Class Notes - Class #14

Mitzvah #61 covers a situation where an underage girl is seduced.    It only applies to underage girls, girls under 12 ½ years of age.  If an adult woman allows herself to be seduced, she bears the consequences, whatever they happen to be.

             Consider this mitzvah in social context.  After the consensual sex, the girl’s marriage prospects are much diminished.  And we want there to be some penalty for an adult taking advantage of a young girl.  So this mitzvah requires that one of two results follow.

            1.  If the girl, her father and the seducer all agree, the seducer marries the girl.  She no longer has a problem finding a marriage partner.  She has the status of a regular wife, with all the privileges and obligations involved. 

            Note how this plays out in the “Romeo and Juliet” situation.  If two young people of the right ages want to get married and their families do not agree, this mitzvah gives the young folks some leverage.

            2.  If the parties involved do not agree to the marriage, there are financial consequences.  The seducer pays damages to the girl for embarrassment, calculated according to the social status of the girl.  The seducer also pays a fine of 50 silver pieces to the girl’s father.  That is a punishment for the seducer, and it is a very substantial sum, possibly enough to encourage the seducer to want to go through with a wedding.  Admittedly, it might be enough to tempt the girl’s father to prefer receiving the penalty.  It is hard to figure out exactly how the financial incentives would really work.

Our author discusses the presumptions used to distinguish a rape from a seduction.  If the activity took place in an area where there are not likely to be other people around, it is presumed to be rape.  If it took place in a populated area, the halachah assumes the victim of a rape would cry out.  Thus, we assume consensual relations unless there are witnesses that she objected.  (The rape case is covered in mitzvah #557.) 

            Our author says that the shoresh of this mitzvah is well known.  I can’t say what he had in mind, except to assume that such cases arose in his social world and that the outcomes outlined by this mitzvah made sense.  None of this deals with the moral question of pedophilia, questions of whether a young child can give consent, etc.  I do not know much about the history of such notions except to remind us that those ideas do have a history.  I can only hope that if this case arose involving a young child and an adult man, the case would be interpreted as rape.  Overall, however, this mitzvah deals with cases we would call “statutory rape.”  That activity has consequences for the man involved, and the consequences go some of the way toward putting the girl back in a tolerable situation.

 

Mitzvah #62 is the first of many mitzvot we will see over the course of our study about various types of sorcery, magic, etc.  This is a mitzvah to the court to pass appropriate judgment in cases of “kishuf.”  (We will try to distinguish the different kinds of forbidden activities when we see more of these mitzvot.  Our author does not define it here.)  The Torah takes these issues very seriously, and many of these practices can lead to the death penalty. These practices involve trying to manipulate unseen, powerful forces; that sounds very much like idol worship. The author takes this opportunity to introduce his approach to what we would call the supernatural.

            The verse defining this mitzvah describes the protagonist in the feminine:  it requires judges to inflict the death penalty on a “mahashefah.”  According to our author, the prohibition and penalty are for the behavior, whether it is carried out by a man or a woman.  But, since most practitioners are women, the Torah phrased the prohibition to match what appeared to be the common reality.

            Again, let me start with a bit of historical context.  We take for granted that we can tell the difference between factual reality and the imagination.  We are children of the scientific revolution: fact is something that can be tested and proven, and all the rest is speculation.  The line between reality and imagination was much less clear in the ancient world.  Supernatural practices were much more common in the ancient world than they are in our lives.  When our author says that everyone knows how much trouble sorcery can be, he reflects that social reality. 

Our author parts ways here with Rambam, who believed that supernatural practices are forbidden because they are folly and akin to worshipping gods that do not exist.  Our author has a different view.  

In the author’s view described here, God, in creating the world, created many different things. Each thing has an essence, and God intended for that essence to stay stable.  For example, in the creation story each kind of animal and plant is created by God to reproduce “according to its own kind.”  For each item, God created a force to keep that particular piece of creation working properly.  The author does not describe these forces, but he does not say anything to indicate they are senescent or exercise will of their own.  Apparently, it is possible for people to interfere with the work of these forces by various supernatural techniques.  If those techniques yield demonstrated medical healing they are fine, but otherwise the techniques are forbidden. Indeed, our author says, these practices only cause trouble, and that is why they are forbidden. One type of forbidden technique is to mix things God commands us not to mix.  Our author alludes to several of these forbidden mixtures, which we will see as we proceed in our study.  According to our author, combining two of these items together interferes temporarily with the work of the forces supervising those two items of creation.  That temporary interference is part of God’s creation plan, but God forbade us from initiating that interference. We are forbidden to do anything that undermines God’s perfect plan for the world.  The author says that it is known which supernatural techniques are permitted and which are not.

It seems to me that, despite the language of forces and sorcery, this explanation is rationalistic rather than supernatural.  In the medieval world, people got lots of things done, but they understood much less than we do about  how things in the world work.  Our author is simply positing a mechanism, albeit a mechanism he does not fully understand.  This system is attractive to the author because it serves as an explanation for the prohibitions on various types of sorcery, as well as those mystifying mitzvot about not mixing certain types of things.  This appears to me to be an attempt at a rationalistic approach to these two categories of prohibitions. 

Toward the end of this mitzvah/essay, our author distinguishes kishuf from consorting with “shadim” demons.  He does not explain what the differences are, only that they exist.  Again our author is parting ways with Rambam, who holds that shadim do not exist.  We shall have to see whether these shadim turn up again, if we get more information about our author’s understanding about them, and if his understanding seems to be based in rationalism.

One more detail appears in this mitzvah/essay.  At the end, the author lists the three mitzvot violation of which are punishable by malkos even though the violation does not entail any physical action.

 

Our next series of mitzvot instruct us about our dealings with the poor and vulnerable.

Mitzvot #63 & 64 deal with how we treat converts, “gerei tzedek.”  Once someone converts and becomes a ger tzedek, that person is fully Jewish.  These mitzvot seem to be redundant, as Jews are prohibited from treating all other Jews in the ways prohibited by these mitzvot.  Treating converts properly needs extra emphasis.  Our author points out that the general idea of treating the ger respectfully and kindly is mentioned 24 times in the Torah.

            Mitzvah #63 prohibits saying hurtful things to a ger.  The prime case is reminding the ger of his or her non-Jewish background, which we assume might be hurtful.  But that is just an example; this mitzvah prohibits any kind of hurtful comments.  Mitzvah #64 prohibits hurting a ger financially.  As we will see, God expects us to be fair and honest in all of our business dealings.  If we are not, and a ger is the target of our bad behavior, this mitzvah condemns our behavior in yet another way.

These are not mitzvot that can be redacted into a series of rules.  They depend on the people and the situation.  For example, some converts are very open about their conversion status, and others would prefer to keep that status private.  If you don’t know for sure how a particular ger feels, err on the side of respecting privacy.  Later, we will see mitzvot prohibiting gossiping.  Our author does not say so, but it seems clear that gossiping about someone’s status as a ger would be forbidden. Overall, if we happen to know that someone is a ger, we should consider that confidential and sensitive information.  We should be especially careful to treat that person with all the kindness and fairness we can muster.

            Our author expands on why the behavior prohibited by these mitzvot is condemned.  First, the ger is more vulnerable, having no Jewish family to protect him or her.  We have enhanced ability to hurt that person, and we should be careful not to do so.  Second, if the Jews treat the ger poorly, the ger may be tempted to return to his or her birth community.  Further, our author expands the moral scope of the shoresh of these mitzvot, reminding us that we should be careful not to hurt anyone who is vulnerable, not to proceed with any harmful behavior we have the opportunity to do.  If we behave properly toward gerim, and properly toward others, we will become the kind of people God wants us to be and we will become worthy of God’s grace and favor.  We are both the agency of the good God wants to see in the world, and the recipient of the reward God wants to give.

 

Mitzvah # 65 extends the same types of special protection to widows and orphans.  We have seen that the family was the prime economic and social unit.  The assumption is that the adult male in that family is the one with the skills to relate to the outside world, especially on commercial or legal matters.  A widow or an orphan lives without the protection of that complete social unit.  We are required to take special care to protect vulnerable gerim, and the same applies to widows and orphans.  The mitzvah applies to orphans as long as they remain vulnerable for lack of adult help.   

Our author extends his discussion to emphasize how serious violating this mitzvah is.  There is no formal punishment for violating it, as it is somewhat amorphous.  But he reminds us that God takes our behavior very seriously, especially when someone is vulnerable and we have special power to do harm.  We should expect God to punish our actions by making out family members vulnerable in turn.

            In social terms, we are required to treat widows and orphans “gently, pleasantly, with kindness and compassion.”  This applies to widows and orphans of any social status, even family members of the king.  If they are employees, make sure not to work them too hard.  Act as if there was someone who would come to their defense, even though there is no one to do so.  If one is supervising the orphans, as a foster parent or as a teacher, one is permitted to discipline them, but even then the supervisor should go easy if possible.

            This mitzvah is more specific when it comes to financial dealings.  When it comes to collecting money from widows and orphans, the beit din will require a shvua in some cases where it would not require one against ordinary litigants.  The court also has to fill the role of the missing father of the family, making sure that all arguments on behalf of the disadvantaged litigants get considered.

            More specific issues arise when orphaned children need a trustee, “apotropus,” to oversee their financial affairs.  If the father has not previously appointed a trustee, the court chooses a trustee who is wealthy and knowledgeable in financial affairs to manage the orphans’ money.  If there are enough resources to invest, the trustee invests for the orphans’ benefit.  Under some circumstances, if the investments incur losses, the trustee makes up the losses.  (This is an exception to the rabbinic restrictions on things resembling “ribis,” interest, which we will look at shortly.)

            The orphans have certain advantages in financial dealing over ordinary folks.  These advantages are parallel to the financial advantages the Temple has in its financial dealings.  (Although the author makes some detailed reference to how financial dealings with the Temple work, I am not going to follow the details of those.  Keeping track of the orphans will be enough of a job.)  Those advantages must be balanced against competing social values, however.  If the orphans have too many financial advantages, no one will want to do business with them. Also, there is a limit to how far to stretch the rules in favor of orphans, lest we stray too far from a just result.  Our author goes into detail on this question. 

To understand the cases, we need to introduce the concept of “kinyan.”  In a transaction where ownership is changing hands, we need to know who owns the goods at any given moment.  If someone is selling an animal to someone else, we need to know exactly when the animal begins to belong to the buyer, so that if the animal does some damage or dies, we know who bears financial responsibility.  Usually financial transactions involve a benefit to each of the parties.  In halachic analysis, those benefits can kick in at different times.  To follow up our example of selling an animal, the seller can take ownership of the payment without having delivered the animal, or the buyer can take ownership of the animal without having delivered the money.  It is important to be able to mark the precise moment when ownership changes hands.  A kinyan is an act that accomplishes and marks the change of ownership.  Different types of kinyanim work under different circumstances, but picking up an object, drawing the object toward oneself or leading an animal are basic general examples. 

            Now look at our author’s examples:     

1.  An orphan is selling fruit.  The buyer makes a kinyan on the fruit by drawing it toward himself, but the buyer has not yet paid.  Then the price of the fruit rises.  The seller would like to void the transaction to resell the fruit at the new higher price.

            Under normal rules, the fruit belongs to the buyer because the kinyan has already occurred.  But because the seller is an orphan, the seller can void the sale.

2.  An orphan is selling fruit.  The buyer makes a kinyan on the fruit by drawing it toward himself, but the buyer has not yet paid.  Then the price of the fruit falls.  The buyer would like to void the transaction to buy the fruit at the new lower price.

            Under normal rules, the buyer cannot void the contract because the buyer has already taken ownership of the fruit.  If we let the buyer out of the deal, the buyer’s commercial powers would be greater than those of the seller orphan.  So the deal stands.

3.  An orphan is buying fruit.  The buyer makes a kinyan on the fruit but does not deliver the money, and then the price of the fruit rises.  The seller would like to void the transaction so as to resell the fruit at a higher price.

            This transaction is like the prior one.  The normal rules apply, since if we let the seller void the transaction the seller would have commercial powers greater than the buyer orphan.

4.  An orphan is buying fruit.  The buyer makes a kinyan on the fruit but does not deliver the money, and then the price of the fruit falls.  The buyer would like to void the transaction so as to buy the fruit at the new lower price.

            This is much like the first case we looked at.  Even though the buyer orphan made a kinyan on the fruit, we would expect that the buyer orphan could escape from the deal.  Note, however, that this is a sale on credit.  The orphan buyer gets the goods without yet having to pay for them.  That makes this case different from our first case.  If the buyer has too much of an advantage in this transaction, sellers will not want to sell orphans goods on credit.  Thus, the rabbis say, the orphans cannot void this transaction.  In the big picture, that is to their commercial advantage.

5.  A seller sells goods to a buyer.  The buyer pays but does not take possession or make a kinyan.  Then the buyer wishes to retract the transaction. 

            Since the seller did not make a kinyan on the goods, the seller has to power to return the money and retract the transaction.  But the rabbis think the seller is being unfair for not keeping his word.  So they instituted a curse on the seller.  Think of the formula “misheberach,” that we often hear connected with Torah reading in shul.  The general idea is asking God who blessed our patriarchs also to bless us because we have done something good like giving charity.  Here we have the opposite, called a “mishepara.”  We ask God who punished folks who did awful things, like the Egyptians who enslaved us or the people of Sodom and Gemorrah, to curse this person for breaking his word in this financial transaction.  It’s easy to see why one would prefer to avoid that petition.

6.  An orphan buys goods from a seller, paying the money but not making a kinyan on the goods.  Then the orphan wishes to retract the transaction.

            An ordinary person would have the power to void this transaction, and the orphan does too.  But the orphan is not subject to a “mishepara” the way an ordinary person would be.  (A trustee acting on behalf of the orphans would not be subject to a mishepara either.)

7.  An orphan buys goods, pays the money but does not make a kinyan on the goods.  Then the price goes up and the seller wants to retract to resell at the new higher price.

            This is just like the prior case; the seller has the power to return the money and void the transaction, but the seller is subject to a mishepara.  Here we might be tempted to go further giving even more advantage to the orphan buyer by not allowing the seller to void the transaction.  But we don’t do that.  To do that, we would have to assume that the orphan buyer now owns the goods even without having taken possession.  Then the seller would be in a position to perpetrate a fraud by claiming the goods had been burnt or stolen, and the orphan buyer would bear the loss.  At least this way the orphans get their money back.

8.  An orphan sells goods to a buyer and the buyer pays, but the buyer does not make a kinyan on the goods.  Then the value of the goods falls.  The buyer would like to void the transaction to buy the goods at the new lower price.

            In an ordinary case, the buyer could retract but would make himself subject to a mishepara.  But note that here the orphan seller is getting money advanced for goods that have not been delivered.  We want people to advance money to orphans, just as we wanted to facilitate people selling to orphans on credit in case #4.  So we do not give the orphans a commercial advantage here, because if we did the long-term effect would not benefit orphans.

 

The upshot of all of these financial rules is the attempt to express moral principles through the mechanism of detailed law.  Judaism expresses its ethics through moral admonitions and statements, but also through detailed rules governing how we behave.  To understand the ethic, we need to look both at the broad statements and at the halachic details.

            In this particular case, the rabbis formulating these rules are trying to balance three different factors: 1. Helping the orphans involved in a particular transaction.  2.  Helping orphans as a group to have an appropriate place in commerce.  3.  Staying within the broad requirements of justice.  All of these questions are tied more to real-world effects than to theoretical rules.

            This passage is a new pedagogical approach for the author.  He takes us through a series of related cases, presenting each case reasonably clearly and explaining the reasons for each outcome.  We need to trace through the argument step by step, keeping track of the close distinctions as we go along. 

 

Mitzvot # 66 – 68 relate to loaning money to poor people.  Mitzvah #66 requires us to lend if we have the resources, mitzvah #67 prohibits us from trying to collect on the loan if the borrower cannot pay, and mitzvah #68 prohibits our facilitating a loan at interest.

            When we think of money, we think of symbolic pieces of paper or metal that have minimal intrinsic value, but everyone will recognize that the money is worth the value stated.  We also take loans for granted.  We charge our groceries on credit cards, for example.  If we want to start a business, we hope to get a loan for the start up expenses.  We know that we will have to pay interest on the loan.  Usually, but not always, we are realistic about our ability to pay the interest.

            Things were very different in the ancient world.  Most transactions were barter transactions.  Most ordinary people rarely dealt with money at all.  There was no symbolic money.  Even where coins were minted, their value was the value of the weight of the metal the coins were made of.  Merchants who accepted payment in coin would weigh the coin to determine its value.  And economic enterprises were not financed on credit.  If you wanted to start a business, you would have to find the materials you needed on your own and then begin your business.  Because people so rarely dealt with money or loans, they had very vague conceptions of paying interest if they took a loan.  (If you find that odd, think of all the folks losing their homes because they took loans they didn’t understand.)

            Given all that, the assumption is that a poor person seeking a loan was looking for a way to meet immediate needs.  Mitzvah #66 is a positive commandment for his acquaintances who have money to help him out.  Our author points out that the poor person would rather take a loan than anticipate the need to reveal how great his needs are and go begging to his neighbors.  If the poor borrower is borrowing to meet his immediate needs, he is unlikely to be able to pay interest on that loan, something the borrower probably does not understand well anyway.

            But the lender in this situation should be aware that the poor neighbor might not be able to repay.  What starts out as a loan may turn into a gift.  So if the lender knows that the borrower does not have the resources to pay, the lender may not attempt to collect.  The lender may not even hang out where the borrower is likely to see the lender, lest the lender make the borrower feel awkward.  If the borrower needs for this loan to turn into a gift, let it be.

            We will see mitzvot later in our study that forbid Jews from lending to other Jews at interest, and prohibiting one Jew from borrowing from another Jew at interest.  Here, we have a mitzvah not to facilitate loans at interest between Jews by serving as scribes, witnesses, guarantors, etc.  As we said above, when people who do not understand how interest works borrow at interest, those people can be badly hurt.  The author spells this out dramatically in the shoresh of mitzvah #68.

            The author has quite a bit to say in the shorshim of these mitzvot.  We have seen the compassion the author has for people who are vulnerable when he spoke of gerim, or widows and orphans, and of an eved c’na’ani.   Here, also, he describes someone who could lend and does not as “despicable, abominable, rotten and abhorrent,” where as the person who does lend is “delightful, beloved, worthy of compassion and blessed with many blessings.” 

            But if God was really concerned with the needs of the vulnerable, why can’t God take care of them?  Our author suggests that the person who is poor might be suffering as a punishment.  God does not want to take care of him; he may deserve his plight.  (I do not think the author is saying every suffering person deserves to suffer, only that that might be the case.)  But in any event God does want us to take care of the suffering person.  By doing that, we develop good qualities of kindness and compassion.  And our having those qualities will make us worthy of God’s generosity.  In fact, God wants the opportunity to reward us for our good behavior and characteristics. 

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