Agency Matters – Lesson 3 – Rabbi Michael Abraham

[Rabbi Michael Abraham] Okay, last time I talked about the basic mechanisms of agency. We saw a distinction there between authorization and an extended hand, a distinction we’ll come back to, which is two different ways to understand how agency works. We saw a distinction between agency over power and agency over an act, which is similar, but I argued that it isn’t identical. It’s a distinction between two possible outcomes of agency. Is the result of the agency that the sender performed the action, or is the result of the agency that the product of that action is attributed to the sender? So it’s not exactly the same thing, at least not on one side. On one side it seems yes; on the other side, no. And today I want to begin the discussion at the start of the second chapter of Kiddushin, because the Talmud there starts looking for sources for the law of agency, and raises all kinds of sources of one kind or another, rejects them, distinguishes between different contexts, and from that you can understand all kinds of fundamentals in the laws of agency. Maybe we’ll start with a kind of bird’s-eye view of the passage, of the first part of the passage. Okay, so the Mishnah, yes, on 41a, brings the three types of agents. We saw this: an agent for delivery, an agent for receipt, and the father’s agent to betroth his daughter, who is also really an agent for receipt, another kind of agent for receipt. After that the Talmud talks about “it is more of a commandment when done personally than through one’s agent,” or the prohibition against betrothing a woman without seeing her first. That’s the part we talked about in the first lecture. After that the Talmud begins: “From where do we derive agency?” You see, I’m marking it: “From where do we derive agency?” And then the first baraita: as it was taught, “and he shall send” teaches that he appoints an agent, “and she shall be sent” teaches that she appoints an agent, “and he shall send and she shall be sent” teaches that the agent appoints an agent. This is all, of course, from “and sent her from his house,” dealing with divorce. So here we have sources for three kinds of agents in divorce: an agent for delivery, an agent for receipt, and an agent who appoints an agent. I already noted last time that this is very reminiscent of the three agents mentioned in the Mishnah, with one difference. The third agent mentioned in the Mishnah is an agent whom the father appoints in order to betroth his daughter. The third agent discussed here in the baraita is an agent who appoints an agent. Okay? And I said there’s room to compare them. When we talk about an agent appointing an agent we’ll talk about this, because it may be that the father is acting here as the daughter’s agent, and when he appoints an agent to receive on behalf of his daughter, that’s really an agent appointing an agent. Then the parallel to the Mishnah is perfect. The question is whether that really is the right understanding of a father who appoints an agent to receive betrothal for his daughter. Fine, in any case, back to our point. So the Talmud brings a first source for agency from divorce, three types of agency. Then the Talmud says: “We have found it in divorce,” yes, here, “we have found it in divorce; from where do we derive it in betrothal?” So that’s agency in divorce—where do we know it in betrothal? Because that’s the subject of our Mishnah. “And if you would say that it is learned from divorce—what is special about divorce? It can take place against her will.” Yes, you can’t learn from divorce to betrothal, because divorce can be done against her will. So what does that mean? Apparently there is some kind of advantage to being able to appoint an agent for divorce over appointing an agent for betrothal, which doesn’t depend only on the husband. We’ll come back to that. Right now I’m just speaking in broad strokes. The Talmud answers: the verse says, “and she leaves and becomes”; it juxtaposes becoming to leaving. Just as in leaving one appoints an agent, so too in becoming one appoints an agent. Yes, “and she leaves his house and goes and becomes another man’s wife”—“and she leaves” is divorce, “and becomes” is betrothal. There is a juxtaposition between divorce and betrothal. From here they learn that betrothal can be effected by a document, because divorce is effected by a document. For our purposes, this teaches us that just as in divorce you can appoint an agent—that’s the source from the baraita above—so too in betrothal you can appoint an agent. There is a juxtaposition of “and she leaves and becomes,” and that solves the problem of “it can take place against her will.” Why does that solve the problem? Because juxtapositions are not subject to refutations. Refutations apply to an a fortiori argument or to a paradigm-based derivation, but not to juxtaposition and not to verbal analogy. Since in a verbal analogy or a paradigm-based derivation, the movement from the source case to the derived case is fundamentally based on a conceptual comparison, on reasoning—it’s similar to that, or this is more severe than that, so we learn from the source to the target. But in verbal analogy and juxtaposition, the move from the source to the target does not rest on their similarity; it rests on the fact that the Torah said to compare them. Now if the Torah said to compare them, what difference does it make that there is a refutation? The Torah took that into account too and still said they should be compared. In a case where I compare them by reasoning, you can say, but there is opposite reasoning—a refutation—that says they aren’t similar. But when there is a juxtaposition or verbal analogy, there’s no room for refutations. You won’t find anywhere in the Talmud a refutation against a verbal analogy or a juxtaposition. Nor against a general-and-specific rule, none of that—only against a paradigm-based derivation and an a fortiori inference. What? The reasoning may emerge, but there’s no refutation. There won’t be a refutation against a verbal analogy. Fine, there’s the issue of whether one of the terms is free, whether it’s free or not doesn’t matter at the moment, at least on one side, but after we already make the verbal analogy there’s no refutation. Refutations apply only to logical hermeneutic principles; they don’t apply to textual hermeneutic principles in general. You can divide the hermeneutic principles into logical ones—which are basically mainly a fortiori and the two kinds of paradigm derivations, from one text and from two texts—which are essentially either analogy or a fortiori reasoning, and there the whole thing begins from some relationship that exists by reasoning between the source and the target, either similarity in the paradigm cases or hierarchy of severity in an a fortiori case. Okay? Then if a refutation comes, it says to me: no, your assumption was mistaken. There is no similarity, or no hierarchical relation. Okay? But if the similarity is based on the fact that the Torah said they should be compared—not on reasoning—then if the Torah said they should be compared, what difference does it make that there is a refutation? The Torah also knew there was a refutation and still said they should be compared. Therefore in textual hermeneutic principles there is no room for refutations. Refutations don’t play a role. What did we find? No, “what did we find” is a paradigm derivation. “What did we find” is just a paradigm derivation, another name for it, nothing more… What did we find here? So too here. There’s no hint in the Torah itself to make that comparison; rather logic says that if we found it here, then we found it there as well. In other words, it’s basically an analogy, a comparison we make by reasoning. So on that the Talmud says: we learn betrothal from divorce. Then the Talmud asks: and as for that which we learned, one who says to his agent, “Go separate terumah,” he separates according to the owner’s intent, and if he doesn’t know the owner’s intent he separates an average amount, one-fiftieth; if he reduced by ten or added by ten, his terumah is valid—it doesn’t matter right now. So we learn that there is agency also for separating terumah. We’ll talk about that too, I hope, if we get there, but there is agency for separating terumah. The Talmud asks: from where do we know that there is agency for separating terumah? So we already saw a source in divorce; betrothal is learned from divorce through “and she leaves and becomes”; you can’t learn it by reasoning, but through “and she leaves and becomes” you can. Okay, now what about terumah? So the Talmud says: and if you would say that it is learned from divorce—what is special about divorce? Divorce belongs to the ordinary, secular sphere; terumah belongs to the sacred sphere. In the sacred sphere there is less place for appointing agents—I’m not getting into the details right now. The verse says: “you, also you,” to include the agent. So there is another source for agency in terumah. So for now we have a source in divorce; in betrothal we learn from divorce because of the juxtaposition of “and she leaves and becomes”; and in terumah we also have a source. What?

[Speaker C] “Also” comes to include, yes, to include an agent in terumah.

[Rabbi Michael Abraham] So the Talmud says: then let those cases come and let us learn from them. And then it makes a “why both are necessary” analysis between betrothal and divorce on the one hand and terumah on the other, and it turns out you can’t do that, because each one has its own advantage; you can’t learn one from the other. Fine? Then the Talmud says: and as for that which we learned, a group that lost its Passover offering and said to one of them, “Go slaughter on our behalf”—agency in consecrated offerings—there too there are refutations. In short, you can already see the mechanism. There are consecrated offerings, and then there’s another “why both are necessary” analysis including consecrated offerings, already a three-way one, and so on. You can see the mechanism: basically we’re looking for a source for the law of agency, and then we start moving through the different contexts in Jewish law and checking in each one whether there is agency or not. Meaning, there is no single general question whether there is agency in Jewish law or not; each context needs its own source. Now it could be that we’ll learn to contexts where there is no source if they resemble a context where there is a source, but if there is a refutation, then not. The Talmud’s discussion hints that there is no single general question whether a person’s agent is like the person himself or not, whether there is a law of agency. The question is each context on its own. Okay? That’s the big picture. Now I want to go back to the beginning of the passage. What? Suppose there are several kinds of—

[Speaker D] agency? Right, so what?

[Rabbi Michael Abraham] There are several kinds of agency. Here I wasn’t talking about kinds. Which agency? I’ll note this later too. The Talmud here doesn’t distinguish between types of agency. The Talmud discusses whether there is agency in this context, in that context, in that context. What kind of agency? There are different kinds of agency. I don’t think there’s room to learn one kind from another, because the fact that there is, say, an agent for an act—who says there is also an agent for power? That’s not even a matter of refutations or no refutations; these are simply different concepts. Why would one learn from the other? When the Talmud talks here about different contexts in which there is an agent, it actually seems to be talking about the same type of agent—the only question is whether it exists in terumah, in divorce, in betrothal. Then either there are refutations or there aren’t. So here there is room for discussion. In fact, in the Talmud it seems that the Talmud ignores the fact that there are really several kinds of agency altogether. But as I said last time, that’s not entirely precise, because it’s not for nothing that the Talmud begins with divorce. It begins with divorce because there you really can see sources for the different types of agency. And there, indeed, the Talmud doesn’t ask—we don’t find in the Talmud that it asks—why do you need a source for the husband appointing an agent, a source for the wife appointing an agent, and a source for an agent appointing an agent? Why are three sources needed? There is no such question in the Talmud. The medieval authorities discuss it, but not the Talmud. Why not? Because these are different kinds of agency. With different kinds of agency, it’s not a matter of refutations or no refutations. You have to introduce each type separately, because otherwise I don’t know that such a kind of agency exists. Everything the Talmud does discuss—what it explicitly discusses—is when I take the concept of agency, which I’ve already learned in its different forms, I learned it from divorce, and now the question is whether I can apply it in another context, that same type. And about that they discuss: is there a source, can one be learned from the other, is there a refutation, is there no refutation. But all of that is always when the kinds of agency are already given and have sources, everything is fine. The only question now is where I apply those sources, to which contexts the law of agency applies, and that is the whole discussion of the Talmud. There is no discussion of the types. In the medieval authorities there is, but not in the Talmud. Okay? This is also another hint to that point, by the way. I think it’s a hint to this issue: when the Talmud keeps making “why both are necessary” analyses—you saw that it does that—it makes one between divorce and betrothal on the one hand and terumah on the other; after that consecrated offerings are added and it makes one among the three. In other words, every time it does this—why doesn’t it make a “why both are necessary” analysis between the three agents of divorce after the baraita? Right? Because they’re different types. Between different types there are no “why both are necessary” analyses. Even if there is no refutation from one to the other, you still need a source for the second type so that you know that this kind of agency also exists, because otherwise you can’t learn it from the first type of agency. The fact that I have agency doesn’t mean I can make conditions. The law of conditions is one law and the law of agency is another. It’s not because there is a refutation; they are simply two different things, you can’t learn one from the other. Therefore between different types of agency there will be no “why both are necessary” analysis, and it’s obvious that each type requires its own source. Whenever we want to learn and make a refutation and a “why both are necessary” analysis and so on, that is always when we are already speaking after we have sources for all the laws of agency, for all the kinds of agency. The question is in which contexts we will apply them, where we will say these kinds of agency exist. About that there are “why both are necessary” analyses and refutations and so on. Okay, so I want to begin. So the Talmud begins: “From where do we derive agency?” I’m going back to the start of the passage. As I said, for that reason I wanted you to see the general movement of the passage. One could understand this in two ways. One could understand the question—and by the way it’s always very important to understand questions. People tend to dismiss that a bit, because very often when you understand the question, you understand what the answer said. And if you understand what the initial assumption behind the question was, you can see whether the answer retracted it, whether the solution abandoned it and said it isn’t true, or whether the solution accepted it and only introduced something secondary. So it’s very important to understand what lies behind the Talmud’s questions—objections, questions of the Talmud. In this case it’s a question, not an objection. So what does “From where do we derive agency?” mean? There are two basic possibilities. In the Mishnah we are talking about agency for betrothal. One could understand that the question is: from where do we derive agency in betrothal? How do we know it? Meaning, the concept of agency exists, that’s clear. The question is only: how do we know that there is agency in betrothal? It has some source, and we learn it from another source—that’s one possibility. A second possibility is to say no—“From where do we derive agency?” means just that, not “from where do we derive agency in betrothal?” Where do we know the concept of agency from? How do we know that there is agency in the Torah? Okay? That’s the second possibility for understanding the question. What do you think? Which of the two is correct? What seems more likely? The general flow. Why? Right. Not only afterward, but also from the answer they bring. Agency—from divorce. If the question was “from where do we derive agency in betrothal,” then why are you bringing me a source for agency in divorce? You’ll tell me, fine, but that’s exactly what the Talmud says later, because afterward it asks, “but from where do we derive it in betrothal?” But that’s not the right structure. If they were looking for agency in betrothal, it should have said: agency in divorce we learn from here, and betrothal we learn from divorce. Then the Talmud would ask: what is special about divorce? It can take place against her will, so you can’t learn from divorce to betrothal. Then it would say “and she leaves and becomes.” But that’s not the Talmud’s order. The order of the Talmud is: they bring it from divorce, and then the Talmud says, wait, and from where do we derive it in betrothal? I don’t understand—isn’t that what we were asking? The Talmud should have said it as one continuous thing: if the question had been about betrothal, then “from where do we derive agency in betrothal? Because there is a source in divorce and betrothal is learned from divorce.” Now the Talmud would ask: how can you learn that? Divorce can take place against her will. And that’s how it should have continued. But the Talmud isn’t built that way. The Talmud doesn’t say “From where do we derive agency?” and then say “and he shall send,” meaning in divorce, and then “we learn betrothal from it.” No. Divorce, period. Now the Talmud says, ah, okay, I understand. And what about betrothal? You answered me fully, fine—and I have another question: what happens in betrothal? The previous question wasn’t about betrothal. And to that they say that in betrothal we learn from divorce, and then there is an objection: what is special about divorce? It can take place against her will. And because that question is specifically about betrothal, then they answer with “and she leaves and becomes,” which is about betrothal.

[Speaker F] What? You could say they asked “from where do we derive agency in betrothal,” and then that’s a good answer? So the question was about betrothal and you answered me with divorce?

[Rabbi Michael Abraham] No—why interpret it that way? Doesn’t he understand what you’re saying to him?

[Speaker F] The Talmud doesn’t phrase it that way.

[Rabbi Michael Abraham] The Talmud says “we have found it in divorce” calmly. Now tell me—is that not an objection? Meaning, the question is whether “we have found it in divorce, and from where do we derive it in betrothal” is an objection or a question. Do you understand the difference? According to your approach, it’s an objection, right? I asked about betrothal and you—this is not how you express an objection. It’s like one who claims wheat and the other admits to barley. I’m asking you about betrothal—what are you answering me about divorce? The Talmud speaks calmly; it’s a question, not an objection. “We have found it in divorce”—now tell me what about betrothal. Right, that is the simple wording of the Talmud. Therefore I think the more natural explanation here is that the question “From where do we derive agency?” is talking about the concept of agency in general. Afterward, little by little, we see that it’s hard to construct it in general terms, because the source from divorce does not necessarily teach betrothal. After we see that it teaches that, then what about terumah? After that, consecrated offerings? So we build it up gradually. In other words, the whole course of the Talmud is an answer to “From where do we derive agency?” But the basic question of “From where do we derive agency?” is a general question about the law of agency, not a question about agency in betrothal. And now the question is why. If that really is the correct understanding, then why? Meaning, apparently for the Talmud it is not self-evident that there is such a concept as agency in the Torah, in Jewish law. Right? If the question had been “what about agency in betrothal,” then what would I have understood? That the concept of agency in the Torah is clear, known, straightforward—maybe from reasoning, maybe from a known source, it doesn’t matter—but that part I already know. The difficulty is what happens with betrothal. Do you have any proof that the general concept of agency that exists in Jewish law also exists in betrothal? Why shouldn’t it exist? Maybe there’s something special about betrothal, because you need the husband’s act itself, as we saw last time, or something like that. One can give reasons why agency in betrothal is less likely. Then the Talmud asks: from where do we know that there is agency in betrothal? But if we understand that the question is a general one about the concept of agency, then that means the starting point is that without a source there is no concept of agency. The concept of agency is not self-understood; it is an innovation of the Torah. Now I’m looking—okay, where did the Torah innovate this? Right? That’s the difference. Now if I really come to the conclusion that “From where do we derive agency?” is a general question about the concept of agency and not about agency in betrothal, what does that mean? In the subtext, it basically means that in the Talmud’s view the concept of agency is not self-evident. It is an innovation of the Torah. Without a source there is no concept of agency at all. And that is why the Talmud really answers little by little. It says: in divorce we found it. Okay, what about betrothal? We found it there too. What about terumah? We found it there too. What about consecrated offerings? We found it there too. And from there we already learn to everything else. But it is built gradually. In other words, the concept of agency as such is not a concept that is self-evident. Now you can ask why. There isn’t a legal system in the world that doesn’t recognize agency, as far as I know anyway. The concept of agency is self-evident. If you appoint an agent, then he acts on your behalf—what’s the problem? If you can do something, you can also appoint an agent to do it on your behalf. Why here, in Jewish law, is that not self-evident? So this is a long topic. I’ll say it briefly, but there are many legal institutions, legal mechanisms, that in ordinary legal systems are self-evident, and in Jewish law they won’t exist unless there is a source. A very prominent example of this is intellectual property. Copyright, intellectual property. In the legal world they discuss whether there is intellectual property or not, but it’s pretty clear to everyone that there is—they define it this way, that way—but it’s clear there is. In Jewish law, you can see in many, many halakhic decisors, responsa, and books of rulings, that they very, very much want there to be intellectual property in Jewish law. Because otherwise anyone who publishes a book can just be robbed by someone else, and that’s very problematic. Now in the legal world, that very consideration itself shows that there is intellectual property. Because you need it for the good of the market and to encourage people to create and invent and so on, to encourage people’s creativity and their contribution to society. Okay? In Jewish law too, halakhic decisors are aware of that consideration. You can see it in many places; they write it explicitly. So what’s the problem? Then just as in the legal world, so here too—okay, if it’s very good and useful, then apparently it exists. No. For it to exist, you need a source. Why a source? If reasoning says it’s needed, then what’s the problem? Because without a source there is no such Jewish law. You can’t invent laws just because it’s useful for you. Why not? I think this is connected a bit to a much broader question that I’ll really only hint at: how do we understand laws? In the legal world, people usually relate to norms, to laws—to legal rules—as floating norms. It’s a principle: if it makes sense, then fine, then everything is in order, then it exists. In Jewish law, the norms are facts. That’s the fact. When I recognize intellectual property, what that means is not merely that society recognizes your intellectual property—that’s not enough. There has to actually be some bond between you and your ideas, between you and your creations. And if in fact there is no such bond, no such metaphysical bond, then there simply isn’t one. The reality is that there isn’t one. Even if we really want there to be one, and we really think there is such a thing—but there isn’t, what can you do? In order to see that there is, you need a source. The source has to show me that there is some metaphysical connection or bond between me and my intellectual property. Okay? Therefore Maimonides says that something without substance cannot be acquired. Something without substance cannot be acquired because that bond has nothing to attach itself to, because it has no substance. Okay? So one could expand on this a lot, I won’t get into it here, but he wrote—what? I can’t hear. Reasoning in Jewish law. Yes. What about—

[Speaker E] Torah-level reasoning?

[Rabbi Michael Abraham] Reasoning can be Torah-level, but only where it interprets a written law. Reasoning can’t create a Torah-level law out of nothing. I talk about this in the parallel series on Tuesday. In any case, you can see this in many places. Take returning a lost item, for example. I’m reminded of an article I wrote where I mentioned this. There was the well-known Handels ruling against Kupat Am, where securities were found on the floor of a bank. The question was whether they belonged to the bank or to the finder. One of the customers there found those securities, and the dispute went through several courts and reached the Supreme Court. In the Supreme Court there was a dispute between Menachem Elon and Aharon Barak; Chaim Cohen was also there. I think it went through two or three rounds in the Supreme Court. People usually bring it up in the context of Hebrew law, because of the Foundations of Law Act, 1980, where it says that when there is a gap in the law, you fill it in based on the principles of justice and fairness from the heritage of Israel, or some vague phrase of that sort. And of course Menachem Elon immediately took it in a halakhic direction and said, what’s the problem? A find in the premises of a moneychanger—there’s a Mishnah in Bava Metzia that says that if you find a lost item in some kind of public domain like that, then it belongs to the finder and not to the owner of the premises. Say, in a bank, or with a moneychanger, or in a store—there it’s talking about a store in Jewish law. So he says: if that’s the case, since there’s a gap, it should be completed from halakhic principles, and therefore it belongs to the finder. All the other judges disagreed with him, even though they agreed that this was a gap in the law, but they filled it in from other legal systems. And they said that other legal systems basically say it belongs to the bank. Why does it belong to the bank? Because there is an interest here—our goal is to return the item as effectively as possible to the person who lost it. The most efficient way to make sure it returns to the loser is to leave it in the bank. Because if you give it to the finder, the finder leaves, and then the person who lost it will come back to the bank and say, I lost securities here, and no one will know where to send him, who has it, nothing. The finder took it and went home; no one knows who he is. But if you leave it in the bank, that’s the place the loser will come back to. The best chance of returning it to the loser is if you leave it in the bank. Now everyone discusses whether this really is a gap or not, whether the Foundations of Law Act applies here or not—that’s an interesting discussion in itself. What bothered me was a different question. Why is Jewish law actually different from all the other legal systems? They say all the other legal systems hand it over to the bank and not to the finder. But in Jewish law it belongs to the finder. Why? Aharon Barak himself basically writes the point already there in his ruling. He had a very nice distinction there. He basically wants to say that in law, property rules are determined according to the interest of returning a lost item. And the interest of returning a lost item is to maximize the chance that the item will return to its owner. Property law—who the item belongs to—is subordinate to that interest. So therefore we give it to the bank. Not because it belongs to the bank, but because that will maximize the chance of returning it to the loser. Now the question is: so why isn’t it like that in Jewish law? Because in Jewish law, property rules are determined independently, not out of the interest of returning the item to the loser. The question of who it actually belongs to is a factual question. And if the loser already despaired of recovering it, and that domain does not acquire it—a bank is a domain where many people walk around, so it is not considered a guarded domain from the perspective of the owner of the premises. It belongs to him, to the bank, but it isn’t guarded according to the will of the owner of the premises, because many people walk around there and do whatever they want. Such a domain does not acquire the lost item for you. So who acquired the lost item? The person who found it. And therefore it belongs to the finder, as a found item. Now, even in Jewish law it’s obvious that this harms the chances of returning it to the loser. It’s just that Jewish law is not interested in returning it to the loser, because it no longer belongs to the loser; it belongs to the finder. Now you see—this is a wonderful example of the fact that from the perspective of Jewish law, the question of who something belongs to is a factual question. It’s not a question of interests and what I want to achieve and things of that sort. Teleological considerations, purposive considerations, do not operate in Jewish law. In Jewish law the question is a factual, causal question, not a purposive one. What mechanism transferred ownership of this lost item, and to whom did it transfer it? To the finder. So it belongs to the finder. Jewish law does not go into the rationale of the verse or ask how I will ensure the best possible return to the loser. In the legal world it’s not like that. Why not? Because in the legal world the norms are handed over to us. If we define the norms this way, it will make much more sense, so let’s define them that way—what’s the problem? In Jewish law, even if we wanted to define it that way, we can’t. Because the facts determine it. Unless there is a Sanhedrin that enacts a rabbinic ordinance. That it can do. But we don’t have a Sanhedrin now. And therefore we discuss the basic law. And under the basic law, what determines things is the facts, not the interests. And not interests in some lofty sense, and not in some lowly sense either.

[Speaker E] What we talked about on the Sabbath. Who does the lost item belong to?

[Rabbi Michael Abraham] Why—what short-term consideration is there here? Is the property consideration what makes the finder preferable to the bank in the short term?

[Speaker B] The chance of returning it to the loser.

[Rabbi Michael Abraham] So that’s not short-term; it simply belongs to him. No—to return it to the loser would mean giving it to the bank. Short term—why short term? Jewish law says it belongs to the finder, not to the bank. Long term—

[Speaker B] Maybe optimal return?

[Rabbi Michael Abraham] But why is that—I agree that it doesn’t fit the long term, but why does it fit the short term? It’s neither short term nor long term. It’s simply a fact: it belongs to him, period. There isn’t some consideration here that I gain something now—I gain nothing. This is the truth; it’s just a simple fact. I don’t think it’s right to present this as a tension between short term and long term. The question is whether you make teleological, purposive calculations at all—whether short-term or long-term—or whether you say: this is the fact. Why does a lost item after despair of recovery belong to the finder? Just think about it. Why does a lost item after despair belong to the finder at all? Why did Jewish law establish such a thing?

[Speaker D] Because of the connection between the loser and the item?

[Rabbi Michael Abraham] Yes. And in legal logic there is no logic to it at all. None at all. The person worked for it, the object belongs to him, and this finder just happened to find it—why should he take the object? Let him leave it there, or announce it, or give it to the loser even after the loser despaired. He despaired because he didn’t think it would be found, but now it was found, so give it back—it’s his. Why not return it to him? The Maharal talks about this, and others too. The Talmud itself says that the Sages are pleased with someone who returns a lost item even after despair. So morally, one ought to return the lost item even after despair. So why is one not legally obligated to? Because legally it belongs to the finder. Since the legal fact is that it belongs to the finder. Since the connection between the loser and the lost item has been severed, it belongs to the finder. That’s it. That’s the fact. And Jewish law deals with facts. It’s not enough to give explanations like: it’s very efficient, beneficial, and I gain this or that from such-and-such legal policy. The question is: what is the legal fact? What? There too I think there’s some dimension—a factual dimension in the background. The question is whether a bond was created between the man and the woman or not. So in our context, true, all legal systems in the world… just as they grant intellectual property rights or copyrights and things like that. Why? Because it makes a lot of sense. Agency too makes a lot of sense. If I can do something, why shouldn’t I send someone else to do it on my behalf? What’s the problem? It makes perfect sense. But in Jewish law it’s not enough that something makes sense for it to exist. The question is whether such a mechanism is actually defined in Jewish law. And if it is not defined, then it doesn’t exist, what can you do? Even though it makes perfect sense. Okay? Now that’s not the same, for example, as damages, although there too Tosafot says regarding damages—Tosafot says: this is something written in the Torah. That without the Torah, we would not have been obligated for damage payments. If you harmed me, you wouldn’t pay; only the Torah introduced that. Right? So there too, on the face of it, it seems—after all, logic would say, every legal system in the world obligates the damager to pay the injured party. Why in the Torah would this not have existed were it not for a Torah innovation? So one might have said the same thing: because the obligation to pay is some kind of fact, not just something that seems proper. The fact that it seems proper is not enough. There it’s harder, because there we really are talking about an obligation to pay, not a question of whether you own something or not. That is harder to tie to factual questions. The obligation to pay really is the result of logic: if you harmed my property, then pay. There it’s a bit harder, and still Tosafot says even there that it is something written in the Torah. In any case, for our purposes, the conclusion is that the concept of agency is not something self-evident in Jewish law, and without the Torah innovating it, it would not exist. Why is that so? Because, as I said, Jewish law is based on legal facts, and a legal fact you cannot generate from pure reasoning. Either it exists or it doesn’t exist. So if the Torah instructs it or states it, then it exists; and if not, then not. Yes, that’s what many later authorities say, for example, that rabbinic laws always apply to the person and not to the object itself. Or that we don’t find protective fences at the Torah level. Those two principles hint at the same thing. The Torah speaks about what is factually and essentially true. Protective fences are things that in themselves have no problem at all; only if you do them there is concern that you may come to do something else that is problematic. But the act itself is not problematic. So there will be no Torah prohibition here. Because a Torah prohibition deals only with things that are problematic in themselves. And therefore Torah laws apply to the object itself, while rabbinic laws apply to the person. Torah laws speak about reality, reality itself, not about what is imposed on the person. What is imposed on the person is a result, an implication, of the fact that this is the reality. Okay? So I think it’s the same thing with the concept of agency. Now of course this connects to what I said in the previous class—that the concept of agency lives within the legal sphere. When you need to do something with legal significance, you can appoint an agent to do it on your behalf. But if it’s just a monkey-act, like the sale by Rav Safra and Rava that we saw in the first class, then there is no agency there, and probably agency is not even defined there, because agency is defined only in the legal sphere. And here indeed, in our context, when we get to this source for agency in divorce, you’ll see there is a very interesting structure in the verse. Look at the verses: “When a man takes a woman and marries her, and it happens that she does not find favor in his eyes because he found in her something indecent, and he writes her a bill of severance and puts it in her hand and sends her out of his house.” Right? I think this is probably the most expounded verse in Jewish law, by the way. “And she leaves his house and goes and becomes another man’s wife, and the latter man hates her and writes her a bill of severance and puts it in her hand and sends her out of his house”—again, it repeats it again. Right? “Or if the latter man who took her as his wife dies.” So “and he sends” and “and she is sent,” right? The husband appoints an agent, the woman appoints an agent, and the agent appoints an agent—this is learned from “and sends her.” Okay? Now there is a redundancy here. It says: “and he writes her a bill of severance and puts it in her hand and sends her out of his house.” What is this redundancy? What is “and he writes her a bill of severance and puts it in her hand”? That’s the divorce—he gives her the bill of divorce, right? What is “and sends her out of his house”? What?

[Speaker H] Or “and sends her out of his house”?

[Rabbi Michael Abraham] What, without a bill of divorce? What do you mean, without a bill of divorce? Wait, before agency. First I’m just reading the verses. It says: “and puts it in her hand and sends her out of his house.” What? No, no. It says that both with the first husband and with the second husband. “And he writes her a bill of severance and puts it in her hand and sends her out of his house.” The same thing is written about the first man and the second man. What’s the difference between “and he writes her a bill of severance and puts it in her hand,” which is giving her a bill of divorce, and “and sends her out of his house”? So here again, this is a broad topic that I’ll only hint at. Usually we’re used to thinking that the concept of divorce, or marriage betrothal, it doesn’t matter, is a concept constituted by the Torah. Suppose someone gave a woman a bill of divorce not according to the law—a defective bill of divorce, whatever—or with no bill of divorce at all, he just threw her out of the house. Fine? What would you say about that? Did he commit a transgression? He didn’t give a bill of divorce. Is there a commandment to give a bill of divorce? Did he commit a transgression? She’s simply not divorced, that’s all. Right? If he gave a defective bill of divorce or an invalid one—leave aside Torah-level or rabbinic-level—an invalid bill of divorce means she simply isn’t divorced. It’s not a question of transgression. But the Sefer HaChinukh writes that someone who divorced his wife and did not give her a bill of divorce has nullified the positive commandment of divorce, and his punishment is great. If you sent the woman out of the house and did not give her a bill of divorce, or not a valid one, then you nullified the positive commandment of divorce. But this is a definitional commandment, so how can you nullify it? And he says that you did nullify that positive commandment. Meaning, leave aside whether he makes the distinction or not—bottom line, there is a nullification of a positive commandment here. How can there be nullification of a positive commandment here? On the simple level, divorce is a definitional commandment. Meaning, if you did it this way she is divorced, and if you didn’t do it this way then she isn’t divorced. That’s all. What does fulfillment or nullification of a positive commandment have to do with it? Right. Clearly the Sefer HaChinukh understands that if you remove the woman from the house, you have divorced her. That is called divorce—to remove her from the house. But if you did it not by means of a valid bill of divorce, then you nullified that positive commandment. The positive commandment is that when you remove the woman from the house, when you divorce her, you must do it lawfully with a valid bill of divorce. And if you do it without a valid bill of divorce, you have nullified a positive commandment. Not that everyone now has to give his wife a bill of divorce because there’s a positive commandment; rather, if you are already divorcing her, the commandment is conditional: if you are already divorcing her, do it with a valid bill of divorce. Why? Because that is how you permit her to the world; otherwise you remove her from the house and she is not permitted to the world—she did not receive a bill of divorce—so you are effectively leaving her chained. She is not with you, and she is not permitted to anyone else; you are leaving her chained. So that is a nullification of a positive commandment. The positive commandment is not to leave women chained; that’s the positive commandment. There is a positive commandment not to leave women chained. Meaning, if you divorce the woman, then release her. Now I say the following. My claim is this: there is also halakhic significance to this redundancy of sending her out of the house and giving the bill of divorce. Maimonides, at the beginning of the laws of marriage, writes that before the giving of the Torah, a man would meet a woman in the marketplace, they would agree between themselves, he would bring her into his house, and then she was his wife. Right? After the Torah was given, a law was introduced that he first has to betroth her by money, document, or intercourse, and only after that bring her into his house and live together. Why is Maimonides telling me that little historical story? Did he turn into a historian? Why do I care what was before the giving of the Torah? Before the giving of the Torah they also wore robes. So what? Just tell me what the Torah said—that with betrothal you have to betroth the woman. Why do I care what came before? Tell me what has to be done, don’t tell me what happened earlier. Tell me: you need to betroth a woman by money, document, or intercourse, and then live together. That’s it. In every such case one has to clarify the intent. In my view, what he means there is that marrying a woman really means living with her, building a home with a woman; that has nothing to do with betrothal as such. Marriage, not betrothal. And marriage is simply living together, as it was before the Torah. What happens after the Torah is given? That wasn’t canceled; another layer was added. Really a prior layer: betrothal now comes before marriage. Meaning, now marriage comes only after the formal stage of betrothal. By the way, tractate Kiddushin deals entirely with betrothal. There’s almost not a word there about marriage. Why? Because the concept of marriage is not really a halakhic concept. The concept of betrothal is a halakhic-legal concept. The concept of marriage is simply living together. So for example, on the simple level you don’t need two witnesses at all for marriage, only for betrothal. Okay, people insert various definitions, but tractate Kiddushin doesn’t deal with that. It doesn’t deal with it. Now the question is: so what is the significance of this marriage? The claim is this: after the Torah was given and betrothal was introduced, an additional layer was added; the previous layer was not canceled. Marriage means living together. By agreement, permanently—not just living together in the sense of having intercourse once and that’s it, but agreeing to establish a home, to live together, including sexual relations, including everything. That is called marriage. The Torah says: yes, but I do not agree that you should do that unless you first precede it with betrothal. What is betrothal? Betrothal is the formal stage. You create the legal bond, and after that begin living together. Therefore the legal dimension of marriage is only the betrothal. All the definitions—money, document, intercourse, witnesses, saying it this way or that way—those are all discussions about betrothal. About marriage there are almost no discussions. Almost. Fine? What does that actually mean? That after the Torah, marriage is built on two levels. Two levels. And that’s what Maimonides is coming to say. First we create the legal bond, and after that we build the home. We begin living together. What happens in divorce? If so, then in divorce too you have to dismantle both levels. “Sending her out of his house” is the dismantling of the marriage. They no longer live together. It is no longer a shared home. After that you also have to give a bill of divorce, because that is what dismantles the betrothal. And the bill of divorce is the formal part of the separation. The actual physical separation itself is like marriage; just as on the way in, so too on the way out. The formal legal dimension in marriage is betrothal. What corresponds to it in divorce is giving the bill of divorce. But the actual separation is really sending her out of his house. Now I want to claim more than that—there are some implications. The Rogatchover says this, in my opinion, not quite accurately. I don’t agree with him. But yes, the principle is there in the Rogatchover.

[Speaker F] What is his principle?

[Rabbi Michael Abraham] Right. I want to argue that civil marriage has halakhic validity. Only the Rogatchover wants to derive from here that it requires a bill of divorce. That’s not correct. It doesn’t require a bill of divorce. The bill of divorce comes to dismantle the betrothal. Here what you have is Noahide marriage. Rabbi Dichovsky called it Noahide marriage. You are creating Noahide marriage, as existed before the giving of the Torah, because when the Torah was given it did not abolish what existed before. It only required that a prior stage precede it—betrothal. If you didn’t do that, then you have Noahide marriage. And similarly, when he “sends her out of his house,” then the marriage is canceled, and she returns to the status of a betrothed woman, until he gives her a bill of divorce, which then dismantles it finally. Notice: if he sends her out of his house, she returns to the status of a betrothed woman, and this has practical legal implications. The Talmud, for example, in tractate Gittin 17 says that from the moment he sets his eyes on divorcing her, he no longer has rights to her produce. What does “sets his eyes on divorcing her” mean? It means he dismantled the home. That is what is called a divorce of the heart. Meaning, it is no longer a home. The giving of the bill of divorce is still lacking; the formal part has not yet been dismantled. But they have returned to the state of betrothal. Why? Because in the state of betrothal he really does not have rights to her produce. Those rights begin only with marriage. On the way in, and so on the way out too. Once you dismantled the marriage, he lost the produce rights, even before he gave the bill of divorce. There is Rabbenu Tam and the Rashash and others; there are several more implications. From the moment he sets his eyes on divorcing her, he is forbidden to have relations with her—that is from the prophetic writings. From the moment he sets his eyes on divorcing her, the Rashash says in the name of the Rashbam, and the Rashash in Rabbenu Tam’s view, that if he is a priest he no longer becomes impure for her. That is already Torah law. Fine? He no longer inherits her. That’s not agreed upon. These are disputes, but there are medieval authorities who say this. In short, all the laws that begin with marriage and not with betrothal—from the moment he sets his eyes on divorcing her or sends her out of his house, physically sends her out of his house, before giving her the bill of severance—she returns to the status of a betrothed woman, and that has implications. She is not permitted to the world, because the prohibition with respect to the world was created by the betrothal, and therefore in order to dismantle that and permit her to the world, you need the bill of divorce. Because the bill of divorce is what dismantles the betrothal. And in my opinion that is the redundancy written in the Torah: he wrote her a bill of severance and put it in her hand, and sent her out of his house. And what if he sent her out of his house? What? Not betrothal, but it would still be marriage in the sense of mutual obligations. It may be that, for example, he would be able to become impure for her, in my opinion. Because whatever depends on marriage may apply even if there was no prior betrothal. That’s the novelty. There is room to discuss it. But if there is marriage without prior betrothal, the question is whether the implications that depend on marriage take effect, or whether you say that applies only to marriage that comes after betrothal. There is room for uncertainty here. Inheritance, impurity, and the like. Redeeming her? What? No, she is still a married woman. No—if you sent her out of the house?

[Speaker D] I don’t know. What we were talking about—without betrothal, marriage without betrothal.

[Rabbi Michael Abraham] So he had relations with her—there’s no betrothal, so there is no married-woman prohibition carrying the death penalty. But there is the prohibition of another man’s wife in the Noahide sense. Just as Noahides also have a prohibition of another man’s wife. They don’t have betrothal. No, there is a prohibition of another man’s wife. No, no—not a Jew, a gentile. A gentile who has relations with another man’s wife. So I think that is the meaning of “and he puts it in her hand and sends her out of his house.” Why am I saying all this? Because our whole discussion of betrothal and agency and all of that does not speak about marriage at all. There is no such thing as marriage through an agent. Marriage is simply living together. The concepts of agency always speak about betrothal and divorce through a bill of divorce, not about sending her out of his house. If I send an agent to tell her to leave his house, that is irrelevant. He is not an agent. When she leaves his house, she has left his house, and that’s it—but the agent is not an agent there. That’s a monkey-act. Okay? We are talking only about the legal dimension of the matter, not the human-social dimension, the social institution that exists here. The social institution operates naturally, just as it did before the giving of the Torah. And whoever is considered a

[Speaker K] partner—is the idea that someone was considered a partner before the giving of the Torah? It seems to me that in the context of common-law spouses in general law, there’s a dispute about what counts as a partner for purposes of common-law marriage. Whether they need to live together, whether they need children.

[Rabbi Michael Abraham] Common-law marriage is a whole separate topic. How common-law marriage is created. Yes, I assume so. Even among gentiles today, they don’t just meet someone in the marketplace and decide to live together. There is registration at city hall or in court or some legal system according to its own method. But these things change, and I think Jewish law would recognize that. Meaning, what is accepted in the world, even if it is not mandated by Jewish law, can define the concept of marriage. Jewish law defines the concept of betrothal and divorce by bill of divorce. Marriage?

[Speaker J] Just going together? Presumably. It could—

[Rabbi Michael Abraham] be that yes, I don’t know. Maybe, maybe yes. It’s a universal social institution, so universal society defines it. There’s room to discuss it; I haven’t thought about it. But yes, indeed, maybe so. Why do I say this? Because now when we talk about the concept of agency, we understand that it belongs to the legal sphere. When we talk about agency, it is agency for betrothal or for divorce by bill of divorce, not for marriage or sending her out of his house. If it is a legal institution, then if the Torah did not innovate it, it does not exist. Social institutions do not depend on a Torah innovation. On the contrary, as was asked here earlier, if things changed in the world, then Jewish law would recognize that change. You don’t need a verse from the Torah for that. Jewish law gives its stamp of approval to what happens in the world. It just adds further requirements, extra layers, that are its own. But those additions exist only according to how the Torah defined them. Without the Torah defining them, they do not exist. So if we are dealing with that—and agency deals only with that, because marriage and things like that are a monkey-act—agency deals only with the legal dimensions. And the legal dimensions require a source in order for the institution to exist. If the institution does not exist, if there is no source, then the institution does not exist. It’s a bit similar to the principle of legality, right? That everything is permitted unless the law prohibited it. Fine? And for authorities it’s the opposite. Everything is forbidden to them unless the law authorized them to do it. But yes, in Jewish law people often discuss this in the context of, people often say: everything not forbidden is permitted, or everything not permitted is forbidden. How should one relate to Jewish law? Obviously the first one is correct. All these hair-splitting pilpul arguments are empty. Obviously in Jewish law everything that was not explicitly forbidden is permitted. What, really? That’s obvious. I once heard in the name of the Klausenberger Rebbe—the father of the current one—that he said: if it had not been written that it’s permitted, maybe he would have cut challah with a knife on the Sabbath. Who knows if that’s permitted? If they didn’t explicitly permit it, he wouldn’t do it. Nonsense. What, really? If something wasn’t forbidden, then it is permitted. You don’t need a source to permit; you need a source to forbid. By the way, many responsa—I’ve written about this more than once—in what’s called first-order halakhic ruling and second-order halakhic ruling. There was once a ruling by rabbis of Beit Hillel where they discussed a girl saying the mourner’s Kaddish. They discussed whether a girl can say Kaddish or not, and they brought this responsum and that responsum and that decisor. And I wrote a response—maybe in Makor Rishon, I think, I’m not sure where anymore. What? I don’t understand this methodology. Obviously it’s permitted, because there is no reason to forbid it. Why do you need to bring responsa and discussions? Tell me what the issue is that is under discussion, and then we can begin discussing. Reasoning, sources, responsa of this kind. Why in the world would one prohibit a girl from saying Kaddish? Is there some reason to forbid it? If there is no reason to forbid it, then it is permitted. I don’t need discussions. If you bring me a reason to forbid it, then we need to start defining: when yes, when no, there are definitions, such-and-such positions of the medieval authorities, disputes—we can begin discussing. But you don’t bring me any category at all. So if you don’t bring any category at all, then it is permitted. You don’t need discussion in order to permit something; you need discussion in order to forbid something. Only after something has been forbidden is there room to discuss whether it is permitted or not; then yes, then discussion begins also on whether it is permitted. But basically, there is nothing to discuss about whether something is permitted if you haven’t shown me a reason to forbid it. The burden of proof is on the one who forbids, not on the one who permits. Okay, so bring me the view of the questioner in the responsum Tzintzenet HaMan—just making that up, okay?—who said that in his place they said Kaddish in the synagogue. Fine, I can write one for you too. Now bring my responsum. Here, I also wrote that a woman may say it. If you really want something to be written, I’ll write it for you. What does it matter whether he wrote it or didn’t write it? Why is that important? Why does that matter? These are such bizarre conceptions, and it’s unbelievable how many respondents fall into this. Even classic respondents, not only women of Beit Hillel. Even very central rabbinic decisors fall into these things. They discuss all kinds of matters where you don’t even understand why there is anything to discuss. In order to have a discussion, there has to be a reason. Meaning, tell me the reasons for the discussion and then we’ll conduct one. A responsum, when it starts discussing, can’t jump straight to precedents. First of all, tell me what the categories are that need discussion. There are reasons to forbid, reasons to permit, sources here, other sources there. And now we can begin a discussion: does this reason apply or not? Does that reason apply or not? What happens when there is a clash? Now we can discuss it. But first you have to bring me the categories under discussion. You can’t just start by bringing me sources. Why do I care about the sources if there are no categories to discuss? If there are no categories to discuss, then there is no discussion. Anyway, for our purposes, since we are talking about the legal dimension, then in the legal dimension the Torah has to introduce the institution of agency, because otherwise it would not exist. The legal world is created by the Torah; without the Torah it doesn’t exist. At least legal facts. I said that regarding damages there is room to argue. Okay, now I return to the question: from where do we know agency? So we saw that the concept of agency, the question “from where do we know agency,” basically assumes what?

[Speaker E] The Torah

[Rabbi Michael Abraham] says: “and he writes her a bill of severance and puts it in her hand, and then sends her out of his house.” Because when you come to send her out of your house, first of all you must write her a bill of severance and put it in her hand, and only then send her out of his house. “And sends her out of his house” is not the law; “and sends her out of his house” is the normal state—that’s what you want to do, you want to send her out of your house. The Torah says, wait, wait—before you send her out of your house, write her a bill of severance, put it in her hand, and then “send her out of his house.” Okay? I once thought about a verse in the portion of tassels. It says there, “and it shall be for you as tassels.” What does “and it shall be for you as tassels” mean? I once thought about it—it’s a very strange verse. The concept of tassels is, on the simple level, defined by the Torah in that very passage itself, right? That passage defines the concept of tassels. Before that passage it didn’t exist, so what does it mean to say “and it shall be for you as tassels”? Meaning, what I defined here with the threads and the blue dye and all that—that is what shall be for you as tassels. That implies that the concept of tassels already existed beforehand, and the Torah is saying: I require that your tassels be this and not something else. Right? The same thing here. There is marriage and there is divorce even without the Torah. Before the giving of the Torah—that is what Maimonides comes to say—bringing her into his house, sending her out of his house. The Torah says: yes, but how do you do it properly? First betrothal, and then divorce by bill of divorce, and so on. Meaning, this is a case where the Torah does not constitute these concepts but directs them. It’s not constitutive; it’s regulative, in the language of analytic philosophy. Meaning, the Torah does not constitute these concepts; these concepts already existed. They are social institutions that exist here without the Torah. The Torah comes to direct them, to tell us how to do them properly, how it requires us to do them. Fine? These are not concepts that it constitutes. For our purposes, here too it is like that. The concept of agency, though, is apparently a concept that the Torah does constitute, and therefore without the Torah I would not say it exists at all. Now I’ll ask another question, still on the a priori level. Suppose I don’t find a source. Then there will be no agency, right? According to what I’ve said now. Because the question is: what is the source? Since without a source there would be no agency. Fine. Good. Now suppose I did find a source, say in divorce. Fine? Now here arises the wonderful question that I really love: does every verse in the Torah come to teach the opposite of what it says—as is customary in yeshivot? In yeshivot it is customary to think that every verse written in the Torah teaches the opposite of what it says. And the parable for this, a favorite parable of mine, is of the young Torah scholar arguing with his wife, and then she says to him, it says in Scripture, “Whatever Sarah tells you, listen to her voice”—you have to listen to me. So he says to her, fool of the world, as if Sarah would say such a thing? From the fact that it says to Abraham, “Whatever Sarah tells you, listen to her voice,” it is obvious that ordinarily a person does not need to listen to his wife. That’s why a verse was needed to say that in Abraham’s case he did have to listen to his wife. Meaning, if there is a verse telling Abraham to listen to his wife, then it teaches us that men do not need to listen to their wives. In other words, every time there is a verse, it teaches the opposite of what is written there. And there is a certain tendency in yeshivot to think this way. For example, I’ll give you an example. Rabbi Yosef Engel—and this is then copied into the Talmudic Encyclopedia—says that there are three views about the principle that we do not derive punishments by logical inference. Why do we not derive punishments by logical inference? Right, you make an a fortiori inference; you learn B from A by an a fortiori argument. Now the question is whether you may punish for B with the punishment that exists for A. Will you impose on someone who violated B the punishment found for A? No. We do not derive punishments by logical inference. The question is: why not? So he says there are three views. One view: maybe there is a refutation of the a fortiori argument. How do you know? Second view: B is more severe than A. So maybe the punishment for A is not enough to punish B. B is more severe. Punishment is at least not necessarily the same; maybe the punishments are of different kinds and not only different degrees, not merely different intensities. Fine? And the third view is that it is learned from a verse: “whether the daughter of his father or the daughter of his mother.” So if it’s the daughter of his father or the daughter of his mother, then the daughter of both his father and mother would follow by a fortiori logic, teaching you that we do not derive punishments by logical inference. Why is that three views? I see only two here. Because you assume that if there is a verse, then obviously there is no rationale behind it, right? If there were a rationale, there would be no need for a verse. If there’s a verse, then it must be a mere textual decree. So if you give me two rationales and a verse, that makes three views. But that is of course nonsense. There are two views. The verse teaches us that we do not derive punishments by logical inference, and there are two explanations why not—the first two explanations. The third is a source. It is not a third view of why. Because it is not true that every verse is just an unexplained textual decree. There can also be reasoning behind verses. You’ll ask: then why are they written? If there is reasoning, why do I need the verse? Fine, about that I’ll speak on Tuesdays. But for our purposes here I want just to say the following. Sometimes the Talmud itself takes this route, that the verse teaches the opposite of what is written. You can find this in the Talmud too. What?

[Speaker L] Like where it says “your God”—you and not others.

[Rabbi Michael Abraham] Wow, okay. Except there maybe they are inferring it from “your God” specifically, I don’t know. But when there is a general rule without limiting language, there are still those who derive the opposite. I have examples of this; I wrote columns about it on my website. Maybe I’ll send them to you in the summary. So what’s the criterion? When yes and when no? I think the criterion is this: there are three possibilities, and here it is very important to look at the underlying reasoning of the principle we are trying to learn. What is the a priori reasoning before I saw the verse? There are three possibilities: either there is no reasoning at all, or there is reasoning but it is not strong enough, or there is reasoning that is strong enough that I would have used it even without the verse. Okay? Now if the reasoning is strong enough, and even without the verse I would have used it, then the question really is: why do I need the verse? If there is a rationale, why do I need the verse? And then there is room to say that the verse came in order to limit and say: no, no, this reasoning is not correct except here, and don’t apply it across the whole range of Jewish law. Precisely because the reasoning is strong, the verse comes to say no. Like two verses that teach the same thing—they do not establish a general rule. What does that mean, they do not establish a general rule? Because once you wrote the second one, it is superfluous; after all, you would have learned from the first one to the whole Torah. If the second was written, that means it comes to tell you that it applies only there and not throughout the Torah. Okay, only in both of them, that is, and not more generally. So here too, similarly. If it is a simple rationale that I would say even without the verse, then indeed the verse appears superfluous. So there is room to say—unless you find another reason why the verse came to innovate in a context where there was an initial assumption not to apply the general rationale. The verse comes to say: nevertheless, apply it here as well. But if there is nothing unique about the context the verse is speaking about, and the rationale is a strong one, then there would be room to say that the verse came to limit the rationale and say that you should say it only here and not everywhere else. Okay? Therefore, in the joke about the young scholar and his wife, the question is what their a priori reasoning was. His wife probably thought there was no reason that a husband should listen to his wife, but there is a verse, so it must be teaching a rule. But her husband says no, surely husbands do need to listen to their wives, so why do we need a verse? The verse comes to limit and say not so. Yes, in the spirit of a joke. In any case, for our purposes: the situation of strong reasoning means that the verse is actually teaching the opposite. In the case where there is no reasoning at all, there too there is room to hesitate, but even there I would say: you have only the novelty of the verse itself. The verse innovated it here, so only here. Who says to extend it further? There is no rationale in it at all. What happens when there is some rationale? And that is usually the case. Usually there is some rationale. What does “some rationale” mean? It means that without the verse it would not have been enough to say it, but once there is a verse I understand that this is the rationale. Fine? If that is the case, then the verse really is a paradigm. Because then the verse truly comes to teach, and after the verse taught it, I now understand that the rationale I might already have considered before is strong enough to rely on. And if so, then it becomes a general principle. For example, the Talmud in the chapter about the stubborn and rebellious son says: “a son” and not a daughter. The Talmud itself says this is a textual decree. The Jerusalem Talmud says so, and Rashi on the Babylonian Talmud also says it is a textual decree. The Meiri there says: “a son” and not a daughter, because a daughter is not accustomed to rob people. A stubborn and rebellious son is executed because in the future he will rob people. A daughter is not accustomed to rob people. Now the Meiri himself asks against himself: so why did they say this is a textual decree? After all, there is logic here. And the answer—if I understand him correctly, because the answer there is a bit unclear—I think what he means to say is that this reasoning is indeed correct, but without the verse I would not have said it. Why not? Look, there are lots of rationales I could suggest. Maybe people who were brought up with good education should also not be judged as stubborn and rebellious sons because they won’t end up robbing people in the future. I can raise all kinds of rationales. Is that strong enough to determine law in practice, that the law of the stubborn and rebellious son should not apply here? No. So what then? Well, here you have an interpretation that says “a son” and not a daughter, and the logic really does say there is a difference between sons and daughters. So apparently the interpretation comes to tell me that this rationale is a good rationale. So although they call it a textual decree, they call it a textual decree because without the verse I would not have used the rationale. But once the verse has already been said, that does not mean there is no rationale. What is the point that the interpretation itself

[Speaker I] is a rationale? That the textual decree itself is a rationale?

[Rabbi Michael Abraham] Why? That’s the reasoning. Why is it reasoning? It could be that this reasoning is what led us to expound “a son and not a daughter.” It could be, yes, it absolutely could be. Usually that’s how it works, by the way. Usually when you derive something, it’s based on reasoning. I’ll talk about that too on Tuesday; I hope I’ll get to all of it. In any case, what I really want to say is this: the concept of agency has a logic to it. As I said, every legal system uses agents, recognizes the concept of agency. There’s logic to it. But as I said before, if there weren’t a verse, I wouldn’t have said this on my own. So here, once you bring me the verse, I would derive from it a general rule. And therefore when the Talmud asks, “From where do we know agency?” and it asks about the institution of agency in general, not only agency in betrothal. Meaning, from its perspective, without a verse there would be no agency in the Torah at all. But once there is already a verse, then indeed that verse teaches for every place unless there is a refutation. And that’s the move of the Talmud that we saw. It brings a source from divorce, and from there they learn to betrothal. Wait a second, but there’s a refutation, and “she goes out and becomes.” And what about terumah? There’s a refutation. So there’s also a source in terumah, and then sacrificial offerings, and so on. But after we made the mutual-necessity argument among those three, we learn to the whole Torah that there is agency.

So on the one hand, it’s clear that you need a source, because without it there would be no concept of agency. On the other hand, once there is already a source, it’s clear that I don’t limit the concept of agency only to the context in which the source appears, but to every other place where there is no refutation that would block the derivation. Since there is a logic here in the concept of agency. True, in Jewish law, without reasoning, without a verse, reasoning alone is not enough to establish a legal institution. But once there is already a verse, then I load the reasoning onto it and say: fine, so apparently Jewish law recognizes this reasoning of agency, and therefore there is agency in the Torah. That seems to me to be what emerges from the straightforward reading of the passage.

More than that: it’s clear that even after we have a source from a verse, we can start discussing, based on reasoning, how the mechanism of agency works—all the conceptual investigations: extended hand, power of attorney; agency over authority, agency over an act; we’ll still see more distinctions. All these things are founded on reasoning. And this whole derivation of “and he sends” and “and she sends”—he appoints an agent, she appoints an agent, the agent appoints an agent—all that is not written in the Torah. We decided to include the husband’s agent, the woman’s agent, and an agent who appoints another agent. Why specifically those three? Why not include that even a dove can be an agent, and a table can be an agent, and a person can be an agent? Because obviously there is some reasoning to say that these are three types of agency that need three different sources, but in all three there is reasoning, and if the source says so then apparently that’s what it means.

So even when we have a source, certainly when the source comes from an exposition—sorry, from a midrashic derivation—then behind it sits a reasoning. Yes, it says, “You shall fear the Lord your God”—in tractate Pesachim, right?—to include Torah scholars. Why not include clouds? “You shall fear the Lord your God”—to include clouds. “Et” comes to include. How do you determine what it includes? By reasoning, right? What is the least implausible? Torah scholars—that’s the closest thing to the Holy One, blessed be He, out of what I can think of. So the “et” comes to include, but the “et” doesn’t tell me what to include. What to include—that I extract by reasoning. Therefore reasoning is always involved in expositions, always. In expositions—again, I don’t know if always, but almost always. Sometimes when something clearly emerges from the exposition itself, what should be included, maybe then you can include without reasoning. But whenever there are multiple options for what to include, then you have to choose among them, and that choice is made by reasoning.

Therefore, for example, in laws learned from expositions, the rule “we do not expound the rationale of the verse” does not exist. “We do not expound the rationale of the verse” applies to laws written explicitly in the Torah, where we do not shape them according to purposive considerations, according to the rationale of the verse. But in laws that emerge from expositions, obviously that rule does not exist. We shape them according to reasoning, because even the expositor himself derived that law on the basis of reasoning. How did he decide that “et” comes to include Torah scholars? Because reasoning says that it comes to include Torah scholars—or at least more than it includes other things. Okay.

So the Talmud says—brings the source for agency in divorce: as it was taught, “and he sends” teaches that he appoints an agent; “and she is sent” teaches that she appoints an agent; “and he sends” / “and she is sent” teaches that an agent appoints another agent. What’s not entirely clear is: what are these three things? After all, what’s written in the verse is “and she is sent.” Only one word is written in the verse. There aren’t three words in the verse—”and she is sent,” right? We have to derive from that word three laws: the husband appoints an agent, the woman appoints an agent, and the agent appoints an agent. Right? So what is this?

First of all, you have to remember that in the plain meaning of the verse, it’s not talking about sending the bill of divorce; it’s talking about sending the woman. Remember I talked about the verse? “And he sends her out of his house.” “And he sends her out of his house” means with the pronoun suffix. What does “and he sends her out of his house” mean? Whom is he sending? The woman, not the bill of divorce. What does that have to do with agency in divorce? It’s obvious that this is, first of all, a derivation; it’s not the plain meaning of the verse. The plain meaning of the verse isn’t dealing with this at all. The plain meaning of the verse, as I explained earlier, basically says that he must send her out of his house. What do you mean, must? “And he sends her out of his house”—that’s what he wants to do. You only need to tell him that before he sends her away, he has to give her a bill of divorce. So why do you need to write, “and he sends her out of his house”? “And he sends her out of his house” is obvious—that’s what he wants to do. You only need to tell him that before he sends her away, he must give her a bill of divorce.

This reminds me of something else. Once I wrote a sharp article about conversion. I said that acceptance of the commandments is obviously a necessary condition for conversion, and without it the conversion does not take effect, and therefore there are problems with the conversions done by the state conversion system. There were arguments about that. That doesn’t mean that everyone there is wicked, like that fellow wrote there, and therefore the conversion is void because the judges are wicked. No, that’s absurd. But I did agree that the conversion there is not serious, meaning there is no acceptance of commandments there, and therefore in my opinion they really are not converts. The judges who sat on the court said yes, and so fine, they are the judges—but if I had been sitting on the court, I would have left him a gentile. What?

[Speaker F] If the religious court rules that way, then he agrees to it?

[Rabbi Michael Abraham] I think so, because that’s a legal decision. You can’t—yes. So I really think, though, that it’s very problematic. I called it violence and good intentions. Meaning, they are committing a violent act out of good intentions, because they are basically forcing everyone to recognize these people as Jews, even though in practice they are not really Jews. In any case, never mind.

So they asked me: wait a second, but in the Shulchan Arukh acceptance of commandments doesn’t appear. Circumcision appears, immersion appears, and offering the sacrifice. The sacrifice doesn’t appear because it’s not relevant nowadays, and the Talmud says that the sacrifice is not indispensable. But circumcision and immersion do appear, and it says, “we inform him of some commandments.” “We inform him of some commandments” is not acceptance of commandments; in the conversion process you teach him some commandments. Where is acceptance of commandments? It’s not written.

I said: the fact that it’s not written—that’s obvious, that it doesn’t need to be written. Why? Because to convert means to accept the commandments. That is what the word “to convert” means. Now, someone who wants to convert—that is, to accept the commandments—how do you do that? Circumcision, immersion, and the sacrifice. Someone who does not accept the commandments simply does not want to convert. The Shulchan Arukh also doesn’t write in the laws of acquisitions that you have to intend to acquire. Even though if you didn’t intend to acquire, then you didn’t acquire—so why doesn’t it write that? Because someone who doesn’t intend to acquire doesn’t want to acquire, so why do I need to write that for him? It’s obvious.

The Shulchan Arukh speaks about someone who wants to acquire—how do you carry that out? Taking possession, a document, whatever, in various ways. Someone who wants to acquire—these are the ways; this is how you acquire things. Someone who wants to convert—that is, to accept the commandments—does it by circumcision, immersion, and the sacrifice. Someone who does not want to accept the commandments simply does not want to convert. Why should the Shulchan Arukh write anything? Someone who doesn’t want to convert, good health to him—he isn’t obligated to convert, everything’s fine. Why should the Shulchan Arukh have to write that if you don’t want to accept the commandments, you are not a convert? If you don’t want to be a convert, then you’re not a convert. That’s true. But why does that need to be written? Meaning, the fact that it’s not written in the Shulchan Arukh is דווקא because it is too fundamental, not because it is secondary, but because that is the very essence of conversion.

Why is that the essence of conversion? Because our nation is a nation only through its Torahs. And to join the Jewish people means to join the community of those who observe the commandments, those obligated in the commandments. But is there not a Jew who doesn’t observe the commandments?

[Speaker D] He’s a Jew—what does that have to do with it?

[Rabbi Michael Abraham] But he is obligated in the commandments. To accept the commandments means not to observe them? He can convert, and he may not observe any of the commandments after he converts, and he is still a valid convert—if he intended to accept upon himself the obligation, and afterward his evil inclination causes him not to observe anything. Obviously. Because he’s a Jew because he was born to a Jewish mother, but the convert is a gentile; he wants to become a Jew. In order to become a Jew he has to accept the commandments. I don’t understand. Maybe I claim not; there are people who really speak in terms of joining a nationality or something like that. I think not, but I’m trying to show the idea. Meaning, there are certain things that are so fundamental that they don’t need to be said.

So therefore, “and he sends her out of his house”—why is that written in the verse? Maybe that itself is the reason why they expound it. Because “and he sends her out of his house” really is superfluous regarding the woman. So then they learn from it agency concerning the bill of divorce—receipt, delivery, whatever, an agent who appoints another agent. It’s an extra expression. Now of course, if it’s extra, that only makes it stronger, because if so, why specifically this? Maybe “and he sends her out of his house” means that he has to send her by mail—the woman. You derive some additional law about sending away the woman. Meaning, you say it’s superfluous, so if it is not needed for its own matter, then it teaches something else. What is that “something else”? How do I decide what that something else is? By reasoning. What’s the reasoning? That the concept of agency is sensible, and if they used the expression “and he sends,” apparently they came to teach that one may appoint agents in divorce.

Even though here it is talking about sending away the woman—so if it is not needed for its own matter, then we break it apart. So there is “he sends” and “she is sent,” with the final letter. So there are these three laws: “he sends” teaches that he appoints an agent; “she is sent,” that final letter, teaches that she appoints an agent; and “he sends” / “she is sent” teaches that an agent appoints another agent. What does “he sends” / “she is sent” mean? There are disputes among the medieval authorities (Rishonim) here. Since after all it is written twice in the section, some want to learn it from the duplication. And then of course you can open it up again: there is the first “he sends / she is sent” and the second “he sends / she is sent.” You could learn four laws from here. Maybe one is for its own direct meaning.

The Tosafot HaRosh brings here in the name of Rabbeinu Chananel: “he sends” / “she is sent” teaches that an agent appoints another agent. Rashi explained that two instances of “she is sent” are written. But “he sends” / “she is sent” is because of the second “and he sends her,” what I said earlier. And this is difficult for his explanation, because one “she is sent” we expound in the chapter of the deaf-mute: one who sends her away and she does not return—this excludes one whom he sends away and she returns. A minor girl or an incompetent woman who does not understand the very concept of divorce cannot be divorced. And they learn this from “and he sends her,” because if he sends her away and she doesn’t return home, she understands that she is divorced, and then he can divorce her. And if not, then she is not divorced. So if that’s the case, one of the words is already taken. So only one word remains from which to learn the three laws. And that is unlike Rashi.

And one can say that there they derive it from the extra final letter. And this is how the text is read here: “he sends” teaches that he appoints an agent; “she is sent” teaches that she appoints an agent; and “she is sent”—the extra letter—teaches that an agent appoints another agent. And he derives everything from one single “she is sent.” Fine? You see that everybody—meaning, first of all, you had three laws, and then you look for which three extra features there are in order to derive the three laws. Those three laws presumably emerge from reasoning. There was some reasoning here that we need to include agency, right? That’s obvious. This isn’t some arbitrary scriptural decree. And still, without a source it wouldn’t exist. Everything I said earlier. Meaning, there is reasoning here, but without the source it wouldn’t be there.

Now, I’m not going to get into all the details right now; look at it later in the summary. Why do you really need a separate derivation for an agent for receipt, for an agent for delivery, and for an agent who appoints another agent? Why do you really need three separate derivations? I said that if these are different types of agency, then there’s no need to make a mutual-necessity argument. I wouldn’t learn one from the other. Mutual necessity, or deriving one from the other, is when the same type of agency exists in various different contexts. But if these are different types of agency, then no mutual necessity is needed. You need three sources even if none of them differs from the others. So what really are these three things?

We already saw in the previous lesson that the husband’s agent is agency over authority. The woman’s agent is agency over an act. Right? Because the woman herself has no authority at all, certainly in divorce. Right? The woman can be divorced even against her will. She has no authority at all. She cannot empower the agent to act on her behalf. She herself has no authority, so what can she empower the agent with? This is agency over an act: that the act of giving the bill of divorce into the hand of the agent is considered as though it was given into the hand of the woman. That’s all. There isn’t really any kind of appointment or transfer of authority here. It’s agency over an act. So much so that one might say, were it not for the verse, I would have thought that you don’t need agency at all. Not that agency is ineffective—I would think it isn’t needed at all. It’s just monkey-work. What difference does it make what I handed it to? I’m giving it against the woman’s will anyway.

So indeed among the medieval authorities (Rishonim) there are possibilities in both directions. Look, for example, at Tosafot HaRosh: “and she is sent” teaches that she appoints an agent. And if you say: why do we need two verses, one for the husband’s agency and one for the woman’s agency? He’s not talking about an agent appointing another agent; why another verse is needed there—that we’ll still see later. And one can say that I would have thought that only in the case of the husband does agency apply, since he only divorces with his own consent. But a woman, who is divorced even against her will, her act is not substantial enough that she should be able to appoint an agent in her place.

What is he saying? What would I have thought if there were no source for the woman’s agent? That she can’t appoint an agent at all, right? Why? But on the contrary—this act is so minimal, it’s just monkey-work—maybe she doesn’t need an agent at all? He says no. You need an agent, and she still cannot appoint one. Why not? So he says because her act is not substantial enough. What does that mean? There is a Talmudic passage in tractate Ketubot 74. The Talmud there discusses chalitzah—agency in chalitzah? Sorry, conditions in chalitzah. And the Talmud says there that one cannot make a condition in chalitzah because chalitzah cannot be done by an agent. And whatever is not subject to agency is not subject to conditions. That’s what the Talmud says.

Tosafot asks: and if you say, what reasoning is there here? For we learn from there only with regard to something that makes sense. “From there” means from the condition of the tribes of Gad and Reuven. We learn the laws of conditions only in something that makes sense—connected to what I said earlier. Even when they learn from a verse, it’s only something that makes sense. The fact that it’s learned from a verse doesn’t mean there is no reasoning. Only something that has reasoning is learned from the verse. Because we don’t learn from there that a condition is effective only in the transfer of land. After all, there they dealt only with land transfer, in the condition of Gad and Reuven. So why don’t we learn that conditions apply only to transfers of land? Because there’s no logic in that. What difference does it make whether it’s land transfer or something else? Any legal transaction—if it can be made conditional, then it can be made conditional. Right? We learn from there only things that have reasoning behind them.

So this too, that only something subject to agency is subject to conditions—that also is learned from the condition of Gad and Reuven. Why? What reasoning is there in this? Tosafot says: the reason is that since the act is so fully in his control that he can carry it out through an agent, it makes sense that it should likewise be in his control to make it conditional. But chalitzah, which is not in his control to carry out through an agent, is likewise not in his control to attach conditions to it, so that even if the condition is not fulfilled, the act would remain valid. And that is why it makes sense. As for the matters on which Rabbi Meir depends and not the Rabbis, with respect to that there is not such strong reasoning to learn from there, and therefore they disagree with him.

What is Tosafot saying? He says this: why is it that only something that can be done through an agent can be made conditional? Because something that can be done through an agent means that you are basically the absolute owner of the authority. It’s all in your hands. You can appoint an agent, you can transfer the authority to the agent—you are the master of it. If you are the master, you can also set conditions. I decide what to do and not to do, under what conditions. Meaning, the possibility of doing something through an agent is an indication that you are the master over the thing. You possess the authority, so you can also empower someone else. Right? And in a place where you are not the possessor of the authority, like chalitzah, you cannot act through an agent. Why can’t you act through an agent? Because it isn’t in your control. Meaning, you are not the master over this act, you cannot appoint an agent to do it for you, so you also cannot make conditions on it. Because if you are not the master, you also cannot impose conditions.

And from this Tosafot says there are things about which there is a dispute in the laws of conditions: a doubled condition, or a condition and act in the same matter—that is a dispute between Rabbi Meir and the Rabbis. Even though it is learned from the condition of Gad and Reuven, because there the reasoning is weaker. But the rule that whatever is subject to agency is subject to conditions is not really learned from Gad and Reuven at all—it is simple reasoning. And therefore no one disputes it; according to everyone that is so. Fine?

So basically what he’s saying is that in order for me to be able to appoint an agent for something, I have to be the sole master over it. And that is the reasoning we saw above in Tosafot HaRosh. Why with the woman’s agent would I think she can’t appoint an agent? Because her act is not substantial enough. After all, nothing depends on her; she is divorced against her will. She is not the master of this act in any way. So if she has no power to do anything, then what authority can she transfer to an agent? And one could have said the opposite: since she does nothing, this is such a minimal act, then what is the problem with doing it through an agent? It’s simple. Something that requires your act—there you need a novelty to say that an agent can do it in your place. But something that is just there, not really an act at all—maybe there it is obvious that an agent can do it. So he goes in the opposite direction. He says no: because you don’t have ownership over the act, control over the act, therefore you cannot appoint an agent. And the woman has no control over the divorce at all. The husband can divorce her against her will. So I would have thought that she cannot appoint an agent.

Why can the husband appoint an agent in the first “and he sends”? Because he has ownership over the matter. Why does he have ownership over the matter? Because he can decide whether to divorce or not divorce; he has the authority, so he can also empower an agent. Meaning, the husband’s agent is an agent of empowerment. And one who has the authority can also empower. But if I were to learn from the husband to the woman, then I would learn that the woman’s agency is also agency of empowerment, because that’s the husband’s agency. The husband’s divorce is empowerment. So I want to learn agency from the husband to the woman—what would I say? I would say that the woman’s agent is an empowered agent, but the woman has no authority. What authority can she empower him with? She can’t—everything is done against her will. Therefore, from the husband’s agent one cannot learn the woman’s agent.

So what does the second verse say, teaching that there is an agent for the woman? That there is a kind of agency that is not empowerment—agency over an act. Not agency over authority, agency over an act. And that is a big novelty, because after all when I give the bill of divorce to the woman, I have to give it into her hand. If I don’t give it into her hand, it’s not a valid bill of divorce. Even though nothing depends on her, not her consent, nothing. But still the woman has a role here: she has to receive the bill of divorce. The great novelty is that she can appoint an agent for receipt, whose hand will be considered like her hand. And when I place the bill of divorce in the hand of the agent, it is as though I placed it in the hand of the woman. That is an entirely different concept of agency. And because of that, an additional source is required. The concept of agency that exists for the husband, a concept of empowerment—you cannot learn that regarding a woman, because she has no authority. So there is another concept of agency, and therefore another source is needed, and that is agency over an act.

So there you have a demonstration that there are two sources, and one cannot be learned from the other—not because of some external difference, but because it is a different type of agency. The type of agency that exists with the husband is not relevant to the woman. Not that it can’t be learned as applied to the woman; if it could be learned, it still wouldn’t be relevant. There is no such thing as agency of empowerment where she has no authority. What is she empowering? She has no authority. It is an entirely different concept of agency. This is a kind of extended hand, or agency over an act—yes, the terminology shifts a bit—where when the bill of divorce is placed in the hand of the agent, it is as if the bill of divorce was placed in the hand of the woman. Tosafot also says similar things; I won’t go into that now, the differences are subtle.

The Avnei Miluim indeed discusses this there—what?—the agent. An agent over an act. It is still an agent in Jewish law. Say that a gentile can’t—can’t do this. Meaning, it still belongs to the concepts of agency. The Avnei Miluim, for example, writes the same thing about betrothal. Again, I’m doing this from memory and briefly, because I don’t want to go back over that lesson all over again, so we’re doing it briefly now; we don’t have many meetings, and I want to cover as much as possible.

The Avnei Miluim writes in several places that the woman’s part in betrothal is basically passive. We know that, right? The husband places the ring on her; she is passive. Even though substantively, as I discussed in the first or second lesson—I don’t remember which—I said that in betrothal the symmetry is actually complete. There is no problem of inequality in the substantive sense, because it depends on the woman’s will; if she doesn’t want it, she is not betrothed. Meaning, it’s not that the husband can force her to become betrothed. In divorce there is an asymmetry; in betrothal there is no asymmetry. But in the act of betrothal there is an asymmetry. The act of betrothal is performed on the husband’s side. The woman does not take part in the act of betrothal. He puts the ring on her and that’s it. Okay?

So the Avnei Miluim says: earlier I was talking about divorce, sorry, and in divorce the husband does something while the woman does absolutely nothing. Not only is she passive—nothing, she does nothing at all. It just has to be placed with her, that’s all. It’s only a condition on what the husband has to do. It isn’t anything on the woman’s side at all. In betrothal she takes a passive part. Fine? But it’s clear that it also depends on her—that is symmetric, because without her consent there is no betrothal. But he says a distinction similar to the one we saw in divorce applies also in betrothal. The husband has to do an act; the woman does not need to do an act, she is passive. Still, there is a difference between the types of agency. The husband’s delivery agent is an agent to perform an action, because the husband has to perform an action. The woman’s agent—the woman herself has to consent, right? Once she has consented, she doesn’t need to send an agent to consent on her behalf. We need to hear from her that she consents—that’s enough. The role of the agent is not to consent on her behalf; the role is to receive the ring on her behalf. Not to consent—receive the ring. That resembles divorce. The consenting was already done by the woman herself. Receiving the ring is just a passive matter, like in divorce. So the receipt agent in betrothal is like the receipt agent in divorce. And therefore, he says, this is really agency over an act and not agency over authority. This is one of the early sources for that distinction between agency over an act and agency over authority, in the Avnei Miluim.

Maybe one last comment I want to make: this actually teaches us that when we say, “a person’s agent is like himself,” that is not identity. It’s not that whatever I can do, my agent can also do. Each matter has its own rules. It’s clear that this is not really full identity. Even an agent who is properly defined, and already counts as “a person’s agent is like himself,” and is an extended hand and empowerment—both, whatever you want—it still is not literally the principal’s act on the physical level. We talked about commandments; I already mentioned this, right? An agent who sits in the sukkah for me, or puts on phylacteries for me. He can’t do that. Why not? “A person’s agent is like himself.” “A person’s agent is like himself” is halakhic, but physically I need to sit in the sukkah, and I didn’t sit. Or physically I need to put on phylacteries, and I didn’t put them on. So “a person’s agent is like himself” is still a legal statement, not a physical statement.

There is empowerment, there is extended hand, everything is fine. So it is considered as though it was given into the woman’s hand when she appointed him as an agent. But it was not actually physically given into the woman’s hand. And therefore there was room to think that this really would not help, because it needs to be given physically into the woman’s hand. The Torah innovates: no, the concept of agency can cover even that. There are things for which the concept of agency really will not help even after it was established, even after “a person’s agent is like himself.” An agent cannot sit in the sukkah for me; an agent cannot put on phylacteries for me. Because “a person’s agent is like himself” is not really meant in the physical sense.

And this is in tractate Bava Metzia 96—we may get to it later, but I’ll just note it here and finish with this. Ravina said to Rav Ashi: if one says to his agent, “Go and be borrowed together with my cow”—right? Borrowing with the owner present. If you are borrowed out together with the cow, that is borrowing with the owner present, and if something happens to the cow, the borrower is exempt. Fine? Because that is borrowing with the owner present. What if I send someone to be borrowed out together with my cow? My agent. I myself am not borrowed out with my cow; I send someone else. Does “a person’s agent is like himself” apply? The Talmud says: what is the law? Do we require the owner literally, and that is absent? Or perhaps “a person’s agent is like himself,” and it is present?

Does anyone dispute that a person’s agent is like himself? Have we found anywhere in the Talmud anyone alive who disputes the rule that a person’s agent is like himself? Yes? I don’t know of any. The question is whether “a person’s agent is like himself” reaches literal physical identity. Meaning, is it as though you yourself were borrowed out, or not? Legally, a person’s agent is like himself—it counts as your act. But it may be that here what is required is that you yourself literally be borrowed out together with the cow, so an agent won’t help. Like sitting in the sukkah, like putting on phylacteries. Okay? Therefore there is a side here that says a person’s agent will not be like himself. We see that this is not complete identity.

Likewise later in the Talmud, the Talmud says: as it was taught regarding annulment of vows, if one says to a guardian, “Any vows that my wife makes from now until I return from such-and-such a place, annul them for her,” and he annulled them for her—might it be that they are annulled? Scripture says: “Her husband may uphold it and her husband may annul it”—the words of Rabbi Yoshiyah. Only the husband; he cannot send an agent to annul on behalf of his wife. Rabbi Yonatan says: we find everywhere that a person’s agent is like himself. Again the same thing. There is an opinion that even though a person’s agent is like himself—and nobody disputes that a person’s agent is like himself—there are things that an agent cannot do on my behalf. Those things that I myself have to do. And the claim is that annulment of vows, according to one of the opinions, the husband himself must annul; it does not help through an agent. And the same with borrowing with the owner present, and the same with fulfillment of commandments, as I said before.

And after the woman’s agent was introduced, there was even more room to say: fine, this already is real identity. How can giving to the hand of the agent count as giving to the hand of the woman? This isn’t even empowerment; it’s not that he performed a legal act on my behalf. It is considered physically as though you gave it into the woman’s hand, so this is really extended hand in the literal, physical sense. No, still not. Even though there is a woman’s agent who is as if physical, there are things for which agency still will not help. We will not say “a person’s agent is like himself.” Fine, let’s stop here.

[Speaker M] And someone who gives his wife a divorce in civil court? Not in a religious court—in civil court. And? He really regards that as a divorce.

[Rabbi Michael Abraham] So if they—the question is about someone who divorces her in civil court—if they continue living together as a married couple, then they have a Noahide form of marriage. In betrothal? Yes. The passage about those who were seen together in one inn.