Kiddushin, Chapter 2, 5783, Lesson 15
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Sources for the law of agency and the need for multiple sources
- The analogy to Bava Kamma: the four primary categories of damages and the common denominator
- Why each source is needed, binyan av, and the rule that two verses coming as one do not teach
- Applying the model to agency: the “four primary categories of agency” and the common denominator
- Derivative cases, degree of similarity, and general-particular structures
- “Logical” hermeneutical principles versus “textual” ones, and refutation
- The structure of the tzrikhuta in agency: three sources, not four
- “You too”: agency in terumah and the exclusion of a gentile
- “Not subject to the law of bills of divorce and betrothal”: reasoning versus verse
- The answer: a gentile is relevant to his own terumah, and the novelty of “you too”
Summary
Overview
The text presents an approach explaining why the Talmud brings several sources for the law of agency, and argues that the goal is a general law of agency learned through a tzrikhuta between the sources, similar to the move of the “common denominator” among the four primary categories of damages. The text defines the role of tzrikhuta not only as an answer to the question “why do we need several verses,” but as a mechanism that strips away the unique features of each source and distills the shared feature from which a binyan av is built. Later, the text places the issue of “you too” regarding terumah as the key to excluding a gentile from agency, presents the tension in the sugya between a “principled exclusion” and “someone not subject to that legal framework,” and expands with methodological remarks about refutation, about the difference between “logical” and “textual” hermeneutical principles, and about the relationship between verse and reasoning in interpretation and Jewish law.
Sources for the law of agency and the need for multiple sources
The sources studied for the law of agency include divorce, betrothal, terumah, the slaughter of sacred offerings, and slaughter and appointment for the Passover offering, and the question is why all of them are needed. At first, the Talmud might be understood as looking for a source for agency in certain areas, but very quickly it becomes clear that the discussion is really about a general law of agency, because the sugya moves into a tzrikhuta that prevents learning one source from another. The conclusion that the law is general depends on the existence of a tzrikhuta between the sources, because then they function as a single unit of study that generates a binyan av from the common denominator.
The analogy to Bava Kamma: the four primary categories of damages and the common denominator
The Mishnah in Bava Kamma presents four primary categories of damages written in the Torah and concludes, “the common denominator among them,” and the text explains that the internal tzrikhuta between the categories is based דווקא on differences that prevent one from being learned from another. The Talmud on page 6 explains “what does the common denominator come to include,” and establishes that the common denominator creates a unified definition that allows one to obligate damagers that are not completely similar to any single primary category, such as one’s stone, knife, or load that fell from the roof and caused damage. The text formulates that the common denominator is not a rhetorical summary but a halakhic tool that allows a shift from liability dependent on the private characteristics of each category to liability that stems from what they share, such as “it is your property and its safeguarding is upon you.”
Why each source is needed, binyan av, and the rule that two verses coming as one do not teach
The text distinguishes between a situation where there is no tzrikhuta, in which case the second verse is superfluous and signals that “two verses coming as one do not teach,” so the law is limited to those two cases, and a situation where there is tzrikhuta, in which case there is no redundancy and the combination creates a “binyan av from two verses” that teaches for the whole Torah. The tzrikhuta is also described as a process of elimination that shows that the unique characteristics of each source do not determine the core obligation, and therefore the obligating characteristic is precisely what cannot be denied because it exists in both. From this, the text defines that the real source of the derivation is the common denominator created after the tzrikhuta, and from it one can learn additional cases without checking exact similarity to one particular primary category.
Applying the model to agency: the “four primary categories of agency” and the common denominator
The text suggests that if there were a neatly arranged Mishnah after the Talmudic discussion, it would look like Bava Kamma: betrothal, divorce, terumah, and the slaughter of sacred offerings would be presented as “primary categories,” and from them a common denominator of agency would be formulated. The common denominator is defined as a situation in which a person has to perform an act personally but wants to appoint someone else to do it in his place, and then “a person’s agent is like himself.” The conclusion depends on there being a tzrikhuta between the sources, because then it becomes clear that the law does not depend on unique features of terumah or of divorce and betrothal, but on a general principle that applies everywhere with parallel characteristics.
Derivative cases, degree of similarity, and general-particular structures
The text sharpens the point that even where “two verses do not teach,” whatever is completely similar to one of them is still included in it as a derivative case, like the derivatives of goring in Bava Kamma that stem from “its intention is to damage,” even though they are not done with an actual horn. The discussion presents that the question of how much similarity is required is not one-dimensional, and brings the sugya in Hullin about a minimal refutation in a binyan av as opposed to a substantive refutation. The text compares this to the hermeneutical principles of general and particular and to different textual structures that define different radii of inclusion, and explains that a particular followed by a general includes more than a binyan av because it includes even partial similarity and not only full similarity.
“Logical” hermeneutical principles versus “textual” ones, and refutation
The text states that refutation exists only in an a fortiori argument and in a binyan av, because these are “logical” principles that have no textual trigger compelling the derivation, and therefore one can undermine the comparison by pointing to a relevant distinction. By contrast, in general and particular, gezerah shavah, and hekesh, there is a textual trigger that compels the comparison, so a refutation in the form of “what about this case, where…” is not relevant, and the limitations are not refutation but internal rules of the hermeneutical principle, such as the “aspects” of similarity. From this, the text explains why betrothal is not an independent source within the tzrikhuta of agency, because the connection between divorce and betrothal is learned from the hekesh “and she went out and became,” and not from a logical comparison that invites two-sided refutation.
The structure of the tzrikhuta in agency: three sources, not four
The text defines that in calculating the tzrikhuta in the sugya of agency there are three sources: divorce, which includes betrothal by force of hekesh, terumah, and the slaughter of sacred offerings. The Talmud tries to omit each source and learn it from the other two, and the refutations “they also apply to non-sacred matters” and “they also operate through intention” are brought as reasons why certain pairs are insufficient. The text notes that the weak point in the tzrikhuta is terumah, because “let the Merciful One not write it regarding terumah, and let it come from those others” seems to have no refutation, and therefore the question “then what do I need ‘you, even you’ for?” becomes a turning point toward a different derivation from the verse.
“You too”: agency in terumah and the exclusion of a gentile
The text brings the Talmud’s answer that “you, even you” is needed for Rabbi Yannai: “Just as you are members of the covenant, so too your agents must be members of the covenant,” and from this it follows that a gentile cannot serve as an agent. The text raises the question whether this is a principled exclusion from agency because of lack of belonging to the group of “members of the covenant,” or a functional exclusion because he is “not within the legal framework of the matter,” and the two possibilities lead to symmetry or asymmetry regarding whether a Jew can be the agent of a gentile. The text also lingers over the difficulty that “you too” is a term of inclusion, not exclusion, and suggests that the verse is interpreted as a limited inclusion of agency restricted to members of the covenant, rather than as a pure exclusion, in order to justify the need for an additional source even though agency in terumah could have been learned from other sources.
“Not subject to the law of bills of divorce and betrothal”: reasoning versus verse
The text quotes Rabbi Hiyya bar Abba in the name of Rabbi Yohanan that a slave cannot become an agent to receive a bill of divorce because he is not subject to the law of bills of divorce and betrothal, and the Talmud asks, “why do I need a verse for this,” because this is “simple reasoning.” From here the text concludes that, at the stage of the question, the Talmud treats the exclusion as connected to “not being within the legal framework of the matter” and not as a principled prevention, and that the principle “something that does not apply to him cannot be done through him as agent” is treated as strong reasoning. The text connects this to the dispute over understanding agency as an “extended hand” versus “authorization,” and argues that the reasoning of “not within the legal framework” fits better with the model of authorization, in which the agent performs an independent act, and therefore if he is not connected to the concept of the act he cannot carry it out.
The answer: a gentile is relevant to his own terumah, and the novelty of “you too”
The text completes the Talmud’s answer that a verse is needed, because one could have distinguished between a slave, who is not at all “subject to release,” and a gentile, who “is relevant to his own terumah,” based on the Mishnah: “If a gentile or a Cuthean separated terumah, their terumah is terumah.” The novelty — “it comes to teach us” — remains ambiguous: either the verse teaches a principled prevention, that even someone who belongs to part of the domain still cannot become an agent, or it defines that partial belonging does not count as being “within the legal framework” for purposes of agency. The text concludes that the practical difference is major regarding whether a gentile can be an agent in places where he is in fact “within their legal framework,” and notes that there are implications and difficulties in relation to other sugyot that will be discussed later.
Full Transcript
[Rabbi Michael Abraham] Up to now — and really by “up to now” I mean including the previous semester too — we’ve seen various sources for the law of agency. We saw divorce, betrothal, terumah, the slaughter of sacred offerings, slaughter and appointment for the Passover offering. And with all these sources, in the end we need to ask ourselves: why do we need all of them? So at the very beginning, at the start of the first semester, when I talked about the question of what exactly we’re looking for here, I raised two possibilities. The Talmud itself could be understood as looking for a source for agency in divorce, in betrothal — sorry — and it could also be understood as looking for a source for agency in general, which would then automatically apply also to divorce and betrothal. It starts out as a search for a source of agency in specific areas, but very quickly the question comes up: wait a second, so why not learn one from the others? And that of course takes us straight into a tzrikhuta. So de facto, in the end, it’s clear that we’re talking about the general law of agency. It’s just that this law is learned from several sources. That reminds me — Yair, maybe shed a bit of light on this — it reminds me of the Talmud at the beginning of Bava Kamma. The Talmud there talks about the four primary categories of damages. It discusses the derivatives and so on, but in the Mishnah at the beginning of the tractate it says: “There are four primary categories of damages: the ox, the pit, the consuming damage, and the fire.” And at the end it says: “The common denominator among them is that they are your property, and their safeguarding is upon you, and when they cause damage, the damager is obligated to pay compensation from the best of the land.” “Your property” is the Rif’s version, but no matter — “their safeguarding is upon you, and when they cause damage, the damager is obligated to pay compensation.” The question is: what does “the common denominator” mean? We basically have four primary categories, and what defines them is what Rashi writes there — it’s clear: “primary categories” means what is written in the Torah. Ox, pit, consuming damage, and fire — that’s what’s written in the Torah. Again, there’s a dispute between Rav and Shmuel what exactly each one is, but these are four primary categories written in the Torah. In each of them — yes, these are four primary categories written in the Torah. It sounds a little strange on the eve of Passover: three patriarchs and four matriarchs, but you know, don’t argue — the “fathers” written in the Torah aren’t Abraham our patriarch, they’re ox, pit, consuming damage, and fire. It’s like at the end of the Haggadah there — thirteen who know, right? In “One Little Goat.” What are the thirteen who know? The thirteen hermeneutical principles,
[Speaker B] right?
[Rabbi Michael Abraham] Of course — take a look at the Brisk Haggadah and you’ll see. It’s the thirteen principles of Rabbi Ishmael: a fortiori, gezerah shavah, binyan av from one verse, binyan av from two verses. Anyway, back to our subject. So the Torah essentially writes four primary categories of damages. From them we learn the common denominator. What does the common denominator mean? If you make a tzrikhuta among the categories themselves, then you don’t need to get to a common denominator. You say: you can’t learn ox from pit. Why not? Because a pit, from the start of its creation, is made for damage. Fine? Or fire — another force is involved in it. Or its way is to move and cause damage, or something like that. So you can’t learn one from the other, and therefore each has to be written. So from the standpoint of the internal tzrikhuta among the various Torah sources, this has nothing to do with a common denominator — just the opposite. You need to show a distinguishing feature. You need to show that each one has a side different from the other, and therefore you can’t learn the other from it. Okay? So the tzrikhuta specifically expresses the different side that each thing has.
[Speaker C] But the Mishnah ends with the common denominator. “The common denominator among them is that their way is to cause damage.” The result. Yes, not from the beginning but from the end.
[Rabbi Michael Abraham] But the Talmud on page 6 shows that not to be the case. Because the Talmud there says: “What does the common denominator come to include?” And one of the answers is, for example, one’s stone, knife, or load that fell from the roof and caused damage. Or there’s also there someone who puts out manure into the public domain; there are several possibilities there for what is learned from this. Right? Now what does “come to include” mean? What do you mean, why is this needed? What is this generalization for? What do you mean, what is it for? Because it tells you the law that in all of them, it is your property and its safeguarding is upon you, and when it causes damage… No. The Talmud learns that “the common denominator” means that after I’ve made a tzrikhuta among the four primary categories, I now basically have before me one unit in which it is written that the damager must pay, and I ask: what is its definition? Why is that important? Because there are cases — and the Talmud brings them there on page 6 — that will not be learned as a derivative of one of the primary categories. They can’t be learned — they are not completely similar to one primary category — and I will learn them from two, or from the whole cluster, whatever it is. So now I need a new tool. Once I have these four primary categories, I ask myself: okay, now there is some rule that unites all four. What exactly is shared? “The common denominator among them is that their way is to cause damage, and it is your property and its safeguarding is upon you,” and therefore when damage occurs, the damager is obligated to pay. From here on, anything that is your property and whose safeguarding is upon you — you are obligated to pay compensation from the best of the land. I don’t need to check whether it resembles goring, whether it resembles tooth, whether it resembles the consuming category, the pit, and so on. Why not? Because now, when I talk about the obligation itself, the obligation itself stems from the common denominator shared by the four primary categories. In order to learn that common denominator, I have to make a tzrikhuta among the sources, and the tzrikhuta is based on the distinguishing side. Let’s think for a second about two. Say we had only two sources in the Torah — say ox and pit, okay? Just for simplicity. So I say: what about pit, whose initial creation is for damage? What about ox, which has a living spirit in it? Fine? And it can move, it can damage more. So therefore you can’t learn ox from pit, nor pit from ox. Now I have a new damager: one’s stone, knife, or load that fell from the roof and caused damage. Now this is not like ox, and not like pit. The Talmud eventually says it’s somehow like both, and we learn it from both together. It isn’t like ox and it isn’t like pit. So what about it? If I understand that there is no common denominator here — there’s ox, there’s pit, and each is needed because it can’t be learned from the other, and that’s it — now I have ox and pit. Then stone, knife, and load would be exempt, because they’re like neither ox nor pit. But if I understand that ox and pit together tell me that liability doesn’t depend on the features of ox — because after all pit also obligates — and it doesn’t depend on the features of pit — because ox also obligates — then apparently it depends on something else, not on the unique features of ox and pit. On what, then? Apparently on the common denominator, on what the two primary categories share. And that’s the common denominator. What is the common denominator? That it is your property and its safeguarding is upon you. Ah — if that’s the case, then one’s stone, knife, or load that fell from the roof also fits that, because it is his property and its safeguarding is upon him, and therefore he is liable. It doesn’t need to resemble ox and pit. So now the question is: if I were looking for a source for the laws of damages, and I brought goring, ox, pit, consuming damage, and fire — each of them is a source for damages by ox, a source for damages by pit, by consuming damage, and by fire. Now I ask myself: yes, but what about the laws of damages in general? Maybe there is no such thing at all? Or maybe I have four damages, all sharing just the name “damages” — four different primary categories of damages. Each one: whatever resembles it is liable, but that’s it. Whatever doesn’t resemble one of them won’t be liable. The Talmud assumes not that way. Why? Because this is what is called the hermeneutical principle of binyan av. Binyan av says — that hermeneutical principle says — that when something is written in the Torah, the assumption is that it serves as a model category. Meaning that everything that resembles it in some way will be learned from it. It wasn’t said only about that thing itself. Okay? So if that’s the case, when four things are written, that isn’t worse than one thing. If there’s no tzrikhuta between them — meaning, if one could have been learned from the other — what happens in that situation? Say there are two, okay? Ox and pit. And say there’s no tzrikhuta; they’re similar. And both were written — what would happen?
[Speaker C] One is extra, for something else.
[Rabbi Michael Abraham] “If it is not needed for this matter” — fine, but we don’t find that here. Rather: two verses coming as one do not teach. By the way, that’s relevant to our sugya later. Two verses coming as one do not teach. Because why do you need to write the second one, if it could be learned from the first? So from here it’s clear that if the Torah wrote the second one, it came to tell us that the law applies only to those two and don’t learn from them to anything else. Because if this were something general, it would have been enough to write the first one, and from it I would have learned the second, and of course everything else too. So clearly, when the Torah writes the second one, it’s coming to say that the law exists in the first and the second — and that’s it, not in all the others. What happens when there is tzrikhuta between them? If there is tzrikhuta between them, then there is no question why the Torah wrote the second one, because it could not have been learned from the first. If so, de facto I really have only one teacher. Ox and pit together are one teacher. There isn’t anything extra here that comes to tell me that the law applies only in those two and not in everything else. You need something extra in order to say “two verses coming as one do not teach.” That’s the difference between “two verses coming as one do not teach” and “a binyan av from two verses.” There are situations where I have two verses and I learn from them for the whole Torah. And there is a situation where I have two verses, and they do not teach — only in those two and not elsewhere in the Torah. What’s the difference? The question is whether there is tzrikhuta between the two verses. If there is tzrikhuta between the two verses — if there is no redundancy between them — then the second verse is not extra. If there is no tzrikhuta, the second verse is extra: why was it written? To tell me this is only here and not in all the other places. If there is tzrikhuta in the two verses, then it is as if one source was written. I have one source here, and I learn from it. What will be the characteristics that form the model category from which we learn for the whole Torah? The common denominator. The features shared by both — that, de facto, is what is written in the Torah from my point of view: whatever has those shared characteristics is liable. Put another way, this is what I said earlier: when I make a tzrikhuta between ox and pit, what does the tzrikhuta show? That the features that determine liability for damage are not the features of ox, because pit is liable too. And they are also not the features of pit, because ox is liable too. So what features do obligate? Apparently the features they share, which you cannot negate on account of the existence of the other. All the particular features turn out to be irrelevant. So from this perspective, tzrikhuta doesn’t only tell me why the second thing was written. It performs an elimination of the features. It basically says: I’ll show you that the unique features of ox and pit are irrelevant. Pit proves that the features of ox are irrelevant; ox proves that the features of pit are irrelevant. So what is relevant? What they share — that it is your property and its safeguarding is upon you. If that’s the case, then there is now a new binyan av here. The two together are, from my perspective, one source, because the tzrikhuta is one source, not two. And what does that source say? That anything which is your property and whose safeguarding is upon you — you are liable to pay. Forget the unique features of pit and ox — we’ve already proved they’re irrelevant. What the Talmud says there — “for their own specific laws,” such as exemptions — those are the unique features. Okay? Just one second, let’s fix the attendance here. Remind me again? Aharon, right. I don’t know why I can’t manage to remember — sorry. So I want to say the same thing about the sources for the law of agency. There too, you really have the same move, even though the Talmud doesn’t spell out “the common denominator” here, because it doesn’t matter. There’s no Mishnah here. A Mishnah is something arranged by the editor of the Mishnah in an organized way: he brings the four primary categories and the summary, okay? Here, the so-called categories appear in the sugya. There isn’t someone who organized one structure. And in the sugya itself they bring various places from which one can learn the law of agency, but there isn’t someone who arranged all the sources and then says: wait, why do we need all of them, and what is the common denominator, and all those things. But in the background, it’s there. If a Mishnah were now to be written after we learned the Talmud, it would be written like in Bava Kamma, and what I would basically say is: there are four primary categories of agency. One second — betrothal, divorce, terumah, and slaughter of sacred offerings. Their common denominator is: something that you need to do yourself, but instead you want to appoint someone else to do in your place. So anywhere that is the situation, you can appoint someone else, and a person’s agent is like himself. That’s the common denominator. It doesn’t appear here because there is no Mishnah, but basically that’s what is here. And therefore, even if at first the Talmud begins with an attempt to find a source for a particular law of agency — in betrothal, in slaughter of sacred offerings, whatever — in the end, when you look at the whole picture, there is the hermeneutical principle of binyan av. Unless — unless the sources are interpreted in such a way that there is no tzrikhuta. If there is no tzrikhuta among the different sources, then there is no binyan av, because then you have four verses that do not teach. The question of why four verses are needed — never mind. And regarding three verses, the Talmud speaks explicitly: even according to the one who says that two verses do teach, three do not teach. But if there is tzrikhuta among the different sources, and the Talmud makes a tzrikhuta — we’ll see in a moment — if there is tzrikhuta among the different sources, then this basically means that our discussion really is about the general law of agency. Not about the law of agency in one specific topic. The general law of agency, which can apply through the common denominator of all the agencies we’ve seen. What does that mean? It means it doesn’t need to be something unique in the sense of terumah, or unique in the sense of bills of divorce and betrothal, because all the unique features are irrelevant — after all, agency exists in the other contexts too. Where will it apply? In those places characterized like all the sources that have a law of agency — exactly like the common denominator in Bava Kamma. Yes. You said what —
[Speaker C] That there are basically two possibilities. If, say, the Talmud brings two examples and makes a tzrikhuta for each one, then there is a general rule. There is a general rule from which you learn. But if there is no tzrikhuta, then you learn only those two, only them. And is there a line of reasoning that if you… and you learn, and you can compare only these two gemarot? What do you learn from these two gemarot? And again, say ox and pit, yes? You learn only them, and there’s no tzrikhuta. Then you leave them — say, for example, there is no tzrikhuta — you compare all the analogies to them, only to them, and you say these are the two…
[Rabbi Michael Abraham] …the only examples in which I impose liability. You’re asking about something that is completely similar to ox. Okay — would that also be included? I think yes, and that would be a binyan av from one verse.
[Speaker C] Meaning it’s not only the law, it’s not only it itself, but the law of…
[Rabbi Michael Abraham] This is always a question. The Talmud in Hullin discusses whether in a binyan av one can make even the slightest refutation. “The slightest refutation” means that the moment it differs in any way, you can no longer learn from it. Or whether you need a substantive refutation. A substantive refutation means there’s a line of reasoning that the law is actually more fitting there, so don’t learn it over here. That would be the difference. In other words, if it’s a case of two verses that do not teach — where it applies only to those two — then you would need something exactly similar; even a minimal refutation would knock it out. Only something exactly like ox — then it’s simply ox. It’s not “ox and its derivatives,” it’s the same thing, okay? But if there’s something that isn’t completely similar to ox, but substantively it seems to me it’s the same kind of thing — then no, that would only work if this were based on both. Okay? This can be learned from the principles of general and particular — I once wrote a book on that. The hermeneutical principles of general and particular differ from each other in… we’ll get to this shortly, because we’ll need it, but never mind — it’s also important general knowledge. The principles of general and particular differ from one another in their textual structure. There is general and particular and general; there is general and particular; there is particular and general; and in one place there is even particular and general and particular, in Nazir, okay? There are several textual structures. What is the difference between them? The Talmud says in several places that the difference is in the question of the radius of inclusion you create around the examples. These structures are always something general — “whatever your soul desires,” “of cattle, sheep, wine, or strong drink” — sorry — “of cattle, sheep, wine, or strong drink, and whatever your soul desires.” So there are four particular things here, and “whatever your soul desires” is the general term. That is a structure of particular and general; there was another general term earlier, but it doesn’t matter. This move by the Torah from particular examples to general statements basically says: interpret me. And that needs to be interpreted, okay? And that is the field of general and particular principles. Now what’s the difference among the principles? General and particular is the narrowest principle: only what is in the particular. If there is a structure of general and particular, then it means only what is in the particular. If it is particular and general, then the general expands upon the particular — that is the broadest principle, everything that resembles the particular in some way. General and particular and general is in the middle, and particular and general and particular is also in the middle, and there are differences between them — depending on two aspects, three aspects of similarity, and there are distinctions there, okay? But this is intermediate similarity. Now the question always comes up: after all, in order to include from… think, say, about particular and general. Particular and general means the general expands upon the particular. What does that mean? The particular is written, and I include everything similar to it. Why do I need the general to be written? There is binyan av. Once one thing is written, I automatically compare to everything similar to it. Ox, pit, consuming damage, and fire. If only ox had been written, I would learn from it everything similar to it — and it’s not even written in the structure of particular and general. Why am I extending it? And if I’m extending it anyway, then what does the principle of particular and general add? After all, in binyan av too, even without a general being written, if the particular is written I will expand it through binyan av. Why then write a general after it? The answer is that particular and general expands more than binyan av does. Binyan av is an expansion to what is completely similar to the particular. Particular and general says: I expand even to things whose similarity to the particular is only partial. Okay? Therefore, when we talk — and I’m coming back to your question, Yosef Shalom — when we talk about the question of how to analogize to what is written in the Torah, similarity is not a one-dimensional thing; it depends how much similarity there is. And the degree of similarity is very important. When the similarity is totally airtight, when it is exactly like ox, then it’s simply ox. That is to say — yes — like when we talk about goring, okay? The Talmud there in Bava Kamma — let’s go back to that Talmud — when we talk about goring, the Talmud says: what are the derivatives of goring? Pushing, biting, crouching, and kicking. What does that have to do with a horn? Because its intention is to damage, right? And in all of these it is abnormal behavior and its intention is to damage, so therefore it is similar to goring. Meaning that if goring and pit were written and there were no tzrikhuta between them, okay, then you couldn’t include everything that is your property and whose safeguarding is upon you, because you don’t have that inclusive common denominator. But obviously, whatever resembles goring is goring — it is simply the derivatives of goring, and of course they are learned. Now what are the derivatives of goring? It’s not actual goring; it’s not done with the horns. It can be done with the leg in kicking, or with the body in pushing. But what is the point? Its intention is to damage. The Talmud assumes that this is the substantive similarity, and from my perspective this isn’t even an expansion — it is goring. It’s simply an interpretation of what is written in the Torah. When the Torah writes “goring,” it means this too. In a certain sense, this isn’t even an expansion, okay? You can… you could call it not an expansion at all, but just an explanation of what is written in the Torah. And according to that, it’s clear that even if these are two verses that do not teach, whatever is completely similar to one of them is simply included in it — that’s not an expansion. Okay? Fine, so I’m coming back to us. The basic claim is that everything will depend on whether there is tzrikhuta among the sources. If there is no tzrikhuta among the sources, then we remain with the view that we have four places where agency exists, and only there — there and whatever is completely similar to each one separately, yes? That’s what I just said. If there is tzrikhuta, then tzrikhuta is not just a technical issue that tells me why all these sources had to be written and weren’t learned from the other sources. Tzrikhuta also tells me that what we have here is a general law of agency. Meaning that these four sources are not really four specific sources, but rather there is some general principle here, that a person’s agent is like himself, and whatever you need to do but want to send someone else to do, you can do that — except for certain cases where we have reasons to say not, specific reasons to say that there it won’t work — but the general principle certainly exists. Therefore, the existence of a tzrikhuta is not merely an abstract matter. When we ask whether there is tzrikhuta, we are not just asking: why did the Torah write this, after all we could have learned it from somewhere else — so it’s just a theoretical question; practically, the Torah wrote it, so what do I care why it wrote it? That would just be “the reason for the verse.” No. It is also very important. Once there is tzrikhuta, I understand that all the places the Torah wrote are a binyan av based on their common denominator, and now I have a law of agency for everything. Good. So this tells us how to look at tzrikhuta. One cannot be learned from one; let one be learned from two. Right? Meaning, we can’t learn one from one other; now — when there are four sources, as in Bava Kamma — the Mishnah itself there says: “The ox is not like the pit, and the pit is not like the ox” — that’s one from one. But now, okay, it may be that two of them would suffice, and that is what the Talmud, not the Mishnah, does there on page 2.
[Speaker B] It’s not this and this, which have living spirit in them,
[Rabbi Michael Abraham] Yes, but the extension — right, you’re correct — but the extension to the others: not all the pairs there are learned, because there are really six pairs. And the Talmud on page 5 says in the end that pit and one of the others — I think that’s the conclusion there — that from pit and one of the others you can learn everything. But in principle, when we want to make a tzrikhuta, the tzrikhuta is done in several stages. First, each one separately cannot be learned from each other one separately. After that, that two of them could not have taught all the others. After that, three — and four, of course, is what I have in the end. So the Talmud says: one cannot be learned from one. We already saw that tzrikhuta of one from one. Then the Talmud sums up: it cannot be learned; let one be learned from two. So let’s take two sources — you still have to explain to me why the Torah wrote four; why aren’t two enough? Which one would you have? Which two? Let the Merciful One not write it regarding sacred offerings, and let it be learned from the others. Again, in our case it’s not four sources but three, because we have divorce as one source; betrothal is “and she went out and became” — that is not a separate source, it is simply learned from divorce; terumah; and slaughter of sacred offerings, right? So we have three. So the Talmud says: let the Merciful One not write sacred offerings — meaning we remain with divorce and terumah — and let it be learned from them. What can you say? Those others apply also to non-sacred matters — unlike sacred offerings. We talked about this at the beginning of last time; someone asked about “they apply also to non-sacred matters,” remember? We discussed it a bit. Let the Merciful One not write divorce, and let it be learned from them. What can you say? Those others operate through intention. Rather, let the Merciful One not write terumah, and let it be learned from them — indeed, so it is. Right? About terumah, I have no refutation; it can be learned from the others. So then the Talmud asks: then what do I need “you, even you” for? Now here again I want to make a methodological comment. I said earlier that here we have three sources, not four — meaning betrothal and divorce are one source. And we need to understand why the Talmud doesn’t view betrothal as a separate source. I have divorce — “and he shall send” and “and she shall be sent,” and all these sources. “And she went out and became” — that is a separate source that comes to teach me from divorce to betrothal. Then there is terumah and slaughter of sacred offerings. The point is apparently that once your source is not a source explicitly written as law in the verse, but rather a hekesh of “and she went out and became,” then there is no redundancy there. Say that it could have been learned from divorce even without this, or from slaughter of sacred offerings. Still, “and she went out from his house and went and became another man’s wife” is a verse that needed to be written in order to teach the matter itself. If I have a source that teaches the law and the law is written explicitly — yes, “so shall you also separate,” or whatever — but not just a comparison to something else, then I can ask: why did it need to write this? Yes, “you shall separate, you too” — why write “you too” to include your agent? That’s extra. Therefore you need tzrikhuta to understand why it isn’t extra. But with “and she went out and became,” there is no question that it is extra. The verse is written because it needs to be written. Only after it is already written does the question arise whether I need to learn from it by hekesh from divorce to betrothal or not. That’s another question, but there is no question here that the verse itself is redundant. Therefore, in the calculation of tzrikhuta, you won’t find betrothal here. The tzrikhuta is done among divorce, terumah, and slaughter of sacred offerings. Similarly, you will not find anywhere in the Talmud, anywhere in rabbinic literature — I think at least; I checked this — you won’t find a refutation on a derivation that is not a fortiori or binyan av. There is no refutation on general and particular, or on gezerah shavah, or on whatever else you want — hekesh. There are no refutations there. Refutations exist only on a fortiori and binyan av. Why? What’s the difference? A fortiori and binyan av — I call them the logical hermeneutical principles. In a fortiori and binyan av there is no textual trigger that makes me do the derivation. Say I want to learn goring in the injured party’s courtyard from goring in the public domain by a fortiori argument. Just as tooth and foot are exempt in the public domain and liable in the injured party’s courtyard — so the injured party’s courtyard is more stringent than the public domain — then goring, which is liable in the public domain, should certainly be liable in the injured party’s courtyard. Okay, so that’s a fortiori. Now is there anything in the wording of the Torah that is the reason I make this derivation? Nothing. In the wording of the Torah, only the laws are written. Goring is liable here, exempt there; tooth and foot are exempt here, liable there — that’s all. I make the logical calculation out of the laws. Same thing with binyan av: something is written, and I learn from it to something similar that the same law applies there. There is nothing in the text that tells me to make the derivation. There, if there is a refutation — it’s not similar, okay, then I won’t learn, because after all my whole derivation is based on the similarity in binyan av, or on the a fortiori. If there is no a fortiori because there is a refutation, or there is no similarity, then I won’t learn. But if I have a textual trigger for the derivation — gezerah shavah: I have the same word in two places, and let’s say it is free for interpretation, or at least on one side — but there is, meaning there is some redundancy or something in the text that causes me to make the derivation. Then what help is a refutation?
[Speaker C] Say it’s something in the text — the question is whether it’s redundancy or not.
[Rabbi Michael Abraham] No, a fortiori has nothing in the text at all. It’s only the law. Not the text. A fortiori and binyan av are not about the text; they’re about the law that is written, obviously. But there is nothing in the formulation that tells me to make an interpretation.
[Speaker C] Right. And are there other principles like that?
[Rabbi Michael Abraham] Other than a fortiori and binyan av, I don’t think so.
[Speaker C] What about the common denominator, sort of? The common denominator is binyan av.
[Rabbi Michael Abraham] It’s a branch of binyan av.
[Speaker C] Obviously — a binyan av from two verses.
[Rabbi Michael Abraham] No, no — there’s no independent “common denominator.”
[Speaker C] And “something learned from its context”?
[Rabbi Michael Abraham] No, “something learned from its context” is something else, and yes — that’s not relevant here. “Something learned from its context” is within the text. No — everything is within the text. No, I mean there is a textual trigger. The trigger is that something appears in parallel with its context. The Torah positioned it in some way. A fortiori and binyan av — you don’t ask how the Torah formulated it or anything like that; you simply learn from the law itself written in the Torah. The content of the law, not how it appears. The wording plays no part. There are textual principles and logical principles. The logical ones are only a fortiori and binyan av — maybe also two verses that contradict one another, I don’t know, that needs a bit of discussion. In any case, you won’t find a refutation on general and particular or on gezerah shavah. Why not? Because when there is general and particular, I make an expansion. And I said earlier: I make a broader expansion than in binyan av. I expand even to something not completely similar, because the Torah itself said so. If it were an expansion only to things that are similar, there would have been no need to write the general term. Just write the particular, and I’ll make a binyan av from it. Okay? That’s how the commentators on the hermeneutical principles explain it. So when the Torah writes in the form of particular and general, it’s telling me: make an expansion beyond what you would do in binyan av. So what good would a refutation do here? I’d say: that other thing is not similar to the source? Of course it isn’t! That’s exactly why the Torah said that I should still expand to it even though it isn’t similar. Right? In binyan av, the Torah didn’t tell me to expand. I decide that it’s similar, so I expand. If it’s not similar, I don’t expand. But here the Torah itself — or in gezerah shavah — the Torah tells me to compare. We make a gezerah shavah between a slave and a woman: “to her, to her” — slave from woman. Now I say there’s a difference: what about a slave, since he is subordinate to his master — I don’t know exactly what. Okay? That’s not relevant. That’s a refutation, but it’s irrelevant, because the similarity between a slave and a woman is not based on their being similar. If it were based on their being similar, then bring a refutation and show me they’re not similar. But here it’s based on the fact that the Torah itself told me to compare the laws between them. So it told me: compare them even though they are not similar. And that’s exactly the point.
[Speaker C] You can’t learn everything from general and particular and general.
[Rabbi Michael Abraham] But you…
[Speaker C] She said she meant that even though it’s not similar, you still extend it, but not everything.
[Rabbi Michael Abraham] No, I mentioned that earlier before you came in — that’s a case of general and specific.
[Speaker C] So if someone exaggerates, how do you tell him that?
[Rabbi Michael Abraham] No, no, no — you don’t tell him. Nowhere will you find that they told anyone he exaggerated. There isn’t — in short, there are no brakes.
[Speaker C] No, there are brakes.
[Rabbi Michael Abraham] But the brakes are not the result of reasoning, and therefore nobody needs to stop you. It’s a question of facets; the Talmud calls them facets. The question is how many facets of similarity you need for the particulars. Okay? One facet, two facets, three facets. That’s the degree of extension beyond the particulars, and it’s defined. In a general-specific-general, it’s two or three facets; in a specific-general, it’s one facet; in a general-specific, it’s four facets. That’s written in the Talmud. So the brakes are built into the matter itself — meaning, the Torah itself tells you how far you have to go with this extension when it’s not similar, or how dissimilar it can be.
[Speaker C] In the end, I’m the one choosing what the facets are.
[Rabbi Michael Abraham] Fine, that’s always true. That’s always true. But that’s not brakes. You have to decide what the facets are. They don’t say you exaggerated; rather, the question is simply whether you chose the right facets or not. But once there are facets, how far to go doesn’t need brakes here; that’s defined by the hermeneutic rule itself. Okay? So basically what I want to say is that in logical hermeneutic rules there is a refutation; in non-logical hermeneutic rules there is no refutation. There can’t be a refutation. And that’s exactly the same thing here. In an analogy by juxtaposition, what would a refutation even mean? So by definition you also don’t need mutual necessity. There is no mutual necessity between divorce bills and marriage, and between marriage and betrothal. Ah — in the opposite direction maybe you would need mutual necessity?
[Speaker C] Say, to learn from marriage? Suppose I take marriage and divorce bills?
[Rabbi Michael Abraham] Of course, that’s obvious. And they didn’t do that… there’s no need to do more than that. What didn’t I understand?
[Speaker C] No, say they say: let’s learn from marriage and marriage?
[Rabbi Michael Abraham] That’s no problem; that you can learn. Ah, in the first place. But between divorce and marriage nobody made a mutual-necessity argument, because the similarity between them is based on juxtaposition, not on a logical comparison, not on resemblance, but on juxtaposition. When you say here he sends her away and there he brings her in, I can give you a refutation, say — I’ll invent one now. It doesn’t matter; the Torah juxtaposed them. It told you: I want you to do the same thing with divorce and marriage. Not because it’s similar, not because you think it’s similar, and even if you think it’s not similar. I tell you to compare them; it’s not that you decide to compare them because it seems similar to you. So a refutation is irrelevant there. Right, and therefore in the mutual-necessity arguments here, since mutual necessity is basically just a two-sided refutation, marriage doesn’t play a role there either. All the mutual-necessity arguments are always: divorce and marriage are one head, terumah and sacrificial slaughter. Not four things — divorce, marriage, terumah, and sacrificial slaughter. Divorce and marriage are one unit. Okay? So in the end they make a mutual-necessity argument, and the question is: then why do I need ‘you also’? So the Talmud says: it’s needed for the teaching of Rabbi Yannai, for Rabbi Yannai said: ‘You also’ — just as you are members of the covenant, so too your agents must be members of the covenant. Meaning, agency in terumah really could not have been learned from the other sources, from divorce and sacrificial slaughter. So why is it written ‘you also’? And here, notice, there is an extra word: the ‘also’ comes to include an agent. What does that extra word come to say? That a gentile cannot be an agent. Just as you are members of the covenant, so too your agents must be members of the covenant. Now regarding the gentile, maybe I’ll make one more comment before I get into the issue a bit more. What about a gentile sender? Not just that a gentile can’t be an agent — what about the one appointing the agent? Can a gentile appoint a Jew? Can a Jew be an agent for a gentile? And only a gentile can’t be an agent for a Jew, or vice versa? Look, the question is what this principle is based on — that a gentile can’t be an agent. If the gentile can’t be an agent because the agent and the sender need to belong to the same group — call it mutual responsibility if you like, though I don’t specifically agree with using that term in this context, but it’s the same idea — then I say: you can represent me because we’re the same, or sufficiently similar. Okay? Then it seems that it’s symmetrical. So just as a gentile can’t represent me, I also can’t represent him. After all, this isn’t a question of superiority or inferiority, not a question of who’s better and who’s less good.
[Speaker C] Why does it seem symmetrical again? Why not?
[Rabbi Michael Abraham] It seems symmetrical if you understand that the reason a gentile is excluded is because he’s not in my milieu, he’s not of my type. So he can’t represent me — and then I’m also not of his type.
[Speaker C] That’s even what he made easier…
[Rabbi Michael Abraham] In the first place, for acquisition for example, for transactions for example, for transactions for example. By the way, terumah also applies to a gentile, as the Talmud here goes on to discuss later. You can even talk about separating terumah. But that’s later.
[Speaker C] But ‘you also’ also implies symmetry — what you said, that they need to belong to the same group.
[Rabbi Michael Abraham] So I’m saying: if I understand that they need to belong to the same group, it’s just the question that he can’t represent you because he’s not of the same type. It’s not that a Jew has to do it so that there will be another Jew; it just has to be someone of the same type. So seemingly that ought to be symmetrical. But one could understand it differently. One could understand that the gentile can’t be my agent because he’s not within the legal framework of the matter. He doesn’t belong to divorce and marriage law, so he can’t be my agent. If that’s so, then in principle he could be an agent for a gentile. It’s not an essential impediment; rather, specifically here in divorce and marriage he doesn’t belong. In areas where he does belong, he can be an agent. And of course I can be his agent, because anything that applies to a gentile also applies to a Jew. Only the reverse is not true. Okay? There are things that apply to a Jew and not to a gentile, but not the reverse. ‘There is nothing forbidden to a gentile, that is, to a Noahide, and permitted to a Jew,’ as the Talmud says in Sanhedrin. Okay? And then there could be asymmetry here. Or in other words, we need to check: when we exclude a gentile from agency, is that a principled exclusion? Meaning, does a gentile not belong at all to the institution of agency vis-à-vis a Jew? He does not belong to agency for a Jew. Is that a principled impediment, even in, say, transactional matters? In transactions too, a gentile is involved in transactions; in marriage he isn’t, but in transactions he is. Regarding transactions, can he be my agent? To buy something or something like that? That’s the question. If I understand that a gentile can’t be my agent in principle because we’re not members of the same covenant, not covenant members, not part of the same group, then even in matters where he does belong he can’t be my agent. That’s a principled impediment. If I understand that there’s no principled problem here, but rather he’s not within the legal framework of the matter, then where he does belong, yes. In divorce and marriage, no; in terumah it depends on a dispute, as we saw; sacrificial slaughter is also debatable, because gentiles can bring offerings as vows and freewill offerings. So each matter has to be discussed on its own terms. That’s the first comment. And we’ll talk a lot more about that today. The question is what exactly we learn from ‘you also.’ But one more general comment: ‘you also’ is, on the face of it, inclusive, not exclusive. ‘You also’ — meaning, it comes to include the agent. Now if you say, okay, but that’s redundant because I would have learned to include the agent from somewhere else — so what? Then I exclude a gentile? But it’s not coming to exclude; it’s coming to include. Include something else if there’s no need to include an agent — include a guardian. Fine? I don’t know exactly.
[Speaker B] Look, ‘you also’ is a comparison between the sender and the agent. Both the sender and the agent — both of them — have to be members of the covenant.
[Rabbi Michael Abraham] So I’m saying again: but then you’re still saying that ‘you also’ comes to exclude, not to include. It comes to exclude the gentile. It’s strange that ‘also’ should exclude.
[Speaker C] It’s not the ‘also,’ it’s the ‘you.’ The ‘you’ comes to exclude. What does that mean—
[Rabbi Michael Abraham] mean?
[Speaker C] The word ‘you.’
[Rabbi Michael Abraham] No, but the ‘also’ says that the agent is like the ‘you.’
[Speaker B] It is the ‘also.’
[Rabbi Michael Abraham] The ‘also’ says that the agent is like the ‘you.’ If you are members of the covenant, then the agent also has to be a member of the covenant.
[Speaker B] So really it doesn’t come to exclude. After we say that ‘you’ means members of the covenant, then we say that the agent too has to be a member of the covenant. That’s no longer exclusion; it’s comparison.
[Rabbi Michael Abraham] Look, just a second — if, say, there had been a source, if, say, the source were needed for the law of agency in terumah. There had been mutual necessity — meaning, you couldn’t have learned it from the… not what the Talmud
[Speaker E] said here — you couldn’t have learned it from the other sources.
[Rabbi Michael Abraham] Then I wouldn’t have had a problem. Even excluding a gentile wouldn’t have been a problem for me. Why? Because ‘so shall you also set apart’ comes to include the agent — but what kind of agent? That same agent who is like you. No problem. There the ‘also’ comes to include, but not include everything — to include something. Okay? But if I say: after all, I know agency in terumah; I learn it from the other sources. Now what does this verse come to say? ‘So shall you also set apart’ — but that’s redundant, because I know that there is agency in terumah. Right? So what? No, it comes to exclude, to exclude a gentile. So that’s very strange. Because as I said before, even when I exclude gentiles, it’s not really exclusion; it’s a smaller inclusion. But now they’re telling me no, it’s pure exclusion. Because I know the law of agency even without this, and ‘you also’ comes purely to exclude. And that’s a bit strange. It could be — maybe we’ll see this later — that in fact, practically speaking, the Talmud isn’t really including an agent here. I mean, true, it could have learned agency in terumah from the other agencies. The Talmud asks: why do I need ‘so shall you also set apart’? To tell you that I learn the law of agency from here as well. And why is that important, since I could have learned it from elsewhere? Because from here you also see that the agent who is included is only someone who is like you, a covenant member. So the idea is like it would have been if there had been mutual necessity — if there had been mutual necessity, sorry. Right? Meaning, again, I’ll formulate it like this. If there had been mutual necessity, and you couldn’t have learned terumah from the other sources, then there would have been no problem at all: ‘so shall you also set apart’ comes to include the agent, because you couldn’t have learned agency from elsewhere — that there is also an agent in terumah. And there too it wouldn’t have bothered me to say that it comes to exclude a gentile. Why? Because the ‘also’ doesn’t come to exclude. The ‘also’ comes to include agents — but which agents? Only agents who are like you, members of the covenant. That’s a smaller inclusion, not an exclusion. Okay? So that’s fine. Because ‘you also,’ say, only means like you; you don’t need redundancy for that. But if my question was that I can indeed learn agency in terumah from the other sources, then in effect this whole ‘you also’ comes only to exclude. Since I know the concept of agency even without it. How can that be? So the claim I want to make is to go back to the option as though there had been mutual necessity. Fine? Basically, I’m saying this: the Talmud asked, ‘so shall you also set apart’ — to include the agent. After all, earlier, earlier, the Talmud said that ‘so shall you also set apart’ comes to include your agent. Fine? But then the Talmud says: yes, but you can learn that from other places. There is a statement that learns the law of agency from here; you can’t ignore that it does so. We just have a difficulty: why are you doing that, since we have other sources and you don’t have mutual necessity? So to that we answer: do you know why I’m learning agency here — not the exclusion of the gentile? I’m learning agency here because from here I understand that the inclusion of agency was stated only about those who are like you, members of the covenant. So in the end there is inclusion here, by the way, not exclusion. It’s just that my question was why I need this inclusion, since I could have learned it from elsewhere. Ah yes — because if you had learned it from elsewhere, you would have included every agent. Therefore I need a source here for the law of agency, not for the law excluding a gentile. The source here is a source for the law of agency. It’s just that this source is needed because another law comes out of it — that an agent can only be someone who is not a gentile. But that law is a smaller inclusion, not an exclusion. It’s only a smaller inclusion that would seemingly have been redundant. If it weren’t smaller, it would have been redundant. Because it is smaller, it isn’t redundant.
[Speaker C] So you can choose where I derive it from? There’s some strange claim here, because I can learn agency from several sources, and you’re saying choose the specific inclusion—
[Rabbi Michael Abraham] the specific one, the minimum — it’s always the minimum. Meaning, the other sources don’t say… they don’t say that a gentile can be an agent. What, they don’t say he can’t? But here it explicitly says he can’t.
[Speaker C] And now another question: if we ask, if we’re sort of looking at the editor’s considerations, so to speak — the one who encoded all these things — then you could raise the question immediately: why teach me an exclusion by way of a specific inclusion? One or the other.
[Rabbi Michael Abraham] Why he did that — that’s already the reason for the verse, and I don’t know.
[Speaker C] I don’t know.
[Rabbi Michael Abraham] But no — there’s a difference between a question and a difficulty. Redundancy is a difficulty; what you’re asking is a question. I don’t know — he could have phrased it this way, he could have phrased it differently, fine. Why did he choose this rather than that?
[Speaker C] I don’t know. But in the way he phrased it, he actually had to… he included it in several places—
[Rabbi Michael Abraham] so that—
[Speaker C] so that I would choose the specific inclusion instead.
[Rabbi Michael Abraham] No, I didn’t understand. What do you mean, so that you’ll choose the specific inclusion? He needs all these places; he needed to include it — there is mutual necessity.
[Speaker C] No, there is mutual necessity in all the places, obviously, except for terumah. Except for terumah, where there was no need to include it. What needed to be done was to include it in one of those places in a specific way.
[Rabbi Michael Abraham] Fine, so that’s why I’m—
[Speaker C] saying, then it’s not really redundant.
[Rabbi Michael Abraham] Why? It’s not redundant. Instead of writing the ‘also’ here, write—
[Speaker C] the ‘also’—
[Rabbi Michael Abraham] there. So he chose to write the ‘also’ here — what difference does it make?
[Speaker C] No, because the word ‘also’ wasn’t needed.
[Rabbi Michael Abraham] No, you need to say ‘so shall you set apart, you’ — the verse itself is needed. This is not an explanation for the whole verse. But there is an extra word here: the ‘also.’ You need to write the ‘also’ somewhere else, so it’s not redundancy. The whole question is where to place the ‘also.’ Fine, so he chose to place it here. I’m not saying I have an answer; I don’t have an answer. I’m only claiming that this is a question, not a difficulty. Redundancy is a difficulty — why suddenly do this? Don’t do it. Here it’s a question: why did you choose to put the ‘also’ here? You could have put it there. If I had put it there, you’d ask why there. Fine, I chose one of the options.
[Speaker C] I wouldn’t ask. There is where it was included. Here you’re including it in a place where you don’t need to, just in order to place the ‘also.’ There’s something a little strange here.
[Rabbi Michael Abraham] No, but that inclusion isn’t interesting. For me, de facto, it’s an exclusion. There’s no… obviously, but you didn’t do two things.
[Speaker C] No—
[Rabbi Michael Abraham] But I didn’t do two things. I didn’t…
[Speaker C] You explained that the word isn’t redundant because… right. I also…
[Rabbi Michael Abraham] There’s nothing here that first includes and then excludes. This ‘also’ does both operations at once. It includes a little. It doesn’t include and then exclude.
[Speaker C] But it really is strange, because you need sort of three places in order to include it. You could have done it with two. Even though the exclusion isn’t redundant.
[Rabbi Michael Abraham] No, fine. You could have done it with two. But the verse had to appear anyway. And besides, what do you care if you gain something? For example, I’ll give you a consideration. What’s wrong with writing that terumah also has agency? Maybe people won’t realize that terumah can be learned from the other places and will think that terumah can’t. After all, the law is true. Why not save confusion? What’s the problem? Since anyway, at the same price, with the same one extra word. Do sixteen, do sixteen — but as long as there isn’t… once you do sixteen there will be redundancy. Here there isn’t redundancy; that’s what I’m saying. You only need to ask the question where to place the ‘also.’ Fine, so he chose to place it here. I’m not saying I have an answer; I don’t have an answer. I’m only claiming that this is a question, not a difficulty. Redundancy is a difficulty — why suddenly do this? Don’t do it. Here it’s a question: why did you choose to put the ‘also’ here? You could have put it there. If I had put it there, you’d ask why there. Fine, I chose one of the options. I wouldn’t ask. There is where it was included. Here you’re basically including it where there was no need, just in order to place the ‘also.’
[Speaker C] There’s something a little odd here.
[Rabbi Michael Abraham] No, but the verse was there anyway. The verse ‘so shall you set apart, you’ had to appear. It’s not…
[Speaker C] No, true, but the word ‘also’ as well.
[Rabbi Michael Abraham] Fine, so it’s not two places; in any case it’s three. It would have appeared…
[Speaker C] If you had inserted it in sacrificial matters, then it would simply be two places.
[Rabbi Michael Abraham] No, it wouldn’t be two places, because ‘so shall you set apart, you’ would have appeared as well. The verse would have appeared, just without the ‘also.’
[Speaker C] The word ‘you’ is also redundant. There’s something slightly jarring here. ‘So shall you set apart’ — enough, why do you also need ‘you’?
[Rabbi Michael Abraham] That I don’t know. It could be that they derive other things from it too, so it could be… On the face of it, it looks like it’s from the ‘also.’ Anyway, so the ‘you’ comes to exclude, basically. After all, the word ‘you’ comes to exclude and the ‘also’ comes to include. Fine? So the claim is that the ‘you’ comes to exclude, I don’t know, a guardian or whatever, and the ‘also’ comes to include a little. It doesn’t exclude. It comes to include an agent who is not a gentile.
[Speaker C] The original meaning of the verse is ‘and you too’ — the Levites too shall set apart, like the Israelites. What is it coming to include? Obviously, plain meaning.
[Rabbi Michael Abraham] Obviously. We’re talking about interpretation, not plain meaning.
[Speaker C] No, but the plain meaning also works fine without the word ‘you.’ ‘So shall you set apart,’ etc., etc. What difference does it make? You’d understand the verse perfectly well.
[Rabbi Michael Abraham] Okay, so the Talmud then… But that’s only a comment about inclusion and exclusion; let’s get back to our issue. There are two ways to understand the exclusion of a gentile. Fine — so in the end the gentile was excluded. What does that exclusion mean? Is it an essential exclusion, that a gentile does not belong to agency? Or is it that in divorce and marriage it’s not relevant? On the face of it, because this is said specifically about terumah, the simple understanding is that this is an essential exclusion, because he is not within the legal framework of it — especially since later on in the Talmud we see that a gentile has some sort of connection to terumah, at least according to some views. Okay? So it seems that this verse comes to teach an essential exclusion: that a gentile does not belong to agency at all, not because he is not within the legal framework. And in a moment we’ll see that this has various implications and maybe contradictions too. ‘Why do I need a verse?’ the Talmud asks. It can be derived from Rabbi Chiyya bar Abba in the name of Rabbi Yochanan, for Rabbi Chiyya bar Abba said in the name of Rabbi Yochanan: ‘A slave cannot be made an agent to receive a bill of divorce from a woman’s husband, because he is not within the legal framework of divorce and marriage.’ What is this? An extra verse — there is reasoning. Now again, there is a subtle point here: what does the verse teach? Does the verse teach — I asked earlier about two possibilities — does the verse teach an essential impediment? If so, then there is no question, right? Because as I said before, after all the verse was written about terumah, but it comes to exclude that a gentile does not belong to agency in other contexts too, generally. So what does that have to do with ‘a slave cannot be made an agent to receive a bill of divorce from a woman’s husband’? That’s only in matters whose legal framework he doesn’t belong to.
[Speaker C] In the body of the matter, from that you can learn that the verse excludes more — that’s what they meant there.
[Rabbi Michael Abraham] What? I didn’t understand. No — he meant ‘why do I need a verse’; he’s asking why I need a verse. I’m asking the very question you’re asking now. I’m asking: what do you mean, why do I need a verse? You are excluding someone who isn’t within the legal framework. The verse excludes a principled impediment, that even someone who is within the legal framework in transactions, even if he is within the legal framework, still can’t be my agent because a gentile can’t be an agent. If the Talmud asks that question, the opposite follows from it: it follows that the Talmud understood that the exclusion of a gentile in ‘so shall you also set apart’ is not a principled exclusion, because otherwise there is no redundancy. What’s the difficulty? Again, of course you can’t stop here because this is only a difficulty, but at least at this stage — at this stage I would learn from here, my conclusion from here would be, that in the Talmud’s eyes the verse does not exclude a gentile from agency in general. We need to see what the answer is, but let’s continue.
[Speaker C] Yes, exactly, I’m saying — but—
[Rabbi Michael Abraham] This is an important point. Meaning, we need to understand that this difficulty is based on the assumption that the verse does not contain a principled exclusion. The verse says that because he is not within the legal framework of the matter, he can’t do it. By the way, from this too it follows that the principle of someone not being within the legal framework of the matter has a source in a verse; and the Talmud here says: but why do I need that, after all there is reasoning? But it doesn’t ask, ‘Why do I need a verse? It follows from reasoning.’
[Speaker C] How can you know what the verse says — whether it’s a principled exclusion or not? It sounds like you’re assuming that’s a matter of reasoning, but maybe they have a method.
[Rabbi Michael Abraham] No, I don’t know, I didn’t assume anything.
[Speaker C] They have a method for deciding, and the method is to exclude as little as possible. Okay, so if so, the exclusion is only that you’re not within the legal framework.
[Rabbi Michael Abraham] Only in places where he isn’t within the legal framework, yes.
[Speaker C] Where he isn’t within the legal framework, yes.
[Rabbi Michael Abraham] I would maybe say: include as little as possible. After all, according to what I explained before, the exclusion of a gentile is not an exclusion; it’s a smaller inclusion. So now let’s include as little as possible — it extends no further than its novelty.
[Speaker C] But the question here is what the starting point is—
[Rabbi Michael Abraham] That’s the whole discussion we had before. Exactly. That’s what I said before: the question is whether this is a smaller inclusion or an exclusion. Okay? It will depend on that. In any case, I’m saying there’s a two-way game here. On the one hand, when the Talmud raises the difficulty — at this point, at the stage of the difficulty — when the Talmud raises the difficulty, it assumes that the verse doesn’t state a principled impediment, but rather says this issue of not being within the legal framework. Another point: meaning, before the difficulty — say, a difficulty only reveals what we thought beforehand — what did we think beforehand, really? How did I read the Talmud at the beginning? That the Talmud basically says that a gentile can’t be an agent in matters whose legal framework he doesn’t belong to, and that’s not just reasoning — it needs a verse, or maybe it is reasoning but still needs a verse to teach it, because we learn it from ‘you also.’ Now what does the Talmud ask here? ‘Why do I need a verse? It’s reasoning.’ That’s what it asks. It doesn’t change its understanding of the verse; that understanding was already there beforehand. The Talmud is only saying: yes, but if that’s what the verse teaches, why do you need a verse for that? It’s reasoning. This sharpens that point very much: when I say that someone can’t be another person’s agent if he isn’t within the legal framework, you don’t need a verse for that — that’s reasoning. Meaning, I don’t have another source that leads to this general rule of not being within the legal framework; I don’t remember any such source. Meaning, the Talmud here insists not that I have another source teaching this — no, I don’t need a source, it’s reasoning. And that’s also just an interesting methodological lesson from the Talmud. The Talmud is willing to act on the basis of reasoning. Suppose someone today would infer such a far-reaching conclusion just because it seemed reasonable to him — nobody would accept such a thing. What, someone not within the legal framework can’t be an agent? I don’t know — if there’s a verse I understand, but what, maybe someone over six feet tall can’t be an agent? On what basis? ‘Before we compare, let us first act.’ And you see that the Talmud allows itself to take these reasonings and formulate Jewish law accordingly; not everything needs a source. On the other hand, even when there is a source, that doesn’t mean there isn’t reasoning.
[Speaker C] There’s always reasoning. Right.
[Rabbi Michael Abraham] Even when there is — no, here the Talmud asks that the reasoning alone would have sufficed; you don’t need a source. When there is a source there is reasoning, but usually the reasoning isn’t enough without the source. And here the Talmud asks: you don’t need a source, because the reasoning alone suffices. For example, this is a common mistake today in many methodological discussions. It’s a common mistake in the context of what a scriptural decree means. People usually understand that a scriptural decree is something — a matter without reason, something we don’t understand — that’s a scriptural decree. Therefore, yes, I think I’ve lost my place here. In yeshivot it’s common to think that every verse says the opposite of what it says. Why? Yes, it’s the debate, the debate I always use — everything that Sarah says to you, Abraham argues with her.
[Speaker C] You remember: ‘Whatever Sarah says to you, listen to her voice.’
[Rabbi Michael Abraham] Yes. Some married yeshiva student argues with his wife and says to her, no, I think such-and-such. She says to him: ‘Whatever Sarah says to you, listen to her voice’ — you have to listen to me. No — the reason Abraham needed a verse telling him to listen to Sarah was because ordinarily you don’t listen to women. A verse was needed to say that there, yes. Now how do we decide? According to that approach, every verse that says something really teaches the opposite of what is written, right? Because that basically means that the truth is the opposite; therefore a verse was needed to say such-and-such. On the other hand, for example, a positive commandment overrides a prohibition — we learn that from fringes and wool-linen mixture in fringes. So should we say the opposite: that a positive commandment does not override a prohibition, and it had to be written here to teach that in the case of fringes it does? No. There it’s an archetypal model; that’s the whole idea of an archetypal model. An archetypal model means that if something is written, it’s probably true everywhere. But there are places in the Talmud where they really do the opposite: if something is written, then probably the opposite is true, and that’s why it had to be written here. The question is what the initial reasoning says — that’s what determines it here. If the initial reasoning says this, then why does it need to be written? Apparently in order to say the opposite. If the initial reasoning doesn’t say this, then it may well be an archetypal model. Fine. And that’s the issue with Sarah.
[Speaker C] What’s the initial reasoning in Sarah’s case?
[Rabbi Michael Abraham] Okay, on that itself there’s also the argument between the married yeshiva student and his wife. Yes, they argue about that too. Very often the argument starts from the starting point. In any case, I mean for our purposes: when we… when I… why isn’t it true that every verse teaches the opposite of what it says? What are those who say that every verse teaches the opposite of what it says assuming? They’re assuming that if there is a verse, then there is no reasoning. Because if there were reasoning, then why would I need a verse? Right? Meaning, precisely because the reasoning is the opposite, a verse is needed; and the existence of a verse proves that the reasoning is the opposite, because if the reasoning were the same as the verse, why would I need the verse?
[Speaker C] Okay, that explains both sides and also the…
[Rabbi Michael Abraham] Okay, that’s already a more moderate formulation. That’s one possibility for solving that problem, for example. But that’s basically the assumption, and it’s not a correct assumption. There are many cases where the verse definitely accords with reason. You’ll ask: then why do I need the verse? ‘Why do I need a verse? It follows from reasoning.’ Because without the verse, I might not have relied on the reasoning, even though I understand the reasoning and it’s correct. For example, there is a Meiri in the chapter of the rebellious son. The Talmud derives there: ‘a son and not a daughter’ — the rebellious son is a son and not a daughter — and the Talmud says that’s a scriptural decree. In the Jerusalem Talmud it’s more explicit, but also in the Babylonian Talmud — a scriptural decree. The Meiri asks: why a son and not a daughter? Because it is not the way of a daughter to become a bandit, and all those explanations they give there. And he himself then asks: so tell me, then why isn’t this… but it says that it’s a scriptural decree, and how can I give explanations if it’s a scriptural decree? That’s the advantage here: in many places there are explanations for scriptural decrees, but there I have a medieval authority who highlights this very point. Why, how can I…? So he says that there are explanations even for scriptural decrees. What does that mean? It means: if there had been no verse, if there had been no exposition of ‘a son and not a daughter,’ I would still know that it’s not the way of daughters to become bandits, okay? Would I rely on that in order to say, okay, the whole law of the rebellious son applies only to a son and not to a daughter? Not necessarily. I could invent more distinctions: if I have a good child, maybe I also wouldn’t apply rebellious son to him, because he won’t grow up to be a bandit. A son whose parents are strong also won’t grow up to be a bandit; they’ll hold him in line — I don’t know, all kinds of possibilities. Okay? Now, some of those possibilities may even be true. But the fact that something is true still doesn’t mean it’s strong enough for me to build Jewish law on it. The verse comes to say that the reasoning you understand to be correct — you can also rely on it in practice. That’s what the verse says. It doesn’t say your reasoning is incorrect. The verse isn’t needed where the reasoning says no only because the reasoning says the opposite; rather, the verse comes to say that you can rely on your reasoning. You weren’t sure you could go all the way with it; the verse says that you can. There are other situations — in the article on scriptural decrees I explain this a bit more broadly. There are other places where the verse comes to align you with the reasoning because you would have thought that there is a halakhic principle that says not to go with the reasoning. Not because there is doubt about the reasoning itself, but because there is a principle. For example, I don’t know, take ‘Why do I need a verse? It follows from reasoning’ in the context of migo. The Talmud says ‘Why do I need a verse? It follows from reasoning’ regarding ‘the mouth that prohibited is the mouth that permitted.’ The mouth that prohibited. So I might say: fine, maybe the reasoning of ‘the mouth that prohibited’ is clear, but still, after all, it says: ‘By the mouth of two witnesses a matter shall stand.’ So it’s not that I have any doubt about the reasoning at all; it’s not that the reasoning is shaky and needs reinforcement from the verse to tell me: rely on this reasoning. No — excellent reasoning. But I have a halakhic principle learned from another verse that tells me that in evidentiary law you go only with two witnesses, nothing else. Then one could have said that true, the reasoning is excellent, but Jewish law tells me not to rely here on reasonings; I need two witnesses, that’s the only admissible proof. That’s why you need ‘if you wish, say a verse; if you wish, say reasoning.’ If what you’re saying is true—
[Speaker C] then everything around it is basically reasoning, so the verse also is only revealing that the reasoning really is correct reasoning.
[Rabbi Michael Abraham] Exactly. And it almost has to be what I’m saying. Because if the verse reveals something and the reasoning says the opposite, then I ask: what is the truth? If my reasoning is correct, then why did the verse really say that? What, does the verse tell me to do incorrect things just because it feels like it? Apparently it’s correct even though I don’t grasp it. Sometimes I don’t grasp it. Fine. But obviously it’s correct, because otherwise why would the verse say it? So whichever way you look at it, there is reasoning here. At most you can say: I don’t understand it. The verse said there is reasoning; I don’t understand, so I follow the verse. But if I do understand it, there is no reason at all to recoil from it just because there’s a verse. Because obviously there is reasoning there — even if I didn’t understand it, obviously there is reasoning there. The Holy One, blessed be He, does not act arbitrarily. Meaning, if He says something, He says it because that’s the right thing to do. Otherwise why say it — just because He feels like it?
[Speaker C] It’s always reasoning, because you must derive something from the verse in order to exclude.
[Rabbi Michael Abraham] That’s another question — that’s in expositions. That’s in expositions. In explicit verses it’s not like that. Explicit verses — ‘You shall not plow with an ox and a donkey together’ — that’s written explicitly in the verse. But if it’s an exposition, then there, as I said in the past, in exposition there is no issue of ‘we do not expound the reason of the verse’ in expositions. ‘We do not expound the reason of the verse’ applies only to things written explicitly in the verse. By the way, there are later authorities who raise difficulties about this; in my opinion it’s a misunderstanding. Meaning, ‘we do not expound the reason of the verse’ applies only to things written explicitly in the verse, because exposition is always based on reasoning. ‘You shall fear the Lord your God’ — to include Torah scholars. Maybe to include doves? Why Torah scholars? Because the assumption is that if I’m including someone whom one must fear like the Holy One, blessed be He, then it’s not doves but Torah scholars. So there is always some kind of reasoning. So why do I need the verse? Because from reasoning alone I wouldn’t create a Torah-level law, so the verse comes to tell you: know that this reasoning is a Torah-level law.
[Speaker C] But that’s already Torah-level?
[Rabbi Michael Abraham] The Sages expounded a Torah-level law — what do you mean?
[Speaker C] You have a dispute about that, but is there something here that’s simply Torah-level?
[Rabbi Michael Abraham] A simplistic reading — not an exposition on the Torah — there are no disputes? What does that have to do with anything? What, are there no disputes in Torah-level laws?
[Speaker C] The plain meaning is more normal, I don’t know, simple plain meaning.
[Rabbi Michael Abraham] No, absolutely not. Plain meaning is plain meaning and exposition is exposition — that’s a tautology; that much I agree with. But that doesn’t mean there aren’t disagreements. What do you mean? Why should I care whether more or less? But one can disagree — that’s all. So the fact that one can disagree doesn’t mean it’s not Torah-level. What difference does it make whether more or less? A practical difference. Maimonides’ position in the second root is that exposition is rabbinic law, and everybody argued against him and debated what he meant at all. But clearly the consensus of all the medieval authorities is that something derived by exposition is a Torah-level law. That’s clear. The fact that the Sages derived it from the verse doesn’t make it rabbinic law. The definition of rabbinic law versus Torah law is not chronological — when it was created, at Sinai or later — nor is it a matter of who created the law, the Sages or the Torah. The definition, what distinguishes rabbinic from Torah law, is the question of what function the Sages were fulfilling when they created that law. Were they fulfilling an interpretive function or a legislative function? Were they acting as legislators or as interpreters? And exposition, in my view, is interpretation. A different layer of interpretation — interpretation of the Torah. Okay? Once they are interpreting, then in my view they have uncovered something written in the Torah; that’s Torah law. They have authority to interpret.
[Speaker C] It comes because of the reasoning, not because it really—
[Rabbi Michael Abraham] No, again, it depends what. An a fortiori argument and an archetypal model — that’s what I said at the beginning — those are higher hermeneutic rules. Say general and specific, or a verbal analogy or something like that. There the verse itself says: expound me. Why did it change from the language of generality to the language of specificity? The Sages decide by reasoning what to expound, but the verse itself calls for exposition. So obviously that’s a Torah-level law. The Sages are trying to understand what law the Torah is telling us here, the Torah-level law the Torah is telling us. So in principle the Sages here function as interpreters. In rabbinic laws, the Sages function as legislators. They don’t tie it to a verse or to exposition or to anything. It seems reasonable to us, and therefore we determine that it is halakhically binding. They have authority to do that; that’s the meaning of rabbinic laws. But not everything the Sages do is rabbinic law. There are those who claim that electricity on the Sabbath is a Torah prohibition — building, kindling, whatever, all kinds of things like that. Moses didn’t know about electricity. So because of that it’s not Torah law? What’s the connection? If you understand that this comes out of the prohibited labor of building, kindling, or something like that, then that’s an interpretive statement. I don’t care that it was created today. In the end, you’re claiming that the Torah prohibits it, because after all building and kindling were prohibited by the Torah, not by the Sages. If you say it’s generating current — that’s the Beit Yitzchak — then it’s rabbinic law. Fine, because it has no source in a verse; it’s not interpretation of a verse. We legislate because we claim that such a thing ought to be forbidden. Our own reasoning, because we think it should be forbidden.
[Speaker C] I think he means that it’s included in another rabbinic law — an interpreter here of the rabbinic law.
[Rabbi Michael Abraham] Yes, an interpreter of rabbinic law, obviously. Not a legislator. That generating current is from the Talmud in Beitzah — creating something new, yes. Doesn’t matter. But it’s rabbinic law because it has no verse.
[Speaker C] You could phrase it a little differently and say it depends on authority, on the source of authority. If the source of authority is the Torah — the Written Torah, say — then it’s Torah law.
[Rabbi Michael Abraham] But what counts as the source of authority? When the Sages expound or interpret the Torah, then what’s the source of authority?
[Speaker C] That it all derives from the Torah.
[Rabbi Michael Abraham] Exactly, that’s what I’m saying. It’s the same thing. Meaning, when they interpret, then basically the law is a law that comes from the Torah, not from the Sages. They just revealed to me that this is the law the Torah states. When they legislate, it’s a law that comes from them. Therefore, for example, in Maimonides at the beginning of the laws of rebels — what?
[Speaker E] Here there’s the issue of reasoning — where does the reliance come from?
[Rabbi Michael Abraham] Reasoning is not Torah law, contrary to what everyone says with ‘Why do I need a verse? It follows from reasoning.’
[Speaker E] Or that they’re interpreting, as it were.
[Rabbi Michael Abraham] No, so maybe in a second—remind me of that in just a moment. I just want to mention, at the beginning of the laws of rebels in Maimonides, Maimonides talks there about the possibility of changing a ruling of the Sanhedrin. So there are two passages, and all the medieval authorities raise a contradiction between the two. One passage says: something that was established by vote requires another vote to permit it. Okay? If it was established by the Sanhedrin, then you need another Sanhedrin; without a Sanhedrin you can’t change it. Another passage says that you need a court greater in wisdom and number—a court greater in wisdom and number in order to permit it. Now, in the first Talmudic passage—it seems to me in Eruvin and Beitzah, but never mind—the first passage just says another vote, plain and simple, without any condition that it be greater in wisdom and number. Most of the medieval authorities—there are some disagreements, but most of them, including Maimonides—say that the difference is between Torah-level Jewish law and rabbinic Jewish law. In Torah-level Jewish law, any parallel body can annul it or change it. If it was established in the Sanhedrin, another Sanhedrin can change it. In rabbinic Jewish law, you need a court greater in wisdom and number. Now, people usually understand that to mean that the sages reinforced their own words more than Torah law. Meaning, because people are afraid rabbinic law will be treated lightly, they gave it stronger reinforcement. I claim there is a principled issue there. In Torah-level Jewish law, what the sages are saying is: this is what the Torah says. So when the second court says, no, that is not what the Torah says, they are not acting against the authority of the first court. Because the first ruling is not from the first court—it is from the Torah. It just doesn’t say that in the Torah, that’s what they claim. So if they are our Sanhedrin today, they do not need to be greater in wisdom and number than the first Sanhedrin, because they are not disagreeing with their authority. They disagree with them, but they are not challenging their authority as such. They are only arguing with them about what is written in the Torah. Okay? But in rabbinic Jewish law, when the first Sanhedrin established a rabbinic law, that was by virtue of their own authority; they are not hanging it on the Torah. Now the second Sanhedrin says, what do you mean—that law is incorrect, you may not do this or you don’t need to do this, whatever. They are going against the authority of the first court. For that, they need to be greater in wisdom and number.
[Speaker C] They’re not saying the law is incorrect.
[Rabbi Michael Abraham] No—if the circumstances changed, that’s a different situation. I mean where they disagree and say the law is incorrect.
[Speaker C] No, there’s no such thing. If they are the makers of the law, then they—
[Rabbi Michael Abraham] They claim that there is no need to prohibit poultry with milk. They are not claiming that the law is incorrect.
[Speaker C] No, they are claiming that they think there is no need to make the law. That’s the point, obviously. No, because the truth here is that if they established it then it is valid as truth, it’s not—
[Rabbi Michael Abraham] But now when they come to annul it, they are basically saying it wasn’t necessary. It wasn’t correct in the sense that it was not right to establish it. True, once they established it, it is valid, but it was not right to establish it. So in effect they are going against the authority of the first court.
[Speaker C] No, but if so it turns out you could annul any rabbinic law by way of interpretation.
[Rabbi Michael Abraham] That’s true regardless of me. Ah, you mean even if the later court is not greater in wisdom and number. Of course—this happens every day. Every halakhic decisor, every halakhic decisor who interprets rabbinic laws, qualifies them, expands them, I don’t know exactly what—that’s what he’s doing. How can he do that? He’s not a Sanhedrin. There are, by the way, decisors who even allow themselves to create entirely new rabbinic prohibitions, which I really cannot understand at all where they get that from. All kinds of people who explain to you—I don’t know what—all the time. The Chazon Ish asks this, by the way. In various medieval and later authorities, you can see discussions of whether something is prohibited or permitted. No, it’s not a Torah prohibition, so it’s probably rabbinically prohibited. Fine—but if it is not included under the category of the Torah prohibition, then why do you think you can institute a new enactment? A new decree? “It’s rabbinically prohibited.” If you are putting it into an existing rabbinic prohibition, I understand, because that rabbinic prohibition was established by the Sanhedrin, and through interpretation you say it includes this too. Fine, you can interpret—that’s okay. But many times it is done in the form of: this thing just can’t possibly be permitted, so it is probably a rabbinic prohibition. It’s not strong enough to be a Torah prohibition. In effect this is new legislation by some random decisor who decided. What is he, a Sanhedrin? Who appointed him to be a Sanhedrin? You can’t establish new rabbinic laws. There’s no such thing. Okay.
[Speaker C] The Chazon Ish—
[Rabbi Michael Abraham] Wants to claim that the sages intended this—they gave power, in several places he writes this, the sages gave power to future sages; the Sanhedrins of old gave power to future sages such that whatever they think is right is with our consent, meaning, like they are acting as our agents—it is as though we prohibited it. Okay, a bit dubious.
[Speaker C] Why doesn’t the Sanhedrin’s interpretation come from their authority?
[Rabbi Michael Abraham] No, it does come from their authority—the authority to interpret. But when you come to annul the law, you are annulling a law that the Torah says. So if you say, in my opinion the Torah does not say this, no problem—I’m not annulling anything, I simply think the Torah does not say this. But in rabbinic law you are going against the force of the Sanhedrin—they established the law. Fine. Wait, there was your question, Bezalel—I told you to wait a moment. What is the advantage, so to speak, of someone saying—
[Speaker D] There’s a reasoning here and there’s a verse here? What’s the source of that? What’s the question here, Bezalel? Is there a verse here? If there is reasoning, is there also a verse?
[Rabbi Michael Abraham] Ah, yes yes. So now—the Talmud says in several places, and I see that today is mostly methodology, we’re making a lot of methodological comments—the Talmud says: “Why do I need a verse? It is reasoning.” Seemingly that means reasoning is Torah-level law, right? Because if reasoning were not Torah-level law, then where does the question come from—“Why do I need a verse? It is reasoning”? You need the verse in order for it to be Torah-level, meaning otherwise it would just be reasoning on a rabbinic level. And if the Talmud sees these as two equivalent, interchangeable principles, then clearly reasoning too is Torah-level. Okay. Therefore, for example, the Talmud in Berakhot 35, I think, discusses blessings over benefit. The Talmud says: from where do we know the grace after meals before eating? By an a fortiori inference from the blessing over Torah—never mind, various possibilities. In the end the Talmud says: rather, it is reasoning—one may not derive benefit from this world without a blessing, and anyone who benefits from this world without a blessing is as if he committed sacrilege. Right, so that is reasoning. So the Pnei Yehoshua asks: if so, why do we say in cases of doubt concerning blessings that we are lenient? “Why do I need a verse? It is reasoning” means that reasoning is Torah-level. So if reasoning is Torah-level, and blessings over benefit are derived from reasoning, then blessings over benefit are a Torah-level law, so why are we lenient in cases of doubt about blessings?
[Speaker C] But with blessings they didn’t invent commandments.
[Rabbi Michael Abraham] What do you mean?
[Speaker C] Meaning, with reasoning you invent new commandments?
[Rabbi Michael Abraham] Blessings over benefit—apparently yes, no? “Why do I need a verse? It is reasoning.” Okay, so I completely agree, but that is what the Pnei Yehoshua asks. And I think the simple answer is—he ultimately remains with that, I think—the simple answer is that in truth the obligation to bless is Torah-level; the formula is rabbinic. So let’s say if you made a blessing—if you are in doubt whether you blessed or not, you really should be stringent; you should be stringent and bless, but not in this formal text with the Divine Name and Kingship and all those things. Just say, “Thank you very much, Holy One blessed be He, for this apple,” and that’s it—that you are obligated to do by Torah law.
[Speaker C] But the sages established the formula; maybe—
[Rabbi Michael Abraham] —that you won’t fulfill—
[Speaker C] your obligation with that sort of booth there.
[Rabbi Michael Abraham] Okay, but not in a place where you can’t say that formula—I assume that there they did not tell you that you would not fulfill your obligation. That’s what they discuss there in Sukkah, for example: if you don’t have a sukkah unless your table is inside the house, then they say that even according to Tosafot, if you sit in the sukkah and maybe you’ll be drawn after the table, that does not nullify your commandment. So the claim is—the claim is… basically, there is a fundamental obligation to bless; the formula is a rabbinic formula, and with regard to it, in cases of doubt we are lenient. So if you are in doubt whether you blessed or not, say it again without the Divine Name and Kingship, say thank you very much, just so you won’t be committing sacrilege. If you are in doubt whether you blessed in the correct wording, here there is room to deliberate. It may be that you do not need to bless, because in the end you did bless, you just didn’t use the formal text. The formula is only rabbinic, so in doubt we are lenient—unless you say that someone who did not do the rabbinic form has not fulfilled the Torah-level obligation. But the Tzelach there disagrees with the Pnei Yehoshua, and the Tzelach argues: what do you mean—where did we ever find that reasoning is Torah-level? Reasoning is not Torah-level. If reasoning is Torah-level, then why do we need verses? Which is our topic. Why do we need verses? So he says, again—this is at least how I understand him—that reasoning is Torah-level in the sense Yosef—what you said earlier. Reasoning is Torah-level when the reasoning comes to interpret what the definition is of a law written in the Torah. So if I have no source for what the definition is, and reasoning says this is the definition, then that is Torah-level. Because the reasoning is only interpreting something written in the Torah. Interpretation is always reasoning. When I interpret something written in the Torah, I am always using reasoning. So of course reasoning is a legitimate interpretive tool, and if the reasoning interprets something written in the Torah, then the product of that reasoning is a Torah-level law, and that is obvious. But if reasoning creates a novel law—not that it defines a Torah law in a certain way, but rather actually creates a new law, like blessings over benefit—then why in the world should that be Torah-level? Where did we find “Why do I need a verse? It is reasoning”? In all the places where we find it—which actually are not all that many. There are two places explicitly and some other places where it is implied. Maybe like in our case. But in all those places we are dealing with reasoning that shapes a Torah-level law, not reasoning that creates a novel law. That kind of reasoning really is Torah-level, and then one can ask, so why do I need a verse? You learn it from the verse—or from the reasoning. For example, “the mouth that prohibited is the mouth that permitted.” I say, it is written, “Judge your fellow with justice”—obviously there are rules of evidence. Two witnesses, this and that. So I say, “Why do I need a verse? It is reasoning.” That’s what the Talmud asks. What do you mean—if you want, say it is from a verse; if you want, say it is from reasoning. I don’t think it asks there exactly that way. Yes—why there would the reasoning really be Torah-level, or equivalent to the verse? Because all you are doing is shaping the laws of evidence. The Torah already contains laws of evidence: “By the testimony of two witnesses a matter shall stand,” “Judge your fellow with justice”; the legal process appears in the Torah. The whole question is only what counts as admissible evidence and what does not—that is an interpretive question: what does the Torah mean when it speaks about the laws of evidence? So here reasoning can really work. Or “the mouth that prohibited is the mouth that permitted,” and also “the burden of proof rests on the claimant”—that is the second example. “The burden of proof rests on the claimant” is also a case of “Why do I need a verse? It is reasoning,” and there too it is the same thing. These are simply procedural laws, or the laws governing claimant and respondent, laws of evidence—how we understand the principle that the burden of proof rests on the claimant. But all these things have roots in the Torah. It does not create the law. It only shapes the law or interprets the law that appears in the Torah. That is Torah-level reasoning. But this kind of reasoning, like blessings over benefit, which invents a new law—the Tzelach says that is not Torah-level. Are we, for example, going to administer lashes for something like that? Obviously not. Something that comes out of reasoning—there are no lashes for something that comes out of reasoning. Simply put, penalties are imposed only if there is a warning. Meaning, you need there to be an explicit warning in the Torah in order to administer lashes. Reasoning is not a warning. Reasoning does not warn. Fine, for our purposes—how did I get to all this? Right, “one who is not within the law of divorce and betrothal.” So basically what the Talmud is saying right now is that it assumes the verse taught me the principle of “not within the law of,” and now the Talmud asks why I need the verse, since this is an obvious principle: someone who is not within the law of a matter cannot be an agent. You don’t need a verse for that. Okay? Now what kind of reasoning is this? Here it has to be reasoning that is really Torah-level, because otherwise the verse does not become redundant, right? Just say that the verse itself teaches this—what’s the question? It taught that someone who is not within the law of a matter cannot be an agent. The Talmud here assumes that the reasoning makes the verse unnecessary. Why? Because here the reasoning interprets the concept of agency, which I already know. The concept of agency exists in the Torah; it has a source in the Torah. The reasoning interprets it. It says: it exists only for someone who is within the law of the matter. That’s fine. Reasoning that interprets a law that appears in the Torah can be treated as Torah-level reasoning. And then one can indeed ask: why do I need the verse? I already have the reasoning that someone who is not within the law of divorce and betrothal cannot be an agent. Okay? Rashi indeed writes: “Since he is not…” meaning, evidently no verse is needed, for by reasoning alone we can say that a matter that does not pertain to him cannot be done through him as an agent. Someone to whom the matter does not pertain cannot be made an agent for it. That comes from reasoning.
[Speaker B] What does Rashi mean?
[Rabbi Michael Abraham] If something doesn’t pertain to you, you can’t be made an agent regarding it. Okay? What is the idea behind this reasoning—someone who is not within the law of the matter?
[Speaker B] Maybe that the agent is the sender’s hand, and if he doesn’t belong to this area, then he can’t be the sender’s hand.
[Rabbi Michael Abraham] That’s an interesting comment, because I would say exactly the opposite. No—I mean at first glance, we’ll see in a moment, I’m not sure. We’ll see. Because with agency we talked about two ways to understand the concept of agency, right? The Tur and Maimonides: an extended hand, or authorization. Now authorization means that the agent performs the action and the results are credited to the sender. Right? I perform the act of divorce, but in the end the woman is divorced from the sender, not from me, because he is her husband. Or acquisition—I perform the act of acquisition, and the legal effect of the acquisition belongs to the sender. Okay? That is the authorization model. I am authorized, but I am the one acting. So if the sender became insane, I can still act, because I am the one acting, not him, and the results will apply to him. But according to the model of the extended hand, then if the sender became insane I cannot act. Why? Because I am not really the actor—he is the actor; I am just his extended hand, like doing something with a long stick. So he is the actor, and therefore if he became insane, the thing cannot be carried out. That is the dispute we saw. Now according to which of these two possibilities is it easier to understand “someone who is not within the law of the matter”? I think according to the authorization model. According to the authorization model it is really natural. You are effectively divorcing the woman, and the result goes to the sender, right? Now if you are not within the law of divorce and betrothal, how can you divorce? The concept of divorce is not defined with respect to you. You can’t even divorce your own wife—so how are you going to divorce my wife? Right? “Behold, the children of Israel did not listen to me, so how will Pharaoh listen to me?” Meaning, in the authorization model it is very natural that someone who is not within the law of the matter cannot be made an agent, and there it is indeed completely simple reasoning—if I understand it as authorization. Now if it is an extended hand, there is room to hesitate. Well, of course this is the dispute between the Tur and Maimonides, so it is not likely to explain the Talmud according to one and not according to the other. What will the Tur do with this Talmudic passage? Because here it comes out that “someone who is not within the law of the matter” is reasoning with the status of Torah-level law. Okay? How does that work according to the—so it is not implausible; I’m willing to accept what you said, I just don’t think it’s right to say it specifically according to that side. Maybe one can also say according to that side that there is some reasoning there, though in my eyes it is weaker—some reasoning that says: if you cannot do it yourself, you cannot be considered someone else’s extended hand. True, he is the one doing the action, but this extension of the hand can be defined only in someone who can himself do the action. Fine, you can perhaps hear such a reasoning, though it is certainly not necessary. I think that according to the authorization model this reasoning is much more compelling. And therefore, if I return to our Talmudic passage, the Talmud is basically saying that since I have reasoning, I do not need the verse. Meaning, it appears from the Talmud that this reasoning is strong. Because I said earlier, after all there is the possibility of saying: fine, the verse teaches this reasoning. The fact that there is a verse does not mean there is no reasoning. So here it will depend. If I understand it as authorization, then the reasoning really is so strong that there is no need whatsoever for a verse. Because if you are performing the action, and the action does not pertain to you, you cannot perform the action. What is there even to discuss? It’s two plus two. Okay? But according to the concept of the extended hand, even if I accept what Doron said—that according to the concept of the extended hand there is still some reasoning here of “someone who is not within the law of the matter”—to say that because of that we no longer need a verse, because the reasoning is so self-evident, that is already more far-fetched. Here it really makes sense to say: fine, I understand there is reasoning, but I still need the verse, because the reasoning is not unambiguous. If there is a verse, then the verse tells me to rely on that reasoning. Everything I said earlier applies here too—that once the reasoning is not self-evident, the existence of a verse does not mean there is no reasoning; at most it means I would not rely on the reasoning unless I received authorization from the verse. And that is perfectly fine. In the case of the extended hand, without the verse I really would not rely on it. Okay? Let’s just finish the Talmudic passage, because I’ve taken too much time with all the comments. “It was necessary”—yes, the verse is needed. You might have thought: a slave, who is entirely not fit for separation, but a gentile, since he is included regarding his own terumah—as we learned: if a gentile or a Cuthean separated terumah, their terumah is valid—you might say that he too can be an agent. Therefore it teaches us otherwise. Meaning, regarding a slave—a slave has no connection at all, he is not connected to terumah in any way. But with a gentile, since in principle he is connected to terumah, at least regarding his own terumah, one might have said that if the issue were only “not within the law of the matter,” then maybe he would qualify. He is considered within the law of the matter, and he could be his sender’s agent, unlike a slave. Okay, therefore it teaches us no. And what is the “therefore it teaches us” here? We’ll come back to that next time, but notice: what is the “therefore it teaches us”?
[Speaker B] Obviously there are several possibilities: either the verse comes to teach that even someone who is within the law of the matter still cannot be an agent—like a gentile—so this is a principled exclusion not because he is not within the law of the matter, or—
[Rabbi Michael Abraham] Or the verse comes to teach that this too is not called being within the law of the matter.
[Speaker B] This too is not called being within the law of the matter?
[Rabbi Michael Abraham] Yes. The fact that you are within the law regarding your own case is not enough to be considered within the law of the matter, and then still—because you are not fully within the law of terumah. I can separate terumah from your produce; a gentile cannot separate terumah from your produce. I can separate your terumah, not only my own terumah. That is what the Talmud says: the gentile is within the law of terumah regarding his own case; he belongs to the concepts of terumah, but he is not fully within the law of the matter. Now the question is what that means. Either the conclusion is that this is considered being within the law, and therefore to disqualify a gentile you need the verse, because the verse is a principled exclusion, not an issue of not being within the law; or not—the novelty is that even such a thing is called not being within the law, but still the disqualification of a gentile is only in matters in which he is not within the law. And there is a very significant practical difference: what will happen in matters in which the gentile is within the law—does agency apply to him or not? So according to the conclusion of the passage, seemingly that remains open, because we will see that medieval and later authorities raise a contradiction against a passage in Gittin, and we will have to see whether there really is a contradiction, what the Talmud’s conclusion is here. I’ll come back to that at the end; I just wanted to complete the passage so we would have the full picture. Okay, thank you very much, goodbye everyone.