Kiddushin, Chapter 3, Lesson 5

[Rabbi Michael Abraham] Okay, let’s begin. Last time we moved from the general discussion of “the legal act has expired” to the case of betrothal after thirty days. The Ran himself basically says—the principle of “the legal act has expired,” first of all, means that if I performed a legal act, not necessarily an act of acquisition or ownership, but some legal act, and the legal status it creates is supposed to take effect only after a delay, that can’t work. And it can’t work because the legal act has expired. And I said that what probably lies behind this principle is some kind of causal conception connecting the act I performed and the legal status it creates. So it can’t be that suddenly the effect appears without there having first been a cause that produces it. So that’s with regard to “the legal act has expired.” For example, if I betroth a woman today and I want the betrothal to take effect after thirty days, I give her money today, or intercourse, or a document, and I say that the betrothal should take effect after thirty days—that seems, on the face of it, to be problematic because of “the legal act has expired.” What do I mean? The act was done now, but at this point the legal status is not created, and I want it to be created in another thirty days. In thirty days the act is no longer in the world. The legal act has expired. So the Ran himself already raises this point. The Ran is in Nedarim, and there he asks: how are we to understand this issue of betrothal? He argues that in the matter of betrothal after thirty days, the Talmud itself discusses what happens when the money is gone. The money has been used up—meaning, if I gave the woman the money so that she would be betrothed after thirty days. So we saw that in the Mishnah itself—or at least that’s how the Talmud understood the Mishnah—it means that the betrothal takes effect. True, until then someone else can come and betroth her during those thirty days, but if no one comes, or if he dies, as Nachmanides says, then after thirty days the betrothal of the first man takes effect. So it is possible to betroth a woman in a delayed way. First of all, then, we see that there is no issue here of “the legal act has expired.” The Ran asks why. And he says: it’s written in the Talmud here—the Talmud here discusses the question why she really is betrothed, or whether she is betrothed. The Talmud says she is betrothed, even if the money has been used up. What does that mean? Why? Because this is not similar either to a loan or to a deposit. That’s what the Talmud says. It is not similar to a deposit, because it was given for spending; it is not similar to a loan, because it was given for the sake of betrothal. So this is something that is neither a loan nor a deposit, and therefore she is betrothed even if the money has been used up. So I explained there—I said as follows: if it were a loan, you couldn’t use it for betrothal at the time the betrothal is supposed to take effect. If that money had the status of a loan, you couldn’t betroth her with it, because the Talmud says that one who betroths with a loan—she is not betrothed. If that money were a deposit, then you could betroth her with it, because she has money in her possession that is mine. I deposited money with her, so that money is mine. Now I can betroth her with that money. But that is conditional on the money still existing. If the money has been used up, then I have nothing in her possession—what am I betrothing her with? Therefore, if it is a loan, you can’t betroth her at all, whether the money still exists or not. If it is a deposit, you can betroth her, but only if the money still exists. In our case, the Talmud says you can betroth her even if the money no longer exists. And it’s neither a loan nor a deposit. So I asked: then what is it? You explained to me why it’s not a loan and not a deposit, but you still have to explain to me what it is, in order to convince me that the betrothal can take effect even though the money has been used up. So I said that I think what lies behind this is that in betrothal through money, a lien is created as a result of giving the money. A lien is created—I explained this through the sugya of refundable money—that basically the moment I give money, the recipient of the money owes me something; there is some kind of lien. And that lien continues to exist even after thirty days, after the act. And therefore the legal act has not expired. So then what is it? Here you can go in two directions, and we saw two directions in principle—two possible directions. One direction is that I am betrothing her through a debt, through a lien. Meaning, I gave her the money, the money created a debt, that debt exists, now she owes herself to me. Now I betroth her through the debt after thirty days. In that case I haven’t solved the problem of “the legal act has expired”; it simply never arises, because the act of betrothal is not done now. It is done in thirty days. Right? “The legal act has expired” means that the act of betrothal was done now, and the legal status comes into being in thirty days. So there is a gap here, and that is what is called “the legal act has expired.” But if the act of betrothal is done then, when the betrothal takes effect, then there is no problem of “the legal act has expired”—the act was performed and indeed the legal status was created immediately. That is betrothal through a debt. The second possibility is to say that the betrothal really is through the original money. But the debt only tells us that the act of transferring the money is an ongoing act. It is not finished at the very moment I gave her the money, because after all a debt was created there, and that debt is designated for the betrothal, and only when she becomes betrothed to me is that debt eliminated, and that will be the completion of the transfer of the money to her. So she becomes betrothed through the money, not through the debt. The debt only tells us that the money has not finished passing to her, and therefore there is no problem of “the legal act has expired.” In other words, here there is a problem of “the legal act has expired,” and it is solved. In the first explanation there is no problem of “the legal act has expired” at all, because there is no gap between the time of the act and the time the legal status takes effect, the time the legal status is created. In the second explanation, there is a problem of “the legal act has expired,” because the betrothal is done with the money, and the legal status will only come in thirty days. But there is a solution to the problem of “the legal act has expired,” since the act itself continues until the end of the thirty days. The act of transferring the money does not end until the debt is eliminated and she becomes betrothed to me. We saw that the Raavad appears to understand it like the second explanation. Because the Raavad says—he compares this to a case, yes, he discusses what happens with an animal: I pulled an animal, and I want it to be acquired by me—or the seller wants it to be acquired by me—after thirty days. So the Raavad says that if the animal is still with the seller, then yes, you can do this, and there is no problem of “the legal act has expired.” If the animal is with the buyer… So you could just say simply that I pull the animal now, and I simply acquire it now, okay? The moment I acquire it now, then fine, there is no problem of “the legal act has expired,” as long as the animal is with me. Regarding a document, we saw for example: what happens if the document is still around—in betrothal by document, not betrothal by money. According to the plain sense in the Ran, what he said is true only for betrothal by money, which creates a debt. But if I betroth by document or by intercourse, no debt is created in exchange, so on the face of it there should be a problem of “the legal act has expired.” So we saw that the Ran himself is brought—the Shulchan Arukh brings that the Ran himself says—that if the document is still in existence, then it’s fine. Why? Why, if the document still exists, is it fine? On the face of it, it seems he understood that apparently I am betrothing at the end of the period. I gave her the document, but in fact I transfer the document to her as an act of betrothal only at the end of the period. The document is still with her; I transferred it into her possession, but the giving of the document itself is actually done in thirty days, not now. Now I only placed it in her possession, and therefore the act of betrothal is performed in thirty days. Because if the act of the document, if the transfer of the document, took place now—well, a document does not create a debt. So you can’t say that I am betrothing her through a debt at the end of the thirty days. That option cannot be correct. There is no room to compare it to a document. And I said that from this it also follows against the Beit Shmuel, because the document has to be with her, not just somewhere in the world. It specifically has to be with her, because I am claiming that the giving of the document happens at the end of the period. Now, if the document is somewhere else, not with her, then at the end of the period the document was not given to her—it’s somewhere else. Okay? So those are basically the two possibilities, and we’ll get back to them later. But what I want to do first is explain the option that I betroth through a debt. If I say that the giving of the money essentially created a debt, and the betrothal is effected by means of that debt at the end of the thirty days—then I said that according to this, the problem of “the legal act has expired” does not arise at all, because the act of betrothal is truly adjacent to the creation of the legal status, right? The big problem that comes up here is: how is this different from a loan? After all, one who betroths with a loan—she is not betrothed. You are betrothing here through a debt. A loan is given for spending, right? The Talmud in Kiddushin, page 6—the Talmud says: one who betroths with a loan, she is not betrothed. Rashi explains—or really the Talmud itself on page 47 also explains this explicitly—because a loan is given for spending. If a loan is given for spending, then it turns out that there are no particular coins here with which I can betroth her, and therefore one cannot betroth with a loan. So why here can one betroth through a debt? If I say that the betrothal is done through a debt, something here doesn’t fit. So here I want to dig in for a moment—I mentioned this briefly in… Basically I want to argue that there are several kinds of debts in Jewish law. There is a debt that comes from a loan; there is a debt that comes from the purchase price of a sale, wages of a hired worker, all sorts of things like that. Say, for instance, I buy on credit in a store. Okay? So if I buy on credit in a store, then I owe money to the seller. Is that a loan? Essentially it’s a debt like a loan, as if I had borrowed money from him. So the common view is yes—credit is like a loan. The common view is yes. Today I want to argue that it is not. It’s not the same thing. There is a difference between these two things. To understand this a little, we need to understand what a loan is. In the plain sense, if we look for example in the Shulchan Arukh, where do the laws of loans appear? In Choshen Mishpat. In Choshen Mishpat, a loan is some sort of legal transaction. A transaction or contract between two people. But it’s not so simple, because unlike every other contract, here only one side has an interest. In every contract—I buy, you sell, I want money, you want merchandise—we have reciprocal interests, we meet, our interests meet, and the transaction implements that.

[Speaker B] Because there’s no interest, right.

[Rabbi Michael Abraham] Right. But in a loan, basically there is a transaction only for the borrower; only the borrower has an interest. Essentially it is something done only for the borrower. Not for nothing do the Sages view a loan as an act of kindness. It’s not a transaction. Nobody would say that a guardianship arrangement, paid guardianship, or things like that are an act of kindness. It’s a transaction between two people. Here it’s an act of kindness. So why does this appear not in the laws of charity in Yoreh De’ah? Why does it appear in Choshen Mishpat? Choshen Mishpat basically deals with—we haven’t talked about this here, I think, but in the series on the second chapter of Kiddushin that I teach, I talked about this—what exactly defines Choshen Mishpat? Usually people think that Choshen Mishpat is monetary obligations toward another person, interpersonal monetary law. But that’s not a good definition. It’s not a good definition because, for example, the laws of charity are interpersonal monetary obligations. So why aren’t they in Choshen Mishpat? Or interest—interest is also interpersonal, a commandment or prohibition involving money. Why doesn’t it appear in Choshen Mishpat? Interest and charity appear in Yoreh De’ah. The answer is that Choshen Mishpat—people commonly think that in Jewish law there is no discourse of rights, only a discourse of obligations. People often say that. We don’t ask what is owed to me, but what I am obligated to do. Basically I stand before the Holy One, blessed be He, who obligates me to perform kindness for another person, obligates me to do this, obligates me to do that, forbids me to do this. So I am basically at the center. There are no rights in Jewish law, only obligations. But that’s not true. Obviously there are rights in Jewish law, and the part of Jewish law that deals with rights is called Choshen Mishpat. That is the definition of Choshen Mishpat. What do I mean? In the legal world, people usually talk about something called the Hohfeld table. What is the Hohfeld table? When you have a right to receive something from me, I have a duty to give it to you, and vice versa. Corresponding to every right there stands a duty. Corresponding to every right there stands a duty. Meaning, if I have a duty toward you, then you have a right against me, and vice versa. Okay? It’s a bit more complicated, but I’m simplifying. Now, in that sense, think for example about charity. Does a poor person have a right to receive charity? No. I have an obligation to give him charity, but he has no right to demand that I give him charity, right? Let’s say I don’t give him charity, and let’s say we’re talking about a situation in which I am obligated to give. Can he take me to a religious court and sue me? No. Why not? Because he does not have a right to receive; I have an obligation to give. He does not have a right to receive. You can take me to court when your right has been violated. Your right was infringed, and you are asking the court for protection. Someone is violating my rights. But if I am not fulfilling my obligations, that is between me and the Holy One, blessed be He. Maybe the court will coerce me as one coerces fulfillment of a commandment, but not as protection of someone else’s right. He has no right. Okay? That is why charity is something that imposes an obligation on me, but there is no corresponding right. Therefore, for example, in the Israeli law book there is no obligation to give charity. Because in the legal world they do not recognize duties that have no corresponding rights. And vice versa: in the legal world, for every right there is a duty, and vice versa. In Jewish law there are two kinds of duties. There are duties that begin with another person’s rights, and therefore I have obligations toward him; and there are duties that are unrelated to the other person’s rights. For example, if I caused someone damage, he has a right that I compensate him. He can sue me in religious court. And I have an obligation to compensate him. That is an obligation that draws from a right. It starts from a right, and the right generates the obligation, creates the obligation. Okay? Therefore it appears in Choshen Mishpat. Choshen Mishpat consists of those obligations that are created as a result of another person’s rights, and the relations of rights and obligations between people. That is what explains Choshen Mishpat. Usually this is in monetary matters, but the definition is not that it is money. The definition is that the money expresses a right of one person and a corresponding obligation of another person. In contrast, if there are interpersonal obligations that are monetary obligations, but obligations with no corresponding right, then they do not appear in Choshen Mishpat. Charity is an obligation to give money to the poor person, but the poor person has no right to receive money from me. Charity appears in Yoreh De’ah and not in Choshen Mishpat. It’s not a legal matter. You can’t sue me in court because your right was violated. Choshen Mishpat deals with the legal part of Jewish law. Okay? So it’s not true to say that there is no discourse of rights in Jewish law. There is a discourse of rights in Jewish law; it is called Choshen Mishpat. What is true to say is that in Jewish law there is an additional discourse, and in other legal systems you don’t have this—an additional discourse that really is a discourse of duties without corresponding rights. That does not exist in other legal systems. So for example, the disability protests—every once in a while people with disabilities go out into the streets to demonstrate for their rights, for more funding, various allowances, whatever. That is a basic mistake. It’s a basic mistake. They have no right whatsoever to receive it.

[Speaker B] They can’t sue us in court for it.

[Rabbi Michael Abraham] Of course. We have a commandment or an obligation—or whatever you want to call it—to help weak people, but they have no right whatsoever to receive that. On what basis? It’s my money—why should I have to give them anything? I don’t owe them anything. In the legal world they don’t know how to talk about duties that have no corresponding rights. So there, when people with disabilities go out to demonstrate, they demonstrate for their rights, because from their perspective, if I have an obligation to give them something, then they have a right to receive it. But that’s not correct. Basically I think it’s not correct. In Jewish law it’s certainly not correct, and I think in reality it’s also not correct. You can say, look, you’re not acting properly, help us more because we’re in distress. Fine, and I understand it’s also unpleasant to say such a thing, but that’s the truth. Meaning, you have no rights; I have an obligation to help you—that is the commandment of charity. And the commandment of charity is Yoreh De’ah, not Choshen Mishpat. In the law books there is no Yoreh De’ah. In the law books there is only Choshen Mishpat. Because the law books really deal with regulation and with preventing you from violating another person’s rights. That is what a law code does. In Jewish law there are also commandments. The Holy One, blessed be He, expects me to be a good person and so on—the law does not deal with that. It cannot deal with that. And that was the whole debate around that law. That was the entire argument there. Because they argued against Hanan Porat: what is this doing in the law books? You have no right to demand that I save you. I have an obligation to save you, but you have no right, so what is this doing in the law books? Therefore, for example, they say that in law books nothing will appear unless there is some sanction attached to it. Because the sanction is not for your failure to fulfill your duty; the sanction is for violating the other person’s right. That’s a transgression; it’s not merely failure to fulfill a positive commandment. Failure to fulfill a positive commandment has no sanctions. Transgressions have sanctions. In law there are no failures to fulfill positive commandments, because there are no positive commandments in law. In law there are only prohibitions. No—once it entered the law books, it turned into a prohibition. Also in Jewish law, by the way, “do not stand idly by your neighbor’s blood” is a prohibition. Once it entered the law code—until now it had been a positive commandment.

[Speaker B] “Do not stand idly by your neighbor’s blood” is a prohibition.

[Rabbi Michael Abraham] Don’t be someone who doesn’t—exactly. Meaning, before the law was legislated, this was a positive commandment. After all, everyone agrees there is a value in helping someone in distress. Secular, religious—it’s not a matter of disagreement; everyone agreed about that. The only claim was that it does not belong in the law books. Now, the moment it enters the law books, it turns from a positive commandment into a prohibition. Because now there is already a punishment for someone who does not do it. Now understand that in that sense, precisely putting it into the law books—in a certain sense everyone was thrilled, because here, we inserted something from Jewish law into the law books. The opposite. Now the law books have changed away from Jewish law. Before that they were the same, because in Jewish law there is no sanction for someone who does not refrain from standing idly by his neighbor’s blood, and does not save him—there is no sanction. It is a prohibition with no action. Okay? Now, once you inserted it into the law books, there is already a sanction attached to it. The situation before they inserted it into the law books fit Jewish law perfectly. The moment they inserted it into the law books, it already diverged from Jewish law. It is no longer the same. The whole debate there was whether we are willing to insert Jewish law into the law books, and Hanan Porat danced for joy because he had succeeded in putting Jewish law into the law books. But it is exactly the opposite. What he did was now depart from Jewish law, the moment it entered the law books. And similarly one can point to many other places. In any event, for our purposes—look, take for example the obligations to pay taxes or to serve in the army. Okay? On the face of it these are positive obligations. Not prohibitions. But that is not correct. Because someone who does not pay taxes is punished. The obligation to pay taxes is not a positive commandment; it is a prohibition against not paying taxes. There are certain prohibitions—think about the prohibition of “do not stand idly by your neighbor’s blood.” How do you fulfill that prohibition? How do you avoid violating it? Through positive action. It’s an unusual prohibition.

[Speaker B] Aren’t you supposed to sit and do nothing?

[Rabbi Michael Abraham] No, the opposite. In an ordinary prohibition, if you sit and do nothing, then you are observing the prohibition. Take eating pork. If you eat pork, you violated the prohibition. If you sit and do not eat pork, then you observed the prohibition. Right? But in “do not stand idly by your neighbor’s blood,” it’s the opposite. In order not to violate the prohibition, you have to act, not refrain. It’s an unusual prohibition. So why is it a prohibition? It is a prohibition because there is really a ban here on sitting and failing to act. It is not a commandment to do; it is a prohibition against not doing. Okay? Now, in the law books there are only prohibitions, not commandments. Therefore, as long as “do not stand idly by your neighbor’s blood” was a commandment, it was not in the law books. When it entered the law books, it became a prohibition. True, it is a prohibition that requires me to act, but still, in essence it is a prohibition. The same with taxes. The obligation to pay taxes is, on the face of it, an obligation to do something. But the action here is in order not to violate a prohibition, not in order to fulfill a positive commandment. And the proof is that if you do not pay taxes, you are punished—not that you receive a reward if you did pay taxes. The law gives no reward to anyone, because law does not speak the language of positive commandments at all. Law speaks the language of prohibitions. The same thing with army service. Someone who does not serve in the army is a criminal. So serving in the army is not a positive commandment; it is a prohibition against not serving in the army. Okay? What is confusing is that both in taxes and in military service, the way you avoid violating the prohibition is through positive action and not through passive inaction—but there are prohibitions like that. That does not turn them into positive commandments. It is a prohibition that is observed through positive action. That’s all. But in law, basically, my claim is—and I once discussed this with a jurist when we were writing some book and I wanted to ask him—I argued that in law there are no positive commandments, only prohibitions. So he brought me taxes and military service and things like that, and I tried to explain to him that this is not correct. There are prohibitions that require me to act, and the idea is that the action itself is not what is being praised; rather, the failure to act is what is condemned. And therefore, basically, this is a prohibition and not a positive commandment, even though it requires me to do something. Okay? So if I return to Choshen Mishpat, in short, Choshen Mishpat deals with duties that stand opposite rights. Duties that do not stand opposite rights are found in Yoreh De’ah. There’s a nice story brought by Rabbi Yechezkel Abramsky in his booklet Dinei Mamonot. He was the head of the London religious court. And he told of a man who came to him and said: listen, I appeared before a religious court, some court in London. I had borrowed with interest, and I paid the lender—I repaid the lender the debt with the interest—and then I sued him in religious court to return the fixed interest, because fixed interest must be returned by court order. So the court ruled that this was not fixed interest. Therefore it is not returned by court order. Fixed interest means interest stipulated at the time of the loan. And therefore it is not returned by court order. So I said to them: on what grounds did you judge me? Give me reasons. I want reasons. It is my right to demand reasons from the court. They told him, no, we are not prepared to give you reasons. Just like that—we don’t feel like it. So he goes to Rabbi Yechezkel Abramsky and says: listen, what an outrage—not only did they rule incorrectly, they also are unwilling to give me reasons, when the reasons are the means by which I can appeal. Because once I have reasons, I can go to someone else and say: look, these are the reasons, and I want to appeal. Now he was the head of the London religious court, so he was kind of the higher instance over that court. So he came to appeal before Rabbi Yechezkel Abramsky, first of all about the ruling itself, and second, about the fact that they did not give him reasons. So Rabbi Yechezkel Abramsky of course gave him the final blow in the chain—he said to him: they were right. They were right not only in the ruling, but also in not giving you reasons. Why? Well, he himself explains why. He says: interest—interest appears in Yoreh De’ah and not in Choshen Mishpat. When you sue for the fixed interest that you paid, you are not suing for something that is owed to you; you have no right to receive it. He—you undertook to pay interest; you undertook it, so pay it. Legally speaking, you undertook it, and you are obligated to pay. The Torah forbids taking interest; that is a prohibition. So I do not have money in my possession that is yours if I received interest from you. I do not have money in my possession that is yours and that you are claiming in court, whose withholding violates your rights. The religious court coerces fulfillment of commandments. Meaning, because I violated a prohibition—yes, once I violated a prohibition, the court forces me to neutralize that prohibition.

[Speaker B] So why, here, did the court rule as it did?

[Rabbi Michael Abraham] What? I didn’t understand. In this particular case? The court thought this was not fixed interest. Fine. But I’m only saying—so he says to him: therefore, when you come to a proceeding of this kind, you, as the borrower who paid the interest, your standing there is the standing of a witness, not of a litigant. You are not the plaintiff there; you are a witness. You testify that someone took interest. If we accept the testimony and decide that the man is a wrongdoer, we’ll beat him until he returns the interest. But that is between us and him. You are not claiming anything here; the money is not owed to you. In principle, he could throw the money into the sea, as long as he no longer keeps it. Usually they just give it back to the borrower, but that’s not essential. It does not belong to the borrower. It is not the borrower’s money. Therefore, he says, they were right not to give you reasons. Because reasons are given to a litigant. You ruled against him—give him reasons. But you are not a litigant; you are a witness. You are not entitled to reasons. This is exactly the clearest expression of the point that interest belongs to Yoreh De’ah and not to Choshen Mishpat. Because you have no right to receive the interest. On the contrary: legally speaking, you are obligated to pay the interest. You had a transaction, you received money—a transaction, and this time it really is a transaction. Exactly what you noted at the beginning, because here it’s interest, so there was a reciprocal interest. Both of you agreed. He gave you money, you agreed to pay him; this was payment for renting money. I rent you money and you pay me interest. So here there is a reciprocal transaction; both sides agreed. Legally, you are obligated to pay. There is a halakhic prohibition from Yoreh De’ah not to pay and not to take. But that is a prohibition. Why? When they tell me, say, that I am forbidden to eat pork—legally, in Choshen Mishpat terms, the pork is mine, I have the right to eat it, but there is a prohibition—an external lion crouches upon it, as the expression goes—yes? There is a prohibition to eat it, a prohibition of benefit, or whatever it may be. Very often the Torah intervenes in things that, on the most basic legal level, I have the right to do, and the Torah says no, you may not do this—it is forbidden. But that is a prohibition, not a right. In prohibitions of benefit, for example, there is a dispute among the medieval authorities (Rishonim) whether prohibited items are also removed from ownership, or whether they remain mine and I am simply forbidden to use them. Right? According to the view that they remain mine and I am simply forbidden to use them, that is exactly what is written here. Legally, it is mine. The Torah forbids me to use it. The other view says that once I have no possible way to use it, then it is no longer mine either. But on the basic conceptual level, certainly—say, if only some uses were prohibited, then according to everyone it would still be mine. Why? But I have the legal right to use it, so how can the Torah forbid it? The Torah forbids even things that I have a right to do. I have the legal right to do them, and the Torah still forbids them. So if I return to Choshen Mishpat, then Choshen Mishpat is the book of rights, of rights and reciprocal obligations. Now I ask: in what sense does a loan belong to Choshen Mishpat? On the face of it, this is some kind of transaction, even though there are no reciprocal interests here—the interest exists only on one side. But in the end there is some sort of transaction here. I lent you money; now you owe me—that is a legal matter that has to be regulated legally. Meaning, what is this debt? How is it collected? Is there a lien attached to it? All kinds of things like that. Therefore it appears in Choshen Mishpat. According to the simple conception, it seems—and this is the common way of thinking—that if I lent you money, then now you have money of mine in your possession. Not, of course, specific money, not specific coins. But you owe me money, a certain sum. Fine, it doesn’t matter at the moment with which coins you will carry out repayment, but you owe me a certain amount. Therefore after the loan, basically, I can sue you with a claim that you are holding my money. You have property of mine—give it back. It’s not like charity, for example, where I can’t claim anything from him because he has nothing of mine. That is why it belongs in Choshen Mishpat. With loans too, for example, one sues in religious court. Charity is not sued for in religious court. Okay, so that is why loans belong to Choshen Mishpat. But on the other hand, as I said earlier, it is an act of kindness. More than that, the Talmud says in several places that repaying a debt is a commandment. What does “a commandment” mean? It means specifically a commandment, that is, to exclude the idea that this is merely a legal matter. That is why, for example, the Talmud in Arakhin says that minors, who are exempt from commandments, do not have to repay a loan. When they grow up, that’s another matter, but as long as they are minors and there is no commandment upon them, they do not have to repay a loan. Now that is very strange, because clearly, if I have a monetary claim against you, I can certainly sue minors as well. If they have my cow, what difference does it make to me that they are minors? The cow is mine—bring it back. Choshen Mishpat is not about commandments, and the Talmud defines this as a commandment, yes? “The man to whom you are creditor shall bring the pledge out to you”—from here they learn that it is a commandment, according to some commentators. In any event, this is a commandment imposed by the Torah. Whoever is obligated in commandments is obligated, and whoever is not, is not. So on the face of it, this is not a legal matter but a commandment. So how exactly are we to relate to this issue? There is a commandment here, and we also indeed see it as an act of kindness—everything is true. That actually shows that a loan belongs to Yoreh De’ah. But it appears in Choshen Mishpat, and it has legal arrangements and liens, and one sues for it in religious court, and so on—so there is nonetheless some kind of legal aspect here. My claim—I can show this—is that even if on the essential level this is not really a transaction, because the lender has no interest in it at all, he is doing a pure act of kindness for the borrower, still it is obvious that legal regulation is required here. It is not like charity in the ordinary sense, because after I gave him the money, a debt is created. I did not intend to give him a gift. I gave him the money, but he is supposed to repay it to me. So a debt is created here. Now the law has to define what a debt is, how it is collected, how it is created—there is a need here for legal regulation, even though in this transaction there really are not interests on both sides. But the law has to regulate it. This is not a simple matter, not something trivial like giving charity or something like that. So it requires legal regulation. There is some kind of bilateral contract here. And then it comes out that if… Not bilateral in that doubled sense.

[Speaker B] What? A bilateral contract that the law compels the…

[Rabbi Michael Abraham] The other side—the law compels the duty to repay, yes. And therefore my claim really is—and in several places I’ve shown this—that after all, there is also a lien. In relation to a loan, property is encumbered. The question is whether that lien is Torah-level or not Torah-level, but property does become encumbered, and I can collect it. The fact is that I go to religious court and the court will force him to pay, so there is indeed a legal dimension here. But my claim is that the legal dimension is something the Torah added on top of the commandment. After all, if this were truly a legal dimension—meaning, you are legally obligated to me—then why would I care whether you are a minor and not subject to commandments? You have money that you owe me, money that is mine. So my claim is: no, that’s not how it works. Only someone upon whom there is a commandment is also burdened by the Torah with a lien. Now that really is a legal matter. But someone who is not obligated in commandments, like a minor, does not have the commandment, and therefore does not have the lien either. Meaning, true, the result is a legal result, but that is because the Torah decided to color this commandment in legal colors. You know—the Torah decided to create a lien here. There is not really “my money in your possession.” Let’s put it that way: basically this is a gift. A loan is a gift. I gave you a gift, only the Torah obligates you, as a commandment, to give me a gift back. You don’t have money of mine; I cannot sue you for money under the claim that you possess what is mine. The Torah obligates you to give me a gift back, and the Torah defines this obligation as a legal lien—not like the commandment of charity. A legal lien; it can be claimed in religious court. But all that is only if there is someone whom the Torah really obligates in this commandment of repayment. But if we are talking about minors, who are not subject to commandments, then there is no obligation to repay, and therefore there will also be no lien, and there is no legal issue with them at all; one cannot sue them in religious court. So then, what is the legal regulation of a loan? I gave you money, and then what Jewish law calls a debt was created. The debt is basically the legal form by which this matter is regulated. It’s a kind of “the legal act has expired,” yes? Basically you want to say: I gave you money, and in a month you have to give me back gifts. The legal act has expired—I gave you the money, it’s over. So how can a duty suddenly arise out of nowhere in another month to give me a gift back? Where does that come from? There has to be something connecting the moment of giving the money, of the loan, with the moment of repayment thirty days later. And that something is a debt. You can see the similarity to what is happening in our sugya, right? Or to how they carry out the betrothal in our sugya. So that is what is called a debt. Now what does the debt mean? In the simple understanding, it appears that the borrower has some specific amount that he owes the lender. After the commandment—fine, we did a commandment—after that, a debt is created. What is the debt? You have a certain amount that you owe me. And therefore I can sue you in religious court if you don’t pay me, and so on. True, in principle this is not—meaning, it is not a debt of specific coins. It’s not that you have some particular hundred shekels sitting there. What? A gift? No, no, it’s not a gift, because there is a debt. You owe me the money; I didn’t just give you a gift and that’s it. But the debt that you owe me is not in specific coins. So then what? Is this a process of retroactive clarification? Meaning, at the end of the thirty days, when you take a hundred-shekel bill and give it to me, it turns out retroactively that this bill was the bill you owed me—a kind of retroactive clarification. But on the face of it, no. Because in principle you can spend all your bills. And maybe you wouldn’t be acting properly, but no one can say to you—even if now you are about to spend your last hundred-shekel bill—no one can say anything; you have the right. Afterward you’ll still owe, and I don’t know if you’ll manage to pay me, and it’s not right, and maybe it isn’t right, yes—but in the end, I can’t say that there is even some non-specific bill that belongs to me. There isn’t. There is no bill at all that belongs to me; even through retroactive clarification that won’t happen. So what does belong to me? What exactly in your possession is mine? What am I claiming when I sue you over a loan? That is really the question. Now there are two possible ways to understand this—and it is probably a dispute among the medieval authorities (Rishonim)—two possible ways to understand the meaning of this debt. The Talmud in Kiddushin—we’ll look at it inside—the Talmud in Kiddushin says as follows. Okay? Abaye said: one who betroths with a loan, she is not betrothed; with the benefit of a loan, she is betrothed, and it is forbidden to do so because of a subterfuge of interest. But what interests us is the first part: what does it mean that one who betroths with a loan—she is not betrothed? So the Talmud says that this is because a loan is given for spending. Rashi explains this: “she is not betrothed”—Rashi says, “because we learn ‘taking’ from the field of Ephron,” that he must give something at the time of betrothal, “and a loan is given for spending, and it is already no longer his, and she owes him other money.” Okay? The money she received is already hers, finished. She owes him other money. So he has nothing with which to betroth her, and therefore she is not betrothed. Now the common understanding, both in Rashi and in the Talmud itself, is that she basically owes him some “other money,” meaning non-specific money. So why can’t I betroth her with that non-specific money?

[Speaker B] So we don’t know which money. So what?