Tnai Kaful

  • Rav Mordechai Friedman
 
I.  The Extent of the Dispute between R. Meir and R. Chanina
 
     Our sugya begins with the mishna on 61a (read the text inside!).  Taken at face value, the disagreement in the mishna refers to ALL of the "mishpetei tnaim" (laws of conditions). (These include 1) tnai kaful - one must state both the terms of compliance and non-compliance; 2) tnai kodem le-ma'aseh - one must state the condition before stating the conditional act; 3) hen kodem le-lav - one must state the terms of compliance before stating those of non-compliance.)  This not only rings true textually in the mishna, but logically as well. As the Tosafot Ha-Rosh (s.v. R. Chanina) points out:"R. Meir learns the rules of 'tnai kodem le-ma'aseh and 'hen kodem le-lav' from the same source as 'tnai kaful' - the extra words of Moshe teach us that it is not a valid tnai if it is not similar to Moshe's tnai in all aspects."
 
     In addition to the above textual and logical points, the Tosafot and the Ramban bring the gemara in Bava Metzia 94a that says "who [is the Tanna who] is of the opinion that we require 'tnai kodem le-ma'aseh?'  It is R. Meir."  This gemara  infers that R. Chanina disagrees in all of the mishpetei tnaim.
 
     Yet Rashi, on the mishna, comments that the dispute is limited to tnai kaful alone.  R. Chanina agrees with the requirement of the other 'mishpetei tnaim.'
 
     Why would Rashi go against the straightforward understanding of both our mishna as well as Bava Metzia 94a?
 
     I believe the answer lies in why we view Moshe's condition to benei Gad and benei Reuven to be the source of the rules of tnaim.  The "yetura dikra" - extra words, or redundancy in the Torah, according to the Tosafot Ha-Rosh (the Tosafot and Ramban as well) seems to be the sole exegetical flag which teaches us to use tnai benei Gad as the blueprint for all tnaim.  When R. Chanina explains how these words are not redundant, he brings down this flag, disqualifying tnai benei Gad as a source for particular laws of tnaim.
 
     Rashi, on the other hand, understood that tnai benei Gad is accepted as the paradigm of all future tnaim not because of a yetura dikra, but a different reason.
 
     How do we know that ANY tnai works?  Normally, a person does a ma'aseh kinyan (an act), and the chalot (the change in legal status) follows immediately.  In the context of tnai, we do just this and yet, magically, the final chalot is delayed, until the tnai mechanism allows it to take effect.  Tnai can be viewed as quite a "chiddush" (innovation).
 
     For this reason, we can view tnai benei Gad not merely as a source from which we derive certain details of the laws of tnai, but rather as the origin of the validity of the actual mechanism of tnai.  We can now appreciate Rashi's contention that R. Chanina who holds that there is no yetura dikra of tnai kaful, nevertheless learns all remaining aspects of tnai from tnai benei Gad. The validity of tnai itself, and some of its halakhot, are still learned from this condition made by Moshe.
 
     To sum up this point: The way R. Chanina relates to tnai benei Gad, after neutralizing the yetura dikra of tnai kaful, depends on whether all tnaim require a primary source in the Torah or if tnaim have a natural or logical basis.
 
     This particular query (is tnai a logical legal structure or a chiddush created by the Torah) may help explain the dispute among the Rishonim about how to differentiate between tnai and ta'ut (error).  [Please see shiur #20, section I for an excellent summary - in particular section Ic.]
 
     According to Tosafot (Kiddushin 49b s.v. Devarim) whenever there is a reasonable assumption (umdana) that the person enacting the given transaction (makneh) would demand a particular condition - the rules of tnai (mishpetei tnaim) are not required. It would appear that Tosafot view tnai as part of a natural legal structure used to communicate or focus the willful intent (da'at) of the makneh - used when the conditions of the da'at makneh can not be otherwise assumed.
 
     The Rashbam (in the same Tosafot) and the Ra'avad are of the opinion that mishpetei ha-tnaim are not required in all monetary manners.  The da'at makneh can be limited in any manner the makneh chooses by regular logical legal terminology.  "Official" tnai is only required in matters of issur such as marriage and divorce: institutions whose existence are legislated by the Torah, and are therefore regulated through a structure created by the Torah.(This idea can possibly be applied to explain the opinions of the Rambam and the Ramban as well. The Rashba's opinion is problematic, as pointed out in Tosafot, Ramban, Rambam and others; however, this is not the proper place to expand.)II.  Mikhlal Hen Ata Shomeia Lav
 
     We have discussed the extent of the dispute between R. Meir and R. Chanina.  Let us now focus on the specific law of tnai kaful - the requirement to state both the terms of compliance and non-compliance when making a condition.  As we saw in the mishna, R. Meir requires this stipulation while R. Chanina does not.
 
     If we examine the mishna alone, we could assume that the issue is simply a question of accepting the gezerat ha-katuv (scriptural decree) or not.  R. Chanina is of the opinion that stipulating the terms of compliance is sufficient since it leaves little room for doubt as to his intent in case of non-compliance.  R. Meir agrees to this logic, nonetheless the Torah requires a formal, explicit vocalization of the terms of non-compliance terms.  Taken as such, it would be a locally focused dispute, relating specifically to  the laws of tnai.
 
     The gemara (here as well as in Shavuot and Nedarim) refers to the dispute using a more general term: R. Meir disputes  the logic that 'mikhlal hen ata shomeia lav' - from a positive statement you can infer its negative counterpart.  In Shavuot the gemara states the converse: R. Meir doesn't maintain  "mikhlal lav ata shomeia hen."  This formulation would seem to indicate that the dispute is not limited to tnai alone, but is of a broader nature.
 
     Indeed, our gemara applies the dispute to areas that seem to be only distantly related to tnai.  Avraham's oath with Eliezer; divine promises; the curse of a sota; even the Torah's actual explanation of specific laws.  (See our gemara 62a "Mei chatat" and in Shavuot 36b "Shetuyei yayin ve-peru'ei rosh.")
 
     The Yerushalmi, on the other hand, did not necessarily view these two phrases ("tnai kaful" and "mikhlal hen" to be synonymous.  [See Yeru. Kiddushin 3:3 (the last few lines) and Yeru. Shavuot 3:10.]  Taken at face value, the Yerushalmi is saying that R. Meir maintains "mikhlal hen," therefore logically alleviating the need to actually vocalize a "tnai kaful."  Yet, because of the "gezerat hakatuv," he at times requires full verbalization.  According to this, in areas outside of a formal tnai, R. Meir would maintain "mikhlal hen."
 
     Our gemara apparently views this dispute in a broader context.  We could simply use our first explanation and broaden it to include all areas where verbalization is relevant:A.  Rav Chanina feels that vocalizing the positive (or the negative) event and its consequence is sufficient since there is no doubt as to the INTENTION for the opposite event and consequence.  R. Meir, as a rule, feels that even the most clear INFERENCE cannot halakhically fulfill the required VOCALIZATION.
 
     So, one can say that the dispute revolves around the nature of the requirement of FORMAL halakhic vocalization.  This would seem to be the direction of the Tosafot (s.v. Bi-shleima).
 
     It is, however, possible to view the dispute less from the standpoint of halakhic requirements, and more in the direction of assessment of the levels of inference in natural communication.  We can relate to this possibility as a question of the clarity achieved via implication or as a semantic question:B.  Clarity of Implication
 
     The dispute can simply be what level of clarity one achieves with an inference.  R. Meir and R. Chanina might agree on the halakhic level of clarity required and yet differ how it can be achieved.  R. Chanina maintains that one achieves this level of clarity after vocalizing the "hen" (positive terms of compliance) alone, and R. Meir disagrees.C.  The Semantic Approach
 
     The Rambam in Hilkhot Nedarim 1:18 rules "He who says to his friend 'that which I eat with you SHOULD NOT BE CHULLIN ...' it is as if he said 'Anything I eat with you SHOULD BE A KORBAN' (the basic formulation of a neder) - which is forbidden."
 
     The Ra'avad points out (1:20) that this ruling of the Rambam follows the rule of mikhlal lav ata shomeia hen - which is AGAINST R. Meir's logic, while elsewhere the Rambam follows R. Meir!
 
     An answer for the Rambam can be found in Tosafot (Nedarim 11b s.v. Tanya).  Tosafot explain that this mishna (Nedarim 10b - quoted by the Rambam above) can be explained according to R. Meir.  When a person makes a statement requiring more explanation, R. Meir would consider it a case of mikhlal lav.  However, if he states a phrase such as "not chullin" is as if he specified his words explicitly - "not chullin but a korban."  While Tosafot differentiate between mikhlal lav and an idiomatic phrase, the Ra'avad seems to equate the two.  Along these lines, we can explain that both R. Meir and R. Chanina agree that in areas where speech is required, only actual vocalization suffices.  R. Chanina maintains that whenever uttering the "hen" phrase, a person has actually vocalized the "lav."  For when a hyphenated phrase's full meaning is so clear to any human ear - it attains the level of actual verbalization, much like the use of an idiom.  Mikhlal hen ata SHOMEIA lav would mean literally "you HEAR the negative."
 
     We have presented three ways of understanding the dispute between R. Meir and R. Chanina.  The former revolving around the formal halakhic requirements of speech, the latter two understandings pivoting on the assessment of the power of inference in communication.III - Testing our Understandings
 
     We have mapped out three explanations - let us test them in two areas:1. In relation to the peshat of our mishna.2. In relation to the gemara's application of the dispute.1. Vis-a-vis the mishna: The latter two explanations of the dispute pose a problem with the simple reading of the mishna.  The mishna presents the dispute as an outgrowth of a disagreement in parshanut ha-mikra (exegesis).  Is Moshe's phrase redundant or fully essential?  R. Meir learns tnai kaful as a gezerat ha-katuv from its redundancy, not because he had prior opinions on communications or semantics.
 
     In order to accept the latter two directions that we have posited, we must understand that the primary reason behind R. Chanina and R. Meir's views are their opinions on communications.  This then caused their needs to explain the pasuk differently.  While not necessarily ringing true from the plain reading of the mishna, this seems to be the direction taken by our gemara.  With each new question raised through the various pesukim it brought, the gemara broadens the question beyond hilkhot tnai.2. Vis a vis the gemara: In truth, the gemara's application of the dispute between R. Chanina and R. Meir to the various areas other than tnai is, in and of itself, problematic.  However, the difficulty might be eased somewhat depending on which of the above three explanations we choose.  In the area of tnai, the requirement of a strict formal statement structure is understood.  However, in the other areas where the gemara (61b-62a) applies the dispute of "mikhlal hen ...," it becomes difficult to accept that R. Meir would require formal vocalization.  Tosafot deal with this difficulty head on, by explaining that an aspect of tnai exists in the process of sota (s.v. Bi-shlama Le-R. Chanina) and even in 'mei chatat' - the process of purification (s.v. Bi-shlama Le-R. Meir Hainu).  This is a very daring step because it takes the issue of a two-sided expression of the Torah out of the realm of parshanut, transforming it into an aspect of the very nature of the halakha of mei chatat (see Tosafot).  Although Tosafot go to great extents to keep our whole gemara within the context of tnai kaful (as opposed to broadening it to the concept of mikhlal hen ...), it must have been clear to them that the gemara in Shavuot cannot be limited to the realm of tnai.  Their possible motive might have been the simple reading of our mishna.
 
     Once we explain that the crux of the disagreement lies in what level of communication we attribute to inference, it is easier to understand our gemara's various applications.
 
     The gemara in Shavuot 36a-b concludes that R. Meir agrees to mikhlal hen ... in cases of pure issur (ritual prohibitions), and only maintains his requirement of 'tnai' kaful in cases involving monetary repercussions. The logic in this would seem to be that a greater level of clarity is required specifically because of the involvement of other parties.  According to our first explanation, R. Meir would require actual vocalization of both negative and positive terms even if stating one term would leave its counterpart perfectly clear.  This would leave little reason to differentiate between monetary and issur related statements.  However, in the second explanation R. Meir does view a single-sided statement as less clear.  We could therefore explain that R. Meir requires tnai kaful only in monetary  issues as they involve another party, and would thus justify requiring more clarity.
 
 
Sources for next week's shiur:
 
Mishna Kiddushin 62a, and Gemara ad. loc. 62a-63a.
 
See also Gemara Bava Metzia 16a: "peshita...samcha da'atei;" Mishna Bava Metzia 33b; Gemara ad. loc. 33b-34a: "matkif la Rami Bar Chama... lo avid inish d'makni."  See also Bava Metzia 66b: "v'ha'itmar, ha'mocher perot...l'olam yachol lachzor bo."  See Nemukei Yosef, Bava Metzia, 37b in pages of Rif, c.v. amar.  Nedarim 85b: "bishlama adam...chavero."  Choshen Mishpat 197:7, and Shach ad. loc.
 
For further research: Yevamot 92b-93b: "amar R' Yanai...min ha'ra'uy lo," Mishma Ketubot 58b, and Gemara until the two dots.  Gemara, ad. loc. 59b: "amar Shmuel halakha k'R. Yochanan ha'sandlar... until Mishna 59b.  See also Gemara Gittin 42b-43a: "ibayi l'hu eved she'machar...mai," and Bava Batra 79a, "tanu Rabbanan, hekdeishan...b'mah sheb'tochan," and ad. loc. 79b, "elah amar Rabah...l'shovach."
 
Consider the following questions:
 
1)Which seems more logical:  One can or cannot be makneh a davar shelo ba l'olam? Why?
2)What might be the various problems with being makneh a dava shelo ba l'olam?
3)Categorize the various cases of davar shelo ba l'olam.  How might this affect whether one can or cannot be makneh them?
4)How would our sugya in Kiddushin 62a-63a be explained in light of the different possible problems with a davar shelo ba l'olam?