Kiddushin and Acquisition

[Rabbi Michael Abraham] Okay, good evening. In Parashat Behar we deal with the laws of slaves. Slaves are basically a kind of acquisition that one person has in another person. A Hebrew slave too is some kind of acquisition, but a Canaanite slave certainly is. And the question of one person’s acquisition in another person is a loaded question in our generation. I’m not saying that ironically; I’m completely in favor of that. In favor of its being loaded, I mean. And then the question basically is how to relate to this halakhic approach — meaning, to what extent we can really see in the halakhic world an acquisition of one person in another person. In the context of slaves, it seems to me that at least with a Canaanite slave it really is acquisition in the ordinary sense, but with a Hebrew slave it’s not really acquisition, at least not with a regular Hebrew slave. And the more relevant question for us, of course, is a husband in relation to his wife. Meaning, the question whether kiddushin, which is called acquisition, and “a woman is acquired in three ways” at the beginning of tractate Kiddushin — whether that itself counts as an acquisition that the husband has in his wife, ownership, and what kiddushin and acquisition actually mean. What does the very concept of acquisition mean? That’s really the fundamental question. Maybe I’ll start with something connected to Parashat Behar, even though it’s only indirectly connected to our topic. In Parashat Behar we learn about a Hebrew slave who, if he doesn’t want to go free after six years — a regular Hebrew slave works for six years — if he doesn’t want to go free after six years, then his ear is pierced and he remains with his master — his master meaning his owner — until the Jubilee. In Parashat Mishpatim we see that a Hebrew slave who doesn’t want to go free, and his master pierces his ear at the door, “and he shall serve him forever,” meaning he remains forever. So there’s a contradiction between these two passages. On the one hand it says that he serves forever, and on the other hand it says that he goes free in the Jubilee, until the Jubilee. So the Talmud does something that looks a little like wordplay. It says: for the duration of the Jubilee. What does that mean, for the duration of the Jubilee? On the one hand it says forever, and in another passage it says until the Jubilee — so how do you reconcile it? It means for the duration of the Jubilee. The intention basically is that he goes free in the Jubilee. Fine, I understand that he goes free in the Jubilee, but what is the meaning of what is written in Parashat Mishpatim, that he serves forever? I once saw this in an article by Henshke — today he’s a professor of Talmud; then he was a nineteen-year-old when he wrote it. He makes an interesting claim. In that article he deals with the relationship between plain meaning and rabbinic interpretation, and his claim is that these two passages actually reflect two planes of discussion regarding the slave. One plane is the proprietary plane — meaning, to what extent and in what sense the slave is the acquisition of his owner, his master. That is what Parashat Mishpatim deals with. Parashat Behar deals with the laws of the Jubilee — that’s the context there too. It deals with the laws of the Jubilee, not with the laws of slaves. And then the claim is the following. Usually in Jewish law — and that is the view of a large number of the medieval authorities (Rishonim), not all — usually in Jewish law, when an acquisition is a permanent acquisition, when something belongs to me forever, then it belongs to me in its very body. Meaning, it itself is literally my property in every sense. But if something belongs to me only for a fixed period, say for a year, a month, two months, then I do not have ownership of its body in the halakhic terminology; rather I have in it… or ownership of its produce, “the body for its produce” in a more precise formulation. Meaning, I basically have — again, this is all very rough, but I’m saying it briefly — I basically have usage rights. Not ownership in the full sense of the word. And the proof is that after a month or two or whatever, it simply leaves me and goes back to being an object, goes back to its original owner. So basically that isn’t really ownership; it’s only some kind of usage rights. Now Henshke’s claim is that in Parashat Mishpatim, what is written — that the slave who doesn’t want to go free serves forever — means that he is basically acquired by his master in a permanent acquisition. A permanent acquisition means that he is his master’s property just like his master’s ox, like his master’s chair — meaning, he is acquired by his master in the full sense; “his body is acquired,” as they say. In Parashat Behar something is written that belongs to the laws of Jubilee, not to the laws of the slave. And in the laws of Jubilee the rule is that if there is something acquired forever, the Jubilee terminates it. It has nothing to do with the laws of slaves in particular. In general, the Jubilee doesn’t like seeing something permanently acquired by its owner. If there is something permanently acquired by its owner, it terminates it. Like land that a person buys — it returns to the original owner in the Jubilee. A slave too: if the slave is acquired by his owner forever, the Jubilee terminates that. What does that actually mean? Think of a case where I sell, I don’t know, an ox to someone else. Fine? He bought the ox. Now he owed money to the king — income tax in our day. Then the king comes and collects the ox for the debt. Meaning, he owes him a thousand shekels, so he takes the ox from him because he didn’t pay the thousand shekels. So it turns out that after a year, after I sold him the ox, the king took the ox from him. Does that mean that the ox was his only for one year? In other words, that he wasn’t really the owner of the ox? Right? Because ownership for a limited time isn’t full ownership, only usage rights. Does the fact that the king took the ox from him after a year mean that during that year the ox wasn’t really his at all, that he only had usage rights in it? Obviously not. Why not? Because the acquisition from the outset was not an acquisition for a year. An acquisition that from the outset is for a year is a time-limited acquisition. Then I’m really not selling you the thing itself, only giving you usage rights. But here I sold you the thing forever. The king didn’t come because, well, your time is up, it was yours for a year, after a year I take it. The king didn’t come by virtue of that. The king came and took it because the man owed him money. Meaning, from the outset the acquisition was a permanent acquisition. The king terminated it. That is not the same thing as my selling something to someone for a year. From the outset, at the time of the sale, I tell him: look, this is only for a year. If I tell him it’s only for a year, then he has only usage rights. But if I give it to him forever and now the king comes and expropriates it from him — and I’m speaking now about this being done legally, not by robbery; the king has the authority to expropriate things — then that doesn’t change the fact that during the year when that ox was with you, it was fully acquired by you. Okay? Why? Because the acquisition was a permanent acquisition; only after a year the king came and terminated it. That is not the same thing as my transferring it to you from the outset in an acquisition that is only for a year. That is an acquisition of produce, an acquisition only for use. He says that basically the same thing happens with the Jubilee’s termination of a slave. The slave, when he is sold — not sold, but pierced — when the slave has his ear pierced, then he is acquired by me basically to be mine forever, and therefore his body is mine. The Talmud says in the chapter HaZahav in Bava Metzia that the Jubilee is “the king’s expropriation,” the king’s termination, and the king is the Holy One, blessed be He — He comes and terminates it. What does that mean? That basically when I sell you, say, the land in the thirtieth year of the Jubilee count — meaning there are another nineteen years until the Jubilee arrives, okay? Did I sell you the land for nineteen years? No. I sold you the land forever. It’s just that the Jubilee comes and terminates it, like a king who comes and expropriates something when money is owed to him. Meaning, the sale was not a sale for a limited time. In the sale I transferred all the rights to you; it’s not that some rights in the land remained mine. I emptied them all out to you. You received everything. It’s just that after nineteen years the king comes and expropriates it. Same thing with the slave. When I pierce the slave’s ear, then the slave is mine through ownership of the body. Meaning, he is completely mine, like my ox and my donkey. But when the Jubilee comes, the Jubilee terminates it. So does that mean that the slave is basically mine only for nineteen years — let’s say, if I bought him or pierced him in the thirtieth year — but in fact he is acquired to me through ownership of the body during those nineteen years? Because this is a permanent acquisition. After nineteen years there will be a termination, but it is not an acquisition for nineteen years. Okay? And therefore Parashat Mishpatim says what the nature of the acquisition is. The nature of the acquisition is that it is permanent. Parashat Behar says: right, it is a permanent acquisition and he is acquired to him in his body, but after nineteen years the Jubilee will come and terminate it. That comes from the laws of Jubilee; it has nothing to do with the nature of the acquisition or its character at all. Therefore there is no contradiction, and that may be what the Talmud means when it says “for the duration of the Jubilee.” What we learn from here is that in principle there is in the Talmud one person’s acquisition in another person. Even acquisition in the full sense, that “his body is acquired.” Meaning, a pierced slave belongs completely to his owner. About a Canaanite slave I’m not even talking, but we’re talking about a Hebrew slave. This whole discussion was about a Hebrew slave. Even regarding a Hebrew slave, the Talmud says: a Hebrew slave, his body is acquired — even one acquired for six years, and certainly a slave whose ear was pierced. A pierced slave is completely mine. Meaning, a person’s acquisition in another person is possible. In that sense it exists. Except that, of course, here the aspect we might call the moral one is, let’s say, duller or more moderate. Why? Because this situation of a slave, in most cases, the regular slave is a slave who was sold for his theft. Meaning, a slave who stole and has nothing with which to repay, so the religious court sells him. The religious court sells him, and that is basically in return for restoring the stolen goods — or anyway, the money from the sale goes toward restoring the theft. This isn’t someone I seize control of, or someone who decides to give himself over to me. True, there is also what is called one who sells himself, but one who sells himself is in principle prohibited. Meaning, it is forbidden to do that; it’s just that if someone does it, Jewish law recognizes it. Meaning, it takes legal effect, but there is a prohibition against doing it. Therefore in the laws of a Hebrew slave we see that the concept of one person’s acquisition in another person really does exist in principle. It’s not that it doesn’t exist in Jewish law, but it exists in a very qualified form. Only if he stole and has nothing with which to repay — then okay, that’s his problem, he got himself into this mess — or when he decides to sell himself, which is actually forbidden, but he violates the prohibition. Then he can find himself in a situation where he belongs to someone else. But all that is in the laws of slaves. What happens with a woman and a married couple? Between a married couple the situation is more painful. After all, the couple does not come into the situation intending that one of them should be the other’s servant. Meaning, she does not intend to transfer herself as a servant. That’s not like the slave’s situation. And if the Torah defines the relationship between husband and wife as a relationship of ownership, of acquisition, that really does sound disturbing. With a slave I think less so, but here it sounds disturbing, and the question is whether that really is the case. So I don’t know which of you had time to see the two articles, or just skim them — I don’t assume you actually had time to read everything — but in the latest issue of Hakdamot, Rivka Lubitch wrote an article in which she claims that despite all the well-known apologetics, at the end of the day kiddushin is an acquisition that the husband makes in his wife, and afterward she belongs to him in certain senses at least — yes, she qualifies it a bit. And because of that, this is an intolerable situation, and she therefore also proposes not to perform kiddushin, or somehow to live according to the law of Moses and Israel without kiddushin. That’s a particularly amusing oxymoron — to live according to the law of Moses and Israel without kiddushin. Fine. I’ll ignore the oxymorons, but what is the meaning of this? So I argued — she also mentioned me among the views she brought as opposing views — I argued a long time ago, and then spelled it out more in the response article, that the act of acquisition — what we call here the act of kiddushin, which is called acquisition at the beginning of tractate Kiddushin — is not really a purchase in the sense we’re talking about here. The medieval authorities (Rishonim) already say this; it’s not my invention, and she also brings them and somehow it’s not clear to me exactly what she does with them. And in order to understand this, I want to enter a bit into the passage you saw in your study in tractate Gittin. That passage in tractate Gittin of course deals with a slave, but through it I want to clarify somewhat what the concept of acquisition in Jewish law actually is, because I think there are misunderstandings about it here, a bit of anachronism. So, I’ll say briefly, because the basic material was on the page. There is such a thing as a Canaanite slave. Now of course when I say Canaanite slave, I mean not actually Canaanite but a non-Jewish slave. Right? Any slave who is not Jewish. A Jew — the previous slave we spoke about was a Hebrew slave. A Canaanite slave is a non-Jewish slave, and in the halakhic terminology of the medieval and later authorities — in the Talmud itself it doesn’t really appear this way — in the accepted halakhic terminology, the relationship between him and his master, meaning his owner, is defined on two planes. There is the proprietary plane. Meaning, this slave is the property of his master; he belongs to him. The second plane is the prohibitory plane. The first is called monetary acquisition, the second is called prohibitory acquisition, in the language of the medieval and later authorities. Prohibitory acquisition means that when the slave is in the status of a slave, then various laws apply to him that pertain to a slave. He is obligated in commandments like a woman — there is a verbal analogy — he is permitted in… never mind, there are various laws that pertain to a slave. He is basically some sort of half-Jew. Meaning, there is a dispute whether he is an upgraded non-Jew or a downgraded Jew, but he is something in between. And the process of slavery is basically some kind of partial conversion. And therefore the process of slavery has not only proprietary aspects, in that the slave becomes mine — what is called monetary acquisition — but also prohibitory aspects. Therefore it is called prohibitory acquisition. He comes to have a different personal status from what he had before. Personal status is some kind of status of the person, yes — what his standing is, let’s call it social standing from the standpoint of Jewish law. So that is the state of a regular slave. Now, with a slave in whom I have monetary acquisition and prohibitory acquisition, I can renounce my ownership of the slave. I renounce it like any property I have that I can declare ownerless. I announce: this thing is ownerless. I say it before three people, or before two, I don’t know, it doesn’t matter — so I renounce it. From that moment, there is no dispute that the slave is no longer my property. Meaning, the monetary acquisition has lapsed. But to be fully freed — and when a Canaanite slave is freed he becomes a full Jew; meaning, a Canaanite slave is an intermediate status, and a freed Canaanite slave is Jewish. Okay? There is a prohibition against freeing him, never mind; if he is freed, he is Jewish. So how is he freed? For that, it isn’t enough just to renounce ownership of him. This is a dispute between Rav and Shmuel, but according to the halakhic ruling it isn’t enough to renounce ownership of him; you have to give him a bill of manumission. Just as one divorces a woman with a bill of divorce, so too a slave is freed with a bill. So you have to give him a bill, and then he changes from the status of slave to the status of Jew. Meaning, the bill is basically what terminates the prohibitory acquisition. Now what is the status of a slave when I have renounced ownership of him but have not yet given him a bill of manumission? At that stage he is called one awaiting a bill of manumission. Okay? Meaning, I have no monetary rights in him, he is no longer mine in the proprietary sense, but there is still a prohibitory status. He is still called a slave from the halakhic standpoint; his status is like the status of a regular slave. What has lapsed is only the proprietary rights that I have in him. I can’t tell him what to do, I no longer acquire lost objects he finds, which is what normally happens with a regular slave. Meaning, the proprietary relations, the legal bonds between me and him, have disappeared. Just as when I declare any other object ownerless, I cease to be its owner. So too with a slave: if I declared him ownerless, I cease to be his owner, but he still remains in the personal status of a slave. That is the state of one awaiting a bill of manumission. The Talmud discusses what happens if an ox kills a slave who is awaiting a bill of manumission. Okay? If an ox kills a slave, then he pays a fine, what is called thirty shekels for a slave. A fine stated by the Torah. But that is with a regular slave, a regular Canaanite slave. What happens if the slave is awaiting a bill of manumission? So there is room to say that one pays the fine just as with a regular slave, because after all his status is still the status of a slave. But on the other hand, I would very much like to pay that fine only to whom? To whom would we pay it? The slave is dead. The owner is no longer his owner. Maybe to the slave’s children, if he has any, although the question of inheritance there isn’t so clear. There is no one to pay, in principle. Let’s assume for the sake of discussion that he has no relatives or children. So then to whom do you pay? So the question again is whether one pays the fine or doesn’t pay it. If one pays the fine, then the fine goes to his master, to his owner — there is no one else to pay. Or perhaps it makes no sense for it to go to his master, because his master is no longer his owner. What does that have to do with anything? You didn’t damage my property; the slave is no longer my property. So the second alternative is not to pay someone else, but not to pay at all. Right? So either one pays his master or one doesn’t. The Talmud says this: Come and hear: if he knocked out his tooth or blinded his eye, he goes free because of his tooth and he gives him the value of his eye. If the master damages one of the important limbs of the slave, then the slave goes free. So he goes free because of his tooth — meaning, he knocked out his tooth and the slave goes free — and for the eye, he pays him the value of the eye. And if you say that there is a fine and the fine goes to his master — our question was whether when an ox kills a slave, one pays the fine to his master or doesn’t pay at all — then the Talmud says, according to the side that there is a fine and the fine is paid to his master: now if others injure him, they give it to his master; if his master himself injures him, would they give it to him? What does that mean? If others injure this slave who is awaiting a bill of manumission, then to whom is the injury payment given? To his master. So if that is so, then obviously if his master knocks out his tooth or eye and ostensibly has to pay, to whom should he pay? To the slave? But if others injure him, I receive the money, so if I injure him, should I pay him? Of course not; I’m the one who is supposed to receive the compensation if he is injured. That is what the Talmud says. Therefore the Talmud says that apparently there is no fine, because if there were a fine, it would be impossible to understand this law that if others injure him, it goes to his master. On that Tosafot asks: “if others injure him, they give it to his master” — even though the earnings of his labor belong to himself. After all, this slave is awaiting a bill of manumission. “The earnings of his labor belong to himself” means that what he does — say he does some work, earns money — the money is his, right? It doesn’t go to his master; he no longer belongs to his master. The master has no proprietary rights, so the earnings of his labor belong to himself. So if the slave is injured, say someone injures him or kills him, something happens — to whom did it happen? To the slave, not to the master, right? He no longer belongs to the master, the master can no longer work him, can no longer earn money from him, that’s it, the master no longer has proprietary rights in the slave. Right? So Tosafot says: even though the earnings of his labor belong to himself — after all, he belongs to himself and not to the master — since the fine goes to the master, the injury payment also goes to the master, because what difference is it whether he killed all of him or killed half of him? Tosafot says: since the fine, if an ox killed him, to whom does the owner of the ox pay the fine? To the master. Therefore if someone injures him, that too is paid to the master. What difference is this and what difference is that? Injury is like killing half of him. If the ox kills him, then it kills him completely; if I injure him, then I killed his hand or I killed part of him. What difference does it make whether I killed part or all? At the end of the day, if the payment goes to his master, then everything goes to his master. So Pnei Yehoshua asks — and this really is a very surprising statement by Tosafot — because there is a very big difference between a fine and injury. And that is what Pnei Yehoshua asks. I won’t go into reading him now, but I’ll say it orally. There is a very big difference. Why? Injury is compensation. When I injure someone or damage someone, I have to pay him compensation. That payment is not a punishment; that payment is payment — let’s call it in modern language, civil law, not criminal law. Okay? Someone sues me because he suffered damage, and I have to pay compensation. Not because I was a criminal and therefore I get a punishment that I must pay him. It’s not punishment, okay? It’s compensation, it’s money. A fine is punishment; that is the definition of a fine. The definition of a fine is a punitive payment, not compensation. Why does one whose ox killed a slave pay thirty shekels? Why is it a fixed amount? Let’s see how much the slave is worth and compensate the master accordingly. Why is it a fixed amount? It is fixed because that payment is not compensation. If it were compensation, then it would be a function of how much that slave was worth. But this payment is not compensation; it is punishment. And punishment for death is thirty shekels. Meaning, if your ox killed the slave — and if you kill him yourself that’s something else, that’s outright murder — but if your ox killed him, then you receive a fixed punishment of thirty shekels. And the rule in the Talmud is that every payment that is fixed, that is not a function of the damage and the situation, is a fine, a punitive payment and not compensation. So Pnei Yehoshua says: then how can Tosafot compare injury to a fine? With injury I caused damage, I have to compensate him. Whom do I have to compensate? The one who suffered the loss, right? So if this slave no longer belongs to his master because he is awaiting a bill of manumission, I damaged him, I cut off his hand — who lost from that? He himself. Now he can earn less, work less, right? So because of that, obviously whom do I have to pay? The slave — he lost. The fine is a payment of a different character. It is not compensation, it is punishment. The punishment you have to pay regardless of the question of who lost and how much he lost. You are not paying in order to compensate him; you are paying in order to punish yourself — well, to have punishment imposed on you. To whom do they give it? That is already a secondary question. If the person is alive, then I have to pay anyway, so I’ll give him the money — why not — instead of throwing it into the sea. But I don’t give him the money because I have to compensate him. This payment is a punitive payment, not compensation. Okay? It just goes to the injured party usually because who else would you give it to? But if in fact the injured party no longer exists — he died; the ox killed him — then there is no one to give the fine to. What do you do? So what, he won’t get punished? After all, someone’s ox gored and killed a slave here — why shouldn’t he be punished? So what if this slave is awaiting a bill of manumission? You deserve punishment. So give the fine to his master. The main thing is that you pay — what difference does it make to whom? Not because his master suffered the loss — it isn’t compensation — but because you have to pay as punishment. To whom do you pay? To whoever is available. If not to the slave, then pay the master. So Pnei Yehoshua asks: then what does Tosafot want? What is the similarity between someone who injured the slave and someone who killed the slave? Someone who injured the slave pays compensation. The compensation goes to the one who was injured, which in the case of one awaiting a bill of manumission is the slave, because the master is no longer his owner. If you want payment for killing the slave, thirty shekels for a slave, that is punitive payment. The punitive payment goes to whoever can receive it. The main thing is that you pay. So why does Tosafot say there is no difference between injury and a fine? If the fine goes to his master, then the injury also goes to his master. What difference does it make? This is killing all of him, this is killing half of him. What does that mean? It’s not killing half and killing all; these are two entirely different things. Killing all of him — you pay as punishment. Killing part of him — you pay as compensation. The compensation has to go to the one who was hurt. The punishment has to go to whoever can receive it. Therefore even if the injury payment should go to the slave, the fine would still go to his master. So how can you say that if the injury goes to the slave, then the fine also has to go to the slave — and if the slave died, then there is no fine? That’s not true. The injury goes to the slave because he is the one who was hurt, whereas in the case of a fine, if you can’t pay him, I’ll pay the master because I have to pay anyway as punishment. What is the similarity Tosafot makes between injury and a fine?

[Speaker C] Is there no payment at all besides the fine?

[Rabbi Michael Abraham] No, when there is a fine, you pay the fine and that’s it.

[Speaker C] There are cases where you pay a fine and there are other payments, like with a woman who, say, is entitled to a fine in certain cases, right?

[Rabbi Michael Abraham] No, that’s a different discussion.

[Speaker C] Usually—

[Rabbi Michael Abraham] Usually we discuss the fine separately. Even with theft there is the principal and the double payment. We discuss the fine on its own. The other payments are not important right now. The question whether there is monetary liability for killing a person is not so simple — that’s a complicated passage. Whether there is civil payment for killing a person is a very difficult question. No, no, he is talking about a fine in the case of injury, not any other payment. So the claim — Pnei Yehoshua himself writes some very strange things. Whoever saw him inside could get the impression. He starts with a question, then stretches the question mark and turns it into an exclamation point, and now everything is fine. Then he repeats the same sentence. He says: yes, but since he is his master with respect to injury, why shouldn’t he be his master with respect to the fine? What’s the difference? I didn’t understand: you asked in the question that they can’t be compared at all, and then you answer in the solution: no, no problem, they can be compared, because what’s the difference? A bit odd. It seems to me that what Pnei Yehoshua perhaps means to say — and if not, then I’m saying it — is that now I want to talk about the concept of acquisition. Here we’ve reached it. Until now this was just the framework. The concept of acquisition we usually understand as a bundle of rights that a person has in some property. Say a certain chair is mine — then I have rights: I’m allowed to use it, others are not allowed to use it without my permission. I have rights in that chair. I can sell it, I can do various things with it. The question is whether that is all, or let’s phrase it differently. When the slave is declared ownerless, I no longer have monetary acquisition in the slave. What remains is only the legal status of the slave, the halakhic status, his personal status. Why is that thing called by the commentators “prohibitory acquisition”? Just terminologically. I understand monetary acquisition. Monetary acquisition means that he belongs to me. But what is prohibitory acquisition? After all, he doesn’t belong to me. He has the prohibitory status of a slave until he receives a bill, but what does that have to do with anything? He does not belong to me in any way. I have no right in him. Why is this called prohibitory acquisition? You should say: he has a prohibitory status and there is monetary acquisition, and if I renounced the money-ownership, the prohibitory status remains. Why is that called prohibitory acquisition?

[Speaker D] Maybe legally he still belongs to you, meaning if you were prohibited from deriving benefit from him, or if there were a prohibition of benefit regarding you.

[Rabbi Michael Abraham] No, a prohibition of benefit is something entirely different. I’ll get to that in a moment. A prohibition of benefit is not connected. The claim is — what I want to say — that the slave, after I have declared him ownerless, is still my property. He is my property in this sense: when I speak about a property right in something, from the perspective of the common halakhic view at least, it is not only a bundle of rights. The bundle of rights is a consequence of the fact that there is some bond between me and the thing. There is some bond — call it metaphysical, meta-legal, whatever. There is some bond between me and the thing. The consequence of that bond is that I have various rights in that object. But in principle, ownership is the bond. The rights are a consequence of the fact that such a bond exists. It is not that ownership is the bundle of rights. Why do I say this? Let’s say I gave up all the rights. In this case, I declared the slave ownerless. He is still mine. He is mine, only now without the consequences. There are no consequences. Meaning, there is a bond between me and him, but all the proprietary rights that this bond gives me — I waived them. They are no longer mine. That does not mean there is no ownership. If ownership were only the bundle of rights, then the moment the rights disappear, he is no longer mine. I’m not the owner. But if I claim that ownership is something more abstract, that ownership is a bond between me and the thing, and in the case of property that ownership has legal consequences that give me rights — now if I waive or cancel the rights, those are only consequences. I canceled the consequences, but the bond itself that exists between me and the thing is still there, unchanged. And therefore I claim that this is called prohibitory acquisition. It is called prohibitory acquisition because this slave is fully mine, he is mine without practical consequence. Meaning, he belongs to me, and that gives me no proprietary rights regarding him. But he belongs to me. So what does it mean that he belongs to me? That there is some bond between me and him. What are the consequences? I’ll give you an example. For instance, the Rogatchover gives two implications of this. For example, you know there is a law called “the resting of one’s animal.” Meaning, my animal is forbidden to desecrate the Sabbath. I hope it knows that. Meaning, if it, I don’t know, plucks a branch, then I have violated a Torah prohibition because it reaped on the Sabbath. Not a prohibition punishable by stoning, a lighter prohibition, but still a Torah prohibition — the resting of one’s animal. If it eats, by the way — if it cuts grass while eating — then that is its normal way, meaning that is fine, that is permitted for it. But generally, if it performs some action that if a person did it would be forbidden labor, then even if my animal does it, I have violated a prohibition.

[Speaker A] But if it does it on its own, just cut off that branch because it was annoying it, in its face?

[Rabbi Michael Abraham] All right, it could be that this is also called a case of increase because she did it for her own needs. It doesn’t matter, I’m not going into the details right now, I just want to talk about the principle. What does this mean? After all, it has nothing to do with the proprietary rights I have in the animal. What, just because I have rights and I’m allowed to make use of it, therefore it has to observe the Sabbath? What does that have to do with anything? The Rogatchover says that from here we see that my animal, or my property in general, is some kind of extension of me. In some sense, it is me. After all, even I am not my body. I am my soul. The body is, of course, the physical framework within which I function. But when I speak about my self, that’s my soul, not my body. So my body too is a kind of extension. It isn’t really me myself. Now my property is a more distant extension, but it is still my extension. Okay? That means there is some kind of connection between me and my property, a connection of identity, not a connection of ownership in the sense of rights. That’s not the point. Rather, just as I have to observe the Sabbath, so too my extensions have to observe the Sabbath. So my property has to observe the Sabbath, and this has nothing at all to do with the proprietary rights I have in the animal. Meaning, let’s say I were to renounce all the rights I have in the animal, like in the case of a slave whose bill of manumission is delayed—suppose such a thing could exist—and leave only the pure ownership without the rights, then in my view the obligation that my animal rest on the Sabbath would still apply. Because it is my extension. It does not depend on the proprietary rights I have in the animal.

Or another implication, briefly: if my animal causes damage, why do I have to pay? In the simple view, if I were to ask, I assume the answers would be: because I was negligent in guarding it. Meaning, I should have watched it, and if I didn’t watch it, then I have to pay. But many later authorities (Acharonim) noted that this is not at all simple. There are disputes among the medieval authorities (Rishonim), disputes among the later authorities (Acharonim). Some later authorities claim that it is not because of negligence in guarding. The very fact that my animal caused damage obligates me to pay. Only if I was not negligent might I be exempted, but what creates the payment obligation is the fact that my animal caused damage. Why? What does that have to do with anything? If I was negligent, then I understand why the claim is against me. But independently of negligence, just because my animal caused damage—so what if it caused damage? Because it is my extension. If it causes damage, that obligates me; I have to pay. It’s like if my body caused damage, I would have to pay. Right? Obviously yes. In any case, I don’t know of other kinds of damages. Usually damages—“a person is always forewarned,” right? Whether awake or asleep, even under compulsion. Why? Now I’m no longer at fault—I was asleep. But I caused damage, and if I caused damage, I have to pay; the responsibility is mine. Not because I am guilty, not because of negligence. What I did—the responsibility is on me. When my animal does something, that too is something I did, and the responsibility is on me—not because I was negligent, not because there’s some claim against me, but simply because it is my extension, and what it did obligates me. Those are the two implications the Rogatchover brings.

For our purposes, Pnei Yehoshua says—and I think this is what he means—that a slave whose bill of manumission is delayed is still the property of his master, even though the master has no right of use whatsoever in that slave. All the proprietary implications of that connection do not exist, but the implications are not the thing itself. The implications are implications, and even if they do not exist, it could be that the connection between them is still in force. And now therefore, in essence, the fine goes to the master, and this depends on all sorts of additional assumptions that I’m not going to get into here.

What does this actually teach us? That even when we speak about ordinary ownership, acquisition in the usual sense of ownership, the meaning is not merely a bundle of proprietary rights. When I say that this chair is mine, it does not mean only that I’m allowed to use it or that others are forbidden to use it. First of all, it means that there is some kind of connection between me and the chair. Now, there are certain kinds of connection—what we call ownership—whose implications are proprietary rights. But there can also be other kinds of connection. How do you create such a connection? How do you generate such a connection? Through an act of acquisition. Right? How do you acquire an object? You perform an act of acquisition: lifting, pulling, payment, taking possession. That’s how you acquire something. Now this act—its function is to create the link, the connection. The implications are a product. It doesn’t create the implications; it creates the connection, and the implications are the product.

I’ll just note why things from which one may not derive benefit are not relevant here. What happens in cases where benefit is forbidden? Let’s say I have orlah, fruit from a tree in its first three years. The Torah forbids me to use the fruit. Is that a case of ownership without rights of use, like what I described earlier with a slave whose bill of manumission is delayed? My claim is that it is not. It is ownership with rights of use—only I am forbidden to exercise them. No, that’s not the same thing. In the case of the delayed bill of manumission, the rights are not mine—not that I’m forbidden to use them; they are not mine. I gave them up; they are ownerless. With something from which benefit is forbidden, if someone takes it from me, in principle he is a thief—let’s leave nuances aside for the moment. If someone makes use of the slave, he is not a thief. Why? Because the uses are not mine; I declared them ownerless. The slave himself is fit for use, right? What is use? I make use of him; I don’t acquire him, I use him. Did I steal? No. The slave is not acquired by the master in that sense. If I made use of an object from which benefit is forbidden, I stole, since the rights of use belong to the owner. The fact that the Torah forbids him to use them says nothing about the proprietary issue. It forbids him as a prohibition, but in proprietary terms, to whom do these things belong? The Torah also forbids me to eat pork, so if I raise a pig, is it not mine? Of course it’s mine. The Torah can forbid me to make use of things even if the rights of use are mine legally. Now there are things that the Torah forbids entirely, all forms of use, and there are things it does not—only eating, for example, okay? That doesn’t matter. But the rights are mine. In the case of a delayed bill of manumission, the rights are not mine. Therefore, forbidden-benefit cases are not a good example. On the contrary, the opposite direction may be more of a counterexample. Anyone who says that something from which benefit is forbidden is not his probably assumes that the rights are the whole of ownership and there is nothing beyond that.

In any event, let me return to our issue. What I really want to argue is that if in fact an act of acquisition in Jewish law—I think I really have to finish soon—an act of acquisition in Jewish law is not meant to create rights of use at all. That is a mistaken conception. The role of the act of acquisition is to create the connection between me and the thing. When the connection is a connection of ownership, then the products or results of that connection are rights of use. But there are other kinds of connection as well. When I appoint an agent, or create a partnership with someone, I am not the owner of the agent or the partner. Or if I make a contract with someone, I am not transferring anything to him in the sense that he becomes the owner of something; I am obligating myself to him. An obligation—owner of what? He owns nothing. So why do you need an act of acquisition? You perform an act of acquisition in order to create the connection.

Not in order to… when we separate terumah, that too is some kind of act that is like an act of acquisition. Even though we are not really transferring rights from one person to another, we are performing an act that applies a new legal status. The item was ordinary produce or untithed produce, and now it is terumah. So the act of acquisition is required in order to change the status of the thing. How do you change status? There are statuses that change into proprietary status, and there are statuses that change into some kind of connection between me and it. Some connection, each with its own implications. All right?

My claim was that with a woman, when we betroth a woman, even though the Mishnah calls it “a woman is acquired in three ways,” we acquire the woman. But an act of acquisition in Jewish law—and anyone who knows a little about halakhic terminology knows this—an act of acquisition in Jewish law is not only for buying things. An act of acquisition in Jewish law is for applying legal statuses of any kind whatsoever. You have to do some act in order for the legal status to take effect. There is a status of ownership, there is a status of partnership, there is a status of betrothal, there are all kinds of legal statuses. Legal statuses do not arise by themselves through mere speech. Legal statuses are created by doing an act. Consecration, ownerlessness, all sorts of things, separating terumot and ma’asrot, all sorts of acts that create a halakhic state require—that is, all sorts of halakhic states need to be effected by some act. That act is called an act of acquisition. When I obligate myself to someone, we perform an act of acquisition. Am I thereby transferring something to him? Nothing. So what am I doing? I am giving legal force to the obligation. I am creating a legal state. An act of acquisition in Jewish law is not buying things—that is a mistake. It’s an anachronism because of our language today. An act of acquisition in Jewish law is applying a new halakhic state. That is what it means to perform an act of acquisition. What kind of halakhic state? Sometimes it is a state of ownership, when I acquire a chair or a slave. Sometimes it is a state of marriage, when I acquire a woman. But creating marriage does not mean becoming the owner of the woman. That is simply a mistake; it is not true. Or at least it certainly does not follow from the term acquisition, because the term acquisition in Jewish law has a much more abstract meaning than buying rights of ownership. Rather, it means creating a new state.

Now let me show you that in the matter—we have a few more minutes, can I continue a bit more? Okay. In the matter of betrothal there are endless proofs that this is the case. Up to now I have only said that it is not necessary, that it could still be true that in this particular case of acquisition I am also acquiring the woman and now she is property. Maybe yes, maybe no; I’m only claiming that it is not necessary. Because the concept of acquisition is interpreted in a more abstract way than buying something as property. Now I’ll show you that it is so. Not only is it possible, but it is so.

One example—there are many examples, but one example. The Talmud at the beginning of tractate Kiddushin looks for a source for why a woman may be betrothed with money. So there is an analogy between a woman and a field: “taking” and “taking,” from the field of Ephron. They compare the taking of a woman to the taking of a field. Okay. From here they learn that just as a field is acquired with money, so too a woman is acquired with money. Now a woman is acquired in three ways: by money, by document, and by intercourse, as the Mishnah says. Immediately afterward, the Talmud asks: from where do we learn that a woman is acquired by intercourse and by document? And it brings various sources. This is very strange. I would have expected that if there is an analogy or verbal comparison between a woman and a field, then all three methods would be learned from field to woman. After all, a field is also acquired in three ways: by money, by document, and by possession. Possession means use. Okay. With a woman this is really parallel, right? Money, document, and intercourse, which is sort of the parallel to use. All right? And the rule is that a verbal comparison is not partial. Meaning, if you make a verbal comparison between two things, then you learn everything; you don’t learn half yes and half no. That is the rule in the Talmud. So now I would have expected that if they learn that a woman is acquired with money from a field that is acquired with money—there is a “taking-taking” analogy of woman to field—then no problem, in one move let us learn all three methods. A field is acquired also by document and possession; likewise a woman is acquired by document and intercourse. Exactly parallel, field one-to-one. Why do we need to look for additional sources?

Not only does the Talmud not suffice with that source and look for other sources—none of the medieval authorities (Rishonim) even comments on this. It is so obvious to them that it is not even on the table. No one even asks why. At least no one I know of. It is clear to them that no, this has no relevance at all. Why? Because the verbal comparison between a woman and a field does not mean that you acquire a woman the way you acquire a field. That is nonsense. A woman is not the husband’s property. Nachmanides says this, and Rivka Lubitch quoted it. Nachmanides and his students after him repeat this. A woman is not the husband’s property. And they said this in the 12th century, not today when there are attacks and a need to produce apologetics. It is completely clear. On the contrary, in places where the Talmud seems to imply that the husband has ownership over the woman, the medieval authorities object: but a woman is not the husband’s property—so what is the Talmud saying here? They don’t explain it away. No—when the Talmud seems, at least apparently, to say that the woman is the husband’s property, the medieval authorities say this cannot be, because a woman is not the husband’s property. They raise it as an objection; it is a first principle, self-evident. Among other things, the proof is from here. Therefore there is no real comparison between a woman and a field.

The Ritva already says this there. This is what is called revealing the meaning of the matter. It is not a verbal comparison. It is similar, but not the same. “Revealing the meaning of the matter” means that the term taking gets its meaning from another place. There we see that taking is done with money, so here too taking is done with money. There is no comparison at all between a woman and a field. It is not related at all. It is simply that we want to understand the term taking, so we go to another context where we understand what it means, and from there we learn the meaning of the term here. And therefore, since this is not a verbal comparison, there is no basis to learn intercourse and document from here. We do not acquire a woman the way we acquire a field. It has nothing to do with it. Therefore when the Talmud does not say this, the medieval authorities do not comment on it either—it is not on the table at all, it cannot be correct.

There are many more proofs. If a woman commits adultery with someone, then she becomes forbidden to the husband and to the adulterer. Right? “You murdered and also inherited?” They stole my wife from me, and now that also makes her forbidden to me? How can that be? What is this, theft? It has nothing to do with theft at all; it is a prohibition. The woman is not mine. She is not my property. When I give a perutah and betroth a woman, where have we ever heard of buying something with a perutah—unless the woman is worth a perutah, but usually someone who betroths a woman thinks she is worth more than that, I assume. Where have we ever heard of buying something with a perutah? You pay the consideration. Sometimes you perform the act of acquisition with a perutah and pay the rest of the price afterward—that is already a dispute among the later authorities. But here, nothing. You give the perutah and that’s it. You don’t pay any further consideration afterward. Why not? You bought something—pay consideration. You’re not buying anything. It’s simply nonsense. It is a modern anachronism: today, in our language, when we speak about acquisitions we speak about ownership, property. And therefore, when we read the Mishnah, “a woman is acquired in three ways,” it is obvious to us that the meaning is that the woman is the husband’s property. But that is not true. It is not true—you can see it substantively, and terminologically it is also not true, because the term acquisition, as I said earlier, concerns creating a connection, creating a legal state. And the connection of betrothal is also a connection; it is a halakhic connection like any other connection, and in order to create it, obviously you need to do some act. It is not done merely by speech. Some act is needed in order to create the connection, but that connection is not a connection of ownership and is not even related to a connection of ownership.

[Speaker F] Why specifically does the husband have to perform the act that applies the legal status, and not the woman?

[Rabbi Michael Abraham] The Torah wanted the husband to do it; I have no idea why. By the way, I did not say there is symmetry between husband and wife, or that Jewish law is egalitarian—it is not. Don’t misunderstand me. I am not trying to make that absurd claim. Jewish law is not egalitarian. What I mean to say is that the husband is not the master of his wife; he is not her owner.

[Speaker C] What about the parallel between a father and his minor daughter, and the husband? In many things there is a parallel, right?

[Rabbi Michael Abraham] And is the daughter her father’s property? On the contrary, that parallel proves even more what I am saying.

[Speaker C] Why? Because the parallel here is—

[Rabbi Michael Abraham] Of acquisition? Because the father too is not the owner of his daughter. Until age twelve? Until no age. She does not belong to him in any way. On the contrary, if a minor causes damage, it is bad luck for the injured party, because when the minor causes damage no one pays. Why, if my property causes damage I have to pay, if my ox causes damage I have to pay, but if my son causes damage I do not—why? Because my son is not my property. Can he sell her as a maidservant? So what? The fact that he can sell her as a maidservant is not because she is his. He cannot enslave her as a maidservant; he can sell her into maidservant status, to apply to her that connection called maidservant status, and that is within his authority. Just as the connection of betrothal is something the husband has the power to create. But that is a connection, not ownership. There is no ownership; the father is not the owner of his children. All right, let’s stop here.