2,711 pages of Talmud. A gem a day.

Today’s daf discusses an idea called “preemptive declaration” (in Hebrew Moda’a). The idea here is that you might be forced into a situation you never wanted. For example:

The Gemara answers: Actually, it is referring to a preemptive declaration for a sale, as Rava concedes in a case where one was compelled to act due to a threat of monetary loss, as with the incident of the orchard, as there was a certain man who mortgaged his orchard to another for three years. After he worked and profited from it for the three years necessary for establishing the presumption of ownership, he said: If you sell the orchard to me, it is well. And if not, then I will hide the mortgage document and I will say that this land is purchased and that is why it is in my possession, and you will receive no payment for the orchard. In a case like this, we write a preemptive declaration. The declaration states that he does not actually desire to sell his property but was forced to do so.

Nasty people doing nasty things. It’s nice to know that the rabbis do try and protect people from being forced into agreements they do not want but are being threatened by. I am thinking of it as a pre-nup/post-nup for everything but the marriage.

It’s very rare that I turn to the Jerusalem Talmud to understand the Bavli (Babylonian), but hat’s what I’ve done today. On our daf we read:

The Gemara relates: Rabbi Yosei, son of Rabbi Ḥanina, encountered the students of Rabbi Yoḥanan and said to them: Did Rabbi Yoḥanan say in the presence of how many people a protest must be lodged? Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: A protest must be lodged in the presence of two people. Rabbi Abbahu said that Rabbi Yoḥanan said: A protest must be lodged in the presence of three people.

The Jerusalem Talmud explains that the difference of opinion is based on the question of whether you need to make the protest in front of a Jewish Court which is made up of three, or if simply saying it in front of regular witnesses is all you need to do.

Here is my favorite part of the discussion…

One of the arguments the Gemara makes is on what the line is between warning the public and gossip (lashon harah, literally the evil tongue). According to Rabba bar Rav Huna, once a statement is made in front of three people it is assumed to be known and widespread, so a statement that is made in front of three people can be repeated without concern for the laws prohibiting gossip. Much of the daf questions if it’s sufficient to lodge your protest in front of two people since word will travel. This argument would say – no, we don’t rely on gossip.

According to Rabbi Steinslatz, “Rabbeinu Yona offers several possible explanations for Rabba bar Rav Huna’s rule about lashon ha-ra. One possibility is that this is talking about something that a person is allowed to say – he may be complaining, for example about someone who wronged him, and he is turning to these people to assist him in his efforts to receive justice. Another suggestion is that this is a person who will not accept the rebuke of this individual, so he turns to others to assist him in getting the person to return to a proper path. If he complained in front of two people, it would appear as though he was trying to hide his statement from the person he was talking about; since he said it in front of three, it is clear that he wants his statement publicized.”

Leviticus 19:16 says, “Thou shalt not go up and down as a talebearer among thy people: neither shalt thou stand against the blood of thy neighbor: I am the LORD.”

It asks us to walk a thin line. Don’t gossip and talk about others, but speak up if someone is going to be taken advantage of. I’ve always loved this juxtaposition. Today we learn a bit about how to walk that line. . . at least when it comes to squatters and robbers. (Now for x’s and peers, we still need guidance.)

Shouldn’t our laws always protect us? How is it that a law can lead us to loss?

On today’s daf, Rv Ashi teaches us that, while laws are here to protect us, they only can if we speak up for ourselves.

Rav Ashi answered: He should have protested during the first three years and publicized that the land was not included in the sale. The assumption that lodging a protest would be effective must be correct, since if you do not say so, then in the case of these mortgages according to the custom in Sura, a city in Babylonia, the debtor will not have a way to prevent the creditor from keeping his land. As in mortgages of that type it is written like this: At the completion of these years this land will be released to its prior owner without any need for the prior owner to give money. If the creditor were to hide the mortgage document in his possession and say: This land is purchased and that is why it is in my possession, here is it also the case that he would be deemed credible? That cannot be, as is it reasonable that the Sages would institute a matter, such as this type of arrangement, that people can be led by it to suffer a loss? Rather, in the case of the mortgage the debtor should have protested, and by not protesting, he causes his own loss.

Love this. We need to learn to speak up for ourselves and not rely on others to do what’s best for us – even when those others are Sages! We need to learn to advocate, and then we can hold those who have power accountable – but not if they don’t know or we don’t protest.

What if I sell you the trees on my land. Does that mean you can keep them on my land or that you have to take them? The answer tells us a bit about human nature and that of God.

According to Rabbi Akiva, who says: One who sells, sells generously, the buyer has ownership of the land surrounding the trees, as the presumption is that the seller included it in the sale. According to the Rabbis, who say: One who sells, sells sparingly, the buyer does not have ownership of the land surrounding the trees, as the presumption is that the seller did not include it in the sale.

So, when we sell, do we sell with a generous spirit?

If we give a gift, all agree that it’s given completely generously since the giver wants to help the receiver. We can’t tell from the text if a seller means to be generous or not. IT all depends on the seller.

Now it gets religious, because God gifts us so many things; things we don’t deserve. That’s called grace. Our lives are the most significant of all these gifts. The likelihood of our living is so infinitesimally small – we are only here by an act of grace.

A gift given generously for sure.

Everyone is saying it . . . everyone thinks. . .

Really? Everyone?

The residents of Pum Nahara sent a question to Rav Naḥman bar Rav Ḥisda. Our teacher, instruct us: Is plowing sufficient to establish the presumption of ownership, or is it not sufficient to establish the presumption of ownership? Rav Naḥman bar Rav Ḥisda said to them: Rabbi Aḥa and all of the great men of the generation say: With regard to plowing, this is sufficient to establish the presumption of ownership. Rav Naḥman bar Yitzḥak said: Is it a novelty to enumerate great men who maintain an opinion without taking into account that of others? But what of Rav and Shmuel in Babylonia, and Rabbi Yishmael and Rabbi Akiva in Eretz Yisrael, who say: Plowing is not sufficient to establish the presumption of ownership?

So, apparently, not all the great men.

When I first started in my rabbinate, I got a lesson from my mentor about terms like “everyone” or “a lot of people.” When we get feedback that everyone, or a lot of people are giving certain feedback, it’s important to ask who specifically, or how many people?

I can’t tell you how many times I have heard things like “everyone is complaining about the tune the cantor sang” or “a lot of people didn’t like your sermon” and when you ask who specifically, and how many people are we talking about? It turns out to be one person.

One.

Chaka Khan may have sang, “I’m every woman,” but most of us are just one person, not everyone.

We actually have more in common with the rabbis of the Babylonian Talmud than we may guess. They are living at a time and place of diaspora. They are writing laws for Jews, but are subject to the law of the land. As we see in today’s daf:

Rav Yehuda says that Rav says: With regard to a Jew who comes to claim land due to having received it from a gentile, he is like a gentile in terms of which legal claims are available to him. Therefore, just as a gentile has the ability to establish the presumption of ownership only by means of a document, so too, a Jew who comes to claim land due tohaving received it from a gentile has the ability to establish the presumption of ownership only by means of a document.

Here we see that, while Jews may have an entirely separate legal system, we have to obey the laws of the land. We Jews who live in North America and the diaspora are very similar to the rabbis of the Talmud in that we value Torah law, and we take meaning from it and know that living Torah adds to our lives; however, we are still subject to the law of the land and following that law is holy as well.

Shall we arm wrestle over it? Maybe…

There was an incident where two people dispute the ownership of property. This one says: It belonged to my ancestorsand I inherited it from them, and that one says: It belonged to my ancestors and I inherited it from them. There was neither evidence nor presumptive ownership for either litigant. Rav Naḥman said: Whoever is stronger prevails.

On our daf today there are two situations where the court can’t tell who is the rightful owner. So they say “Whoever is stronger prevails.”

What does this mean? Duke it out? Settle it on the dance floor?

Rashbam says it means whoever had better proofs. But a later rabbi commenting on this says – the court couldn’t decide! So they remove themselves and whichever litigant comes and takes it from the other and can keep it from them keeps it… so they steal it from the other – they take it to the streets! The Rash says, no, it means that whoever is the real owner will work the hardest to prove his point.

But I like to imagine a dance-off.

So brazen it must be true!

The daf is debating whether we should believe someone when they make claims to land/property but don’t necessarily have documentation to prove our claims. And then we get this little gem:

After all, didn’t Rav Yehuda say: This one who is holding a sickle and rope [vetovelaya] and says: I will go cull [igderei] the dates from the date tree of so-and-so who sold it to me, is deemed credible that he has the right to do so? Apparently, a person is not so brazen that he would cull the dates of a date tree that is not his.

Sometimes, something is so in your face you have to believe them.

Tosafot and other rishonim point out that what gives this individual “believability” is not what he said, but what he did by harvesting the dates. So, we would believe him just by seeing him harvest the dates without him needing to say anything.

The Rashbam explains that this assumption only works after the fact, meaning that if the original owner of the date palm stood in his way and objected to his actions, then ballsy as he is we would not believe him.

I can’t help but think of people getting caught skinny dipping in someone else’s pool. If there is anything “ballsy” it’s that, and yet non-owners do it all the time.

Do you swear? Promise? Pinky promise? Swear on your mother’s grave? We are so quick to swear in our world today, to make promises. However, for the rabbis, taking an oath was such a serious matter, even when they were telling the truth, EVEN WHEN THEY HAD PROOF, they did not want to swear. As we see in our gem.

The Gemara relates: A rumor emerged concerning Rava bar Sharshom that he was profiting from land belonging to orphans. Abaye said to him: Tell me, my friend, concerning the incident itself, how is it that this rumor was generated? Rava bar Sharshom said to him: I was holding on to the land as collateral from the father of the orphans, and I had other money with him, i.e., he owed me money for a different reason, for which I had no collateral, and I profited from the land for the duration of the years of the collateral.I then said to myself: If I return the land to the orphans now that the years of collateral have finished, and I say that I have other money with your late father, I will not be able to collect it, as the Sages say that one who comes to collect a debt from the property of orphans can collect only by means of an oath, and I do not wish to take an oath. Rather than do that, I will suppress the document detailing the terms of the collateral, and profit from the land up to the measure of the money that their father owed me. This is legitimate, since if I so desire I can say: It is purchased, and that is why it is in my possession, and I would have been deemed credible, as I profited from the land for the years necessary to establish the presumption of ownership, so when I say that I have money with you, I am also deemed credible. Abaye said to Rava bar Sharshom: Your reasoning is incorrect. You would not have been able to say: It is purchased, and that is why it is in my possession, as there is publicity concerning it that it is land of orphans. Therefore, you are unable to collect your debt based on the fact that you could have made a more advantageous claim [miggo]. Rather, return the land to the orphans now, and when the orphans become adults, then litigate with them, as you have no other option.

This is our gem because, primarily, it teaches us that no one can take advantage of orphans, not even rabbis – while also capturing how adverse our sages were to swearing.

So don’t take promises lightly.

We’ve all heard of someone being held in “contempt of court” on TV shows for angering or disrespecting a judge. But today’s gem uses the term in a whole new way. The worry here is that the court will lose its status amongst the people. The case in discussion is someone the court recognized as a priest, and then they were told he was from a questionable marriage and cannot serve in that role . . . only to find out he IS kosher to serve as priest . . .

And here it is with regard to concern about contempt of court that they disagree. Rabbi Elazar holds: Once we downgraded him from the presumptive status of priesthood based on the testimony of two witnesses, we do not then elevate him, as we are concerned about contempt of court, as a reversal in the court’s decision creates the impression that the court operates indecisively. And Rabban Shimon Ben Gamliel holds: We downgraded him from the presumptive status of priesthood and we then elevate him, and we are not concerned about contempt of court. The primary concern is that the matter should be determined based on the relevant testimonies. . . . Rather, Rav Ashi said: Everyone agrees that we are not concerned about contempt of court.

I love this. I love the commentary on how important it is that people trust the court. And I LOVE that trusting the court means that the court does what is right with the informaiton they have – and when they get new information, they do what’s right again!

We so often feel like we have to be sure and strong and unbending. But growing with new knowledge is so much better. When we grow as we know – that causes others to trust and respect decisions. Not holding ridged despite the facts.