Q&A: A Question Regarding Presumption
A Question Regarding Presumption
Question
Hello Rabbi.
I was just looking into the issue of presumption in the laws of monetary matters, and I was left with a question that is bothering me. Only if the Rabbi has time…
We find several times in the Talmud that a ruling is made on the basis of an assessment of a person's intent. For example:
In Ketubot 78b regarding a "concealment document"; Bava Batra 131b — "one who writes all his property to his wife only made her an administrator," and likewise if he wrote all his property to one of his sons; if he wrote all his property to one of his sons because he thought his son had died, and it turned out he was alive, the gift is void (ibid. 131b); a deathly ill person who wrote all his property to others and then recovered from his illness, his gift is void (ibid. 146b); and more.
And the Rosh wrote in his responsa (section 34, and similarly in section 81, based on Tosafot in Kiddushin 49b) that "matters where there is a compelling presumption even without explicit disclosure of intent, and everyone knows for what purpose he acts, then even if he did not reveal his intent at the time of the act, this is not considered unexpressed thoughts, but we act as though he had made a condition" [and the language of Tosafot, which the Rosh also adopts at the beginning of the responsum, is that "we are witnesses" that this was his intention]. The Rosh brings further sources there for this as well. And so too it is ruled in the glosses of the Rema, Choshen Mishpat 207:4.
At the end of his proofs, the Rosh brings the Mishnah in Bava Batra 146a regarding one who sends gifts to his father-in-law's house, that if he changed his mind and wanted to divorce her, the gifts are returned — unless he ate there food worth a dinar, because "out of affection for the joy of eating, since he ate and drank and rejoiced with them, he waived the gifts" (the language of Rashbam there).
And in the Talmud there: "Rava said: specifically a dinar, but less than a dinar, no." And they further ask there: "We learned 'ate' — what if he drank? We learned 'he' — what about his agent? We learned 'there' — what if they sent to him?"
And I found this difficult: if the logic is that of a compelling presumption, how is it possible to give such precise definitions? Can we really determine that someone who ate food worth a dinar minus a perutah does not waive, while one who ate a full dinar certainly does?! Moreover, surely this varies from person to person (who is more exacting and who less so), and from case to case, and may depend on additional factors that were not mentioned.
We are therefore forced to say that even though the matter is not absolute in reality, the Sages set parameters for it, for otherwise the matter would have no end. But if so, one must investigate: what is the force of those parameters?
At first glance, it is difficult to say that these parameters are a rabbinic enactment, since we do not find this stated explicitly. Furthermore, from the give-and-take of the Talmud it seems they are searching for the precise presumption of waiver, and not trying to trace the boundaries of some original enactment.
One might seemingly say that the force of these parameters is Torah-level, like many parameters we find in Torah law, such as the age of thirteen for maturity, that only from this age is a child considered legally competent and able to buy and sell by Torah law, even though surely the age at which understanding develops is not the same for all children. Since it is impossible to leave such a thing without fixed measures, there are fixed measures. As the Sages said in the Mishnah in Menachot (and in the Talmud, Rosh Hashanah 12a): "All the measures of the Sages are like this: with forty se'ah one immerses, but if the forty se'ah are short by even a tiny amount, one cannot immerse in them."
But such an approach feels difficult and foreign to me: how is the law of waiving engagement gifts different from other laws in the Torah? Are there not other cases in which we are compelled to set parameters? And even if we say that all the cases that had to be tied to fixed definitions so they would not be left without measure were already dealt with by the Sages of the Talmud — were no such cases ever newly created in later generations? Is there no such case today? For example, conditions in an agreement between a company and its shareholders that depend on presumption, where fixed parameters have to be established?
And perhaps the question already applies to the age of thirteen itself, at which a child is considered to have understanding and has valid transactions.
As an aside, I will add: already regarding all the details of the laws of acquisition, the later authorities debated what their source is. If these are details that express full intent, then the same question should be asked there as well. And similarly, I had difficulty with the Talmud in Gittin 32, about the specific formulations that nullify a bill of divorce ("it is null," "I do not want it"), excluding "it is invalid," "it is not a bill of divorce," which are ineffective because that implies it was invalid from the outset, whereas in fact it is a valid bill of divorce. And although seemingly it is certainly true that even one who used wording that does not work intended to say that he does not want the giving of the bill of divorce, still we require wording that is effective.
Answer
I have written several times in the past that there are quite a few discussions in the Talmud and in the commentators that have no halakhic significance. Even the presumption that a person does not pay before the due date could in principle change, and a situation could arise in which people do in fact pay before the due date. So what is the significance of the Talmudic passage in Bava Batra? It teaches us that when there is a presumption, the burden of proof can shift from the claimant to the defendant (the current possessor). That is all. That is the normative-halakhic dimension of the passage, and only that falls under Torah. The question whether a person does or does not pay before the due date is not Torah and has no religious significance. It is a factual question (in psychology). If we want to know the presumptions of our own day, we should go to the psychology department and check what people think and how they behave today, and then apply the Talmudic principle that a presumption can shift the burden of proof.
Indeed, in order to understand properly the strength of a presumption that justifies shifting the burden of proof, we need to enter into and try to understand how strong that presumption was in the time of the Sages, and for that we need to enter into the psychology of their time (not ours). That is why there is instrumental importance, for current Jewish law, in examining the details of the psychological presumption itself (the facts beyond the norms).
So too with many presumptions in the Talmud, all of which, in my view, are examples that one should enter into only in order to understand the halakhic-normative principles. And indeed, the sages of the generations invested effort in this that, in my opinion, is out of proportion, and one may get the impression that these are fixed laws that bind us at all times. That is what leads people to the conservatism according to which the presumption that "it is better to dwell as two" was given at Sinai and binds in every generation, even though today every child understands that a woman is not willing to accept just any partner at any price (a man afflicted with boils, an abusive husband, and the like). Therefore there is also no significance to the various precedents that everyone cites (a woman who fell to levirate marriage before an apostate, or a man afflicted with boils, and so on). Those precedents are rooted in women's attitudes in that time and place, and there is no reason to assume that this attitude has been preserved in our own day.
So we learn that the assumption underlying the question is a very common mistake, one that distorts the halakhic judgment of many good people. In my opinion, the correct approach is what I have described.
Take another example. In the laws of conversion there is an assumption that if a person comes to convert, he apparently truly wants to join. For the Jewish people are "harried and oppressed," etc., and there is no self-interested reason to join. Today this is of course completely different. There is a good reason, namely immigrant benefits and the Law of Return. Therefore that presumption has to change. (And here it is דווקא the liberals who err, when they complain about the burdensome conversion procedures. The mistake above is more characteristic of conservatives.)
And another point regarding conversion: we maintain that a conversion for the sake of marriage is valid after the fact. But again, that is only because in the past it was clear to the convert that although he was not exactly crazy about the Holy One, blessed be He, and the Torah, that is what would be required of him in order to be part of the Jewish community. Today that is of course not the case, and therefore this presumption too has to change.
All the presumptions brought in the question are of this type. They have no force in and of themselves unless we have concluded that they are still valid today. The precedents are not binding, and in some cases are simply irrelevant.
The indicators for presumptions given by the halakhic decisors and in the Talmud are products of their own era, and they have no binding significance today. Anyone who applies them in our time is mistaken (in an explicit Mishnah?) and misleading others.
There can be particular cases in which these things were established as binding measures even if reality has changed. But that is rare, and anyone who claims that this is such a case bears the burden of proof. Forty se'ah in a ritual bath is probably a binding law (although even that speaks of a cubit by a cubit by a height of three cubits, and that depends on the size of human beings, but this is not the place to elaborate).
As for someone who eats food worth a dinar minus a perutah and the like, the questioner wondered how one can establish a general metric, even at a time when that presumption was in fact valid. That is a different question, and the answer is that the Sages need to establish metrics that will allow the halakhic decisor or judge to make a decision even if he has no specific presumption regarding the case before him. That is the meaning of presumptions. But if he does have a clear presumption regarding the case before him, then of course all those metrics do not bind him. And regarding the laws of evidence in monetary matters, Maimonides already wrote (see the beginning of chapters 20 and 24 in the Laws of Sanhedrin), following the Rif, that when the judge is certain what the truth is, he is not bound by the Talmudic and halakhic laws of evidence, despite all the great analysis that we engage in about them in the study hall. That analysis is Torah study, but not the study of practical Jewish law. In practice, that is not what binds. Like the stubborn and rebellious son.
That is also the meaning of the acquisition laws about which he asked at the end. If someone performed a mode of acquisition recognized in the Talmud, but it is clear to us that he had no full intent, then he did not acquire. And if it is clear to us that he did have full intent, then he acquired even through commercial custom (or things acquired by mere speech). The acquisition laws were meant to establish a default framework (a dispositive arrangement, in the language of our cousins the jurists).
And finally, a substantial portion of these laws are Torah-level and not rabbinic. And still, there is no difference. Either way, these are presumptions of the Sages, who estimated when a Torah-level or rabbinic law applies, and their estimate must be examined against reality. Therefore the question whether we are dealing with a Torah-level law or not is not relevant here.
And the fact that they did not discuss other cases is simply because those cases did not come before them, or for some reason did not enter the Talmud. There is no significance to the question whether such a discussion is conducted in the Talmud or not.