because the presumption will knock out the migo, and then the witnesses will no longer be witnesses. Meaning, I assume the migo turns the witnesses into witnesses, and now on the front line what’s standing there is the witnesses. They’re fighting against the presumption. No—it could be that the presumption defeats the migo, and then automatically you also don’t have witnesses. So it’s true that when a migo is backed by witnesses it has the force of witnesses, but that’s only as long as the migo is there. If there is a presumption against the migo, there is no migo, and then the testimony also doesn’t exist. Fine, so you could have said that. I’ll remind you that in previous classes we saw the case of “most women marry as virgins.” So the Talmud says: what happens when two witnesses come and say that she was married as a virgin, yet there was no public rumor? And most women married as virgins have a public rumor. Two witnesses come and say she was married as a virgin despite there being no public rumor. So the Talmud says: those are false witnesses. Lying witnesses. There too we saw the same phenomenon. There is a presumption that a woman who marries as a virgin has public notice; that’s only a presumption. And standing against it are witnesses—witnesses saying that she was a virgin despite there being no public rumor. So here too you have a presumption against witnesses, and the Talmud assumes that the presumption overcomes the witnesses, that the witnesses are liars. Afterwards it answers that most women married as virgins have public rumor, not all. And then the witnesses can still remain. But you see there that on the principled level there can be proofs that are strong enough—even though it’s only a presumption and not testimony—so strong that they can overturn testimony. Like in the case of someone “killed by his own legs,” for example, like in… we talked about a flying camel, right? Two witnesses come and say: we saw a flying camel. Then the court would commit them. Why? They’re two witnesses. How do you know? Maybe there is a flying camel? There are two—no, there are things where it’s obvious this isn’t true. And if two witnesses come and say it, then those witnesses are liars. And we see that although the power of two witnesses is maximal in Jewish law—there’s no proof stronger than two witnesses—still, there are situations where even if two witnesses come, we’ll throw them down all the stairs. When the claim is a very problematic claim, we’ll throw them down all the stairs, even though they are witnesses.

[Speaker B] Wait, is the fact that there was no public rumor such a problematic false claim?

[Rabbi Michael Abraham] Meaning, at first the Talmud thought yes, because it said that every woman who marries as a virgin has public notice.

[Speaker B] I remember, and then it changed to most have public notice.

[Rabbi Michael Abraham] Right. And after it goes back to saying “most,” then it indeed says—

[Speaker B] The initial assumption here is a little problematic, or maybe we just don’t understand?

[Rabbi Michael Abraham] It’s like the flying camel—as if it’s a flying camel; it can’t be, it simply can’t be. Everyone generates public notice. And that is exactly the Talmud’s answer: not everyone generates public notice. So it’s not a flying camel. In most cases that’s true, but there are cases where it isn’t. A limping camel. Exactly. So there is such a presumption, or such a majority, but when witnesses come, then of course the witnesses are believed.

[Speaker B] No, I’m trying to find some objective criterion for deciding what—

[Rabbi Michael Abraham] I don’t know how to give a criterion. Whenever something is completely absurd, then the witnesses are disqualified.

[Speaker B] That’s exactly it—I mean plausibility. A flying camel, I understand. “They have public notice”—strange, but okay.

[Rabbi Michael Abraham] So that’s what the Talmud says: regarding disqualified witnesses and minors, there there’s no problem. Rabbi Meir says they aren’t believed because the lender checked, and that’s enough to disqualify these two witnesses as liars.

[Speaker D] Wait, so here we have a presumption against a migo? What? What do we have here?

[Rabbi Michael Abraham] And then Tosafot asks why the presumption overcomes the migo. Tosafot asks why it prevails, but independent of Tosafot’s question, what the Talmud is saying is that the presumption overcomes the migo. That’s all. Okay? But pay close attention—there’s another point here. It could be that this has nothing at all to do with the question whether witnesses who need a migo have the status of witnesses. No, that’s not the point.

[Speaker E] Whether witnesses who need a migo have the status—

[Rabbi Michael Abraham] Of witnesses, or the status of a migo. What I spoke about earlier. Okay. And it could be that it has nothing to do with that issue. You have to remember that these witnesses, first of all, also authenticated the document, right? And for us, an authenticated document means that the witnesses signed on it are treated as though their testimony had already been investigated in court. So against the testimony of these witnesses there are the witnesses of the document.

[Speaker B] Are those the same witnesses?

[Rabbi Michael Abraham] They are the same witnesses, but that doesn’t matter. There is a law of documents that once the document is authenticated—and here it is authenticated, the witnesses authenticate it—and then they say, “But we were disqualified witnesses.” They authenticated the document. Once they authenticated the document, there are now two witnesses against them. So in truth there are no witnesses here. All that exists is only the “mouth that forbade” that they have. That’s why Tosafot says what you have here is only migo, or “the mouth that forbade,” and not witnesses. Because as far as the witnesses themselves go, fine, there are the document’s witnesses standing against them, and that knocks them out. What remains is only the “mouth that forbade” that they have. Therefore Tosafot says this is a migo. We mustn’t forget that basically there is also an authenticated document here. It’s not just a game of these witnesses versus the presumption, and versus their migo, or versus the presumption. The point is that they authenticated the document. And the law of the document says that if there is an authenticated document, then from the court’s standpoint it is as if two witnesses stood here and testified. Clear?

[Speaker B] Yes, it’s so difficult precisely because they authenticated the document—this splitting of testimony, it just doesn’t register.

[Rabbi Michael Abraham] Why? They authenticated the document; that’s not splitting.

[Speaker B] No, I mean exactly—but they authenticated the document and then continued, that’s splitting the statement.

[Rabbi Michael Abraham] But I’m not—I believe their authentication, and I also believe the continuation. I believe everything, no problem.

[Speaker B] But—

[Rabbi Michael Abraham] When I believe their authentication, then I now have the document’s witnesses saying something against the continuation of what they’re saying, so they have two against their two, which are the document’s witnesses. So that part falls. Now they only have migo. Therefore Tosafot treats it as migo and not as witnesses. Because the document’s witnesses knock these witnesses out; there really aren’t witnesses here.

[Speaker B] And the migo is the only weapon left.

[Rabbi Michael Abraham] Exactly. Okay. So what does the Talmud say? But with regard to “we were coerced,” there there’s a problem. Why? Because there you don’t have the lender’s presumption—that the lender checked that they were not coerced. Because when they say, “We were coerced,” they are saying that you are the one who did it to us. So obviously we cannot say, no, there is a presumption against you that the lender certainly checked that you were not coerced. On the contrary, he forged a document and forced them to sign it because he wanted to collect the money by force. So here, indeed—so why does Rabbi Meir say they are not believed? Here you don’t have the lender’s presumption against them, so why shouldn’t they be believed to say, “We were coerced”? After all, they have “the mouth that forbade.” So the Talmud says: Rav Chisda said, Rabbi Meir holds that if witnesses were told, “Sign falsely and do not be killed,” they should be killed rather than sign falsely. Again I remind you that right now we are in the reading of the Mishnah as dealing with mortal coercion, right? And if so, witnesses now come, authenticate the document, and say, “We were coerced.” Rabbi Meir says to them: what do you mean, “We were coerced”? So the lender was standing over you with a gun, saying that if you didn’t sign this forged document he’d kill you? You should have died and not signed. That’s what Rabbi Meir says.

[Speaker E] It sounds extreme to everyone.

[Rabbi Michael Abraham] Yes. It sounds extreme to everyone; we’ll talk about that in a moment. But that’s what Rabbi Meir says: you should have died and not signed, in order not to harm the borrower’s money unjustly. Okay. So what did we gain from this answer? Therefore Rabbi Meir says: when they come and say, “We were coerced,”—

[Speaker B] They are basically disqualifying themselves.

[Rabbi Michael Abraham] Why? Because they should have—

[Speaker B] Been killed. What do you mean? They should have been killed and weren’t.

[Rabbi Michael Abraham] And they say: here we are, alive and well. Right. The player who had left the field has come back. We had already gotten rid of him. Once we spoke about coercion for monetary reasons, we were talking about “a person does not render himself wicked.” Then we moved to reading the Mishnah as talking about coercion involving life and death, so that whole game of “a person does not render himself wicked” is no longer relevant. All we have here is only the question of “he cannot retract and retestify,” right? Rabbi Meir slips “a person does not render himself wicked” in through the back door. And he says: true, “the mouth that forbade” solves the problem of “he cannot retract and retestify,” as Rashi explained, or as I said, that it’s an issue of credibility and not admissibility—fine. That was the Talmud’s question: Rabbi Meir, how can you not accept “the mouth that forbade”? Of course I accept it, says Rabbi Meir. “The mouth that forbade” solves the problem of “he cannot retract and retestify,” you’re right. But in my view there is another problem here besides “he cannot retract and retestify”: there is also a problem of “a person does not render himself wicked.” Okay? As testimony. And here, according to Rami bar Chama’s conclusion, we said that “a person does not render himself wicked” is a problem of admissibility. And “the mouth that forbade” does not solve that, according to the conclusion. Therefore Rabbi Meir says: I do not accept the credibility of these witnesses to say that they were coerced. And then it turns out that “we were coerced,” “we were disqualified,” “we were minors”—each one of these is rejected according to Rabbi Meir for a different reason. “We were disqualified” and “we were minors” are rejected because of the presumption that the lender checked. And “we were coerced” is rejected because they are rendering themselves wicked. Wait, what was rendering themselves wicked? Disqualified and minors. Disqualified—disqualified. Now I’ll just make a few comments on this point, about the obligation to die there. Look at Rashi here. Rashi writes: “They should be killed rather than sign falsely.” So Rashi says: therefore, when they say, “We were coerced by threat of death,” they are rendering themselves wicked. Basically Rashi explains that even though they say “we were coerced by threat of death and not for money,” where until now we thought that the whole problem here was only retracting testimony, not “a person does not render himself wicked”—no, no. According to Rabbi Meir, it is also a problem of “a person does not render himself wicked,” because it is forbidden to do such a thing, and they are testifying about themselves that they are wicked. From Rashi it sounds like the Talmud means this literally. Literally meaning: one must be killed rather than violate the prohibition of theft. Whoever did not allow himself to be killed is wicked.

[Speaker B] Over theft—

[Speaker E] Or over falsehood?

[Rabbi Michael Abraham] It’s theft, yes—they are lying for the benefit of the lender, and the lender will take money.

[Speaker B] So it’s theft—they’re taking money.

[Speaker E] No—

[Rabbi Michael Abraham] It’s not over the lie; it’s over the theft. The straightforward understanding is that it’s over theft.

[Speaker B] We saw this before, last year, that there is someone who understands theft as an additional commandment.

[Rabbi Michael Abraham] I’ll comment on that in a second. That’s Rashi. That’s Rashi, the same Rashi.

[Speaker E] So it seemed to me that it’s theft altogether. Why isn’t that obvious?

[Rabbi Michael Abraham] What do you mean? They are signing a forged document saying that Reuven owes Shimon money. Now Shimon will bring the document and collect money from Reuven with their help. They signed the document.

[Speaker E] So it should have said, “Steal and don’t be killed”? It says, “Sign and don’t be killed.” No—“sign falsely,” meaning, don’t steal and don’t be killed.

[Rabbi Michael Abraham] No, that’s a quote of the lender. It’s quoting the lender’s words. The lender says to them, sign or I’ll kill you.

[Speaker E] Then it should have said, “They should be killed rather than steal.”

[Rabbi Michael Abraham] Why “they should be killed rather than sign”? What they actually did was sign. It doesn’t say “they should be killed”—and it also doesn’t say “they should be killed rather than lie.” That also isn’t what it says. Doesn’t it say “they should be killed rather than lie”?

[Speaker B] No, “they should be killed rather than sign.” Rather than sign.

[Rabbi Michael Abraham] Fine, they signed. Now the question is what that means. Is the problem the lie, or is the false signature problematic because of theft? Obviously it’s theft. No one said that one must be killed rather than violate falsehood.

[Speaker D] I keep picturing this story differently. I mean, what do you mean—for me the lender is the coercer.

[Rabbi Michael Abraham] Meaning, obviously the lender.

[Speaker D] No, wait, that’s exactly it—and in my head the whole time it was the borrower. Meaning, he compels them because the borrower wants the money. No, the borrower needs the money. The borrower supposedly gave him—

[Rabbi Michael Abraham] Gave what? Why would the borrower have money here?

[Speaker D] The case is: a man lends, says, “I lent you money, now pay me back.” Actually maybe—wait a second—didn’t the coercion happen at the time of the loan?

[Rabbi Michael Abraham] No, we’re talking—not at the time of the loan; there was no loan. Exactly! He comes to two witnesses and says to them: sign a document as though there had been a loan. There was no loan. He is a liar; he forged a document and is forcing them to sign.

[Speaker D] Oh, right, because I had a completely different picture in my head. That’s what this is talking about. There aren’t two people, lender and borrower.

[Rabbi Michael Abraham] No, of course not. There is someone claiming that he is a lender and that the other one is the borrower—he says so. What do you mean?

[Speaker D] You’re saying that in court this is all fine from the lender’s side.

[Rabbi Michael Abraham] Yes, yes—he fabricated a document and forced them to sign it, saying, “I’ll kill you if you don’t sign.”

[Speaker D] Right, and you would expect… the Talmud doesn’t say that. Okay.

[Rabbi Michael Abraham] So from the plain meaning of the Talmud—and this is apparently how Rashi learns it—it seems that at least according to Rabbi Meir there is “be killed rather than transgress” with respect to theft. The Sages disagree with him, and we rule in Jewish law like the Sages, but at least according to Rabbi Meir there is “be killed rather than transgress” with respect to theft.

[Speaker D] No, now it makes sense—so that’s why it’s theft, right? Yes, yes, meaning that he uses the document—

[Rabbi Michael Abraham] Obviously it’s theft. It’s just that Iris said: fine, but who says that the “be killed rather than transgress” is specifically about the theft aspect here and not about the falsehood aspect? She didn’t say there’s no theft here. Okay. This claim of Rashi basically connects to Rashi in Bava Kamma 60b—we studied this, I don’t remember if it was half a year ago or two years ago. In HaKones. Okay. There on page 60 we saw that Rashi learns “a person may not save himself with another person’s money.” And Rashi takes it literally. Literally meaning: there is “be killed rather than transgress” regarding theft. Yes. More than that: Rashi there says this as Jewish law. Here it is said in Rabbi Meir’s view; the Sages do not accept it. Rashi there says it as practical law. That is much more far-reaching. Yes. And I explained there that Tosafot already asked against him there. Tosafot asked there: how can that be? We know that there are three severe prohibitions for which one must be killed rather than transgress: idolatry, sexual immorality, and murder. If theft is also such a prohibition, then they should have said there are four. Why does every place say there are only three? So I explained there that Rashi’s approach probably works like this. There are only three prohibitions such that, because of their severity, I must die rather than violate them. With theft, there is “be killed rather than transgress” not because of the severity of the prohibition. Its severity is not like the three severe ones. Rather, it’s because of the nature of the prohibition. What does that mean? The moment I am required to harm someone else, and they threaten to kill me, I basically say: look, I have, say, the prohibition against theft versus my own life-threatening danger. Saving life overrides my prohibition of theft. It overrides my own prohibition of theft, right? But what about his right to his property? My assumption is that the reason I don’t take his money is because I’m under a prohibition of theft. What Rashi is saying is: not so. On the contrary. I don’t take his money because it is his. And as a consequence there is a prohibition of theft. Meaning, the prohibition of theft is a result, not the reason. A practical difference, for example—I brought from Rabbi Shimon Shkop. In a moment.

[Speaker D] Here, that same person whose property it is—yes, the one about whom there is supposedly theft—you said before, “what about his right,” but what, is his right to his property stronger than the other person’s life-threatening danger?

[Rabbi Michael Abraham] Yes. My right to my money is mine. You do whatever you want—am I to blame that they’re threatening you? What does that have to do with me? It’s my money. No—why don’t you distribute all your wealth for the sake of the starving in Africa? What, your money—your right to your money—is worth more than their lives?

[Speaker D] No, but if it happens because of my money—that’s already a different story, that’s saintly conduct, right?

[Rabbi Michael Abraham] No, obviously, that’s going beyond the letter. We talked about that there. No, I’m talking about where it isn’t my money, and I can save him only if I… So I’m saying that in such a place Rashi says as follows. In the prohibition of theft there’s something different from the three severe prohibitions. In theft, the prohibition of theft is overridden by saving life. It is not one of the severe prohibitions. But the reason I am forbidden to take the other person’s money is not because of the prohibition of theft. The prohibition of theft is overridden here. It’s because it belongs to the other person. I cannot make decisions about your property. I gave you then the example with my clownish friend from Bnei Brak, who said he saw some book by someone near the table that he had wanted for a long time. I told him, listen, there are two options: either take the book and violate “do not steal,” or leave the book where it is and violate “do not covet.” And since in any case I’m violating a prohibition, at least let the book be with me. Now aside from the fact that there are Jewish-law mistakes here, and of course he knew that, but let’s say, let’s say that reasoning was correct. What still is not correct here? What is not correct is that proper halakhic calculations—you make those about your own money, not about my money. The calculations regarding my money are made only by me. And that’s not because your calculation is wrong—I want to say that. Your calculation may be right; it doesn’t matter. Because you have no mandate to make calculations about my money. Therefore I can deal with you not on the plane of whether your reasoning is right or wrong, but on what I called then the territorial plane. This decision is being made outside your territorial waters. You cannot make that decision in my territory. Your calculations you make on your own territory. You cannot make calculations, even correct ones, on my territory, because in my territory only I make decisions. And that is what Rashi is saying. Therefore Rashi says this: there are only three severe prohibitions that override saving life—idolatry, sexual immorality, and murder. Murder. The prohibition of “do not steal” does not override—rather, the prohibition of “do not steal” is overridden by saving life. But the reason I am forbidden to take money from you is not because of “do not steal.” It’s because it is yours! And if you’re wicked and don’t want to give the money even though I’m going to die—and that’s wicked—but it’s your right, it’s your money, there’s nothing to be done. It’s your decision. And in murder, isn’t it your body or your life? In murder too there are two aspects. Two aspects. First, there is the severe prohibition—the severe prohibition of “you shall not murder”—and there is also the aspect that you are harming the other person.

[Speaker B] And therefore—

[Rabbi Michael Abraham] Therefore even without the severity of the prohibition, there too it would still be “be killed rather than transgress.”

[Speaker B] So too the relation to raping a betrothed young woman.

[Rabbi Michael Abraham] Not exactly in rape, maybe, but in adultery generally. You can show there is all kinds of evidence that in adultery too there is a double problem. First, the severity of the prohibition; and second, that she is someone else’s wife. For example, with a designated maidservant, where there is no prohibition of adultery, still, she is another man’s woman—you cannot do that. There, that’s the practical difference. Or for example with stealing from a gentile.

[Speaker B] There are—

[Rabbi Michael Abraham] Views that say with regard to a gentile there is no Torah-level “do not steal.” Still, says Rabbi Shimon Shkop, you cannot touch a gentile’s penny.

[Speaker C] Not—

[Rabbi Michael Abraham] Not because of the prohibition of “do not steal,” but because it is his.

[Speaker C] The—

[Rabbi Michael Abraham] Decisions about property are made only by the owner of the property, not by someone else. Therefore it is a mistake to think that the reason I don’t take the money is because of the prohibition of “do not steal.” On the contrary. I don’t take the money because it is yours, and from that it follows that there is a prohibition of “do not steal” in taking the money. But if the prohibition of “do not steal” were overridden, that would change nothing, because here “do not steal” is the result, not the reason. That’s how I explained Rashi there, and I claim that Rashi here is consistent with his own approach. Okay, in a moment you’ll see that most of the medieval authorities disagree with him—both here and there. Now, before we move to the other medieval authorities, let’s quickly look at the continuation of the Talmud. Rava said to him—look at the continuation.

[Speaker B] Wait, stop for a second. I’m just trying to think of another example from this topic. Suppose a person is in a vegetative state and they decide to donate his organs. Is that similar? No, I’m trying to think—whether there is—

[Rabbi Michael Abraham] Here, there’s simply a prohibition of murder involved. The prohibition itself too, the severity of the prohibition—you don’t need to get to—

[Speaker B] Let’s put that aside, no—

[Rabbi Michael Abraham] Put it aside—so then how is that different from any other person? What did you gain from that example? When I take organs from a healthy person—

[Speaker B] Same thing.

[Rabbi Michael Abraham] So okay, no, so—

[Speaker B] It’s a person who has already had brain death. It doesn’t matter according to the halakhic definition.

[Rabbi Michael Abraham] If you define him as dead, then apparently there’s no problem. If you define him as alive, then he’s like any living person.

[Speaker D] There’s no problem once he’s dead? Taking, from that standpoint?

[Speaker B] If he’s dead, in principle there’s no problem.

[Rabbi Michael Abraham] By the way, on this issue I argue that you don’t need rabbinic approval for an organ-donor card; in other words, you can donate organs freely. Why? Because brain death—even if I consider such a person alive, I wrote an article about this once in Techumin—even if I regard him as alive, organs may be taken from me, because the blood of the person being saved is redder than my blood. The only reason it is forbidden to kill me in order to save someone else is that my blood is no less red than his. In a case where I am brain-dead, then even if people formally define that as alive, you cannot say that my blood is as red as that other person’s. Therefore I argue that there is no need to enter the question whether I am considered alive—

[Speaker B] Or dead from the standpoint of organ donation. The question is not where you’re placing it. The question is whether intentional murder will be done here to save someone else.

[Rabbi Michael Abraham] That’s not the question; that is certainly forbidden.

[Speaker B] The question exists in the place of rabbinic consent. No, rabbinic consent in determining death—that’s the question.

[Rabbi Michael Abraham] What do you mean? The law forbids doing such a thing; no one can do such a thing. The entire issue of rabbinic consent is only about brain death. Only about a state of brain death.

[Speaker B] No, I understood that it’s only to be present at the determination of death.

[Rabbi Michael Abraham] Exactly. Why? Because if the doctors determine brain death, the rabbis can say yes, but that’s not death from a halakhic standpoint. That’s the issue. That’s the whole issue. Because legally, brain death obviously has to be determined. Without brain death, doctors cannot remove organs; it’s against the law. So what? Then why do you need rabbis?

[Speaker B] Lots of things are done against the law.

[Rabbi Michael Abraham] What does that have to do with it? And if rabbis act against the law, how would that help? The rabbis are not there to ensure compliance with the law. The rabbis are there to ensure that even if you obey the law, you still won’t violate Jewish law. That’s all. Where does that come up? Only when there is brain death. Otherwise put a police officer there, not a rabbi. I understood the nuances between brain and the other—

[Speaker D] Fine, this isn’t the place, okay. Cardiac versus brain?

[Rabbi Michael Abraham] Doesn’t matter. In any event, for our purposes: brain death.

[Speaker D] Cardiac death and brain death, between dead—

[Rabbi Michael Abraham] No, there is an earlier stage called brain death, and there is a dispute whether after that a person is already considered dead, even though his heart is still functioning. The practical implication is that one can take organs from him if he is dead, because then it is not considered murdering him. But if he is still considered alive, in legal status, then it is forbidden to take organs from him because you are murdering a living person. That is basically the dispute. Because it kills him. No, it’s not just ordinary organ donation. It’s a donation that kills. No, I’m talking about a donation that kills. Because I claim that his blood is less red than the person you are saving.

[Speaker B] That he’s sort of less alive.

[Rabbi Michael Abraham] But on the other hand I am also stringent about theft. I argue that if that person did not consent, then it is forbidden to take the organs even after his death.

[Speaker B] Exactly—that’s what I meant, precisely. That’s what I meant. Whether I want to make an analogy here, just as I can’t decide about other people’s money, whether I also can’t decide about other people’s bodies.

[Rabbi Michael Abraham] I completely agree. There is a very great leniency here—that you can take organs even from a living person—and there is a very great stringency—that even from a dead person you cannot take organs if he did not consent. If he did consent, go all the way. If he did not consent, absolutely nothing is permitted to you. That’s it. And again, those two things obviously do not contradict each other; they are two sides of the same coin. Because my claim is that what determines things here is not the level of prohibition at all. What determines things here is rights. So once you waived your rights, do whatever you want. If you did not waive your rights, no one is allowed to touch. Yes, and that is exactly the point, because what determines things here is rights and not prohibitions. That’s the point.

[Speaker E] Those who are supposed to donate organs—it’s obvious that they need to do it in a state of brain death, and not—

[Rabbi Michael Abraham] No, of course, because otherwise he is forbidden even to consent; otherwise he is killing himself. Suicide is forbidden.

[Speaker E] No, it has to be at a stage when it is still possible, and after he dies—

[Rabbi Michael Abraham] After cardiac death there are certain organs that cannot be removed.

[Speaker B] Yes, exactly.

[Rabbi Michael Abraham] The whole discussion is between brain death and cardiac death regarding those certain organs, like a heart, for example. A heart is the clearest example, but there are others.

[Speaker B] What is the default? If a person didn’t sign an organ-donor card but also didn’t make any clear statement?

[Rabbi Michael Abraham] I can’t say. I think what one would need to do is assess what the average person would want. Or make a statistical estimate of what most people think. Difficult—a hard question, I don’t know. Does the family have standing? Maybe they can testify what his view was, because they knew him, but the family has no independent standing.

[Speaker D] No, can’t they say, this person would presumably have said such-and-such?

[Rabbi Michael Abraham] Fine—as testimony about what he wanted, not about what they want. Whether they want it or don’t want it is irrelevant. Obviously.

[Speaker D] And if I know—

[Rabbi Michael Abraham] That he wanted it, for example, and the family objects—can I take them? By the way, they don’t do that today. They don’t do it even though the law allows it. Because the practice is not to go against the family. Even if the person signed an organ-donor card and agreed. Oh really? Certainly. They don’t do it. So in the end the donor card has practically no significance at all. In the end what determines things is what the family says.

[Speaker D] Those who donated organs while alive?

[Rabbi Michael Abraham] That’s something else. Those are organs whose removal doesn’t kill. A kidney. They take from me one organ, one kidney out of two. I can live with one kidney. Of course it is forbidden to take that kidney from me without my consent, but I am allowed to consent—I’m not committing suicide, I remain alive. On the contrary, it’s even a noble act. But I’m not allowed to donate my heart so that they kill me and take the heart for someone else. That’s the prohibition of suicide; I’m not allowed. So the point is that there’s something here… So according to Rashi, theft really is “be killed rather than transgress,” and they render themselves wicked. Now I return to the Talmud. Rava said to him: “Now, if they had come before us to ask what to do, we would have said to them: go sign and do not get killed, for the master said: nothing stands in the way of saving life except idolatry, sexual immorality, and murder alone. Now that they have signed, should we say to them: why did you sign?!” Rava says: if they had come to ask us whether they should sign or not, we would tell them to sign. “Be killed rather than transgress” applies only to the three severe prohibitions. So after they signed and acted lawfully, now we ask them why they signed and say they are rendering themselves wicked? There is no logic in that.

[Speaker B] Why didn’t you get yourselves killed—that’s the question.

[Rabbi Michael Abraham] Now this is a very problematic question. Because that is exactly Rabbi Meir’s claim. Rabbi Meir claims that even if they had come in advance to ask, we would have told them: die and do not sign. So what kind of question is this? According to Rashi, it’s very unclear what the question in the continuation is. So according to Rashi, we have to say that Rava is not really questioning Rabbi Meir within his own framework, but is saying that this simply is not the Jewish law; Rabbi Meir simply cannot think this way. Because the law is that only regarding the three severe prohibitions does one say “be killed rather than transgress.” Okay? That is what he is asking. That is according to Rashi.

[Speaker E] I’m suggesting maybe he’s saying that when they signed, they thought that was the law, and now—

[Rabbi Michael Abraham] And now—

[Speaker E] We reveal to them that no, the law is like Rabbi Meir, and then therefore you can’t tell them after the fact not to sign, because only now they know the law is different.

[Rabbi Michael Abraham] No, what do you mean? We know that’s the law; we know it all the time. This case didn’t happen when the passage was written. We’re talking about a theoretical case.

[Speaker B] Why? Actually I do have an answer. Why? No, for the passage: there is a law but we do not instruct accordingly. Meaning, yes, if they had come and asked us, we would not have told them to get killed.

[Rabbi Michael Abraham] But in truth, because it is forbidden—that’s it—

[Speaker B] The question is whether that’s because it’s forbidden.

[Rabbi Michael Abraham] He says because only for the three severe prohibitions does one get killed, not because of “there is a law but we do not instruct accordingly,” but because the law is that there are only three severe prohibitions and not four. So what do you want? But Rabbi Meir says there are four. So what is the question? He says no, it cannot be that Rabbi Meir says there are four, because this is an agreed-upon law; nobody disputes it. That’s the question. It’s an agreed-upon law: there are only three severe prohibitions, not four.

[Speaker E] Then what does it have to do with saying now that they signed—

[Rabbi Michael Abraham] “Now that they signed”?

[Speaker E] What is that phrase adding now that they already signed?

[Speaker B] No, he means—Rava is saying, in your own words: if when they had come to ask you what to do you would have told them, of course, go sign and don’t get yourselves killed, now that they signed you say to them, ah, that wasn’t okay, you rendered yourselves wicked?

[Rabbi Michael Abraham] But they are not wicked. If they had come and asked me, I would have told them to do it.

[Speaker E] Exactly. So how can he say such a thing? What difference does it make if now—what I hear is that the emphasis of the sentence is: now that they already signed, how can you tell them that it wasn’t okay?

[Rabbi Michael Abraham] No, no, no, no. It’s not “now,” according to Rabbi—

[Speaker B] Meir he would say to them, yes, die and do not sign. And Rava says: what do you mean? Sign and don’t get killed.

[Speaker E] No, wait, fine, so Rava wants to understand the phrase “now that they signed.”

[Rabbi Michael Abraham] So he says, after all—

[Speaker E] If they had come—

[Rabbi Michael Abraham] And asked me, I disagree, Rabbi Meir, that’s—

[Speaker E] That’s what he’s saying—

[Rabbi Michael Abraham] That’s what he’s saying, yes. He says: after all, the law is—this is connected to after the fact? No, not that he disagrees with Rabbi Meir after the fact. It’s not after-the-fact at all. It’s not that he disagrees with Rabbi Meir. He argues: that is not what Rabbi Meir says. Rabbi Meir does not say such a thing. It cannot be that Rabbi Meir says such a thing, because there are only three severe prohibitions, not four. Why are you attributing to Rabbi Meir that theft too is “be killed rather than transgress”? There are only three such prohibitions. And then what? Then obviously if initially they were allowed to sign and did not have to be killed, then obviously also after the fact, if we ask them why they signed, obviously that is perfectly fine—they did not render themselves wicked. In short, this explanation of Rabbi Meir doesn’t work. No, no—I think his wording is perfectly fine.

[Speaker E] It can’t be that one says—no, Rabbi Meir, that’s—

[Rabbi Michael Abraham] That’s what he’s saying, only in a stronger form. He says: after all, initially no one ever disputed this, so do you now want to say that after the fact someone disputes it?

[Speaker B] He didn’t just invent here some law that no one knows.

[Rabbi Michael Abraham] So according to Rashi, this is a bit difficult. More than that—I’ll note that according to Rashi it is even more difficult, because Rashi in Bava Kamma 60 says that this also remains the practical law. Not only is there such a legitimate opinion of Rabbi Meir; it is also the law. Then perhaps we have to say something else here—perhaps, I’m thinking, maybe we have to say something else.

[Speaker B] Could we say that Rashi here—I don’t know about Bava Kamma—here he is not ruling Jewish law. He is only explaining Rabbi Meir’s view.

[Rabbi Michael Abraham] Right. And then Rava comes and says: but that can’t be. Correct? So why can’t it be? But that is the law, so why can’t it be?

[Speaker B] No, here he doesn’t say that is the law.

[Rabbi Michael Abraham] Not here, but it is written in Bava Kamma. So what, the passages disagree? Then say the passages disagree. But I’m saying that in principle this does not fit what is in Bava Kamma according to Rashi. It could be that there is nevertheless something else here. Look: where is Rashi talking about his case? Rashi says, for example, that if they threaten me with a gun and say either you steal from someone or we kill you, then Rashi says I have to die. I have to die; I am forbidden to steal. Fine? Here they are not telling me that. They’re saying: look, you sign. Not “you steal”—you sign. Otherwise they’ll kill you. It’s true that afterwards he will take the document and steal, but you didn’t steal; he stole. You only did something that is a false signature. We’re back to falsehood. This is a false signature. The one who stole is the one who forged the document and went to collect with it. He is the thief. In such a case I do not have to die, because here there may be falsehood, here’s the example, but there is no theft. And only for theft is there “be killed rather than transgress.” Then it works out even according to Rashi.

[Speaker D] That’s a new scenario now.

[Speaker E] Meaning, you don’t know what you’re signing?

[Rabbi Michael Abraham] I know what I’m signing, I’m not an idiot. But the one who commits the theft is him, so what if he uses me? If I myself were stealing, I would have to die rather than transgress, because I myself would be stealing. But if I myself am only doing something that someone else will later misuse—go complain to him. Do I have to die so that someone else won’t do… If I make money somehow, and someone takes that money and buys a missile with it and kills someone, then because of that do I now have to die in order not to earn that money? If he decides to make bad choices, then go complain to him. What do you want from me? If I myself were stealing, then you could demand of me: don’t steal, that’s a prohibition; die and don’t steal. But I’m not doing any prohibition. I’m just signing. He will later do something bad with it. So go complain to him. Do I have to die so that he won’t do something bad?

[Speaker B] Do I have to die so that—

[Rabbi Michael Abraham] That I should not do something bad. Not for his sake. And this isn’t called indirect causation in damages? So what if it’s indirect? There is no “be killed rather than transgress” for indirect causation. No, I’m asking. Maybe it’s indirect causation, but there’s no “be killed rather than transgress” for indirect causation. So if I’m under duress, I’m allowed to cause damage. To do damage is forbidden; to cause damage is permitted. And then everything is fine. So look, the Talmudic flow according to Rashi is excellent. Because with signing, it’s indirect causation. If he had come and asked us whether to sign, we would have told him: sign, even though we hold that robbery is in the category of “be killed rather than transgress.” No, not because we don’t hold that. Fine? Sign. What signing? At most it’s a lie, but lying is not one of the three severe transgressions. This goes back to what Iris pointed out earlier. So what then? Now when he comes and tells me that he signed, can I accuse him of being wicked?

[Speaker B] And that works out excellently according to Rashi if that’s so. So according to Rabbi Meir that also counts.

[Rabbi Michael Abraham] No, they drop that. Rava rejects that explanation of Rabbi Meir. He says that can’t be the explanation. According to Rav Chisda, with Rabbi Meir, that’s how it goes. But Rava says that can’t be Rabbi Meir’s explanation, because for something like this, according to everyone, there is no “be killed rather than transgress.” Fine? And then they give a different explanation for the dispute between Rabbi Meir and the Sages—“if one admits to a document that he wrote”—which appears in the conclusion of the passage. But first of all, this is the flow of the Talmud according to Rashi. I think it’s a necessary reading; you can’t understand it any other way. Now look, Nachmanides—I didn’t photocopy him for you, but I’ll read it to you. Look, Nachmanides and most of the medieval authorities (Rishonim) do not learn like Rashi. Because, as we also saw in Bava Kamma, they are not willing to accept “be killed rather than transgress” with regard to robbery. They are not willing to accept such a thing, and so they simply say that one who robs must pay, even if he robbed under duress, but it’s not that he is forbidden to rob and must die instead. So then how do they read the Talmud here? On the face of it, the plain sense of the Talmud here is like Rashi. By the way, the plain sense of the Talmud there is also like Rashi. But since that is very difficult conceptually, the medieval authorities prefer to move the Talmud away from its plain sense. So what do they do with the Talmud here? I’ll read you Nachmanides’ wording: “That which Rav Chisda said, ‘Rabbi Meir holds regarding witnesses who were told,’ etc.—this is what he means: even though we hold that nothing stands in the face of saving a life except idolatry, forbidden sexual relations, and murder, nevertheless the law is that they should be killed and not sign falsely. And it is a pious practice. And if they did not do so, they render themselves like wicked people. And Rabbi Meir holds that even in such a case a person does not render himself someone who is not pious.” Meaning, Nachmanides is basically saying: obviously there is no “be killed rather than transgress” for robbery, but someone who wants to be an exceptional righteous person, an exceptional pious person, will give up his life in order not to lie and not to rob. Okay? Now these people came and acted according to the law; they were allowed to sign. So they are not great saints, but it’s permitted; according to the law it’s permitted; you don’t have to die for this, okay? Now they come and say: look, we were not—

[Speaker D] pious; we just acted according to the law.

[Rabbi Michael Abraham] Nachmanides makes an innovative claim here—it’s forced. He says: “A person does not render himself someone who is not pious.” Wow. You’re not believed even to say that—not only that you’re wicked, but even that you weren’t pious. That’s very forced. After all, I acted according to the law; I’m simply testifying that I acted according to the law. How can you say I’m not believed about that because I render myself wicked? I render myself not pious. About that I’m not believed? But of course, because of the great difficulty, Nachmanides is not willing to accept Rashi’s explanation that robbery falls under “be killed rather than transgress,” so you have to explain the Talmud here somehow. So Nachmanides says you have to say that according to Rabbi Meir it’s a pious practice, and a person is not believed to testify about himself that he is not pious—which is very strained. Apparently in Nachmanides’ eyes that strain is less severe than saying that robbery falls under “be killed rather than transgress.” Okay? But now how do you read the continuation?

[Speaker B] Now—

[Rabbi Michael Abraham] The continuation is very clear, because now what happens with Rava? Rava comes and says: wait a second. And “Rava had a difficulty,” I’m continuing to read Nachmanides, “since you admit that nothing stands in the face of saving a life except idolatry, forbidden sexual relations, and murder, and if they had come before us we would instruct them to sign—if so, when they signed on their own, how can that be considered as rendering themselves wicked, such that we would say a person does not render himself wicked, since if they had come for instruction we would have instructed them from the outset to testify and not be killed?” How can that be? You’re just saying that a person does not render himself not pious, and therefore you don’t believe them. But if they had asked us, we would have told them to sign. So how can you say about something like that that people can’t render themselves not pious? By the way, it’s a very interesting question where the focus of Rava’s objection is. Does he disagree that such a thing is even a pious practice at all? Really, you’re allowed to sign—so sign. Why in the world would you commit suicide over money? Maybe that’s even forbidden?

[Speaker C] In Nachmanides it doesn’t seem that way.

[Rabbi Michael Abraham] In Nachmanides it seems that Rava is not attacking that, but rather the idea that people cannot render themselves not pious. Render himself wicked—he can’t. But render himself not pious? That’s not plausible. But the idea that such a thing is called “not pious”—that apparently Nachmanides does accept.

[Speaker E] Very interesting. And then maybe it fits better with the inner style of how—

[Rabbi Michael Abraham] Yes, right.

[Speaker E] As if, we would have told you according to the law: yes, sign. Right. And still, after the fact, you shouldn’t have; it’s not okay; you should have been—and not—

[Rabbi Michael Abraham] We don’t accept your testimony because you’re wicked. Yes. Exactly. The style here certainly fits better. That literary expression you asked about earlier—I think according to Nachmanides it’s easier. But there are still very heavy costs here, I think, to Nachmanides’ explanation; it’s very forced. And of course the basic motivation is that he is not willing to accept the thesis that robbery is under “be killed rather than transgress.” He is not willing to accept that, so he is forced into this strained reading. I also said there in Bava Kamma, and I say here as well: the plain sense of the Talmudic passages is like Rashi.

[Speaker E] It’s hard—

[Rabbi Michael Abraham] Conceptually it’s hard, but the plain sense of the Talmudic passages is like Rashi. Both here and in Bava Kamma it implies that robbery falls under “be killed rather than transgress,” at least here that’s only according to Rabbi Meir, of course.

[Speaker E] Now Nachmanides goes on, but on the one hand he won’t accept that this is “be killed rather than transgress,” and on the other hand he says there’s an obligation to be such that if you’re not pious then you render yourself wicked.

[Rabbi Michael Abraham] No, that’s the initial assumption; afterward it’s rejected. What Rava says—he doesn’t accept it; it can’t be, it’s only the initial assumption. Nachmanides then continues as follows: “And some say that Rav Chisda said that Rabbi Meir holds that even according to the strict law they should be killed and not sign falsely. For it is found in an external baraita: there are three things that do not yield before danger to life, and they are idolatry, forbidden sexual relations, and murder. Rabbi Meir says: robbery as well.” He found some external baraita that says explicitly that Rabbi Meir disagrees with the Rabbis, and in his view there are four severe transgressions—robbery too, not just idolatry, forbidden sexual relations, and murder. That really is an enormous novelty.

[Speaker E] And then really, how did he bring it just as it’s written there—“they should be killed and not sign falsely”? No, I’m just again going back to—like, if there’s such a baraita?

[Rabbi Michael Abraham] Nachmanides found some such baraita, I don’t know. So the point is this—notice. Nachmanides is actually bringing Rashi’s interpretation here, right? His earlier explanation argued with Rashi. Here he returns to Rashi’s interpretation, that it’s literal: robbery falls under “be killed rather than transgress.” Not only that, he even brings evidence for Rashi that Rabbi Meir really does hold that “be killed rather than transgress” applies even to robbery. There is an external baraita that says so explicitly. We rule like the Sages, so everywhere it says there are only three severe transgressions. But Rabbi Meir’s position is that there are four. Fine? But then the continuation is very difficult. Because if with Rabbi Meir it says explicitly in a baraita that his position is that there are four severe transgressions—that’s an accepted line of reasoning—and we hold there are three severe transgressions, obviously that’s the position of the Sages. But here we are discussing what Rabbi Meir holds. So how can you read the continuation of the Talmud? I think maybe there’s no choice except to say that Rava argues that even this external baraita cannot stand. There cannot be such an opinion. I don’t accept even that external baraita. Otherwise it’s hard to read the Talmud.

[Speaker D] Wait, who said that it can’t be—that it doesn’t exist?

[Rabbi Michael Abraham] Rava. Rava rejects this explanation of Rabbi Meir’s opinion, so he assumes that robbery cannot fall under “be killed rather than transgress.” But there is a baraita that says explicitly that yes, Rabbi Meir holds that even for robbery there is “be killed rather than transgress.” So Rava will apparently say: impossible—even that baraita probably isn’t precise. So where does the conclusion of the Talmud leave us at the moment? Let’s summarize. Right now we basically don’t understand the dispute between Rabbi Meir and the Sages, right? Because both of them should really believe the witnesses in the first clause, because they have “the mouth that forbade is the mouth that permitted.” And there is no issue of “a person does not render himself wicked.” If this were a case of “a person does not render himself wicked,” then “the mouth that forbade” would not solve it, right? And that conclusion stays with us the whole time. The problem of “a person does not render himself wicked” is not solved by “the mouth that forbade,” unlike in Rami bar Chama’s first framing. Okay? That remains throughout. Only here this is not called “a person does not render himself wicked,” because it is permitted to sign—it’s danger to life. So the question returns: if “he can retract and explain” is resolved by “the mouth that forbade,” then why doesn’t Rabbi Meir believe them? So to that the Talmud says: rather, Rabbi Meir’s reason is in accordance with Rav Huna, in accordance with Rav Huna who said in the name of Rav, who said: if one admits to a document that he wrote, it does not need validation. It says: if someone comes and claims against me—there is a document, and he claims money from me, you owe me one hundred shekels. Now the enactment of the Sages is that the document has to be validated, right? Without that, the debt can’t be claimed. Now I say: I paid. In other words, I myself say this document is genuine, it’s not forged; there was a loan. So there is a dispute whether, if one admits to a document that he wrote, it needs validation or does not need validation. What does that mean? One opinion says that if one admits to a document that he wrote—I admitted that I wrote you a document, meaning there was a loan and this is a valid document, not forged—so now there is a claim against me that I borrowed, and against a document I cannot say, “I paid.” Right? So apparently he can collect from me with the document. I can’t say, “I paid.” The second opinion says no: if one admits to a document that he wrote, it still needs validation. Without validating the document, you can’t collect. Why not? Because I have “the mouth that forbade.” I signed the document, and I told you it was paid. Fine? So if you believe me that I signed it, believe me that it was paid. If the lender validates the document, then he has independent means of validation, so there is no “mouth that forbade,” because the validation does not come from me but from the validating evidence. How does this connect to us? In our case there are no independent validating signatures. This is “the mouth that forbade.” Because if one who admits to a document that he wrote still requires validation, then if I admit that the document is genuine, you still need to validate it, and without validation you can’t collect on the document. So when I said, “The document is validated; this is my signature, this is my signature—but I was under duress, or disqualified, or something like that”—the moment I said this document, this signature is mine, I validated the document. And without validating the document it doesn’t work, so I have “the mouth that forbade.” But according to the view that if one admits to a document that he wrote it does not need validation, then one can collect. So then the document doesn’t need validation at all. So why should I care that the witnesses say, yes yes, this is our signature, but we were under duress? The fact that you say it is your signature did not help me at all, because this document does not need validation. The borrower also admits that the document is genuine. In a case where the borrower admits that the document is genuine, the enactment of the Sages requiring validation does not apply. So why should I care that you come and yourselves admit and thereby validate the document by saying it is your signature? Validation is not needed. The document is effective, so we are not living off your word. You did not give us the validation, and therefore you are also not believed to say that you were under duress. The dispute between Rabbi Meir and the Sages is over the question whether one who admits to a document that he wrote still needs validation or does not need validation—and that is the subject of the next passage. So we’ll leave it there; we’ll deal with it in the next passage. And for now I’m just closing the circle. So here we have finished the Talmud. Just a few comments on Tosafot, I hope I’ll have time, and then we’ll finish the relevant unit for now. Tosafot on the opening words “these are believed,” the first one, yes, on page 18b. “These are believed.” And if you say: why are they believed? We’re talking about the first clause, yes, where they come and say, “This is our signature, but we were under duress, disqualified, and so on.” So it says in the Mishnah, it says in the Mishnah: “these are believed.” If they themselves validate, then they are believed to invalidate. And if you say: why are they believed? But this is a migo in a case against witnesses. After all, if they validate the document, then the document is witnesses. Now the witnesses who validate have a migo—they could have kept quiet and not validated the document, right? “The mouth that forbade”—remember Tosafot’s approach? Throughout Tosafot, “the mouth that forbade” is migo. Like the Tosafot we saw on page 19, the Tosafot here says the same thing. “The mouth that forbade” is migo. So these witnesses have a migo, but against them stands a document, and a document is considered like two witnesses. So this is a migo in a place of witnesses. So why are they believed? “For we are witnesses that they were not under duress and not disqualified from testimony. For later we say: it is two against two.” What does “later” mean? That’s page 19, the passage we saw on page 19. Right? So if so, then this is a migo against witnesses. What good is that migo? And one can say: since the Sages required validation, here what they say—‘this is our handwriting’—is not considered validation at all, since they themselves say, within the same utterance, ‘we were minors’ or ‘we were under duress.’ But later we regard them as two witnesses because it has already been validated, since their handwriting emerges from elsewhere. What is he saying? That the witnesses come and say: this is our handwriting, but we were disqualified or under duress or something like that. So they did not validate the document. “The mouth that forbade,” or the migo, basically says: we did not validate the document; the document is not validated. After all, the Sages require validation of a document, right? Without a validated document, you can’t collect with it. Now from where is it validated? From their words. But they themselves say that they were disqualified. So there’s nothing here at all. Once the document is validated, the document has the status of two witnesses. And if I now had a migo against it, that would be a migo against witnesses and it would not help. Fine? But here you are assuming that the document is validated. But how do you know that? From us. Okay—but we are not validating the document; we are claiming that this document is forged. We were effectively signed as disqualified witnesses or under duress. So we did not really validate the document. An unvalidated document does not have the status of witnesses. Only a validated document has the status of witnesses. In other words, the migo is not attacking the witnesses, the testimony in the document. The migo is attacking the validation of the document. And once the document is not validated, there is no document here. If there is no document, there are no witnesses here. So the migo is not standing against witnesses. Only after the document is validated does it have the standing of two witnesses. And now if there were a migo against it, it wouldn’t help. But here “the mouth that forbade” basically says: we did not validate the document at all. Fine? So once again we see, first of all, that according to Tosafot—what?

[Speaker D] It undermines everything, the whole story, because really it’s up against the—

[Rabbi Michael Abraham] On the contrary. The Mishnah says they are believed when they have “the mouth that forbade,” and they are believed when they have “the mouth that forbade.” Why are they believed? After all, there are two witnesses against them; a document is like testimony already examined in court, and they themselves validated the document. I was just explaining this in a general way even without Tosafot—that is “the mouth that forbade.” “The mouth that forbade” basically means that our validation is not validation. It’s not that “the mouth that forbade”—look, what Tosafot says here is not that “the mouth that forbade” works against witnesses. There are medieval authorities who formulate it that way, that “the mouth that forbade” works against witnesses. We saw—I brought a Tosafot like that on page 28 when we learned about “the mouth that forbade.” One of the things the later authorities bring when discussing what “the mouth that forbade” is, one of the proofs that it is more than migo is that it works against witnesses. That is written in Tosafot on page 28. This Tosafot seems not to say that; “the mouth that forbade” does not work against witnesses. It claims that because of “the mouth that forbade,” there are no witnesses here.

[Speaker D] Because Tosafot understands it as migo and not as “the mouth that forbade.”

[Rabbi Michael Abraham] No, no. It is “the mouth that forbade”; “the mouth that forbade” works by the law of migo—it’s an upgraded migo. Those are the explanations of the medieval authorities, the first two explanations. So what Tosafot says here is that “the mouth that forbade” does not work against witnesses; “the mouth that forbade” shows that there are no witnesses here, because “the mouth that forbade” pulls the ground out from under the validation we gave the document. And as long as the document is not validated, it does not have the status of two witnesses. Only a validated document has the status of two witnesses. Fine?

[Speaker C] The validating testimony.

[Rabbi Michael Abraham] It’s the same witnesses. In the latter clause it says they are not believed. Why? Tosafot asks—look at Tosafot on the opening words “they are not believed.” Here one cannot ask that they should be believed on the basis of a migo, because if they wanted they could have said, “It was paid.” After all, they could have said that this document was paid—the document is validated and the document was paid. They said: we validated the document and we were disqualified, so they have a migo. Tosafot says: this is a migo against witnesses. Which witnesses?

[Speaker B] The document.

[Rabbi Michael Abraham] How is that? Why in the previous Tosafot was that not true? The previous Tosafot says that such a case is apparently a migo against witnesses, and then it says—what are you talking about? The migo shows that there was no validation here, right? And therefore it is not a migo against witnesses because there are no witnesses here; we didn’t validate the document. Here Tosafot says there is a migo against witnesses and therefore the migo does not help. Why?

[Speaker D] They didn’t invalidate the witnesses; they invalidated the—

[Rabbi Michael Abraham] They did not invalidate the validating testimony. Right? This migo of “paid” does not deny that the document is an authentic document. There was a loan. It’s just an ordinary migo. “The mouth that forbade” basically says: we did not perform validation here at all; the validation is worth nothing because it is invalid testimony. The migo of “paid” does not say, “we didn’t validate it”; there was validation, but I have a migo against the document proving that I paid or proving that I am believed. Okay? A migo against witnesses does not help. That is exactly the difference; the relation between these two Tosafot passages is exactly what explains the difference. A migo against a document does not help; even “the mouth that forbade” against a document, in principle, would not help—except that “the mouth that forbade” shows that the document is not a document at all. It has nothing to stand against, and therefore it helps. Okay? Look at Tosafot on the opening words “because of threat to life.” “These are believed.” And if you say, Tosafot asks: when they said, “we were minors,” or “we were under duress because of money,” then they should be believed by a migo, because they could have said, “we were under duress because of threat to life.” It’s the same question almost every time. They say, “we were under duress because of money”—I don’t believe you, because a person does not render himself wicked. Why not? Believe him by migo—he could have said, after all, that he was coerced because of threat to life.

[Speaker D] And one can say—and there are two more explanations here—

[Rabbi Michael Abraham] That duress because of threat to life is uncommon. It is a migo from an uncommon claim, so we don’t use migo. And further, with two witnesses we do not say migo, as I explained. We talked about this: we don’t apply migo to witnesses because they cannot coordinate and align the lies, or for reasons like that. And in all these places the migo keeps coming up, and the migo stands against the document—or in other words, why here, for example, does Tosafot not answer like the previous Tosafot we read? This is a migo against witnesses, after all—the document stands against them. Right? There are three Tosafot passages here; notice the difference between them. The first Tosafot talks about “the mouth that forbade” against a document—that does help. Why? Not because “the mouth that forbade” helps against witnesses, but because if I have “the mouth that forbade,” then the document is not a document; there are no witnesses here. The second Tosafot says I have a migo against the document—that really does not help, because that migo does not topple the document; it wants to stand against the document, and you can’t do that, because the document is two witnesses. This Tosafot says there is a migo here trying to topple the document. Why? We say “we were under duress because of money,” with a migo that we could have said “we were under duress because of threat to life.” That migo says the document is worth nothing, right? “We were under duress because of threat to life”—the document is invalid. So apparently that should have helped. Why doesn’t it help?

[Speaker B] Either because there is no migo here, or because it’s—

[Rabbi Michael Abraham] Right? Because it resembles the first Tosafot. In principle it should have helped. He says: because it’s uncommon, or because with witnesses we don’t—or various things like that. So why in the first Tosafot do we say migo for witnesses?

[Speaker B] No, because that’s something else, because it’s—

[Rabbi Michael Abraham] Exactly—“a migo that if they wanted they could have remained silent,” “the mouth that forbade”—that too is migo. Why do we say that? Because “the mouth that forbade” we certainly do say even for witnesses. Ordinary migo we do not say for witnesses. And the third Tosafot is talking about migo, not about “the mouth that forbade.” Good. “The mouth that forbade,” according to Tosafot, is also migo, but it is an upgraded migo. That we do say even for witnesses. Okay, we’ll stop here. Rabbi Shimon didn’t even manage to arrive yet, but that’s what we have. I still need to think what to do next class, because as far as the sequence goes, you—

[Speaker D] Maybe we should make up today’s sequence? Yes, yes.

[Rabbi Michael Abraham] Not “despite that”—on the contrary. It strengthens the need to impose order.

[Speaker D] Thank you very much.

Ketubot, Chapter 2, Lesson 15

Table of Contents

Summary

General Overview

Rami bar Hama’s first position and the proposed explanation of “the mouth that prohibited” as an alternative proof

Rami bar Hama’s second position: “cannot retract and testify differently” and “the mouth that prohibited”

The shift to the dispute between Rabbi Meir and the Rabbis, and establishing that the Mishnah is speaking about coercion under threat to life

The Talmud’s question about Rabbi Meir and what it implies about the nature of “the mouth that prohibited”

The lender’s presumptions versus the claims of “disqualified witnesses” and “minors,” and Tosafot’s complication

Rav Hisda’s explanation of Rabbi Meir: “let them be killed rather than sign falsely,” and the return of “a person cannot render himself wicked”

Rava’s rejection, the tension with Rashi’s explanation, and a proposed alternative reading of “signing as indirect causation”

Nachmanides: pious conduct and “a person does not present himself as lacking piety,” and an external baraita

Locating the dispute in the rule: “if one admits to a document he wrote, it does not require validation”

Tosafot: “the mouth that prohibited” as migo, validation of a document, and migo in the face of witnesses

Full Transcript

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Table of Contents

Summary

General Overview

Rami bar Hama’s first position and the proposed explanation of “the mouth that prohibited” as an alternative proof

Rami bar Hama’s second position: “cannot retract and testify differently” and “the mouth that prohibited”

The shift to the dispute between Rabbi Meir and the Rabbis, and establishing that the Mishnah is speaking about coercion under threat to life

The Talmud’s question about Rabbi Meir and what it implies about the nature of “the mouth that prohibited”

The lender’s presumptions versus the claims of “disqualified witnesses” and “minors,” and Tosafot’s complication

Rav Hisda’s explanation of Rabbi Meir: “let them be killed rather than sign falsely,” and the return of “a person cannot render himself wicked”

Rava’s rejection, the tension with Rashi’s explanation, and a proposed alternative reading of “signing as indirect causation”

Nachmanides: pious conduct and “a person does not present himself as lacking piety,” and an external baraita

Locating the dispute in the rule: “if one admits to a document he wrote, it does not require validation”

Tosafot: “the mouth that prohibited” as migo, validation of a document, and migo in the face of witnesses

Full Transcript

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