Kiddushin, Chapter 2, 5783, Lecture 16
This transcript was generated 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
- The source of agency from terumah and the exposition of “you as well”
- The difficulty from the principle that “one who is not subject to the law of divorce and betrothal” and the Talmud’s answer
- The dispute between the first tanna and Rabbi Shimon regarding the terumah of a gentile and its implication for the verse
- Three possibilities for understanding the conclusion of the passage: “not subject to the law of” versus an essential disqualification
- The question of a Jew serving as an agent for a gentile and the model of “level one and level two”
- Analogies from Temple service: prayer and consecrated offerings, and “the text must repeat it to make it indispensable”
- An internal difficulty in the terumah passage: the Talmud’s line of argument versus the possibility of an “essential disqualification”
- The passage in Gittin 23: a gentile, a slave, and the shift from “Israel” to “members of the covenant”
- Tosafot, Rabbeinu Tam, and Ri Migash: reconciling the Mishnah and the difference between an agent of receipt and an agent of delivery
- Methodology: the “ball” of Tosafot versus conflicting sugyot among Sephardic medieval authorities (Rishonim)
Summary
General Overview
The lecture returns to the Talmud on page 41b about deriving agency from terumah, and about the exposition from “so shall you also separate” to “just as you are members of the covenant, so too your agent must be a member of the covenant.” It analyzes why an exposition that appears to be inclusive (“also”) actually excludes a gentile from agency, and what the relationship is between excluding a gentile through a verse and the principle that “one who is not subject to the law of a matter cannot become an agent regarding it.” The lecture then presents three ways of understanding the conclusion of the passage: whether the invalidity of a gentile is only because he is not subject to that law, or whether there is an essential barrier in agency itself. The discussion becomes more complicated in light of the continuation of the Talmud regarding Rabbi Shimon’s view, and also in light of the passage in Gittin 23, which seems to present the reverse picture. Finally, the lecture discusses implications for a slave (through Rabbi Akiva Eiger’s analysis), for the distinction between an agent of receipt and an agent of delivery in the words of Ri Migash, and for methodology in reconciling Talmudic passages among Tosafot as opposed to accepting genuinely conflicting sugyot among Sephardic medieval authorities (Rishonim).
The source of agency from terumah and the exposition of “you as well”
The Talmud brings a source for agency from terumah and constructs a tzrikhuta between terumah and other sources. The Talmud asks: “And ‘you’ and ‘you as well’—what do I need that for?” and explains the verse through Rabbi Yannai’s exposition: “You as well—just as you are members of the covenant, so too your agent must be a member of the covenant,” from which they learn to exclude a gentile from agency. The explanation given is that “also” here functions as a qualified inclusion: the Torah includes an agent, but only a Jewish agent, and therefore the practical novelty is the exclusion of the gentile.
The difficulty from the principle that “one who is not subject to the law of divorce and betrothal” and the Talmud’s answer
The Talmud asks: “Why do I need a verse for that? It can be derived from Rabbi Ḥiyya bar Abba in the name of Rabbi Yoḥanan.” It brings the principle that a slave cannot become an agent to receive a bill of divorce “because he is not subject to the law of divorce and betrothal.” From this emerges a general rule that one who is not subject to the law of a given matter cannot become an agent regarding that matter. The Talmud answers that without the verse one might have distinguished between a slave, who has no connection whatsoever to permission in that area, and a gentile, who does have a connection in “his own terumah,” by virtue of the Mishnah: “If a gentile or a Samaritan separated terumah, their terumah is valid.” Therefore one might have said that “he can also act as an agent,” and the verse comes to teach that he cannot.
The dispute between the first tanna and Rabbi Shimon regarding the terumah of a gentile and its implication for the verse
The Talmud brings a dispute: the first tanna holds that “the terumah of a gentile causes mixture-prohibition, and one is liable for an added fifth regarding it,” while Rabbi Shimon exempts. This is based on the assumption that according to Rabbi Shimon, a gentile has no connection to terumah at all. According to Rabbi Shimon, the question returns: why is “you as well” needed if he is anyway “not subject to that law”? The Talmud answers that without “so shall you also separate,” one might have said that “you” excludes not only tenant farmers, partners, guardians, and one who separates from produce that is not his own, but also excludes an agent altogether. Therefore the verse is needed to teach that, in principle, agency does apply to terumah.
Three possibilities for understanding the conclusion of the passage: not subject to the law versus an essential disqualification
Three possibilities are presented for understanding what the verse adds and why a gentile is disqualified from agency. One possibility links the need for the verse to a special novelty in terumah that imposes stricter requirements on agency, and therefore specifically there a gentile cannot serve as an agent even if he has some connection to the area. A second possibility says that even a gentile’s “own terumah” is not truly considered being “subject to the law of terumah” in relation to a Jew’s terumah, and therefore the gentile is still defined as “not subject to the law,” and is thus disqualified. A third possibility says that the conclusion of the passage introduces an essential disqualification in a gentile with respect to agency, so that he cannot be an agent even in matters to which he is subject. The difference was explained between disqualification due to inability to perform the act itself (when one is not subject to the law), and disqualification due to lack of relational connection that would allow the result to be transferred to the principal (an essential barrier, connected to the idea of mutual responsibility / belonging to the same group).
The question of a Jew serving as an agent for a gentile and the model of “level one and level two”
The question was raised whether a Jew can serve as an agent for a gentile. One possibility presented was that if the essential barrier is built on lack of two-way mutual responsibility, then apparently not. But another model was suggested, according to which a Jew is “a Noahide plus an additional level,” and therefore perhaps a Jew can indeed act as an agent for a gentile, while a gentile cannot act as an agent for a Jew. This model was illustrated through the principle “there is nothing that is forbidden to a Noahide and permitted to a Jew,” and through the distinction between prohibitions that also apply to Noahides (such as bestiality), which would obligate a Jew even while still a minor on account of the “Noahide dimension” within him, and prohibitions that do not apply to Noahides and therefore apply only from halakhic majority onward. Exceptions were mentioned, along with discussion of a twitching animal through Rabbi Kook, and the main idea emphasized was a change in how reality is viewed, not merely a technical halakhic shift.
Analogies from Temple service: prayer and consecrated offerings, and “the text must repeat it to make it indispensable”
A structure was presented in which sometimes “level two” adds onto “level one” without uprooting its basic value. This was illustrated through the example in Berakhot of praying after the proper time, and through Rabbi Chaim’s explanation that even according to Nachmanides there is still a “cheftza of prayer,” an objective entity of prayer. Based on this, an explanation was offered for why in divine service (prayer and sacrifices) there can be value to the act even when it is not done in full accordance with all regulations—unless there is a special verse (“a statute,” or “the text repeated it to make it indispensable”) that makes it invalid. From this, an analogy was built for the relationship between Israel and a gentile: by default, level two does not uproot level one unless there is a source that explicitly excludes it.
An internal difficulty in the terumah passage: the Talmud’s line of argument versus the possibility of an “essential disqualification”
It was argued that from the Talmud’s question, “Why do I need a verse?” it seems that in the initial assumption the Talmud identifies the verse “you as well” with the principle of not subject to the law, rather than seeing it as an additional mechanism of essential disqualification. The difficulty is strengthened by the discussion of Rabbi Shimon’s view, where the answer deals with the need to teach the very possibility of agency in terumah, and not with any essential disqualification of a gentile. From this it emerges that on the plain reading of the passage, the Talmud appears to treat the verse and the principle of not subject to the law as interchangeable equivalents. A somewhat forced path was suggested for preserving room for an essential disqualification by claiming that according to Rabbi Shimon the verse cannot prove such an essential disqualification, because in terumah a gentile is anyway not subject to that law—but it was still emphasized that this is not reflected in the straightforward wording of the Talmud’s answer.
The passage in Gittin 23: a gentile, a slave, and the shift from “Israel” to “members of the covenant”
The Mishnah in Gittin was brought: “All are fit to bring a bill of divorce except a deaf-mute, an imbecile, a minor, a blind person, and a gentile,” together with the Talmud’s discussion of whether a slave can serve as an agent to receive a bill of divorce. It was stated in the name of Rav Asi in the name of Rabbi Yoḥanan that a slave cannot become an agent to receive a bill of divorce “because he is not subject to the law of divorce and betrothal.” The immediate question then raised was why the Mishnah disqualified specifically a gentile and not a slave. Rabbi Elazar’s challenge was brought: he proves from terumah that even though a gentile “is included in the law of his own terumah,” he still cannot separate terumah for a Jew even with permission, and he attributes this to the exposition of “you as well” as a disqualification not dependent only on being subject to the law. The answer from the school of Rabbi Yannai formulates: “Just as you are members of the covenant, so too your agent must be a member of the covenant.” The difference between “Israel” and “members of the covenant” was explained by saying that a slave is included among members of the covenant, and therefore does not suffer from an essential barrier, whereas a gentile is not a member of the covenant and is therefore essentially invalid for agency.
Tosafot, Rabbeinu Tam, and Ri Migash: reconciling the Mishnah and the difference between an agent of receipt and an agent of delivery
Tosafot asks why the Mishnah did not mention a slave if a slave too is invalid. Rabbeinu Tam answers that it mentioned a gentile in order to teach a novelty regarding a gentile who is destined to convert, and from this it was argued that he apparently does not accept an explanation that sets up a unique essential disqualification in a gentile. Nachmanides cites Ri ben Migash as saying that a slave is disqualified only for agency of receipt, but is valid for bringing / delivery. He explains that an agent of delivery is a standard kind of agent for transmitting the bill of divorce, whereas an agent of receipt functions such that “once the bill reaches his hand, she is divorced,” and therefore requires a “hand for divorce” and connection to the law of divorce. From this it emerged that in order to explain why a gentile is invalid even for delivery, one needs an additional dimension of essential disqualification in agency itself. The example of sending a bill of divorce by mail was raised as a possible implication for the status of agency in a case where the act appears to be merely technical transfer, yet still requires the legal status of an agent.
Methodology: the “ball” of Tosafot versus conflicting sugyot among Sephardic medieval authorities (Rishonim)
It was said that the Tosafists tend to harmonize different passages and resolve contradictions, whereas Sephardic medieval authorities (Rishonim) can more readily accept genuinely conflicting sugyot and then decide Jewish law according to a particular passage. It was suggested that the tension between the terumah passage and the Gittin passage may be resolved either by adopting the possibility of an essential disqualification, at least according to the Sages, or by accepting a real gap between the sugyot. The discussion was left there, with a promise to continue in the next lecture.
Full Transcript
[Rabbi Michael Abraham] We’re going back a bit. In the previous lecture where we dealt with the Talmud, I talked about agency in relation to a gentile and a slave. Just to remind ourselves, this is the Talmud on page 41b. The Talmud gives the source for agency from terumah, and then it makes a tzrikhuta between terumah and the other sources. Fine. So the Talmud creates a tzrikhuta here and says: “And ‘you’ and ‘you as well’—what do I need that for?” Let me mark this for a moment. “And ‘you’ and ‘you as well’—what do I need that for? It is needed for Rabbi Yannai, as Rabbi Yannai said: ‘You as well’—just as you are members of the covenant, so too your agent must be a member of the covenant.” So they learn from “you” and “you as well” to exclude the gentile from agency. We talked about the fact that the question, apparently, is that “you as well” comes to include, not to exclude, so how does the word “also,” which comes to include, actually exclude a gentile—reduce rather than expand? So simply speaking, the idea is that this is a qualified inclusion, not an exclusion. There’s a qualified inclusion here and not an exclusion. Meaning: when we include the agent, we include only a Jewish agent and not a gentile agent. True, we don’t need this inclusion of the agent in terumah because it could have been learned from elsewhere, but since this inclusion is a qualified inclusion, the Torah writes it anyway, and then we understand that in effect it comes to exclude a gentile. It’s an inclusion, but as far as we’re concerned, all it really adds is the exclusion of the gentile. And on that the Talmud asks: “Why do I need a verse for this? It could be derived from Rabbi Ḥiyya bar Abba in the name of Rabbi Yoḥanan.” Right—why do I need a verse for this? I already know it even without the verse. As Rabbi Ḥiyya bar Abba said in the name of Rabbi Yoḥanan: “A slave cannot become an agent to receive a bill of divorce from a woman’s husband, because he is not subject to the law of divorce and betrothal.” So basically we have a principle that someone who is not subject to a given matter, someone who does not belong to a certain halakhic realm, cannot serve as an agent regarding it anywhere in the Torah. If so, then obviously a gentile also cannot be an agent in terumah, because he is not subject to that law. So why do I need the verse “you as well” to exclude the gentile? The Talmud says: “You might have thought: a slave, who is not eligible for permission at all; but a gentile, since he is included in his own terumah—as we learned in a Mishnah: if a gentile or a Samaritan separated terumah, their terumah is valid—you might say that he can also act as an agent. Therefore it teaches us otherwise.” Meaning: there was an initial assumption that when we say that someone who is not subject to the law of a matter cannot be an agent, that refers to a slave—by the way, a slave regarding divorce and betrothal, not a slave regarding terumah. In terumah a slave does belong. But we’re talking about a Canaanite slave. In such a case he obviously cannot serve as an agent. But without the verse, I would have thought that a gentile in terumah—since he does belong in his own terumah, he can separate terumah for himself, even if not for others—there would be room to say that he could also serve as an agent. Therefore it teaches us otherwise. Right, that’s why the verse is needed. “And according to Rabbi Shimon, who exempts—as we learned in a Mishnah: the terumah of a gentile causes mixture-prohibition and one is liable for an added fifth regarding it, but Rabbi Shimon exempts.” Right: if terumah falls into non-consecrated produce, it becomes a prohibited mixture. So the Talmud brings a dispute here in which the first tanna says that the terumah of a gentile causes mixture-prohibition—that is, a gentile can separate terumah, and when he does so, it counts as terumah—and Rabbi Shimon exempts. Why does he exempt? Because he holds that a gentile has no connection to terumah at all. If he has no connection to terumah at all, then the question comes back: why do I need the verse “you,” “you as well”? If he is not subject to the law of the matter, then he can’t be an agent. “It is needed, because you might have thought: since the Master said, ‘you’—and not tenant farmers; ‘you’—and not partners; ‘you’—and not a guardian; ‘you’—and not one who separates from produce that is not his own, you might say: ‘you’—and not your agent as well. Therefore it teaches us otherwise.” Right, meaning this comes to teach that there was some initial assumption beyond the fact that he is not subject to the law of the matter. One might have said that an agent in general—meaning that in terumah an agent would not work at all, because someone else cannot separate on my behalf, like tenant farmers and partners and the like—so one might have thought that an agent too, and here we’re talking about a fully valid agent, not a gentile and nothing like that, just a regular agent, one might have thought that an agent could not separate terumah at all, that agency simply does not apply to terumah. Therefore the verse “so shall you also separate” is needed. So it comes out like this: according to the first tanna, the verse comes to reject the initial assumption that since the gentile belongs in his own terumah, he can serve as an agent for terumah; therefore it teaches us that he cannot. And according to Rabbi Shimon bar Yoḥai, for whom there is no such initial assumption, because he holds that the gentile does not belong even in his own terumah, then this comes to teach the very concept of agency in terumah in general, because terumah might have been an exceptional case and we would not have thought at all that agency works there. So that is the Talmud’s line of argument. Now let’s try to go back for a moment to our discussion. Last time we saw—and I won’t go back over all the details now—but we saw last time, more than two weeks ago, that the basic point was this: why does the Talmud see the principle that someone who is not subject to the law cannot be an agent as a substitute for the verse? After all, on the straightforward understanding, the verse says that a gentile does not belong in agency, period. He cannot perform acts of agency, regardless of whether he is subject to the law of the matter or not. So even if I knew the principle of not being subject to the law—like the fact that a slave cannot be an agent for divorce and betrothal—I would still only know that a gentile cannot be an agent for things to which he has no connection, okay? But what about things to which he does have a connection? For example, his own terumah, as according to the first tanna, where he does belong to terumah. There I would think that he can be an agent. Therefore the verse comes and says no. Meaning: the verse comes to teach that the reason a gentile cannot be an agent is not only because he is not subject to the law of the matter, in which case that would apply only to things to which he is not subject. Rather, he cannot be an agent even in things to which he is subject; he is essentially disqualified from being an agent. Therefore the verse is not redundant. What is the Talmud asking? The Talmud asks: the verse is redundant, because I already have the principle that he is not subject to the law of the matter. But the verse is not redundant, because there are things to which he is subject. In those areas, perhaps he could be an agent? If I only had the principle of not being subject to the law, I would say yes—he can be an agent in matters to which he is subject. The verse comes to establish: no—just as you are members of the covenant, so too your agent must be a member of the covenant. You cannot appoint a gentile as an agent even in things to which he is subject, for example acquisitions. A gentile has acquisitions; he can buy things. So regarding acquisitions, can the gentile be my agent to buy something for me? I would say no, because a gentile doesn’t belong in agency. Why doesn’t he belong in agency? The simple reasoning is that whoever… the logic of not being subject to the law—why can’t someone who is not subject to the law be an agent? The simple reasoning is: and therefore what? He doesn’t belong, but he’s acting in my name. I belong—so why not? The straightforward understanding is that the agent performs the act—it depends whether you understand him as an extended hand or as a legal authorization—but simply speaking, if I understand that the agent performs the act and then after it is performed it is credited to me, then obviously if the agent does not belong to the realm of such acts, he cannot act for me, because the whole process never gets off the ground. Say he does not belong in terumah. So he separates terumah, and that separation will help me? But if he does not belong in separating terumah, then his separation simply does not take effect, and therefore there is nothing to transfer to me. If he is an extended hand, that’s really harder, but still—we talked about this—it could be that even in that framework one can understand what the initial assumption was. That’s with regard to not being subject to the law of the matter. But the essential disqualification is obviously a different logic, because in fact it disqualifies the gentile even from things to which he does belong. So why should he be disqualified? There it is probably something like the law of mutual responsibility. Meaning: when I become an agent for you, how is this possible—this novelty that I can act for you? The answer is only because we belong to the same whole, the same group; we are similar in some sense; therefore I can function as your stand-in. What? Yes, but who said that the difference between me and a woman is so essential? The halakhic difference between me and a gentile is an essential difference. Right. And a woman is subject to commandments—not all commandments, but some commandments—and she is fully Jewish in every respect. So she belongs. She can do at least things to which she is subject. Okay? But a gentile—the problem is not the performance of the act. But when I talk about the principle that someone who is not subject to the law of the matter cannot be an agent, what is the problem there? The problem there is in the performance of the act that the agent himself performs. He cannot do it because he is not subject to the law of the matter. So that also means it cannot be transferred to me, because there is nothing to transfer—he simply failed to perform it. With the essential disqualification of a gentile from agency, the disqualification is the reverse. After all, I’m talking even about things to which he is subject. So from the standpoint of performing the act as such, there is no problem at all—he can perform it. The entire problem is in transferring the result of what he performed to me. Since there is no connection between me and him. There is no mutual responsibility between us; he is other, from another people, he does not belong to me, so he cannot transfer to me what he himself does. It cannot be considered as though I did it. In order for it to be considered as though I did it, he has to be similar to me or belong to the same group as I do, or something like that. Right. Correct. Obviously. Yes, so that’s the question. I’m only clarifying the difference between the verse and the principle of not being subject to the law. Once we understand that distinction, I go back and ask about the Talmud: what does the Talmud want? Why does the Talmud ask why you need the verse “so shall you also separate” to exclude the gentile, since there is already the principle of not being subject to the law? What kind of question is that? Those aren’t substitutes. Not being subject to the law disqualifies…
[Speaker B] What was the initial assumption? That what? But what?
[Rabbi Michael Abraham] What do you mean, what did he think? But the verse comes and says that a gentile is disqualified.
[Speaker B] You’re asking me what the verse is? The verse—
[Rabbi Michael Abraham] —itself is saying the principle of not being subject to the law. It isn’t saying something else. Right, that’s what you see here. Correct. Exactly. Meaning: from the Talmud’s question you can see that the Talmud, at least in the initial assumption, assumed that the principle of not being subject to the law is in fact the very principle written in the verse that disqualifies the gentile from agency. It is not a different principle. If it were a different principle, then there would be no room for the question of why the verse is needed. Meaning: at least at the stage of the question, it is clear that the Talmud apparently understood this as two mechanisms. The big question is what happens in the conclusion. That was in the question. In the conclusion we say: no, in the conclusion it is something else. Why is it something else? Because I would think—again, in the conclusion, what is written according to the Sages? I’m talking now according to the Sages—that even though the gentile is subject to the law, still he is disqualified. Right? Why? So then why indeed is he disqualified? Maybe here exactly the distinction that I denied in the initial assumption was introduced. Meaning: here the understanding was introduced that the verse contains an essential barrier and not only a problem of not being subject to the law. In the initial assumption they thought it was the same thing, and that itself is what was newly understood in the conclusion. Yes, yes, right—that’s one possibility. I called it possibility three; never mind the numbering from before. There’s another possibility, which is to say that there is some special rule in terumah here. Right.
[Speaker B] In principle—
[Rabbi Michael Abraham] In principle, with regard to the gentile, we really remain with the initial assumption that the gentile’s disqualification is only because he is not subject to the law. Specifically with regard to terumah, there is a special rule that even though the gentile is subject to the law of terumah, he still cannot be an agent.
[Speaker B] What about the narrowing? Did we narrow it? Yes.
[Rabbi Michael Abraham] That definitely fits with what we saw in Rabbi Shimon later on—what we saw in Rabbi Shimon later on, because Rabbi Shimon says that we would have thought “you and not tenant farmers, you and not partners,” so I might have thought that this also means “you and not an agent.” So it could be that in terumah there is some special novelty in the laws of agency. I would have thought—sorry, not “I would have thought”; in the conclusion I would have thought that terumah is like all the ordinary laws of agency, and if the gentile is subject to terumah then he can be an agent. Therefore it teaches us: no—terumah has ultra-requirements, and so here the gentile cannot be an agent. But again, notice: according to this understanding, even in the conclusion there is still no difference between the essential barrier that comes from the verse and the principle of not being subject to the law. That’s the third possibility—now I’m getting to it. Another possibility is to say that since the gentile belongs only in his own terumah, this is not the concept of terumah in its essential sense; it is a weaker concept of terumah. Maybe we’ll talk about that later. Why?
[Speaker B] Because you could also explain it by saying that if he were performing the terumah for himself—no, he belongs, he—
[Rabbi Michael Abraham] He belongs in separating terumah, it’s just not exactly the same thing as with a Jew.
[Speaker B] Yes, but he can’t perform the terumah for me.
[Rabbi Michael Abraham] If you take that literally, you’re right. But clearly he is performing it for me. So here there was an initial assumption that maybe—meaning, there was an initial assumption that he is subject to the law of the matter, and that itself is what the verse teaches—what you’re saying—that because he isn’t fully subject to the law of the matter, he doesn’t belong. Maybe the initial assumption was even that someone who is not subject to the law of the matter cannot perform the act—not as I said earlier, because he simply cannot perform the act itself, but because he is not exactly like me. Therefore it teaches us: no, it’s because he cannot perform the act, and the act of separating terumah for a Jew is not something the gentile can perform, and therefore indeed a gentile is disqualified in terumah. In short, there are three possibilities for understanding the Talmud’s conclusion, what the verse is adding.
[Speaker B] One possibility: the act of a Jew is something he can’t perform; he doesn’t belong at all.
[Rabbi Michael Abraham] No, not that he doesn’t belong—why doesn’t he belong? Look, for example, let me give you an example: can a woman be an agent for delivery in betrothal? For another woman? Yes. To be an agent—no, to be the husband’s agent. I send a woman to betroth a woman for me. In principle, yes. Why? A woman can’t betroth. She isn’t subject to that law. The Talmud assumes: someone who is subject to the law of divorce and betrothal, someone who belongs—so that’s why I say what I said before: you can’t take it all the way. Meaning, it’s as if if he doesn’t perform the act, and if he isn’t subject to the law of the matter, then the act won’t be performed. It’s like that—but not literally, because after all, you perform it in my name, not in your own name. So if you can perform it in my name, then fine, as long as you are subject to the law of the matter. Okay? So here there is room to discuss whether a gentile who belongs in his own terumah is considered subject to the law of the matter or not. And it could be that this itself is the Talmud’s line of thought. In the initial assumption we thought that the gentile is subject to the law of the matter, and therefore, because of the disqualification of not being subject to the law, I would not disqualify a gentile in terumah. Then the verse comes and says: no, no—something like this does not count as being subject to the law, because he is not fully subject to it, and therefore he is disqualified. Why? Because he is not subject to the law. Not because of an essential disqualification. He is disqualified because he is not subject to the law, only it required a novel teaching that a gentile who belongs in terumah is still considered not subject to the law of terumah, because it is a different terumah—the terumah of gentiles and not the terumah of Jews. The difference between these three approaches is the question of why, in the end, a gentile is disqualified, or what kind of disqualification a gentile has with respect to agency. As for the possibilities—I’ll do them now in order because I’ll use this later, okay? So the first possibility, I said, is that this is a special exception in terumah. What does that mean? That basically there is no essential barrier to a gentile being an agent; “so shall you also separate” does not exclude a gentile from agency. Basically the barrier is only that someone who is not subject to the law of the matter cannot be an agent. Specifically in terumah there is some ultra-requirement in agency, and there the gentile cannot serve—just as a guardian cannot separate terumah, and just as a partner cannot separate terumah, so too a gentile cannot separate. There is some special requirement in terumah. According to this approach, then in the conclusion a gentile can be a Jew’s agent in matters to which he is subject. To be my agent to buy things, for example—he can be my agent; there is no barrier. Second possibility: since the gentile belongs only in his own terumah, then in the conclusion that does not count as being subject to the law. Again, that basically means that the gentile’s disqualification from agency is because he is not subject to the law. There is no essential barrier to a gentile being an agent. The difference between this and the previous possibility is only in the question of whether the gentile is considered subject to the law of terumah or not, whether a verse is needed or not. But as for the question of how to understand the barrier preventing a gentile from being an agent, it is the same conception. The conception is: because he is not subject to the law. There is no additional barrier that prevents a gentile from being an agent. The third possibility—and by the way this is the accepted one among the commentators, although in my opinion on the plain reading of the Talmud it is not so simple—is that the conclusion really introduces an essential barrier in the gentile. Meaning: beyond the issue of not being subject to the law, with regard to a gentile he cannot be an agent even in matters to which he is subject. Why? As I said earlier, probably because he has no mutual responsibility with Jews; he is not interwoven with Jews, meaning he is not of the same type. Therefore he cannot represent me. And I said that the disqualification of someone who is not subject to the law of the matter is, simply speaking, the disqualification of your ability to perform the act. The disqualification of the essential barrier to a gentile serving as an agent is the problem of how to transfer what you did—you did it—to me: what is the bond between you and me? It is not about your own ability to perform the act. Okay? So that’s the difference. The first two possibilities say that the disqualification is because he is not subject to the law; the third possibility says it is because this is an essential barrier.
[Speaker B] Can a Jew also be an agent for a gentile?
[Rabbi Michael Abraham] Meaning, a gentile can’t be… the same thing—apparently not.
[Speaker B] Could it be that… whatever it is.
[Rabbi Michael Abraham] No—priests, are they agents of the Merciful One or our agents? That’s not so simple. But leave that aside—an agent for an acquisition, for example. Can I be an agent for a gentile, where both of us are subject to the law of the matter? Can I be an agent for a gentile? If the idea is that there is no mutual responsibility between us, then apparently not—just as he cannot be my agent, I cannot be his agent. At the moment I don’t remember a source, by the way—there’s something in Eizehu Neshekh, I don’t remember right now—but I don’t remember a clear source on this point right now. There would be room to distinguish, because we already talked about this once: every Jew is also a little gentile, as we know. But it’s true—meaning, a Jew is a gentile plus another level. So the gentile is not a Jew, but the Jew is in fact a gentile too—a huge, mighty gentile. We talked about this once: what’s the difference between a gentile and a full-fledged gentile, right? You only say “a full-fledged gentile” about a Jew. Have you ever heard someone say “a full-fledged gentile” about a gentile? When people say about him that he is “a full-fledged gentile,” it’s obvious he’s a Jew. Meaning, the Jew is a gentile plus another level; the gentile is not a Jew because he is missing the second level. So it could be that a Jew can indeed be an agent for a gentile, because he is in fact also a gentile, while the gentile cannot be an agent for a Jew because he is not a Jew. Okay? This has all kinds of implications. For example, in Sanhedrin 56, I think, in the sugya of stumbling block and disgrace, the Talmud talks there—yes, the Talmud talks there about an animal that was used sexually by a minor, and the animal is put to death. The Talmud asks why. There are two possibilities there for why the animal is killed. One possibility is stumbling block, and the second possibility is disgrace. “Disgrace” means that disgrace came through it upon someone who committed the transgression, and “stumbling block” means that a transgression came through it—not the disgrace, not the shame, but the transgression itself. So you see—and that’s how Rashi writes, and that’s also what appears on the plain meaning of the Talmud—that for a minor, such an act is a transgression. Right? Even though he is a minor. A minor has no transgression. No—you see that such an act by a minor is a transgression. The later authorities (Acharonim) ask about this from a Talmud in Yevamot 33 regarding an inclusive or added prohibition, where the Talmud says that a minor who developed two pubic hairs on the Sabbath—all the prohibitions take effect on him from that moment. Therefore it is called simultaneous: when two prohibitions take effect at the same time, they both take effect. If one prohibition takes effect after the second, then the second prohibition does not take effect—meaning because the first prohibition is already in place. But if they happen at the same time, both take effect. Now, a minor who—doesn’t matter—entered the Temple, a non-priest who offered while impure, whatever it may be, the moment he develops two hairs, all the prohibitions take effect on him at once, and therefore he violated both, all the prohibitions. So you see that until he developed two hairs, no prohibitions applied to him. So in the case of stumbling block and disgrace, you see that a prohibition applies to him while he is still a minor, but in Yevamot you see that no prohibitions apply to him as long as he is a minor. So a number of later authorities (Acharonim) discuss this, each in his own style but with a similar principle—Rabbi Itzele Ponevezher, Rabbi Yitzhak Elchanan, and Rabbi Elchanan Wasserman, and then Chelkat Yoav rejects it, but as an initial possibility—and several later authorities (Acharonim) bring this up. They argue that there is a difference between bestiality, which is the prohibition discussed in Sanhedrin, and the prohibitions discussed in Yevamot. Why? Because bestiality is a prohibition that also exists for Noahides. And if it exists for Noahides, from what age are Noahides liable for it? From the moment they understand, from the moment they have understanding. There is no age thirteen, right? The Chatam Sofer says age is a quantitative measure; among Noahides there are no such fixed measures. So when you ask from what point a Noahide is obligated in a commandment or commandments, the answer is: from when he understands—age five, six, eight, I don’t know, whenever he understands. For a Jew there is age thirteen or two hairs, okay? That is the measure for a Jew. Now, with commandments that also apply to Noahides, like the prohibition of bestiality, there too the Jew will be forbidden even as a minor. That is their claim. By contrast, impurity, an offering by a non-priest, entry into the Temple, and things like that—these are prohibitions that do not apply to Noahides, and therefore they do not apply to a minor before he becomes thirteen. They don’t apply while he is a minor—only once he is an adult. Because those are prohibitions that do not apply to a Noahide but only to a Jew. And the claim is basically that prohibitions that apply to Noahides will also obligate a Jew while he is still a minor. Why? The Talmud in Sanhedrin, three pages later, 59, says: “There is nothing that is forbidden to a Noahide and permitted to a Jew.” There is nothing forbidden to a Noahide but permitted to a Jew. Why not? Because every Jew is also a little Noahide. Meaning, he will be forbidden on account of the Noahide in him, even if not on account of the Jew in him. On account of the Noahide in him, he will be forbidden. Therefore there cannot be something forbidden to a Noahide and permitted to a Jew. But there can be something forbidden to a Jew and permitted to a Noahide. That is the same model I mentioned earlier. Because the Noahide is level one, and in a Jew there is level one, and on top of it level two, but in particular he also has level one. So anything that obligates by virtue of level one also obligates the Jew. What requires level two will obligate only the Jew and not the gentile. Therefore there cannot be something forbidden to a Noahide and permitted to a Jew. So if that is true, then anything forbidden to a Noahide is forbidden even to a minor Noahide as long as he understands. So too a Jewish minor, as long as he understands, will be forbidden in that thing. He will be forbidden in it because of the Noahide element within him, not because of the Jewish element. Okay?
[Speaker B] Are there examples where there actually are prohibitions for a Noahide that don’t apply to a Jew?
[Rabbi Michael Abraham] A twitching animal—the Talmud there discusses it, okay, they discuss it there. The Talmud itself discusses it and rejects it.
[Speaker B] Does that connect with—
[Rabbi Michael Abraham] —the idea from before? There it’s a specific exception. The Talmud asks exactly that; it’s the Talmud’s own question. There’s a specific exception there regarding that; the principle remains. There is a specific exception there, and Rabbi Kook explains it somewhere.
[Speaker B] And could that work on the basis of viewing the Jew as a gentile?
[Rabbi Michael Abraham] No, it can work because there are cases in which level two comes to exclude level one, not to add onto level one.
[Speaker B] And that basically—okay—and that basically replaces the whole text?
[Rabbi Michael Abraham] No, because as long as you don’t have that exclusion, then whatever exists in level one also obligates a Jew. True, you know, it’s like—well maybe—but you need a source for that. You need a source that it replaces it. If there is a source, then yes. It’s like—I once wrote an article about a principle in consecrated offerings: “the text must repeat it to make it indispensable.” Meaning, normally when there is a rule in a verse, that rule is indispensable. Right? If it’s written, then it’s indispensable. If there is a rule that exists but is not indispensable, you need a source for that; that’s not the simple default. In consecrated offerings it is the opposite. Every rule is not indispensable unless there is a source saying that it is. For example, if the rule appears twice, or if it says there “a statute,” or something like that, then the rule is indispensable. Fine? This is what is called “the text must repeat it to make it indispensable.” The verse has to repeat it, write it again, in order for the rule to invalidate if absent. Why is that so? So my claim was—this is a bit of a digression, but never mind—the Talmud at the beginning of the fourth chapter of Berakhot brings that someone who prayed the morning prayer after its proper time: “he receives reward for prayer, but not reward for prayer in its proper time.” Now what does it mean, “he receives reward for prayer, but not reward for prayer in its proper time”? If you didn’t pray at the proper time, then you didn’t fulfill the commandment; that’s part of the definition of the commandment. Meaning, time is not indispensable in a certain sense. It detracts, but it does not invalidate. How should we understand that? According to Maimonides it is easier to understand. Maimonides says that the commandment of prayer is Torah-level. So the Torah-level commandment you fulfilled; the rules established by the Sages—times, wording, and so on—that you did not fulfill. So according to Maimonides it can be understood. But according to Nachmanides, who says that the whole concept of prayer is rabbinic—except for crying out in a time of distress, but regular prayer is rabbinic—how do you understand Nachmanides? So Rabbi Chaim has this little half-sentence, sort of in passing, where he says: even according to Nachmanides, there is a cheftza of prayer. Meaning, when prayer appears in the Torah, prayer existed even before the giving of the Torah. There was no obligation to pray, but the concept of prayer is a Torah-level concept according to everyone. The obligation to pray, according to Nachmanides, does not exist on the Torah level. But when you pray, there is a cheftza of prayer, in Rabbi Chaim’s language. Okay? What does that mean? It basically means that when you pray after the proper time, you are praying like before the giving of the Torah. If Abraham our father prayed the morning prayer after the proper time, would it count for him? Obviously. The Sages had not yet established times or anything else. If Abraham instituted it—fine, not important—but he was not doing something that the Sages told him to do. Okay? So obviously there is prayer there. Why not? Right? After the Torah was given—or after the Sages established that there is a time for the morning prayer—the question is what they intended. Did they intend to exclude what Abraham our father did, or to add onto what Abraham our father did? Did they mean to say: from now on, whoever does what Abraham our father did, it’s worth nothing, even though for Abraham it was certainly worth something? Or did they mean to say: no, from now on, if you do what Abraham our father did, then you will get Abraham’s prayer, but you won’t get the prayer of level two—the full prayer—if you didn’t do it according to the rules established by the Sages. But if you didn’t do it according to their rules, they still did not come to negate the value of prayer that existed before their enactment. Now my claim was: why indeed is this so? Because prayer is service—service of God. If you serve God, that’s not a question of formal definitions. When you serve God, there is some value there—you are serving God—not because you fulfilled one commandment or another, but because you stand before God and serve Him, and that has value. The Sages did not come to negate that. If you did it like Abraham our father did, with no command at all, and it had value for him, then when I do it today not in accordance with the commands, there is still some value there, exactly as if I had lived before the giving of the Torah. The Sages only came to say: if you want to do it in a fuller way, then do it like this.
[Speaker B] Meaning, they came to speak about the value that they cannot uproot.
[Rabbi Michael Abraham] No, that’s not such a simple question. Tosafot in Sukkah—
[Speaker B] —that someone who doesn’t act according to the words of the Sages hasn’t fulfilled even the Torah-level obligation.
[Rabbi Michael Abraham] In certain circumstances you can say that you did not fulfill the obligation of the commandment, but as for the value in it, it still creates some reality.
[Speaker B] Not necessarily.
[Rabbi Michael Abraham] No, if the Sages say that such a thing is bad, then now it’s a kind of commandment fulfilled through a transgression. No—it’s a commandment fulfilled through a transgression.
[Speaker B] In all the Masoret pamphlets this will be marked as a minus, as invalidated. No, the reality is that a person prayed. No, the fact that he prayed isn’t interesting.
[Rabbi Michael Abraham] The question is whether there is value to what he did, and the answer is: there is no value. There is—God will reward him for it, God will reward him for it.
[Speaker C] Right, that’s what it means that it has no value.
[Rabbi Michael Abraham] No, reward is an expression, reward is an expression of Heaven’s response to the fact that an act he did was good in the world, that it has some value. The fact is, it did good. No, that fact is not correct, that fact is not correct, like a commandment fulfilled through a transgression. A commandment fulfilled through a transgression is worth nothing; it’s a transgression.
[Speaker C] But sometimes did it do good in the world? No. “Good” is an assumption, fine.
[Rabbi Michael Abraham] No, I’m not saying that; I’m raising the possibility for you, because you said it couldn’t be. No, it could be. Fine, but the point is that there are situations—the claim is that sacrificial sancta is also service, yes? What do you mean also? It is the service, essentially. Prayer too is service—“what is service of the heart? This is prayer.” Maimonides, in positive commandment 6, I think, “and to serve Him”—yes, that is prayer; there he counts prayer as Torah-level / of biblical origin, so he says it is service. The essence of prayer is that it is service, service of God. Not all commandments are service in that sense. All commandments are some kind of service of God, but the service of standing before God in essence is prayer and sacrifices. And therefore, in fact, in these two things, if you do what people used to do once, that has value, even if the Sages or the Torah established that it has to be done in a certain way. They did not come to remove the value that this thing has in itself, as it had before the giving of the Torah. They did not come to diminish what existed before the giving of the Torah; they came to add. They tell you: look, if you do it this way and that way, it’s even better, it’s complete. But if you didn’t do it the way they said or the way the Torah said, the value it had before the giving of the Torah still remains. Unless—unless—the Torah says “a statute,” or repeats it again, and then tells you: from now on, even though in the case of Abraham our father it had value, for you it does not. But those are cases where you really need a verse to say that. The simple assumption, if there is no verse, is that if it had value for Abraham our father, why would it not have value if I do it? It’s the same thing. I too am serving God—why not? Fine, not halakhic / of Jewish law value, because according to Jewish law it doesn’t fit, but the value of service of God. So specifically regarding sacrifices, regarding sacred offerings, we require that the verse repeat it to make it indispensable, and the same thing with prayer, because these are concepts of service. Okay? Now this is very similar in structure to what I spoke about regarding Israel and a gentile. A gentile is basically our status before the giving of the Torah. This is with the famous Parashat Derakhim, yes, with his inquiry whether the Patriarchs left the status of Noahides only to be more stringent, or also to be lenient. Were they Jews? Or were they Noahides who had a few extra stringencies placed on them? In the simple sense, Israel before the giving of the Torah were Noahides. Okay? What happened after the giving of the Torah? After the giving of the Torah, a second level was added, right? Now we are Jews. We are human beings—that is level one—and on top of that we are Jews. Therefore all the obligations that exist in level one apply to us as well, besides the fact that we have the obligations of level two. But there will be situations, as with service, what I said earlier, there will be situations in which level two tells me: for you specifically, level one does not exist in this particular case. Level two can say: in this case, you may not live on level one; in this area of level one, you may not live. Okay? Everywhere else, live on level one—that’s fine; live on level two—even better. There are places where—no, I block the possibility of living on level one. That’s it: level two has replaced level one in certain places. But for that you need a verse. The simple assumption is that this does not happen. Therefore, for example, regarding an animal convulsing after slaughter, Rabbi Kook explains in Pri Etz Hadar, I think, he explains it this way: for the gentile, the perspective follows natural reality, and in natural reality the convulsing animal is alive—you see that it’s still moving. For Israel, the perspective is the halakhic / of Jewish law perspective, and the moment it was slaughtered, I don’t care that it’s convulsing, it already has a designation on it, yes, the designation of dead, in Rav Chaim’s language. Meaning, the legal status of dead has already taken effect on it, even though in practice it has not yet died. Now Israel has eyes; they look at this with halakhic, spiritual eyes, I don’t know what you want to call it. So from the perspective of Israel it is dead; from the perspective of the gentile it is alive. And notice: it’s not that Israel was permitted something that was forbidden to the gentile. It’s simply that from Israel’s perspective this is dead, not alive. For the gentile too it would have been permitted if it were dead; the gentile just doesn’t see it as dead. That’s all. The difference is not a halakhic difference; the difference is a difference in perspective—what is the relevant reality? And automatically that also creates a halakhic difference. This reminds me of something else, a bit creative. In tractate Beitzah 30, the Talmud discusses making a stipulation about the wood of a sukkah. Is it possible to make a stipulation about sukkah wood? He says: “I do not set myself apart from it during twilight,” meaning, so that sanctity should not take effect on the sukkah wood. Sanctity takes effect on sukkah wood—“the festival of the Lord,” the sukkah is for the Lord; it is forbidden to use sukkah wood; it has sanctity. Okay? Can I stipulate that I am placing these boards in the sukkah, but I do not want sanctity to take effect on them, I do want to use them? So that’s the discussion there in the Talmud. The Rashba asks—in the conclusion one cannot make a stipulation about sukkah wood, depending on what kind of condition; not important, there is a dispute among the medieval authorities (Rishonim), but in principle you cannot make a stipulation about sukkah wood; the sanctity takes effect. The Rashba asks: there is a dispute in tractate Nedarim 29 between Bar Padda and Abaye. According to Bar Padda, does intrinsic sanctity expire on its own or does it not expire on its own? What does that mean? Can I consecrate something with intrinsic sanctity for three days, and after three days it dissolves? Or make it dependent on a condition—if the condition is not fulfilled, the sanctity dissolves. Bar Padda says no, and that is how Jewish law is ruled; and Abaye says yes, intrinsic sanctity can expire on its own. You can consecrate something for three days, and after three days it dissolves. The Rashba asks: how does Abaye get along with this Talmudic passage in Beitzah? Assuming this is not from the Talmud itself but from a tannaitic source—not important, because Abaye is an amora. When the Talmud says you cannot make a stipulation about sukkah wood, what do we see? That the sanctity of sukkah wood does not tolerate a condition; you cannot make a condition regarding intrinsic sanctity. So how can Abaye say that you can, and that intrinsic sanctity expires on its own, that you can make a condition about it? That’s his question; it doesn’t matter what he answers. I ask: this is a unique position, because all the medieval authorities (Rishonim) and later authorities (Acharonim) understand that the prohibition on using sukkah wood is not really because it has sanctity. The analogy to the festival offering, “from the festival to the Lord—the sukkah to the Lord,” does not really mean that there is sanctity like a sacrifice; it only means that it is forbidden, just as a sacrifice is forbidden.
[Speaker B] And according to Rava you can make a stipulation. Who is Rava?
[Rabbi Michael Abraham] There’s a dispute between—
[Speaker B] Bar Padda and Abaye.
[Rabbi Michael Abraham] But according to Bar Padda, you can? No, why? Intrinsic sanctity does not expire on its own according to Bar Padda.
[Speaker B] If you made it conditional?
[Rabbi Michael Abraham] No. “Does not expire on its own” means you can’t do it with a condition and you can’t do it with a fixed time limit. The dispute covers both situations. According to Bar Padda you cannot make a condition and you cannot attach it to a fixed time, make it for a fixed period. And according to Abaye, both are possible. So he asks: according to Abaye, how does he deal with making a condition about sukkah wood? He assumes this is sanctity. Again, unlike the other commentators who do not assume this is sanctity, that is how he assumes it. I ask: if he assumes it is sanctity, what happens after eight days? After eight days the sukkah wood is permitted for use according to everyone. If the Rashba understands that this really is like sanctity, then how can intrinsic sanctity—now I’m speaking according to Jewish law, according to Bar Padda, that intrinsic sanctity does not expire on its own—how does the sanctity of sukkah wood fly away after eight days?
[Speaker B] But they’re sukkah boards.
[Rabbi Michael Abraham] Right? The simple explanation is: because after eight days they’re not sukkah boards, they’re a pergola. A sukkah is something designated for a commandment; it’s not just an object. Now why does that solve the problem? Because what expires after eight days is not the sanctity; the sukkah expires after eight days. There is no sukkah! Its sanctity is everlasting—only what can you do, after eight days there is no sukkah. You see the same object, but it isn’t a sukkah. Yes, this is Rav Elchanan: why is it permitted for someone with Oneg Yom Tov—why is it permitted to sit in the sukkah when it’s raining? The Talmud says that someone who sits there is called a fool; one who is exempt from a matter and does it is called a fool. Oneg Yom Tov asks: why a fool? He is violating a prohibition! It is forbidden to use sukkah wood, and he is using the sukkah as protection from the rain! So Rav Elchanan says: no, if the sukkah is not serving for the commandment, then it is not a sukkah. So there is no prohibition on using it either. Because only a sukkah designated for the commandment is a sukkah; a sukkah not designated for the commandment is the same physical structure, but it is not a sukkah. Okay? Meaning, there are situations in which something changes, but what changes is not the Jewish law; what changes is the reality. Okay? And automatically, of course, that has halakhic implications too. The reality changed, not the law. He says the same thing in the context of the gentile and the Jew: when the gentile looks at a convulsing animal, he sees a living creature. When the Jew looks at a convulsing animal, he sees a dead creature. So the difference between the gentile and the Jew is not halakhic; the difference between the gentile and the Jew is in the perception of reality. And automatically that also has halakhic implications. Okay? We got to all this—yes, no—so the claim you asked about, it all started with you, you’re to blame. You asked why—whether a Jew can be an agent of a gentile. So I said that in the simple sense it seems not, because they are two different peoples who are not mixed together, there is no mutual responsibility between them, so neither can be the other’s agent. But then I said that maybe perhaps yes, because the Jew has level one; the gentile does not have level two; and the Jew can be an agent of the gentile, because he contains also gentile plus level two, so he can be the agent of a gentile. The gentile cannot be his agent, because the gentile is not a Jew. Okay, back to our topic. So we arrived at three possibilities for understanding the Talmud’s conclusion: why a gentile is excluded from agency—either because he is not within the legal framework of the matter, or one of two possibilities of an essential exclusion. What happens according to Rabbi Shimon? That was according to the Sages. What happens according to Rabbi Shimon? According to Rabbi Shimon, the Talmud says: after all, the gentile does not belong to the laws of terumah, right? So according to Rabbi Shimon, why do we need “you as well”? This is a very strange difficulty. After all, in the earlier stage, according to the Sages, we reached the conclusion in possibility three that the gentile’s exclusion is an essential exclusion. Therefore the verse is needed; therefore even though he belongs to the legal framework of terumah, he still cannot be an agent, because the prevention of a gentile from being an agent is an essential prevention. So what is the question according to Rabbi Shimon? No—Rabbi Shimon only disagreed with the Sages because he thought that the gentile does not belong to terumah, he is not within the legal framework of terumah, and therefore he asks: so why is the verse needed? What do you mean, why is the verse needed? The verse is needed to say that in a gentile there is an essential prevention and not just that he is not within the legal framework. Exactly what I asked earlier. Seemingly, from the flow of the Talmud, it appears that even after the previous answer in the view of the Sages, possibility three falls away. Because if, in possibility three, I read the Talmud according to the Sages, what was renewed in the previous stage was that the verse “so shall you also set aside” comes to tell us that the gentile does not belong to agency not only because he is not within the framework, but because there is an essential prevention that keeps him from being an agent. If that is what was said according to the Sages, it is not clear what the Talmud asks according to Rabbi Shimon. Even according to Rabbi Shimon there is the same novelty. It will not be relevant to terumah, because regarding terumah he is also not within the framework, but it will be relevant to acquisitions. So what difference does it make? So seemingly this question of the Talmud on Rabbi Shimon rules out possibility three. And then it emerges that in our Talmudic passage it comes out clearly that there is no essential prevention for a gentile to be an agent—against what is usually assumed. Usually they understand that the exclusion of a gentile, the prevention of a gentile from agency, is essential—not because he is not within the legal framework. There is a way to reject that and say this: if according to Rabbi Shimon—let’s say that according to—after all my question was: what is the difficulty on Rabbi Shimon according to interpretation three of the Sages’ conclusion? So I say: suppose the verse comes to exclude the gentile from agency in an essential way, even in matters in which he is within their legal framework. That is basically what I am claiming. Now Rabbi Shimon says that the gentile is not within the legal framework of terumah. The Talmud asks: then why do we need the verse according to Rabbi Shimon? And I asked: what do you mean, why? In order to tell you that the gentile cannot be an agent even in matters in which he is within their framework. But according to Rabbi Shimon you cannot learn that from terumah. If that is what the verse came to say, how does it say it? After all, the verse says it about terumah, “so shall you also set aside,” about terumah, to include your agents—just as you are members of the covenant, so too your agents are members of the covenant. So I understand that in terumah a gentile cannot be an agent. But if in terumah he is not within the legal framework of terumah, as Rabbi Shimon holds, how can one learn from this verse that there is an essential prevention on a gentile’s agency? After all, with terumah it would certainly be possible to explain that the gentile cannot be an agent because he is not within the legal framework. If all they wanted to tell me in this verse—if “not within the framework” were a logical argument—if what they wanted to tell me in this verse was that there is also an essential prevention, the verse will not succeed in doing that according to Rabbi Shimon. Meaning, there is something to teach, but no way to do it according to Rabbi Shimon. Because there is—
[Speaker B] An extra word—“also.” One more time?
[Rabbi Michael Abraham] Because there is an extra word, “also.”
[Speaker B] No, so here I—
[Rabbi Michael Abraham] I say: that will depend on the question whether the reasoning of “not within the legal framework” is really so simple that it cannot be said to come from a verse. If so, then you’re right.
[Speaker B] Is that what we assumed at the beginning? No. Yes, when the Talmud asked—
[Rabbi Michael Abraham] I’m saying there is a logical argument, but I don’t know—maybe the Talmud now answers that this reasoning is valid because there is a verse. On its own perhaps it would not stand alone; you need the verse to tell me that one who is not within the legal framework cannot be an agent. I can still understand the reasoning, but we’ve talked about this more than once—what is the meaning of reasoning. But you need the verse to tell me: this reasoning is strong enough; you can rely on it.
[Speaker B] Even if not that whoever is within the legal framework… We explained that at the beginning. I didn’t understand. When the Talmud asked at the beginning “why do I need a verse,” and then it brings the Mishnah of—
[Rabbi Michael Abraham] It certainly assumed that the reasoning stands on its own. Obviously. Yes, but here the question is what happens in the answer. If I understand the answer as saying that the verse comes to teach “not within the legal framework” regarding a gentile, then that means the reasoning on its own is probably not strong enough; the verse is needed. If I say that the verse comes to teach an essential prevention in addition to “not within the legal framework,” then I really remain with “not within the legal framework” as pure reasoning. Okay? Now I’m saying: what I say about Rabbi Shimon later will depend on that. Because now, after we finished with the Sages, the Talmud comes and asks: according to Rabbi Shimon, who holds that the gentile is not within the legal framework of terumah, why again ask why the verse is needed? What do you mean, why is the verse needed? The verse is needed either to tell me—or to tell me that there is a reasoning of “not within the legal framework,” because that does not emerge without a verse—or to tell me the essential prevention. And then I say no, because maybe not. Why? Because according to Rabbi Shimon, you cannot learn the essential prevention from here, because according to Rabbi Shimon, since in terumah the gentile is not within its legal framework at all, when the Torah excludes a gentile from agency in terumah, it still could be because of the principle of “not within the legal framework.” You have no proof that there is also an essential prevention on a gentile’s being an agent. You will not be able to derive that from here. That is, of course, only if this reasoning is not absolute, and then I can say you need the verse to tell me the reasoning. Because if the reasoning were absolute, then it would be a kind of “why do I need a verse?” If the reasoning is absolute and there is “not within the legal framework,” the gentile is disqualified from agency. Fine—regarding one who is not within the legal framework, in terumah he is not within the legal framework according to Rabbi Shimon. Okay? Now the verse comes and excludes a gentile. Why is it needed? A gentile is already excluded, since he is not within the legal framework. If there is no function for “not within the legal framework,” then let it serve for an essential prevention. Fine? But all of that is only if there is no issue with the reasoning—that is, if the reasoning is absolute and the verse is not needed at all, and it is clear that you can say it even without the verse, then perhaps that is correct. That can leave possibility three in place. Okay? So of course there was room to say that indeed, in the initial assumption of the Sages, in the initial assumption of the Sages, possibility three really dropped out, because the proof is that afterwards they challenge Rabbi Shimon: why is the verse needed?—and there is no possibility that the verse comes to say that there is an essential prevention. Meaning, apparently at this point we do not think that an essential prevention emerges from the verse. But perhaps the answer regarding Rabbi Shimon says that? After all, all this is only at the stage of the question on Rabbi Shimon. How did the Talmud challenge Rabbi Shimon if one could say that the verse comes to teach an essential prevention? Right, you’re correct, so the verse does not come to say an essential prevention—but perhaps the answer says it? That is not correct. What is the answer? The answer says that there is an exception in terumah, an exception in terumah: “It was necessary, because you might have thought, since the Master said: ‘you’ and not gentiles, ‘you’ and not partners, ‘you’ and not a guardian, ‘you’ and not one who separates terumah from property not his own, I might have said: ‘you’ and not your agents as well; therefore it teaches us otherwise.” Fine—so you see here above. So what does that mean? Right, it doesn’t come up in the answer. Even in the answer to Rabbi Shimon’s question, you cannot insert this idea. Because if that were the answer, the Talmud should have said: it was necessary because I would have thought that a gentile cannot be an agent only in matters in which he is not within their legal framework; the verse comes to tell us that a gentile cannot be an agent at all. It doesn’t say that. What it says is that there is a novelty in the laws of terumah, because I would have thought that in terumah there are special requirements for agency; therefore it teaches us otherwise. This is a novelty in the laws of terumah, not in the laws of agency and not in the laws of gentiles; it is not connected to gentiles at all. It’s just an agent in terumah—a Jewish agent in terumah. Therefore this also is not written in the answer. This is a big difficulty; it needs to be understood. Meaning, in the simple sense, the plain meaning of the Talmud here seems to be that the Talmud assumes there is no essential prevention in a gentile. There is no essential prevention in a gentile. All there is is that he is not within the legal framework. That’s all. Throughout the whole passage you see that the sugya sees these two things as equivalent substitutes: “not within the legal framework” and “so shall you also set aside.” The only way to explain how it still comes out here—and I say this because almost all the commentators understand it this way—even though in our Talmudic passage it is difficult, the only way I see to understand it is that if the verse teaches me, excludes a gentile, it is a verse about terumah. And according to Rabbi Shimon, in a verse about terumah the gentile does not belong to terumah, so I have no possibility of deriving the essential prevention. Fine? And that is what they asked on Rabbi Shimon. But it is not that the verse “so shall you also set aside” does not come—it does come to exclude the gentile in an essential way, at least according to the Sages. What they asked on Rabbi Shimon was: but according to your position that cannot be, because there is no way to derive it. Okay? Because after all you hold that the gentile is not within the legal framework of the matter, so how can we learn from the exclusion of a gentile in terumah the principle that a gentile does not belong to agency at all? Perhaps he does not belong only to agency in matters in which he is not within the legal framework. We have no way to learn that. But then notice what comes out. It comes out that in the conclusion, at least according to Rabbi Shimon this is certainly so. According to Rabbi Shimon there is no essential prevention for a gentile. There is nowhere to derive it from. After all this whole verse teaches me that there is agency in terumah; I would have thought there is no agency in terumah, so I have no source excluding the gentile in an essential way from agency—none. According to Rabbi Shimon, that is certain. According to the Sages, I managed to find an escape hatch, that perhaps there nevertheless is an essential prevention for a gentile from being an agent. But according to Rabbi Shimon that is certainly not true. Because the Talmud asks on Rabbi Shimon—if I read the Talmud as I presented it—then according to the Sages there is an essential prevention here; that is what is learned from the verse. The Talmud asks on Rabbi Shimon: but what do you do with the verse? After all, according to your position the gentile is not within the legal framework. I explained the question: because then you cannot derive this idea of essential prevention from the verse, because this verse deals with something where the gentile really is not within the legal framework—perhaps that is why he is disqualified, and not because of an essential prevention. So what is the assumption right now? That according to Rabbi Shimon there is no source for essential prevention in a gentile. And in the answer that does not change either. So even if I am right that according to the Sages there is an essential prevention in a gentile, that is at most according to the Sages, and even that is not the plain meaning of the Talmud. But that is at most according to the Sages. According to Rabbi Shimon it is certainly not true. And this needs explanation: the conclusion of the sugya here is that in a gentile there is no essential prevention, at least according to Rabbi Shimon, and according to the Sages too in the simple sense there is not. One can, a bit awkwardly, say that perhaps according to the Sages there is an essential prevention, if we really insist on that view. Why am I saying this? Because there is a parallel sugya in tractate Gittin 23. The Mishnah says as follows: “All are fit to bring a bill of divorce except a deaf-mute, an imbecile, a minor, a blind person, and an idolater.” Yes, so “to bring”—all are fit to bring a bill of divorce—I’m focusing right now on the idolater. Except for an idolater. The Talmud asks: They asked Rabbi Ami: what is the law regarding a slave serving as an agent to receive a woman’s bill of divorce from her husband? Can a slave be an agent for receiving a divorce document? Well—a Canaanite slave, of course. So with a Canaanite slave, again this brings us into the question whether he is not within the legal framework, or whether he has some kind of essential prevention. I brought here Rabbi Akiva Eiger’s well-known inquiry about what the status of a slave is. A slave is obligated in commandments like a woman. The question is: what is the status of a slave—is a slave an upgraded gentile or a downgraded Jew? Meaning, is he a Jew who is exempt from the commandments of a man, or is he a gentile who is obligated in the commandments of a woman? Yeshiva-style analyses are always either this or that; maybe he is something in between. But this is the yeshiva dichotomy. So is it this or that? And Rabbi Akiva Eiger claims that this is a dispute between the Babylonian Talmud and the Jerusalem Talmud. Because he points out where the practical difference would be—for example, with commandments such as rounding the corners of the head. Rounding the corners of the head is forbidden to a man, but not to a woman. But why is it not forbidden to a woman? Not because there is a source exempting her, but because it is not relevant to her—she has no beard. Rounding the head is relevant. Shaving, destroying the corners of the beard—yes. So destroying the corners of the beard is not relevant to a woman because she has no beard. Now if the gentile—sorry, if the slave—is an upgraded gentile, then basically he is a gentile, but he is obligated in all the commandments that a woman is obligated in, right? Is a woman obligated in destroying the beard? No, right? Because it is not relevant to her. But practically, it was not said regarding a woman. So a gentile too would be exempt; a slave too would be exempt.
[Speaker B] Is it forbidden for her to shave a beard?
[Rabbi Michael Abraham] That’s an interesting question—the Torah-level prohibition of—fine, I’m ignoring that dialectical point right now. So the claim is that since with a woman it is not relevant, even though it is not relevant—not that we have a verse exempting her—but after all I need a source in order to apply this to a slave. I have no source, because the whole source for a slave is the woman, and with a woman there is no prohibition of destroying the beard, so with a slave too there will be no prohibition of destroying the beard, even though he has a beard—he’s a man. But if he is a downgraded Jew, then what does that mean? That basically he is a Jew who is exempt from commandments from which a woman is exempt. A woman is not exempt from this commandment; there is no source exempting her—it simply is not relevant to her. With the slave, it is relevant. Therefore the prohibition of destroying the beard would apply to the slave. That is the practical difference. And practically for our issue, what this basically means is that the status of a slave—the question whether a slave is like a gentile or like a Jew—the practical difference is whether there is an essential prevention regarding agency. If we say that there is an essential prevention in a gentile regarding agency, then with a slave too there may be an essential prevention if the slave is a gentile who is merely obligated in commandments like a woman, but is basically a gentile in terms of his belonging. Then one could say that the essential prevention in agency also exists in a slave exactly as in a gentile. If he is a downgraded Jew, then one would have to say that agency applies to him. He is exempt from some commandments, but in terms of the law of mutual responsibility he is part of the Jewish people. Meaning, he is not—he can indeed be your agent; he does not have that essential prevention. So the Mishnah says this, and the Talmud says this: Rabbi said to him: from the fact that they disqualified an idolater, it follows that a slave is fit. The question was whether a slave is fit. After all, the Mishnah disqualified the idolater. If a slave were disqualified, it should have disqualified a slave, and an idolater would follow by an a fortiori argument. If you tell me “idolater,” that implies idolater—but a slave is fit. Fine, I bring here two possibilities: either because he belongs to more commandments, or because he is closer to Jews than a gentile is. So Rav Asi says: Rav Asi said in the name of Rabbi Yochanan: a slave cannot become an agent to receive a woman’s bill of divorce from her husband, because he is not within the legal framework of divorce and betrothal. Again “not within the legal framework” enters here. Rav Asi says that the slave cannot be an agent, but why? Not an essential prevention, but because he is not within the legal framework. He does not have the essential prevention. Now what does that mean? It could be that there are no essential preventions at all—maybe even a gentile has no essential prevention, only because he is not within the legal framework. I don’t know what this sugya thinks about a gentile. But it needs to be understood: after all, the Talmud inferred from the Mishnah. The Mishnah excluded a gentile; it says that a gentile cannot bring a woman’s bill of divorce, and it inferred that if so then a slave probably can. So what does Rav Asi do with that? After all, Rav Asi says no, the slave cannot. Wait—but a moment ago we inferred from the Mishnah that he can? Only the gentile cannot; the slave can. It could be that he assumes—it says nothing here—but it is even reasonable that he assumes that with a gentile this is an essential prevention. And you infer for me that a slave can? You are right: with a slave there is no essential prevention. Specifically regarding divorce and betrothal, he cannot, because he is not within the legal framework. But therefore there is no difficulty, no inference from the Mishnah as to why it specifically mentioned a gentile and not a slave, because it wanted to teach you that a gentile cannot be an agent in an essential way. And that is true only of a gentile, not of a slave. And what Rav Asi said in the name of Rabbi Yochanan is that in areas in which he is not within the legal framework, even a slave cannot be an agent, like anyone else. But he has no essential prevention. So from here we learn, if this is indeed the case, several things. First, that in a gentile there is an essential prevention. Second, that a slave does not have an essential prevention. In other words, a slave is not a gentile. In Rabbi Akiva Eiger’s inquiry, a slave is not a gentile. A gentile has an essential prevention, and a slave is not a gentile. If there is something that is not within his legal framework, he cannot be an agent, like anyone else. But he is not a gentile. So if that is really so—at least according to Rav Asi, and that is how Jewish law is ruled—then it comes out that this sugya contradicts our sugya. Because in that sugya it comes out that in a gentile there is an essential prevention. And in our sugya, at least according to Rabbi Shimon, and in the plain meaning of the Talmud also according to the Sages, it seems that it is only because he is not within the legal framework of the divorce document; there is no essential prevention. There should be no difference between a slave and a gentile, right? Let’s say according to our sugya. And then the question from the Mishnah in Gittin returns: why did it specifically mention a gentile? After all, a slave too is not within the legal framework and cannot act, and a gentile too, all that prevents him is only that he is not within the legal framework. So really there is no difference between a slave and a gentile. So why did the Mishnah specifically mention a gentile? Either because it comes to exclude a slave. But if they are the same, then it does not come to exclude a slave. Neither has an essential prevention, and both are not within the legal framework, so in practice neither can be an agent, and that’s all. So the question on the Mishnah returns: why mention a gentile and not a slave? Okay? So seemingly there is a contradiction between the sugyot. The Talmud asks: Rabbi Elazar challenged this: the reason is in a matter to which he does not belong—so in a matter to which he does belong, he is fit? Yes? With a slave you tell me it’s because he is not within the legal framework. Ah, so in matters in which he is within their legal framework, he can indeed be an agent. But there is the idolater and the Cuthean, who are within the legal framework of terumah for their own produce—exactly our Mishnah—as we learned: an idolater and a Cuthean who separated terumah from their own produce, their terumah is valid terumah. And we learned: an idolater who separated terumah from a Jew’s produce, even with permission, his terumah is not valid terumah. Meaning, he cannot be an agent of a Jew to separate terumah, even though he himself belongs to terumah regarding his own produce. Okay? So what do we see? That a gentile has an essential prevention. Even though he is within the legal framework, he cannot be an agent. And what is Rabbi Elazar’s assumption right now? That there is no difference between a slave and a gentile. If there is an essential prevention in a gentile, there should also be an essential prevention in a slave. And if so, then even in matters in which he is within the legal framework, the slave should not be able to be an agent. That is what he challenges above. What is the reason? Is it not because it is written “you as well”—just as you are Israelites, so too your agents must be Israelites? What does he mean to say? Is it not because it is written: just as you are Israelites, so too your agents are Israelites? How is he reading the verse?
[Speaker B] There’s an essential barrier here, right? That’s clear. He says: I’m coming to prove that even in cases where he is included in the relevant legal framework, he still won’t be able to serve as an agent. And where does he prove it from? From the verse, “So shall you too set aside.” Meaning, his simple assumption is that the phrase “you too” comes to say that there is an essential barrier, not to teach something about someone who is not included in that legal framework. Because if that were the point, then what’s the question? There’s no question here at all. This is really the exact opposite move from our passage. Okay? Meaning, for him it’s obvious—not even as an answer, he raises it as an objection. He says: after all, there is the verse “So shall you too set aside,” meaning his simple assumption is that the verse “you too” comes to teach that there is an essential barrier. There’s no way to say otherwise. It’s not that the verse comes to teach that someone who is not included in that legal framework cannot be an agent. Okay? Really the opposite of our passage. “The school of Rabbi Yannai said: no, just as you are members of the covenant, so too your agents must be members of the covenant.” What does that mean? You tell me—how do you understand it? Here it says “members of the covenant”; what does that mean? “Members of the covenant” means they have to belong to the same group in the sense of—right, and that’s clear—“members of the covenant” means this is the essential barrier. It’s not about not being included in the legal framework. Rather, someone who is not a member of the covenant cannot be an agent. Except that, unlike the previous formulation—“just as you are Israelites, so too your agents must be Israelites”—he corrects it: “just as you are members of the covenant, so too your agents must be members of the covenant.” And our Talmud goes with the conclusion here, which learns from “you too” that it comes to include only members of the covenant, not only Israelites. What’s the difference? The difference is with regard to a slave. If it had said, “just as you are Israelites, so too your agents must be Israelites,” that would exclude a slave. But if it says, “just as you are members of the covenant, so too your agents must be members of the covenant,” then a slave is included. A gentile is not, but a slave is. So here, basically, the simple view is that the barrier preventing a gentile from being an agent remains an essential barrier, because he is not a member of the covenant. A slave is a member of the covenant, and therefore that essential barrier does not apply to him. If he is not included in the legal framework of something, then of course he cannot be an agent for it—but the essential barrier is not there. So when we read the Talmudic discussion here through to the end, including the answer and the conclusion, the picture remains that the barrier in the case of a gentile is an essential barrier. Only in the case of a slave is there no essential barrier, because a slave is not a gentile; he is indeed called a member of the covenant. Again, if you go back to Rabbi Akiva Eiger, maybe this also resolves his question—that a slave is basically a Jew, just with reduced obligations in the commandments, and not a gentile with obligations. You have to go with one of those two extremes. Fine, so maybe that also affects Rabbi Akiva Eiger’s question. But for our purposes, what matters is that we are studying agency in the case of a gentile. So what comes out of this is that agency for a gentile is blocked by an essential barrier; throughout the whole passage you see that. And in the case of a slave, that isn’t so. Because for a slave the essential barrier does not exist, since the essential barrier applies to anyone who is not a member of the covenant. Okay? Yes, but is it still contradictory? Of course, and still—it is contradictory. And also not contradictory, because we said there’s the possibility of option three, to set up the passage… No, I said: if I go with option three in the previous passage, then you can reconcile both passages. That’s why I did this whole analysis. So you can reconcile both passages, and that’s only according to the Rabbis. Because according to Rabbi Shimon it’s clear that this is not an essential barrier in the case of a gentile. But according to the Rabbis, maybe it is. And in the first two possibilities there is a contradiction between the passages. Tosafot there in Gittin, just briefly: “A slave cannot become an agent.” And if you say: then the Mishnah should have taught slave, and all the more so an idolater. Exactly this question, right? If Rav Assi says that a slave cannot become an agent, then what’s the implication of the Mishnah? The Mishnah excluded a gentile, which implies that a slave is permitted. And you’re telling me that a slave is also prohibited—so where did the implication of the Mishnah go? Right? “And according to the version where Rabbi Yohanan said above, this has no legal force”—never mind; according to Rabbi Yohanan above in that passage in Gittin one could resolve it, but according to the other version it is difficult. And Rabbeinu Tam says that it mentioned a gentile in order to teach us that a gentile who later converted is still invalid, even though at that time he had in mind to convert, and the case of a gentile is more of a novelty than a slave, because a slave does not have the ability to free himself. Right? I asked that question earlier and answered it simply. I said that the gentile has an essential barrier, right? And the slave here cannot serve only because he is not included in the legal framework, but he doesn’t have the essential barrier, and with that you can reconcile the Mishnah according to Rav Assi. Because the Mishnah mentioned a gentile because it wanted to teach me that a gentile has an essential barrier, and from here you can infer that a slave does not—he has no essential barrier. As far as agency is concerned, he is not included in the legal framework, so true, he won’t be able to function as an agent. In agency for bills of divorce and betrothal, say, a slave also won’t be able to. Okay? That’s how I answered, but Rabbeinu Tam refuses; it seems to me his solution is really forced. But the very fact that he needs that forced answer means he probably does not accept what I said earlier. And maybe that stems from the fact that he insists on saying that the exclusion in “So shall you too set aside,” which excludes a gentile, is also basically some kind of not-included-in-the-legal-framework. It is not an essential barrier. And so now he starts explaining: what counts as not included in the legal framework? But after all, he can convert and become included in the legal framework, so the question is whether, if he intends to convert, maybe he can already do it. A slave cannot free himself, so it is not in his control. So the fact that he intends to free himself is irrelevant; his emancipation depends on the master. Yes, so there would have been room to say that a gentile could indeed be an agent, and the Mishnah teaches us that a gentile cannot be an agent. But this whole forced contrivance comes because he apparently does not accept the obvious explanation. The explanation that says that in the case of a gentile there is an essential barrier, and in the case of a slave there is no such barrier. Why? Or of course you could say that he thinks a slave also has the essential barrier—but then what do I care whether he can convert or can’t convert? That doesn’t seem to be the discussion here. So it is more likely that he probably holds that even in the case of a gentile there is no essential barrier, not that in the case of a slave there is. In a gentile there is no essential barrier; all there is, broadly speaking, is that he is not included in the legal framework. Okay? And therefore the fact that he can convert basically makes him—so what if he can convert? It means that in principle he does belong to the legal framework; potentially, he belongs to it. If he converts, he does relate to this matter. If I’m looking for his connection to this matter, his ability to convert means that he does have a connection to it. And both from Rabbeinu Tam’s reasoning and from the fact that he avoids giving the answer I suggested, it seems pretty clear that for him this all stems from the root idea of not being included in the legal framework; there is no essential barrier. In other words, he reconciles the two passages in the opposite way from how I answered. I answered the two passages by trying to suggest a way in which here too it is an essential barrier, not only in Gittin. In Gittin it’s obvious; here too it is an essential barrier. Rabbeinu Tam reconciles the passages the other way around: that even in Gittin it is not an essential barrier, but only this issue of not being included in the legal framework. And therefore, the view of Ri ben Migash—and now I’m speaking about Nachmanides; Nachmanides in Gittin brings Ri Migash—therefore the view of Ri ben Migash, of blessed memory, is that they disqualified him only for receipt, but for delivery even a slave is valid, like the plain sense of the Mishnah. Except that he did not explain, and one should ask: what is different about an agent for delivery, an agent of the husband, versus an agent for receipt, an agent of the wife? What is the difference between them? What is he saying? He is basically saying that when Rabbi Yohanan disqualifies a slave from receiving a woman’s bill of divorce from the husband, because he is not included in the legal framework, that is only in the case of an agent for receipt. But in the case of an agent for delivery, or even for bringing it, yes—the slave is valid. That’s basically the claim. What is the difference between them? So he says: and we can answer, an agent for delivery is nothing more than an ordinary agent, and ordinary agency does apply to them. But an agent for receipt—since once the bill of divorce reaches his hand she is divorced, and he has no legal “hand” for divorce because he is not included in the legal framework of bills of divorce. So basically, delivery—is that not agency? It is agency, but it is not divorce itself; it is ordinary agency, not agency in divorce. Because what effects the divorce is the bill of divorce. All I’m doing is making sure the bill reaches the woman. It’s kind of monkey work—not monkey work, you need an agent, but any agent can do it, even someone not included in the legal framework of divorce, because you are not doing the divorcing; the bill divorces, and you are only bringing the bill to the woman. What? He’s not included in the legal framework of delivery? No, that’s obvious—that’s not his novelty. Okay, so is it really just monkey work? There is no agency in that sense. But when I give the bill of divorce to the woman, there is a legal effect. When I receive the bill of divorce, nothing happens; nothing has yet happened. I take the bill to the woman as an agent for delivery and divorce her there. But when you give the bill of divorce to the woman, you are basically stepping into the husband’s shoes. Right, but his claim is that agency for delivery is simply transferring the bill from the husband to the woman, but the one who divorces is the husband by means of the bill, not the agent. Therefore the agent does not need to be included in the legal framework of bills of divorce and betrothal. By contrast, with an agent for receipt, the woman’s agent—when I, the husband, give the bill of divorce to the woman’s agent for receipt, the woman’s agent for receipt is basically the subject being divorced. When the bill reaches his hand, the divorce takes effect. So such a person has to be included in the legal framework of the matter in order to be an agent. It’s very strange. Usually an agent for receipt is easier to qualify as—meaning he performs a less significant role. An agent for delivery is usually perceived as the one performing the act of divorce. The agent for receipt is passive, just as the woman herself is passive. But here he argues no: there are higher requirements for an agent for receipt than for an agent for delivery. Why? Not in terms of the concept of agency, but in terms of being included in the legal framework. Right. In terms of the concept of agency, an agent for delivery is the more significant agent. This too can be done by a courtyard. The agent for receipt can also be done by a courtyard. The agent for delivery is the more significant agent, but in terms of the requirement that he be included in the legal framework of the matter, he is less significant than the agent for receipt. Because an agent for delivery is just an agent to move something from place to place, no matter what the object is. So he does not need to be included in the legal framework of divorce; he is not doing a divorce here. But the agent for receipt receives the bill on behalf of the woman; he is basically the one being divorced in her stead. So he must be included in her legal framework. But the moment he places the bill on the husband—places the bill with the agent for receipt—that is where the divorce takes effect. Again, with an agent for receipt, the bill does not need to reach the woman herself. It is enough that he places it there. And therefore the agent has to be included in the legal framework of divorce, because he is basically the one being divorced. Yes, he is like the woman being divorced, he is the representative of the woman being divorced, he gets divorced for her—I don’t know what to call it. And therefore he has to be included in the legal framework of divorce, because he is performing an action that takes part in the act of divorce. Whereas with an agent for delivery, the one who performs the divorce is the husband through the bill; the bill divorces the woman. I am only making sure that the bill physically reaches the woman, that’s all. According to Ri Migash, I am not the one divorcing; the bill is what divorces, and I only bring the bill to the woman. In what sense is that agency? What? Agent for receipt? Delivery. And if I put the bill on the floor and tell the woman, “Take your bill from there,” that is not a valid bill of divorce. Because it says, “and he shall write for her a bill of severance and place it in her hand”; there has to be an act of transfer. So if she takes her bill from the ground, the bill is invalid; there is no divorce. Now the agent’s role is to make sure that when the woman takes the bill, it is not from the ground but from the husband. Exactly. But that is only to bring the husband here, not to divorce the woman by means of the bill. The husband divorces the woman. The agent is kind of just saying: the husband is here. Why does he decide that receipt does require it—say, that an agent for receipt does need it? Because the act of receipt is performed by the woman. On the husband’s side there is no act of divorce; what divorces is the bill. The husband has to give it, but what divorces is the text of the bill. Okay? The husband wrote the bill, and the bill bears his authorization and witnesses; the bill divorces the woman. You just need to make sure that it reaches the woman from the husband’s hand. Okay? But the one doing the act of divorce is the bill. But the woman does not write a bill; she receives a bill. So what is the woman’s act of becoming divorced? The receipt, physically. Right? There is no object here that performs the act of becoming divorced. The thing that performs the act of divorce is the bill. What about betrothal? Same thing there too. Fine? I don’t understand why a gentile cannot be an agent. Because if he is basically like the post office, then exactly—that’s where I’m heading. So according to Ri ben Migash, why can a gentile not be an agent for delivery? After all, the Mishnah says that a gentile cannot, maybe a slave can, but a gentile cannot. A slave also cannot according to Rabbi Yohanan, never mind—but why can’t a gentile? Why can’t a gentile? Because a gentile cannot be an agent in an essential sense. A gentile cannot be an agent not because he is not included in the legal framework. He cannot be an agent even in things where he is included—and agency for delivery requires agency. If something does not require agency, then the agent does not need to be included in the legal framework of the matter. But it does require him to be an agent. Now with a gentile there is an essential barrier: he cannot be an agent. Again, I’m going in the direction that according to Ri ben Migash the barrier seems clearly to be an essential one, as in the straightforward meaning of the passage. Therefore the gentile cannot do it. In the case of a slave there is no essential barrier; the whole issue is that he is not included in the legal framework. Now, not being included in the legal framework does not prevent agency for delivery; in agency for receipt it does prevent it. But if you had someone who has an essential barrier to being an agent, like a gentile, then even in agency for delivery he cannot do it. There’s a question: if I send, say, betrothal or a bill of divorce to a woman by mail, does that work, or is there some problem? That’s a question many halakhic decisors in our time have discussed. Is sending a bill of divorce through the mail a valid divorce? Why shouldn’t it be? Why shouldn’t the gentile be like monkey work? No, that he cannot be. Meaning, the discussion whether the mail works to divorce a woman is because the mail itself has the status—even the mail has the status of an agent, not because no agent is needed. Rather, even the mail has the status of an agent. But if someone cannot be an agent, then he may have the status of agent but he’s sort of… In the case of a gentile, I don’t know what the status is. No, wait. Now you’re asking what happens if it’s gentile mail. And with gentile mail, even if the mail has the status of an agent, the gentile is the one doing it, and a gentile cannot be an agent. Maybe an institution is different, like civil courts. In civil courts, although a gentile is invalid to judge, still in civil courts, as stated in the Talmud in Gittin, there is room to say they have authority to judge. Okay? Meaning, sometimes an institution has some status beyond the specific individuals who make it up. An institution is neither religiously Jewish nor gentile—it’s an institution. And right now it doesn’t matter whether the one working in that institution and carrying out what it does is a Jew or a gentile. Fine. Can’t you say that now the gentile is not included in the legal framework of delivery, but insofar as he is transferring the bill—even though it’s only transferring the bill—still there is a deficiency in the matter? You don’t need that; according to Ri ben Migash, you don’t need him to be included in the legal framework. Ah, in the case of a gentile? No, because he says that for agency of delivery you do not need him to be included in the legal framework of the matter. So why is a gentile invalid? There has to be some essential barrier. It’s not because of not being included in the legal framework, but because he cannot be an agent. And in Ri ben Migash you see the opposite of Rabbeinu Tam. Rabbeinu Tam says it’s all only an issue of not being included in the legal framework. There is no essential barrier, even in Gittin. And Ri Migash says that in Gittin it is an essential barrier. What will he do with our passage? Either option three—but according to Rabbi Shimon, in any case there is a contradiction. Just a side remark, and with this I’ll finish for now. Rabbeinu Tam is one of the Tosafists, Ashkenazi. Ri Migash is Sephardi. And as is well known, the Tosafists—as the Rosh and Maharshal say—made the Talmud into a ball. So the Tosafists have a tendency to harmonize passages, okay? And therefore the Tosafists are unwilling to accept that there is a conflict between passages. So if in this passage it comes out as an essential barrier, and there it comes out as not being included in the legal framework, then it has to be reconciled: either both are an essential barrier or both are not being included in the legal framework. Ri Migash, as a Sephardic medieval authority, Sephardic scholars more readily accept conflicting passages—the Rif, Maimonides, it doesn’t matter, the Sephardic scholars do that more easily. Maybe following the Geonim, basically? Maybe following the Geonim, yes. And then Ri Migash can live more peacefully with the fact that in Gittin you read it straightforwardly as an essential barrier, and it could be that in our passage he would read it as not an essential barrier, and there is a conflict between the passages. Now you have to decide: according to which passage is the Jewish law? When we compare passages and try to reconcile them, we are already basically assuming the premises of Tosafot, that the whole thing has to come out consistent. But it’s not certain. It could be that we remain with a dispute, and for practical Jewish law we have to decide which passage is ruled in accordance with. Okay? Fine, so let’s stop here. We’ll continue next time. Next time, will you get back to the horse?