Q&A: How Can There Be Several Ways to Apply One and the Same Legal Effect?
How Can There Be Several Ways to Apply One and the Same Legal Effect?
Question
Hello Rabbi,
The question is a bit abstract, and I hope I can formulate it clearly. I’ll try to do so through an example.
In short, the question is: how can one create the same legal effect in several different ways?
For example: as is well known, there are three ways of betrothal: money, document, and intercourse.
From the fact that all three are called “betrothal,” I understand that all three share common features that are features of the concept of betrothal.
From the fact that there are several different ways, I understand that there is a difference between the ways, and that no two ways have the same set of features (otherwise they would be the same way, essentially identical, and there would be no need to teach both of them separately and distinguish between them).
In other words, each way has both features belonging to the concept of “betrothal” and additional features that distinguish it from the other ways. Some of these features must be essential to that particular way, otherwise there would be no difference between it and the other ways. For the purposes of the question, I’ll call these features “essential extensions” (they are essential to the specific way, but accidental to the concept of betrothal).
Now, it would seem that if I chose to effect betrothal in a certain way, and let us say one of the “essential extensions” is missing (and not a feature of the concept of betrothal itself), then there is no betrothal, since an essential feature of that particular way was not fulfilled, and therefore this was not a valid mode of betrothal.
What is surprising is that each way has its own “essential extensions,” and yet all of them create the same legal effect.
We started from one shared concept (betrothal), arrived at several ways that differ essentially from one another (= each has different necessary conditions), and ended with one shared legal effect.
Or in short: features that are accidental to the concept of betrothal have become necessary conditions for applying the legal effect of betrothal (and even that depends on the particular way used).
Isn’t there a logical problem here? Or is one of my assumptions along the way mistaken?
Of course, the question applies equally to any legal effect that has several ways of being created: acquisitions, prohibitions, etc.
Thank you,
Nathan
Answer
See Rabbi Gustman’s opening lecture to tractate Kiddushin (Kuntresei Shiurim). There he explains, following Tosafot on Kiddushin 6b and elsewhere, that the three modes of betrothal (money, document, and intercourse) correspond to the three different aspects found in betrothal: the sanctity, the prohibition to others, and the permission to the husband (I hope I remembered correctly). So too with the three formulations of betrothal: “betrothed,” “sanctified,” and “to me as a wife.”
The logical picture that emerges from his approach is this: betrothal contains three components. Betrothal can be effected by applying one of them, and once it takes effect it spreads to the other two aspects as well (something like “the sanctity spread through all of it,” Kiddushin 7a). The three modes of betrothal differ from one another In that each of them effects a different aspect of the betrothal, and then that extends to the rest..
The main practical difference he mentions concerns the law of “spreading,” for the above Tosafot writes that this law exists only where he betrothed the woman with the wording “behold, you are sanctified to me” and not “behold, you are betrothed to me.” See there carefully.
The logical lesson is that sometimes there is a concept composed of three components, and one need not search for a common denominator among all of them. The combination of all of them together is the concept. This reminds me of what the Even HaEzel says regarding the labor of building on the Sabbath. He explains why there can be derivative labors there that are not at all similar to one another. In the primary labor of building there are two different components: assembling parts and creating a space (that is how one builds a structure—a house). Pitching a tent is a derivative because it involves creating a space, even though it does not involve assembling parts. Making cheese is a derivative because it involves assembling parts, even though it does not involve creating a space. Pitching a tent and making cheese are in no way similar to one another, yet both are derivatives of one primary labor. The logic is very similar to our case.
Discussion on Answer
With acquisition, it is indeed a simpler legal effect, but it seems to me that the different modes of acquisition are simply different expressions of resolved intent. That is, here there really is a common denominator to all the modes.
As for Nazirite status or vows, there there is only one mode—or really two: association and a vow. Association is the transfer of an existing legal effect, while a vow is the creation of a new legal effect.
That’s what I also thought to say. Thank you very much for the answers
Very interesting. I’ll look into it.
And what about other legal effects?
Suppose an acquisition takes effect through many different modes (money, barter, document, symbolic transfer, pulling, lifting, etc.).
Or various prohibitory statuses (Nazirite status, vows, etc.).
The question still stands, doesn’t it?