Week Five Summary of SBM 2016

This week’s summary is written by Yehuda Gale and Tzipporah Machlah Klapper

This week we learned teshuvot showing how the ideas we were learning were understood throughout the period of the achronim. Minchat Shlomo (Rabbi Shlomo Zalman Auerbach z”l) begins his discussion of unstated conditions from Tosfot Ketubot 47. Tosfot asks why (if some transactions can be undone through unstated conditions = adaata dehakhi) can’t every person who buys a cow and finds it to be a traifa reverse the transaction? Tosfot answers that we know in such cases that the buyer would wish to enter the transaction even if they were not allowed to make such a condition. Minchat Shlomo explains that this is because he entered the transaction aware that the animal might be a traifa, and therefore accepted the risk. He adds that Tosfot isn’t saying that we need to know for certain that he would have been willing to enter the transaction without this condition; even if we were uncertain of his intentions, we would not reverse the transaction, because his claims about his intentions would be “words of the heart,” which do not have legal significance.

Tosfot also asks why gemara Bava Kamma 110, when exploring the effectiveness of unstated conditions, raises the case of a yevamah whose potential yavam has boils (and seeks to void her original marriage to avoid the relationship), rather than the straightforward case of a woman whose husband develops boils. He answers that in that case, the husband’s intentions matter too, whereas the yevamah’s husband is dead and does not care. He posits this as a general distinction between cases where only one party cares and cases where both do.

The case Tosfot is commenting on allows a husband whose wife died after eirusin but before nisuin to avoid paying any ketubah commitments beyond the mandatory minimum because he “wrote it in only order to marry her”. His answer is therefore puzzling; in that case, shouldn’t her daat matter too?! Mishneh LeMelekh suggests that unstated conditions can be considered even in cases of two-sided daat even against the will of one party as long as there is no loss to that party; returning to the pre-transaction state is not considered a loss.

Netivot HaMishpat writes (as summarized by the Minchat Shlomo) that in a case where one bought wine from one’s fellow to sell elsewhere and then wine prices fell everywhere, the original purchase is void because the seller does not lose – the wine would have gone down in price even if it had been with him. Only in a case where the cow becomes a traifa does he lose, because the seller could otherwise have slaughtered or sold it to others, which could not be done in the case of the wine because the price fell before he wine could have reached its intended destination.

Minchat Shlomo is astounded at this because he believes that Tosfot was only talking about a “davar tzdadi” (possibly: one-sided matter, peripheral matter, unusual matter) like traifa and death, but price fluctuations are a case where people do cost-benefit analyses and accept the risk (as a fundamental element of the transaction). He further objects to the entire idea that getting the money back is a case of no loss, because perhaps the price went up for the object he bought or the value of the currency fell.

The Minchat Shlomo suggests instead that there are two categories of umdena. An umdena gedolah is one where we are absolutely certain that he would not enter the transaction had he thought of this possibility. For instance, cases where money was given over on the presumption of a marriage that was ended prematurely through the death of a spouse are so clear-cut that the recipient of the money’s daat is irrelevant – after all, what reason would a father have to give money to his son-in-law once his daughter is dead? He claims this idea is also found in the Node BeYehuda.

This does not apply to the claim of the Netivot, where the umdena is not as strong.  The presumed objection of the seller therefore prevents the buyer from using an unstated condition to reverse the transaction.

But Netivot also claims that the Buyer cannot reverse the transaction once he has had the potential to derive any benefit from it. Why should this be so? There is no such rule if the condition was stated, and we have just said that the other person’s presumed intent is irrelevant. Similarly, Minchat Shlomo points out, Talmud Bava Kamma should raise its question about a yevamah whose husband died after nisuin but before actual consummation, but Tosafot say that the question applies only between eirusin and nisuin!

Furthermore, in every case where a woman dies after eirusin before completing the marriage,  why should we not say that the marriage is undone retroactively? After all, its only effect was to forbid the husband to marry her close relatives!

Minchat Shlomo responds to these difficulties by presenting a new way of looking at unstated conditions. He argues that they are not actually conditions (tnaim) at all! Conditions must be explicitly and formally stated, and the court’s knowledge of someone’s mindset or intentions cannot constitute a condition. However, when the transaction is incomplete – for example, if the purchaser has had no opportunity to derive benefit from the purchase – the court is entitled to consider the presumed or known intent of the parties.

However, Rabbi Meir of Rothenburg (Maharam) famously argued that while gemara Bava Kamma (as he understood it) concludes that women would rather have a boil-ridden husband than no husband at all, women would rather be alone than be married to apostates. In such cases, we therefore should be able to undo a yevamah’s marriage even if she had already completed the marriage with nisuin. This shows that he believed that even complete things can be affected by unstated conditions.

It follows that according to Netivot, parties in civil cases should be able to claim (kim li) that they follow Maharam, and therefore undo even completed transactions on the basis of strong unstated conditions. Their claim should at least shift the burden of proof in a case, and thus let whoever has possession win. To prevent this result, Minchat Shlomo suggests that one cannot claim unstated conditions when the relevant factors were so plausible that you should have mentioned them explicitly, rather only when the relevant condition is very unlikely.

We next saw the Rosh (Responsa Klal 34 Siman 1), who organizes the cases of reversed transactions in the gemara into three categories of tnai (taken from the Ri): transactions which only an explicit tnai can reverse, transactions which require at least explicit revelation of intentions, and transactions where one’s intentions are so obvious that one does not need to explicitly state them.

The Re’eim (Siman 16) lays out a similar triad: an umdena (legal estimation) which is extremely obvious and therefore not referred to as “words of the heart”, an umdena which is less obvious and requires explicit revelation of intentions, and an umdena which is so weak that it requires a tnai. This is the same as the Rosh, except that he assimilates all unstated conditions to umdena whereas the Rosh assimilates them to tnai.

Re’eim concludes that the ability to make umdenas regarding people’s intentions is no longer extant. We therefore cannot make new umdenas and use them to remove money from people, but we can use those referenced in the gemara and also very obvious ones, i.e. those where there is no other thing it could be.  This position is cited with approval by Responsa Ginat Vradim Choshen Mishpat Klal 5 Siman 1 and Responsa Chacham Tzvi in Siman 135.

The final source we looked at was the Rim (Even HaEzer 25). He defines a “clear umdena” as a condition which, had it been raised at the time of transaction, would have been a deal-breaker. How can we know which conditions would be deal-breakers? Where it is normal for one party to accept the risk, such as in the case of buying an animal even though it might be a traifa, there can be no umdena; we will not presume that this party would have demanded a condition unsupported by the market. But how do we evaluate transactions which do not have a defined market practice for sharing a particular risk?

We put forth two explanations of this. Rabbi Klapper suggested that this explanation is indicative of a game theory model where we envision all conditions that any party would want, remove any that contradict, and then see which party would concede on the remaining ones. In this vision, the chazakot used in the gemara to establish daat are assignations of bargaining power. This has the advantage of explaining all cases in the gemara nicely but may not be a sufficiently predictive principle. Further, there is no one in any historical precedent who states this directly.

The other possibility is that the Rim allows unstated conditions only when those conditions are assumed by the market. Thus, the traifa case is one where the tnai is not normal and therefore the buyer cannot get his money back, but the case of wine losing its value before one has the opportunity to sell it is normal and therefore reversible. This has the advantage of being practical and predictable but does not help us deal with new or unusual cases or circumstances. In this vision, the chazakot in the gemara are statements of market expectations.

 

What’s Priestly about Pinchas?

This week’s alumni dvar torah is by Joshua Skootsky

In Parshat Pinchas, Pinchas, the son of Elazar, the son of Aharon the Kohen, is given the Covenant of Peace by God, and the Covenant of the Eternal Priesthood. Why give this to the man who just killed two people?

The “Covenant of Peace,” some explain, relates to how some of the tribal leaders wanted to avenge the death of Zimri, the tribal leader of Shimon.

But, this does not explain why Pinchas should have become more closely associated with the Israelite priesthood. Why does Pinchas get the Eternal Priesthood? How do his actions relate to the Priesthood, so that it makes sense to “promote” him in some way? What is the precise relationship between Pinchas’ action and Jewish Priests that make his actions reflect some Jewish Priestly value?

Consider this scenario:

All of Israel is involved in a tragic, shocking, and violent dispute. Tribal political leaders openly challenge the authority of chosen religious leaders of the Israeli nation. A Priest rises, takes extraordinary action, and a plague comes to an end.

Is this Parshat Pinchas?

It’s also what happens in Parshat Korach, which, chronologically, takes place about 38 years before Parshat Pinchas.

In Bemidbar 17:11, Aharon is commanded by Moshe, “Take the fire-pan and put on it fire from upon the Altar, and place in it incense.”

וַיִּקַּ֨ח אַהֲרֹ֜ן כַּאֲשֶׁ֣ר׀ דִּבֶּ֣ר מֹשֶׁ֗ה וַיָּ֙רָץ֙ אֶל־תּ֣וֹך הַקָּהָ֔ל וְהִנֵּ֛ה הֵחֵ֥ל הַנֶּ֖גֶף בָּעָ֑ם וַיִּתֵּן֙ אֶֽת־הַקְּטֹ֔רֶת וַיְכַפֵּ֖ר עַל־הָעָֽם׃

וַיַּעֲמֹ֥ד בֵּֽין־הַמֵּתִ֖ים וּבֵ֣ין הַֽחַיִּ֑ים וַתֵּעָצַ֖ר הַמַּגֵּפָֽה׃

“And Aharon took, as Moshe commanded, and ran to the middle of the community, and behold, the plague had already begun amidst the people, and he put the incense in it, and atoned on behalf of the people.

And he stood, between the dead and the living, and the plague was restrained.”

(Bemidbar 17:12-13)

The same literary language of restraining the plague is used to describe Pinchas’ actions.

וַיָּבֹא אַחַר אִישׁ-יִשְׂרָאֵל אֶל-הַקֻּבָּה, וַיִּדְקֹר אֶת-שְׁנֵיהֶם–אֵת אִישׁ יִשְׂרָאֵל, וְאֶת-הָאִשָּׁה אֶל-קֳבָתָהּ; וַתֵּעָצַר הַמַּגֵּפָה, מֵעַל, בְּנֵי יִשְׂרָאֵל.

And he went after the man of Israel into the chamber, and thrust both of them through, the man of Israel, and the woman through her belly. So the plague was restrained from the children of Israel. (Bemidbar 25:8)

Therefore, the outcome of Pinchas’ actions, of a Priest taking dramatic action to save the entire people from a mysterious plague, fits into this model of the ideal Jewish Priest, Aharon the Priest, Pinchas’ own grandfather.

There is an opinion in the Gemara (Zevachim 101b), which Rashi quotes here in Parshat Pinchas, that Pinchas wasn’t a Kohen until he received the Priesthood retroactively. Originally, the Priesthood was only given to Aharon and his sons, and all of their future progeny. Pinchas, being already born, missed the train on the Priesthood, when it was first inaugurated during the first and second years of the Jews in the Desert. Through his actions, however, this personal exclusion was overcome through special divine fiat.

However, this opinion is that of R’ Elazar, quoting R’ Chanina. Implicitly, in the Gemara, the opinion of the silent majority of Rabbis is not like this. Furthermore, Rav Ashi takes the opinion that Pinchas only became a Kohen when he made peace between the Tribes at the end of Sefer Yehoshua, Chapter 22. Tosafot in Zevachim understand that Rav Ashi cannot be taken literally, but rather, citing Divrei haYamim, prove that the promise of the Priesthood was fulfilled by making the children of Pinchas the Kohanim Gedolim. In support of this position, Tosafot cites the Sifrei, which lists hundreds of Kohanim Gedolim during the First and Second Temple periods, all descendents of Pinchas. It seems also, in my opinion, that Rashi on the Gemara understands Rav Ashi like Tosafot, which is in contradiction to his comments to Parshat Pinchas.

Therefore, according to both the anonymous silent majority, and Rav Ashi, Pinchas did not become a Kohen in Parshat Pinchas – he simply received a blessing for him and his descendents that they would serve as the Kohen Gadol.

But why? I’ve given some of the literary evidence for how Pinchas’ actions demonstrated that he was emulating the decisive leadership of his grandfather, the Kohen Gadol, the High Priest, Aharon, who represented the archetypal high Priest. Since Elazar, Aharon’s son, is Pinchas’ father, and the designated replacement of Aharon after he died, Pinchas is continuing in a family tradition of Priesthood, and demonstrating intergenerational readiness to “take the reigns” of the complex social role of High Priest.

Joshua Skootsky (SBM 2012, 2015) was a Senior Fellow of the CMTL.

What’s So Bad About Avoda Zara?

This week’s alumni dvar torah is by Rivital Singer

I’ve always had a problem with Judaism’s obsession and fear over avoda zara. It is considered one of the worst sins there is (even for non-Jews), and is more severe than many many mitzvot that seem to me to be much more important.

As a believing Jew I agree that belief only in one G-d is what’s right, but as a liberal modern member of the twenty first century I also believe in accepting other people’s opinions. I tend to lean towards the views expressed in Neviim that mitzvot bein adam l’chaveiro –(between man and man)– take precedence over mitzvot bein adam l’makom –(between man and G-d), and in Chazal that “derech eretz kadma latorah”.

So why is avoda zara considered so awful that the punishment for it is death, for Jews and non-Jews alike? Why do we see it as necessary to get rid of other nations living among us who worship avoda zara?  What are we so afraid of that even someone who is held at gunpoint is not allowed to worship an idol?

This week’s parsha tells the story of Bilam, the non-Jewish prophet of G-d, who is called upon by the Moabite king Balak to curse the Jews so that they don’t conquer him. Bilam says that he’ll only go if he gets G-d’s permission, but he doesn’t take G-d’s no for an answer; he tries again as the Moabites keep raising their offer.  Finally he gets permission to go so long as he speaks only the words G-d tells him, and he’s on his way.

Then there’s this really crazy science-fiction-like part where an angel stands in Bilam’s way multiple times, but only the donkey notices. Bilam hits the donkey for stopping in the middle of the road three times.  G-d “opens the donkey’s mouth” and she speaks, asking Bilam why he keeps hitting her, and finally Bilam sees the angel before him. He offers to return home, but the angel says he has permission to go – again, so long as he only speaks the words G-d tells him.  

Bilam goes to Balak and they sacrifice animals for G-d hoping that he’ll let Bilam curse the Jews. Every time it doesn’t work, they don’t take no for an answer; they move on to a new place with new animals. They sacrifice seven animals every time, as seven is a very powerful number, and they try to go to places and use animals that they think will please G-d.  But every time only blessings come out of Bilam’s mouth.

The story of Bil’am ends here, but the parsha continues by telling how the Jews started worshipping avoda zara.  This opens the story of Pinchas, and therefore should begin next week’s parsha.   Why is this very short passage included instead at the end of Balak?

My claim is that the parsha puts these stories together to teach us about the dangers of Avoda Zara.

I once asked my dad why Avoda Zara is seen by the Torah as so awful, and he told me that it might not be so much about the fact that one is worshipping a being other than G-d, but rather the culture that comes with that. I asked him exactly what he meant but he said he didn’t think he could compare it to anything I would understand since he doesn’t believe the avoda zara culture still exists today.

Reading the story of Balak and Bilam though, I think I may have gotten a glimpse into this culture. Bilam is a monotheist who believes in our G-d, but I think it’s safe to assume that he is immersed in a culture that does not. When asked to come curse the Jews, he understands that he needs G-d’s permission, but he does not understand the moral problem with Balak’s request. Therefore he keeps asking to go, and believes that G-d may change His mind.  When he gets to Balak,they uses every mystical gadget they know; they use powerful numbers and special designated places and other such means to try and please G-d so that He’ll do what they want.

That is how avoda zara works. The goal is to try and please the gods, and then they in turn will help humans. The gods are looking to fulfil their own desires rather than create a just society. Therefore, if one pleases them, they will help him in return.

That is not how G-d rules the world. G-d wants us to think about our actions and not just about the ways to please Him. He wants us to have our own moral compass and see that what we’re doing is wrong without Him having to always tell us straight out that we’re not allowed. His ruling of the world is one of justice, and therefore we can’t change His mind by means of mysticism. If there’s a way to “sway what G-d wants” it is to approach Him on a moral level. Convince Him that what you’re doing is right, not that it’s in His best interest.

According to this reading, avoda zara is about feeling that one can do whatever they want so long as they please the right G-d, rather than knowing that actions have consequences. On the other hand, G-d is not a little kid that can be swayed when you give him candy or sacrifice things you love. He is a father and a king who cares for the wellbeing of his people, whether or not they are doing exactly the right thing to please him at the moment.

The story of Bilam shows that this cultural destruction doesn’t only affect the people who buy into the religion, but also other people who are immersed in the culture and might begin to imitate their ways. If this is really the problem with avoda zara, we have a lot to work on even today, when there don’t seem to be nearly as many idol worshipers. We need to constantly be aware of our actions and see that we’re doing things for the right reasons. We need to double and triple check that our speech and our actions are motivated not by our desires or the desires of those above us in the hierarchy, but by what we think is right and moral and good.

Rivital Singer (Midreshet Avigayil 2015) just completed her year of pre-army Mechina in Israel.  

Week Four Summary of SBM 2016

This week’s summary is written by Ariel Kelman and Shira Krinsky

Bava Batra 98a relates two statements of Rava, the second of which reads as follows:

One who accepts wine to travel with it to a faraway market, and before he gets there the price of wine falls – [the one who gave him the wine] accepts the loss.

The case is one where a wine seller gives a barrel of wine to a reseller who will travel to sell the wine for a profit, which will be split between them.

This ruling is mentioned in Rambam Hilkhot Mekhirah 17:5) and Shulchan Arukh Choshen Mishpat 230. Netivot HaMishpat finds this ruling extremely problematic – how could it be that the profits would be split, yet the responsibility for any losses rests with the original wine-seller? This is not the way people actually engage in business!  Furthermore, Rav Moshe Isserles (RMI) makes no comment here, indicating that he agrees, but in Choshen Mishpat 176 he states the following:

One who accepts merchandise to sell it elsewhere and split the profits, and within (alternatively: before) the time of travel, the merchandise loses value here – we evaluate the value of the merchandise [for the purpose of recouping the cost by the original seller] at the time at which the reseller begins travelling, not at the time he received the merchandise.

Netivot argues that we can infer from here that after travel has begun, the merchandise is under the responsibility of the reseller – and therefore price fluctuations do not impact the original seller, who is still entitled to the value of the merchandise as of the time the travel was begun (as long as there is a profit, even if diminished, that is split equally).1 Yet this contradicts the ruling in 230 that so long as the price dropped before the reseller reached the final destination, the original seller is responsible for any price fluctuations, presumably because the wine is still “his.”

To resolve this contradiction, Netivot explains that RMI in 176 is based on Rabbeinu Yerucham’s interpretation of Rava, which he understands to be saying that the time at which transport begins is the determinant.  Before that time, the merchandise is under the jurisdiction of the original owner, who bears the cost of price fluctuation (whether the price goes up or down), while afterwards the two of them share equal responsibility for both gains and losses.

Choshen Mishpat 230, however, is based on Rashbam’s interpretation of Rava.  Rashbam says that Rava is discussing a case of a universal price drop rather than a local one. In the case of  a local price drop, however, the cost of the price fluctuation would be split between the parties.

Netivot builds this up based on the explanation of Tosfot Ktuvot 47b ד״ה שלא כתב לה אלא לכונסה as discussed in Mishneh L’Melekh (Hilchot Zekhiah 6:1). Tosfot explains that one can get out of transactions by claiming an implicit condition only in cases where the transaction was dependent on only one party, such as when dedicating a sacrifice to the Temple. Mishneh L’Melekh adapts this explanation of Tosfot and says that one can annul a contract on the basis of an implicit condition only if the other party will not thereby sustain a loss as a result of the transaction, but rather will merely be restored to the situation that he would have been in had the transaction never been made.   

Netivot then notes an issue – if one can annul a transaction whenever the other party will not thereby be subject to a more severe loss than if the transaction had never occurred, then if one buys a cow that subsequently dies, he should be able to undo the transaction – for if the transaction had not occurred, the seller of the cow would now have a dead cow!? To resolve this problem, he makes a further distinction regarding whether or not the buyer has had the potential to benefit from the transaction. If he has had the potential to benefit from the transaction (e.g. had the cow in his possession for some time), even if he has not actually received any benefit, he is not able to annul the transaction. In Choshen Mishpat 230, where the reseller can by agreement sell the wine only in his market destination, if the price drops before he arrives, he can undo his transaction – leaving the original seller to bear the cost of the price fluctuation. However, when one buys a cow that subsequently dies, once one had the opportunity to gainfully use the cow, one can no longer undo the transaction.

Returning to the original contradiction between the Choshen Mishpat 230 and 176, Netivot attempts to explain why the case of a universal price drop (Rava as understood by the Rashbam and brought in Choshen Mishpat 230) differs from the case of a local price drop (Rava as understood by Rabbeinu Yerucham and brought by RMI in 176). In the case of a universal price drop, undoing the transaction simply places the original seller back where he would have been had the transaction never taken place – with a barrel of wine that had lost value. If there is a local price drop, however, undoing the transaction would indeed place the original seller in a worse position – he could now sell the wine at a higher price in his original location if he had the wine (i.e. if the transaction had not been made). Once the buyer sold the wine for cheaper in the distant market, however, this is no longer a possibility.

Netivot then discusses a practical case that he had ruled on which touches upon this issue. There was a war in a particular country, and the king ordered linen for uniforms in anticipation of enlarging his army. To that end, the king made contracts with many of his subjects. One subject, Reuven, sub-contracts to Shimon for the linen, showing him the contract from the government. Before Shimon fulfills his contract, however, the king loses the war and cancels all of his contracts for linen, resulting in a massive devaluation of linen. Shimon, however, wants to hold Reuven to his contract for all the linen at the original price. Netivot ruled in this case that Reuven did not have to uphold his contract with Shimon, as it is similar to a case of a cow which dies before the buyer has any opportunity to derive benefit from it, in that the buyer had no opportunity to gain from the transaction, and the seller is not placed in a worse position than he would have been had the transaction not been made (as the price drop was universal).

It is interesting to note some of the broader perspectives of the Netivot. For example, while he holds that a loss to one party prevents the other party from undoing a transaction by claiming an implied condition, Netivot does not consider opportunity costs to be losses for this purpose.. While in modern Western contract law, damages can be awarded for a lost opportunity (such as an alternative investment), or expectation damages (ie. requiring the breaching party to put the non-breaching party in the position they would have been had the contract successfully been fulfilled), the Netivot does not recognize such principles (and indeed, they have only been developed in Western law since his time).

The Netivot himself notes an odd outcome of his resolution of the contradiction between the RMI 176 and Shulchan Arukh 230 – the rulings turn out to be based on mutually exclusive explanations of Rava on Bava Batra 98a. The explanation of the Netivot solves the practical contradiction with regard to the law, but the rulings remain mutually exclusive from a textual point of view. This raises methodological issues – to what degree are we bound to provide a consistent understanding of our legal texts? Can we accept all the rulings of several authorities, despite the fact that each would deny the basis (though possibly not the ruling itself) of the other? On the other hand, perhaps we should incorporate the best policies so long as we find appropriate authorities as support, which seems to drive the Netivot’s analysis of the sugya. All the Netivot notes is that both rulings are sound law, and both can therefore be incorporated into our legal system, leaving us to consider any broader implications of his methodological approach.

 

Notes:

1. If there is a loss, as the final resale price has dropped below the worth of the merchandise when the transport was begun (say from 100 to 80), then that loss is split equally – the original owner would get the full 80, as well as 10 from the reseller – thus each loses 10. This is the case referred to by the language of the Netivot, “חל ההיזק על שניהם”. Netivot does not care whether the relevant price fluctuation occurs in the original city or at the point of final sale.

 

 

Week Three Summary of SBM 2016

This week’s summary is written by Leora Balinsky and Levi Mastrangelo

This week in the SBM our focus was on the halakha of commercial contracts. Specifically, we examined the sugyot in which a party wishes to undo a contract because of unexpected/unintended circumstances and the relevant rishonim thereon. The underlying tension in all of these cases is the desire to have a legal system which allows for the reversal of contracts whose enforcement would have pernicious outcomes without destabilizing the economy by undermining transactional commerce. The following two cases from the Gemara illustrate these competing values:

1. The Gemara in Bava Batra (קלב ע״א) brings a baraita in which a man’s son goes on a long trip and then the father hears that he’s dead. The father then writes a document designating all of his property to a friend as a gift. Later, the son returns, surprisingly alive. There is a makhloket in the baraita as to whether the friend still receives the property (i.e.–whether the father’s document is still valid). R. Nachman indicates that we poskin like the opinion that invalidates the father’s document on the grounds that, had he known his son was still alive, he would not have promised his property to the friend.
2. The Gemara in Kiddushin מט: presents a case as follows: A man sells his property with the intention to make aliyah. At the time of the sale, he said nothing about his conditional intent. Rava rules that the sale would stand based on the halakhic principle that he introduces, “דברים שבלב אינם דברים”—unstated thoughts are insignificant.

Much of our time this week was spent fleshing out two of prominent Tosafist Rabbeinu Yitzkhak’s major chiddushim, which, taken together, form a unified theory of contract law with which to navigate the Gemara’s myriad cases.

The first of Rabbeinu Yitzkhak’s chiddushim is brought by tosafot in response to Case B from about (קידושין מט ע״ב ד״ה דברים שבלב) They explain that from the language of the Gemara, it seems that the claim of conditional intent was not effective because it was not expressed explicitly during the transaction, but that in the event that he had stated his intention at the time of the transaction, the transaction would be undone if the conditions were not met. This seems to contradict a Mishnah later in Kiddushin that states that for a conditional statement to hold any weight, one must make a formal conditional claim that makes explicit the converse of one’s claim—e.g. “If X happens, I will do Y. If X does not happen, I will not do Y”—called a double condition (תנאי כפול) How is it then that a simple statement of one’s intention would have been sufficient in Case B?

In response to this problem, Rabbeinu Yizchak posits that we need to make categorical distinctions between three different types of cases:

1. In which the claimed condition is so peculiar that it can only be substantiated by a formal condition.
2. In which the claimed condition is sufficiently reasonable that it could be substantiated by circumstantial evidence (e.g. Case B, in which an informal statement was made)
3. In which the claimed condition was so obvious that it can be substantiated even without circumstantial evidence.

The second chiddush of Rabbeinu Yitzkhak is in establishing the boundaries of the latter category. This chiddush is brought in response to the Gemara in Ketubot (מז ע״ב ד״ה שלא כתב לה), which brings a case in which a woman is divorced or widowed between kiddushin and nissuin. Rebbi Elazar ben Azaria rules that she has no claim to the tosefet ketuba (an optional, negotiated sum of money) because he “only wrote it on condition that the marriage be consummated.” This ruling seems to generate a problematic extrapolation: any person should be able to reverse any transaction in the event of a clearly unpleasant outcome—e.g. “I never would have bought your cow if I had known it would get sick and die within the week”—thus destabilizing transactional commerce. Rabbeinu Yitzkhak solves this problem by introducing risk-benefit analysis: in the cow case, the benefits of owning the cow justify the risk of its untimely death. Contradistinctively, in the Gemara’s case, the benefits of pre-nissuin marriage do not justify the risk of having to pay out the tosefet ketuba. The test for this is whether, had the risk been mentioned at the time of sale, the relevant party would have gone through with the transaction.

One of the key assumptions of Rabbeinu Yitzkhak’s chiddushim is that they are driven by a default assumption that all halakhic commitments function in the same way and can therefore be undone using the same mechanisms. Left unqualified, this assumption would radically destabilize commerce; the Gemara allows people to extricate themselves from a wide array of commitments by claiming unstated conditions. Tosafot (כתובות מז ע״ב ד״ה שלא כתב לה) solves this problem by distinguishing individually contingent commitments—where the economy isn’t put at risk—from transactional commitments.

A fascinating debate emerges between the Maharam miRotenberg and the Ri’az about whether gifts are single-sided or double-sided transactions. The Ri’az (פסקי ריא״ז כתובות פ״יא ד״ה אלמנא ניזונת) takes the position that gifts are single-sided; we don’t care about the intentions of the receiver because he would take the gift under any circumstances. The Maharam miRotenberg, however, contends that the reaction of the receiver is a significant factor in the transaction (חלק ג סימן שטו). He argues that the giver gives the gift in order to improve the disposition of the receiver toward him. Thus, since the receiver would be less pleased if he knew that the gift were conditional, the gift cannot be un-given through an unstated condition.

Fear of Abandonment

This week’s alumni dvar torah is by Rabbi Jonathan Ziring

Thirty-eight years separate Parshat Korach and Parshat Chukat.  In the second post-Exodus year, G-d sentenced that entire generation of adult males to death for the sin of the Spies.  In Korach, we witness the final rebellions of that first generation – that of Korach and his followers, and the subsequent attack on Moshe for allowing those sinners to die.  Finally, after the miracle of the flowering staff of Aharon, the people seem to stop rebelling and accept their tragic fate.

וַיֹּֽאמְרוּ֙ בְּנֵ֣י יִשְׂרָאֵ֔ל אֶל־מֹשֶׁ֖ה לֵאמֹ֑ר

הֵ֥ן גָּוַ֛עְנוּ אָבַ֖דְנוּ כֻּלָּ֥נוּ אָבָֽדְנוּ׃ 

כֹּ֣ל הַקָּרֵ֧ב ׀ הַקָּרֵ֛ב אֶל־מִשְׁכַּ֥ן יְהוָ֖ה יָמ֑וּת

הַאִ֥ם תַּ֖מְנוּ לִגְוֺֽעַ׃

(במדבר פרק יז, כז-כח)

And the children of Israel said to Moshe:

“Behold, we have perished!  We are lost.  We are all lost.’

“Anyone who approaches the Mishkan of G-d will die.’

Have we stopped perishing?” (Bamidbar 17:27-28)

These are the last words we hear from that generation.  Parshat Chukat is the story of their children.

However, it feels like we are back at the beginning of the journey.  This generation also faces an early water crisis.  And the first thing we hear, is

 וַיָּ֥רֶב הָעָ֖ם עִם־מֹשֶׁ֑ה

וַיֹּאמְר֣וּ לֵאמֹ֔ר

:’וְל֥וּ גָוַ֛עְנוּ בִּגְוַ֥ע אַחֵ֖ינוּ לִפְנֵ֥י ה

(במדבר כ,ג)

The nation fought with Moshe

Saying

“if only we would have perished with the perishing of our brothers before

     G-d.” (Bamidbar 20:3)

The choice of words implies, as R. Bechaye notes, that they are not simply saying that they would rather have died in any way other than of thirst. Rather, they express the wish to have died with their parents’ generation.  Netziv in Haamek Davar argues that they were specific as to their preferred death.  “We would rather have had our bodies burned and made into ash like the 250 people” of Korach, than died here.

The Torah is silent about what happens during the thirty-eight years of wandering.  We read nothing of the experience of wandering in the desert, neither for those fated to die nor for those destined to survive.  For the reader of Chumash, the story of Korach flows almost uninterrupted into the narratives of the final year in the desert. 

What is surprising is that at some level this seems true for the Jews as well.  When faced with a new crisis, all they can do is wish that they had died at the beginning of the journey. Why?  What about that tragic moment still captures their imagination?

Perhaps the key is to examine why they specifically mention the fiery deaths of Korach’s 250 would-be priests, rather than the overall death sentence of their parents’ generation, or the earthquake that swallowed Korach. 

Here we can ask a similar question about their parents: why do they despair only after the flowering of the staff of Aharon? 

Rabbi Yoni Grossman notes that even after the 250 men died while bringing the ketoret, the people still doubted that the rebellion against Moshe had been wholly unjustified.  They accuse Moshe of being responsible for killing the “nation of G-d”, rather than taking their punishments as evidence that G-d had sided with Moshe and Aharon. They refused to accept that there were limitations in spiritual expression.  It was only after the miracle of the flowering staff, meant to emphasize that Aharon was the designated priest, that they realized that G-d has indeed placed limitations on who could approach Him and how.  Hence, they gained a renewed fear of the holy, of the Mishkan.

R. Yair Kahn argues slightly differently.  By arguing that “the whole nation was holy”, Korach’s supporters challenging the integrity of the entire Machaneh – the encampment of the Jews, which was built on the assumption that approach to the Mishkan must be regulated.  By arguing that all were equally holy, they called into question the logic of the concentric circles separating the people from G-d.  The punishment was that G-d in fact brought His spirit to rest within the camp – but when G-d rests in the camp, there is no way to protect those who are unworthy.  The rebels faced the same punishments as Nadav and Avihu, who had also thought they could freely approach G-d.

However, in the terror of facing the divine, there was also comfort.  G-d was there, and would remain with them throughout the desert.  Though the generation who left Egypt would slowly die, they would do so knowing that G-d was with them.  He provided them with food and water.  As Moshe notes, when the Jews first complained about the lack of water, they were really wondering “is G-d in our midst or not” (Shemot 17:7). Having food and water was thus a positive answer to that question.  Yes, G-d is here, even if he is punishing us. 

Now, however, for the first time in almost forty years, there is no water.  And the new generation panics – is G-d abandoning us as we enter the land?  If He is – we would rather have died “with our brothers.”  Those consumed by G-d’s fire at least knew G-d was with them. 

The new generation goes through the same struggles as their parents, doubting whether G-d is truly among them.  They lack water in a place with a similar name (Masa UMeriva and Mei Meriva) and complain about the manna.  They also reach some of the same heights – singing a song to G-d introduced by Az Yashir and miraculously crossing a body of water. 

But this time they slowly learn to deal with the notion that while G-d is with them, His presence is not always open.  He will provide food for them, but by sending rain, not manna.  He will help them defeat their enemies, but only if they fight.  No longer will they be instructed to “stay silent” watching while “G-d fights for you against Egypt.” 

Success in the war against Amalek was also predicated on the Jews’ participation, but that was an introductory exception in an age of pure miracles.  This generation’s primary experience is of relying on G-d, recognizing his presence and participation in human events, while not expecting constant displays of his power.  By expecting more natural, and therefore hidden, expressions of G-d’s will, rather than immediate and immanent ones, they learn to appreciate the benefits of a world where G-d leaves more room for humanity.  

The struggle is not unique to that generation.  Rather, they were the beginning of a new stage in religious life, where we struggle to see G-d’s hand, while celebrating the responsibility that He has left us by making His involvement express itself more naturally.   

Rabbi Jonathan Ziring is currently the Sgan Rosh Beit Midrash of the YU-Torah miTzion Beit Midrash Zichron Dov of Toronto.  

http://www.etzion.org.il/en/two-complaints-nation-and-re-appointment-aharon

http://www.hatanakh.com/sites/herzog/files/herzog/Hukkat%20-%20Rav%20Yair%20Kahn.pdf

 

Week Two Summary of SBM 2016

This week’s summary is written by Yoni Zolty and Yakov Ellenbogen

In several places, the Gemara suggests using the claim of “adata dehachi” as a way of retroactively disqualifying a marriage or divorce contract (gittin). Thus, for instance, a husband can claim that when he divorced his wife, the divorce rested on certain conditions he had assumed at that time. While those conditions were unstated at the time of the divorce, the husband now claims that because they failed to materialize the divorce should retroactively be invalidated.

The claim “adata dehachi” allows marriage contracts to conform to the expectations of the respective partners. Marriage partners can now be assured that the legal agreements they form–in this case, a divorce contract–will take into account their conditions and reservations. Thus, for instance, the Gemara in Yevamot 65a presents a case of a man who divorces his wife because he believes that his wife is barren, but would prefer to remain married otherwise. Although, he may not have stated explicitly his assumption and qualification to this divorce document, the claim of “adata dehachi”–that he would not have divorced her had he known that she was able to reproduce–provides him a legal mechanism of expressing his regret and retroactively annulling the divorce. Thus, on the one hand, the advantage to the claim of “adata dehachi” is its ability to allow one to express his unstated qualifications for a divorce document.

However, these qualifications were unstated at the time of the divorce. They may have been implicit and obvious to the husband, but they were not clear to his wife or to the Beit Din. This raises several critical issues. First, there is an epistemological problem–how do we determine what were these implicit conditions? We obviously can’t just take the husband at his word, so how do establish these qualifications? The rishonim discuss determining a person’s implicit conditions based on a presumption of the husband’s motives for the divorce and debate in which scenarios these presumptions are justified; i.e. what type of umdanas (established guesses) can be used?

Moreover, the bigger issue in the sugya is that claims raised at a later date which would retroactively annul a divorce, may have disastrous consequences for the woman and her potential children from a second marriage. The Gemara, astounded with the possible implications, asks whether her children would be mamzeirim (bastards)?

Thus, these two opposite perspectives to the claim of “adata dehachi”–its potential benefits and disadvantages–affect the borders and limits to the claim and determine the situations in which the Gemara, and subsequently, the rishonim, are willing to allow the claim.

These issues may likewise determine whether the claim of “adata dehachi” can be used in other scenarios besides marriage contracts. Can we extend this legal principle to general contract law? In general, the sugyot try limiting the use of “adata dehachi” in gittin as much as possible. The question is whether these limitations would also extend to contract law where there may be more advantages to not requiring all tena’im (conditions) to be stated explicitly and the potential negative consequences may not be as calamitous.

The sugya surrounds four scenarios where a husband divorced his wife and would like to annul the get after discovering that he gave it on false premises:

A. His wife is barren and he later discovers that she is capable of childbirth (Yevamot 65a).

B. His wife is incapable of having regular menstrual periods and she later begins to have regular periods (Nidah 12b).

C. His wife has a “shem ra”–a bad reputation, and he later discovers that her shem ra was baseless (Gitin 45b).

D. He believes his wife is an aiylonit (incapable of undergoing puberty) and she later undergoes puberty

The gemara presents different ways of preventing retroactive annulment of divorce for each of these cases, and it is not clear why these differences need to exist. The rishonim struggle to explain these distinctions and devote much ink explaining why the gemara gave different explanations as to why the divorce remains valid in each situation.

One useful tactic to better understand the distinctions between the above cases suggested by the rishonim is to create a useful theoretical framework to analyze the cases. Rabbi Klapper suggested that there are three ways to categorize information and when one has access to it:

1. The information is true now and accessible, but you personally are not aware of it
2. The information is true now but is currently inaccessible and can only be accessed at a later time.
3. The information is not true now, but will be true later.

Thus, for instance, in the case of the woman who after the divorce begins to have regular periods, the information that she will have regular periods in the future is both inaccessible at the time of the divorce, and is also nonexistent (it will only become true in the future). It therefore belongs properly within category (3).

In contrast, category (2) occurs when the information was true at the moment of the divorce, but was simply inaccessible and unknowable. Thus, if a woman is considered to be infertile but after a divorce has children, this new information was always true (the woman was always fertile), but simply unknowable at the time of divorce.

In category (1) the knowledge was accessible and existent at the time of the divorce, but the husband was not aware of them; for instance, in the case of a husband who does not wish to investigate whether his wife was an aiylonit. The information was accessible–he could have investigated whether she could undergo puberty, he just didn’t put the effort necessary to find out.

This conceptual framework can be used to understand the chilukim suggested by Tosfot (Yevamot 65a s.v. iy ihi) between the cases. In the first case, Tosfot wishes to distinguish between the case where the husband assumed that his wife was incapable of bearing children (case A) and the case where the husband assumes his wife is an aiylonit (case D).

 וי”ל דהתם … כיון דלא חשיב לבדוק יפה בסימני אילונית גמר בדעתו לגרש בכל ענין … אבל הכא אין בידו לבדוק 

Tosfot suggests that in the case of an aiylonit the husband could have investigated whether she was indeed an aiylonit. Had he really wanted to divorce her only if she remained an aiylonit then he should have first checked to verify that she indeed was an aiylonit before divorcing her. The fact that he didn’t check, implies that he in fact reneged on this qualification and was willing to divorce her irrespective of her status as an aiylonit. Conversely, in the case of the woman who is unable to bear children, because the husband had no way of verifying this information, his implied condition is considered valid and can be used to undo the divorce.

The difference between these two cases can be better appreciated by placing them within the categories developed within our conceptual framework. The case of an aiylonit is the type of information which one could have had right now but was too lazy to check–type (1), while the case of a woman unable to bear children is the type of information which was impossible to ascertain at the time (type 2). Tosfot is effectively arguing that information of the type (1) is considered invalid grounds for retroactively dissolving a divorce, while information of type (2) is a valid reason for retroactively undoing a divorce. Since in case A (that of a woman unable to bear children) the divorce can be retroactively annulled, the gemara must give another reason for why the divorce is not retroactively cancelled, namely that ‘[we claim] she has only now been healed [while at the time of the divorce she was indeed unable to have children]’.

Likewise, Tosfot makes a similar distinction between the case of an woman who is unable to bear children (case A) and a woman who has a bad reputation (case C).

 דהכא לא שייך קילקולא דאמרינן השתא הוא דברייתא ובשעה שגירשה לא היתה ראויה אבל בשם רע ונדר ואילונית איכא קלקולא כשנתגלה לבסוף שהשם רע היה שקר ולא היתה אילונית גם מתחלה דאם היתה לא הוה בריאה לעולם ונדר נמי כיון שיכול להפר כאילו לא היה נדר

Tosfot argues that one cannot annul a get in the case of a woman who is unable to bear children because she has undergone a physical change and while she is now capable of giving birth now, she truly was not capable of doing so before the divorce. Conversely, in the case of the woman whose bad reputation is proven to be baseless, even originally the bad reputation was baseless–there was just no way of ascertaining that until the future, and therefore one can annul the get.

Once again, these cases can be placed within our conceptual model. The case of a woman who had undergone a physical change and can now give birth is of type (3). The information that she was able to give birth before the divorce was not only inaccessible but false–she truly was unable to give birth at that time. In contrast, in the case of the woman who is believed to have a bad reputation, the fact that the bad reputation was baseless was always true and therefore is of type (2). Tosfot is thus arguing that information of type (2) is considered valid grounds for divorce while information of type (3) is not. (The reason that the case of the woman who was unable to give birth switched from type 2 to type 3 is because the Gemara changes its assumption about the details of that case. This is related to the gemara’s answer of ‘she has now been healed’ mentioned above.)

Thus, using this conceptual model we were able to explain some of the distinctions that Tosfot makes between the cases. These distinctions are important because they provide guidelines as to when claims of implied conditions are considered valid and for what types of information we allow implied conditions instead of requiring that they be expressed formally and explicitly during a divorce.

Korach and The Failure Of Meritocracy

This week’s alumni dvar torah is by Rabbi Avraham Bronstein

Imagine a nation run as a meritocracy in which leaders rise to the top as they prove that they are brighter, more motivated, and possess a greater sense for achieving the common good. Things start well – there is a period of rapid growth and development, as everyone seems to be sharing the rewards of the superior decisions and leadership coming from what is, by now, a trusted elite. Then, seemingly from out of the blue, something goes very wrong. The entire leadership makes a an epic misjudgment so out of line with their reputation as the best and the brightest that the people assume they were collectively guilty of criminal negligence, if not outright corruption. As the grim, full reality of the disaster sets in, it becomes clear that all of the previous gains have essentially been erased, that an entire generation may well be wasted.

Now imagine that, through it all, the same leaders remain in charge, demanding the same levels of trust and of faith as though nothing had happened. We might naturally expect the rise of popular movements to voice the people’s loss of confidence in the status quo. This scenario actually happens quite often. In 2010, their motto was, “Don’t tread on me.” In 2011, they chanted, “We are the 99%,” In 2016 they rally behind “Make America great again,” and in our parashah Korach boldly asserts “The entire community is holy, and God rests among them.”

The Midrash describes a Korach who is not so much making a principled political or spiritual argument, but instead cynically manipulating the masses to further his own personal ambition. In one interpretation, Korach was slighted by the appointment of his cousin Elizaphan as chief of the Levite division of Kohathites. “Therefore will I now stir up rebellion against Moses, and overthrow all institutions founded by him.” We do not have to look far to find contemporary parallels.

However, according to Rabbi Mordechai Yosef Leiner, the Ishbitzer Rebbe, Korach was actually correct, and perhaps even made his argument in good faith. His downfall was not objecting sooner, when his own tribe of Levi was itself given rights and responsibilities beyond those of the typical Israelite.

Citing Proverbs 20:26: “The wise King scatters (‘mezareh‘) the wicked, and turns the wheel (‘ofen‘) over them,” the Ishbitzer explains that God had already placed the wreath (‘zer‘) upon Korah and his followers, and thus had already elevated their status. As a result, God turns their own traits (‘ofen‘) against them. In the end, Korach’s position of privilege undermined his egalitarian message.

Looking at the Biblical narrative, the meritocracy had indeed failed. The Israelites had encountered one setback after another on their short journey from Egypt. Most recently, the leadership fell right into the sin of the spies, which Moses and Aaron never saw coming, dooming an entire generation to death in the wilderness.

Most concerning, perhaps, the only person who could force Moses to confront the enormity of the breakdown that had occurred and articulate the loss of confidence that the people had in their leaders and institutions was himself a leading member of the Levite tribe, a part of the ruling elite. The problem was not necessarily Korach’s ambition, his jealousy, or his ideology. Korah’s followers are described as “princes of the community,” reinforcing the idea that the only people who had the ability to really say something about the failure of leadership were themselves part of the problem. Korach had the right idea, yet at the same time he totally missed the point.

In Twilight of the Elites: America After Meritocracy, Chris Hayes makes the point that an ongoing, competitive meritocracy almost automatically creates a chasm between the elite and the masses, the rulers and the ruled. From within what was once called an ivory tower, but is now called an echo chamber, interacting only with others who are very much like them share their interests and concerns, the elite, over time, become less elite. Their judgments are less reliable and their grasp on reality is shakier – even as they consolidate ever more power and influence. Moses lived alone, near the Tabernacle and far from mainstream Israelite society, where he most regularly interacted with God and his appointed elders. It is perhaps not coincidental that the sin of the spies almost directly follows the appointment of an additional layer of bureaucracy explicitly designed to cushion Moses from the people and their concerns.

In the end, of course, Moses is re-validated and the status quo is preserved, but something significant does happen in the aftermath of the episode. According to most interpretations, Korach’s insurrection took place immediately following the sin of the spies, in the second year following the Exodus. From here, we pick up the story again in the 40th year of the Israelites’ journey through the wilderness. Rashi explains that God did not directly speak to Moses even once in the 38 intervening years.

I would suggest that God had a constructive purpose in His silence. As a new generation of Israelites matured, God wanted leaders who would turn not to a Moses who speaks directly to God, but towards the people and their concerns.  As Hayes documents, the authority that we place in meritocracy is only viable if there is also accountability, communication, and perspective.

Korach did not understand that, as a Levite, his challenge to Moses was actually also an argument against himself, a point that, in the heat of an election year, bears profound reflection. Sometimes we’re like Moses, spending so much time in the clouds talking to God that we forget that the things we do and say impact real people. Sometimes we are like Korach, not realizing that the principled arguments we make against our leaders can all too easily be turned against us as well. The resolution of the episode teaches us, perhaps, that there is a value in institutional establishments and hierarchical leadership so long as it doesn’t take a Korach to get their attention.

Rabbi Avraham Bronstein (SBM 2002) coordinates institutional outreach and sales for Koren Publishers. He has served in rabbinic positions at The Hampton Synagogue and Great Neck Synagogue.

Week One Summary of SBM 2016

This week’s summary is written by Eliav Grossman and Leead Staller

What role do unforeseen occurrences play in the halakhic system of commercial commitments?  We will cast a wide net over this summer, including topics that seem very distant from commercial contracts at first sight.  Since halakhic marriage can be understood as a halakhic contract, Rabbi Klapper hopes that  new perspectives we gain about the response of  halakhic contracts in general to unforseen negative developments will contribute to the development of solutions for agunot.

In this first week of learning, we explored the world of nedarim; verbal commitments that are self-imposed constraints on otherwise permitted behaviors.  More specifically, we explored the processes and parameters through which one can renege on such commitments. To that end, we considered various cases of unforeseen circumstances that allow a neder to be erased.

The Mishnah ( Ned. 9:1) states:

.רבי אליעזר אומר: פותחין לו לאדם בכבוד אביו ואימו; וחכמים אוסרין

.אמר רבי צדוק: עד שפותחין לו בכבוד אביו ואימו, יפתחו לו בכבוד המקום; אם כן, אין נדרים

Rabbi Eliezer says: we give a person an opening [to a vow] by reference to the honor of their father and mother. The Sages forbid doing so.

Said Rabbi Tzadok: Rather than giving an opening through the honor of their father and mother, open with honor of God; If so there would be no vows!

In order to nullify a vow, the vower must express regret at having taken the vow to a rabbi. In cases where the vower wishes to nullify his vow but does not feel regret, a rabbi can attempt to provoke feelings of regret through guided questions. Rabbi Eliezer teaches that a rabbi may prompt someone who has taken a vow to regret his pledge by reminding him how unhappy his parents would be with his wanton oath-taking. The Sages disagree with the acceptability of such a practice. Rabbi Zadok challenges R’ Eliezer’s view, and asserts that a rabbi could, more powerfully, invoke God’s disapproval at such behavior in order to encourage nullification. If God’s displeasure with irresponsible oath-taking is valid grounds for such rabbinic encouragement, though, then all vows are susceptible to erasure! After all–who could resist feelings of regret when told that God frowns upon his supererogatory self-imposed restrictions? Thus, implies the Mishnah, the displeasure of neither God nor parents may be invoked to actuate erasure of the vow.

Given the severity with which we generally consider religious commitments, we can understand why The Sages would be hesitant. Like the Mishnah says, once we adopt a looser standard for vows, it’s a slippery slope until the entire institution of nedarim itself is undermined.

But why would Rabbi Eliezer be lax with the stakes as high as the erasure of the institution of nedarim? Can he really scoff so dismissively at the binding weight of verbal commitments? Indeed, he may well be doing just this. While, intuitively, the idea of disregarding one’s commitments may seem disturbingly dishonest, in this case, we must consider whether nedarim should be thought of as comparable to human contract law in any way. Undoubtedly, it would seem morally and pragmatically problematic for Halakha to allow for one to disregard their word and break their interpersonal commitments. Thus, it must be that the legal system could not allow for all commercial commitments to be easily nullified; otherwise commerce would be chaotic and impossible. That being the case, if Rabbi Eliezer really is unperturbed by the potential erasure of all nedarim, it must be that he does not think of nedarim as comparable in any way to human promises or commercial commitments. Rather, from a legal perspective, the ritual world of nedarim must be viewed as wholly independent from the interpersonal world of commercial law. Thus, Nedarim may not be a useful point of reference for thinking about unexpected circumstances and commercial contracts.

Indeed, such a perspective may emerge from a comment of the Tiferet Yisrael on our Mishnah. The Tiferet Yisrael rejects the idea that one should be bothered by the prospect of the total erasure of all nedarim. Paraphrasing a mishnah from Zavim, the tractate dealing with impure bodily emissions, the Tiferet Yisrael exclaims “Is the existence of nedarim really our responsibility?” In other words, while such a position may indeed wipe nedarim off the map, it’s not the responsibility of the human halakhist to ensure the real world existence of ritual law. Much like we would feel unperturbed by a halakha that renders certain laws of ritual impurity impractical, we should adopt a similar attitude towards the ritual laws of nedarim. This seems predicated upon an assumption that the world of nedarim is just as ritual and removed from interpersonal laws of human commitments as the laws of Zavim and ritual purity are.  

Indeed, several sugyot suggest that there is always a way to undo a neder. For example (b. Ned. 23a):

,מעשה באדם אחד שהדיר את אשתו מלעלות לרגל, ועברה על דעתו ועלתה לרגל

?ובא לפני רבי יוסי. אמר לו: ואילו היית יודע שעוברת על דעתך ועולה לרגל, כלום הידרתה

.אמר לו: לא; והתירו רבי יוסי

A man once said that if his wife were to make the festival pilgrimage [to Jerusalem], he would vow not to allow her to derive any benefit from him [Note–the result of such a vow is that the husband must divorce his wife] ; but she disregarded his wish, and did go.

He went to R. Yose [for absolution of the vow], who said to him, ‘Had you known that she would disregard your wish and make the journey, would you have imposed the vow on her?’

He answered, ‘No,’ and R. Yose absolved him.

Rabbi Yose’s agreement to nullify the vow seems astonishing. After all, did not this man explicitly stipulate that if his wife would go to Jerusalem, he would take a vow and divorce her? How can the man reasonably say that had he known his wife would disregard his threat, he would not have stipulated the very condition which acknowledges the possibility of her going to Jerusalem?! Yet, while some commentators attempt to mitigate the severity of this conclusion, the simplest reading of the Gemara indicates that R. Yose’s nullification of the vow is effective. If this type of nullification works, it would seem that there are no vows that are impervious to nullification. This sugya furthers the impression that nedarim and commercial contracts exist on different planes–such expansive possibilities for nullification would render commercial interaction impossible.

The truth is that even Rabbi Eliezer may have his limits, depending on how one reads the Mishnah. There is an ambiguity as far as who states the last clause quoted above, “if you allow for opening vows by invoking divine disapproval, then you’ll allow for the erasure of all nedarim.” Seeing as this clause is unattributed, one could read it as the continuation, and final thrust, of Rabbi Tzadok’s challenge to Rabbi Eliezer. “If you allow rabbis to invoke parental disapproval, then you must allow for the invocation of divine disapproval. And if you allow that, then you’ll undermine all of nedarim! Thus, one must not allow even the invocation of parental disapproval.” Rambam, in his commentary on the Mishnah, adopts this reading.  

Alternatively, one could read this unattributed statement as being Rabbi Eliezer’s response to Rabbi Tzadok’s challenge. After Rabbi Tzadok challenges that permitting the invocation of parental disapproval must necessarily lead to the permissibility of invoking divine disapproval, R’ Eliezer responds by drawing a line. “While I may allow for the invocation of parental disapproval, I would never allow for the invocation of divine disapproval, as that would undermine all of nedarim.” Rav Ovadiah MiBartenura suggests this reading of the Mishnah. If we adopt this approach, even Rabbi Eliezer can be seen to have limits to his willingness to nullify nedarim– reinforcing the seriousness with which Halakha considers one’s commitments. Thus, the disagreement between the Rambam and Bartenura as to how to read the Mishnah may belie a greater question as to whether it’s even possible to entertain a position within the Halakhic system that is unfazed by the threat of nullifying all vows. In turns, this may reflect upon one’s general attitude towards Halakhic commitments and their severity.

Thus, the discussion in our Mishnah can be seen as revolving around the question of halakha’s willingness to allow for the nullification of previous commitments. The sages in our Mishnah struggle to impose the proper limits on the scope of vow erasure, by arguing about whether to allow vow erasure at the mere remembrance of parental or divine displeasure.  The expansive allowances adopted by some for nullification of nedarim may point to a large gap between the laws of nedarim and those of commercial contracts. Ultimately, this discussion touches upon the larger question of one’s perspective towards halakhic commitments, and the circumstances necessary to justify a reconsideration of those commitments.

Absolute Faith and Hard Truths

This week’s alumni dvar torah is by Jason Strauss

It is fascinating that we refer to the episode of the 12 Jewish leaders Moses sends to assess Canaan as “the story of the מרגלים.” At no point during the telling of the story, at least in the original account in Sefer Bamidbar, does the Torah refer to them as such. The word used in both contexts is “לתור.” The Torah uses the word “לתור” in two other places (Numbers 10:33, Deuteronomy 1:33), both of which refer to the ארון or G-d himself as going ahead of the nation to search for Israel’s next camp ground. This implies that “לתור” most likely means “to seek out” or “to explore.”

The Torah does use the phrase מרגלים elsewhere, however. In Parshat Miketz, Yosef accuses his brothers of being מרגלים three or four times (Genesis 42). Later, in Parshat Chukat, Moses sends people “לרגל” the Amorites (Numbers 21:32). In both cases, it is clear that the word “רגל” means to find out information that can be used to cause harm to an enemy. This root word seems to have a similar meaning when it is invoked in the preludes to Joshua’s conquests of Jericho and Ai (Joshua 2, 6, 7).

The Netziv (Ha-Emek Davar, Numbers 13:2) uses this evidence to specify the nature of the mission of those sent by Moses as scouts to Israel. The term “לתור,” which the leaders themselves use to describe what they were sent to do (Numbers 13:32 and 14:7), refers to an operation intended simply as a means of finding out information about their new home. However, as Dr. Erica Brown points out, in her book Leadership in the Wilderness (Brown, p. 124-127), the spies did not limit themselves to their task. They took it upon themselves to act as spies, revealing hidden “truths” about the enemy to the people, rather than giving them just the facts about their new home. They offered opinions about strategy and their likelihood of success, rather than just the information they were sent to retrieve.

It is, therefore, not surprising that when Moses retells the story of the spies, this shift in terminology between the intent of the mission and what the spies actually did is striking. Moses explains that the nation originally requested that people be sent before them “that they may search the land for us, and bring us back word of the way by which we must go up, and the cities unto which we shall come” (Deuteronomy 1:22). In other words, they only requested for someone to give them a sense of direction on their way to the Promised Land, not to assess whether they should continue forward. Instead, the spies did something very different: “they turned and went up into the mountains, and came unto the valley of Eshkol, and spied it out.” The words Moses uses are “וירגלו אותה.”

This analysis would lead one to conclude that the sin of the spies themselves was that they did not complete their mission as commanded. They took it upon themselves to offer opinions about what to do. They were shocked and afraid of what they saw, and they felt compelled to follow their instincts rather than trust Hashem (cf. Numbers 14:11). Even Joshua and Caleb, caught up in the hysteria that their colleagues brought upon the nation, offered their opinion of the land, to try to quell the people’s concerns (Numbers 14:7).

Both Dr. Erica Brown (Brown, p. 133-136) and Rabbi Amnon Bazak (Bazak, http://etzion.org.il/vbm/english/parsha.64/37shelach.htm) suggest that Hashem places the commandment of tzitzit immediately following this story because tzitzit have a quality that would have prevented these Jewish leaders from making this mistake. The Torah describes the goal of tzitzit as ensuring that “ולא תתורו אחרי לבבכם ואחרי עיניכם,” i.e., a person will not explore by following his or her passions or desires instead of following G-d’s command, despite them. Had the spies worn tzitzit and internalized their message, they would not have offered their personal opinions and would have just reported the facts. This theory is convincing, not only because of the commandment’s position in the text but also because of the employment of the word “תתורו,” which derives from the same root “לתור” used so often in the parsha.

There is a textual problem with this theory, however; it seems to contradict Caleb’s own view of the events. Forty-five years after Moses sent him as a spy to Canaan, Joshua is the leader of the Jewish people, charged with conquering the Land he once explored. Now in his later years, Hashem scolds him for still not having captured the majority of the territory (Joshua 13:1). Realizing he needs to get moving, the people cast lots and divide the land among the tribes, according to what they were promised. Caleb, claiming his promised reward of Hebron, approaches Joshua and recaps the story of their mission as follows:

“Forty years old was I when Moses the servant of the LORD sent me from Kadesh-barnea to spy out the land; and I brought him back word as it was in my heart. Nevertheless, my brethren that went up with me made the heart of the people melt; but I wholly followed the LORD my G-d. And Moses swore on that day, saying: ‘Surely the land on which your foot has trodden shall be an inheritance to you and to your children forever, because your wholly followed the LORD my G-d.” (Joshua 14:7-9)

There are two interesting linguistic points about Caleb’s description of the events. First, he says that he was sent “לרגל את הארץ,” precisely what the Netziv, Dr. Brown, and Rabbi Bazak all claim was their mistake, not their mission. Moreover, Caleb describes what he told the Jewish People as “ואשב אותו דבר כאשר עם לבבי.” He did exactly what his colleagues were criticized for doing, reporting information according to his heart’s understanding, rather than just cold facts! Instead, Caleb gives a different explanation of the other spies’ mistake: they mislead the people, while he wholly followed Hashem. Caleb believes that they were spies, meant to give an opinion about the land and the prospects of conquest. What matters is the slant of the opinion piece, not the fact that they went beyond their duties, as Moses seems to have felt.

Perhaps this is not a contradiction, however; Caleb and Moses could have different perspectives about the same event. Moses, who understood his own intention in sending the spies, is frustrated by their lack of vision as leaders, their straying after their own fears and desires instead of steadfastly maintaining their trust in G-d. In contrast, Caleb is himself among the spies. He sees nothing wrong in how they did their mission; they reported facts and assessed the Promised Land. They are supposed to offer their opinion about the facts. He believes that the spies’ mistake is not their lack of impartiality but rather the fact that they chose the wrong side of the debate; they sided against Hashem.

This view is supported by the Sefer Hachinuch (commandment 387). He writes that the commandment of “ולא תתורו אחרי לבבכם ואחרי עיניכם” is not a warning against passion but against seeking out and learning the wrong type of information, the wrong opinions. The commandment not to stray “after your hearts” refers to the importance of staying away from heretical thought while “after your eyes” refers to a prohibition on thinking about the sins one deeply desires to commit. For the Chinuch, like Caleb, Tzitzit do not remind you to be impassionate and rational but rather to stay away from the wrong ideas and passions.

To me, it seems that the normative view is that of Moshe. As Dr. Brown points out, the Talmud recounts a story in which only tzitzit is able to temper the passions of a young man, previously determined to sin with a prostitute (Brown, p. 130-132). Moreover, when we popularly use the term מרגלים to refer to the spies, despite the term never appearing in the parsha, we are not simply describing their actions. We are accusing them of being מרגלים, spies, when they should have been explorers.

Especially in the information age, facts about what is happening in the world are daily becoming more and more easily accessible. It is nearly impossible to shield children from learning things that would have been deemed “adult” material only a few years ago. We can no longer completely filter the facts of world events to shelter young people from harsh realities.

The question is, how will we guide our children, in light of these tectonic shifts in information technology? Will we help them insist on the rigorous truth, instilling them with אמונה without sugar-coating reality? Will we allow them to ask questions to which we do not have answers, acknowledging the challenges while pushing forward? Or will we tell them not to listen to their doubts, push them to choose a particular perspective, and remind them to be resolute in their belief that Hashem will ensure that everything will be good in the end?

Jason Strauss is an alumnus of CMTL’s 2012, 2013, and 2014 Summer Beit Midrash. He will be the new rabbi of Congregation Kadimah-Toras Moshe in Brighton, MA, starting in August.

Bazak, Rabbi Amnon. “You Shall Not Explore After Your Heart and After Your Eyes….” Virtual Beit Midrash. Yeshivat Har Etzion, 2002. Web. 30 June 2016.

Brown, Erica. Leadership in the Wilderness: Authority and Anarchy in the Book of Numbers. New Milford, CT: Maggid, 2013. Print.