Study and Halachic Rulings – Lesson 29
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Possession status and the Mahari Basan’s question in the case of certainty versus uncertainty
- Rabbi Shimon Shkop and the theory of jurisprudence as the basis for ownership and the prohibition of theft
- The duty to obey and reason as a foundational source of obligation
- “The burden of proof rests on the claimant” as a property-law rule and resolution of the question
- A knowingly false claim of certainty and the limits of judicial ruling
- Foundational considerations behind “the burden of proof rests on the claimant” and rejection of the probabilistic justification
- Kuntres HaSefeikot: the status of doubtful money and its implications for betrothal and seizure
- The lecturer’s response to Kuntres HaSefeikot and positioning Rabbi Shimon against it
- Why the practical difference arises in betrothal and not in ordinary monetary acquisition
- Money, barter, and betrothal of a woman: student comments and Afikei Yam
- First-order ruling and an a priori rejection of the possibility of “withdrawal”
- Normative duplication and whether a rabbinic acquisition is effective at the Torah level
Summary
General Overview
The lecture continues the analysis of the laws of possession status, starting from the Mahari Basan’s question: why, in a case of certainty versus uncertainty, do we not instruct the defendant, who claims uncertainty, to be stringent and return the money? It presents Rabbi Shimon Shkop’s novel idea that there is a layer of “jurisprudence” that precedes the Torah’s command, defining ownership and even creating prohibitory norms. Accordingly, decision rules such as “the burden of proof rests on the claimant” are not merely judicial abstention from action, but a legal determination of who owns the money, and therefore there is no concern of “do not steal.” The lecture then discusses Kuntres HaSefeikot’s inquiry into the status of money that remains with the possessor in a case of doubt, and its implications for betrothal. The lecturer rejects, on conceptual grounds, the possibility that the rule of “the burden of proof rests on the claimant” is merely a judicial withdrawal that leaves an ongoing normative doubt, and from this develops a model of “first-order” ruling that decides based on reasoning even without examining in depth the other side’s proofs. At the end of the lecture, a general principle is presented against “normative duplication” in the laws of acquisition, through the example of whether a rabbinic acquisition works at the Torah level, and a student’s comment is raised concerning Avnei Milu’im and Tosafot Rid with respect to money and barter in betrothal.
Possession status and the Mahari Basan’s question in the case of certainty versus uncertainty
The Mahari Basan asks: when the defendant claims uncertainty and the plaintiff claims certainty, even though in the law of “certainty versus uncertainty” we do not take from the possessor, it would still seem that we should instruct the defendant to be stringent out of doubt of theft and hand the money to the plaintiff. A defendant who claims certainty is not required to be stringent, because he himself claims to know the facts, and only the court is in doubt because of the dispute. But a defendant who claims uncertainty is himself in doubt regarding the facts, and so the question is why there is no moral-halakhic guidance to surrender the money out of doubt.
Rabbi Shimon Shkop and the theory of jurisprudence as the basis for ownership and the prohibition of theft
Rabbi Shimon Shkop introduces the idea that the prohibition of “do not steal” differs from the Torah’s other prohibitions, because it presupposes a prior system that defines what belongs to whom. Therefore there exists a “theory of jurisprudence” or “laws of jurisprudence” that establish ownership law on a foundational level prior to the religious command. Rabbi Shimon Shkop maintains that this jurisprudence is not merely a neutral determination of facts of ownership, but includes norms and prohibitions as well, and that the Torah’s “do not steal” adds an additional religious layer on top of an existing legal prohibition. He brings proof from theft from a non-Jew: even according to views that the verse “do not steal” does not include a non-Jew, there is still a Torah-level prohibition because the non-Jew has ownership within the laws of jurisprudence. He also brings another proof from his question in Shaarei Yosher (Gate 5, chapter 2): what is the source of the obligation to obey the laws of jurisprudence if they are not commanded in the Torah? That question itself assumes a normative obligation of obedience, not merely factual clarification of ownership.
The duty to obey and reason as a foundational source of obligation
Rabbi Shimon Shkop answers the question of obedience to the laws of jurisprudence by saying that even obedience to the Torah’s own commands is binding by force of reason, because reason says that one must obey the command of the Holy One, blessed be He. He concludes that reason is the basic source of obligation, and therefore if reason also obligates pre-halakhic legal norms, one must obey them even without an explicit command. These remarks are presented parenthetically, but they serve as a framework for understanding the authority of jurisprudence.
“The burden of proof rests on the claimant” as a property-law rule and resolution of the question
Rabbi Shimon Shkop explains that rules for deciding doubtful cases, such as “the burden of proof rests on the claimant,” “whoever is stronger prevails,” “let it remain until Elijah comes,” discretionary judicial allocation, and division, are all rules that legally define who the money belongs to. He argues that when, under the rule of “the burden of proof rests on the claimant,” the money remains with the possessor, then on the level of jurisprudence it is considered his. Therefore there is no room at all for the question of “do not steal,” because theft is defined only as taking money that is not yours under the laws of ownership. The lecturer emphasizes that according to Rabbi Shimon Shkop this is a property-law ruling, not a withdrawal, and that this resolves the Mahari Basan’s question: the defendant who claims uncertainty is not required to be stringent, because after legal ownership has been defined in his favor there is no longer any doubt of theft.
A knowingly false claim of certainty and the limits of judicial ruling
The lecturer argues that when the defendant claims certainty but knowingly lies, the court’s ruling that the money remains with him by force of “the burden of proof rests on the claimant” is accepted in error and is therefore invalid, similar to a mistaken transaction. The defendant himself knows the money is not his, and so using it is forbidden; the ruling does not change the true reality when the person knows that the whole process was based on a lie. This distinction is meant to show that permission to retain the money relies on a legal definition only when the defendant himself does not know the truth and claims uncertainty.
Foundational considerations behind “the burden of proof rests on the claimant” and rejection of the probabilistic justification
The lecturer presents two reasons for the rule of “the burden of proof rests on the claimant”: a court does not act to remove money without some reason to act, and there is a concern rooted in social policy about liars who might simply sue random people. He rejects a probabilistic justification based on a presumption of honesty that would favor the possessor, arguing that with disputed objects there is no indication of who is lying, and therefore the probability is at most “fifty-fifty”; and in certainty versus uncertainty it would even seem more reasonable to favor the one claiming certainty. The class discussion raises the possibility that the rule reflects cultural-social assumptions about guarding property, but the lecturer argues that the historical origin of a rule does not provide a present-day justification for using it without a legal rationale.
Kuntres HaSefeikot: the status of doubtful money and its implications for betrothal and seizure
Kuntres HaSefeikot raises an inquiry: what is the law if the defendant betroths a woman with money that remained with him under the rule of “the burden of proof rests on the claimant,” or if the plaintiff seized the money from the defendant and betrothed with it? Kuntres HaSefeikot makes this depend on the dispute over whether seizure is effective regarding money cast into doubt. According to the views that seizure is ineffective, the betrothal performed by the owner is definite betrothal, because “since the Torah did not obligate him to return it, it is fully considered his,” whereas the other party who seized it creates no betrothal concern at all, because it can be taken from him and it turns out that “he gave her nothing.” According to the views that seizure is effective in doubt, both of their betrothals are betrothals of doubt.
The lecturer’s response to Kuntres HaSefeikot and positioning Rabbi Shimon against it
The lecturer argues that according to Rabbi Shimon Shkop there is no room for Kuntres HaSefeikot’s inquiry, because “the burden of proof rests on the claimant” is a ruling that determines, in property-law terms, that the money belongs to the possessor, and therefore one may betroth a woman with it without any doubt. He adds that the view of judicial withdrawal depicts this rule as similar to “whoever is stronger prevails,” and he points out a basic difficulty with the idea that the money remains doubtful but one is still allowed to hold it—to the point that it seems “illogical” to say that a person may hold the money but may not use it. A student suggests that perhaps Rabbi Shimon Shkop thought the ruling was positive mainly because of the concern for liars, and that this may be the root of the dispute between him and Kuntres HaSefeikot.
Why the practical difference arises in betrothal and not in ordinary monetary acquisition
The lecturer asks why Kuntres HaSefeikot raises the practical difference specifically with regard to betrothal and not with regard to purchasing a field or any other ordinary monetary use of doubtful money. He suggests the possibility that a money-acquisition of a field can be understood as an acquisition act that does not depend on the money being full payment, whereas in betrothal “money’s worth” is required as a formal act, and therefore if the money could be diminished because of a legal claim, then nothing was transferred to the woman. He then enters into the dispute between the Taz and the Sma as to whether acquisition by money is a symbolic act separate from payment, or whether the payment itself serves both as the acquisition and as the consideration, and shows how this might affect whether an acquisition can take effect even when the money itself is problematic.
Money, barter, and betrothal of a woman: student comments and Afikei Yam
The lecturer emphasizes that in betrothal a woman is acquired through money and not through barter, because there is no acquisition of her body as such; therefore barter, as “entity for entity,” is inappropriate, whereas money is “value for value” as an act of transferring value. Students mention Avnei Milu’im, which maintains that in a certain respect “value is relevant even with a woman,” and the lecturer clarifies that this does not mean payment of the woman’s “value,” but rather the use of money as a formal act of transferring monetary value. A discussion is cited from Afikei Yam concerning “returning money” and the case of “a fig thorn from my fig trees, and be betrothed to me with it,” along with the claim that in the case of a woman, according to all views, the money is acquisition-money and not money as value in the sense of paying a person’s worth.
First-order ruling and an a priori rejection of the possibility of “withdrawal”
The lecturer defines a distinction between a “second-order” decision based on rules for deciding among authorities, and a “first-order” decision based on substantive reasoning, and argues that in this topic the reasoning itself decides that only a property-law ruling fits the meaning of a court. He describes a situation in which one can decide on the basis of reasoning without thoroughly examining the other side’s proofs, because the assumption is that if most later authorities adopted a certain approach, they must already have answered those proofs; the decisor therefore relies on his reasoning and assumes that answers exist. He uses this as an example of “first-order ruling squared,” where the very implausibility of the alternative rejects it outright.
Normative duplication and whether a rabbinic acquisition is effective at the Torah level
The lecturer presents a fundamental question: is it possible to have a situation of “normative duplication,” in which the law determines one status while “the true reality” remains in the background as still binding? He compares this to the discussion of whether a rabbinic acquisition is effective at the Torah level. He argues that if a rabbinic acquisition were not effective at the Torah level, the result would be “mine rabbinically and yours at the Torah level,” an implausible outcome that would generate cascading confusion in acquisitions and in consequences such as betrothal. He concludes conceptually that a rabbinic acquisition certainly is effective at the Torah level, and notes that in monetary law there is the principle that “property declared ownerless by the court is ownerless,” which enables the sages to expropriate Torah-level property.
Full Transcript
[Rabbi Michael Abraham] Okay, last time we started the topic of possession status. And I brought the Mahari Basan’s question, where he asks why—why don’t we instruct the defendant to be stringent when he claims uncertainty, to be stringent and not keep the money, because after all there’s a doubt that maybe it’s theft. If the defendant claims certainty, then we don’t need to tell him to be stringent, because he himself claims that he knows the facts. The court may hesitate because there’s a dispute here between the plaintiff and the defendant, so the court is in doubt, but the person himself claims that he knows. I’m not supposed to force him into doubt. So in that case he can leave the money with himself. But if he claims uncertainty, and in Jewish law in a case of certainty versus uncertainty, when the possessor claims uncertainty, the one claiming certainty is not preferred—that is, we do not take it from the one holding it—then in such a situation the Mahari Basan asks: why shouldn’t we instruct him to be stringent out of doubt and hand over the money, when the plaintiff claims certainty? Because once the plaintiff holds the money, obviously for the same reason I explained before, there’s no reason to tell him, “Take the money out of your possession because of doubt,” because he himself says he is certain, meaning he himself is not in doubt; the court just doesn’t know. So seemingly it would have made sense to tell the defendant to hand the money over to the plaintiff. So Rabbi Shimon Shkop said—that is, he had to introduce his innovation about jurisprudence—and he basically says that the laws—that is, the prohibition of “do not steal” in the Torah—is different from all the other prohibitions in the Torah. All the other prohibitions in the Torah begin with the fact that the Torah commanded them. Since the Torah commanded not to eat pork, now it is forbidden to eat pork. The Torah commanded honoring parents, so now one must honor parents. But with the prohibition of “do not steal,” there is an infrastructure that precedes the Torah’s command. Because if the Torah tells me not to steal, it already assumes some system of ownership law that determines which property belongs to whom, because without that you can’t define the concept of theft. So clearly there must be, in the background, some system—which he calls jurisprudence or the laws of jurisprudence—that establishes the rules of ownership. In other words: what belongs to whom, how things are acquired, how they are sold—a system that regulates what belongs to whom. On top of that, the Torah can say that if I take something that belongs to you, then I have violated the prohibition of “do not steal.” But the definition of what belongs to whom precedes the halakhic layer, the Torah’s command.
I said that there are those who explain the picture Rabbi Shimon Shkop proposed as a picture in which the laws of jurisprudence establish only neutral facts, not prohibitions, not norms, but facts—in other words, who owns what. But still, within jurisprudence, if I were to take someone else’s money, I would not be violating a prohibition. It remains his, it’s someone else’s money, but there is no prohibition against taking it from him. And only when the Torah added “do not steal” did it impose an actual prohibition on the matter: from that point on, it is not only a neutral determination that it’s his; now it is also forbidden to take it. I argued that this is not a correct view. Rabbi Shimon Shkop claims that there is also a prohibition on the level of jurisprudence, not just a neutral determination of what belongs to whom. And I brought two proofs for that. One proof is what Rabbi Shimon Shkop says about theft from a non-Jew: even according to the one who says that theft from a non-Jew is not forbidden at the Torah level, it is still forbidden at the Torah level—that is, it is forbidden at the Torah level because a non-Jew has ownership within jurisprudence. And therefore it is forbidden to take from him regardless of whether the verse “do not steal” also refers to a non-Jew, which is a dispute among medieval authorities (Rishonim). So clearly he understands that within jurisprudence there are also prohibitions, norms; it’s not just factual definitions of what belongs to whom.
Another proof was from his own question that he brings there in Shaarei Yosher, chapter 2, Gate 5 chapter 2, where he asks: if the Torah did not command this, then what is the source that obligates me to obey? Meaning, why should I obey the laws of jurisprudence if the Torah didn’t command them? After all, they precede the Torah. Now if you ask that question, then clearly you are assuming that there is some obligation to obey jurisprudence. But if jurisprudence merely determines what belongs to whom, and there is no prohibition on me taking something that belongs to someone else—only the definition that it belongs to him—then there is no question here of obedience. I don’t need to obey anything. Clearly he assumes that once the thing belongs to that other person, then I am also forbidden to take it—according to jurisprudence. And that’s what he asks about: why is it forbidden? Why do I need to obey that, if the Torah did not command it? But clearly he understands that jurisprudence contains prohibitions as well, not only ownership determinations. And “do not steal” comes to add a religious layer on top of the legal layer. Meaning: once there is money that belongs to you according to legal principles, then if I take that money from you, first of all I have violated the prohibition of theft within jurisprudence, which existed all along. And besides that, after the Torah said “do not steal,” I have also violated the religious prohibition of “do not steal.” Essentially I violate two prohibitions. So that, I think, is how Rabbi Shimon Shkop explains jurisprudence.
Just parenthetically, I explained how he resolves the question: so why really must one obey, if the Torah didn’t command it? To that he answers with another question: and regarding what the Torah did command, why must one obey that? If you ask me about what the Torah did not command, then explain to me what the Torah did command. Why do I need to obey what the Torah commanded? Because reason says that if the Torah commands—if the Holy One, blessed be He, commands—one must obey. Meaning that really, even what the Torah commands, I obey because of my reason, not because the Torah commands. So if that’s true, if my reason tells me something else as well, then I must obey that too, even without the Torah commanding it. And the assumption behind the question was that the Torah’s command is the basic source of obligation. Rabbi Shimon Shkop’s answer is: not at all. The basic source of obligation is reason. Even the Torah’s command obligates only because reason says it should be obeyed. But really reason is the highest factor. Fine, but that’s just by the way.
For our purposes, Rabbi Shimon Shkop basically says that there is a legal layer preceding Jewish law, and it establishes the laws of ownership. Now his claim regarding the Mahari Basan’s question is that these rules for resolving doubts in Jewish law—“the burden of proof rests on the claimant,” “whoever is stronger prevails,” “let it remain until Elijah comes,” discretionary judicial allocation, division—all these rules are rules that determine, legally, to whom the money belongs. Say someone sues me and he has no proof and I am the possessor. Then on the legal plane, I am the owner, because the burden of proof rests on the claimant. Rabbi Shimon Shkop says: once legally I am the owner, then there is nothing to discuss regarding whether I violate “do not steal.” “Do not steal” means taking something that is not owned by you but by someone else. But if that thing is owned by me on the level of jurisprudence, then holding it cannot involve the prohibition of “do not steal.” Because the prohibition of “do not steal” rides on top of ownership law, and that is set by jurisprudence. After all, you can’t define the prohibition of “do not steal” unless you define what belongs to whom—the laws of acquisition. And those definitions are made on the plane of jurisprudence. Therefore rules for deciding doubts, like “the burden of proof rests on the claimant,” also define, on the legal level, to whom the money belongs. Once you say “the burden of proof rests on the claimant,” then I, the possessor—the money is mine. Once the legal definition is that the money is mine, then there is no longer any prohibition of “do not steal,” because the whole prohibition is holding money that is not mine according to the laws of ownership. That is how he resolves the Mahari Basan’s question.
I think I commented—just to complete the picture—that when I claim certainty, yes, the plaintiff sues me and I deny it, I claim certainty: not true. In such a case, again, of course, the burden of proof rests on the claimant. What happens if I lie when I claim certainty? I know the truth; the court doesn’t know. So the court will say: the burden of proof rests on the claimant, the money stays with me because I am the possessor and he brought no evidence. But I myself know that I lied. I’m lying. So now the question is: does the fact that the court ruled that it’s mine turn the money, legally, into mine, and therefore when I now use it, I am not violating “do not steal”? Because legally it’s mine—“the burden of proof rests on the claimant.” So I argued that this is not correct. Clearly if I lied, then the court’s determination that “the burden of proof rests on the claimant” is a determination reached in error, like a mistaken transaction. Meaning, it is essentially void. Because if the court knew the truth, it would not have made that ruling. If it knew I was lying, it would not have made that ruling. Therefore the court’s ruling is invalid. And once it is invalid, then it is not really mine, even though the court ruled that it is mine. And I know the truth—that I lied. So I know that really this money is not mine. And since this money is not mine, then in that case it really is forbidden to use it. There the court’s determination does not change reality. Only when I claim uncertainty—I don’t know whether I am a thief or not—then jurisprudence tells me: you don’t need to worry. The burden of proof rests on the claimant; this money is considered yours on the legal plane. And once it is considered mine legally, then the question no longer arises whether I’m a thief or not. Okay? That’s basically the claim.
So that’s regarding the Mahari Basan’s question. Now I want to move on. Now some later authorities (Acharonim) come and ask: what is the status of money that the court leaves with me? Suppose someone sued me and the court said, “the burden of proof rests on the claimant, the money remains with you. You are the possessor, so the money stays with you.” But I myself am in doubt whether maybe I stole or maybe I didn’t, right? Now the question—and that is the truth, the truth is that there is some sort of doubt here—but the court determined that I may hold the money. Is this money considered fully mine? Say I betroth a woman with it—will that woman be my wife? Or only perhaps my wife? Because if the money is stolen, it isn’t mine, and then the betrothal does not take effect. I gave her money that is not mine. So seemingly, if I take this money that the court gave me through the rule of “the burden of proof rests on the claimant”—I won the money—and now I betroth a woman with it, then seemingly she should only be doubtfully betrothed, because in true reality there is a doubt whether this money is mine or not. So in terms of the laws of betrothal, seemingly this should be a case of doubtful betrothal.
Now I’ll maybe say more than that. I explained the idea behind this rule of “the burden of proof rests on the claimant.” What was the idea? I presented two explanations. One explanation: in order for the court to take money from me—money that I am holding—it needs a reason to act. If it leaves the money with me, then it didn’t act. Everything is fine; for that it doesn’t need reasons. But if you want the court to take the money from me and give it to the plaintiff—I am the possessor, and give it to the plaintiff—then you want the court to act. A court doesn’t act if it has no reason to act. You need to give it reasons to act; therefore you need to bring evidence; therefore the plaintiff is the one who must bring proof. That is one explanation.
The second explanation is the concern—yes, a kind of, I would even say, a kind of enactment. There is concern that some liar might come, pounce on random people in the street, and sue them for all their property. And if we don’t give preference to the defendant, then every time they’ll divide it; he’ll just take the wealth of everybody in the world. So logic says that one must leave preference with the defendant. Sorry, one must leave preference with the defendant. So you see from those considerations—there should be preference, or the court needs a reason to act in order to remove the money—you can see that there isn’t really an actual decision here. It’s not really that the rule “the burden of proof rests on the claimant” determines that this money is mine. It says: listen, we don’t act. Things remain as they were. What was, was. We have nothing to say about this matter. That’s how the judges speak. If so, then Kuntres HaSefeikot and other later authorities say that this money isn’t really mine. There is doubt whether it is mine or not. The practical difference is: if I betroth a woman with it, then seemingly she is only doubtfully betrothed, not definitely betrothed. Because when the court left the money with me, it didn’t say that it was mine; it just said: I have no reason to act, so I am not acting. But it cannot determine that the money is yours.
Clearly, this question of the later authorities—Kuntres HaSefeikot was the first to raise it, but many later authorities discuss it—clearly, this question cannot even be asked if we accept Rabbi Shimon Shkop’s picture. The picture I described before from Rabbi Shimon Shkop is basically a picture that says: when the court determines “the burden of proof rests on the claimant,” then the court determines that in property-law terms this money is mine. And therefore the prohibition of “do not steal” does not apply. So if that’s the case, clearly the court determined that in ownership terms it is mine—why shouldn’t I be able to betroth a woman with it? The picture I described earlier says only that the court withdraws, the court does not intervene, because to intervene it needs reasons, so it doesn’t intervene. That outlook says: there’s no ruling here that this money is mine; rather the court sees no reason to intervene, it goes home, do whatever you want. In a certain sense, in that outlook it is a bit similar to “whoever is stronger prevails.” Whoever holds it, whoever manages to grab it, let him grab it. We determine nothing regarding the question of who really owns the money. And since we have no reason to act, we don’t act. Then indeed one can ask the Mahari’s question—the Kuntres HaSefeikot’s question—how should I relate to this money? Seemingly it remains only doubtful, so if I betroth a woman, she is doubtfully betrothed. But according to Rabbi Shimon Shkop, according to Rabbi Shimon Shkop, the court determines within jurisprudence, determines that in ownership terms this money is mine. This is not court withdrawal; it is a ruling. The court rules that this money is mine.
Once the court ruled, Rabbi Shimon Shkop says, then this money is mine in ownership terms according to the laws of ownership. And therefore one cannot say that if I use it I am violating the prohibition of theft, because theft means taking money that, in ownership terms, is not mine. But here, if in ownership terms it is mine, then I also have not violated the prohibition of theft. So according to that view, it is pretty clear that if they determined that in ownership terms it is mine, then I can also betroth a woman with it. It is mine. This is a court ruling, not withdrawal. The court does not say, “you didn’t give us a reason to act so we’re not acting, we are withdrawing.” Not withdrawal—this is a ruling. According to Rabbi Shimon Shkop, the court rules that this money is mine. So therefore the question of—not the question, the inquiry of Kuntres HaSefeikot—seems to me that according to Rabbi Shimon Shkop it cannot be raised. I’ll take another comment. Rabbi?
[Speaker B] Yes. Also regarding Kuntres HaSefeikot’s question, it’s a bit reminiscent of Rabbi Yehuda, who used to say a lot that not with every doubt do we come and change reality and be concerned for it in every respect. So here too, in the case of—what?
[Rabbi Michael Abraham] I explained at the beginning of last class that the rule “the burden of proof rests on the claimant” doesn’t really stem from the possessor’s advantage. Because the presumption that whatever is in a person’s possession belongs to him—which people often connect to the possessor’s advantage—is not correct to apply to disputed objects. With disputed objects, I have no reason to assume the plaintiff is the liar rather than the defendant. Both have a presumption of honesty. I have absolutely no indication which one is lying and which one is telling the truth. So on the probabilistic level, if you ask me what the truth is—I don’t know, fifty-fifty. Either this one is lying or that one is lying. And certainly if that one claims uncertainty. If that one claims uncertainty, then all the more so logic says to give it to the one claiming certainty. Why assume the one claiming certainty is lying? The one claiming uncertainty—even if you assume he’s wrong, he doesn’t come out a liar. But the one claiming certainty—why label him a liar? He has a presumption of honesty. So there is no probabilistic advantage to the possessor here. If anything, in certainty versus uncertainty he has a probabilistic disadvantage, but certainly not an advantage. Therefore you can’t say that no doubt arises here. Obviously doubt arises. Why wouldn’t doubt arise? He says this and he says that—fifty-fifty. Who knows who is right. But there are legal reasons, the two reasons I mentioned, to nevertheless give preference to the possessor. Even though probabilistically there really isn’t a higher chance that he is right. But there are good legal reasons to give him the object. So if that’s the case, I don’t think one can say here, “I have no reason for doubt.” No—what do you mean, no reason for doubt? I have very good reason for doubt. He says one thing and the other says another, and I know nothing beyond that. Fine, so—
[Speaker C] According to Rabbi Shimon, is it because of the prior presumption? The original presumption? No, “the burden of proof rests on the claimant”—what is its rationale according to him?
[Rabbi Michael Abraham] On the contrary—according to Rabbi Shimon it is certainly not the prior presumption. According to Rabbi Shimon it is a court ruling. You could say, according to Kuntres HaSefeikot, which says that the court merely withdrew—what does withdrew mean? It left the situation as it was: the prior presumption. But Rabbi Shimon Shkop—
[Speaker C] claims it’s not the prior presumption; it’s jurisprudence.
[Rabbi Michael Abraham] The court rules based on a legal consideration—
[Speaker C] that this money is yours. And the legal considerations—I explained them earlier—not the prior presumption.
[Rabbi Michael Abraham] The presumption of the original owner exists—Kuntres HaSefeikot talks about whether it’s the original presumption or not. But with possession status, that’s something else. In any case. So according to Rabbi Shimon, I didn’t understand what the rationale is. I said: two reasons. Yes, but those reasons are not real reasons within the actual laws of ownership. Exactly—that’s what I’m saying. They are not real reasons on the probabilistic level; the defendant has no advantage over the plaintiff. If you ask me who is really right, who is the liar here, I don’t know—fifty-fifty. And still there are good legal reasons to prefer the possessor. Not because there’s a greater chance that he’s right, but because of the legal considerations I mentioned before. So practically, in the end, I don’t know that he’s right. But on the other hand, Rabbi Shimon Shkop says: fine, but the court still determined that this money belongs to the possessor. If the court ruled that this money is his, then that is a ruling, and it is his.
[Speaker D] Because of your parents, by the way, not because of the ability to place blame both on your parents and on your brother. Yes, they really are guilty here, the whole thing.
[Speaker E] I think that even according to Rabbi Shimon Shkop one can bring some qualification. In chapter 8 he does something like a reverse move and argues that the true ownership—okay—
[Speaker D] Wait a second, you’re on—
[Rabbi Michael Abraham] Yes, sorry.
[Speaker E] He says in chapter 8, if I’m not mistaken, that the true ownership is not nullified, and suddenly he brings practical differences like that—I don’t quite remember them right now—but he says: true, I said what I said, but it’s clear that someone who knows the truth—
[Rabbi Michael Abraham] No, no, what I said is: if there is someone—if the defendant knows he lied—then certainly the ruling won’t turn it into his. I’m speaking where the defendant says, “I’m not sure.”
[Speaker E] Fine, but that only shows that the truth still matters here, and that could mean that when we come to discuss prohibitions—
[Rabbi Michael Abraham] Rabbi Shimon doesn’t say that. Rabbi Shimon says: we ruled that it’s yours, and that’s all; the doubt is gone from here, there is no doubt.
[Speaker E] So the doubt about “do not steal” disappears, but as far as the true ownership is concerned—things that care about the real ownership—
[Rabbi Michael Abraham] Why does the doubt about “do not steal” disappear? Because the true ownership changed. That’s Rabbi Shimon’s whole point. Why is there no issue of “do not steal” here? Because it’s yours. If it were only doubtfully yours, then the doubt about “do not steal” would remain too.
[Speaker E] I’ll look it up, but there he phrases it in a way that seems to say that, in general, the true ownership never fully disappears, and therefore one must relate to that as well. I don’t remember—many years since I saw it—but—
[Rabbi Michael Abraham] I remember appendices.
[Speaker E] No, Rabbi Shimon in chapter 8 in the same gate, he kind of does what I call a bit of a reverse there, like he qualifies it quite strongly. I don’t recall that. Okay, I’ll need to look there more carefully… But say, regarding prohibitions, that’s already—
[Rabbi Michael Abraham] Very well. Regarding prohibitions I’ll comment on that. So regarding Kuntres HaSefeikot’s question, it seems to me that according to Rabbi Shimon Shkop there is no room for that question. In other words, again—with the qualification that if chapter 8 says something else, then perhaps, I don’t remember.
[Speaker C] In any case, and if it’s not like the Vilna Gaon? And if it’s based on withdrawal? If it’s only withdrawal by the court, how can you say that you’ve left doubt behind just because the court withdrew?
[Rabbi Michael Abraham] So I’m saying that Kuntres HaSefeikot may indeed be uncertain—maybe the court merely withdrew; once the court merely withdrew, the doubt has not been resolved. And in that respect he is not like Rabbi Shimon Shkop. And therefore he asks: what is the law of the money in such a case?
[Speaker C] Ah, so the rabbi is not saying that that rationale is also Rabbi Shimon’s view. According to Rabbi Shimon, that is not the rationale of “the burden of proof rests on the claimant.”
[Rabbi Michael Abraham] No, what do you mean not the rationale? According to Rabbi Shimon, that withdrawal is itself a ruling. If it’s a ruling, then Kuntres HaSefeikot’s question shouldn’t come up.
[Speaker C] Why? And what is the rationale of that ruling?
[Rabbi Michael Abraham] I said: two reasons. Either concern that a liar will sue everyone, or that the court needs reasons to act.
[Speaker C] What do you mean the court needs reasons? That sounds like withdrawal, not reasons for the court to act.
[Rabbi Michael Abraham] No, so I’m saying: since Rabbi Shimon Shkop takes it one step further and says that because the court has no reasons to act, the court therefore rules that it’s yours—because otherwise, if that weren’t so, then he gains nothing regarding “do not steal.” Then there would still be a doubt, and the prohibition of “do not steal” would remain in place. So in the final analysis, after the legal considerations—even if they don’t really decide, it doesn’t matter—those are the reasons why the court determines that this money belongs to the possessor. That’s what Rabbi Shimon claims. Therefore there is no theft problem. If so, then there is no room for Kuntres HaSefeikot’s question either. Rabbi, Rabbi, could it be just one sentence? Could it be that Rabbi Shimon Shkop did not understand the rationale for possession status as “the court has no reasons to act”? Maybe that’s how the author of Kuntres HaSefeikot understood it, and therefore he says that if so, the money remains doubtful because the court merely withdrew. Whereas Rabbi Shimon Shkop argued: no, the court must rule that it is yours, because one may not give liars the possibility of suing random people in the street, and therefore the court must rule that it is yours. And perhaps that itself is the dispute between Kuntres HaSefeikot and Rabbi Shimon—the question of which of the two reasons is the correct rationale for possession status. Yes, Shmuel.
[Speaker D] Rabbi, Rabbi, Rabbi—don’t I at least have a clear feeling that this matter of “the burden of proof rests on the claimant” reflects something culturally deep, almost primordial, in the fact that we live as a human culture that is not a culture of thieves, not Sodom where everyone steals from everyone. There’s some kind of foundational assumption that people, in some way, have conscience and basic decency, and random people don’t—well, not just in some way. Wait, one second, Rabbi, let’s think. Suppose we lived in a completely different reality, where the basic instinct, just as we breathe, is that we steal. Everyone steals from everyone systematically all day long. And then suddenly some guy comes and says, “That’s mine because it’s now with you.” And we know that statistically and logically we all understand that it’s stolen, because everyone steals. To say there’s a righteous person in Sodom is very strange. I think everyone feels that this is the real reason for “the burden of proof rests on the claimant.” It’s not some invented thing that—
[Rabbi Michael Abraham] What here is logical besides the last sentence? Because what you’re basically saying is that the reason for “the burden of proof rests on the claimant” is the assumption that the person does not steal. And why are you assuming that the plaintiff is stealing?
[Speaker D] No, there’s a difference between actually stealing, doing it in practice, and coming and—look, I fantasize about many things, but to carry it out requires more.
[Rabbi Michael Abraham] No, no, no—that’s a mistake, a mistake. What the plaintiff is doing is much worse. The defendant merely stole, kept the object with him, and disappeared. The plaintiff is going to lie to the court and cause the court to steal on his behalf. That is much more far-fetched, that a person would do such a thing. The presumption of honesty here strengthens that much more. “A person does not sue unless he has a claim against the other,” as was mentioned here in the chat. I think that’s simply incorrect. There is no reason to assume this one is lying and no reason to assume that one is lying. Both have a presumption of honesty. And I rejected that at the beginning of the previous class. Therefore I said that I think possession status cannot be built on some probabilistic consideration that it is more likely that you are right than that the plaintiff is right. No. In my opinion that is not correct; it simply doesn’t exist here.
[Speaker D] No, but I don’t mean only the matter of decency. Even if, say, we didn’t have—how did this begin? If we think historically how this whole thing started: people protect their property. Here you have some object, you need to take it out, and with someone you have to fight over it. In the old days there was no court and nobody had heard of a court; people fought each other.
[Rabbi Michael Abraham] But plaintiffs lie too—what do you mean? People have all sorts of traits. So the plaintiff also doesn’t lie? Then why assume he lies?
[Speaker D] No, but I’m saying: there’s someone with respect to whom we begin with the assumption that every person defends the property under his control. If people weren’t able to defend things at all, and all money was just lying in the streets and no one had any physical relation to it, then to say “the burden of proof rests on the claimant” would have less force here. Because what does it mean that it’s under your hand? It’s not—you’re kilometers away from it. But once, what wasn’t physically under your hand wasn’t yours. The fact that it was written in the land registry didn’t interest anybody. So it started from there. It doesn’t feel like “the burden of proof rests on the claimant” is some invention of the sages all of a sudden. It’s something fundamental in us, in the very fact that—
[Rabbi Michael Abraham] Who said it’s an invention of the sages? But still, that may be the logic underlying this principle, whether or not. On the contrary—Rabbi Shimon Shkop’s whole claim is that it’s not from the sages; it is pre-halakhic.
[Speaker D] No, I agree with Rabbi Shimon Shkop—we talked about it last week. I’m just asking where it started culturally, that this—
[Rabbi Michael Abraham] Those are speculations. Maybe yes, maybe no. I’m looking for the logic as it applies now, not where it started. The question of how it started doesn’t interest me with respect to the question today. If today it isn’t logical, then it started—and it can also end. If I apply it today, it has to make sense today. It’s always like that—like the distinction between the context of discovery and the context of justification in philosophy of science. Meaning, the question of how something developed is not an explanation of why it is logical. Those are two different things.
[Speaker D] But when the Sages coined the concept of ownership, they didn’t invent it out of nothing. These were things that had been rooted in human culture for I don’t know how many thousands of years, so they adopted them.
[Rabbi Michael Abraham] You’re claiming they didn’t really think it through, they just took it as is.
[Speaker D] No. Once they determine ownership, we have to decide on some form of ownership, and this is a reasonable form. It’s not just some senseless form.
[Rabbi Michael Abraham] Wait, why is this a reasonable form?
[Speaker D] Again, basically, most of our things are ours because we hold them in some way.
[Rabbi Michael Abraham] Right. But with objects that are under dispute, there is no such majority. That’s exactly the point—there’s no logic to it. I suggested two explanations that would give this some logic. Once it has logic, I have no problem. So the Sages took something that existed before them and decided to adopt it into Jewish law as well. But there has to be a reason why to adopt it into Jewish law. The fact that it existed before them—fine, it existed, so what? But it also makes sense that it existed before them.
[Speaker D] If I come to negate it—if the culture gave some kind of ownership power, physical possession, or physical or pseudo-physical legal possession—then to break through that you’d have to do something.
[Rabbi Michael Abraham] And again you’re going back to history. The fact that it once existed doesn’t matter. I’m asking why they adopted it afterward. The fact that it used to exist doesn’t matter. I’m asking why they instituted it afterward, once that was no longer the issue. No—
[Speaker D] It’s also pretty logical today too, again, we don’t—
[Rabbi Michael Abraham] Today it is really not logical. When I see an object that two people are disputing, I have no reason to prefer the possessor over the claimant. Why are you assuming he’s lying and the other one isn’t lying? Both of them have a presumption of reliability. I don’t see any advantage here. Only legal reasons. Okay, in any event, so the point is: it could be that this itself is the dispute between Rabbi Shimon and Kuntras HaSfeikot—which of the two explanations is the basis for “the burden of proof is on the one seeking to extract from another.” If you say it’s so that we have a reason to act, then that’s Kuntras HaSfeikot, and then he says, fine, but this is still a state of doubt. If you understand that this is a positive ruling in order to prevent liars from filing claims against all sorts of people, then you assume this is a positive ruling. And if it is a positive ruling, then in the laws of acquisition it is mine, so automatically I am not violating “do not steal,” and therefore I can also betroth a woman with it, because it’s mine.
[Speaker C] Rabbi always says, the Rabbi always says, that in Jewish law, unlike the legal scholars, the law is not teleological—it’s not because I want there not to be liars and so on, seemingly. So here it’s not so obvious with regard to “the burden of proof is on the one seeking to extract from another.”
[Rabbi Michael Abraham] No, I’m not—there can be principles that are teleological in the way you said and not essential, not ontological. That doesn’t mean they all are. But there are determinations in Jewish law that are ontic determinations. And that doesn’t mean they all are. So—
[Speaker C] The Rabbi doesn’t rule out the possibility that there’s both, that both can enter into law?
[Rabbi Michael Abraham] Heaven forbid. I’m only saying that there are also things that are not merely conventional, not just conventions, but also substantive conceptions. Okay, in any event, for our purposes, the question in Kuntras HaSfeikot goes like this. I’ll show it to you because I have another note about it. “And I investigated every monetary doubt, where we hold that the whole matter stays with the defendant, and the burden of proof is on the one seeking to extract from another: if the defendant betrothed a woman with this doubtful money, or if the claimant seized it and betrothed with it, what is the status of that betrothal?” Right? I, the claimant, claimed with certainty, and I argued “perhaps.” Now the religious court said: the burden of proof is on the one seeking to extract; you can keep the money with you. It says to me—the court says to me—you can keep the money with you. Now I want to betroth a woman with this money. Kuntras HaSfeikot says: seemingly, this money is still doubtful. Since it is doubtful, this is a doubtful betrothal. Alternatively, he says: since the money is in doubt, the court does not extract the money from me, and now the claimant may come and seize it from me by force. Since the money is doubtful, there is doubt whether it is his or mine; the court did not decide. If the court did not decide, then he can also seize it. Since he can seize it, he can seize it from me and now go betroth a woman with it. Will she be betrothed or not? Seemingly, whether I betroth with it or he betroths with it, she is doubtfully betrothed, because there is doubt whether this money is mine or his. Okay, that’s how he presents it. Now I have a question for you that for some reason I haven’t seen anyone address, but it’s very obvious. Why does he ask only about betrothal? What about an acquisition? If I bought a field with this money—is that field doubtfully mine or definitely mine? Or the one who seized the money and bought a field with it—is that field definitely his or doubtfully his? Why is the practical difference that Kuntras HaSfeikot gives specifically about betrothal? It should apply to any use of the money.
[Speaker C] Because in betrothal there’s already the question—I didn’t understand? The whole novelty is whether there’s a question of prohibition here, where afterward it becomes an issue of prohibition.
[Rabbi Michael Abraham] Why should there be a difference? The whole issue of prohibition in betrothal is only because there is doubt whether the money is mine, right? That’s the doubt here. So if there is doubt whether the money is mine, then when I buy with it there is also doubt whether I acquired or not.
[Speaker C] That’s obvious, no? It’s obvious that there the field— not obvious.
[Rabbi Michael Abraham] Not obvious at all. After all, that’s exactly his uncertainty. He says the question is: when the court ruled that this money is mine because “the burden of proof is on the one seeking to extract from another,” what does that mean? Does it mean that this money is now definitely mine? Or not—the court simply withdrew, and the matter remains doubtful? A practical difference for what? For betrothing a woman. If it’s definitely mine, then she is betrothed; if it’s doubtful, then she is doubtfully betrothed. The same practical difference exists regarding an acquisition: if it’s definitely mine, then I acquired; if it’s doubtful mine, then I doubtfully acquired.
[Speaker C] When it moves to acquisition, isn’t that really like the original coin?
[Rabbi Michael Abraham] What do you mean, like the original coin?
[Speaker C] There are a hundred shekels here. The court rules that these hundred shekels belong to Shimon by the rule that the burden of proof is on the one seeking to extract from another. So even if you changed those hundred shekels into something else, into a cow, seemingly it’s still the same law—it belongs, yes, but the same law would apply that we say they belong to Shimon, to Reuven.
[Rabbi Michael Abraham] No, they don’t belong to Reuven; it’s doubtful whether they belong to him.
[Speaker C] But all that happened is that its form changed—the money.
[Rabbi Michael Abraham] Of course, but the question is whether I can now use this field. I don’t understand—this is a major practical difference. What do you mean it changed form? There’s a practical difference whether I can use this field or not. Or I can ask the same thing about the original money, as you’re suggesting. Can I use the money, or can’t I use the money? Really, Kuntras HaSfeikot should have asked: they left the money with you—are you allowed to use it?
[Speaker C] Obviously not. Obviously there’s a commandment to hold it for the court. What do you mean?
[Rabbi Michael Abraham] No, the court said you can keep it. What does it mean, a commandment to hold it for the court? Right, the court said you can keep it with you. Kuntras HaSfeikot says: what does “you can keep it with you” mean? The court merely withdrew; it didn’t say that it’s yours. So maybe you’re forbidden to use it.
[Speaker C] Is the Rabbi basically suggesting the same question as Mahari Basan?
[Rabbi Michael Abraham] It’s another aspect of the same question. He says: the fact that you’re holding the money wouldn’t violate “do not steal,” because the court determined that it is yours. But to use this money? That’s forbidden. You’re using money that is only doubtfully yours.
[Speaker C] But why did it determine it’s mine? This whole thing is absurd.
[Rabbi Michael Abraham] Exactly—that’s the point. Therefore it’s obvious that the determination is not that it’s mine.
[Speaker B] When a woman is betrothed with money, the idea is not the object itself, but its monetary value, its financial value, right?
[Rabbi Michael Abraham] No, in my view it’s the opposite. In my classes on the chapter HaZahav I explained this, about money and commerce—I once had a whole series on it. The opposite. In property law there are two kinds of acquisition. You can acquire through monetary acquisition, meaning you pay the value and receive the object in exchange, and you can do barter, giving one object and receiving another object in exchange. That’s body for body, or value for value. Barter is body for body, and money is value for value. A woman is acquired through money but not through barter—tractate Kiddushin 3. Why? Because with a woman you’re not buying her body. Her body is not acquired by you. So what meaning would barter have with a woman? Barter means I give you an object and in exchange I receive the actual object of the thing you give me. But with a woman I don’t acquire her body. Therefore barter doesn’t apply. So what does apply? We derive “taking” from the field of Ephron, that one can betroth a woman through monetary acquisition. What does that mean? I give her value, as in monetary acquisition, and in exchange she becomes betrothed to me. Not that I am given her value, but she becomes betrothed to me. But this formal action of transferring value, just as it works to acquire, also works to betroth. Specifically value is what works with a woman.
[Speaker C] Does the Rabbi understand that in betrothing a woman we acquire her marital status, or not even the marital status?
[Rabbi Michael Abraham] I effect the betrothal. I don’t know what it means to call that acquiring the marital status.
[Speaker C] I effect a legal status of betrothal. The well-known Netziv there says that I acquire the marital status, to compel her into marital status and so on.
[Rabbi Michael Abraham] That’s a kind of acquisition, an acquisition for use. No—it means to effect the legal status of betrothal.
[Speaker C] The Rabbi understands it like Avnei Miluim, only to effect a legal status?
[Rabbi Michael Abraham] Yes. I don’t know what Avnei Miluim says, but yes, that’s the claim.
[Speaker B] If a person now buys something with stolen money, then on the face of it the acquisition takes effect, but he simply owes a debt, if now the owner of the money claims it from the buyer.
[Rabbi Michael Abraham] What do you mean? Then the buyer did not receive valid consideration. Because if they claim the consideration from him, he’ll have to pay it.
[Speaker B] So let him have a debt. He’ll owe the seller, no?
[Rabbi Michael Abraham] No debt at all. He didn’t receive valid consideration. What debt?
[Speaker B] Did you mean the seller or the buyer?
[Rabbi Michael Abraham] The buyer did not receive consideration from the seller. The seller did not receive consideration from the buyer.
[Speaker B] So the seller has a debt claim against the buyer, no? Why not a debt claim?
[Rabbi Michael Abraham] The acquisition doesn’t take effect because he didn’t receive the consideration. Again, maybe you mean what I’m about to say in the next sentence. Look, regarding acquisition by money, the question is whether the money that acquires is acquisition-money or payment-money, what’s called money of value. What does that mean? Suppose I want to buy a field from you, because movable objects aren’t acquired by money—you need pulling—but a field I can acquire with money, document, or possession. So I buy the field—say we agreed on 1,000 shekels. So I gave you one shekel, okay? It is written that I acquire the field even if I gave you one shekel. Now do I still need to give you another 999 or another 1,000? That’s a dispute between the Taz and the Sma. Why? One of them—the Taz—understands that the shekel I gave you is not part of the payment, but rather there is a symbolic act of acquisition: when I transfer money to you, that is called an act of acquisition. I acquired the field by transferring money. Aside from that, we agreed that I would also pay you compensation for the field, 1,000 shekels. So the fact that I chose to do the act of acquisition by transferring one shekel to you means I performed the act of acquisition, but in terms of consideration I still owe you the full 1,000 shekels as payment. Suppose you had acquired the field through possession, okay? No, the shekel doesn’t come back, because that’s how one performs the act of acquisition. But the shekel was not given as payment; it was the act of acquisition. When you acquire by possession, it’s obvious that after you acquire by possession you still have to pay me 1,000 shekels, right? Why? Because that’s not acquisition by money; it’s acquisition by possession. Possession is only the act that applies the acquisition. But aside from that, in terms of the deal, I agreed that you’d buy the field only if you pay me 1,000 shekels in compensation. You have to pay me the compensation regardless of what act you used to acquire the field. Now one of the acts by which a field can be acquired is transfer of money. I can give you one shekel and with that I acquired the field, so it’s like possession. So I gave you the shekel, I acquired the field. Now beyond that I still have to pay you the 1,000 shekels as with possession, because I committed to paying consideration. By contrast, the Sma argues not so. The Sma argues that the whole idea in acquisition by money is transfer of the consideration. The idea is that when I transfer the money to you, it does two things: one, I gave you the consideration we agreed upon; two, the transfer of the money is the act of acquisition through which I bought the field. Two things are done by that money, therefore if I gave you one shekel and bought the field with it, I need to add only 999, not another 1,000, because that shekel was already the beginning of the payment. So there is a dispute over how we understand the transfer of money in monetary acquisition, okay? Now, if I understand that the acquisition is done with money but that this is unrelated to the question of payment—the payment is a separate matter—then it could be that if I gave you this money as an act of acquisition and this money is stolen, then you did in fact receive this money and therefore the thing was acquired by me. But now it turns out that in terms of value you didn’t receive anything, because if someone claims it from you, you’ll have to return the money. But that doesn’t matter, because what was needed here was not value, only a symbolic act that effects the acquisition. The value I still need to give you is 1,000 shekels. Okay? So I still need to give you 1,000 shekels as value. Then there would be room to say that even if the money, regarding which the burden of proof is on the one seeking to extract from another—even if the money was ruled to be mine, sorry, not ruled to be mine but only doubtful—then regarding acquisition, here, I gave you this money and the acquisition took effect, but you didn’t receive the consideration. Once you didn’t receive the consideration, I need to give you other consideration. In the betrothal of a woman, it seems to me the simple reading would not be like that, because in betrothal you do not give the woman consideration; it is a symbolic act, and in that symbolic act, once you have not transferred to the woman something worth money, you did nothing. And Avnei Miluim—
[Speaker C] writes not like that,
[Rabbi Michael Abraham] meaning that in betrothal of a woman, that it is—
[Speaker C] yes, consideration. That’s the surprise there. I didn’t understand. Avnei Miluim writes that he takes the position that it is indeed because of consideration in betrothal. There he brings the Taz and the Sma and says that in betrothal too he takes it as consideration.
[Rabbi Michael Abraham] What practical difference does that make?
[Speaker C] Not what the Rabbi just pointed out.
[Rabbi Michael Abraham] I’m asking: practical difference for what? Meaning, what does “consideration” mean, and therefore what? Is there a practical difference to that statement?
[Speaker C] Yes, there he discusses—it’s in section 27, I think—he takes the position, he discusses there the Sma and the Taz in order to explain the acquisitions. If I remember correctly, I don’t remember—
[Rabbi Michael Abraham] I don’t remember exactly what practical difference he wants to derive from it. He may say that it’s consideration, perhaps, but I need to see what practical difference he makes from that, what the meaning is, what he intends. There is Afikei Yam, for example, in Bava Kamma 70: “Cut a fig from my fig tree and with it acquire for yourself,” okay? So what does that mean? Basically they say to a person: take and cut a fig from my tree and with that acquire something for me, okay? And it will acquire something for me. Now if he does this on the Sabbath, then when he cuts that fig he becomes liable to death. Once he becomes liable to death, then even if he had stolen that fig he would not have to return it, because “he is subject to the greater punishment.” But money that you received and do not really have to return—that is not returnable money—and then it does not acquire. You need returnable money. So regarding that, Afikei Yam, discussing returnable money there, asks whether with a woman you do or do not need returnable money. He argues that you do need returnable money, because with a woman, according to everyone, both according to the Sma and according to the Taz, the money is acquisition-money and not value-money. Because a woman does not have a monetary value in that sense; the value of a woman is not a perutah, and when you betroth her with a perutah you do not afterward add more money to give her the proper compensation for her value. You are not paying for the value of the woman, because you are not buying the value of the woman. It is just a symbolic act of transferring some item of monetary worth. Do you understand? Now this thing—what will you call it? It is not payment-money in the sense that you are giving the woman her value, but it is still money. It is not barter. It is money that is a transfer, a symbolic transfer of value that acquires. Therefore I asked you what Avnei Miluim means when he says this is money of value or money of payment, because you can’t really look at it that way. So the question is what he means.
[Speaker C] I understand. So I’ll check.
[Rabbi Michael Abraham] Okay. In any event, for our purposes, what I want to say is that I asked: why did Kuntras HaSfeikot speak specifically about betrothing a woman? Let him talk about buying a field. And it could be that he understands that in buying a field there is no practical difference: I can buy the field in any event. At most, if they later extract the money from him, if the money is claimed from him and taken from him, I need to give him other money. But the act of acquisition took place here. By contrast, with a woman, if this money—on the side that as Heaven knows, this money is not mine—then the woman also is not betrothed. And then there may indeed be a difference, which is why he gives a practical difference in betrothal and not in ordinary acquisition. There may perhaps be another way to say it: if I give you the money and buy a field with it, since the discussion about the field is only again about the acquisition—whether the field is mine or not—then one can say “the court has power to declare property ownerless”: the court can declare the field ownerless and leave it as entirely mine despite the doubt. But in the betrothal of a woman there is no such thing as “the court has power to declare property ownerless.” If there is doubt whether the woman is betrothed to me, the court cannot turn her into definitely betrothed to me. It can declare the money ownerless, but not the woman. They decided not to declare the money ownerless because it remains doubtful. Therefore, if I buy a field with it, then in the name of the Sages, “the court has power to declare property ownerless,” but if I betroth a woman with it, then the doubt remains as it is.
[Speaker C] I didn’t understand why the money wouldn’t be declared ownerless. What’s the difference?
[Rabbi Michael Abraham] If they declare the money ownerless, then the question of Kuntras HaSfeikot doesn’t exist. If they declared the money ownerless, now it’s mine, so there’s no doubt regarding the woman.
[Speaker C] Yes, but what the Rabbi is saying is that for that reason he wouldn’t raise the question by a field? The Rabbi is saying, as it were, that only with the field they declare it ownerless and not the money itself?
[Rabbi Michael Abraham] Exactly. They declare the field ownerless, not the money. The money is not declared ownerless. But since you don’t have to pay it and you are allowed to keep it with you, the doubt has not been resolved; it remains doubtful whether it is yours or not. But you are allowed to use it—buy a field with it, you are allowed to use it. The field is only doubtfully mine, so the court will declare it ownerless and make the field entirely mine. But with a woman, if I betroth the woman and the money is doubtfully mine, then the woman is doubtfully betrothed. Regarding the woman the court cannot declare anything ownerless and thereby turn her into definitely mine.
[Speaker C] Yes, but wouldn’t it be better for the court to declare the original money ownerless and that’s it?
[Rabbi Michael Abraham] That’s what Kuntras HaSfeikot wants. Kuntras HaSfeikot raises the question on the assumption that the court did not declare the money ownerless, because it determines nothing about the money, and the money remains as it is. Why would the court later declare it ownerless for the field? Maybe like the market ordinance. After all, once I left the money with you, it makes no sense to leave it with you and not let you make any use of it. So if you do make use of it and problems arise, we’ll deal with it—we’ll declare the field ownerless and everything will be fine. But with a woman we can’t do that.
[Speaker G] But why wouldn’t they declare the claimant’s ownership of the money ownerless, in the case where it really was his? If in fact it belongs to the claimant, then the court declares the claimant’s ownership ownerless. Why not?
[Rabbi Michael Abraham] Because it belongs to the claimant.
[Speaker G] Just as they declare it ownerless so that the field can be acquired by—
[Rabbi Michael Abraham] No, they don’t declare the money ownerless; they declare the field ownerless. The money I don’t declare ownerless because I’m not intervening in the question of what reality is. If reality is doubtful, then it remains doubtful; I don’t intervene. To intervene I need a reason. But now I left the money with you even though it’s doubtful, and I’m creating a chain of problems that goes on endlessly. He’ll buy the field, and then claims will arise about the field, and there’ll be doubt, and all kinds of things like that. So you know what? If you do something with it, we’ll deal with it then. The problems haven’t yet arisen. But Kuntras HaSfeikot assumes that apparently the problems are not solved by our declaring the money itself ownerless, because if that were so, his question would not arise. Rather, we render ownerless the problems that arise. Meaning, if problems arise, we’ll deal with them. But with a woman we can’t deal with it. If there is doubtful betrothal, then there is doubtful betrothal; the court has nothing to do about that. I agree that this whole discussion is very shaky. In a moment I’ll say it more clearly. But that is the question of Kuntras HaSfeikot, and I’m noting that I don’t really understand why the practical difference he gives is only for betrothal and not for ordinary acquisitions.
[Rabbi Michael Abraham] In any event, Kuntras HaSfeikot says: “And I did not find this law explicitly stated, but my inclination is as follows: according to those who hold that seizure in a case of doubt is ineffective, the owner’s betrothal is definitely valid. Since the Torah did not obligate him to return it, it is fully his. And the other one who seized it—there is no concern at all for betrothal in his case. For even though the doubt remains in place, and perhaps it is his, what of it? Since we would extract it from him, it turns out that he gave her nothing. But according to those who hold that seizure in a case of doubt is effective, or in circumstances where it is effective, as explained in section 4, the betrothals of both are doubtful betrothals.” He ties it to the dispute among the halakhic decisors over whether seizure is effective with money that lies in doubt. According to those who hold that seizure is not effective with money in doubt, he says as follows: it’s not that the doubt has been resolved—the money still remains doubtful. But since seizure is ineffective, then if the claimant seizes it and betroths a woman with it, I can extract the money from her because seizure is ineffective, so in fact the woman received nothing. And if the woman received nothing, she is not betrothed. Notice—not that she is doubtfully betrothed; she is not betrothed at all. She received nothing, she received no value, because the money she received I can extract from her. By contrast, when I betroth with it, I gave her clear value. Why? Because no one can extract it from me, and no one can even seize it. So likewise no one can extract it from her and no one can seize it from her. So she actually received money. Once she received money, she is betrothed. Do you see? Meaning, the side on which he claims the woman is betrothed is not a side that says the money is certainly yours. No—the money remains doubtful. That is a fascinating point. I would have said: what is the doubt of Kuntras HaSfeikot? He is uncertain exactly about the question we asked earlier. When the court determined that the money remains with you under the rule that the burden of proof is on the one seeking to extract from another, did it merely withdraw, or did it make a positive ruling that this money is yours? If it’s a positive ruling, then you can betroth a woman with it; if it merely withdrew, then it’s doubtful. But he says no. It is obvious that it remains only doubtful and that the court merely withdrew and did not issue a positive ruling. That is obvious. So then what is the doubt? He says: if seizure is effective—meaning, if seizure is not effective—then when I give the woman the money, the money is doubtful, and with her too it will remain doubtful. But although the money is doubtful, no one will be able to extract it from her and no one will be able to seize it from her. So practically speaking she received money that she can use. Therefore she is betrothed—not because the money is no longer doubtful, but because if one may use this doubtful money, then practically she received money that is worth to her just like non-doubtful money. She can do whatever she wants with it and no one can say a word to her. So if she received something of monetary value, then she is betrothed with that monetary value, even though the money itself remains doubtful whether it is mine or not. By contrast, if someone seized it from me and betrothed a woman with it, she is definitely not betrothed—not doubtfully—since he was forbidden to seize it. Therefore if I claim it in court, they will extract it from him. And if he betrothed a woman with it, I will claim it from her and they will extract the money from her. So practically she received no money. Once she received no money, she is not betrothed. Notice, despite the fact that there is doubt whether it belongs to the claimant or the defendant. He is not saying that on the side where there is no doubt—there is doubt. The betrothal of the defendant will be valid, and the betrothal of the claimant will not be valid. But on the side that seizure is effective with money lying in doubt, then if I betroth the woman, it is doubtful. Because maybe she didn’t really receive money, because they may seize it from her or claim it from her or whatever. And similarly, the claimant who seized the money from me and betrothed the woman—the same thing. Again, she did not really receive anything, because I can sue, I can seize; so she didn’t truly receive money. So then either she is doubtfully betrothed or not betrothed at all. But that is the practical difference he draws, and it is an interesting point. Because this practical difference does not depend on the question whether the court withdrew or whether the court ruled. For Kuntras HaSfeikot it is obvious that the court merely withdrew and did not rule. That is clear to him, unlike Rabbi Shimon Shkop.
[Speaker G] So he changes direction completely. The original question was—we thought that you need ownership of the money in order for the betrothal to take effect, while acquisitions usually would take effect—and he’s basically answering that you don’t need ownership of the money. It’s more a practical difference of whether one can extract it or seize it and things like that.
[Rabbi Michael Abraham] Right. But no—even at the outset, who told you that was his question? It’s obvious that from the beginning he was asking this. Look at what he writes, the sentence in which he presents the doubt, okay? “And I investigated every monetary doubt where we hold that the whole matter stays with the defendant and the burden of proof is on the one seeking to extract from another: if the defendant betrothed a woman with this doubtful money, or if the claimant seized it and betrothed with it, what is the status of that betrothal?” He does not say what the two sides of the doubt are. I presented it as though the two sides were the question whether the court rules positively under “the burden of proof is on the one seeking to extract,” or merely withdraws. But no—according to his answer, I understand that that is not it. Those are not the two sides of the doubt. It is obvious that the court withdraws and does not rule. That is clear to him, unlike Rabbi Shimon Shkop. The doubt is this: even if the court merely withdraws and does not rule, it may still be that she is betrothed. Why? Because if the court withdrew, that means that in practice I can do with this money whatever I want and no one can interfere. So if I give it to a woman, she too received money from me that she can do with whatever she wants. So she received money—why should she not be betrothed? What do I care that in ultimate reality the money is doubtful? Practically, she received money for her use, she received some value, and that is valuable to her, so she can be betrothed with it. And he ties it to the question whether seizure is effective or ineffective. But it does not depend on whether this is withdrawal or a ruling. For him it is obvious that it is only withdrawal. So in fact there is a dispute between him and Rabbi Shimon Shkop on the question whether the ruling of “the burden of proof is on the one seeking to extract from another” is a ruling or a withdrawal. The truth is that later authorities—several later authorities, such as Kuntrasei Shiurim by Rabbi Gustman, and as we saw earlier according to Rabbi Shimon Shkop—treat it as a simple obvious matter that this money is his, that one can betroth a woman with it, and not only that one can betroth a woman with it, but that it is obviously his. Meaning, it is clear that Kuntras HaSfeikot is not correct on either side of his analysis. Because both sides assumed by Kuntras HaSfeikot are that there is only withdrawal by the court, and still it could be that she is betrothed and it could be that she is not. That is his conceptual inquiry. The later authorities usually take the view: what do you mean? It is obvious that this is not withdrawal but a ruling—as we saw also in Rabbi Shimon Shkop and others. Therefore there is no room for the question. If it is a ruling, then obviously I can betroth a woman with it and that’s that. Why is that so obvious? Because I think the simple logic basically says: if not, then what exactly is the difference between “the burden of proof is on the one seeking to extract from another” and “let the stronger prevail”? Practically, “let the stronger prevail” means I withdraw; do whatever you want, I have nothing to say about this. If Kuntras HaSfeikot claims that “the burden of proof is on the one seeking to extract from another” is withdrawal, then it is basically “let the stronger prevail.”
[Speaker C] No, but it’s withdrawal with enforcement attached. If you take it, then we won’t withdraw.
[Rabbi Michael Abraham] Ah—so maybe that depends on the question Kuntras HaSfeikot mentioned, whether one can or cannot seize. If one cannot seize, then it is not the same as “let the stronger prevail,” because one cannot seize. But if one can seize, then it is exactly the same thing. But even that is not precise, because even in “let the stronger prevail” there is a dispute among the medieval authorities whether, after I seized, perhaps you can come back and seize it from me again.
[Speaker C] The Rosh. Yes.
[Rabbi Michael Abraham] So in short, it is very strange to say that the court merely withdraws but the money remains doubtful. In the simple reading, Rabbi Shimon Shkop is right, and that is how most later authorities rule: there is no such possibility. Obviously the court ruled; “the burden of proof is on the one seeking to extract from another” means that this money is yours and you can do with it whatever you want. Now how do I, in practice—how do I decide such a question? Here I come to the point. I would say: based on the logic I just gave, it is obvious that Rabbi Shimon Shkop is right and Kuntras HaSfeikot is wrong. I decide based on reason. Usually ordinary halakhic decisors, second-order decisors, when they come to decide such a question, basically say: look, there is a dispute; Rabbi Shimon says one thing and Kuntras HaSfeikot says another; there is a dispute, so we need to discuss what to do with the dispute—follow the majority of the decisors, maybe stringently, leniently, all kinds of decision rules. That is a second-order decision. A first-order decision says: wait, let’s see whose reasoning is more convincing. So to me it is obvious that Rabbi Shimon’s reasoning is the correct one. And Kuntras HaSfeikot seems utterly illogical to me. Therefore I rule like Rabbi Shimon. Now usually—I’ll say more than that—usually when there is such a dispute, it is obvious that even if I think like one side, I still have to study the other side very carefully. He is no reed cut in the swamp. And maybe he has arguments I didn’t think of. One has to see what proofs he brings, what answers he gives to the proofs of the other side, and only after I have fully clarified both sides can I decide between them. But here, maybe even that isn’t necessary. Why? Because it is so obvious to me that when the court rules, then it rules—and does not withdraw—that it is obvious to me that Rabbi Shimon is right. By pure reasoning. What will you say? Yes, but maybe there are various proofs that he brought or the other one brought—one has to check, one has to see the other approach and see what to do with its proofs. No, you don’t need to look, because if most later authorities go in Rabbi Shimon’s direction, it is quite clear that they did not miss Kuntras HaSfeikot’s proofs. Meaning, they have explanations. If so, here I move to the considerations of a decisor: if so, I can rely on my own reasoning, and as for all the proofs, clearly they have some explanation, because most later authorities say as I do. So here it may be that I do not even need to examine the secondary arguments that emerge from both sides. I think: obviously there are some answers, and the reasoning points this way, so that reasoning will decide it. Every side has answers to all the proofs—that is the assumption. But if my own reasoning says like Rabbi Shimon, then I will decide like Rabbi Shimon by force of reason.
[Speaker F] If all the later authorities said what the Rabbi said, did they all also say this consideration—that there is no need to check because surely others already checked?
[Rabbi Michael Abraham] Not all of them, but most.
[Speaker F] But if they all also said that consideration, the Chazon Ish too and the others, and they all said that, then no one actually thought independently. Why not cast doubt on what they thought too?
[Rabbi Michael Abraham] It doesn’t seem likely to me. It doesn’t seem likely to me. Usually that doesn’t happen. But again, I’m trying to demonstrate here a case where first-order decision-making goes one step further. Meaning, not only am I not relying on precedents; I am not even checking the arguments that the precedents brought, because it is so obvious to me on the level of pure reasoning that this side is right. It cannot be that the court rules that it is his, but he is forbidden to make use of it. How can such a thing be? If the court rules that it is his, then it is his. And this is not withdrawal, because “let the stronger prevail” is withdrawal. “The burden of proof is on the one seeking to extract from another” is not withdrawal.
[Speaker C] It seems very important to me
[Rabbi Michael Abraham] to say such a thing.
[Speaker C] Is the Rabbi saying that sometimes I can rely on my a priori definition according to the course of the passage?
[Rabbi Michael Abraham] Yes. I’m saying there are two possibilities here. This reasoning seems to me—obviously, if the court ruled, then that is the law, then it is his. What, the court allows him to keep the money with him but not to use it? There is no logic to that at all, especially when no one mentioned such a limitation. You can keep the money with you, but don’t make any use of it. Beyond the fact that what does it even mean to keep the money with me—but I’m saying, even if I swallow that frog, it is simply illogical, and no one mentioned such a thing. Therefore I reject Kuntras HaSfeikot’s possibility at the threshold, outright, without even looking at his proofs. It is simply not logical a priori. I brought this whole story, among other things—we’ll soon continue—as an example. First, from Rabbi Shimon Shkop I tried to show that Rabbi Shimon Shkop himself learns in a first-order way. Meaning, he enters into the conceptual infrastructure of the matter and does not merely deal in one precedent or another or empty definitions. He really tries to understand what lies behind the matter. The second lesson I want to learn from the issue of possession is about decision-making: here this is a good example of first-order decision-making squared. Meaning, not only do I decide for myself what the Jewish law is, I even allow myself not to examine the arguments of the other side. It is possible that someone might do such a thing. Let’s say if I have time and I’m a responsible person, still it is proper to check the arguments. There can always be something one missed. But in principle, even if you don’t have time, you can rely on this anyway, and you are ruling in a first-order way. It’s not that you’re relying on the later authorities who said it; you’re only relying on them to the extent that they must have an answer to the difficulties. I rule this way not because they said so; I rule this way because it makes sense. What I rely on them for is that there won’t be some counterargument for which I won’t have an answer, because they surely already thought of answers to all the counterarguments. The third thing I wanted to show in this topic is my next question. Essentially, there is a discussion here about whether normative duplication is possible. Can there be a situation in which Jewish law determines one thing, while in reality the reality is something else, and in such a case, despite the fact that Jewish law determined something, I do not ignore the true reality—it still remains there in the background? Right? That is basically what Kuntras HaSfeikot is suggesting. He is essentially saying: the court ruled “the burden of proof is on the one seeking to extract from another,” but since in actual reality I still don’t know whose money it is, then there is some permission for you to hold the money, but the money itself, in terms of actual reality, remains doubtful. And then what comes out is a situation of normative duplication. I’ll maybe bring another example. There is a discussion among later authorities whether a rabbinic acquisition is effective on the Torah level. Yes, there are all kinds of forms of acquisition that work on the Torah level: pulling, lifting, possession, all those things, monetary acquisition for land. But there are acquisitions instituted by the Sages—rabbinic acquisitions. For example, ma’amad sheloshtan. If I want to transfer a document to you, then the borrower, the lender, and the buyer all need to be present. In the presence of all three, I transfer the document to you and thereby I transfer ownership of the document to you. That is how documents are transferred. But that is not effective on the Torah level; it is a rabbinic acquisition. Now the question is: when I acquired something through such an acquisition, which is only rabbinic, is it effective on the Torah level? Can one betroth a woman with it? Because after all, the document is yours only rabbinically, not on the Torah level. So then the woman would also be betrothed only rabbinically and not on the Torah level.
[Speaker C] Is a rabbinic acquisition inferior, Rabbi, to situmta? What? Is a rabbinic acquisition inferior to situmta?
[Rabbi Michael Abraham] Apparently yes. According to the one who says so, that really is an interesting question. According to the one who says that a rabbinic acquisition is not effective on the Torah level, you can always ask: why not derive it from situmta? They apparently understand that no. Situmta is a commercial custom that is widespread and established in the world, or I don’t know exactly what, and because of that it is effective. But a rabbinic enactment is not a custom that exists in the world; it is a rabbinic enactment, and it does not have the status of situmta—according to the side that says it is not effective on the Torah level, of course. Okay?
[Speaker B] Is situmta the example the Rabbi once gave with the diamond merchants?
[Rabbi Michael Abraham] Yes, yes. Mazal and blessing. So the claim—the claim that if we say a rabbinic acquisition does not help on the Torah level, what are we really saying? That if I bought a document from you through a rabbinic acquisition, that document is mine on the rabbinic level but yours on the Torah level. And therefore I can’t betroth a woman with it, because it’s mine only rabbinically but yours on the Torah level. You, by the way, could betroth a woman with it; she would be your wife on the Torah level but not rabbinically. You understand that this is terribly strange, right? When we determine who something belongs to, it’s very strange to accept that it belongs to you on the Torah level and to me on the rabbinic level. Either it belongs to me or it belongs to you. Even just on the level of the chaos this creates, it’s unreasonable that the rabbis would start mixing things up here and create this kind of mess; that’s a recipe for endless trouble. Afterward I’ll do something with the money, and then everything will keep rolling onward. On the Torah level it will belong to you; on the rabbinic level it will belong to me. When I bought a field, and then with that field I betroth a woman, then the woman will be yours on the Torah level but not yours rabbinically. It is very unlikely that the rabbis established such a thing. Therefore again, exactly here too, I would rule the same way. Certainly a rabbinic acquisition is effective on the Torah level, full stop. I think that there too most of the later authorities go in this direction. Why? Without looking at the arguments and the proofs. Because it cannot be; a priori it is unreasonable that the rabbis established rabbinic acquisitions but left the previous reality intact, and then added a rabbinic layer on top of it. That makes no sense. And that is a sufficient argument, because you know that in the yeshivot they give whole lectures on whether a rabbinic acquisition helps on the Torah level, or on the Kuntres Ha-Sfeikot. Or with proofs this way and proofs that way, and what he answers and what he answers. I wouldn’t give a lecture on that. I wouldn’t give a lecture on it because the answer is clear to me. What is there to give a lecture on? There is no point in examining the arguments on the other side, because I know that this side is right. When you give a lecture, then at least at the beginning you assume that both sides are possible and you try to clarify which of them is right, to bring arguments, to answer them, and so on. Here I’m saying in advance: in my opinion this side is right; there are not two sides. So on something like this I don’t need to give a lecture. At most I can show you—try to show you—how to reject the proofs of those who argue for the wrong side. After all, they do have proofs, so we need to see why—obviously the proofs are not correct—but one can try to think about why they are not correct. That has educational value, to understand why it is wrong. But this is not clarification for purposes of Jewish law. The Jewish law is that a rabbinic acquisition is effective on the Torah level. You can ‘turn it over and receive reward,’ so to speak, to magnify Torah and glorify it; you can see what the opposing arguments were and explain why those opposing arguments are not good, but it won’t change anything regarding the halakhic ruling. Okay, I’ll stop here at this stage. Anyone who has a comment or question?
[Speaker C] Just what the Rabbi means is that this is certainly Torah-level—it’s not because of some added layer, where the sages uproot Torah law through positive action or passive omission; that’s the discussion there, so to speak.
[Rabbi Michael Abraham] What do you mean, it’s not in that category? You can now ask whether this fits with the rule that the sages do not uproot something from the Torah through positive action.
[Speaker C] Yes, that’s a dispute among most of the medieval authorities (Rishonim).
[Rabbi Michael Abraham] Right. Here one has to examine in every situation whether something is really being uprooted here. If so, then yes. But here, when we are dealing with monetary law—in monetary law, “what a religious court declares ownerless is ownerless.” So the sages can render Torah-level property ownerless.
[Speaker C] So then obviously the practical implication too, according to what the Rabbi is saying, is that I certainly violate the Torah prohibition of theft if I steal something acquired through a rabbinic acquisition.
[Rabbi Michael Abraham] Correct. You violate the Torah prohibition of theft, yes. Anyone else?
[Speaker C] Okay, Rabbi, regarding what the Rabbi asked me—so what the Rabbi asked about this—he writes it only in order to explain the Tosafot Rid about exchange in betrothal. There, to explain it, he brings the dispute between the Taz and the Sma, and then he says that in fact the Taz challenged the Sma: seemingly this is not because of the equivalence of monetary acquisitions.
[Rabbi Michael Abraham] So that has nothing to do with us at all.
[Speaker C] No, but he says, “And in my opinion this is not an objection, because certainly with a woman too equivalence is relevant, as is explained from the words of the Rosh, section 2 of tractate Kiddushin.”
[Rabbi Michael Abraham] I’m telling you, if you’re saying this only to explain why exchange is not applicable, then I agree. When you say equivalence is not applicable, the meaning is not—that is, exchange cannot be effective. But that does not mean that you are actually giving the woman’s value; rather, you give money of equivalent value, and that will constitute a formal acquisition of the woman—not that the woman has a value and you give that value in exchange for her. That’s why I asked you in what context he says this. If he says it in that context, it has nothing to do with us.
[Speaker C] But he says it concerning the Tosafot Rid, who says that where one betroths with exchange worth a perutah, and the woman is in exchange for the barter, then it is considered exchange because of the monetary element within it.
[Rabbi Michael Abraham] Ah, okay. So the Tosafot Rid claims that exchange is effective with a woman.
[Speaker C] Yes, yes, that’s what I came to tell the Rabbi.
[Rabbi Michael Abraham] The Tosafot Rid holds that exchange is effective with a woman as a matter of Torah law; only rabbinically it is not, because it is degrading to her. No, no—Tosafot Rid—Tosafot Rid says that exchange is not effective with a woman on the Torah level.
[Speaker C] Yes, according to Tosafot Rid it’s something else. He says only acquisition by kerchief is not effective, but actual exchange really is effective.
[Rabbi Michael Abraham] The exchange mentioned in the Talmud is only kerchief acquisition.
[Speaker C] Because he says that exchange contains a monetary element.
[Rabbi Michael Abraham] So he also understands exchange as value. That already changes the whole picture. Because I claim that exchange contains no monetary element at all. Meaning, exchange is the swapping of one object for another, whereas money is the giving of value. It doesn’t matter that the object I give as exchange has value—that is obvious. But I am not giving it as something worth money; I am giving it as an object in exchange for an object. Okay, so this takes us into other topics.
[Speaker F] Thank you very much.
[Rabbi Michael Abraham] Okay, thank you. Goodbye, Sabbath peace.