Kiddushin – Chapter 2 – 5783 – Lesson 2

Table of Contents

• Choshen Mishpat, Even HaEzer, adjudication versus halakhic instruction
• Maimonides at the beginning of the Laws of Marriage and the shift to a legal structure
• Reading the ketubah and emphasizing the contractual foundation
• Prayer before the giving of the Torah and the model of “constitutive” versus “directive”
• Constitutive and directive systems of law, and examples from tzitzit and soccer
• Law, warning, and punishment, and explanations from Sefer HaChinukh and Chesed LeAvraham
• The commandment of kiddushin: directive rather than constitutive, and its status as a commandment
• Types of positive commandments and the status of the commandment of divorce
• Divorce as a “two-story” model and understanding the nullification of the positive commandment
• An invalid bill of divorce, a defective bill of divorce, and the meaning of defects with no practical consequence
• “He set his eyes on divorcing her” and the halakhic implications
• Torah-level implications: inheritance, impurity, and a priest married to a divorcee
• Marriage without kiddushin (“Noahide marriage”) and kiddushin without marriage
• She’erut as the halakhic name for the marriage stage, and conclusion

Summary

General Overview

The text presents Even HaEzer and Choshen Mishpat as the legal and public parts of Jewish law, whose purpose is to regulate relationships between people through rights and obligations that can be claimed in court, unlike areas such as Yoreh De’ah where the obligations are mainly between a person and the Holy One, blessed be He. It places the institution of marriage as a social institution that existed before the giving of the Torah, and describes how the Torah added to it a legal layer of kiddushin as a binding foundation, in a way that creates “two stories” in the marital bond: a legal story of kiddushin and a social story of marriage. From this model it explains the nature of the laws in tractate Kiddushin as opposed to the relative vagueness of the laws of marriage, and develops halakhic implications from it, mainly around divorce, “he set his eyes on divorcing her,” and an intermediate state in which the marriage breaks down without dissolving the kiddushin.

Choshen Mishpat, Even HaEzer, adjudication versus halakhic instruction

The legal part of Jewish law includes Even HaEzer and Choshen Mishpat, and it functions like ordinary legal systems in which one person has rights that others have obligations toward. It defines Choshen Mishpat as the public part of Jewish law, and distinguishes it from Yoreh De’ah, where monetary obligations such as charity or interest appear as duties imposed on the individual and not as rights another person can claim in a religious court. It states that adjudication regulates relationships between human beings, and therefore Even HaEzer also belongs to adjudication, because personal status, marriage, and divorce are regulated in every social legal system and not only through halakhic rulings of prohibition and permission.

Maimonides at the beginning of the Laws of Marriage and the shift to a legal structure

Maimonides describes that before the giving of the Torah, a man would encounter a woman in the marketplace, and if they wished they would begin living together without a formal ceremony, and when they wanted to separate he would send her out of his house. Maimonides explains that after the giving of the Torah, the Jewish people were commanded that if a man wished to marry a woman he must first acquire her in the presence of witnesses, and only afterward would she become his wife, and this takes place within a legal framework called kiddushin, which creates an acquisition and a legal system governing the relationship. He argues that kiddushin does not replace the social institution of marriage but is added to it, so that what existed beforehand was afterward called “marriage,” and the Torah requires that kiddushin, also called erusin, precede it.

Reading the ketubah and emphasizing the contractual foundation

Reading the ketubah under the chuppah is not required by strict law and is intended to separate kiddushin from marriage. He explains that the choice to read specifically a legal document, even though it is in Aramaic and even though it interferes with the emotional experience, expresses the point that at the beginning of the relationship there is a contract and a mutual commitment, not only romance. He adds that a contract creates a stable basis for domestic peace through ups and downs, even if he does not know the underlying reason for the Torah’s requirement of kiddushin, and in any case he maintains that the Torah wanted this institution to be carried out within a legal framework with witnesses and many exacting rules. He presents marriage after kiddushin as a return to the social institution of “bringing her into his home,” with disputes about what exactly the chuppah stage includes, whereas the precise halakhic center is found in the laws of kiddushin.

Prayer before the giving of the Torah and the model of “constitutive” versus “directive”

He cites the Talmud in Berakhot regarding someone who recites the morning prayer after midday, that “he receives reward for prayer; reward for prayer at its proper time he does not receive,” and connects this to the dispute between Maimonides and Nachmanides whether prayer is Torah-level or rabbinic. He suggests that according to Nachmanides there was already an “institution of prayer” before the giving of the Torah, and therefore even after patterns and times were established there is still value to prayer outside its proper time, because the Torah does not come to destroy what exists but to add to it and refine it. He broadens this to concepts of “service” such as offerings and prayer, which in his view existed before the giving of the Torah, and the commandment only directs them rather than constituting them, and therefore even an act not done according to all the details still has significance if there is no indication that the Torah made those details indispensable. He explains the rule “the verse repeated it in order to make it indispensable” in the context of sacrificial offerings as reflecting the default assumption that details are not indispensable unless the Torah itself is stringent, because the act has value by virtue of being divine service in itself.

Constitutive and directive systems of law, and examples from tzitzit and soccer

He distinguishes between a constitutive system of rules, like chess, where deviating from the rules means you are not playing the game at all, and a directive system of rules, like traffic laws, where even someone who violates them is still driving on the road, just not properly. He cites the verse “and it shall be for you as tzitzit” and argues that it teaches that the concept of tzitzit is not constituted by the commandment but directed by it, as the Torah chooses a particular form for a symbol that could have received other expressions. He uses the example of a foul in soccer to show that some rules shape behavior within the system without removing a person from the game, and he compares this to the possibility of understanding parts of Jewish law as regulatory with regard to existing institutions. He notes that with directive commandments it is more plausible that the institution is drawn from the surrounding culture, because the Torah is shaping an institution that already existed beforehand.

Law, warning, and punishment, and explanations from Sefer HaChinukh and Chesed LeAvraham

He cites the words of Haim Cohen that in the Israeli law book the formulation is “the punishment for theft is such-and-such” and not “it is forbidden to steal,” and presents a liberal interpretation according to which the law is directed to judges and police rather than to the sovereign citizen. He cites Sefer HaChinukh, commandment 69, on “You shall not curse God,” which explains why the Sages say, “we have heard the punishment, from where do we know the warning,” because if there were only a punishment one could understand the system as a kind of “transaction” in which a person could supposedly do the act in exchange for paying the penalty. He quotes Chesed LeAvraham, which applies this idea to Jonah, and interprets his flight as “conscientious objection” by someone suppressing his prophecy and willing to absorb lashes, out of an ideological argument about repentance and forgiveness. He presents this as a model in which certain actions are like a foul in soccer, something found within the rules of the game and not as a violation of the lawgiver’s will.

The commandment of kiddushin: directive rather than constitutive, and its status as a commandment

He states that the commandment of kiddushin directs the marital institution and does not constitute it, because married life as a social institution preceded the giving of the Torah, and the Torah only shaped it through a legal layer. He adds that regarding the question whether kiddushin itself is counted as a commandment, Maimonides seems to imply that it is a commandment, whereas it is commonly thought that most medieval authorities (Rishonim) maintain that it is not an independent commandment but an instrument for the commandment of procreation. He emphasizes that the entire discussion in tractate Kiddushin and among the halakhic decisors deals with the details of the legal kiddushin, while marriage remains vague and takes different forms; therefore marriage does not require witnesses, whereas kiddushin does.

Types of positive commandments and the status of the commandment of divorce

He presents a mapping of positive commandments into four categories: an obligatory commandment that can be fulfilled and can also be nullified; a prohibition inferred from a positive commandment, which can be nullified but cannot be fulfilled; an existential commandment, which can be fulfilled and cannot be nullified; and a defining commandment, which can neither be fulfilled nor nullified, but rather defines a status. He criticizes the confusion that labels conditional obligatory commandments as existential commandments, and explains that tzitzit is a conditional obligatory commandment, because the obligation depends on wearing a four-cornered garment, but after that one can either nullify it or fulfill it. He brings examples of defining commandments in Maimonides, such as corpse-impurity and the annulment of vows, and interprets Sefer HaMitzvot as a law book that also includes definitional sections. He places the commandment of divorce in Maimonides and Sefer HaChinukh, which is formulated as “when we wish to divorce” and “He commanded us to divorce by means of a document,” and asks whether this is just a technical definition of what divorce is or whether there is a normative dimension here involving the nullification of a positive commandment.

Divorce as a “two-story” model and understanding the nullification of the positive commandment

He cites the language of Sefer HaChinukh that “one who divorced his wife and did not write her the bill of divorce… nullified this positive commandment,” and asks: if the bill of divorce only defines what divorce is, then someone who gave a piece of paper that is not a bill of divorce simply did not divorce her and did not violate any transgression of “divorce.” He suggests that the commandment of divorce reflects that same two-story model: the dissolution of the marriage can occur socially through the cessation of shared life, but without a bill of divorce the story of kiddushin remains and the woman is not free to marry. He explains that “when he wishes to divorce her” means that the marital bond has broken down and they have returned to the state of erusin, and then there is an obligation to release her completely by means of a valid bill of divorce so as not to leave her in a state of kiddushin without marriage. He states that this situation creates a nullification of a positive commandment and justifies the severity of the punishment because it leaves the woman in an impossible state, still under the law of a married woman.

An invalid bill of divorce, a defective bill of divorce, and the meaning of defects with no practical consequence

He cites Maimonides in the Laws of Divorce, chapter 2, halakhah 7, who distinguishes between a bill of divorce that is “void,” meaning void on the Torah level, and one that is “defective,” meaning defective by rabbinic law. He describes different categories of rabbinic defects, which sometimes lead to rabbinic mamzer status, sometimes require the woman to leave, sometimes require an additional bill of divorce, and sometimes do not even require anything further to be done. He quotes the question of Birkat Shmuel about a situation in which a bill of divorce is defective but has no practical consequence at all, and suggests that the meaning is fulfillment of the commandment in a less-than-ideal way, which assumes that the commandment of divorce also has an aspect of positive fulfillment and not only the prevention of nullification. He sees this as support for the view that divorce is not just a technical definition but an act with a normative dimension within Jewish law.

“He set his eyes on divorcing her” and the halakhic implications

He cites the topic of the ordinance of including a date in bills of divorce in tractate Gittin 17, and the reason of Reish Lakish, “because of produce,” on the assumption that once he has set his eyes on divorcing her he no longer has rights to the produce. He interprets this as a return to the state of erusin, in which the husband has no rights to the produce of her melog property, and emphasizes that the writing of the bill of divorce serves as an evidentiary indication of settled intent. He cites Gittin 18 regarding counting the ninety days of discernment “from the time of writing,” and Maimonides, who rules that from the day the bill of divorce is written one counts her as divorced, because he does not seclude himself with her once he has written it for her. He quotes Gittin 90 on the prohibition from the words of the prophets to have relations with one’s wife “if his heart is set on divorcing her,” and presents this as the definition of a “divorced in his heart” wife, which returns the relationship to the structure of erusin.

Torah-level implications: inheritance, impurity, and a priest married to a divorcee

He cites from Bava Batra 146 the case of a woman with bad breath, where he entered with her to examine her and divorce her, and a ruin fell on her and she died, and the Sages ruled that he does not inherit her, because he did not enter with her in order to have relations with her but to examine her and divorce her. He presents this as a Torah-level implication that when he has set his eyes on divorcing her, she is considered as having returned to the state of a betrothed woman, and therefore the husband’s inheritance, which depends on marriage, no longer applies. He quotes that the Rosh learned from the Rashbam that accordingly a priest also no longer becomes impure for her from the moment he has set his eyes on divorcing her, because impurity for one’s wife depends on the marriage stage. He brings an example from Gittin 35 in which a priest married to a divorcee may return to Temple service if he vowed to divorce her, and explains this as the cessation of the marriage story even before the dissolution of the kiddushin.

Marriage without kiddushin (“Noahide marriage”) and kiddushin without marriage

He argues that there is a reality of marriage without kiddushin, such as a couple living together in a fixed, institutionalized way without the rabbinate, which has halakhic status in terms of mutual obligations even without the prohibition of a married woman in the full sense of capital liability. He mentions Rabbi Dichovsky’s position that in the idea of “Noahide kiddushin” a bill of divorce is needed even without kiddushin, and rejects this by arguing that the bill of divorce dissolves the kiddushin layer and not the marriage layer, whereas here there is a second story without a first story. He presents the opposite situation as the case of “he set his eyes on divorcing her,” where there is kiddushin without marriage, similar to the stage after kiddushin and before chuppah. He states that these situations are intermediate states between a single woman and a fully married woman, and they explain the different obligations and restrictions created when only one of the two stories exists.

She’erut as the halakhic name for the marriage stage, and conclusion

He suggests that the halakhic definition of the marriage stage is the creation of “she’erut,” when the wife becomes “his fleshly kin,” and that this occurs only through marriage and not through kiddushin. He refers to the dispute in the topic of she’erut after death in tractate Yevamot, and to the discussion in which there is an initial assumption of “a married woman” on account of she’erut even after death, and presents this as part of the distinction between the statuses of kiddushin and she’erut. He concludes by saying that he did not have time to discuss the acquisition the husband has in his wife, and intends to continue with that later, and asks to begin moving on to the topics at the beginning of the chapter on “it is a greater commandment for a person to perform it himself than through his agent.”

Okay, last time I spoke a bit about the different branches of Jewish law: Choshen Mishpat, Even HaEzer, adjudication as opposed to halakhic instruction, what the meaning is of the legal part of Jewish law—which is Even HaEzer and Choshen Mishpat. And after that I focused on Choshen Mishpat itself, and the claim was that this is basically the public or open part of Jewish law, and it is built—contrary to what many people think—like ordinary legal systems, where one person has rights and corresponding to them others have obligations toward him. We saw the implications of that, that it’s different, say, from Yoreh De’ah, where there are obligations on me that do not correspond to someone else’s rights against me, like charity or interest, which are monetary prohibitions that appear in Yoreh De’ah. But there you can’t sue in a religious court, because what I need to pay you is an obligation imposed on me, not your right to receive from me. And obligations imposed on me are a matter between me and the Holy One, blessed be He. A religious court, or adjudication, or all these branches, are basically something meant to regulate relationships between different people. And in that sense Even HaEzer also belongs to that category, just as we see everywhere in the world that personal status is part of the legal system. Everywhere—not only monetary law, but also personal status, marriage, divorce—those too are regulated on the social level. And therefore in Jewish law too, it belongs to the branch of adjudication and not to the branch of issuing rulings on prohibition and permission.

At the end of the last class I started—remind me of your name? Oren what? You weren’t here last time. Okay, Tuviel? Good. I’m taking out sources, I’m just disconnecting this so it won’t bother us here in front of you. So at the end of the previous class we went into Maimonides at the beginning of the Laws of Marriage. Maimonides writes there—and I’ll read it again because that’s where I want to start now. Maimonides writes: Before the giving of the Torah, if a man encountered a woman in the marketplace, if he and she wanted to marry, he would bring her into his house and have relations with her privately, and she would thereby become his wife. Once the Torah was given, Israel was commanded that if a man wants to marry a woman, he must first acquire her before witnesses, and afterward she becomes his wife, as it says, “When a man takes a woman and comes to her.”

So Maimonides is seemingly telling us a piece of history here—what existed before the giving of the Torah—giving some background in order to understand what the giving of the Torah introduced. His claim is that before the giving of the Torah, if a couple decided to marry, then they simply began living together: “he brings her into his house,” and that’s it. It was not bound up with some ceremony or formal legal act. Rather, they simply began living together, and if they wanted to separate, he would remove her from his house. Meaning, this was not an act with a legal dimension; it was simply a decision of two people about what they want to do. Like if I want to play chess with someone, I don’t need first to make a contract that obligates us to play chess. If we play chess, we play chess, and if not, then not. There’s no need to define this state on a legal level.

When the Torah was given, it basically required that this thing be done within some legal framework—what is called kiddushin. And this legal framework basically creates some kind of—what Maimonides here calls an acquisition; we’ll see later exactly what that means—creates some sort of system. A legal system that governs the relations between the two; it isn’t a game of chess. And that is what the Torah basically wants from us.

Now, the difference between kiddushin and nissuin, which remains even at the legal stage of this institution—yes, after the giving of the Torah—does not mean that the part, or the form, that existed before the giving of the Torah disappeared. What happened before the giving of the Torah—after the giving of the Torah, that is called nissuin. And the Torah requires us to add kiddushin. Or erusin—kiddushin, these are all synonymous terms. There are arguments, kiddushin, nissuin, acquisition—all these are synonymous terms; they all basically mean kiddushin. And the Torah requires adding the dimension of kiddushin, but it does not remove what existed before, the social institution, the agreement between two people to live together. This isn’t just a contract like any other contract, like the ones we sign with a security guard. There is also some bond that is supposed to be created here, beyond the contract. The Torah only wants it to be done on the basis of a contract. What you put into it beyond that—fine.

When my eldest son got married, I spoke there under the wedding canopy, and I said that when they choose—after all, the reading of the ketubah under the canopy is actually not required by strict law. You don’t really need to read the ketubah. It’s done in order to separate between the kiddushin and the nissuin. And the question is why they chose specifically that separation, instead of, I don’t know, one round of dancing. Why do you need to read the ketubah? What’s the point? More than that, I think there are many people for whom this is very disturbing. You read this legal document there—not to mention that it’s in Aramaic—but you read this legal document about from where they’ll collect from him if he doesn’t give her what he owes her, from the cloak on his shoulders and all kinds of things like that. What are you bringing in here? The whole celebration is taking place here, the whole ceremony, cupids are floating around in the air, and then you start reading legal formulas about where they’ll collect the money if he doesn’t pay. So it’s good that it’s in Aramaic, if someone keeps it in Aramaic so it won’t disturb people too much. But there are people lately who insist on translating it into Hebrew. I’m not sure that—of course there’s no problem doing that, and the document itself ought to be in Hebrew, no problem. But I’m not sure that it adds to the ceremony.

What’s the meaning of this? Why did they really choose to separate between kiddushin and nissuin specifically by reading the ketubah? It seems to me it’s in order to say what Maimonides is saying here: that with all due respect to cupids and excitement and romance and all the romances written in literature and poetry and every artistic field, about love and the bond between husband and wife, at the very beginning there is a contract here. Meaning, first of all you need to obligate yourselves mutually to one another, and afterward build all the romance and all whatever else you want. But that is not the foundation. The system, the foundation, is first of all a legal foundation. And in that sense, I think the reading of the ketubah comes to express precisely this point. Meaning, with all due respect to all the excitement around it, don’t forget that there is some kind of contract here.

I’m not even talking about the dimension of stability this gives the matter—that when a couple is living together in a marital relationship, sometimes there are ups and downs, moods, quarrels, all kinds of things like that. If we understand that in the background there is some sort of contract—fine, a contract gives a stable basis, not every passing breeze dismantles this home. But that is of course a reason for the verse; why the Torah wanted us to add kiddushin—maybe for stability? I have no idea. But factually one thing is clear: the Torah wanted this to be done within a legal framework. It’s not merely a festive, emotional, experiential ceremony, but first and foremost the making of a legal contract. And in that sense it has to be done with witnesses and all the rules and formulas and all the smallest details that exist in Jewish law in the laws of kiddushin.

After the kiddushin comes the nissuin. Chuppah—it depends what exactly is included in nissuin; there are disputes, it doesn’t matter right now—bringing her into his house, chuppah, wrapping in a tallit, all kinds of things like that. So there are all sorts of disputes. But after you have done the legal dimension, you have crossed the legal dimension, of course you return to the social institution that existed before the giving of the Torah. It still exists; the Torah did not nullify it, did not replace it. It still exists, only one must precede it with this—and this is done first. It’s a later addition, but this addition tells us to do kiddushin first before entering into the matter of nissuin.

Now maybe I’ll bring some example so this becomes sharper. Look, there’s a Talmudic passage at the beginning of the fourth chapter in Berakhot. The Talmud says there, what happens if someone prays the morning prayer after noon, midday, okay? So the Talmud says: he has the reward of prayer; he does not have the reward of prayer in its proper time. Now as is well known there is a dispute between Maimonides and Nachmanides whether prayer is Torah-level or not. According to Maimonides, prayer is Torah-level and the details are rabbinic—the times, the formulas—but the principle that one must pray is Torah-level. According to Nachmanides, everything is rabbinic, except prayer in a time of distress; but ordinary prayer is all rabbinic.

Now according to Maimonides one can understand this Talmudic statement. “He has the reward of prayer” means he fulfilled the Torah-level aspect, but “the reward of prayer in its proper time” he does not have, because the rabbinic details he did not fulfill, since it was after the time. But according to Nachmanides, for whom everything is rabbinic, then what does it mean that he has the reward of prayer but not the reward of prayer in its proper time? If he did not pray at its proper time, then he did not fulfill what the rabbis established. There is nothing beyond what the rabbis instituted in prayer, according to Nachmanides. So how should we read this passage?

It seems to me that what Nachmanides really wants to say is: what was there before the giving of the Torah? Before the giving of the Torah, even according to Nachmanides, there was no commandment of prayer, right? Because there had not yet been a giving of the Torah; we had not been commanded. But people still prayed, right? Jacob prayed, for example; people prayed even before the giving of the Torah. What does that mean? It means that the institution of prayer existed before as well, and it was not an obligation; that is, there was no obligation to pray, and certainly not the patterns that the Sages later established for prayer, but the institution of prayer obviously existed beforehand. In the language of Rabbi Chaim, in some passing remark, he says: the objecthood of prayer exists, according to Nachmanides, at the Torah level; the obligation and the formulas and everything are rabbinic, but the objecthood of prayer—yes, that’s the Brisker expression, never mind—but what he means is this thing, that the concept of prayer existed beforehand.

Now what happens after the giving of the Torah? One might have said that after the giving of the Torah—or according to Maimonides, or not, or according to Nachmanides after the Sages established the rabbinic pattern of prayer—then everything that was there before is nullified. Meaning: now, if you did it as the Sages established, fine; if you didn’t do it as the Sages established, you did nothing. We are already after the giving of the Torah, after the Sages’ enactment; what do I care what was there before? But I think that’s not true. That’s what the Talmud here is saying: “he has the reward of prayer”—even after the giving of the Torah, even after the Sages’ enactment. “The reward of prayer in its proper time” he does not have. And why? Because if there was something before the giving of the Torah, it is clear that when the Torah was given, it did not want to destroy it or spoil it. At most it wanted to shape it, to add another layer of some kind—how to do it in a better, fuller, more precise way.

But clearly, if our forefather Abraham prayed in the afternoon—say, the morning prayer—then certainly he did pray, right? So why should it be that after the giving of the Torah, when I do the same thing, I am not praying? The Torah does not want to subtract; the Torah wants to add. The Torah says: if you want to do it precisely, do it at the proper time, according to the established formula, properly. But clearly if you did what Abraham our forefather did, at the very least you should get the same reward that Abraham had. And therefore, “he has the reward of prayer; he does not have the reward of prayer in its proper time.”

I explained there—and I once wrote an article about this—I explained that in every—we know there is a rule in the Talmud, a parenthesis, but it’s just interesting—there is a rule in the Talmud: if Scripture repeated it, that makes it indispensable. What does that mean? In the laws of sacred offerings—and this applies only in sacred offerings—if a certain law is written in the Torah, it is not indispensable; even if you did it without that, it is fine. Only if the Torah itself gives you a hint that it is indispensable—for example, if Scripture repeated it, meaning if the command is stated twice—or if it says “an eternal statute.” If it says “an eternal statute,” that too means it is indispensable. But by default, if there is no hint in the Torah itself, then it is not indispensable. And why?

And why specifically in sacred offerings? My claim was that sacred offerings, like prayer by the way, are what is called service, right? Service, service of God. When we speak about service of God, the concept has expanded to all of Jewish law, fine, and rightly so. But originally, what was called service? Offerings. And afterward, when offerings ceased, let’s say, then prayer, right? “To serve Him”—that is prayer. Maimonides himself, when he counts the commandment of prayer, writes it that way. It is service of God.

Now what does service of God mean? It means exactly that beyond the formal dimension—not eating pork is not service of God in this sense. That is a command we received at Sinai, and that is what must be done. But it has no value beyond the fact that we were commanded. And if we had not been commanded, we would not have been supposed to do it, and maybe there would not even be any point in doing it; we weren’t commanded. Okay. Service of God is something that does not begin with a command. You serve the Holy One, blessed be He, because He is the Holy One, blessed be He. After the Torah was given and commands were given, the Torah tells us how to do it more precisely. All true. But it does not come to remove what was there before.

Therefore, what I said before about prayer seems to me true for everything that is called service. When you do service of God—after all, offerings too were brought before the giving of the Torah, right? The Patriarchs offered sacrifices. Okay, what does that mean? That offerings, like prayer, are something not constituted by the command at Sinai; they existed beforehand. The command directs them. I spoke about this in the previous class—between constituting and directing. The command does not constitute them but directs them; meaning, they exist independently. And the command only tells us how to do them precisely, how to do them properly.

But clearly, if it exists independently and I did it not according to the command, you cannot say that I did something worthless. I simply did not do it precisely. But I did something that Abraham, Isaac, and Jacob did. For them it was good; it had value. So why should it not have value for me? Therefore also in sacred offerings, unless the Torah itself sharpens this—but if not, then we require Scripture to repeat it in order to make it indispensable. Meaning, if the Torah does not say it is indispensable, then if I brought a sacrifice the way Abraham our forefather did, not according to the details given at Sinai, it is still a sacrifice; it still has value. So why should the details be indispensable if I didn’t follow them? Fine. In a place where the Torah says, look, I want to cancel what was before and replace it with something else—fine, then it says “an eternal statute,” or repeats it, or something like that, and then it tells us: here I am nullifying what came before and not merely adding another level on top of it. But by default, if I have no such indication, all concepts of service are concepts the Torah did not invent; they are concepts that in principle we should have done even without the command. The Torah only refined them, told us how to do them more precisely. And therefore in all these dimensions there is value even if I do it not according to the rules.

My claim is not a historical claim. Meaning, historically, from my point of view, it could be that there was betrothal before as well. My claim is a normative claim. Meaning, the Torah says that this too must be done. Before the giving of the Torah it didn’t have to be done—maybe they did it, fine—like today, say, among non-Jews. Today among non-Jews there is a legal act that creates this bond, this personal status of husband and wife, but from the standpoint of Jewish law they are not obligated. And if they do it, fine and good. Therefore my claim is not historical, and neither, I think, is Maimonides’ claim. I don’t think Maimonides means necessarily to describe historically what was. Maybe that really was the case too, I don’t know, but that’s not the point. The important point he wants to tell us is how the marital bond is structured. The marital bond is built like this: first of all it is a social institution. After that, the Torah comes and shapes it. It tells us how to do it correctly. But not that it abolished the social dimension present in the matter. Its being a social institution remains as it was. Okay?

Now yes, yes, “when a man takes a woman”—the “taking” is the betrothal. Fine, you are asking how the Sages derived from “when a man takes a woman” that there is a legal act to be done, and made it into a commandment. Fine, good question, an interpretive question, but I’m describing right now how the Sages understood the verse. Fine? It can be read differently, I agree.

Okay, sorry, let me just add one more thing. Yes, so the point is that the Torah added the legal dimension. We need to understand that all the discussions we study in tractate Kiddushin and in the halakhic decisors all deal only with betrothal; there is almost no discussion of marriage proper. Here and there, this dispute among the decisors as to what exactly constitutes marriage proper—the wedding canopy, a garment, the house—what does it reflect? It reflects exactly this: don’t make too much of every detail. Meaning, marriage proper is not an institution that Jewish law shapes; it existed beforehand as well. Jewish law added betrothal. In betrothal there is very precise detail. What needs to be done? Something worth a perutah, that he gives her and says to her, and what she says, exactly how it must be done, and it must be his. And with a document, with intercourse, exactly how each thing is done—this is the whole of tractate Kiddushin and all the laws of marriage in Maimonides and Even HaEzer and so on.

And in marriage proper there is nothing; it remains something very amorphous, vague, that the decisors somehow try also to give some shape to, but not really successfully. Meaning, it doesn’t really have sources; it’s just—well—they try not to leave it completely amorphous, because after all Jewish law is supposed to be something definite. So I always feel that these laws are laws created ad hoc, yes? They don’t really have a true source. You just start living together; that is called marriage proper. That’s all. And betrothal is something the Torah defines well, and therefore all the laws touching on the matter. That is why, for marriage proper, for example, you don’t need witnesses, but for betrothal you need two witnesses. Marriage proper does not require witnesses; you simply begin living together. What do you need witnesses for there? Okay, this is something natural; it is not legal.

In this context, one should just know that there is a tendency in the yeshivot, in the analytic learning world, to think that all the laws the Torah introduces are constitutive laws. Meaning, constitutive—that Jewish law introduced the institution it shapes, and before it the institution did not exist at all. I gave a few examples before showing that this is not true. Meaning, there are parts of Jewish law that are directive, not constitutive—regulative. In analytic philosophy—I spoke about this last time—they distinguish between directive rule-systems and constitutive rule-systems. Yes, when I play chess, if I deviate from the rule, I haven’t committed an offense; I’m simply not playing chess, I’m playing something else. The system of rules defines the field of discussion; without it there simply is no chess. The traffic laws are a directive system. I drive on the road even if I’m not driving according to the law, but I need to drive according to the law because the laws tell me how to drive correctly.

What I want to say is that there are branches of Jewish law that are directive and not constitutive. Meaning, Jewish law takes an institution that already existed beforehand—it did not innovate it—and tries to shape it as it understands, as it demands from us. It’s like when you look at a verse. In the section about fringes, there is a verse: “And it shall be for you as fringes.” What does “and it shall be for you as fringes” mean? It’s superfluous. They tell us this: a four-cornered garment—put the fringes on it, do whatever, all the details of the Oral Torah—this is what shall be called fringes. Meaning, that’s what it’s called. Why do you need to tell me “and it shall be for you as fringes”? “And it shall be for you as fringes” means: I want this to be your fringes, not something else. When you talk about fringes, that is a concept that already existed beforehand. I want your fringes to be this, and not something else. That means that the concept of fringes is not constituted by the section of fringes, but directed by it. And Ibn Ezra, for example, says fringes are a symbol, like the forelock of the head. Yes, it is some symbol that represents you. And the Torah says: I want your symbol to be like this, okay? and not otherwise.

Because the first intuitive impression is: what are fringes? Whatever the Torah defines is fringes. Meaning, the laws of fringes constitute the concept of fringes; they do not direct it. Fine? Let’s see from the language of the Torah that this is not so. The laws of fringes direct the concept of fringes; they do not constitute it. Okay? I could have chosen another symbol; after all, for example, we also chose a skullcap—that too today is a symbol. Okay? They chose that, but the Torah does not obligate that; people decided, a custom, it doesn’t matter now—they chose for themselves a symbol. In a certain sense that too is fringes; a skullcap too is fringes, because it is a symbol. But what the Torah obligates us to do in the commandment is that our symbol be this. There are other symbols, fine and well, but I want, as a requirement, the symbol to be this. So that means Jewish law is basically a directive law. Not constitutive. A sukkah—that’s different. A sukkah as a commandment, the institution of sukkah is created by the commandment. Without the commandment—I’m not saying that the wood from which the sukkah is built was created by Jewish law—but the concept of sukkah is a concept Jewish law created.

What? Why? No. Right—therefore it’s directive and not constitutive. The concept itself existed before the law; the law did not constitute it. The law only directs us how to do it properly. The concept of sukkah did not exist before. Again, sukkah as a commandment—there was a pergola, you could sit in the shade. Symbols too existed before, and there was also perhaps some idea that a Jew should have a symbol, even if the Torah had not required it, and we would say it’s only a skullcap and not fringes. So it’s the same thing. Because Jewish law wants us to do it this way. In sukkah it’s not the same thing. Most laws are constitutive laws and not directive laws. My novelty is that there are also directive laws and not only constitutive ones.

Yes, that’s a big question—what was there with levirate marriage, with Judah and… Right, a big question whether that was the same institution or a different institution. It also relates to what he commented earlier—remind me of the name? Oren. What Oren commented earlier, that it could be that there are things drawn from the environment. And on the contrary, in directive commandments, as distinct from constitutive ones, it is very plausible that this was drawn from the environment. Because it basically existed beforehand as well, and the Torah wants to shape it in a certain way. That is exactly the meaning of the fact that in this case the Torah is directive and not constitutive. It does not create the concept; the concept existed beforehand as well, and therefore it can be drawn from other places, from other cultures, or just from Jews who did this before the giving of the Torah—it doesn’t matter. These are institutions or concepts that existed beforehand as well, and Jewish law merely wants to shape them in a certain way.

Okay, we talked about this with soccer, right? What is a foul in soccer? When I commit a foul in soccer, am I a criminal? Meaning, did I violate the rules of the game? Of course not. A foul is part of the tactic of the game. Sometimes the coach tells you to commit a foul now, right? Or your friends, or you decide, never mind—now you commit a foul. That’s perfectly fine, you’re not a criminal; the ball just goes to the other side. Right? It’s part of the tactic. What does that mean? That this rule, at least the rule of fouls—other rules maybe not—but this rule of fouls really is a directive rule and not a constitutive one. Because even if you commit a foul, you are playing soccer; they just tell you, “that’s a foul,” shaping the game in a certain way. Okay? In that sense it’s not like chess. In chess, if you move the rook diagonally, it’s not that you committed an offense and therefore lose a pawn. You’re simply not playing chess, and that’s all. Therefore there the rules are constitutive. Directive rules are rules that take a concept that existed before them, and also exists after them, the same concept—they only want to shape it in a certain way, and that’s all.

Okay? Even in the Israeli law book, this is what Haim Cohen wrote—I don’t know if I mentioned this—he says there is no prohibition against stealing and murdering. What is written is that the thief’s punishment is such-and-such, or the murderer’s punishment is such-and-such. There are those—I think Haim Cohen interpreted it this way too; he was a liberal—the liberals say the law cannot tell me what to do. I am a sovereign, autonomous citizen; I do what I want. The law tells those who work for it what to do—the judges and the police. Meaning, if he does such-and-such, his punishment is—you need to give him such-and-such a punishment. But it can’t tell me what to do; nobody can tell me what to do; I am a free citizen in our land. Okay, well—that seems to me a somewhat absurd interpretation, but otherwise you can’t explain it because it doesn’t infringe on my sovereignty. Fine, I don’t know, I’m not impressed by that interpretation, but it does sharpen the point that indeed there are laws that can be interpreted as part of the rules of the game.

By the way, now I remember—in Sefer HaChinukh, commandment 69, the author there speaks about “You shall not curse God,” which is the prohibition against cursing judges. So he says there, in that commandment, he explains why everywhere in the Talmud they say, “we have heard the punishment; from where do we know the warning?” If it says to you, “He who strikes his father or mother shall surely die,” I understand that it’s forbidden to strike your father and mother. Why do we also need to look for the warning, the prohibition, that the Torah says “do not do this”? If it tells you “shall surely die,” I assume that’s the intention, right? Like “the thief’s punishment is such-and-such”; you don’t need to write that it’s forbidden to steal. “The thief’s punishment is such-and-such” means it’s forbidden to steal. Okay, why in the Torah did the Sages understand it not that way? Even if punishment is written, they still look for the warning.

So he says there, the author of Sefer HaChinukh explains, that if there were no warning but only punishment, you would think that this is like a commercial exchange. Meaning, you can strike your father and mother, everything is fine; they just defined that the sanction will be that you die. It’s not a punishment in the sense that you were a criminal and did something wrong; rather, this is just what we do—it’s some sort of payment or exchange for what you did, like a transaction. You pay for it, you buy it. Do what you want, that’s perfectly fine—it’s not against the will of the Torah, not against the will of God—only they defined that there is a punishment for it. Therefore one also needs to write the warning, to say: no, no, this act is also intrinsically an invalid act; the punishment is given for a wrongful act and not because I only want some sort of stipulation. Such a stipulation.

There is a work, Chesed LeAvraham, that wants to say—an explanation about Jonah. When Jonah received from the Holy One, blessed be He, a command to go to Nineveh and prophesy there, he flees from the Holy One, blessed be He. What, is he a little child? A prophet, yes? A prophet to whom the Holy One, blessed be He, speaks—and he runs away from the Holy One, blessed be He? Playing hide-and-seek with Him? What is the meaning of this? So the Talmud says that one who suppresses his prophecy receives lashes, and Tosafot asks why lashes—there is no warning. So why does he receive lashes?

So Chesed LeAvraham says: maybe indeed, according to the Sefer HaChinukh I mentioned earlier—he says, this Chesed LeAvraham is found in Deuteronomy, where there it deals with prophecy, with one who suppresses his prophecy. But he brings this Sefer HaChinukh from commandment 69, and he says that it could be that since there is no warning but only lashes—it doesn’t matter now from where they derive the lashes—then indeed here too this is a commandment that is like a commercial exchange. Meaning, you want to suppress your prophecy? Suppress it, only know that you will be lashed. But this is not against the will of God; it is only some kind of sanction that you receive as a kind of stipulation the Torah sets.

Accordingly, Jonah, after all, had an argument with the Holy One, blessed be He—an ideological argument. Why should penitents be forgiven? If they sinned, they should get hit. And the Holy One, blessed be He, said to him—and then with the castor-oil plant, the whole book basically revolves around this issue. That is why we read it on Yom Kippur, because it is the book of repentance. So Jonah flees from the Holy One, blessed be He—what does that mean? He decided to suppress his prophecy. And what does that mean? It’s conscientious objection. He understands that the Holy One, blessed be He, sent him to prophesy, but he also understands that there is no transgression in suppressing his prophecy—yes, in not prophesying. He only knows that he will get hit for it. And that is perfectly fine; he is willing to pay the price. Like every conscientious objector worthy of the name, and he stands his ground: that it is not right to bring people to repentance and forgive them; they should be punished. So he goes with his position all the way, so he flees from the Holy One, blessed be He—that’s what Chesed LeAvraham says. And this is basically conscientious objection, what Jonah did. Afterward he retracts, says it’s not reasonable, it doesn’t matter—but it just illustrates the point. So it’s like a foul in soccer, yes? If you want, do it; you’ll take what you need to take, but it is part of the rules of the game. You did not violate the rationale of the game, yes? You did not violate the will of the legislator in our case. Do what you want, only know that there is action and reaction.

Okay, so I return to our topic. So this means that betrothal is basically a directive commandment and not a constitutive one. What does that mean? Because this pair-bond, this social institution of married life, existed before the giving of the Torah. And the Torah did not innovate it; therefore it only directs it, shapes it. Yes? Basically what I want to say is that the commandment of betrothal is a directive commandment. By the way, the commandment of betrothal—while we’re speaking about it—in Maimonides it sounds as though there is a commandment, and it is commonly thought that most of the medieval authorities, mainly the Rosh, claim not. It is only a prerequisite or instrument for the commandment of procreation. Meaning, when you want to be fruitful and multiply—not that you want to, you are obligated to be fruitful and multiply—how do you do that? You precede it with betrothal, married life, and then fulfill procreation. But betrothal in itself is not a commandment; it is only an instrument of a commandment or something like that. Maybe I’ll come back to that later.

In any case, so the claim basically is that in the section of betrothal the Torah directs married life and does not constitute it. Now I want to show you several implications of this, halakhic implications. Halakhic puzzles that people have struggled with a lot, but in my opinion the root of the solution lies here.

Look. The commandment of divorce. A very important commandment, yes? Commandment 222. “It is the commandment with which we were commanded to divorce by document, in any case when we wish to divorce. And that is His exalted statement: ‘And he shall write her a bill of severance and place it in her hand.’” This is Maimonides, yes? “And the legal details of this commandment—that is, the law of divorce in full—have already been explained in the tractate attached to it, namely tractate Gittin.” Maimonides at least—but look at the wording of Sefer HaChinukh. “It is a commandment upon one who wishes to divorce his wife that he divorce her by document, for we were commanded that when we wish to divorce our wives, we divorce them in writing.” This is quite similar wording, not essentially different from Maimonides.

Meaning, there is a commandment to divorce a woman—but of course when we wish to divorce, yes? What is the meaning of this commandment? If we wish to divorce—if people want to divorce, then divorce properly. Now the question is: how do we understand this commandment? What is the commandment here? After all, on the face of it there is not really a commandment to divorce, right? No one who divorces his wife is not—he does not—he does not fulfill a commandment in this matter. So what is it then? It could be that it is a prohibition against divorcing not according to the halakhic manner. Yes? One who divorces his wife by means of an invalid bill of divorce, or without a bill of divorce, or something like that—that is essentially a prohibition derived from a positive commandment, a positive-command prohibition. It is not a positive commandment. You know, there is such a category among positive commandments. And positive commandments are divided into four.

Today I’m wandering a bit. Into four categories. There is a commandment that can be fulfilled and can be neglected—that is an obligatory commandment, right? Because if you did it, you have a positive commandment, and if you did not do it, you have the transgression of neglecting a positive commandment. That is an obligatory commandment—putting on tefillin, okay? If you put them on, you have fulfilled a positive commandment; if you did not put them on, you neglected a positive commandment.

There is a commandment that can be neglected but cannot be fulfilled. Meaning, if you fulfill it, you have no commandment, and if you do not fulfill it, then you have neglected a positive commandment. This is what is called a prohibition derived from a positive commandment, or a positive-command prohibition. Okay? What is an example? So, for example, Maimonides includes checking the identifying signs of kosher animals. Clearly, if I check whether this animal is kosher, I did not fulfill a positive commandment. But if I did not check and ate a non-kosher animal, then apart from the prohibition, I also neglected this positive commandment of checking. This is a prohibition derived from a positive commandment. Or with Sabbatical-year produce: according to most views, there is no commandment to eat Sabbatical produce, produce sanctified with the sanctity of the seventh year. Maybe except for Nachmanides; I think even for him not exactly. But there is a prohibition against doing business with it. “And the produce of the land shall be for you to eat”—the Sages expound, “to eat, and not for commerce.” When I eat it, even though it says “and the produce of the land shall be for you to eat,” I have not fulfilled a commandment. When I do not eat it, but do something else with it, trade in it, then I have neglected that positive commandment. This is what is called a prohibition derived from a positive commandment. And it is a positive commandment; it is not defined as a prohibition. In Jewish law, a prohibition derived from a positive commandment is considered a positive commandment. It is a positive commandment, but it is this kind of positive commandment that cannot be fulfilled; it can only be neglected. Only if you failed do you have neglect, but if you did it, there is no fulfillment.

What is a positive commandment that can be fulfilled but cannot be neglected—the opposite? A non-obligatory fulfillment commandment. We’ll soon see examples, but first what does that mean? It is a commandment such that if you do it, then you have fulfilled a positive commandment, but if you do not do it, nothing happened. For example, Torah study—say, beyond a chapter in the morning and a chapter in the evening—according to at least some of the medieval authorities, if you did not do more than that, you did not neglect a positive commandment. What is this concept, neglecting a positive commandment? Fine, that requires discussion. But you have not failed to fulfill a positive commandment, because with a chapter in the morning and a chapter in the evening—even with reciting Shema—you fulfill the obligation. Everything beyond that is a non-obligatory fulfillment. All the obligatory commandments you can think of are commandments that have some threshold, and beyond that threshold they become non-obligatory fulfillments—but up to that threshold they are obligatory. Like giving charity: a third of a shekel per year you are obligated; everything beyond that, if you gave, you have a commandment; if you did not give, nothing happened. Or Torah study: there is a chapter in the morning and a chapter in the evening. If you did not learn that, then you neglected the positive commandment of Torah study. If you learned beyond that, then according to this framing you did not fulfill the positive commandment—you did something important, but not the formal positive commandment. Okay?

The only commandment, it seems to me, that I know of, that is a purely non-obligatory fulfillment commandment and not merely beyond some minimum threshold, is Rabbi Moshe Feinstein on how he understood the commandment of settling the Land of Israel. According to Rabbi Moshe Feinstein, settling the Land of Israel is a wholly non-obligatory fulfillment commandment. Meaning, if we do it, we have a commandment, and if we don’t do it, nothing happened. And Rabbi Avraham Shapira disputes this with him; it doesn’t matter right now. He says such a thing cannot exist. Categorically, it cannot be. There is no such commandment in the Torah. All that exists are non-obligatory fulfillment commandments beyond some threshold, but there is no commandment that is entirely voluntary. If you want, take it; if not, nothing happened. Commandments have to be fulfilled; they are not a voluntary matter. Okay? On that point, in my opinion this argument is a very weak one. It is not a correct argument. Why? Because there is a fourth type of commandment.

And that is commandments that can neither be fulfilled nor neglected. What would Rabbi Avraham Shapira say about that? If all commandments are not voluntary—even that—then what would he say about a commandment that even if you want to, you cannot fulfill it? Yes, you cannot fulfill it and you cannot neglect it. Examples: Maimonides gives—and explains this with—two commandments; in fact there are many more. Commandments 190 and 196 in Sefer HaMitzvot, positive commandments: corpse impurity. When you touch a dead body you become impure. Did you fulfill a commandment by that? No. Did you commit a transgression? Neglect a positive commandment? Also no. For a priest it’s forbidden, but for an Israelite it is permitted. So why is this a commandment? A positive commandment that one who touches a corpse becomes impure. This is the definition of a status. That’s all. If you touched a corpse, then this is a definitional commandment: if you touched a corpse, you are defined as impure.

Okay, those are good questions. Good questions. But in Maimonides there is a whole collection of counted commandments that are of this type. That is clear; there is no dispute about that. What is the problem in counting a commandment that is wholly non-obligatory? Meaning, not even non-obligatory—you cannot fulfill it and cannot neglect it. There are commandments like that, so why shouldn’t there be a non-obligatory fulfillment commandment? Okay? But what is the meaning of this? Maimonides does not feel that way. He understands, and he says regarding the laws of vows, one commandment later, 197, the same thing. There is no commandment to annul vows and no prohibition against not annulling vows. If you annulled, the vow is annulled. If you did not annul it, then not. Maimonides wants to tell you that wherever you see the concept of commandment, you need to know that one of the possibilities is that this is what it means. The concept of commandment can also be something like that—something definitional.

What is the explanation for this? I’ll say parenthetically: I think what he means is, what is Sefer HaMitzvot really? In modern terms, it is the law book. Now in a law book, you understand that there are definitional sections. “For the purpose of this matter, a minor is anyone who has reached such-and-such age,” for example. Does that mean one must do something or is forbidden to do something? Nothing. It defines. It defines a concept. So this is a section in the law book. In a law book there are definitional sections. And with us, the law book is called Sefer HaMitzvot, because most of the laws are commandments in the sense that they contain obligations. Okay? But that does not mean that every commandment really has to be a commandment in the literal sense, something that obligates us to do something or forbids us from doing something else. Definitional sections too can be included in Sefer HaMitzvot, because it is the law book. Okay? Clearly there are halakhic consequences. For example, they are counted among the obligations. Say, if someone impure enters the Temple or eats sacred food or encounters impurity—sorry—then he committed a transgression. But all those transgressions are counted separately in Sefer HaMitzvot. The very definition of yourself as someone impure—having touched a corpse—is itself a commandment, and you don’t actually need it in order to know all the rest. All the rest are commandments in their own right. So what is it? It is a definitional commandment. There are definitions here.

Just one more comment on this map of four types of positive commandments. You said earlier that tzitzit is an example of a non-obligatory fulfillment commandment. That’s not correct. Many think that, including later authorities, but that is simply a categorical confusion. It is not correct. The definition of a non-obligatory fulfillment commandment is a commandment that cannot be neglected; it can only be fulfilled, right? Can the commandment of tzitzit not be neglected? One can wear a four-cornered garment and not put tzitzit on it—then you have neglected the commandment. So that means it is not a non-obligatory fulfillment commandment; it is an obligatory commandment. Why do people get confused? Because it is a conditional obligatory commandment. Meaning, your obligation is contingent on certain conditions being met—namely that you are wearing a four-cornered garment. But once you are in the obligating situation, it is a fully obligatory commandment. If you do it, you have a commandment; if you do not do it, you have a transgression. It’s just that the obligation is contingent on certain circumstances obtaining.

In that sense, is the Grace after Meals also a non-obligatory fulfillment commandment? Because only if I ate to satiety am I obligated to recite Grace after Meals at the Torah level. And if not, then not. But it would never occur to us to say that it is a non-obligatory fulfillment commandment, that it is not an obligatory commandment. Why? Because it is clear to everyone that it is an obligatory commandment, only one contingent upon certain circumstances obtaining. Also with sukkah, I am obligated to sit only if I am in the relevant dates. Certain circumstances have to occur for me to become obligated in the commandment, but then it is a fully obligatory commandment. Not a non-obligatory one. Okay? So that is regarding the map.

Let’s return to divorce. So there is an obligatory positive commandment—that is a commandment that can be fulfilled and can be neglected. There is a prohibition derived from a positive commandment—that is a positive commandment that cannot be fulfilled but can be neglected. There is a non-obligatory fulfillment positive commandment—that is a commandment that can be fulfilled but cannot be neglected. And there is a definitional commandment—that is a commandment that can neither be fulfilled nor neglected. It merely defines a status. And parenthetically I add: there are also conditional obligatory positive commandments, which for some reason some people call non-obligatory fulfillment commandments, but that is a mistake. It is a conditional obligatory commandment. Either a separate category or included in the first category; it is just conditional, but it is an obligatory commandment.

Okay. Now let us return to the commandment of divorce. I sketched for you here briefly the general map. Where would you place this commandment? Yes, conditional—conditional on what? If I want to divorce. Okay, if I want to divorce, then now when I divorce with a bill of divorce, did I fulfill a positive commandment? Do I need to say “for the sake of the unification…” beforehand? Okay, does everyone agree? I joke about that a lot because it’s not correct, but there are those who joke about it although it’s supposedly correct—I don’t know anyone. I think that’s not right. Let’s just think for a moment.

Yes, Dov? Perhaps the opposite—there is neglect, if you wanted to divorce your wife and did not divorce her by a bill of divorce but in some other way, ostensibly that is neglect of a positive commandment, no? That’s the definition that emerges from the wording of Maimonides and Sefer HaChinukh. So there would be room to say that this is really a conditional obligatory positive commandment. Namely, if I want to divorce, then I am obligated to divorce by a bill of divorce, and that fulfills a positive commandment; and if I did not divorce by a bill of divorce, then I neglected the positive commandment.

The truth is that the usual interpretation of this commandment is that it belongs to the fourth type: a definitional commandment. A definitional commandment means that if you divorced the woman by a bill of divorce, then she is divorced. If you did it unlawfully, she is simply not divorced. It’s like with chess, yes? If you moved the rook diagonally, that’s not a transgression; you simply are not playing chess. There is no need to define this thing as a prohibition. What did I do? Is it forbidden for me to hand a woman all kinds of blank papers? I gave her a paper that is not a properly written bill of divorce. Is that forbidden? If I hadn’t given her this paper and had only just wanted to divorce her, I wouldn’t have violated the prohibition; but if I give her a blank page then I have violated the prohibition? It reminds me that there is a dispute about the commandment of repentance. What is the commandment of repentance? If you sinned, you need to repent for it. Okay.

So Sefer HaChinukh—I think Sefer HaChinukh says there are those who want to claim, in Maimonides, that it is a positive commandment—how does it go there?—that if you want to repent, you have to do it in this way: confession, abandoning the sin, resolving for the future. Okay? Therefore it is a conditional obligatory positive commandment. But this cannot be right, says Sefer HaChinukh. If that were so, then one who did not repent is just where he was—he has his sin, but his status is zero. One who did repent but not according to law, then besides having his sin, he also has neglect of the positive commandment of repentance. He is in a worse state than someone who did not repent at all. That can’t be.

So there are many commandments that look like conditional obligatory positive commandments but are not really that. When you look at the idea behind the matter, it is not clear that this is better. Therefore it is commonly thought that this positive commandment of divorce by a bill of divorce is a definitional commandment. If you divorced her by a bill of divorce, then she is divorced. Like annulling vows: yes, if you annulled the vow, the vow is annulled, and if not, then not. But there is no prohibition and no commandment there. Do what you want—but this is the definition. If you want, do it this way. So too with a bill of divorce. You want to divorce? Fine. You don’t want to divorce? Don’t. But this is the definition: this is how one divorces a woman.

Ah? Right. Exactly. The concept of divorce is constituted by Jewish law. But not only is it constituted by Jewish law—it’s even more than that. Even an obligatory commandment can be constitutive. Here it is constitutive, and also has no normative dimension. You are neither obligated nor forbidden; it simply defines a state, that’s all. But as you correctly noticed, from the wording of Maimonides and Sefer HaChinukh this does not seem to be so. It says “He commanded us to divorce by document, in any case when we wish to divorce.” He does not say: if we divorce by document, then she is divorced, and if not, then not. “He commanded us to divorce by document.” Meaning, there, in those definitional commandments, Maimonides says “He commanded us that anyone who touches a corpse shall be impure.” So I understand: this is only a definition; the command merely gives us the definition. Here, “He commanded us to divorce”—meaning, He is commanding us to do an action. Look.

What? Fine, okay, so what? Yes, but that’s fulfillment in the sense that I need to obey the Sages; it’s not a Torah-level positive commandment. There is no positive commandment of divorce. Okay? And if the Sages obligate me—say the Sages had decided to obligate me to annul vows, because it’s interpersonal, she forbade things to herself in a way that is not fitting—then I would not be violating the positive commandment of annulling vows; rather I would be harming my wife. But I’m talking right now about the question whether one can neglect the positive commandment of annulment. One cannot.

The question is whether one can neglect the positive commandment of divorce and the bill of divorce. So ostensibly one cannot. In a moment I’ll qualify that a bit. Look at the conclusion of Sefer HaChinukh’s words. At the end he writes an interesting sentence: “And the commandment of bills of divorce applies in every place and at every time; and one who violates this and divorces his wife but does not write her the bill of divorce according to the commandment of the Torah and as explained by our Sages of blessed memory, has neglected this positive commandment, and his punishment is very great, because legally she is a married woman while he treats her as divorced, and the punishment of a married woman is known, for it is among the gravest transgressions in the Torah.”

What is written here? Is there neglect of a positive commandment? Then this cannot just be a definition. There is some state of—now look, the explanation he gives afterward is only an explanation of why the punishment is severe. It is not an explanation of why there is neglect of a positive commandment here. Why the punishment is severe I can understand—that’s not a problem. Indeed he creates a certain problematic situation here: she is treated as if divorced while she is not divorced; he leaves her chained, or something like that. I understand that. But how does he define this as neglect of a positive commandment? Forget it—the punishment is for the interpersonal wrong, what I said earlier. It is punishment for harming his wife. Fine, because he leaves her in an impossible state. So it’s not punishment for neglecting the positive commandment of divorce; it is punishment for “love your neighbor as yourself.” Punishment in the heavenly court. Exactly! Exactly. That is the other side of the same question. What does it mean that he divorced his wife not by means of a bill of divorce? If he gave her a blank paper, or an invalid bill of divorce, or something like that, then he simply did not divorce her. That’s all.

Apparently this is what brings me to it. What is really written here? What is written here is that the commandment of divorce is a directive commandment, not a constitutive one. Even if you divorced your wife unlawfully, you divorced her. You just did it unlawfully; that is neglect of a positive commandment. One who divorces his wife unlawfully has neglected a positive commandment. Meaning, essentially like what I said before in Maimonides: why is kiddushin a directive commandment and not a constitutive one? Meaning that there is the ordinary human-social dimension, and there is the legal-halakhic dimension. And after the Torah was given, both exist; let’s call it a two-story model. Fine? The first floor is legal, and on top of it we build the marital-social-emotional floor, if you like, and so on—the bond between two human beings.

Just as there is this in the process of going in, there is also this in the process of coming out. When we build the marital bond, we build it in two stages. We build kiddushin—that is the legal infrastructure—and on top of it “bringing her into his house,” chuppah, whatever it may be, and then the marital bond is created in full. Okay? When we dismantle the marital bond, usually this is done by giving a valid bill of divorce. If you give a valid bill of divorce, it dismantles both floors. The woman becomes available and everything is fine. But there are situations in which you can dismantle floor B without dismantling floor A. How do you do that? You should already know. How do you do that? Right—you remove her from your house. As they did before the giving of the Torah. How did they dismantle the marital bond before the giving of the Torah? They simply stopped living together. The couple-unit was dismantled, but you still bind her on the legal level, because you did not neutralize the kiddushin. Meaning, you neutralized the nissuin but not the kiddushin. And for that you need to give a bill of divorce.

So “in any case when he wishes to divorce his wife,” what Maimonides and Sefer HaChinukh write—that when a person wants to divorce his wife, this basically means that the nissuin bond between them has come apart. That’s it—they are no longer married. They have returned to the state of erusin or kiddushin. But she is not yet available. In order to permit her to the public, and the prohibitions of sexual relations result from the kiddushin and not from the nissuin. Okay? Now when you want to permit her to the public, to fully dismantle the matter, you are obligated to give her a valid bill of divorce. Without that you leave her consecrated but not married forever. That is neglect of a positive commandment. One who has returned to erusin and did not give his wife a bill of divorce and thereby dissolve even the erusin has neglected a positive commandment. And that is what they are saying here: “in any case when he wishes to divorce her”—meaning, they have returned to the state of erusin, they have dissolved the nissuin, and now he is also obligated to release her completely. You can’t leave her an agunah. And this is neglect of the positive commandment of divorce.

There is a positive commandment to divorce, an obligatory positive commandment. If you divorce, then this is a commandment, and if you do not divorce, it is a prohibition—if you have decided to dissolve the—one might perhaps say this is a prohibition derived from a positive commandment. I don’t know if divorcing is itself a commandment, but clearly not divorcing is a transgression, neglect of a positive commandment. Here one can still debate. But clearly there is a binding normative dimension here; it is not merely a definition. And if the binding dimension applies only to neglect or also to fulfillment—whether this is a conditional non-obligatory fulfillment, sorry, or a conditional prohibition-derived-from-a-positive-commandment, or a conditional obligatory commandment—that can be debated. But it is clear that there is a conditional normative dimension here; it is not just a definition.

And this reflects for us once again what I said regarding kiddushin, only this time from the other side, regarding divorce. There is a two-story model or a two-story structure, that when one builds it one must build both floors. And by the way, when one builds it, it is usually indeed done in two stages. Once there was a gap of twelve months between kiddushin and then nissuin. Today it is done almost together, immediately one after the other. They read the ketubah in order to separate between these two things. By the way, the ketubah takes effect at the time of nissuin in most of its aspects, and exactly—that is done together. And in this sense it suddenly becomes completely symmetrical with divorce, because the dissolution is then also done together—both floors. And one needs to pay close attention: although it is done together, two different floors are being dismantled here. And therefore, in principle, there can be situations—pathological situations, never mind—in which floor B is dismantled but floor A is still in force. And then you have neglected a positive commandment; it is forbidden to create such a state. You must release her.

I claim that everything that exists with an engaged woman before they entered the chuppah exists in a case where he has set his mind to divorce her even if he has not given her a bill of divorce. It is the same state. It is a state of erusin. I’ll explain. Yes, exactly. Or if you like, one who has set his mind to divorce her—meaning he has decided that he no longer wants to live together. Yes, even on the level of thought, so long as it’s not just a passing thought that suddenly you wondered maybe I’m fed up, maybe this or that—but rather a decision, even if it has not yet been carried out. How do we know there is already a decision? Fine, the person himself can know—it doesn’t matter right now. This is not something for a religious court or something to monitor; the person himself needs to know what his status is. But we’ll see: from the moment he has set his mind to divorce her, her status basically changes; halakhically it changes. They essentially return to the state of erusin.

And here is another implication of the distinction Maimonides makes at the beginning of the Laws of Marriage between nissuin as a social institution—which is the second floor from before the giving of the Torah—and the legal dimension, which is kiddushin. We see that one can distinguish between these two floors because they do not always go together. And sometimes one floor does not exist while the other does. By the way, also in the opposite direction. And I think I mentioned last time—Noahide kiddushin. Rabbi Dichovsky once raised this in the past. I don’t think he explained it correctly; it seems to me it’s a different definition. But the idea—what is Noahide kiddushin? I would call it Noahide nissuin. It is nissuin without kiddushin. And my claim is that this has halakhic status. A boyfriend and girlfriend who did not do kiddushin but are institutionalized, not just temporary—that they decided to live together, but they didn’t go through the rabbinate, didn’t do kiddushin—this has halakhic standing. They have mutual obligations. Although there is no kiddushin, the prohibition of a married woman in the sense of a capital offense, that won’t be there; there is no kiddushin. But they are married. There, this is nissuin without kiddushin. And from the moment he has set his mind to divorce her, it is kiddushin but there is no nissuin—like after kiddushin and the twelve months before doing nissuin as well. In this state, it is different from a free unmarried woman on the one hand and from a fully married woman on the other; it is an intermediate state.

What is the category of commandment? There isn’t really a commandment here; it’s an obligation. And there isn’t a commandment—you don’t count such a commandment. Yes, right. And “one who has set his mind to divorce her” is the situation in which the commandment takes effect upon him; he is engaged in it—to dismantle also the second part. And if one were to count separately the setting of one’s mind to divorce her, maybe that really would be a full category, then it would be some sort of assertive commandment. So that—I’ll show you in a moment the halakhic implications of this distinction. It’s not just a theoretical distinction.

But look, perhaps one more note so you’ll see what we’re talking about. You know that regarding divorce, Maimonides writes—in the Laws of Divorce, chapter 2, law 7: “What is the difference between invalid and void? Every place in this code where it is said of a bill of divorce that it is void, it is void by Torah law. And every place it is said invalid, it is invalid by rabbinic law.” Okay? Meaning, a void bill of divorce means this is not a bill of divorce at all. An invalid bill of divorce is invalid rabbinically. Okay.

Now there are several kinds of rabbinic invalidity. Five or six at least. Types, not just instances—there are many rabbinic invalidities—but distinct categories. What do I mean? There are rabbinic invalidities such that if you gave the bill of divorce and someone had relations with her, then she violated the prohibition of a married woman and her children are mamzerim by rabbinic law. Not by Torah law, because it is a rabbinic invalidity, but like a Torah bill of divorce only on the rabbinic level. Fine? Meaning it is adultery, and the children are mamzerim, and everything. There are situations where she must leave, but it is not a rabbinic prohibition of a married woman and the children are not mamzerim. They do not disqualify them after the fact. There are situations where she does not even need to leave; one just has to give another bill of divorce. Give another bill of divorce because the first was invalid, but she need not leave. And there are situations where you don’t even need to give another bill of divorce. They just tell you the bill of divorce is an invalid bill of divorce rabbinically, and you don’t even need to give another valid one.

So the Birkat Shmuel—Rabbi Baruch Ber Leibowitz, a student of Rabbi Chaim—you’ve heard the name? Rabbi Baruch Ber, he had many famous jokes. Yes. He was deeply attached to Rabbi Chaim. And Rabbi Chaim’s son was the Brisker Rav, Rabbi Yitzchak Zev. Yes? They say, what is the difference between Baruch Ber and the Brisker Rav? If Rabbi Chaim had said that the table is a cow, then the Brisker Rav would say: Father said so; he probably knows; it must be a cow. It doesn’t seem logical to me, but if Father says so, I have faith in the sages. Baruch Ber would already be off fetching the bucket to milk the table. That is, he was that kind of attached disciple. They tell stories that when the train passed near the cemetery he would stand up, because Rabbi Chaim was buried there. So he was that kind of teacher-student figure; there are fascinating stories there.

Anyway, Baruch Ber claims—he quotes Rabbi Chaim a great deal; much of what we know of Rabbi Chaim’s Torah comes through Birkat Shmuel of Baruch Ber. It is written in conceptual form, by the way. They say he explained brilliantly orally, but the book is written conceptually. In any case, he asks: what does it mean that the bill of divorce is invalid but you don’t need to do anything? Not even give another bill of divorce. What, there’s no “best way to perform the commandment”? What does it mean that the bill of divorce is invalid but nothing happens if the bill of divorce is invalid? Everything proceeds as usual, except that the bill of divorce is invalid. You don’t even need to give another one. What does that mean? What is the significance of saying that it is invalid? After all, what is his assumption? That there is no commandment here. What can you say—that this is not the best way to do the commandment? It’s not a commandment at all. If you gave a bill of divorce, then she is no longer a married woman; if you did not give a bill of divorce, then she is not divorced. If you gave a bill of divorce, then she is divorced, period. So what is the relevance of an invalid bill of divorce?

So if you tell me there are consequences—you need to give another bill of divorce, or the children are mamzerim, or she must leave—I understand: there are consequences, the bill of divorce is invalid, fine; this is not “best way to do the commandment,” but it has halakhic consequences. But in a case where there are no halakhic consequences at all? Then what is the significance of saying that the bill of divorce is invalid? And I claim that the explanation is the same explanation I gave here. An invalid bill of divorce means that you fulfilled this commandment in a way that was not ideal. Of course, this assumes that what I said earlier about the commandment of divorce means not only that if you did not do it then you neglected the positive commandment, but apparently also that if you did it then you fulfilled a positive commandment. And then an invalid bill of divorce means that you fulfilled the positive commandment in an incomplete, imperfect, improper way. Okay? It really is a commandment not fulfilled completely. That is the meaning.

If one understands that there is invalidity of this type, it is very hard to understand otherwise the meaning of divorce. If this were only a definition, then it would have no significance to say that the bill of divorce is an invalid bill of divorce without any consequence. In a pinch one could maybe say: it has significance initially, when you write a bill of divorce, write it in this way and not in that way. True, if you did not, and after the fact gave the bill of divorce, everything is fine, nothing happened. And yet there is some significance at the outset—when you come to write it, write it this way and not that way. Maybe, I don’t know. Maybe. But there is such a classification of rabbinic invalidities. It seems to me you can see it in him—he himself brings these cases in section 2, if I’m not mistaken, on divorce.

So what the claim basically is, is that we have reached the conclusion that there are these two floors, and I now want to show you some consequences. Look how—look where this finds expression halakhically. Look at the Talmud in Gittin 17. “It was stated: for what reason did they institute a date in bills of divorce?” There you go already, yes. “For what reason did they institute a date in bills of divorce?” Rabbi Yohanan said: because of his sister’s daughter; Reish Lakish said: because of produce. Why—why do we write the date in the bill of divorce? Why is the date important there? So Rabbi Yohanan said: because of his sister’s daughter. Meaning, he might cover for his sister’s daughter—say he is married to his sister’s daughter, because a person may marry his sister’s daughter—but even though he wants to divorce her, she is still his sister’s daughter, so he cares about her. If she committed adultery, for example, he could say: no, no, I divorced her earlier and she was actually unmarried, to save her from death. So the Sages said: write a date on the bill of divorce so that you can’t do that.

And Reish Lakish says: because of produce. What does that mean? The Talmud says, yes, the Talmud says that their dispute concerns from when the husband has rights to produce, and until when. According to Reish Lakish, once he has set his mind to divorce her, he no longer has rights to the produce. Here, look below. “Rava said: what is Rabbi Shimon’s reason? He holds that once he has set his mind to divorce her, he no longer has rights to the produce.” What is this? The husband, after all, has rights to the produce of the wife’s property—the usufruct, right? The produce belongs to the husband, the principal belongs to the wife. So what happens? From the moment he set his mind to divorce her, not that he gave her a bill of divorce, did not yet do anything, he lost the produce. Why? Because even when he receives the produce, that is not from the time of betrothal but from the time of marriage that the produce belongs to him. During the first twelve months he does not have the produce. When he has set his mind to divorce her—in this case it is talking about where he wrote a bill of divorce, so there is already an act here, not just a decision. There is an act here that now shows decisiveness. He decided to divorce her. So she is what the later authorities call “divorced in his heart.” The moment that in the decision of the heart I have decided to divorce her, we go back. We now go back to the state of betrothal. Once we return to betrothal, he has no produce. Just as in the original betrothal he did not have produce, so now too. If we returned to the state of betrothal, he no longer has produce.

Now in the halakhic decisors there is a dispute, but many decisors, many many, rule this also in practice. Here: “Rabbi Shimon is worthy to be relied upon in a pressing situation,” the Talmud says on the next page. And Rabbi Shimon is the one who says that he has no produce from the time he set his mind to divorce her. Now the question is always what it means: “Rabbi Shimon is worthy to be relied upon in a pressing situation.” Does it mean the law follows him? Or the law does not follow him, but in a pressing situation one can rely on him? And there are decisors who say no, the law follows him.

Okay, so basically there is—maybe I’ll bring another example or two showing this. Look, the Talmud there, on page 18, discusses the ninety days of distinction. A woman who is divorced has to wait three months before marrying someone else, so that if she becomes pregnant it will be clear whether it is from the first husband or the second husband. Ninety days, three months, is enough distinction, right? Otherwise we might have a doubt as to whose child it is. So now the question is: from when do we count these ninety days? Rav Pappa and Rav Ashi acted from the time of writing. From the time he wrote the bill of divorce they count the ninety days, even though he might divorce her two and a half months later. Two weeks after he divorced her she could marry. Why? Because the law is from the time of writing. Ultimately they count it from the time of writing. Why?

So Maimonides says: “And from the day of writing the bill of divorce one counts for the divorced woman, even if it was conditional or did not reach her hand until after several years; one counts from the day of writing, for from the time he wrote it for her he no longer has private relations with her.” From the time they write the bill of divorce, the husband loses the produce and is also forbidden to have relations with her. That too is written on page 17. The Talmud says there, “he has set his mind to divorce her”—because you need a clear indication of what it means that he has set his mind to divorce her. A woman can always say, in order that the husband not get the produce, that he wanted to divorce me. In order for us to have an indication, on the legal level you need him to do some act so that he will be defined as someone who has already decided to divorce—and that is from the time he wrote the bill of divorce. Obviously. We are really talking about—yes, we are really talking about this. Only when you speak in court, the court doesn’t know what happened in his heart. He himself, from the moment he set his mind to divorce her, is forbidden to have relations with her, has no produce, all that is true. We need some indication because there could be a dispute, after all the woman can always say “you wanted to divorce me” and claim all the produce. You need evidence. So I’m saying: if he wrote a bill of divorce, that is a sufficiently strong indication. Or for other things less so. Yes, that’s what I wanted to say. If they are not living together, then even if he didn’t write a bill of divorce, there is no produce. Or here it says “from the time he set his mind to divorce her”; it doesn’t say “from the time he wrote a bill of divorce.” The writing is only an indication.

Okay? So we see that he no longer has private relations with her, and he is also forbidden to have relations with her. This is really a return, right? During betrothal he didn’t truly have relations with her; after all, this is not marriage. Same here: once he has set his mind to divorce her, they return to betrothal. We see—the source is the Talmud in Gittin page 90. “Rav Mesharshia said to Rava: if his heart is to divorce her but she sits under him and serves him, what is the law? About him one reads: ‘Do not plow evil against your fellow while he dwells securely with you.’” From the prophetic writings, a husband is forbidden to have relations with his wife if he has decided to divorce her. “If his heart is to divorce her”—you see the definition. He is forbidden to have relations with her; she is divorced in his heart. Okay? This is really a return to the state of betrothal.

Right, here it is from the prophetic writings, and that is true. Apparently one needs to prohibit this more strongly because of the contradiction involved. When one marks the contradiction better, perhaps the concern that they will do it in practice is reduced. And there is a description—but until now this is all not straight Torah law, right? And here are Torah-law consequences now, for one who has set his mind to divorce her without a bill of divorce.

Okay? One implication is the Talmud in Bava Batra 146. We won’t learn the whole passage there now, but the Talmud speaks about a man whose wife was unable to smell. Fine. And he wanted to divorce her. Okay, now he entered with her into a ruin to test her. And he went in with a basket full of radishes that have a smell in order to see if she would smell. And through the interaction between them it became clear that she really couldn’t smell. And then the ruin collapsed and she died. Fine. Now the husband comes to court: she died; I want to inherit her. Look at the comparison. “A ruin collapsed upon her and she died, and the husband came before the court wanting to inherit his wife. And the Sages said: since he did not enter with her in order to have relations with her but in order to test her and divorce her, and she died meanwhile, he does not inherit her.”

Now inheritance is a Torah-law rule. This is no longer the rabbinic rule of usufruct produce, or having relations with her which is from the prophetic writings. Here it is a Torah-law rule that a husband inherits his wife. And from the moment he set his mind to divorce her—if he entered there in order to test her, that means he basically decided to divorce her. After all, it became clear that she was unable to smell. He decided to divorce her; the ruin just collapsed before he managed to divorce her. Once that is so, he does not inherit her; she died as a betrothed woman, not as a married wife. She did not receive a bill of divorce at all. And under Torah law he does not inherit her, because the husband’s inheritance applies only when she is married. When we go back to the state of betrothal, there is no inheritance.

The Rosh claims, on the basis of that Rashbam, that according to Rashbam the husband also may not become impure for her once he has set his mind to divorce her, if he is a priest. A priest, after all, becomes impure for his wife and deals with her burial. If he has set his mind to divorce her, even without giving a bill of divorce, he does not become impure for her. Again, a Torah-law rule. “To the one close to him”—that is his wife, in the section of Leviticus. Okay? Meaning, we are speaking here about something very strong indeed. Again, on each of these points there are disputes. I want to present a balanced picture. But if I gather all these indications together, it seems to me this gives support to the picture I sketched earlier—the picture of these two floors. That on the one hand they bind themselves, and on the way back we dismantle the marriage, usually together with the bill of divorce and the marriage. But if not, then we enter a state of betrothal, and there is a commandment to divorce, a prohibition against having relations with her, he does not inherit her, does not become impure for her, does not receive produce, and so on. This sharpens very much the distinction between the legal dimension and what we might call the social dimension.

Yes. Right. After all, if they are living—I claim that regardless of the definition of pilegesh, they are married in the Noahide-marriage sense. So Rabbi Dichovsky wanted to argue that in Noahide marriage one needs to give a bill of divorce and not release them without one. I think he is mistaken here, because the point of the bill of divorce is to dismantle floor A and not floor B, and here floor A was never present. There is floor B without A. The implications of this are very hard to know. I have no proofs. You could say that perhaps there would be mutual obligations between them, for example produce and support and becoming impure for her and all that, because maybe that obligation does not require prior betrothal, but rather comes from the marriage. True, the Torah wants me to do betrothal before marriage, but that does not mean that if I did not do that, the marriage have no significance. Perhaps. Someone could come and say no, what are you talking about—if you did not do everything properly, then Jewish law does not recognize the mutual obligations here, because you didn’t do it in the normal track. Then no problem—they dissolve like Noahides. If they separate, then fine. Yes. Just as they built it, so they dismantle it, like Noahides.

Okay. For example, a priest who is married to a divorcee is disqualified from Temple service. Okay. But if he divorced her, he is fit. After he divorced her he is fit; a penitent is fit. What happens when he has set his mind to divorce her? The Talmud in Gittin 35 says that if he vowed to divorce her, he returns to service. He did not divorce her; he vowed to divorce her. Now, I understand the rationale, but halakhically, in terms of the legal mechanism, how does it work? So what if he vowed? He is still married to a divorcee. If he vowed, then it is as if it is already final; the marriage are fully cut off. The betrothal is still there, but the marriage are fully cut off. And then he can return to service. Another example of—yes, the Meshekh Chokhmah asks here who the priest was in the Sanhedrin, that Moses our teacher appointed a priest in the Sanhedrin. All the priests were first-degree relatives of Moses our teacher. How could they sit with him in the Sanhedrin? And who was the priest there? Okay. So he says that Pinchas distanced himself from his wife—again, he does not inherit her—and therefore he is fit to testify regarding his relatives and can sit in the Sanhedrin together with Moses our teacher. Because once the familial bond between him and his wife was severed, and the closeness is already a closeness—yes, Pinchas son of Eleazar son of Aaron the priest, grandson of Moses’ brother—that does not disqualify him. He had been married, and through his wife he was a relative of Moses our teacher. When he separated from her in order to serve, he could sit in the Sanhedrin with Moses our teacher. Okay. An anecdote.

In any case, the point that basically emerges from here—I’ll also send you, I’ll upload the article to Moodle and you’ll be able to see it there—is that in the halakhic definition, it seems to me, one should define this as follows: there is betrothal and there is kinship, family-kinship. When does the woman become the fleshly kin of her husband, when do they become each other’s kin? The closeness in the social sense. That is only in marriage. Therefore there is a Talmudic passage in Yevamot, a dispute between Tosafot—see it later at the end of the summary—but the Talmud says that there is kinship after death. Say the husband died, one who has relations with his wife—or if she died, he had relations with her when she was dead—that there is a presumption in the Talmud that he violated the law of a married woman, because there is kinship after death. She is still a married woman even though she died. Betrothal is not there, but kinship is. Okay, there are various things there—see in the summary afterward; I can’t enter the whole discussion.

For our purposes, there is a halakhic or biblical name for this status: kin. Okay? There is betrothal, and then kinship is created, which is stage B. One can dismantle stage B and return to the state of betrothal. That is without kinship. And that is the halakhic name, the status I defined here. The status I defined today. And I didn’t have time—and next time I still want to finish this unit before we end it—I want to talk a bit, after all, about the acquisition the husband has in his wife. This is very troubling in our time, so I want us also to address that issue.

In any case, as I told you the previous time: start already running through the chapter, on “it is more of a commandment to do it oneself than through an agent,” the opening sugyot, the chapter—start going through that already. Maybe I’ll manage to begin it next time, and if not then the time after. Thank you very much, okay, goodbye. On Moodle there go up—both the recordings and also.