Monthly Archives: July 2016

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.

 

Leave a comment

Filed under Summer Beit Midrash, Uncategorized

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.

Leave a comment

Filed under Alumni devar Torah, Uncategorized

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.  

Leave a comment

Filed under Alumni devar Torah, Uncategorized

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.

 

 

Leave a comment

Filed under Summer Beit Midrash, Uncategorized

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.

Leave a comment

Filed under Summer Beit Midrash, Uncategorized

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

 

Leave a comment

Filed under Alumni devar Torah, Uncategorized

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.

Leave a comment

Filed under Summer Beit Midrash, Uncategorized