Kiddushin, Chapter 2, 5783, Lesson 4
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Opening the topic: “A man betroths by himself and through his agent”
- The distinction between the validity of the act and the level of the commandment
- There are those who say: a prohibition in betrothal without seeing her, and its uniqueness
- Preference versus prohibition, and the model of positive commandment and prohibition
- Temptation versus extortion as a model for the normative “zero state”
- Reconciling the formulations in the Mishnah: the man and the woman
- The meaning of “Better to sit as two than to sit widowed,” and the scope of the claim about a woman’s will
- Mistaken transaction, “with this in mind,” and the presumption of “better to sit as two” in Talmudic contexts and religious courts
- Maimonides’ approach: a commandment to do it oneself, and a prohibition without seeing her
- The betrothal of a minor girl: the Talmud, Tosafot, and the social rationale
- The rulings of the Shulchan Arukh and later authorities: commandment, prohibition, and the distinction between man and woman
- Conclusion and direction for what follows
Summary
General Overview
The chapter opens by addressing the sources for the laws of agency through the Mishnah, “A man betroths by himself and through his agent,” and it becomes clear that the main novelty is not in the validity of the betrothal but on the value plane of “it is a greater commandment to do it oneself than through one’s agent.” The Talmud presents two directions: a general direction of preference for performing a commandment oneself because of reward and effort, and an additional direction of a specific prohibition in betrothal not to betroth a woman until he sees her, lest she become repulsive to him, based on “Love your neighbor as yourself.” The distinction between preference and prohibition is also used to explain the difference between a positive commandment and a prohibition, with the claim that a positive commandment aims at a positive state, whereas a prohibition aims at avoiding a negative state, with examples from Jewish law and jurisprudence. Later, the discussion turns to “Better to sit as two than to sit widowed,” a father betrothing his minor daughter, the approaches of Maimonides, Tosafot, and the Shulchan Arukh, and the tension between a general presumption about a woman’s desire for marriage and the possibility of claims of mistaken transaction and annulment of betrothal in extreme cases.
Opening the topic: “A man betroths by himself and through his agent”
The Mishnah states that a man betroths by himself and through his agent, a woman becomes betrothed by herself and through her agent, and a father betroths his daughter when she is a young maiden by himself and through his agent. The Talmud asks: “Now if he can betroth through his agent, is it necessary to say by himself?” and assumes that in terms of the validity of the result, if an agent works then certainly the person himself works. Rav Yosef explains that the Mishnah teaches that “it is a greater commandment to do it oneself than through one’s agent,” and the Talmud brings examples from preparations for the Sabbath: Rav Safra would singe the head, and Rava would salt the shibuta fish.
The distinction between the validity of the act and the level of the commandment
This explanation sets up two separate planes of discussion: the validity of the betrothal versus the quality of fulfilling the commandment. The claim is that there is no “more betrothal” or “less betrothal” on the level of legal effect; rather, at most there is a preference for personal performance from the standpoint of commandment and reward. Rashi explains that the preference is in the reward: “For when one’s own body is engaged in the commandment, he receives more reward,” and it is suggested that one could also have understood the preference as a higher-quality fulfillment of the commandment itself, and not only “according to the effort is the reward.” An analogy is brought from the Talmudic topic of rabbinic invalidities in a bill of divorce, in the name of Birkat Shmuel, to explain how “invalid” can mean a deviation from the optimal way of performing the commandment even when the basic legal effect still takes place.
There are those who say: a prohibition in betrothal without seeing her, and its uniqueness
In another version it says, “There is also a prohibition in this,” and in the name of Rav Yehuda said in the name of Rav it is established that a man is forbidden to betroth a woman until he sees her, lest he see something unattractive in her and she become repulsive to him, and “the Merciful One said: Love your neighbor as yourself.” It is argued that the first version relies on a general principle in commandments having to do with reward and effort, whereas the second version relies on a unique rationale specific to betrothal, one dependent on compatibility and personal taste. It is said that the second version appears to be an addition rather than a fundamental dispute, but the question becomes sharper: how does it explain the wording of the Mishnah, “by himself and through his agent,” if there is a prohibition in acting through an agent?
Preference versus prohibition, and the model of positive commandment and prohibition
A question is raised: what is the essential difference between saying “it is preferable” and saying “it is prohibited”? From there the discussion broadens to the difference between positive commandments and prohibitions. The claim is that these are not just two equivalent formulations; rather, a positive commandment is a demand for a positive state, whereas a prohibition is avoidance of a negative state. This explains familiar halakhic differences such as reward and punishment, the scope of required monetary expenditure, and principles like a positive commandment overriding a prohibition. Examples are brought that challenge the identification of positive commandment with action and prohibition with abstention, such as resting on the Sabbath as a positive commandment fulfilled by passive omission, and “Do not stand idly by your neighbor’s blood” as a prohibition that requires positive action. Logical and linguistic illustrations are also brought (“wanting not” versus “not wanting”), the case of a parapet (an existing state versus an act), and twilight as an example for the distinction between a law that requires night and a law that merely excludes day.
Temptation versus extortion as a model for the normative “zero state”
In the name of Robert Nozick, the difference is brought between temptation (“If you do this, I’ll give you”) and extortion (“If you don’t do this, I’ll take from you”), and it is said that the difference depends on an objective baseline state—the “zero state”—from which an addition is positive and an injury is negative. This model is used to explain why prohibition and positive commandment are not just alternative formulations, but point to different normative levels. From this it is explained that the expression “prohibition” with regard to betrothal through an agent is not merely “less preferable,” but belongs to a negative state relative to the baseline.
Reconciling the formulations in the Mishnah: the man and the woman
The Talmud applies Rav Yosef’s statement to the latter clause, “A woman becomes betrothed by herself and through her agent,” and again asks: “Now if through her agent she becomes betrothed, is it necessary to say by herself?” It explains: “It is a greater commandment for her by herself than through her agent,” with the same examples from preparation for the Sabbath. The Talmud adds that “there is no prohibition in this case,” because “Better to sit as two than to sit widowed,” and therefore the concern of disgust leading to prohibition does not apply to the woman in the same way. It is argued that in this formulation both the general principle that it is a greater commandment to do it oneself than through one’s agent and the unique prohibition for the man are accepted, and the central question becomes how to understand the opening clause, “A man betroths by himself and through his agent,” if there truly is a prohibition against betrothing without seeing her.
The meaning of “Better to sit as two,” and the scope of the claim about a woman’s will
A reservation is raised against understanding “better to sit as two” to mean that a woman “doesn’t care” who the husband is, and an alternative reading is proposed: even if she is disappointed, she still would not want to break up the marriage. It is suggested that the prohibition for the man is connected to concern for the breakup of the household, whereas for the woman that same concern does not exist to the same degree, or perhaps the divorce itself is the focal point of the severity. The possibility is also examined that something unattractive might lead to claims of “with this in mind” or mistaken transaction, and it is said that while people usually assume there is no room for this in betrothal, in principle there is room to discuss it.
Mistaken transaction, “with this in mind,” and the presumption of “better to sit as two” in Talmudic contexts and religious courts
The Talmudic passage in Bava Kamma 110a is brought, concerning a woman who falls to levirate marriage before a man afflicted with boils, where the Talmud rejects the possibility of annulling the original betrothal through a claim of “with this in mind” because of “better to sit as two.” The argument is that the Talmud itself shows that in principle there is room for such a claim in betrothal, except that this presumption decides the matter; and therefore, if this is an assessment of reality, one can ask whether it still fits our times. A practical case is brought of a young couple in which the husband disappeared immediately after the wedding and it emerged that he was living with another woman in the United States, and it is said that in one particular religious court panel it was ruled that the betrothal was void because the woman “did not receive the ‘two,’” whereas in another system priority was given to obtaining a bill of divorce through financial incentives. It is argued that the possibility of stipulation exists for the woman too, and a difficulty of evidence is discussed when a woman argues after the fact against a general presumption.
Maimonides’ approach: a commandment to do it oneself, and a prohibition without seeing her
Maimonides rules that it is a commandment for a man to betroth by himself rather than through his agent, and likewise it is a commandment for a woman to become betrothed by herself rather than through her agent. Maimonides adds that it is not proper to betroth a woman until one sees her, “lest she not find favor in his eyes and he end up divorcing her,” and also brings the rabbinic commandment not to betroth one’s daughter when she is a minor until she grows up and says, “I want so-and-so.” It is also brought from the laws of forbidden sexual relations that one may look at the face of an unmarried woman and examine her so that he may see whether she is attractive in his eyes.
The betrothal of a minor girl: the Talmud, Tosafot, and the social rationale
The Talmud infers: “When she is a young maiden, yes; when she is a minor, no,” and this supports the statement, “A man is forbidden to betroth his daughter when she is a minor until she grows up and says, ‘I want so-and-so.’” Tosafot ask why there is a prohibition in the case of a minor girl, even though earlier it was said that for a woman “there is no prohibition” because of “better to sit as two.” They answer that “better to sit as two” was said about an adult woman, who consents on her own, but in the case of a minor girl who is being betrothed by her father there is concern that had she been an adult she would not have agreed. Tosafot add a practical reason for the custom of betrothing minor girls: “For every day the exile grows stronger upon us,” and if the father has the means to provide a dowry now, he fears that later he may no longer be able to do so.
The rulings of the Shulchan Arukh and later authorities: commandment, prohibition, and the distinction between man and woman
The Shulchan Arukh rules that a woman can appoint an agent to receive her betrothal and that “it is a commandment that she become betrothed by herself if she can,” and that “there is no prohibition, as there is with a man.” Regarding the man, it is ruled that he may appoint an agent, but “if he can betroth her himself, it is forbidden to betroth her through the agent unless he knows her,” and in any case, even if he knows her, “it is a commandment that he betroth her himself if possible.” Regarding the betrothal of a minor girl, it is ruled: “It is a commandment that he not betroth his daughter when she is a minor until she grows up and says, ‘I want so-and-so,’” and the question is discussed whether the language of “commandment” here means preference or prohibition. Chelkat Mechokek explains that it means preference and sets up an interpretation of “Go out and receive your betrothal” in order to limit the prohibition, while Beit Shmuel rejects that interpretation, suggests that the law does not follow Rav regarding the prohibition because of incidents in the Talmud, and formulates it as a commandment “to satisfy Rav’s view.”
Conclusion and direction for what follows
At the end it is said that the discussion of “it is a greater commandment to do it oneself than through one’s agent” still needs to be completed in the next lecture, and preparation is suggested through study of HaMakneh and the Ran on the Rif, and the continuation of the Talmudic passages in the chapter.
Full Transcript
[Rabbi Michael Abraham] We’re starting the chapter with the first topic. At the beginning, the first pages of the chapter deal with the laws of agency, the sources—not so much the laws of agency themselves as the sources for agency. And at the start, the first passage talks about something that ostensibly relates to agency, but on closer look apparently doesn’t: it is a greater commandment to do it oneself than through one’s agent. When we perform some commandment, then we should do it ourselves, or it’s preferable to do it ourselves rather than have it done by an agent. It starts with the Mishnah: A man betroths by himself and through his agent.
[Speaker B] Yes, I’m sharing the screen here. We can see that the device here isn’t… yes, yes. I turned it on before, just a second. One moment.
[Speaker C] One. It’s still asleep.
[Rabbi Michael Abraham] Okay, so: a man betroths by himself and through his agent, a woman becomes betrothed by herself and through her agent, a man betroths his daughter when she is a young maiden by himself and through his agent. There are three laws here: the betrothal done by the man himself, betrothal accepted by the woman, and the father’s betrothal of his daughter, his daughter being a young maiden in this case. In each of these cases it says that the betrothal can be done by himself and through his agent. Okay? Both he and his agent can betroth the woman. So the Talmud says: Now if he can betroth through his agent, is it necessary to say by himself? Meaning, if he can betroth through an agent, do we need to say that he can also betroth on his own? Rav Yosef said: It is a greater commandment to do it oneself than through one’s agent, like Rav Safra singeing the head, and Rava salting the shibuta fish. The Talmud asks: there was no need to say that he betroths by himself if he can betroth through his agent; rather, this comes to teach us that there is a greater commandment to do it oneself than through an agent. Both work, but the commandment is greater when done by oneself than through one’s agent. And the examples they bring are preparations for the Sabbath—singeing the head, yes, preparing the fish, and Rava salting the shibuta. So those preparations for the Sabbath, those Amoraim did themselves, and therefore the Talmud says we see that a commandment should be done by the person himself more than through his agent, or is preferably done by himself rather than through his agent. Let’s try for a moment to think about this.
[Speaker C] Is there a commandment to do the betrothal oneself?
[Rabbi Michael Abraham] We’ll get to that in a moment. Ostensibly that’s a dispute between Maimonides and the Rosh, but in a minute. Is there a commandment to prepare for the Sabbath? Before you even get to betrothal. The honor of the Sabbath. The commandment of honoring the Sabbath, delighting in the Sabbath—we’ll see in a moment. So there’s agency here, meaning you appoint your cook or whatever to salt the fish, so basically you need to appoint her as your agent. That’s the assumption; it sounds a little strange. Fine, I’ll get to that. In any case, let’s try for a moment—come, let’s think about this Talmudic passage. What does it mean: Now if he can betroth through his agent, is it necessary to say by himself? It’s as if it was obvious to the Talmud that betrothing by oneself is stronger, or more effective, more authoritative, than betrothing through one’s agent. Right? That was obvious even before the novelty of the Mishnah. So didn’t we already know in advance that it is a greater commandment to do it oneself than through one’s agent? The question itself already assumes it, after all. They say: now if he can betroth through his agent, is it necessary to say by himself? As if he himself is obviously better than his agent. So we already know that at the stage of the question. So what is the Talmud saying when it answers: no, it is a greater commandment to do it oneself than through one’s agent—that’s what the Mishnah teaches us?
[Speaker D] Maybe we knew it was more effective, but we didn’t know it was more of a commandment.
[Rabbi Michael Abraham] Ah, right. Meaning, there’s a difference here between two planes of discussion. One plane is whether the betrothal is valid. In that sense, it’s obvious that the person himself can do it more directly than the agent. Meaning, as far as the result is concerned—that the betrothal comes out valid—it’s obvious that if the agent can do it, then certainly the person himself can do it. When the Talmud says that the Mishnah comes to say that it is a greater commandment to do it oneself than through one’s agent, it doesn’t mean that the betrothal comes out better. “It is a greater commandment to do it oneself than through one’s agent” does not mean that the betrothal is somehow, in some sense, more praiseworthy, more beautified, I don’t know exactly what—stronger. No. Rather, there is a commandment to do it oneself more than through an agent, to receive more reward for it, if you like. Okay? So the planes of discussion are different planes. I’m saying this because by the end of the lecture we’ll get to statements that may blur these two planes. But as far as the Talmud is concerned, it seems quite clear that the Talmud distinguishes between these planes. The plane of the validity of the betrothal is known already beforehand; that is already assumed at the stage of the question. And what the Mishnah comes to teach is that it is a greater commandment to do it oneself than through one’s agent. Not in terms of validity. Obviously, validity too—this doesn’t mean that when he performs the betrothal it’s more valid than when his agent does it. Rather, more simply, it’s valid. Once both he and his agent can do it, then betrothal is betrothal; there’s no more and less. But it’s more obvious that he can betroth on his own than that he can betroth through his agent. This reminds me of one of the Birkat Shmuel passages I mentioned in one of the previous lectures, where he asks about rabbinic invalidities in a bill of divorce. He says there are rabbinic invalidities where if she remarries she must leave, and the child is a mamzer. Even though it’s only rabbinic, if she married then she must leave and the child is a mamzer. There are rabbinic invalidities where if she married then she must leave but the child is not a mamzer. There are rabbinic invalidities where she doesn’t even have to leave, but he gives another bill of divorce. And there are rabbinic invalidities where even that doesn’t need to be done. So Birkat Shmuel asks: in what sense is this a rabbinic invalidity? After all, divorce is not a commandment. Meaning, if you divorced your wife and she is divorced, then she is divorced—it’s binary, either she is divorced or she isn’t. If you tell me there is some consequence—give another bill of divorce, or I don’t know what, or the children are mamzerim, or she must leave—I understand. Then the Sages say it is invalid in the sense that there is one halakhic consequence or another. But if there is no halakhic consequence at all to this invalidity, and the divorce is definitely valid, neither on the Torah level nor on the rabbinic level, then what is the meaning of saying that it is invalid ab initio, that it is rabbinically invalid? It has no meaning. The whole question is whether the woman is divorced or not divorced. So what I brought there—and I’m bringing it here—is the claim that there is a commandment in divorce. When you say it is invalid, the meaning is that the commandment is not in the optimal way. You didn’t do the commandment in the best way. Otherwise it really sounds meaningless. The same thing here with betrothal. In betrothal there isn’t more betrothal and less betrothal in terms of the legal effect. Meaning, if the betrothal takes effect, then it takes effect. It’s just that there is a greater likelihood, or it’s clearer, that the betrothal takes effect when he betroths than when his agent betroths. But as I said regarding a bill of divorce, if I really understand betrothal as a commandment, then maybe there would be room to say that it’s not only a question of reward, right? Look at Rashi here: “It is a greater commandment to do it oneself than through one’s agent, for when one’s own body is engaged in the commandment, he receives more reward.” Rashi talks about reward. But as I said before, there was room to say something a bit different. One could say that the commandment of betrothal—assuming it is a commandment—is done in a more beautified way if you do it yourself. Maybe the result would also be greater reward, but here one could say—and from Rashi it seems that the extra reward is not because you did a more beautified commandment, but simply because you invested more effort: according to the effort is the reward. If you did it yourself, you deserve more reward than if you sat at home and somebody else did it for you. But not in the sense that the commandment itself was performed in a more beautified fashion, but rather that you, as the acting person, invested more in the commandment. So you deserve more reward. According to what I said before with Birkat Shmuel there, regarding the rabbinic invalidity of a bill of divorce, maybe there would be room to say that even in the commandment itself there is some kind of more beautified betrothal—this commandment is of higher quality, not only regarding the reward that comes to the person who performs it. Okay. And then the Talmud says: There are those who say that here too there is also a prohibition in it. In accordance with Rav Yehuda said in the name of Rav, for Rav Yehuda said in the name of Rav: It is forbidden for a man to betroth a woman until he sees her, lest he see in her something unattractive and she become repulsive to him, and the Merciful One said: “Love your neighbor as yourself.” So in the “there are those who say,” in the second formulation, what do they add? That there is also a prohibition. As opposed to what we said before? That there would be no prohibition, only that it is a greater commandment to do it oneself than through one’s agent, but it’s not prohibited. What, the first view just thinks there is only preference and no prohibition? What deficiency? Where does the preference come from? A greater commandment to do it oneself. Why? Why is it preferable to do it oneself rather than through one’s agent? We saw before in Rashi, right? That if he engages himself, he gets more reward; he invests more in the commandment, and so on. Meaning, we are not talking about the same rationale that exists in the “there are those who say,” and merely making a distinction that in the first formulation it’s preference and in the second it’s prohibition. No—it’s a different rationale. Yes. The first formulation speaks not only about the difference between preference and prohibition, but about what stands at the basis of the preference. If what stands at the basis of the preference is your investment in the commandment, then that’s the first formulation. Right, then it is preferable that you do it yourself—you’ll receive more reward. But in the second formulation, in the “there are those who say,” it’s not because of that rationale, but because of a rationale specific to betrothal. The first rationale, for example—the first rationale brought examples, right? Like Rav Safra singeing the head, Rava salting the shibuta. Those examples have nothing to do with betrothal. Meaning, there is a general principle here that one who performs a commandment himself deserves more reward. It’s not specific to betrothal. Here we’re talking about a principle specific to betrothal.
[Speaker C] In any case, the moment I’m the one making the decision myself, I can check on the spot whether the decision is right.
[Rabbi Michael Abraham] What? Why would that be? Why is that connected? When you’re forming a marital relationship with someone, then of course you need to check that she’s suitable for you. But with respect to “it is a greater commandment to do it oneself than through one’s agent”—I don’t know, taking a lulav myself and not through an agent, if agency were possible there—what difference would it make? Do I need to see that the lulav won’t become repulsive in my eyes? What?
[Speaker C] It’s not more in every situation. It’s a principle in every place where it depends on the person’s taste.
[Rabbi Michael Abraham] Fine, that’s betrothal.
[Speaker C] When the agent can’t check because it’s betrothal.
[Rabbi Michael Abraham] Fine, so in betrothal maybe you can find one more unrelated case, but it’s not a general principle in all commandments. The first formulation talks about a general principle in commandments. When you do a commandment, do it yourself and not through an agent. Every commandment. Because you need to engage in divine service yourself. Here it’s a principle specific to betrothal.
[Speaker C] And also, maybe he can’t disagree with the first formulation that it’s—
[Rabbi Michael Abraham] Maybe yes, maybe no, we need to check.
[Speaker C] From the flow of the Talmud it looks like he agrees.
[Speaker D] From the wording of the Talmud—
[Rabbi Michael Abraham] Because—
[Speaker D] It says “also,” “there is also a prohibition.”
[Rabbi Michael Abraham] Yes. So from the flow of the Talmud it seems that this is an addition and not a dispute. The first formulation may not agree with the second formulation. And the second formulation accepts the first and adds to it. But in any case, you have to understand that the first and second formulations are not taking the same principle and seeing it either as preference or as prohibition. These are completely different principles. The first formulation talks about something relevant to all commandments, and the second talks about something specific to betrothal. So what exactly is the difference between preference and prohibition? That’s an interesting question in its own right too. Is there a difference between saying this is preferable to that, and saying there is a prohibition here? A prohibition is a prohibition; preferable is—
[Speaker C] What does “forbidden” mean?
[Rabbi Michael Abraham] Apparently there isn’t a full halakhic prohibition here. That too is some kind of preference. Is the betrothal valid? No, in any case it’s valid.
[Speaker C] How much effort did they make?
[Rabbi Michael Abraham] You’re giving me consequences. I’m asking before consequences—what is the difference? Let me ask you another, broader question. There is really a question: what is the difference between a positive commandment and a prohibition? Ostensibly, a prohibition and a positive commandment are just two different formulations of the same thing. For example, if they told me “put on tefillin,” that’s a positive commandment. If they tell me “you are forbidden not to be wearing tefillin,” “you are forbidden to be without tefillin,” that’s a prohibition. What’s the difference? To say you’re forbidden to be without tefillin means that you have to be with tefillin.
[Speaker D] Why should there be a difference?
[Rabbi Michael Abraham] Between this being a prohibition and that being a positive commandment.
[Speaker D] No, okay, but in terms of the severity of the—what is the severity?
[Rabbi Michael Abraham] I’m asking what the difference is. Severity is a consequence. I’m asking first of all what the difference is. Why does it matter whether it’s formulated in positive language or in negative language? Why is this a prohibition and that a positive commandment?
[Speaker D] There’s some level to the thing, and there are different laws.
[Rabbi Michael Abraham] But those consequences result from something. Why does the Torah make such a distinction? Because this is a prohibition and that is a positive commandment—it starts from some essential difference.
[Speaker D] Why is there a difference between karet and stoning? It’s the same question.
[Rabbi Michael Abraham] That’s more severe, okay.
[Speaker D] So—
[Rabbi Michael Abraham] Is a prohibition always more severe than a positive commandment?
[Speaker D] The formulation is a hint.
[Rabbi Michael Abraham] Obviously. Now I’m asking: in what? Why? Why is a prohibition more severe than a positive commandment?
[Speaker D] It’s all just—
[Rabbi Michael Abraham] Not why in terms of the reason for the verse, but why the fact that something is formulated in negative language makes it more severe than if it is in positive language.
[Speaker D] Here you do something, and here you… and in a prohibition you do something, and in a positive commandment you do something.
[Rabbi Michael Abraham] So look, the usual formulation—
[Speaker C] A positive commandment overrides a prohibition, and one engaged in one commandment is exempt from another.
[Rabbi Michael Abraham] No, those are consequences. Again I’m saying: consequences. I’m not talking about consequences. The consequences are the result. I’m asking what the difference is between a prohibition and a positive commandment; afterward we’ll explain all the halakhic consequences. First of all, why is there—after all, it’s not a double negation. In the end, these are just two equivalent sentences. Suppose I want you to be wearing tefillin. To say “I don’t want you to be without tefillin” is to say the same thing in two different formulations.
[Speaker D] Why does it bother you so much that it might be arbitrary?
[Rabbi Michael Abraham] Because it isn’t arbitrary. What do you mean? Not that it bothers me—it simply isn’t arbitrary. Clearly not, because there can’t be a categorical difference between positive commandments and prohibitions if it’s all arbitrary. There are also different levels of severity within those categories.
[Speaker D] No, that’s clear. The difference is between two categories; we marked them with terminology and had to set terms.
[Rabbi Michael Abraham] No, no, that’s not how it works. Look, for example, when we distinguish between positive commandments and prohibitions, what’s the difference? Before asking why one is more severe, what is the difference between a positive commandment and a prohibition? Simply put, the usual conception is that a positive commandment imposes on you an obligation, an obligation to act; you fulfill it through positive action and violate it through passive omission. And a prohibition is fulfilled through passive omission—you refrain from doing the forbidden act—and violated through positive action. But of course that doesn’t work. Right? Because there are positive commandments fulfilled by passive omission. For example, the commandment of resting on the Sabbath. There is a prohibition and there is also a commandment, and you fulfill it passively by not doing labor. Right? Or there is a prohibition fulfilled through positive action, for example: “Do not stand idly by your neighbor’s blood.” If I see my friend drowning in the river, then “do not stand idly by your neighbor’s blood” means I have to go save him. But that’s a prohibition; it isn’t a positive commandment to save him. It’s a prohibition upon someone who fails to save him. Okay? Meaning, the definition by mode of performance is not the distinction between positive commandment and prohibition.
[Speaker D] But maybe that can be enough—sorry that I’m responding this way—it can be enough to explain why they used this terminology to mark the category. Because it is true that in most cases a positive commandment is fulfilled through action and a prohibition through abstention.
[Rabbi Michael Abraham] And that—
[Speaker D] It’s true that intuitively that seems more severe than this. Meaning a person who only—
[Rabbi Michael Abraham] So intuitively that means it isn’t arbitrary.
[Speaker D] Right—no, now I’m correcting myself. I’m saying even if it isn’t arbitrary, the fact that generally this is done this way and that that way is still a good reason to mark the category that way.
[Rabbi Michael Abraham] So I’ll take that and go one step further. Meaning, I’ll also give a substantive explanation, not just “usually.” I think there’s a difference. Look, I’ll give an example. Robert Nozick, a philosopher of law, an American Jew, asked: why is there a difference between temptation and extortion? When I tempt someone—say I tell him, “If you do this, I’ll give you a thousand dollars,” okay? That’s temptation, and that’s permitted, right? If I offer him to do it, fine. Extortion is when I say, “If you don’t do this, I’ll take a thousand dollars from you”—that’s forbidden.
[Speaker D] Because you’re not allowed to take from me, right?
[Rabbi Michael Abraham] Meaning there’s a difference between temptation and extortion, even though in both cases I’m presenting him with a difference of a thousand dollars between the state in which he does what I want and the state in which he doesn’t do what I want. Right? And the difference is a thousand dollars. Except here it’s “I’ll give him a thousand dollars or I won’t give,” and there it’s “I won’t take” or “I will take,” right? But in both cases, what’s really involved is a gap of a thousand dollars between the two options. Why is this forbidden and that permitted?
[Speaker D] Maybe because one involved something illegal?
[Rabbi Michael Abraham] Yes, but even about that one could say: so what if one side involved something illegal? But if he does it and I don’t take, then nothing illegal happens. After all, not taking is legal.
[Speaker D] It’s forbidden to threaten. The threat is a forbidden act in itself.
[Rabbi Michael Abraham] But why is the threat itself—so long as it isn’t carried out—why does that matter?
[Speaker D] I threaten every day, I threaten someone—
[Rabbi Michael Abraham] That I’ll murder him, and he isn’t murdered.
[Speaker D] Fair enough, fair enough.
[Rabbi Michael Abraham] What do you mean fair enough? Is threatening a criminal offense?
[Speaker D] So the question is why.
[Rabbi Michael Abraham] No, I’m proposing—
[Speaker D] Why? It’s obvious why threatening is forbidden, because that way you can coerce people to do what you want.
[Rabbi Michael Abraham] But you can also coerce people to do what you want that way too.
[Speaker D] With temptation you’re not restricted—
[Rabbi Michael Abraham] You can offer him a thousand dollars and then he’ll do what you want. What do you mean?
[Speaker D] You can threaten him with something bad.
[Rabbi Michael Abraham] Wait, you’re going back again to another formulation. Before you said it’s because I can get him to do what I want. There too I can get him to do what I want—through temptation. Through temptation.
[Speaker D] And you can offer him infinite things to kill someone.
[Rabbi Michael Abraham] I don’t know, but threatening too. If I demand from you—what are you talking about?
[Speaker D] If I pull out a gun, I’ll do anything.
[Rabbi Michael Abraham] No, what are you talking about? That’s the level of the threat—that’s not the point. So I’ll offer you a billion dollars, okay? Nobody will withstand that. The difference isn’t the level of the threat; that’s not the point. The point really is that this is forbidden. What stands behind it? What stands behind it—what?
[Speaker D] “Do not covet.” Who says it’s permitted? But a person who offers someone—why not?
[Rabbi Michael Abraham] “Do not covet” maybe means you’re forbidden to covet. Am I forbidden to offer you a thousand dollars? And that, in proper Hebrew, is called temptation.
[Speaker D] And that kind of temptation is permitted?
[Rabbi Michael Abraham] Right, and therefore it’s permitted. And every temptation is also a sale, by the way. Same thing. Look, I think what stands behind this is exactly the difference between preference and prohibition, which is why I got into all these examples. There is some objective line—call it the halakhic or legal equilibrium line—which is neither positive nor negative. That’s the prevailing state, the existing state. To rise above it is a positive state; to go below it is a negative state. When I evaluate different possibilities—whether they are positive or negative legally or halakhically—it’s not only a relative evaluation. There is an absolute evaluation. Taking money is forbidden. Why? Because your money belongs to you; that’s the zero state. An injury to the zero state is forbidden. By contrast, giving you a thousand dollars—that is, doing something above the zero state—is obviously permitted. Okay? Meaning, when I evaluate acts or offers that cannot be refused, right, human acts, I don’t measure them only at the level of the difference. I don’t just say: I’m presenting you with two options that differ by a thousand dollars. Rather, each option in itself has an objective measure relative to some objective scale. There is a zero state, and in relation to it I measure. Anything beyond that—say the zero state is that each person has his own rights. Nobody harms them and nobody adds to them, and that’s it. That is the legal zero state. When you offer someone an addition beyond that, to give him more rights than he has, that is entirely good—it’s your right, no problem. If you offer to take rights from him, that is forbidden. Right? Because that is an injury to the zero state; it is basically a negative state from a halakhic perspective. A prohibition and a positive commandment are the same thing. It is not true that a prohibition and a positive commandment are equivalent formulations. That’s a mistake—by the way, also a mistake in logic. The formulation “put on tefillin” is not equivalent to the formulation “I do not want you not to put on tefillin.”
[Speaker C] What’s the difference between tzitzit and tefillin? What? The difference between tzitzit and tefillin is that tefillin we are obligated to put on every day; tzitzit, not necessarily—if you’re not wearing a four-cornered garment.
[Rabbi Michael Abraham] No, but then there too there’s no prohibition.
[Speaker C] But then there is no obligation.
[Rabbi Michael Abraham] But then there too there’s no prohibition, so that’s not the difference. It has nothing to do with that. That’s not the difference between a positive commandment and a prohibition. With tzitzit too, even if you formulated it as a conditional prohibition—that if you wear a four-cornered garment and don’t put tzitzit on it, then it’s a prohibition—still, if you don’t wear a four-cornered garment, nothing happened. That’s not the difference between positive commandment and prohibition. The point is that first of all, on the logical level, right—when you say “I don’t want you not to put on tefillin,” why isn’t that the same as saying “I want you to put on tefillin”? Because “not” and “want” are not commutative. “I don’t want you not to put on tefillin.” Why do we think that’s the same thing as “I want you to put on tefillin”? We swap the “want” with the “not,” and then “not not” is a double negation, it collapses, and we get “I want you to put on tefillin,” right? Is that true? If that had been written, would it be a positive commandment? No—it would be a prohibition. Even though ostensibly it’s like saying “want that you put on tefillin,” which is definitely a positive commandment. Right? Why do we think it’s the same thing? We swap the want with the not, right? We think it’s commutative. And then we say: I want that you not-not put on tefillin. “Not-not put on tefillin” is “put on tefillin,” so I want you to put on tefillin; therefore it’s equivalent. But that’s a mistake—you can’t swap them. Want and not are not commutative. To say “I do not want you to do something” and to say “I want you not to do something” are not the same thing.
[Speaker D] At first glance it does sound like the same thing.
[Rabbi Michael Abraham] Absolutely not. “I want you not to do something” is an active statement. “I don’t want you to do something”—fine, I have no desire that you do it. That’s not the same as my wanting you not to do it.
[Speaker D] There are no practical consequences to that difference.
[Rabbi Michael Abraham] No, leave aside practical consequences—first of all you have to understand that linguistically it’s not the same thing. They are not equivalent.
[Speaker D] But linguistically they’re often equivalent. If you don’t show me consequences, then it’s just a question of semantics.
[Rabbi Michael Abraham] No, absolutely not. There’s a practical implication for a woman’s betrothal. I’ll also show consequences, but what?
[Speaker D] Really in the case of a woman’s betrothal?
[Rabbi Michael Abraham] No—yes, yes, there are consequences, many consequences. The whole difference between a prohibition and a positive commandment has consequences. For now it still sounds commutative.
[Speaker D] No, no, absolutely not.
[Rabbi Michael Abraham] Each one of them—what do you mean? Think about it in Hebrew. “Want that not” and “do not want” are not the same thing. They are simply not the same linguistically. It’s just not correct. “Want that not” is something active. I don’t want that—you know, I want that you not be there. “I don’t want that you be there”—fine, I don’t want it, but I don’t necessarily have any problem with it.
[Speaker D] It’s like a person reporting his desire, and you’re saying there’s this thing called desire—this is what stands behind the statement—and in this case it exists or doesn’t exist. Yes. But why? That’s it—it doesn’t have to be that there is desire. Especially when we talk about the Holy One, blessed be He, we don’t mean that He wants something or has some—
[Rabbi Michael Abraham] Not relevant. He expresses a will; I don’t care right now what goes on in His psychology. But when He expresses will, it is not the same thing to say “I don’t want you to do” or “I want you not to do.”
[Speaker D] For me, the test is whether from both statements there follows the same course of action that I need to take.
[Rabbi Michael Abraham] No, it doesn’t follow. It doesn’t follow. Here, I’m getting there in a moment. Okay.
[Speaker C] If I formulated it in logic—if you say “it is forbidden that you not put on tefillin,” then yes, then it’s the reverse, it is a positive commandment. I didn’t understand. If I say “it is forbidden that you not put on tefillin,” then you must put on tefillin.
[Rabbi Michael Abraham] I have to put on tefillin in order not to be without tefillin, but the point is not the putting on of tefillin itself. I’ll define it in a moment. Look, think for example—I’ll give you an example—suppose I bought a house, and that house has a parapet. So I don’t need to build a parapet, right? It already has a parapet. Which commandment? There is the commandment of a parapet. Okay. The commandment of a parapet, or the commandment “You shall not place blood in your house”? Two commandments. “You shall make a parapet for your roof,” and also a prohibition. Now if they told me “I don’t want you to be without a parapet,” there’s no problem, right? I’m not without a parapet; there’s already a parapet in my house. But if they said “I want you to make a parapet”—I want you to make it, not that there be a parapet—want you to make it, right? Then here obviously, true, I don’t need to, there’s no way for me to build a parapet, but I also didn’t fulfill the commandment.
[Speaker D] So there too they’re not exact opposites. The opposite of “I want you to put up a parapet” is “I don’t want you to refrain from putting up a parapet,” not “I don’t want there not to be a parapet.” Why? Because if I don’t want you to refrain from putting up a parapet, then the only way for you to do the opposite is actually to make a parapet. You can’t say, “I already have a parapet.” Fine? The translation here isn’t right—you need to relate to the act itself, and what creates the confusion here is that there’s a state in which there is a parapet. And in the first command you relate to that state and say you don’t want it, while in the second you relate to the act, and say that that is what you do want.
[Rabbi Michael Abraham] Listen, ostensibly you’re right. There’s still some intuition here; I need to think how to define it precisely. Say I want you to make sure there’s a guardrail around the roof of the house, or I don’t want you not to make sure there’s a guardrail around the house. So that’s already closer. I need to think about how exactly to formulate it. Anyway, for our purposes, what am I really trying to argue? I want to argue that a positive commandment points to a positive state, and a prohibition points to a negative state. Exactly like with temptation and extortion. Meaning, there’s some zero state, a neutral state, where you’re average. Not righteous, not wicked, you’re fine. Okay? A positive commandment tells you: rise above the zero state. I want you to reach—the Torah tells you, I want you to reach—the positive state. In a prohibition, the Torah tells you: I don’t want you to be found in a negative state. Okay? Now when someone says to you, “I don’t want you to be without tefillin,” they’re not telling you to be with tefillin. They’re telling you not to be in a state of being without tefillin. What’s the difference? They’re telling you that the state of being without tefillin is a negative state. If you’re not in that state, you’re not righteous—you’re just not wicked. Meaning, you’re average. If they tell you, “I want you to be with tefillin,” then they’re saying that being with tefillin is a positive state. It’s not just avoiding a negative state. And then you have to be—yes—you’re righteous if you put on tefillin. That’s the difference between a positive commandment and a prohibition, and therefore the formulations are not equivalent. When you say, “I don’t want you to be in a negative state,” that means I can also be in the zero state. But if they tell me, “I want you to be in a positive state,” then I can’t be in the zero state, because the zero state is not a positive state. Okay? Like twilight. I don’t remember if I mentioned it—twilight, yes, the Rogatchover talks about it: is twilight both day and night, or is it neither day nor night? So let’s say it’s both day and night. Then if there’s some law that must specifically be done at night, can it be done at twilight? Yes, because it’s both day and night—it’s also night. But if there’s some law that may not be done during the day, and that’s why it’s done at night—not because night is required, but because day is forbidden—then it’s forbidden to do it at twilight, right? Because twilight is also day. So there you have an example of the difference between a law that may not be done during the day, so I do it at night—not because night is required, but because day is forbidden—and a law that has to be done at night, not because it’s forbidden during the day. There’s a halakhic difference between those two things. Okay? If it’s neither day nor night, then it’s the opposite. What’s forbidden during the day is no problem for me, because it’s neither day nor night; what is obligatory at night can’t be done, because it’s neither day nor night. It’s the same idea. Okay? So these are examples showing that it’s not true that “wanting not to” is the same as “not wanting to.” Or that a positive commandment is not the opposite of a prohibition. It’s not a double negation. These are entirely different statements. A positive commandment says: be in state one. A prohibition says: don’t be in state minus one. But if you’re in state zero, that’s also not being in state minus one. Because as you know, in Greek philosophy too they distinguish between different kinds of opposites. There are opposites, and there are privative opposites and contrary opposites. For example, cold and heat are contrary opposites. Light and darkness are privative opposites. Add cold to heat and it balances out, right? It becomes lukewarm. If you add light to darkness, it remains light. There’s no balancing out. Because darkness isn’t minus light; darkness is zero light. The relation between one and minus one, as opposed to one and zero—both are opposites, but they’re not the same kind of opposite. Right? One versus zero is a privative opposite: I cancel out the one and get to zero. One and minus one are contrary opposites. From one I turn it into minus one—it’s a property, an opposite property. What this really means is that when we’re told a positive commandment, we’re being pointed to a positive state. The Torah is telling us: I want you to be in the positive state. That’s a positive commandment. If the Torah gives me a prohibition, it’s saying: I don’t want you to be in a negative state—yes, that’s the temptation and extortion. Okay, so if you don’t violate it, then you remain in an average state. Again? If you don’t do it, then fine—you’re average, you’re neither righteous nor wicked. If you also don’t fulfill positive commandments, then—
[Speaker D] But you also don’t violate—
[Rabbi Michael Abraham] a prohibition, then you’re average. Right, yes.
[Speaker D] Since this follows from the definition, this difference isn’t really—if we had said, “Don’t be in the zero state,” that’s how we would formulate the prohibition.
[Rabbi Michael Abraham] No, there’s no such thing. The moment there’s a prohibition that says “don’t be in a certain state,” that state is negative—it’s not zero. No, but the definition reflects something; it’s not that the definition creates it, the definition is an expression of this thing. Look, now you’re getting into definitions. Everything I’m saying now, you can’t formulate in the form of a prohibition. Now you’ll tell me you can, because you’re assuming a different definition, and then everything becomes word games. The question is what’s true, not how you define it. You can define anything.
[Speaker D] I’m kind of trying to justify why the Torah formulated some commandments one way—
[Rabbi Michael Abraham] To explain, not to justify. I’m explaining the meaning of the fact that it formulated them this way.
[Speaker D] Now I’m saying, I could have written it in such a way that in practice the results would be exactly the same, with no practical difference—
[Rabbi Michael Abraham] and everything would be formulated—
[Speaker D] It would be very hard for you, very hard.
[Rabbi Michael Abraham] No—it’s not about economizing, because this is a different category.
[Speaker D] No, I think I could do it easily.
[Rabbi Michael Abraham] No, no, it’s a different category—that’s exactly the point. It’s not a matter of definition; it’s essentially different. Look, all the—what—now, earlier you brought examples of ramifications. So look, for example: why are there positive commandments that are fulfilled passively, by refraining from action, like Sabbath observance? Right? You fulfill it that way. So why is that called a positive commandment? Right, that’s always the question. Answer: from the perspective of a positive commandment, resting on the Sabbath is not avoiding the negative state of doing labor; rather, the resting itself is the desired positive state. On the other hand, there’s also a parallel prohibition. There’s a prohibition against doing labor on the Sabbath. From the perspective of the prohibition, the prohibition indicates that doing labor is a negative state. Not just that it’s a lack of rest, meaning not being in the positive state—no, doing labor is itself a negative state. So in fact, the distinction in terms of practical execution between a positive commandment and a prohibition—whether you perform an action or refrain from performing an action—that is not the distinction between a positive commandment and a prohibition. But there is a distinction between them; it’s not arbitrary. There are sometimes cases where non-performance is itself a positive state—resting on the Sabbath. So yes, it’s non-performance, but it’s a positive commandment because it points to a positive state. It just happens that in this case—and this really is a minority of cases—the positive state is non-action. That can happen. And with “do not stand idly by your neighbor’s blood,” there the negative state is non-action. Right? If you don’t go save him, that’s a negative state—not that the rescue is a positive state. Rescue is a basic imperative, that’s obvious. If you don’t go save him, then that’s a negative state. Therefore, the criterion of practical performance is not what distinguishes a positive commandment from a prohibition. So what does? There is a criterion; it’s not just arbitrary. The criterion is whether the Torah is pointing to a positive state or to a negative state. And now all the consequences you know of between a prohibition and a positive commandment are derivatives of that. For example, why is there reward for a positive commandment but not for refraining from violating a prohibition? Right? Although once in some barbershop in Bnei Brak I went in there and there was a sign saying that everyone who comes here should intend to fulfill five commandments. One commandment was “do not keep the wages of a hired worker with you overnight,” “do not round off the corners of your head,” in short—prohibitions. He had mystical intentions for fulfilling prohibitions. Why is that irrelevant? Why is that irrelevant? Ah—it’s irrelevant. Obviously it is. If I didn’t round off the corners of my head without intention, I still didn’t round off the corners of my head. What do you mean? I didn’t violate a prohibition.
[Speaker D] Right, but the claim is that a person receives reward if he had a temptation to do it and didn’t do it. There are all sorts of sayings of the Sages.
[Rabbi Michael Abraham] No, that’s unrelated. It’s like “it is a greater commandment to do it oneself than through an agent”—there’s exertion here, but that’s something else. I’m talking about the nature of the commandment itself. Intention in a commandment is a halakhic rule. That’s it, and that’s what I’m talking about. No, the fact that you get reward from the Holy One, blessed be He, if you had some enormous temptation to do it and you withstood it—that’s something else.
[Speaker D] Why did it formulate some commandments as positives and others as prohibitions? That doesn’t have to be a derivative. It could be that the whole point of a positive commandment is that here there is an act, and therefore you have to attach intention to it, whereas with a prohibition there isn’t. But with resting on the Sabbath that’s not—
[Rabbi Michael Abraham] What act? I rest and don’t do labor.
[Speaker D] You could say that you fulfilled it by not doing it, and you could say that you have to attach intention to the non-action.
[Rabbi Michael Abraham] So you’re going back to what I’m saying. So it doesn’t depend on the performance; it depends on whether it’s a positive state. To be in a positive state, they tell you that you have to intend to be in the positive state for that to count.
[Speaker D] To be in a positive state—
[Rabbi Michael Abraham] they tell you that you have to intend to be in the positive state in order to be righteous. That’s what I think exists with the Sabbath. No, no, I don’t think we’re— you can try to dodge it, but it’s there, it’s always there.
[Speaker D] No, that’s the straightforward explanation, and that’s all. That’s the plain meaning. But there’s no act.
[Rabbi Michael Abraham] Why is there no act? For example, in resting on the Sabbath.
[Speaker D] Why? You can call that refraining an act if you attach intention to it.
[Rabbi Michael Abraham] And what is doing, then? But if attaching intention turns it into an act, then with something fulfilled through an act, does that also need intention? What exactly is the intention doing there? After all, there it’s an act even without the intention.
[Speaker D] No, it isn’t without intention.
[Rabbi Michael Abraham] Without intention it’s not an act? What do you mean it’s not an act? That’s why you don’t fulfill your obligation. So there too the act—there too the intention doesn’t turn it into an act; the intention gives it meaning.
[Speaker D] No, no, no, intention turns it into an act; otherwise my hand just moved, that’s all. Without intention it’s not my act, it’s some physiological process.
[Rabbi Michael Abraham] So again, you’re smuggling in through the back door exactly what I’m saying. What difference does it make from which side you look at it? You’re still assuming it. You’re saying that being in a positive state is just a matter of terminology. If you fulfilled—
[Speaker D] the commandment—
[Rabbi Michael Abraham] then you call it an act, but really you’re saying the same thing. What difference does it make? It’s wording. At the end of the day the claim is that in order to be righteous, you need intention. And in order to be wicked—if you’re wicked, you’re wicked, and if you’re not wicked then you’re not wicked—what difference does your intention make? You’re not wicked if you didn’t do it. It doesn’t matter whether you call it positive or negative, action or non-action. It’s the same principle. It’s just a matter of formulation. Fine, okay. Same thing with reward, for example. Why is there reward for positive commandments and no reward for prohibitions? Because if you’re righteous, then you have reward; and if you’re not righteous, then you don’t get reward—but if you’re not wicked, sorry, then you don’t get reward. On the other hand, why is there punishment for a prohibition and no punishment for a positive commandment? Because if you’re wicked, you deserve punishment; if you’re not righteous, that’s not a punishment—you just won’t receive reward, but you don’t deserve punishment. Or why do you have to spend all your money in order not to violate a prohibition, but to fulfill a positive commandment only up to one-fifth of your assets? Because in order not to be wicked, the demand is extremely basic—meaning here, even all your money, because it’s inconceivable that you would permit yourself to be wicked. In order to be righteous, I’ll spend up to one-fifth of my assets, but if it’s more than one-fifth of my assets, then I won’t be righteous—I’ll be average. Do you understand that all the consequences we’re very used to—and some of you mentioned them earlier—those are consequences of the difference between a prohibition and a positive commandment; they are not the difference itself. Yes? Once I wondered about lesser sancta according to Rabbi Yossi HaGelili—yes, lesser sancta are considered the owner’s property. I asked my study partner: in what sense is this the owner’s property? So he told me that one can betroth a woman with it. So I said to him: you can betroth a woman with it because it’s the owner’s property, but I’m asking why it is the owner’s property. After all, in the end there’s a very defined procedure that you have to carry out with it too; you don’t really have permission to do anything else with it. You have to eat the meat of these lesser sancta. You can betroth a woman with it, and she’ll eat the meat. Okay, but so what? It needs to be defined. Consequences are never the defining feature of a thing; they help sharpen its meaning, but when I come to define the thing, I can’t base it on its consequences. Same here. The difference between a prohibition and a positive commandment is expressed in many consequences, but those are consequences of the difference between them. I’m asking: what is the intrinsic difference? And I think the intrinsic difference is the question of state—I call it a positive state and a negative state. Okay? Is what’s required of you to be righteous, or is what’s required of you not to be wicked? That is really the difference between a positive commandment and a prohibition. I’m going back here: what’s the difference between a prohibition and a preference? Same thing. If someone betroths a woman without seeing her, according to this “some say” version, there’s a prohibition involved. What does that mean—a prohibition? What? What does that mean? A prohibition means it’s not okay. You’re wicked—or, okay, that’s excessive—but you’re not okay. Okay? Whereas according to the second approach that says “it is a greater commandment to do it oneself than through an agent,” the first version, “it is a greater commandment to do it oneself than through an agent,” that only means: look, if you do it yourself you’ll get more reward, you’ll be righteous. But if you didn’t do it, it’s not that you’re wicked; you’re just not righteous. That’s all. So there’s a categorical difference between a prohibition and something preferable, or a commandment. Okay? These are two different things. Is it forbidden to betroth through an agent? Yes, that’s what the Talmud says here.
[Speaker C] So why did they allow an agent?
[Rabbi Michael Abraham] Because it takes effect—what do you mean, why? There’s a prohibition; that’s what the Talmud says. “And there is also a prohibition in it.”
[Speaker C] If there’s a prohibition, then how can it be done? There are also cases where it’s permitted, it’s not—
[Rabbi Michael Abraham] Yes, if he saw her beforehand, say, or something like that. So they discuss it; the Shulchan Arukh writes that even so it’s preferable to do it oneself, but yes.
[Speaker C] Meaning the novelty of the Mishnah is “through his agent and not himself.” The novelty of the Mishnah is really “through his agent.”
[Rabbi Michael Abraham] “It is a greater commandment to do it oneself than through an agent”—in the first version, the novelty is “oneself,” that there is a commandment in that. In the second version, the novelty is “through his agent,” because through his agent there is a prohibition. Even though in both cases you should do it yourself and not through your agent, the question is just whether doing it through your agent is bad, or whether doing it yourself is good. Yes.
[Speaker D] The second version doesn’t explain the Mishnah correctly, in my opinion. What? The second version doesn’t explain the Mishnah.
[Rabbi Michael Abraham] No, wait, it explains the latter clause; we’ll get to that in a moment.
[Speaker D] But it doesn’t explain the “himself and through his agent.” It’s not true that it explains “himself and through his agent” the way the first version does—
[Rabbi Michael Abraham] Quite the opposite—it gave up trying to explain that.
[Speaker D] Wait, wait—it says that it’s forbidden. You can’t learn from the Mishnah that it’s forbidden, to say that the Mishnah says “himself and through his agent” because through his agent it’s forbidden—
[Rabbi Michael Abraham] No, no, we’ll get there in a second, we’ll get there. We’ll come to that. So the difference between the first version and the “some say” version is really a categorical difference: here it’s a preference, and here it’s a prohibition. I’m saying this to sharpen what I said earlier, but that isn’t the only difference. It’s not that you could have said the same thing they say when you involve yourself directly in a commandment—that that’s preferable—you could have said that if you don’t involve yourself directly in the commandment, that’s a prohibition. It’s not okay—what is a prohibition? It’s something negative, right? It’s not okay. You performed the commandment, even through an agent, but it’s not okay, all right? No—that’s not what the Talmud says here. The Talmud is not speaking about a difference between prohibition and preference on the basis of the same principle, namely that you should do it yourself and not through your agent. These are different principles. It’s not only that one is a preference and the other is a prohibition; the basis is different. In the first version we’re dealing, on the one hand, with a preference, and on the other hand the basis is a general principle in Jewish law, not specifically in betrothal—that one should always do the commandment oneself and not through an agent. The second version says: A, it’s a prohibition and not a preference; B, the prohibition is not a universal prohibition, it is a prohibition specific to the commandment of betrothal, because there is a concern that she may become repulsive to him. Okay? So there are two differences. Now, according to the point I noted earlier—what is the relation between the two versions? In the first version, is there a prohibition or not? Huh?
[Speaker C] There is a positive commandment—
[Rabbi Michael Abraham] No, “it is a greater commandment to do it oneself than through an agent.” Now the question is: if you did it through an agent, is there a prohibition in that? She might become repulsive—who says not? It doesn’t say—
[Speaker C] that there is.
[Rabbi Michael Abraham] It doesn’t say that there is, because the Talmud hasn’t gotten there yet. At the second stage, when they bring in the prohibition, it could be that the first version also agrees to the prohibition. It’s just that in terms of explaining the Mishnah, “it is a greater commandment to do it oneself than through an agent” is its explanation of the Mishnah. As for there also being a prohibition—fine, there’s also a prohibition, who said not? Even in the second version, when the prohibition is brought—as you correctly pointed out—the prohibition is not derived from the Mishnah; it’s a prohibition known independently, regardless. So if it’s known independently, it could be—
[Speaker C] that the first version also accepts it. But—
[Rabbi Michael Abraham] The “some say” version comes to explain— no, no, not yet, the opposite. It rejects the first explanation. It says: you say “it is a greater commandment to do it oneself than through an agent,” but that’s not enough, because through an agent there is even a prohibition. So the second version doesn’t find it plausible that this is the explanation of the Mishnah. But it hasn’t yet proposed its own explanation. All right? It’s not saying that this is the first clause, that the Mishnah is coming to say that there is a prohibition; rather, it says that if there is also a prohibition, it isn’t plausible to say that the Mishnah is just coming to say “it is a greater commandment to do it oneself than through an agent,” because here there is also a prohibition. Fine, maybe. So the Talmud—I’ll say more than that—even in the second version it could be that they also agree that “it is a greater commandment to do it oneself than through an agent.” It’s reasonable that they agree; we’ll see that in a moment. The principle is certainly correct, okay? They just claim that this is not the explanation of the Mishnah—not that they dispute the principle itself. Because the Talmud immediately goes on and says: “And if Rabbi Yosef’s statement was said, it was said on the latter clause: ‘A woman is betrothed by herself and by her agent.’ Now, if she can become betrothed by her agent, is it necessary to say by herself? Rabbi Yosef said: It is a greater commandment for her to do it herself than through her agent, as in the case of Rav Safra singeing a head, and Rava salting a fish. But in this case there is no prohibition in it, in accordance with Resh Lakish, for Resh Lakish said: ‘It is better to dwell as two than to dwell as a widow.’”
[Speaker C] The question really is: how do they derive this from “love your neighbor as yourself”? Why is it in the language of prohibition rather than in the language of obligation—that a person should see the woman before he betroths her? Okay.
[Rabbi Michael Abraham] No, it could be that the prohibition in this case is the nullification—nullifying a positive commandment is also a prohibition. With a positive commandment, failing to fulfill it is also a prohibition. A different kind of prohibition, but still a prohibition.
[Speaker C] What we said—formulated as a question, or—
[Rabbi Michael Abraham] formulated as an addition, this “some say” version. Okay. What—is this formulated as a “some say,” as another answer about the “himself and through his agent”? No, the “some say” version in what I’m now reading is the continuation of the “some say.” You have to read it all together. The “some say” is: this cannot be the explanation, because here there is also a prohibition. Rather, what Rabbi Yosef said refers to the latter clause. Okay? And the “some say” is that what Rabbi Yosef says is not about the first clause but about the latter clause. So what about the latter clause? What’s the difference? In the latter clause there is no prohibition, because when the woman becomes betrothed through an agent, then even if the husband, say, becomes repulsive in her eyes—or doesn’t—but even if he does become repulsive in her eyes, fine, but “it is better to dwell as two”; a woman always wants partnership. Therefore there are no such concerns there, and Rabbi Yosef’s statement refers to the latter clause. Meaning, the second version does not dispute Rabbi Yosef’s statement. Obviously it is true in itself. The whole question is whether it can be the explanation of the first clause. But there’s no dispute here about “it is a greater commandment to do it oneself than through an agent.” So in the second version there are both principles. There is “it is a greater commandment to do it oneself than through an agent,” which is certainly true, and there is a prohibition on a man betrothing without seeing the woman. That is certainly true. Now the question is, in terms of the Mishnah, what is the Mishnah coming to say? So in the latter clause of the Mishnah, “the woman is betrothed,” that comes to teach Rabbi Yosef: “it is a greater commandment for her to do it herself than through her agent.” But the question still remains: what does the first clause come to teach? “A man betroths by himself and by his agent.”
[Speaker D] Those are stylistic considerations—you don’t change the parallel wording.
[Rabbi Michael Abraham] But the Talmud doesn’t comment on that. I would have expected it to say: wait, so what about that? Ah—it could answer: since it used “by himself and by his agent” there, it also used “by himself and by his agent” here. But the Talmud doesn’t say that. Therefore I think, somehow it seems—even though it really is strange—somehow it seems that in the second version the explanation of the first clause really is the prohibition. It’s very strange. They really are coming to propose another explanation, like what you said earlier. Now I’m going back and saying: it seems from the Talmud that you actually are right. That the second version isn’t only coming to give another option for where to apply Rabbi Yosef; it’s also coming to offer another explanation of the “by himself and by his agent” in the first clause. But on the face of it, when you look at it, it really is odd. Because if it comes to explain the prohibition, then you say “by himself and by his agent” because through his agent there is a prohibition—so then say: through his agent, although there is a prohibition, it nevertheless takes effect. I can understand a formulation like that. If you say “by himself and by his agent,” then if you’re talking about preference, I understand. But if you’re saying there’s a prohibition in doing it through his agent, it’s very strange to say it in that form. If you say it that way, on the contrary, you make me think that maybe doing it through his agent is okay. Less okay than doing it himself, but not prohibited. Okay? But it seems from the Talmud’s silence that in the second version there really is some alternative explanation of the first clause. That the first clause comes to teach us the prohibition and not the preference. And there really is also a commandment when she becomes betrothed—we’ll get to that too in a second. We’ll get to that too in a moment. I’ll say one more thing, one more second. I want to make a comment about “it is better to dwell as two.” If we say that for a woman “it is better to dwell as two,” then does the woman not care who her husband is? Up to—
[Speaker C] a certain point.
[Rabbi Michael Abraham] She doesn’t care? Meaning, what difference does it make—whoever he is, so long as he comes equipped with what’s needed, huh? Yes, she—
[Speaker C] is more flexible. Huh? He won’t become repulsive to her. It doesn’t bother her.
[Rabbi Michael Abraham] Right, so that’s what I’m saying—he won’t become repulsive to her, so everything is fine, she doesn’t care. It’s less common that she’ll regret it. No—is it less common that she’ll regret it, or less common that she won’t be satisfied? Big difference. Ah—so regret is the focal point. Meaning, notice, I think there’s no statement here that a woman doesn’t care about her partner. Rather, the claim is that even if in the end she’ll be disappointed and think she could have gotten something better, she still won’t want to dismantle the marital unit because of that. With the husband it’s not like that, because there isn’t this presumption of “it is better to dwell as two,” so if the husband is disappointed, he’ll want to break it apart. So what the Talmud says—that there’s a prohibition—focuses even more sharply what I said earlier about the difference between prohibition and preference. Preference exists from both sides… but prohibition—when does this concern rise to the level of a prohibition? When it’s dramatic, right? When it could lead to breaking up the home. That exists only with the husband and not with the wife. Are you assuming that “love your neighbor as yourself” means that he’ll divorce her? There’s another way to read that. No—both are “love your neighbor as yourself.”
[Speaker D] No, what’s the problem of “love your neighbor as yourself”? Let’s say she becomes repulsive to him.
[Rabbi Michael Abraham] That he’ll divorce her—that’s how it sounds. No, no. “Love your neighbor as yourself” means that she becomes repulsive to him. It’s just that this becoming repulsive can be on two levels. There can be a kind of repulsiveness such that he’ll divorce her, and then that’s—
[Speaker D] really a prohibition, and there can be a kind of repulsiveness such that it’s—
[Rabbi Michael Abraham] not okay, less good, but not a prohibition.
[Speaker D] I read it innocently as meaning that he won’t divorce her, and that’s the “love your neighbor as yourself”—that he’ll live with her and not love her. That’s the prohibition, that he’ll be nullifying—
[Rabbi Michael Abraham] Then why isn’t it the same with the woman?
[Speaker D] Right, so now the question arises why it isn’t the same with the woman, and then you have to say there’s no such concern.
[Rabbi Michael Abraham] No concern at all? Meaning, the woman doesn’t care who her partner is?
[Speaker D] You can’t say none.
[Rabbi Michael Abraham] So I think you can, but it—
[Speaker D] It seems to me there’s none when they’re in a situation where it was always an upgrade.
[Rabbi Michael Abraham] No, it was always an upgrade, but still she wants this partner or that partner.
[Speaker D] There are better upgrades. But when she compares it to her ordinary situation, she’s satisfied, whereas with the husband that’s not the case. So therefore she’ll agree to tolerate more.
[Rabbi Michael Abraham] I don’t think that’s correct.
[Speaker D] It seems to me the problem is the divorce itself. The divorce is the expression of the more painful disgrace.
[Rabbi Michael Abraham] That’s what he said. He basically said—leave it, on the contrary—even if he doesn’t divorce her, that’s even worse, because he continues living with her while really not wanting it.
[Speaker C] But that’s how it sounds. It sounds like the problem is the divorce itself.
[Rabbi Michael Abraham] No, the problem is a situation that could lead to divorce—don’t do that. Don’t create a betrothal of the kind that has a significant chance of eventually leading to divorce. And what is the disgrace? Meaning the disgrace—
[Speaker C] is because she may become repulsive to him. I’m saying it’s not because of the concern that maybe she’ll become repulsive, and then that’s the problem.
[Rabbi Michael Abraham] No, I don’t think so. That’s what I’m saying, because this issue of becoming repulsive applies on her side too. Maybe he’ll become repulsive to her, but she won’t give up the match. She can’t divorce him anyway, but she won’t give up the match, so there it isn’t a prohibition. For the husband, it is a prohibition. All right? Now, from the fact that there is a difference between husband and wife, I’m inclined to think that the problem really is the concern that they may come to divorce, and not merely living together while being repulsive to one another, because that is true on both sides. In terms of the suffering of a woman who gets divorced—that’s the point.
[Speaker D] Because basically everyone suffers now, and “love your neighbor as yourself” means don’t create suffering in the world.
[Rabbi Michael Abraham] There are different levels of “love your neighbor as yourself.” There is a “love your neighbor as yourself” that leads to divorce, and that is of course on a more severe level; here it really counts as a prohibition. Okay, so that’s point one. Point two: there can sometimes be a situation where, when the woman or the man sees that they made a mistake in their decision, it could be that the betrothal is nullified altogether and there’s no need for a divorce. They didn’t become betrothed on that basis; they didn’t consent to that.
[Speaker D] You can say that in any transaction. Right. If a person bought through an agent, then it’s void.
[Rabbi Michael Abraham] I didn’t say it is void, but it can reach a state where it is void. It doesn’t say the divorce is automatically cancelled. If suddenly she says, “Wait, wait, he is repulsive to me,” and “if I had known, I wouldn’t have wanted it,” or he says that, then fine, that can be claimed. And then it may be that it’s not only a concern lest they divorce, but that the whole story is clarified retroactively as something that wasn’t a valid betrothal to begin with. Now why am I saying this? Just as a side note—I’m using it to make another remark. Because it’s commonly thought that with betrothal there’s no such thing. Really?
[Speaker C] In the formula of betrothal it doesn’t say, “I betroth you on condition that…” It doesn’t have to say it.
[Rabbi Michael Abraham] According to the law of Moses and Israel—what?
[Speaker C] Like with vows: “I betroth you only on condition that I benefit from the marriage, and if not then it’s void”?
[Rabbi Michael Abraham] No, no, you don’t have to say that. These are things that are in his heart and in the heart of every person. In any case of mistaken transaction, if you state it explicitly, then it’s a conditional betrothal. A mistaken transaction is always when you don’t state it explicitly, but we understand that any reasonable person would have had that in mind even without explicitly stipulating it. Tosafot in Kiddushin 49—there Tosafot says that things in one’s heart and in the heart of every person don’t need to be stipulated; you don’t need a formal condition, you don’t need to stipulate them.
[Speaker D] So why isn’t this considered a mistaken transaction if indeed he is sufficiently—
[Rabbi Michael Abraham] What? Regardless of what you’ll say about mistaken transaction here—
[Speaker D] No, I don’t know. There may be room where it could also reach that, I don’t know. But the plain sense of “love your neighbor as yourself” is something much more severe.
[Rabbi Michael Abraham] No, I’m saying: even in a situation where it’s only “love your neighbor as yourself.” I’m just saying there could also be an even more extreme situation. But it could exist even in such cases. Why am I saying this? Because the Talmud—why am I saying this?
[Speaker C] Because the Talmud says that this isn’t supposed to be a problem, in that if a woman wants to divorce and he can’t, she can say—
[Rabbi Michael Abraham] to him in the end, “I won’t be with you.” Exactly. That’s why I’m saying it. If that really is the situation, then there’s no difference between husband and wife. Then it really is symmetrical. Now why am I saying this? Because in Bava Kamma the Talmud seemingly says that the presumption “it is better to dwell as two” is absolute. There is no situation where a woman can say, “I consented by mistake.” Because that is basically the meaning of “it is better to dwell as two.” “It is better to dwell as two” means: I want companionship, period. I don’t care if he’s afflicted with boils, I don’t care what he is—whatever you want. None of that matters. In that view, it basically means that a woman has no claim of mistaken transaction in betrothal at all, or “I did not consent on that basis.” By the way, mistaken transaction and “I did not consent on that basis” are not exactly the same thing. Mistaken transaction is when there was some feature in the deal that was not disclosed to one of the parties. “I did not consent on that basis” is when something happened afterward. Something happened later, but if I had known now that it would happen later, I wouldn’t have consented now. Those are two different things, but the basic idea is the same: it’s some kind of implicit condition.
[Speaker C] But it’s a strong presumption, a real presumption. Right. And if it’s reasonable to assume she doesn’t want—
[Rabbi Michael Abraham] No, no, but it’s never reasonable to assume she doesn’t want it—that’s the claim. Even if she says so, they’ll say she’s saying it because she wants that now, but that doesn’t prove anything. A woman can’t just bring proof that at the time of the betrothal this is what she wanted; they’ll tell her that now her mind has changed. But at the time of the betrothal, the presumption regarding a woman is “it is better to dwell as two”; she consents at any price. Again, that’s me defending what I don’t agree with. But that’s how people commonly think in the rabbinical courts, and practically that’s what they’re used to, because the Talmud in Bava Kamma 110a speaks there about someone who became subject to levirate marriage before a man afflicted with boils. Her husband died and the husband’s brother is afflicted with boils. So the Talmud says: fine, maybe we should say that if she had known she would become subject to levirate marriage before a man afflicted with boils, she would not have consented. And then there is no betrothal, and if there is no betrothal then she is not bound by levirate marriage. Okay? So the Talmud says: “it is better to dwell as two.” Is a man afflicted with boils something permanent? What?
[Speaker C] Is a man afflicted with boils something permanent? It’s not temporary?
[Rabbi Michael Abraham] As far as I know, it’s permanent.
[Speaker C] But even if the court is convinced that she doesn’t want—
[Rabbi Michael Abraham] No, no. The court is convinced that she does want it, because “it is better to dwell as two.”
[Speaker C] It’s a rule that was established.
[Rabbi Michael Abraham] Fine, but she’ll never in her life be able to prove that for her it isn’t so, because the presumption is the opposite. So what will she do? How can she prove it? She’ll say so—but the fact that she says so proves nothing. So there are no cases where it really—
[Speaker D] Just a question.
[Rabbi Michael Abraham] No, so I’m saying: in the rabbinical courts it’s customary—I personally had some struggles over this—in the rabbinical courts it’s customary to think that there is no such thing; that is, betrothal is immune to claims of “I did not consent on that basis,” or mistaken transaction, or anything like that.
[Speaker D] The question is what the Talmud meant. What is the law when I have a very strong reason against the presumption? After all, this is a presumption, not—
[Rabbi Michael Abraham] Obviously. I’ll say more than that: the Talmud there speaks, for example, about a situation where—after all, she lived with the first husband and then he died, and then she became subject to levirate marriage before a man afflicted with boils. What if it had been discovered that the husband himself was afflicted with boils? Can you really infer from the Talmud that from her standpoint that would clearly be fine? I can absolutely understand that a woman is willing to marry a normal husband even at the risk—because she doesn’t know in advance—that if he dies she’ll become subject to levirate marriage before a man afflicted with boils. But if the husband himself, the very partner she took, is himself afflicted with boils—who says that she would consent on that basis? I’ll say more than that: the Talmud there itself asks why we shouldn’t nullify the betrothal with the claim of “I did not consent on that basis,” and it answers: “it is better to dwell as two.” Meaning, on the conceptual level, of course there is mistaken transaction even in betrothal. And the Talmud says: my assessment of women’s attitudes is that “it is better to dwell as two.” Fine—if that’s an empirical assessment, then we have to examine reality and see whether that assessment is correct or not. For example, with women today it’s obvious that it’s not the same as what the Talmud describes. Women today do not consent to just any partner—a violent partner, whatever you want, okay? Again, I’m saying this depends on whether he became violent later or was violent from the outset and she didn’t know, and all sorts of things like that; those are distinctions I’m not getting into here. But on the principled level, here and there in the halakhic authorities you can see them using the claim of mistaken transaction even for betrothal in extreme cases. For example, Maharam of Rothenburg speaks about a case where she becomes subject to levirate marriage before an apostate. An apostate is worse than a man afflicted with boils, and he argues that in that case the betrothal is void. Fine—it depends on women’s attitudes, so that can be assessed. But you see that in principle you can assess whether something is significant enough that a reasonable woman would not consent to betrothal on that basis. For example, where did this issue come up for me? I once sat on a rabbinical court panel before whom came a woman from a young couple—two idiots, two idiots who got married at age seventeen or eighteen. And after the wedding was over, the groom never arrived at the hotel. They had arranged to get to the hotel on the first night—he vanished. Two days later they found him in the United States, living with another woman, with a home already prepared in advance there. And of course all the wedding money was with his mother; she took the wedding money. Now they got dragged around in rabbinical court for years over this whole story. Wait—she did a get, and he wasn’t willing to give a get, he was a get-refuser; they sent to him, bribed him, gave him money from the Rabbinate’s agunot fund so that he would give a get, and so on. And we there on the panel said the betrothal was void—there was no need for a get. Why? Because that’s what the Talmud says: “it is better to dwell as two.” Why is the woman willing to accept any defect in her husband? Because she wants companionship, she wants to live with him. Fine—but here he didn’t come with her after the wedding to the first night; she didn’t get her “as two.” Meaning, if she gets the “as two,” she’s willing to swallow any deficiency he has. But here she didn’t get the “as two” itself. So here we don’t even have to get to the question whether the deficiency is so significant that it nullifies her original consent. About that one can argue—an apostate, a man afflicted with boils, I don’t know—what counts as bad enough to say that the woman did not consent on that basis? But here that’s not even the question of how bad what happened was. She didn’t get the “as two”; she didn’t receive the consideration for which she consented. So what’s the problem?
[Speaker D] The question is whether a woman can make a condition—that’s the point. Have we found such a thing, that a woman receives—it doesn’t—
[Rabbi Michael Abraham] No, no, a woman can make a condition. I wrote that there in that same responsum. Yes, yes—I can show you, it’s written explicitly in the Shulchan Arukh. No, it’s written in the Shulchan Arukh that both the husband and the woman can make conditions.
[Speaker D] Yes, and then if the condition is not fulfilled, that would nullify the betrothal?
[Rabbi Michael Abraham] There’s no doubt about it. Whether husband or wife—correct. At some point in the Talmudic discussion I suddenly got nervous because I saw there are no examples in the Talmud of the woman stipulating a condition. But it’s written in the Shulchan Arukh, I think—in Maimonides, I believe—that both husband and wife can do it conditionally.
[Speaker D] And ordinarily it just doesn’t appear in the Talmud; for the husband there are loads of conditions.
[Rabbi Michael Abraham] They discuss—discuss—you know, “the Torah speaks in the common case,” meaning that’s usually what happens. Also, mainly because of “it is better to dwell as two,” and once you have “it is better to dwell as two,” the woman also doesn’t make conditions, because she wants the companionship.
[Speaker D] But here it’s a circumstance with complete proof.
[Rabbi Michael Abraham] Fine, and the Talmud ignores all that—what about “it is better to dwell as two”? The Talmud ignores it; from the Talmud’s standpoint women want companionship at any price.
[Speaker D] No, so I understood from that that because of “it is better to dwell as two,” they basically say that she does not have the ability to make conditions in this transaction.
[Rabbi Michael Abraham] But “better to sit as two” is an assessment; in these circumstances there is no “better to sit as two,” because she does want this. This is not some rule handed down at Sinai; it’s an assessment of reality. So if there are women for whom there is no “better to sit as two,” then wouldn’t that solve the problem?
[Speaker D] Well, if—
[Speaker C] You’re saying that the Shulchan Arukh says that, so if so… if we assume that a woman wants a relationship at any price, then how can we say that kiddushin that the woman does not consent to are invalid? Seemingly you’re saying that…
[Rabbi Michael Abraham] What do you mean? If she—this is all inner intent. Meaning, if she consented, she can’t say, “In my heart it wasn’t like that or like that,” because of “better to sit as two.” Wait, but if she consented—if she did not consent, rather, and she says, “I do not agree,” that is not inner intent. Then she is saying, “I’m not like that.” What are you going to do—force her to be like that? The woman’s consent is required. So it’s not… it’s like, you know, there’s Rabbi Shimon Shkop: we follow the majority in monetary matters. The rule is that there is a dispute between Rav and Shmuel; in practice we rule that we do not follow the majority in monetary matters. Meaning, if there is a majority, we do not extract money based on the power of a majority. Now this is very difficult from various places, not important right now; Tosafot raise difficulties and contradictions and so on. It is also difficult in itself—why don’t we follow the majority in monetary matters? But Rabbi Shimon Shkop explains: the Talmud, when it says we do not follow the majority in monetary matters, is talking about a dispute between buyer and seller, where the seller sold an ox for plowing to the buyer. He sold an ox to a buyer, okay? Now the buyer took it to plow, and the ox died. Okay? So he comes to the seller with complaints: “What kind of ox did you sell me? It died on me on the first day I went to plow with it.” He says, “What are you talking about? You bought it for slaughter, not for plowing—for slaughter. You slaughter it; it doesn’t have to be sturdy enough to hold up.” So he says, “What are you talking about? I bought an ox for plowing.” So there is a dispute whether he bought it for plowing or for slaughter. Okay? So the Talmud says that most buyers buy for plowing, but we do not follow the majority in monetary matters. Okay? So the assumption is that if you say—if the seller says he bought it for slaughter—that’s his right; meaning, we do not follow the majority in monetary matters.
[Speaker C] And in that case, wouldn’t he have to distinguish based on the price?
[Rabbi Michael Abraham] No, there “prices do not indicate”; it’s not relevant, they discuss it there. Rabbi Shimon Shkop explains that in most cases where the majority is for plowing, yes, we do follow the majority in monetary matters. “Most are for plowing” is a special kind of majority. Why? Because it is a majority that depends on human decisions. Most people buy an ox for plowing and not for slaughter, and if there is someone who buys an ox for slaughter, there is nothing strange about that. Obviously, all of us buy oxen for slaughter too; it just happens less often than oxen for plowing. A person comes and says, “Friends, I bought an ox for slaughter—that’s what I wanted,” or “I sold,” it doesn’t matter—“an ox for slaughter, that’s what I wanted.” So it is not a strange claim when he says, “I bought an ox for slaughter.” True, it is a minority of people, because most oxen are sold for plowing, but the minority here is not a strange minority. If I say that is what I wanted, no problem—that’s my right, that is completely normative behavior. Right? I say that I’m six foot five. Okay, there—what do you mean? Most people aren’t six foot five. True, but I am. When you have a natural, ordinary process, you say it happens by chance. In a random draw, the result comes out with higher probability on the side of the majority and not on the side of the minority. Here it is not a random draw; it is a person’s decision—he wants slaughter or he wants plowing. So if he says, “I wanted slaughter,” then why should I care that most of the world wants plowing? I wanted slaughter. Okay? So it’s a bit similar to this claim. What happens if the woman says, “I don’t want”? True, most women consent in any case, “better to sit as two”; then a woman comes and says, “I don’t want, I’m different.” No problem. If she says that, then everything is fine. If she didn’t say it and later wants to claim that she is like that, then they’ll tell her: no, prove it, because matters of the heart are not legally recognized, and most women are not like that, and therefore I do not accept what you are saying—you need to prove it. But the claim itself, if she said it in advance, fine; then she says, “I belong to the minority.” What is the problem? That is allowed. Fine. So what did they do in the end in the court? We voided the kiddushin, but we are not a Rabbinate court. In the Rabbinate court, in the end, after they bribed him with money, he gave her a get. It seems to me they were terribly proud that they wasted public money to bribe a person to obey the law. Only in the Chief Rabbinate do you get things like this; it is simply unbelievable. They maintain a fund from public money in order to bribe criminals not to break the law. Is that the way? That’s not the way at all. Here the kiddushin are void, and you don’t need any of this at all. In a place where it is needed, beat him until he gives the get, that’s all. A payoff—don’t give him. What does it mean to bribe criminals? I have never heard such a thing in my life. It is simply unbelievable.
[Speaker D] That’s because you think there is an alternative, that’s all. Obviously. Okay, so this isn’t a disagreement about the solution itself.
[Rabbi Michael Abraham] In a place where you reach these absurdities, you need to consider the alternatives more seriously. And they didn’t consider them. The fact is that they change their policy; those pressures from around them work, their policy changes.
[Speaker D] That’s because of a change in the cultural climate outside.
[Rabbi Michael Abraham] Exactly—that’s what I’m talking about.
[Speaker D] Not because they suddenly came to the conclusion that the earlier authorities were wrong in the halakhic ruling.
[Rabbi Michael Abraham] No, all you’re trying to get them to do is reconsider precisely that cultural change, and in the end that is what they do—but at their own pace.
[Speaker C] It was simple there, on the level that she married a homosexual man—it turned out that he was homosexual—and they voided the kiddushin.
[Rabbi Michael Abraham] Right, I also think so; that seems simple to me. No get is needed, nothing. It seems simple to me as a matter of reasoning. Here too it was something that already existed; it’s not something that emerged later. An abusive husband, for example, is more complicated, because that developed afterward.
[Speaker D] There are lots of questions here: how would you know that it already existed, and besides—
[Rabbi Michael Abraham] There is a simple view that homosexuality is of that sort.
[Speaker D] A simple view that such a thing can be delayed and emerge later.
[Rabbi Michael Abraham] No, it can, but the question is what the likely case is. The question is not what can happen; the likely case is that this is something that is his nature. I don’t think—well, that’s another discussion. Okay, so let’s look at Maimonides. “It is a commandment for a man to betroth personally rather than through an agent, and similarly it is a commandment for a woman to have herself betrothed personally rather than through her agent. And although a father has permission to betroth his daughter when she is a minor and when she is a young maiden to whomever he wishes, it is not proper to do so; rather, it is the commandment of the Sages that a man should not betroth his daughter when she is a minor until she grows up and says, ‘I want so-and-so,’ and similarly it is not proper for a man to betroth a minor girl.” Okay, that last part about the minor girl—that’s already the continuation of the Talmud. But what does Maimonides say? Maimonides rules that it is a commandment to betroth personally rather than through an agent, and it is a commandment for the woman to have herself betrothed personally rather than through her agent.
[Speaker C] And he doesn’t explain why.
[Rabbi Michael Abraham] He doesn’t explain, but not only that—right—it’s a preference, not a prohibition.
[Speaker C] Where does he say it?
[Rabbi Michael Abraham] In Maimonides, chapter 3 of the Laws of Marriage, law 19. And that’s it—I just read law 19.
[Speaker C] No, elsewhere he does speak about this prohibition.
[Speaker D] No, about a minor girl; that—about the minor girl, we’ll soon see, that’s—
[Rabbi Michael Abraham] In the continuation of the Talmud. The Talmud later speaks about a minor girl. The Talmud later speaks about a minor girl. But here it seems he rules like the first version, and in the first version it is “a commandment is better done personally than through an agent,” and he does not bring the prohibition and the concern “lest she become repulsive to him”; rather, it is “a commandment is better done personally than through an agent,” the general rule that applies not specifically to kiddushin but generally to the performance of commandments.
[Speaker C] I brought here from the Laws of Forbidden Sexual Relations: “These matters are prohibited by rabbinic decree, and it is permitted to look at the face of an unmarried woman and examine her, whether a virgin or not, in order to see whether she is pleasing in his eyes.” Okay. And there is no element of prohibition in that?
[Rabbi Michael Abraham] Fine, that’s not related. It’s not related.
[Speaker D] It doesn’t say here about a minor girl. It says, “And similarly it is not proper for a man to betroth a minor girl, and he should not betroth a woman until he sees her and she is fit in his eyes, lest she not find favor in his eyes and he end up divorcing her,” and he says—
[Rabbi Michael Abraham] Ah, right, “and he should not betroth a woman”—sorry, right, it appears here: “and similarly, it is not proper for him to betroth a minor girl, and he should not betroth a woman until he sees her and she is fit in his eyes, lest she not find favor in his eyes and he end up divorcing her.” Right, right, I didn’t notice that part about the woman.
[Speaker D] The opposite: regarding the minor girl there is no prohibition, because he sees her and sees that she finds favor in his eyes.
[Rabbi Michael Abraham] No, no, no. With a minor girl it’s something else. With a minor girl the prohibition is from her side. Just a moment, just a moment—we’ll see the minor girl. Right, you are correct: in Maimonides there is the woman. So Maimonides—the Talmud later says as follows: “A man betroths his daughter when she is a young maiden.” When she is a young maiden, yes; when she is a minor, no? This supports Rav, for Rav Yehuda said that Rav said, and some say Rabbi Elazar: “It is forbidden for a man to betroth his daughter when she is a minor until she grows up and says, ‘I want so-and-so.’” What is going on here? Here it is not that he does not see her—they do see. But the minor girl is simply still a minor, so she cannot make decisions, and then when she is older she might suddenly say, “I would not have consented to him if I had been of sound judgment; if they had asked me, I would not have consented.” Therefore, when she is a young maiden there is no problem, and when she is a minor there is. So the problem here is this concern “lest she become repulsive,” but not because they do not see one another; rather, because the opinion of a minor girl is not a full-fledged opinion.
[Speaker C] And in tractate Ketubot it says why a rapist pays the fine to the young maiden and not to the young maiden—because the father has the right to sell off his daughter’s marriage to whomever he wants in exchange for money that he will receive; meaning that the rapist harmed the father’s financial interest. Okay, seemingly the father can also betroth—
[Rabbi Michael Abraham] Obviously he can; it says that it is forbidden because—obviously he can.
[Speaker C] But one more thing: what you just read—isn’t that from the Talmud?
[Rabbi Michael Abraham] It is from the Talmud. But it does not say that he cannot betroth her; he can betroth her, it’s just forbidden. This is “forbidden” in the sense—
[Speaker C] —of not advisable.
[Rabbi Michael Abraham] What have we been doing until now? He can betroth through an agent, but it is forbidden. He can betroth through an agent, but it is forbidden, because he needs to see her so that she will not become repulsive to him. But if he betroths her through an agent, the kiddushin are valid. I said even more than that: not only are the kiddushin valid, they are also no less good in terms of the quality of the kiddushin themselves. It’s just that there are certain concerns here, okay? And Tosafot write: “It is forbidden for a man to betroth his daughter when she is a minor, even though above it was said that there is no prohibition because of ‘better to sit as two.’” After all, in the case of a woman there is no prohibition, only “a commandment is better done personally than through an agent.” Why is there no prohibition? Because with the woman there is “better to sit as two.” So what happens here, that with a minor girl suddenly we do see a prohibition? So he says: that applies to an adult woman, who becomes betrothed by herself, for since she consented there is no concern that she might later retract; but with a minor girl, who becomes betrothed by her father, there is concern that had she been older, she would not have consented. He narrows “better to sit as two” even further. He says: what is “better to sit as two”? When the woman consents to become betrothed without having seen the husband, that means she is willing to accept any relationship whatsoever. But she has to say that, from her perspective, this is okay. In the very act of consenting to the betrothal, she is saying that. With a minor girl, when she “consents” to the betrothal, her father is forcing her; she herself said nothing by that, nothing that indicates she consents. So it comes out that the whole presumption of “better to sit as two” is a presumption founded on the fact that the woman says that “it is good for me,” that “it is good for me to sit as two.” How does she say that? By the very act of consenting to the betrothal. But with a minor girl that really does not exist. Meaning, it is not even correct to say that an ordinary woman simply wants any relationship at any price. That too is not correct—even in the period of the Talmud, not to mention our own times. Rather, because the woman sends the agent, apparently she does not care. If she says she does not care, then fine. But the minor girl did not say by this that she does not care, because her father is forcing her. And therefore now, when we customarily marry off our daughters even when they are minors, Tosafot say: that is because every day the exile grows harsher upon us, and if a person now has the means to provide his daughter with a dowry, perhaps later he will not have the means; he should marry off his daughter suitably while he can. Yes, if this is done for the daughter’s benefit, then this is indeed permitted. Fine. So here I made a mistake regarding Maimonides, because at first I thought the Shulchan Arukh said otherwise. There is also a prohibition on betrothing—but Maimonides too writes that it is forbidden to betroth; your earlier remark was correct. The Shulchan Arukh writes as follows in section 36: “A woman may appoint an agent to receive her kiddushin, and it is a commandment that she become betrothed by herself if she can, but there is no prohibition as there is with the man.” Here you see the difference between the commandment and the prohibition, right? It is a commandment that she become betrothed herself and not through an agent—that certainly exists for the woman too. Why? Because that is not related to becoming repulsive; it is the general rule for all commandments that a commandment is better done personally than through an agent. The prohibition does not exist in the woman’s case because of “better to sit as two.” Here, regarding the man, it is written: “A man may appoint an agent to betroth a woman for him, whether an unspecified woman or a particular woman, and the agent says, ‘Behold, you are betrothed to so-and-so.’ But if he is able to betroth her himself, it is forbidden to betroth her through an agent unless he knows her.” Again, the prohibition is because of the concern “lest she become repulsive”; therefore, if he knows her, then it is permitted—“lest afterward he find in her some unseemly matter and she become repulsive to him.” “But in any case, even though he knows her, it is a commandment that he betroth her himself if possible.” Why? Not because of the prohibition—because of the commandment, right? “A commandment is better done personally than through an agent.” So again, this sharpens very much the distinctions we made earlier between commandment and prohibition. What about a father and a minor girl? “It is a commandment not to betroth his daughter when she is a minor until she grows up and says, ‘I want so-and-so.’” Is that a preference or a prohibition? A positive commandment. It says “commandment,” but it seems to me that “a commandment not to betroth” sounds more like a prohibition. A commandment not to do something is a prohibition; prohibitions are prohibitions even if the wording is “commandment.” Look in Chelkat Mechokek there, subsection 14, small paragraph 11, who writes as follows: “It is a commandment not to betroth his daughter when she is a minor”—that is, even though in the Talmud they said it is forbidden to betroth his daughter, it is possible that when he says to her, “Go out and receive your kiddushin,” there is no prohibition; nevertheless, it is a commandment to wait until she grows up. What does he understand? Regarding the Shulchan Arukh, he understands that this is not a prohibition, only a preference.
[Speaker C] But there is a prohibition, which is why he gives an interpretive reading, right?
[Rabbi Michael Abraham] But the Talmud says “forbidden”—
[Speaker C] —to betroth his daughter when she is a minor.
[Rabbi Michael Abraham] Okay, he says that in the Shulchan Arukh too the assumption is that the Shulchan Arukh understands this as a prohibition, not as a preference. Why doesn’t the Shulchan Arukh write “prohibition”? After all, it says “a commandment not to betroth,” and he understands “a commandment not to betroth” not as a prohibition but as a preference. I’m not sure he’s right about that, but that’s how he understands it, so he gives an interpretive reading. Yes—when he says to her, “Go out and receive your kiddushin,” there is no prohibition.
[Speaker D] A strange interpretive reading, because why should there not be a prohibition in that case?
[Rabbi Michael Abraham] Because if she receives her own kiddushin, then apparently, for this purpose, even though she is a minor, her expression of opinion is apparently enough. It doesn’t matter right now; that is the interpretive reading he gives. Meaning, on the one hand it is clear to him that there is a prohibition—which of course is also written in the Talmud. On the other hand, in the Shulchan Arukh he reads it such that “a commandment not to betroth” is a preference, not a prohibition. Okay? So he gives an interpretive reading; the straightforward reading is not like that. And Beit Shmuel there indeed disagrees with him. “It is a commandment not to betroth,” and it says earlier in tractate Sanhedrin, “a commandment to perform them.” The Bach and the Perishah wrote that this means a minor girl who has enough understanding to say, “I want so-and-so,” and what it writes here, “until she grows up and says,” is just the usual way of speaking. It doesn’t matter. And what it writes is “commandment,” while in the Talmud it says “forbidden.” Again, he too starts from the point of departure that when the Shulchan Arukh says “commandment,” that is not the prohibition. Chelkat Mechokek wrote: this is in the case where he says to her, “Go out and receive your kiddushin”; there is no prohibition. But that is forced, because it does not mention that it is speaking of a case where he says to her, “Go out.” Right? This interpretive reading of the Shulchan Arukh is an interpretive reading without the text saying so. Rather, it appears that the law is not in accordance with Rav, who said it is forbidden, for we find several cases in the Talmud where they did betroth minors. Therefore the Mishnah wrote in the chapter “Even though” that it is only a commandment, in order to satisfy Rav’s position. So it is not a prohibition but a commandment. Again, this distinction between prohibition and commandment exists in the topic of utensils too—what I said earlier about the positive state and the… negative state. They do not see those as two things of equal standing. There is a difference between a commandment and a prohibition. He argues that according to the Shulchan Arukh, the law is not in accordance with Rav who said this is a prohibition, for various reasons. By the way, it could be that the Shulchan Arukh writes that because of Tosafot—so even if the law is in accordance with Rav, still nowadays we customarily betroth even minor girls, only ideally it is proper not to do so. But I do not—I think neither this nor that is necessary. When it says “It is a commandment not to betroth his daughter when she is a minor,” it does not mean “a commandment to betroth his daughter when she is grown,” but rather “a commandment not to betroth his daughter when she is a minor.” That is a prohibition. A negative commandment. Okay? Therefore I am not sure they are right about this matter.
[Speaker C] But what is the source that it is forbidden for a man to betroth his daughter, aside from the Mishnah? What? What is the source that it is forbidden to betroth one’s daughter?
[Rabbi Michael Abraham] What do you mean, source? From the Talmud here. Are you talking about a source from the Torah? It is not a negative commandment. It is not a negative commandment, yes. It is not a formal prohibition counted as a negative commandment; it is an issur, yes. “Love your neighbor as yourself,” or a moral prohibition, or a prohibition derived from reasoning, yes. It is not an enumerated negative commandment. Okay, I see our time is up; I’ll have to complete this a bit next time. Okay, let’s stop here.
[Speaker C] What should we prepare for next time? Which topic?
[Rabbi Michael Abraham] Keep going. Meaning, next time I’ll need at least part of the class for this issue of “a commandment is better done personally than through an agent.” If you want, think a bit about the question whether this speaks specifically about agency—certainly yes—whether it speaks specifically about agency. Whoever wants can look here at Ha-Makneh, and at the Ran, the Ran on the Rif; you can look at those too, and keep going as you—