Study and Halachic Rulings – Lesson 20
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- First-order halakhic ruling versus second-order halakhic ruling
- The passage in Bava Kamma 110b and “Better to sit as two than to sit alone”
- Mistaken transaction, “on that understanding,” and conditionals
- “On that understanding” in betrothal and implications for cases of women chained to marriage
- Precedents of halakhic decisors and annulment of betrothal in extreme cases
- A practical case: a groom who disappeared on the wedding night, and the rabbinate using an “agunot fund”
- “She didn’t even get the tandem” as a basis for annulment without estimating a “price”
- Methodology of clarification: precedents versus empirical investigation of reality
- Changes over time and their significance for “better to sit as two”
- Majority, assessment of intent, and the impossibility of asking the woman after the fact
- Annulment of betrothal as uncovering reality, not as legal uprooting
- “One cannot deny the evident” and preferring observation over sources in factual inquiries
- Clarifying “armelo / widow” at the end
Summary
General Overview
The text presents the position that first-order halakhic ruling goes back to foundational assumptions and conceptual definitions, and does not cling to precedents as a substitute for forming an independent position. It shows that clinging to precedents becomes especially absurd when it is applied to clarifying facts and not only to clarifying norms. The text analyzes the passage in Bava Kamma 110b about a yevamah who falls to levirate marriage before a man afflicted with boils, and the principle of Resh Lakish, “Better to sit as two than to sit alone,” and shows how halakhic decisors use it to reject annulment of betrothal on claims of mistaken transaction or “on that understanding.” The text argues that the initial assumption in the passage leaves a substantial opening for annulment even on the basis of “on that understanding,” and that the conclusion limits this only according to an assessment, and that there are medieval authorities (Rishonim), such as Maharam of Rothenburg, who recognize annulment of betrothal in extreme cases. The text criticizes a methodology used by rabbinical judges who try to determine the “threshold” of the assessment through historical precedents instead of clarifying the view of the “reasonable woman” in present-day reality through empirical examination, and suggests that opinion surveys are a more appropriate tool for this kind of factual clarification.
First-order halakhic ruling versus second-order halakhic ruling
The text states that first-order halakhic ruling returns to foundational assumptions and conceptual definitions and does not necessarily cling to precedents, and that commentators, medieval authorities (Rishonim), and later authorities (Acharonim) are aids to clarification but do not replace the independent position of the halakhic decisor on the issue. The text argues that second-order halakhic ruling becomes a “caricature” when it not only relies on precedents for norms but also tries to derive the factual dimension from them. The text claims that this method is common in practice, and that instead of clarifying facts through reality, they are clarified from rulings of other generations.
The passage in Bava Kamma 110b and “Better to sit as two than to sit alone”
The text cites the Talmudic text: “But if so, a yevamah who fell before a man afflicted with boils should go out without halitzah, for on that understanding she did not betroth herself,” and explains the initial assumption, according to which falling into levirate marriage before such a man reveals retroactively that her consent to the betrothal was mistaken and therefore the betrothal is void and she is exempt from levirate marriage and halitzah. The text cites the conclusion: “There, we are witnesses that she is content with anything at all, as Resh Lakish said, ‘Better to sit as two than to sit alone,’” and interprets “we are witnesses” as a very strong assessment, like two witnesses, that a woman is comfortable marrying “for anything at all” because she prefers partnership to loneliness. The text explains that the accepted use of this passage is to argue that betrothal should not be annulled on claims such as mistaken transaction or “on that understanding,” because the woman is willing to pay “any price” in order to have a relationship.
Mistaken transaction, “on that understanding,” and conditionals
The text distinguishes between two mechanisms: mistaken transaction, which stems from lack of relevant information that existed at the time of the transaction, and annulment based on a future event, which is essentially a mechanism of condition. The text cites the Talmudic text in Kiddushin 49–50 about “one who sold all his property on the understanding that he would go up to the Land of Israel” as a case in which annulment is made because of an obvious implicit condition, even though it was not formulated as an explicit condition. It cites Tosafot, who asks how annulment is possible without a doubled condition. The text describes the institution of condition as an innovation learned from the passage of the sons of Gad and the sons of Reuven, and the requirements of “a doubled condition,” “affirmative before negative,” and “condition before the act,” and the rule that “the condition is void but the act remains valid” when the condition is not made according to the rules. The text presents the answer of Tosafot that there are situations of “things in his heart and in the heart of every person,” where an implicit condition is considered as if it were stated, and explains that in such places one can annul even on the basis of a future event.
“On that understanding” in betrothal and implications for agunah cases
The text argues that the passage in Bava Kamma deals mainly with “on that understanding” and not with mistaken transaction, because the problem is not information that existed at the time of the betrothal, but the future concern of falling into levirate marriage before a man afflicted with boils. The text concludes that the initial assumption proves that, apparently, there is room for “on that understanding” even in betrothal, which opens a broad possibility for annulment of betrothal in situations of future tragedies or agunah situations, such as a husband who becomes vegetative, traffic accidents, or refusal to grant a bill of divorce. The text presents the conclusion of “better to sit as two” as apparently closing that opening, but argues that it need not be understood that way. The text states that the real dispute is over the strength of the assessment required in order to say that this is an implicit condition that is “in his heart and in the heart of every person.”
Precedents of halakhic decisors and annulment of betrothal in extreme cases
The text states that already among the medieval authorities (Rishonim) there is recognition of annulment of betrothal through the claim of “on that understanding,” and gives the example of Maharam of Rothenburg, who rules that a woman who fell to levirate marriage before an apostate can be considered someone who never consented to the betrothal, and therefore her betrothal is void. The text concludes that from this it follows that the conclusion in Bava Kamma does not categorically reject the very possibility of annulment, but qualifies it according to a threshold of unambiguity. The text describes how later authorities (Acharonim) contain further precedents of annulment in certain cases, and that in practice many try to place the different cases on a “scale” in order to determine where the line passes.
A practical case: a groom who disappeared on the wedding night, and the rabbinate using an “agunot fund”
The text describes a case in which a young woman arrived at the hotel on the wedding night and the groom did not come, disappeared with the gift envelopes, and later it turned out that he had flown abroad and was living with an American partner. The text describes years of proceedings in the rabbinate’s religious courts, with “many dozens of absurdities and mistakes and madness,” the husband’s refusal to come to Israel, and emissaries being sent to beg him to grant a bill of divorce. The text states that the proposed conclusion is annulment of the betrothal on the claim that “on that understanding” she never consented, and recounts that after about a year or two following the annulment, it was publicized that the rabbinate itself had permitted her in a way also recognized legally in Israel. The text describes a mechanism of an “agunot fund” intended to bribe husbands into divorcing, a promise of about 40,000 shekels, and a description of the scandal in which a state institution uses public money to bring about compliance with a court ruling.
“She didn’t even get the tandem” as a basis for annulment without estimating a “price”
The text argues that in the case of the groom who disappeared there is no need at all to enter the question of how high a price the woman is willing to pay for partnership, because the woman did not receive even a single moment of “tandem,” and all the consent was in order to receive a partnership that she never received. The text states that applying “better to sit as two than to sit alone” to such a case is “blindness,” because the discussion of price is relevant only when a partnership was actually received and then one asks how “reasonable” the later price is. The text presents this as a “clear case” in which the betrothal is void, and notes that the other two members of the panel joined in, while mentioning that Rabbi Avraham Dov Levin, of blessed memory, signed the ruling even though he later expressed reservations in the press following public uproar.
Methodology of clarification: precedents versus empirical investigation of reality
The text describes how rabbinical judges tend to clarify the threshold for annulment by surveying precedents and comparing cases, in order to decide whether the current case is below the line or above it. The text argues that the problem here is methodological, because this is a factual question about the view of the “reasonable woman” or the “reasonable person” as to whether they would have consented to such a transaction, and a factual question is not clarified from books but from reality. The text suggests that women’s organizations should conduct a survey with a reliable institute, formulate questions with rabbinic guidance, and present women with various scenarios in order to arrive at statistical conclusions. The text states that if it turns out that 95% of women would not enter a certain transaction, “I don’t see how any sensible judge could say, yes, but the Talmudic text says better to sit as two,” because this is a determination about facts.
Changes over time and their significance for “better to sit as two”
The text argues that women today are “far more selective” and less willing “to buy a pig in a poke,” and therefore precedents from Ashkenaz, Provence, or Poland are not directly relevant to determining the current threshold. The text illustrates that a precedent such as falling to levirate marriage before an apostate may be less significant today for a non-religious woman, and therefore automatic use of precedent may lead to mistaken conclusions both leniently and stringently. The text allows the use of precedents as training for judgment and as a tool for building a scale, but requires understanding the social context of the precedent and then translating it into present reality rather than copying it one for one.
Majority, assessment of intent, and the impossibility of asking the woman after the fact
The text presents that the woman herself, after the problem has arisen, is not believed to describe what her intention was at the time of the betrothal, because she has an interest, and therefore there is a need to establish an assessment of the “reasonable woman.” The text states that following the majority is a clear halakhic rule even in matters of reality, and presents the discussion over whether the required majority is 51% or a higher proportion, and the distinction between a factual dispute and a halakhic dispute about the threshold. The text notes that without statistical tools the Sages intuitively estimated the view of the reasonable person, and therefore disagreements could arise, but nevertheless emphasizes that this does not justify moving to clarification by way of precedents instead of empirical clarification.
Annulment of betrothal as uncovering reality, not as uprooting
The text distinguishes between “the rabbis uprooted his betrothal” as an act of uprooting by the greatest religious court of the generation, and annulment of betrothal as a declaration that the woman “was never married in the first place,” so that this is the uncovering of a halakhic state and not a change of state through a legal act. The text compares this to a case in which a disqualified witness to the betrothal is discovered, where the religious court does not annul but reveals that the betrothal never took effect. The text argues that this is therefore an act of ruling on what is permitted and forbidden and not “an act of religious court,” and so it makes no sense to clarify facts by digging through precedents rather than clarifying reality itself.
“One cannot deny the evident” and preferring observation over sources in factual inquiries
The text cites the Ran in tractate Sukkah regarding measuring whether “its shade exceeds its sun,” and uses the expression “one cannot deny the evident” as a principle according to which, in factual inquiries, one looks and sees. The text presents a general distinction between the sages of Spain, who prefer observation, and an Ashkenazic tradition that seeks proofs from texts, and presents the claim that the relevant tool for clarifying reality is observation and survey, even if they can err. The text concludes that applying second-order halakhic ruling to factual inquiries reveals that “something is rotten in the kingdom of Denmark,” and that this is not a value dispute about autonomy but an error that leads to a mistaken declaration of consent where none existed, or the reverse.
Clarifying “armelo / widow” at the end
The text states that “better to sit as two” was said in the passage of a yevamah who falls before a man afflicted with boils, and interprets “armelo” as not necessarily specifically a widow whose husband died, but rather “to sit without a partner,” that is, “a solitary woman.” The text notes that “armela” is Onkelos’s translation of “widow,” and that the root meaning is loneliness and not necessarily the narrow legal status of widowhood.
Full Transcript
[Rabbi Michael Abraham] Okay, we talked about the passage in Bava Kamma regarding “better to sit as two,” where the context is really first-order halakhic ruling. And the claim is that in halakhic ruling in general, and in first-order halakhic ruling, the principle is: first, to go back to foundational assumptions, to conceptual definitions; and second, not to cling specifically to precedents. Meaning, the commentators, the medieval authorities (Rishonim), the later authorities (Acharonim), and so on, are tools that help clarify the issue, but in the final analysis, when we make a halakhic decision, it has to be the result of our own formulation of a position on the issue. And the various commentators present different possibilities for understanding the issue; you have to examine the possibilities, compare them, test them, and in the end arrive at my own conclusion. The context of the passage in Bava Kamma—I tried to show that this approach of second-order halakhic ruling reaches a much greater absurdity when we apply it to facts instead of norms. And the claim is basically that there are people who are so committed to clinging to precedents that they also clarify the factual dimension of the issue from within the precedents. And so this is, you could say, I don’t know, some kind of caricature of second-order halakhic ruling—or at least it ought to have been a caricature, if only it weren’t so common in reality. So the example I began with is a Talmudic text in Bava Kamma, page 110b. I’ll just remind you: the Talmudic text there speaks about a woman who became obligated in levirate marriage. Right? The Talmudic text says: “But if so, a yevamah who fell before a man afflicted with boils should go out without halitzah, for on that understanding she did not betroth herself.” In other words, a woman married a man—Leah married Reuven. Reuven died without children, so Leah falls into levirate marriage before Shimon, his brother. But Shimon—tragically—is afflicted with boils. Right? Basically, not someone she would want to live with. So the Talmudic text says: in such a case, it now turns out, since she fell into levirate marriage before a man afflicted with boils, that her consent to the betrothal was mistaken, like a mistaken transaction. And therefore, once it becomes clear that this is the outcome of the betrothal, her original consent turns out retroactively to have been mistaken consent. And since she never really consented to the betrothal, the betrothal is void, and once the betrothal is void, she is not a widow but unmarried, because the betrothal never existed, so the one who died is no longer her husband. Consequently she is not obligated in levirate marriage or halitzah or anything. That’s how the Talmudic text asks the question. So the Talmudic text says: no, that’s not correct. “There, we are witnesses that she is content with anything at all, as Resh Lakish said: Better to sit as two than to sit alone.” So the Talmudic text says no—in such a case the betrothal is not void. Why not? Because “we are witnesses”—we’re witnesses, right? That’s an expression for a very, very strong assessment, like two witnesses. Right, it’s something totally certain, clearly true, definite—I don’t know how else to put it—like two witnesses, and that’s why it’s called “we are witnesses.” Basically, a woman is comfortable being married in any situation. Meaning, the fact that she may fall into levirate marriage before a man afflicted with boils is not enough to prove that her original consent was mistaken. Because a woman wants a relationship at any price, as we saw with Resh Lakish, who said: “Better to sit as two than to sit alone.” Meaning, a woman prefers partnership—“as two”—rather than “to sit alone,” to sit as a widow. And it’s not just that she prefers it, but that she prefers it at any price. In other words, no matter what this may bring down on her head, if she gets a relationship she’s willing to take any risk whatsoever. And this Talmudic passage is what halakhic decisors use to argue that no grounds can annul betrothal, unlike… because in a sale, if I discover that there was a mistake, or that relevant information about the merchandise I bought or the transaction I made was not disclosed to me, then my consent to the transaction turns out to have been mistaken. If I had known, I would not have consented. “On that understanding,” right? On that basis—if I had known, I would not have consented. And therefore the transaction is void. That’s what’s called a mistaken transaction. And since betrothal is also some kind of contract that requires consent, one might think that the same mechanism exists there too: if some information becomes known to the woman that she didn’t know at the time of consent, and had she known it she would not have consented, then the contract should be void, just as in a sale. The Talmudic text says: no, betrothal is different. Why different? Because in betrothal, a woman wants a relationship at any price. And as a result, the common approach among rabbinical judges—not necessarily only in the rabbinate, but generally, I think, and among most judges in the Jewish world—is that they are not willing to annul betrothal based on a claim of “on that understanding.” That is basically the claim based on this Talmudic text. I gave an extreme example of this from a case we had in a religious court—that’s where I started getting involved in this issue—a case that came before us in one of the panels I sat on to annul betrothal. A woman came before us who had married her partner; they were both young, I don’t know, 18 or something like that, really just little kids and foolish. They got married, and on the wedding night they arranged to be at a hotel, their first night. The woman arrived at the hotel happy and cheerful—but here’s the thing: only she got there. Meaning, the groom never showed up. It sounds funny, but it wasn’t very funny for her. The guy didn’t come. They went to look for him, called, checked—and by the way, of course, all the gift envelopes disappeared too. His mother took them for him, did him that favor. In short, he disappeared. After a few days it turned out that the guy had flown abroad that very day. And they found him already living in a house with a woman, an American partner. It didn’t trouble him in the least that he had some wife waiting for him—had just married him and was waiting for him in a hotel in Netanya. In short, that was the situation. And the bungling there in the rabbinate’s religious courts was something—I think I told you—you could write an encyclopedia about the number and scale of the blunders in the rabbinate’s handling of that file. It really was unimaginable. I mean, I wouldn’t have been able to dream up a story like that even if I were a novelist with a very fertile imagination. Unbelievable—many dozens of stupidities and mistakes and just madness, real madness. So anyway, it dragged on for years, and they begged him to give her a bill of divorce to free her. He was abroad, of course he refused to come to Israel, because then they’d pressure him more, maybe put him in jail or issue a no-exit order and so on, so he didn’t come to Israel at all. So they sent various emissaries to beg him. In the end the story still didn’t end, and it came before us, and my argument was that the betrothal had to be annulled on the ground that “on that understanding” she never consented. Just to finish the story: after some time, I don’t know, a year or two after we annulled her betrothal—which of course wasn’t recognized under Israeli law, but halakhically she was unmarried in every respect—it was publicized that the rabbinate itself had permitted her, and that mattered because that is recognized legally in Israel. And with great pride, some Jew there who was in charge of the matter was interviewed on television to show how they care so deeply about these miserable women refused a bill of divorce, saying that there is an “agunot fund” the rabbinate opened—I have no idea who funds it, but it’s apparently from public money—meant to bribe husbands to divorce their wives. They promised him some 40,000 shekels or something—not some astronomical amount, but for those people it’s apparently quite significant. She, for example, could not raise the amount he demanded in order to give her a bill of divorce, so the rabbinate, in all its nobility, came to the aid of the miserable agunah, gave him the bribe, and in the end somehow he was willing to divorce her, to send the bill of divorce by mail, and the bill of divorce got lost. A Thousand and One Nights story. Never mind, in the end he divorced her. And the whole thing is really a scandal. It’s unbelievable. I mean, I can’t imagine a state institution—just think of a civil court that issues a judgment against someone and he refuses to comply with it, so they send him a bribe from a public fund in order to get him to comply with the judgment. It’s simply unbelievable. Anyway, that’s the end of the story. But let’s get back to our part. So my claim basically was that when we return to this passage in Bava Kamma—there’s also Tosafot in Ketubot, I won’t get into all the details here, but the sources leave plenty of room for discussion—I’m sketching the scheme. My claim was, first of all, that when we look at the Talmudic text in Bava Kamma, then first—and this is just a lesson in how to learn Talmudic passages, and I think it’s a very important lesson—you first have to understand the initial assumption very, very well, even if it was rejected. Because once you understand the initial assumption very well, you have to ask: what exactly from that initial assumption was rejected in the final conclusion, and what was not? Some things were not rejected, and then even if it was only an initial assumption, that is actually what remains even in the conclusion of the passage. So let’s see. In the initial assumption here, what is the Talmudic text saying? Since she fell into levirate marriage before a man afflicted with boils, then her original consent is void, right? It was given in error. And since it was given in error, there is no betrothal; the betrothal is void, and she needs neither halitzah nor levirate marriage nor anything. What is the Talmudic text assuming here? That betrothal works like a commercial acquisition, like buying something. Same thing—even though betrothal is not an acquisition of anything, and I’ve talked about that in other contexts; it’s not an acquisition in the sense that the husband acquires the woman in any sense at all—but it is a contract carried out through a legal act and requiring the consent of both sides. In that sense it is like an acquisition. Not that there is ownership here; it’s a different kind of contract. But it is still a contract that requires the parties’ consent. And therefore the Talmudic text says that in principle there is no difference between betrothal and acquisition. Meaning, in principle, even in betrothal one can annul the betrothal on the ground of “on that understanding she would not have consented,” just as in acquisition. That is the data point of the initial assumption; that’s what the initial assumption took for granted. Now of course that is rejected in the conclusion, but we need to check what was rejected in the conclusion. Was there a principled statement in the conclusion that betrothal is not like sale, that the institution of mistaken transaction has no place in betrothal and applies only in sale? If that was rejected, then of course the door is shut—there’s no possibility of doing such a thing. Or was what got rejected there only this particular annulment discussed in the passage? What is going on in the passage? Maybe I’ll clarify one more point. When we talk about sale, there’s a distinction here that many people mix up between two different mechanisms. There is annulment of a sale because of concealed information—not necessarily deliberately; even if it was accidental, doesn’t matter—but information was lacking to the parties when they agreed, when they consented. For example, someone sold me a car, but the car has no engine. Okay? So what does that mean? Mistaken transaction. If I had known the car had no engine, I would not have consented. Therefore the transaction is void. That’s one kind. The second kind is something different—similar, but not the same. What happens if something happened to the car after I bought it? It wasn’t a defect that existed in the car at the time of purchase; it’s something that happened afterwards. So in that case, apparently, there’s no end to this—how can you annul a sale in such a situation? It happened later. At the time of sale the consent was based on full information; nobody concealed any information here; everyone knew what he was buying, and future risks everyone takes upon himself. If it happened, then bad luck, that’s what happened. So apparently a future event, or future discovery of information—not information that already existed at the time of the transaction and I didn’t know it, but something else happened to me later—can that also annul the sale? Let me give you an example specifically in the context of betrothal. In the context of problems that exist and then things get complicated with the bill of divorce and they try to persuade him to give a bill of divorce and coerce him, in short a whole nightmare. Why can’t you say that if the woman had known she was marrying an abusive husband, she would not have consented to the betrothal, so there is mistaken consent here and therefore the betrothal is void? So there are arguments that say no, it’s not the same thing. Why not? Because the fact that the husband is abusive is not necessarily something that existed at the time of the betrothal; maybe it happened afterwards? Something, I don’t know, some fuse blew in him, I don’t know what happened. And therefore—just as an example—a husband who was injured in a car accident or became afflicted with boils or was injured in a car accident and became paralyzed, even vegetative, okay? So even in such a case you could say: had I known my husband would become vegetative, I would not have consented. Notice: he wasn’t vegetative when he married her. But had I known he would become vegetative, I would not have consented. That doesn’t sound reasonable. You consented on the understanding that you were marrying a normal husband, and that was indeed the case. What happened later, happened later. You can’t annul present consent because of something that happens in the future. Therefore it is not included in the category of mistaken transaction. But it turns out that, at least in the area of acquisition, and probably also in the area of betrothal, there are situations of annulment even because of future information. A famous example is a Talmudic text in tractate Kiddushin 49–50. The Talmudic text there speaks about someone who sold all his property in Babylonia “on the understanding that he would go up to the Land of Israel,” on the understanding that he was going to immigrate to the Land of Israel. So he sold all his property, got organized, and was about to go up. Then some disruption occurred, the immigration to the Land of Israel fell through, and he was unable to go, stuck in Babylonia. Now the Talmudic text says: okay, then the transaction should be annulled. If he had known he wouldn’t go up to the Land of Israel, he wouldn’t have sold all the property. Therefore his consent to the sale was mistaken, and therefore the sale is void. And that is indeed, without getting into the details of the passage because there are additional details there, basically the conclusion of the passage. Tosafot there asks: how can that be? It’s obvious that annulment of that kind—what is such annulment based on? Apparently such annulment is based on a condition. You can certainly make annulment based on a future event, but that annulment requires a condition. Suppose I say: I betroth this woman on condition that tomorrow it does not rain, but if it rains I do not want to betroth her. That mechanism certainly exists in Jewish law. And notice that the mechanism of condition really is annulment because of a future event. The rain falling is an event that will happen tomorrow. And today I make my agreement to the transaction, or to the betrothal, or to the contract, or to the acquisition, or to whatever it may be, conditional on whether tomorrow it rains or doesn’t rain—it doesn’t matter. So I can annul a sale or a contract that I make now because of a future event. But in order to do such a thing I have to use the halakhic mechanism of condition—or the legal mechanism; every legal system has it, a mechanism of condition. Without making a condition, that thing cannot be annulled. I need to say, when I sell the property, that it is only if I go up to the Land of Israel; if I do not go up to the Land of Israel, then the property is not sold. And therefore, if I made that condition, the condition has the power to nullify the act I performed, depending on something future that did or didn’t happen. The Talmudic text in a number of places says that this condition is really some kind of innovation—not the Talmudic text itself, rather the medieval authorities interpret the Talmudic text this way—that condition is basically a kind of innovation, an innovation of the Torah. In principle it would not have been possible to stipulate conditions, but the Torah innovated this, and from the passage of the sons of Gad and the sons of Reuven we learn the mechanism of conditions—from what Moses says to the sons of Gad and the sons of Reuven: if you go armed and so on, then you will receive the inheritance you requested on the east bank of the Jordan, and if not, then not. From there we learn the concept of condition and also all the laws of condition: it has to be a doubled condition, the affirmative before the negative, the condition before the act, and all the laws of condition. Indeed there are very specific definitions of how a condition must be made, all sorts of rules: that it be a doubled condition, meaning that you need to say, “If you go armed, you will receive the inheritance, and if you do not go armed, you will not receive it.” You have to say both sides. If I only told them, “If you go armed, you will receive the inheritance,” that is not enough. You need a doubled condition. There is a tannaitic dispute, but practically the halakhic ruling is that a doubled condition is required. You also need to formulate the condition so that the affirmative comes before the negative: “If you go armed, you will receive the inheritance”—that’s the affirmative—“and if you do not go armed, you will not receive it”—the affirmative before the negative. And the condition must come before the act. That means: “If you go armed, you will receive the inheritance,” not “You will receive the inheritance if you go armed.” The order of stipulation must be the condition first, then the act, the contract, the acquisition, the deed. Okay? I’m just mentioning this so you get the impression that the institution of condition is an institution that the Torah innovates, Jewish law defines, and it has to be done in very, very specific ways. If you did it not according to those specific ways, then the condition is void and the act remains valid. That is what the Talmudic text says, and that itself is not understandable. Suppose I say—suppose I made a condition and said: “I am selling you this land on condition that I go up to the Land of Israel,” and I did not double the condition; I didn’t say, “and if I don’t go up to the Land of Israel, then I’m not selling the land.” Then the condition is void and the act remains valid. What does that mean? The land is sold even if I did not go up to the Land of Israel. The condition is void, but the act—the sale itself—remains valid. Okay? Now, Tosafot asks, Tosafot in Ketubot asks: how can it be that the condition is void and the act remains valid? After all, he did not intend to sell the land if he did not go up to the Land of Israel. So what, there’s a contract here that he never intended, and nevertheless it is valid? The validity of a contract depends on the intent of the parties. If it is clear the parties did not intend it, then the contract is invalid. There is a discussion—there may be some who want to argue that if he did not formulate a doubled condition then it is not certain he meant to stipulate a condition, but most of the medieval authorities don’t assume that. So the claim of Tosafot is that the entire concept of condition is a novel concept. In principle, once you perform an act, the act takes effect. And had the Torah not innovated the concept of condition, then the act would take effect regardless of whether the condition was fulfilled or not fulfilled, even if I made a condition. No matter whether the condition was fulfilled or not, the act takes effect, period. You need the Torah’s innovation, learned from the passage of the sons of Gad and the sons of Reuven, in order to say that I can stipulate a condition, and then if the condition is not fulfilled the act is voided. But this innovation of the Torah is conditional on my stipulation being made in the ways Jewish law defines: the affirmative before the negative, the condition before the act, a doubled condition, and so on. If I made the condition in ways not according to what the Torah defines, that is like not stipulating at all, or like stating a condition to which the Torah’s innovation was never applied.
[Speaker B] But what’s the logic of that? What’s the logic of that? Of what? after all he didn’t sell unless—and if that was his intent, then why does it matter if he didn’t fulfill the formal requirements?
[Rabbi Michael Abraham] I’ll say it briefly, because this really pulls us too far into the issue of conditions, and that’s not our issue here. Briefly, I’d put it like this: in principle, without the laws of condition, a person cannot make a sale in split fashion—if this happens, it is sold, and if this does not happen, it is not sold. That is not legally defined. You can’t make such a transaction without the innovation of the concept of condition. And therefore, when a person uses a condition and there is such an innovation, the condition works. But the person intends to do it according to the rules Jewish law lays down. And what Jewish law says is that only a condition can retroactively uproot an acquisition. Even if you didn’t want it, that doesn’t matter—only a condition can retroactively uproot the acquisition. And therefore, if you did not stipulate according to the rules the Torah laid down, then the innovation that a condition can retroactively uproot things was not said about that. And therefore, your primary intention—to transfer ownership in any case—was realized. You sold in any case. You only intended that if the condition was not fulfilled, it would uproot the act. So your first intention was realized: you sold in any case. The condition, since you did not do it properly, is void. Hence the condition is void and the act remains valid.
[Speaker B] But where do you get this assumption that a person transfers ownership in any case? If someone were to declare, “I never intend…”
[Rabbi Michael Abraham] If he doesn’t transfer ownership in any case, he won’t succeed in making the conditions take effect. That’s how the mechanism of condition is defined. If you want to transfer ownership conditionally, you have to follow the halakhic pattern. And the halakhic pattern says this: you cannot transfer ownership in split fashion. If you want to do that, you have to transfer ownership in any case and accompany it with a condition, so that the condition can uproot the acquisition if it is not fulfilled. Those are the rules. If you don’t…
[Speaker B] Fine, so you can just say… if I’ve decided not to obey the rules, then throw me down all the stairs, say: you can’t make conditions. You’re not operating according to the rules, you can’t transfer ownership. Fine. But to say that you can transfer ownership, but…
[Rabbi Michael Abraham] But then the sale can’t take effect in any case, even if you did go up to the Land of Israel.
[Speaker B] Fine, but you can’t force me to perform an act that exactly…
[Rabbi Michael Abraham] I’m not forcing you to do anything. You want to sell. This is how you make a conditional sale, that’s it. This is how it can be done. You want to sell conditionally?
[Speaker B] Then I’m not… I’m… I’m an anarchist. I don’t want to obey the rules. The Sages said something, I do the opposite.
[Speaker C] Then no problem—excuse me, excuse me—there’s also another side.
[Speaker B] Excuse me, there’s also a buyer. He’s ignoring the buyer.
[Speaker C] He’s completely ignoring the fact that there is another party who thought there was a transaction here.
[Speaker B] So what does anarchist mean? What does anarchist mean? No, no, I updated the customer that I’m an anarchist before we ever met. I made it clear to him: I’m an anarchist and I don’t obey the rules of the Sages.
[Rabbi Michael Abraham] Then no one will do a transaction with him.
[Speaker C] I tell him—
[Rabbi Michael Abraham] If he doesn’t obey the rules of the Sages, no problem at all. Your transaction isn’t a transaction, even if you went up to the Land of Israel. Nothing. Perfectly fine. No—but you did want to sell. You’re an anarchist who wants to sell, not an anarchist who doesn’t want to sell. You can’t dance at all the weddings at once. You do want to sell. If you want to sell, this is how you do it. That’s all. So you intended to sell in any case, because you wanted the mechanism of condition. Only what? You didn’t stipulate properly. So you sold in any case, but there is no valid condition here, so it remains acquired. Okay, but that really is another topic, I won’t get into it here. In short, that’s the mechanism of condition. Now Tosafot asks, regarding that case of “one who sold his property on the understanding that he would go up to the Land of Israel,” he didn’t make a doubled condition. If he had made a doubled condition, then what would be the novelty? Obviously there’s no problem. Obviously if he went up, it takes effect, and if he didn’t go up, it doesn’t take effect—that’s just the regular law of condition. So clearly we’re dealing with a case where he did not make a doubled condition. And if he did not make a doubled condition, then the condition is void and the act remains valid. So why does the Talmudic text say that if he did not go up to the Land of Israel, the act is void? Tosafot says that there are things that are in his mind and in every person’s mind, in his heart and in the heart of every person. And there are situations that we can call an implicit condition. Where it is completely clear that a person’s intention is to transfer ownership only if he goes up to the Land of Israel, and otherwise not, that is considered as if he actually stipulated it. Okay? That is basically the claim. So here we are really dealing with an implicit condition, and then even if he does not formulate the condition according to the rules of conditions, as long as it is completely clear to us and to any reasonable person who sees the situation that the person essentially intended to make a condition here, then for us it is as if he said the condition. Things in the heart do count as things, even though it was only in his heart, because we understand from the context very, very clearly that that is what he meant, it is as if he said it. So he made a condition, and it was a doubled condition, and the affirmative before the negative, and the condition before the act—he just did all of it implicitly, even though he did not say it explicitly. That is Tosafot’s claim, and there is a lot to discuss about which things require speech and when a clarified thought can substitute for speech. It’s a complicated story. In any case, that is what the Talmudic text says there. What does that mean? It means that where the condition is self-evident, the act can be voided even because of a future event, and that is without a spoken condition, without verbal stipulation. It is an implicit condition that we treat as a condition even though you did not state it. In effect it is annulment of the transaction, but not… this is not the definition of mistaken transaction—there’s a dispute of Rabbi Akiva Eiger, there’s a dispute among later authorities over how to understand mistaken transaction. But in the simple understanding, in my humble opinion, mistaken transaction is not connected to the laws of condition, although later authorities do disagree about this. In “on that understanding,” it’s a condition—an implicit condition. And therefore mistaken transaction is void simply because there never was an acquisition in the first place; it’s not a condition. The acquisition… the consent was given in error, and if it was given in error then there simply was no consent. It’s not that it turns out retroactively that there was no consent—not retroactively; there was no consent from the outset, because when I agreed, I did not agree to the right thing. In my opinion that has nothing to do with the laws of conditions at all, although, again, the later authorities do discuss it, but in my opinion it has nothing to do with the laws of conditions at all. “On that understanding,” the second mechanism, based on future events—that probably is based on condition, in this case an implicit condition. So if you explicitly stipulate, it certainly works. If you don’t stipulate, then it depends. If the matter is completely clear, then it can also work on the basis of a future event. Now that brings us back to our previous discussion: what happens with a woman who discovers that her husband is an abusive man, okay? And suppose that happened after the wedding, or say he became vegetative after a car accident, okay? Sometime after the wedding. Her consent at the time of the wedding was based on full information and everything was fine. It happened later. Still, someone may come and say—and there were those who wanted to argue this—that if it is completely clear that had she known this would happen she would not have consented, then the betrothal can be annulled. Or a sale can be annulled too, if we are talking about a sale rather than betrothal. That is basically the claim. Of course, it has to be completely clear, and in his heart and in the heart of every person, and so on. Now what happens in terms of the Talmudic text we read in Bava Kamma? Because the Talmudic text there says that in betrothal… Rabbi, Rabbi?
[Speaker B] Yes. Rabbi, in any case where people end up divorcing, they’ll divorce. After all, if you were to ask—this is certainly in his heart and in every person’s heart—if you knew that you were going to divorce after a year, two years, or forty years, would you have gotten married? So it could be that you wouldn’t.
[Rabbi Michael Abraham] I don’t know—who said so? That’s the question. In a moment we’ll talk about the Talmudic text here, and this can come in through the Talmud. The Talmud here basically says that in principle, in betrothal just as in a sale, there can be nullification—nullification of the betrothal. Which of the two mechanisms of nullification is involved here in the Talmud? Is it a mistaken transaction, or “on condition of this”?
[Speaker D] “On condition of this.”
[Rabbi Michael Abraham] “On condition of this,” right. There were those who wanted to claim that this is a mistaken transaction. I think it’s pretty clear that it’s “on condition of this.” Why? Because even if the brother-in-law with the leprosy was already like that at the time of the marriage—I mean the betrothal—but the woman didn’t know that she would fall before him for levirate marriage. If she had known that her brother-in-law had leprosy, she wouldn’t have agreed? Why? She’s not falling before him for levirate marriage; why should she care that he has leprosy? Only because she ended up falling before him for levirate marriage—that is, her husband died and they had no children, and now she has to enter levirate marriage with this man with leprosy—only in that case, in fact, she did not consent. So it seems to me that the simple explanation of the Talmud—and a number of later authorities (Acharonim) say this, and in my opinion it’s the simple explanation; it’s strained to say otherwise—is that this Talmudic passage is not talking about nullifying a transaction because of mistaken transaction, but about a claim of “on condition of this.” If I had known that I would fall before him for levirate marriage, before this leprous brother-in-law of mine, then I would not have agreed. That’s what the Talmud is saying. So first of all, we discover another novelty here: the Talmud says that in betrothal, in principle, the second mechanism of nullification also applies, not only mistaken transaction. Meaning, if she discovers that he was sick already at the time of the betrothal and he didn’t tell her that her husband had leprosy, then that’s nullification of a sale like mistaken transaction, nullification of betrothal like mistaken transaction, because the information concealed from her was information that already existed at the time of the betrothal. But here we’re talking about something else. The information that was hidden from her—not hidden, rather she just didn’t know it—was that in the future she would fall for levirate marriage before a man with leprosy. She didn’t know that. But that is future information. It was not information that existed at the time of the betrothal. And therefore this is really a mechanism of “on condition of this.” And nevertheless the Talmud says that in such a situation, in the initial assumption, still in such a case the betrothal ought to be void. That’s what the Talmud says. So ostensibly we have proof from here not only that mistaken transaction applies to betrothal, but that “on condition of this” also applies to betrothal—even on the basis of future non-consent. And that of course opens up an enormous door. Car accidents, all sorts of agunah cases, yes, women refused a divorce or women chained to marriage because the husband became a vegetable or the husband ran away and won’t give a bill of divorce. That itself could be grounds. If I had known that he would leave me chained, I would not have agreed. So there is no betrothal. That’s a basis by which one could nullify many, many acts of betrothal. Except that this is all only the initial assumption in the Talmud. But the Talmud’s conclusion is that in any case it is preferable for her—it is preferable for a woman—better to sit as two than to sit as a widow alone. A woman is prepared to accept a relationship—wants to accept a relationship—and is willing to pay any price for it. And therefore, in principle, even if the husband had leprosy at the time of the betrothal and she didn’t know it, and certainly if he became leprous after the betrothal and this is “on condition of this,” all that is irrelevant for betrothal, only for a sale. Because in betrothal she wants the relationship, and she doesn’t care even if he has leprosy, and whatever else you want. And ostensibly the Talmud’s conclusion really completely removes the possibilities that open up because of the initial assumption. But it’s not…
[Speaker B] Rabbi, can one say that maybe this whole matter of “on condition of this”—our mindset is constantly changing, and certainly to say that what I think now is what I thought then is impossible. When a woman marries, she doesn’t know what will happen in the end. It could be that if you asked a generic woman, theoretically: you’re getting married with the risk that you’ll have a brother-in-law for levirate marriage who has leprosy—do you still want to get married? She would say, “better to sit as two”; I also know that this can happen and I’m taking the risk upon myself. They don’t mean “better to sit as two” specifically when you know with certainty and you can see the picture of the brother-in-law waiting for you.
[Rabbi Michael Abraham] That distinction definitely makes sense, and I’ll get to it in a moment too. So the claim, ostensibly, is that the Talmud’s conclusion closes the door that the initial assumption opens. The initial assumption opens the possibility of nullifying betrothal the way one nullifies a sale, both with the claim of mistaken transaction and with the claim of “on condition of this.” But the Talmud’s conclusion closes that door and says: no, because better to sit as two. And that’s usually how the religious courts relate to this issue. There is no way to nullify betrothal on claims of mistaken transaction or “on condition of this,” because better to sit as two. Now here are a few comments. First, there are legal decisors, already among the medieval authorities (Rishonim)—Maharam of Rothenburg discusses this, and others—who do nullify betrothal on claims of “on condition of this.” For example, a woman who fell to levirate marriage before an apostate: Maharam of Rothenburg says that her betrothal is void. If she had known that she would fall to levirate marriage before an apostate, she would not have consented to the betrothal. And therefore her betrothal is void.
[Speaker E] She didn’t know that her brother-in-law was an apostate, or she didn’t know that she would fall before him?
[Rabbi Michael Abraham] That’s what I said earlier—it’s the same as with the man with leprosy. It may be that she did know that her brother-in-law was an apostate; she just didn’t think she would fall before him. It’s like an asmakhta in gambling, yes? You don’t think you’ll lose. Maharam of Rothenburg’s claim is that the betrothal is void in such a case. So you see that in extreme situations, the initial assumption of the Talmud remains. Or in other words, the Talmud’s conclusion did not categorically reject the possibility of nullifying betrothal with a claim of “on condition of this.” The only question is how strong the “on condition of this” is. If it’s something that clearly no reasonable woman would want, then even according to the conclusion you can say that her consent is retroactively clarified as mistaken consent, and the betrothal is void. That’s his claim. And one can find—not many, but there are precedents among the medieval authorities and even more among the later authorities—where they nullified betrothal with various claims of this sort. So those certain medieval and later authorities—the ones whose examples I mentioned—learn the Talmud differently. They argue that what is rejected in the Talmud’s conclusion is not the very possibility of nullifying betrothal. On the contrary, the possibility remains. The initial assumption introduced a possibility, and that possibility exists. In the case where her brother-in-law for levirate marriage has leprosy, that is apparently not strong enough to nullify. But if there is something completely clear—we said that in order to nullify something without an explicit condition, it has to be “in his heart and in the heart of every person”—then the claim is that this probably is not strong enough to say that every reasonable woman would want that. Therefore the novelty of the conclusion is that the novelty of the initial assumption remains even in the conclusion, only it is qualified. It has to be very, very unequivocal for us to nullify the betrothal. But if it is unequivocal, then all is fine. That’s the first point. The second point is really what Shmuel said earlier, and I definitely agree with the idea, and it touches this entire topic of nullification by “on condition of this.” If in fact the woman simply married a normal, healthy person, everything was fine, but then a tragedy happened: after a few years he died and they had no children. Then she found herself needing levirate marriage with a brother-in-law who has leprosy. By the way, that brother-in-law can also perform the halitzah for her, so I don’t really see how unequivocal this is. And nevertheless, maybe that’s why the Talmud says that this is not enough to nullify the betrothal. He can also perform halitzah, so she doesn’t have to marry him—marry him, sorry. Fine, but in any case, the Talmud says “better to sit as two.” But that’s all because she took a risk. Meaning, in the end she received a proper partner, sound, normal, everything was fine. Of course in every real-life situation we never know what will happen; we take risks, a kind of calculated gamble. And if she entered into this deal, then she also entered into it on the understanding that things might go wrong. And therefore in such a case it’s not because she consents to levirate marriage with a man with leprosy. That’s not the point. It may be that no woman would consent to levirate marriage with a man with leprosy, but the fact that she ends up doing levirate marriage with such a man is only one possibility. It could be that they would live happily ever after, or he would die but they would have children, or that the leprous man would not have leprosy, if that happened later. There are lots of possibilities. A transaction like this, which has various possible outcomes, one of which is that she may fall to levirate marriage before a man with leprosy—that is a transaction to which a woman does consent. That’s all. So really this is only an expansion of the distinction I made earlier. It’s just another explanation of why such a case is not so unequivocal. These are not things “in her heart and in the heart of every person.” And therefore here I am not willing to see this as an implied condition that every woman would reject. Every woman might reject marrying a man with leprosy, but she would not reject marrying a good, healthy, normal man, everything fine, where there is some chance, one, that he will die; two, that there will be no children; and three, that the brother-in-law for levirate marriage will have leprosy. Okay? That is a transaction a woman is prepared to accept, and therefore about that the Talmud says “better to sit as two.” A relationship of that kind is worthwhile for a woman even if there is a certain risk and she may end up in a difficult situation—but she also has other possibilities.
[Speaker E] So why, in the case of the sale, when it was in the seller’s mind to go up to the Land of Israel and he didn’t succeed, is the sale void?
[Rabbi Michael Abraham] Okay, that really is a question of how unequivocal the matter is—exactly what I said earlier. If it is totally clear that the matter is unequivocal, then indeed in a sale too it will be void, and in betrothal too it will be void. If it isn’t unequivocal enough, then not. It’s only a question of assessment—how unequivocal it is. More than that: there are two kinds of unequivocality. In betrothal—in the Talmud, in betrothal, in a sale—when the Talmud says that he sells his property “on condition of going up to the Land of Israel,” it is speaking about a case where everyone sees that he is doing this as preparation to go up to the Land of Israel. So here the assessment is not that every reasonable person would do this. No—a reasonable person who sells does not sell in order to go up to the Land of Israel. Rather, this is an assessment relating to that particular person. We know that he is selling this as part of his preparations to go up to the Land of Israel. In betrothal we are not talking about this particular woman; it is an assessment of what the reasonable woman thinks. Would a reasonable woman accept a transaction in which she may fall to levirate marriage before a man with leprosy, or not? That is a different kind of inquiry. “Things that are in his heart and in the heart of every person” may mean that every reasonable person would say the same thing, whereas with “on condition of going up to the Land of Israel,” the question is the circumstances in which this particular person acted. Do they prove unequivocally enough that this was his intention, or not? Not because every reasonable person would do the same. This is a specific situation. But in that specific situation it is clear to anyone observing that this sale is part of the preparations to go up to the Land of Israel. So that is a different consideration from the consideration of the reasonable person. Okay? But it may be that both of these considerations are possible considerations.
[Speaker E] And what do you think about a case where the seller sold his item, and two days later found someone who would have bought it for double the price for which he sold it? Is the claim that had I known I would find a buyer who…
[Rabbi Michael Abraham] The same question. In my opinion that probably would not nullify the sale. It would not nullify the sale for several reasons, I think. First, you might find such a person and you might not find such a person, as I said before. So the moment you decided to sell, you took that risk. And you said: fine, I won’t find someone who will buy from me for more money—because otherwise why didn’t you wait? Therefore, saying “if I had known that a lucky case would happen”—but it also might not have happened—that is exactly the distinction I just made regarding levirate marriage as well. And second, in betrothal it is much more acute, because in betrothal living with a man with leprosy all your life is not the same as selling land this way or that way and losing a hundred shekels. And all of this is a question of assessment of intent and quantitative differences. It’s hard to draw a very clear line here. The line will apparently be whether, in my estimation, in such a situation every reasonable person would not consent to the transaction. That’s the line. It’s not a mathematically sharp line. Yes, that’s clear.
[Speaker C] We learned from the Rabbi that this presumption of “better to sit as two,” and also the presumption that a person does not pay before the due date—those presumptions are not true today, in the present reality. Today there is no woman to whom you can apply this presumption that for the sake of a relationship she is willing to do anything. That’s where I’m heading. And then basically one could simply say that this presumption does not apply in our times, and that’s it.
[Rabbi Michael Abraham] That’s exactly where I’m heading. I’ll get there in a moment. Okay. So that is more or less the topic in broad terms. Again—there is a lot here. In broad terms—again—there are lots of fine distinctions and nuances here, but broadly speaking this is the issue. You can already see that these are questions that are very hard to decide. Because the question is: when do I decide that the problem is acute enough and unequivocal enough for us to waive the condition and say that the transaction is void? This is an implied condition, and no reasonable person would have consented to such a thing. There is no sharp line; it is very difficult to decide such a thing. As a result, the legal decisors usually try to examine it on the basis of precedents. For example, they bring Maharam of Rothenburg, who says that falling to levirate marriage before an apostate is apparently unequivocal enough. Falling to levirate marriage before a man with leprosy is not unequivocal enough. And so on. All right? Various things like that. Maybe I’ll just go back to the case I described to you regarding the woman we dealt with. There too—I mentioned it last time as well—my claim there was that there the whole story doesn’t even begin. Because there you don’t need to find what ground retroactively nullifies the consent. From the outset there was no consent at all, because all the consent was in order to receive the “better to sit as two,” to receive the relationship. And then even if afterward I fall before a man with leprosy or whatever, I am willing to pay the price. But here she did not receive the “better to sit as two” at all. After all, the whole reason she is prepared to pay prices is to get a relationship. If she lived with a husband and after two years he died and they had no children and she fell to levirate marriage before a man with leprosy, then she had two years of a relationship. For that she was prepared to pay even the risk that she might fall to levirate marriage before a man with leprosy. But in our case, where he didn’t come to the hotel after the wedding, she really did not have even one minute of “better to sit as two.” So what exactly is she supposed to be paying any price for? Here these are not prices she pays in exchange for the relationship. She didn’t get the relationship at all. So what is there even to discuss—whether this price is acute enough? Therefore here the whole discussion simply doesn’t start. To say that here one can apply the Talmud in tractate Bava Kamma is simply blindness. I just cannot even understand this crazy thesis. Here it is completely clear that the betrothal is void—there is not the slightest doubt. Because here there is no question at all. The question I mentioned earlier is always the dilemma: when is the trouble that happened acute enough and unequivocal enough to nullify the legal act we performed? That is a question of where to draw the line; you can argue about it; it is truly not unequivocal, not a simple question. But here there is no need to resort to that question at all. My problem is not how acute the problem that was created is. She didn’t receive the goods at all. She didn’t receive the “better to sit as two.” Once she receives the “better to sit as two,” then I’ll ask: okay, how much is she willing to pay for that “better to sit as two”? But when she didn’t receive the “better to sit as two” at all, what is there to discuss about the intensity of the price? The discussion is not even on the plane of the prices she pays. She didn’t receive the goods for which those prices are paid. So there it is clear that the betrothal is void; there is not a shred of doubt about it. My two colleagues completely joined that claim. Although one of them—Rabbi Levin, of blessed memory, who has since passed away—did qualify it a bit afterward, at least in the press, but in the ruling he signed that he agrees with this, because afterward there was a huge uproar in the world—what they call in the firmament, in heaven.
[Speaker G] Which Rabbi Levin? Rabbi Amiel?
[Rabbi Michael Abraham] No, no. Amiel Levin is someone else, yes. No, no—Rabbi Abraham Dov Levin from Jerusalem, Meah Shearim, the rabbinical court for lineage or something like that. In any case, the claim is that here one doesn’t even need to resort to assessing the intensity of the trouble or the size of the price, because here the goods were not received at all—so this is a clear case. In the ordinary cases where she did receive some kind of relationship, only it was a problematic relationship, or a good relationship that ended after a year or two and she got into trouble—the husband became a vegetable, or the levirate brother is an apostate, or a leprous brother-in-law, or all kinds of such things, or the husband refuses to give a bill of divorce, or something like that—then all these things are indeed a difficult question of the size of the price. But it is still clear that there is some threshold beyond which the price is such that the betrothal really is void. That is essentially what I want to argue. We can argue about where that threshold lies, but you cannot say categorically that one can never nullify betrothal with a claim of “on condition of this.” In my opinion that is unreasonable. All you can say is that, in your opinion, the threshold is higher. Fine—you don’t agree with me that falling to levirate marriage before a man with leprosy… But to say that categorically there is no mechanism of “on condition of this” at all in betrothal is very puzzling. And even if you say there is no claim of “on condition of this” at all in betrothal, if she did not receive the “better to sit as two,” then this is not “on condition of this” at all. It is simply like mistaken transaction, essentially. It’s not even “better to sit as two”; it’s not even “on condition of this.” She did not receive the goods. She thought she was getting a relationship; she wasn’t. So that resembles mistaken transaction more than a claim of “on condition of this.” In any case, the point—the important point I wanted to note here—is really the next point that Shmuel mentioned earlier. Suppose I need to determine—I am in a situation that is not a clear case, yes? She did receive “better to sit as two,” and now she has fallen to levirate marriage before a dwarf. Fine, I don’t know, someone—something she would not want to live with, someone like that. Now I need to know whether that ground is enough to nullify the betrothal. Fine, that’s a question that needs clarification. How do we clarify that question? And here I come to the topic of the lesson. How—until now this was only the introduction—how do we clarify that question? Now, what you find in those rulings that do at least try to make some inquiry—and of course conclude that it doesn’t even begin and that it cannot be done—but at least they conduct the inquiry, the inquiry is always done by reviewing precedents. A second-order inquiry. What do I mean? They bring Maharam of Rothenburg on an apostate, they bring the Talmud on levirate marriage before a man with leprosy, they bring this legal decisor and that legal decisor, and they try to determine the level of distress or price that defines the line for nullifying betrothal. From what point is it reasonable to say that consent was not given “on condition of this”? Fine, that is what I need to measure—so how do I do it? I examine the cases in the various legal decisors and try to place all those cases on some scale of prices and define a line from which onward the betrothal is void, whereas up to that point it is still a reasonable price and the woman wants the “better to sit as two.” That is basically what judges usually do. Then they return to the case before them, check what price is involved in this case, and ask whether it falls below the line or above the line. Yes, that’s how the inquiry works in all the rulings I’ve seen that even address the question whether there is mistaken transaction or “on condition of this” in betrothal—and there aren’t all that many. My problem with that is not that they are necessarily wrong. They may be right. My problem is the methodology. The methodology of second-order reasoning here is just absurd. Why? Because I defined the difference between first-order and second-order: the question whether we resort to precedents or enter into the thick of the issue itself and formulate a position, aided by the precedents but still formulate a position. But here, after all, the question is a factual one. I need to check whether reasonable women consent to such a transaction or not. Or in commerce—it doesn’t matter—whether a reasonable person consents to such a transaction or not, right? That is a factual question. Now, that doesn’t mean I have a quantitative metric or a statistical metric for what is called a reasonable person—say I conduct a survey. Is eighty percent of people enough to say that the reasonable person is like that? Maybe fifty-one percent, maybe ninety-five percent. One can argue about that; I’m not entering now into the question of what percentage it needs to be. But still, this is a question of assessing reality. In terms of the category of the question, the kind of question I am asking is not a Jewish law question; it is a factual question. Does the reasonable person agree or not agree to such a transaction? To clarify a factual question, one does not go to sources. To clarify a factual question, one must go to reality and examine in reality what the reasonable person thinks. And therefore I said, and repeated again and again to various women’s organizations that are banging their heads against the wall over all kinds of cases of this sort: do something simple. The first thing you need to do, instead of banging your heads against the wall and bringing the rulings that were sent to various rabbinical judges—who afterward, by the way, also used them without mentioning it, never mind—but instead of doing that, take a reliable survey institute with a professional, with proper rabbinic guidance to instruct him what question to ask. Conduct a survey among women, present them with various transactions—transactions in quotation marks, yes, betrothal with different cases—and ask them: would you accept such a transaction or not? And reach statistical conclusions. In places where they tell you that ninety-five percent of women say, “I am not entering into such a betrothal,” I do not see how any sensible rabbinical judge could say, “Yes, but the Talmud says ‘better to sit as two.’” What do you mean, “better to sit as two”? These are facts. What are the facts? Does the woman consent or not consent? After all, I need to determine whether the woman consented to this betrothal or not. Does Maharam of Rothenburg know better than I do what the woman standing before me thought? What do I need to investigate with him? Not to mention that his period and our period are completely different. People today, naturally—we know this—are much more selective, much less willing to buy a pig in a poke of this sort. Women in the past were apparently more prepared to compromise on such things. That doesn’t mean—even today, both men and women want to get married. Human nature has not changed. People want to get married today too; they want a relationship. But the prices they are willing to pay are not the same prices. When you want to determine the height of the threshold, the size of the price beyond which the transaction is void, why on earth would you go into precedents from Ashkenaz or Provence of the twelfth century? And even from Poland of the eighteenth century. Why is that relevant? You have women today living in a different reality. Conduct a survey among women today, and that is much better than any Maharam of Rothenburg you can find. That is to examine directly the question you are trying to clarify. The question is a factual question, and to examine a factual question you have to look reality in the eye and not open books in Rashi script. And therefore I say that in these cases the second-order approach is really a caricature. To say that I am clarifying reality through what women in twelfth-century Ashkenaz or seventeenth-century Poland thought, and based on those cases—take a woman today who falls to levirate marriage before an apostate, okay? Suppose she falls to levirate marriage before an apostate. Now she herself is not religious; she doesn’t care. She may be perfectly willing to live with an apostate—what difference does it make to her? If he is nice, why not? What’s the problem? So can I derive a conclusion from Maharam of Rothenburg? At that time it mattered to women very much to live with a Jew, and so on—just an example, yes. What connection is there at all? Why are the precedents relevant at all? Now I say: you can go through precedents in order to try to gain an impression, because the more cases you see it’s like training a neural network, artificial intelligence. The more cases you encounter and wrestle with and see the considerations of the legal decisors, that can indeed help you build within yourself some sort of yardstick. I am not saying don’t open the precedents. Open the precedents, see the considerations, see where Maharam of Rothenburg drew the line—but along with that, try to understand the women of his period and understand where that line was from their perspective. And only then apply that to women in our time and draw the line relevant to these women. It’s not one-to-one. It’s not that if there, falling to levirate marriage before an apostate is beyond the line, then the same is true for us. No. By the way, it can also work the other way, more stringently. Here in this case it is more stringent. Falling to levirate marriage before an apostate in our case is much less of a ground than it was for Maharam of Rothenburg, and therefore here there is certainly room to be stringent and say: no, the betrothal is not void. Because in Maharam of Rothenburg’s time, if a woman heard such a thing she would go out of her mind; obviously she would not consent. But a woman today—or at least a certain type of women—not necessarily; it may be that for them this is an option, at least if it is only one of several options. If she falls to levirate marriage before him, then she falls to levirate marriage before him. Therefore sometimes it comes out leniently, sometimes stringently. I am not talking here about the question whether to be lenient or stringent; that is not relevant at all. I am talking about the question of what is true. This is not a question of leniency or stringency. And when I want to determine what women want, I do not find it in equidistant letter sequences in the Torah, and I do not find it in the patterns of Maharam of Rothenburg in twelfth- or thirteenth-century Ashkenaz. I am talking about women today. Ask them. They’re here. Just check.
[Speaker H] So why in their time was there an argument in the Talmud about whether a person intends to betroth this way, whether a woman intends to be betrothed this way, rather than simply asking the women and that’s it? Why wasn’t that an option?
[Rabbi Michael Abraham] First of all, in the Talmud there was no argument. The Talmud presents it as “better to sit as two,” period. There was no argument there.
[Speaker H] The Talmud, say in tractate Ketubot, does present regarding the husband whether he wants to betroth a woman when she is bound by vows or not—less about the woman, more about the husband—but it’s really the same question. Ask him whether people intend this or don’t intend this.
[Rabbi Michael Abraham] Regarding the husband, the Talmud says that there definitely is—there is no “better to sit as two” as there is with the woman, yes?
[Speaker H] But there are disputes whether a person intends to betroth the woman—for example, an important woman, and then he loses his relatives. The intent of average people in the world.
[Rabbi Michael Abraham] Of course. But then you enter the question of what counts as the intent of average men. Sixty percent? Eighty percent? Ninety percent? Not to mention that in their time, of course, there were no survey institutes and no one even imagined doing statistics. It was the Sages’ estimation of what the reasonable person thinks. Intuitively, from what they knew of reality. And therefore here you do not even have the statistical metric that says: look, I checked a representative sample, it’s eighty-three percent of people. Okay, and then you can still—it still doesn’t determine the threshold, because who knows whether the threshold is ninety percent or seventy percent. Fine, one can argue. But at least you have some metric. In the Talmudic period they didn’t even do that. It was simply the question of what the “reasonable person” of Aharon Barak is. The reasonable person is whoever I see in the mirror in front of me—that’s the reasonable person. And that is how the Sages worked; that is how everyone worked then. What seemed reasonable to me was the reasonable person. The same with Aristotle: what seemed reasonable to him was that a heavy stone falls faster than a light stone. So for him that was reality. That is how the thought of the ancient world worked. And therefore in inquiries of this type, of course disputes will arise. And the disputes are over the question—by the way, it’s not even a dispute about reality, contrary to what many people think. It is not a dispute about reality. It is a Jewish law dispute. The two of us can agree that this is true for eighty-three percent of people. So what is the disagreement about? The disagreement is over whether the threshold is crossed at ninety percent or at eighty percent. And that is a halakhic dispute, not a factual dispute. The question is what counts as “on condition of this”: do you need ninety percent certainty, or eighty percent certainty?
[Speaker H] So how can we formalize this for today? So today what would we say—that ninety-five percent counts, and that’s it? That it’s a hundred? I can’t hear. So if we translate it into today’s language, what can we say—that ninety-five percent is enough, and that’s it?
[Rabbi Michael Abraham] You can’t say it in percentages. You have to decide it by some kind of assessment of intent—whether it seems to you to be the intent of the reasonable person. Exactly what the Sages did.
[Speaker B] But Rabbi, maybe one could say that here, ostensibly, we’re dealing with mamzerut and so on, so ostensibly they should have needed one hundred percent. What do ninety-five or sixty percent help? But maybe one can answer that the reasonable person and the actual concrete person really have no opinion of their own. Basically, he reflects the spirit of his time and the opinions of the people around him. He doesn’t think; he’s simply empty of all content except what society fills him with. And therefore if most of society thinks this way, then he, eighty percent, thinks that “better to sit as two than to sit as a widow alone.”
[Rabbi Michael Abraham] You’re too pessimistic. I don’t see it that way. But if you see it that way, then fine. I don’t see it that way. I think a person still has an opinion, and the fact is that different people in society think differently about things, even where the reasonable person thinks in a certain way.
[Speaker B] No, I didn’t say that an ordinary person has no opinion, Heaven forbid. But on most trivial matters that he hasn’t thought about, and doesn’t think about independently—or even when he thinks about them, he doesn’t really think independently—then he is basically echoing the public opinion around him.
[Rabbi Michael Abraham] But consenting to a person in betrothal, to a relationship—that’s not trivial at all. What kind of partner does a woman want, or what kind of relationship does a woman want?
[Speaker B] No, obviously, obviously. I’m only saying that when the Sages make some assessment of the reasonable person, they don’t mean to say that in these cases, ostensibly, we need one hundred percent. What does it help if ninety-five percent want it but five percent don’t? Then five percent are mamzerim.
[Rabbi Michael Abraham] In Jewish law we follow the majority. What? In mamzerut? Certainly. On factual matters we follow the majority, certainly. Following the majority is a clear halakhic rule. We follow it. And by the way, then it means that he is not really a mamzer, because the majority determines it.
[Speaker B] But why does the majority determine it? What logic is there in saying that the majority determines it?
[Rabbi Michael Abraham] Following the majority. “Following the majority” means that the majority determines it—that is the law. The law is determined that way.
[Speaker B] But following the majority in a religious court is one thing; following the majority in the kosher status of food is something else.
[Rabbi Michael Abraham] No, majority is always majority in reality. Every majority is majority in reality. There is no majority in a religious court—except perhaps in a court when there are disputes among the judges.
[Speaker B] But when you eat, that’s a majority in reality.
[Rabbi Michael Abraham] A woman—that’s a majority in reality. Most women are not barren—that’s a majority in reality. Most acts of intercourse are after the husband—that’s a majority in reality. All majorities are majorities in reality. The question, however, is what level of majority is needed in order to say that this is what every reasonable person does. There are certainly those who would say fifty-one percent. We follow the majority. Again, this is not gambling about what this woman wanted. Here the majority determines the law. The woman herself—after all, that is what someone asked earlier: why not ask the woman herself? The woman herself now has an interest; you can’t ask her. Obviously now that she has fallen before a man with leprosy she will tell us, “Of course, I never consented at all, because I don’t want to live with him.” Now she has no credibility at all. We have to decide for ourselves what the reasonable woman would think in such a situation. Such a situation. There is no point in asking the person himself. So therefore, therefore, the claim I really wanted to make is that in cases where the inquiry we are making is an inquiry about facts, then to carry out that inquiry in a second-order way is simply absurd. It is not merely a halakhic approach that lacks autonomy; it is a halakhic approach that is simply wrong. One can argue about the value of autonomy. When I clarify a halakhic inquiry, should I do it myself or rely on people greater than I am—Maimonides, Rashba, Mishnah Berurah, Rabbi Akiva Eiger? They are greater than I am, so let’s follow the truth and put autonomy aside. That is a value dispute. Fine? I think autonomy is important; someone else will think it isn’t. Fine. A dispute. Here, you are simply making a mistake. It is not a question of whether you assign value to autonomy or not. In the end, what you need to know is whether this woman consented or did not consent. If she consented, it is betrothal; if she did not consent, it is not betrothal. That does not depend on you. Therefore in such cases, to go after precedents and second-order reasoning is just a mistake. It is not a question of conservatism in legal ruling. It is not a question of not recognizing the value of autonomy. You are simply wrong. You are declaring that a woman consented when the truth is that she did not consent—or the reverse. And that is absurd. I’ll say more than that. Once, after one of these rulings, I spoke with one of my colleagues in the kollel, who of course did not like what I had done. But in the course of our conversation, we both really came to the conclusion—I think we agreed on this—that the act we carried out there was not an act of a religious court at all. When we speak earlier about “whoever betroths does so on the authority of the Rabbis, and the Rabbis nullified his betrothal,” that means that the Sages come and perform a legal act of uprooting betrothal. But that, of course, is the supreme court of the generation, on whose authority everyone who betroths does so. I have not reached that megalomania. I don’t think I’m there. So what did we do? What we did was annulment of betrothal. What is annulment of betrothal? Annulment of betrothal means telling a woman: I know that you think you are married; you are mistaken—you are not married. I am not nullifying the betrothal. I am revealing to the woman the truth that she was never married. You just need to be expert in Jewish law in order to reveal this to the woman, because the woman does not know it by herself, or people who are not expert in Jewish law do not know it by themselves. If I know it, what I am doing is merely revealing to the woman her status; I am not changing her status. I am not performing a legal act here. I am simply telling the woman her status, which was true even before I told her. Only before I told her she mistakenly thought she was married, and now I reveal to her that she was living in error; she was never married. This is not a legal act. It is basically a ruling in matters of prohibition and permission. It is not an act of a religious court. A ruling in matters of prohibition and permission—I am simply revealing to the woman what Jewish law says: is she married or not married. Therefore in such a case, I actually could have sat alone. I did not need to sit with three, in a panel of three. I simply tell her that she is just not married. I examined the issue, I examined the facts—the truth is that you are not married; you have been living in error. It’s like when a religious court suddenly discovers that one of the witnesses to the betrothal was a disqualified witness, was the woman’s brother. Okay? Then it did not nullify the betrothal. It simply revealed to the woman that she had never been betrothed at all. She had been living in error until now, and it tells her about that error. No, you were not betrothed; you were living in error. That is not an act of a religious court. It is an act of a decisor in matters of prohibition and permission. He simply tells the woman what her legal status is.
[Speaker F] That’s all. Theoretically, the woman could do this for herself.
[Rabbi Michael Abraham] Exactly. A woman who is knowledgeable certainly can do this for herself. Or the husband, say—if the husband is a Torah scholar, or never mind, if the woman is a woman scholar; that also happens. So yes, she can decide it for herself, obviously. None of the disqualifications of judges apply here—that a person cannot judge himself, that a person is close to himself, and so on. All those things do not exist because this is not adjudication. One simply needs to understand that this is the situation, and if you don’t understand, then I will reveal it to you. That’s all. Meaning, one has to understand that this whole story is simply clarifying a reality that was always true and is still true now. All I am doing is merely revealing the reality. So for that, to rummage through books in Rashi script and determine through those cases what the reality is—that is bizarre. The example I always like in this context is the Ran on tractate Sukkah. The medieval authorities there discuss a case in which, regarding a sukkah, there is a rule that the shade from the covering has to be greater than the sunlight. The question is where that is measured. Do you measure it in the covering above, that there is more covering than gaps, or do you measure it below, by the light and shade at the bottom of the sukkah on the ground—whether there is more shade or more light? Never mind; it’s a discussion in the Talmud and then among the medieval authorities. But the Ran there says that it is clear that the light… What is the stricter criterion? Suppose above there is, I don’t know, fifty percent shade. Then below, will there be a higher percentage of shade or a lower percentage of shade? What is the relation between the top and the bottom? That is really the question. So the Ran says: one cannot deny what is perceptible. Meaning, against other medieval authorities, our eyes see that it is such-and-such. Never mind, I’m not sure I agreed with him, but that’s what he says. Our eyes see that it is such-and-such; one cannot deny what is perceptible. Meaning, I am not bringing you arguments from sources—Rava said this and Abaye said that and I don’t know what, or the Geonim wrote thus. Just look and see. Now, this is the Ran, of course among the sages of Spain. The sages of Ashkenaz usually brought proofs from exact nuances in scriptural verses. Meaning, they cling to sources; that’s the Ashkenazic tradition, yes. Tosafot will learn that there are many stars because, after all, it is written that the Holy One, blessed be He, said to Abraham, “Look now toward heaven and count the stars, if you are able to count them.” Here is proof that there are many stars. The Sephardic sages tell you: go outside, look at the sky, and see that there are many stars; you don’t need to learn it from verses. At least in the period of the medieval authorities, I think that was a correct distinction as a generalization between the sages of Spain and the sages of Ashkenaz.
[Speaker B] Rabbi, not that I of course agree with you, but we can also plainly see that the Sages said there are demons, and they spoke about seeing demons, and there are demons, and there are Jewish laws that come out of some sort of consideration of demons. And we can plainly see that there are no demons. Meaning, either we’re mistaken or they were mistaken, but the eyes mislead us.
[Rabbi Michael Abraham] No, there are cases—I’m not saying the eyes can’t mislead us—but that’s the tool we have for clarifying reality. And if we make a mistake, then what can you do? Fine. So what should we do now—go look in Maharam of Rothenburg to see whether there are or aren’t demons?
[Speaker B] I only mean to say that reality—the fact is that the Sages were convinced there are demons, so they saw demons, until Maimonides decided there aren’t.
[Rabbi Michael Abraham] Fine, no, it remained that way; the dispute continued afterward too. But fine, the point is, obviously all of us can make mistakes. I’m not claiming that the eyes are some ultimate criterion that can never err. What I’m claiming is that the eyes are the relevant tool. You have to use observation and see what the truth is. A survey can also be wrong—maybe you asked women who aren’t a representative sample? Or women from a certain sector. It’s pretty clear there are differences between sectors in women’s preferences. It could be that you need to break down the surveys by different sectors, and so on. That’s all fine. So it could be that you made a statistical mistake when you ran the survey; all of that is true. But still, the way to discover that truth is through a survey, not through Maharam of Rothenburg.
[Speaker B] Only, Rabbi, even the expression “better to dwell as two than to dwell alone”—even the “as two” of then is not the “as two” of today. After all, a woman two thousand years ago, alone and unable to support herself, was really in a very, very different situation from the President of the Supreme Court today, who is independent and strong.
[Rabbi Michael Abraham] Right, absolutely, many differences. That’s why I’m saying: precedents here are irrelevant when we’re dealing with clarifying reality. That’s the important point. And just to sum up, I’m saying: to make a second-order inquiry out of factual questions—that shows just how messed up this method is, excuse me, with all due respect to those who do it. It’s simply unbelievable. Now, we’re very used to this in halakhic contexts, where people stick to precedents, and there it sounds novel when I say that you have to enter the topics and formulate an independent position. But when you see that this is being done even in the context of facts, then you understand that something is rotten in the kingdom of Denmark. And it brings things to absurdity. Okay, I’ll stop here. Any comments or questions?
[Speaker D] Rabbi, regarding the issue of “better to dwell as two,” I haven’t learned that passage in a long time so I don’t remember, but seemingly that’s only if she becomes a widow. Meaning, the status of widowhood is something that perhaps makes it harder for her, makes it harder for her to remarry, or maybe she’s categorized in some way, maybe she has children?
[Rabbi Michael Abraham] No, you see that that’s not so. “Better to dwell as two” is said here in the Talmud when she falls to levirate marriage before a man afflicted with boils.
[Speaker D] Yes, right, so seemingly the expression “to dwell as a widow” doesn’t really belong here; it’s not precise.
[Rabbi Michael Abraham] “To dwell as a widow” means to dwell without a partner.
[Speaker D] Yes, I basically wanted to distinguish that it’s not like—
[Rabbi Michael Abraham] Widow, in the literal translation, means solitary. We use it to mean someone whose husband died, but “almela” or “widow” means a solitary woman. What today would be called a single mother.
[Speaker D] And that’s the translation in Onkelos. What? “Almela” for widow.
[Rabbi Michael Abraham] Yes, I know. “Almela” and “widow,” both simply mean a solitary woman.
[Speaker D] A captive woman too. Also an unmarried woman?
[Rabbi Michael Abraham] The point is that she is solitary.
[Speaker D] No, but an unmarried woman wouldn’t be called a widow, right?
[Rabbi Michael Abraham] She’s not a widow because she isn’t considered solitary. Someone who reached marriage and remains solitary—then she is solitary. Someone who hasn’t reached that stage—a girl—is not solitary. She wasn’t yet supposed to be in a relationship.
[Speaker D] Yes, okay, thank you.
[Rabbi Michael Abraham] Okay, that’s it? Good, have a peaceful Sabbath, good news. Amen. Goodbye.