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In Memory of Rav Prof. David Weiss Halivni, z”l: An Exploration Through and Beyond One of His Talmudic Comments

Since hearing the news Wednesday morning of the death of Rav Prof. David Weiss Halivni, z”l, my teacher and my shul rabbi during a formative stage of my life, I have been flooded with memories and reflections, some deep, some charming and playful. I don’t feel ready yet to organize them nor to transmit them in ways that honor his positive impact on me and the community without, God forbid, alienating or injuring those who were impacted less positively. Rav Halivni was extraordinary in certain ways, but was also, like all of us, complicated. For now, I would like to honor Rav Halivni, z”l, and offer a small boost to his neshama’s ‘aliyah, by sharing one small teaching of his from his magnum opus, Mekorot UMesorot, his breathtakingly ambitious, source-critical commentary on the Babylonian Talmud. I hope that through this teaching, we will get a clearer view into the massive implications of Rav Halivni, z”l’s, scholarly position that the Talmud was edited over time and in various locations, that the stammaim were late, and that not everyone in the Talmud, no matter how great, knew everything else that appeared in the Talmud. We will look at one short, innovative comment (hiddush) of Rav Halivni’s from Mekorot UMesorot on Nashim, p. 634-635. This, the first volume of the eventual eight, was written before Rav Halivni had fully committed to his proposition that the anonymous voices of the Talmud (which he dubbed the “Stammaim”) were later than all the named Sages or to other aspects of his redactional theories. I heard him say more than once that if God granted him the strength and time to finish his commentary on the Talmud, he hoped to go back and re-do Seder Nashim properly. Nevertheless, in these early grains of his theory, we can witness his explosive creativity and remarkably sensitive feel for what Talmudic teachings are supposed to sound like and when something strange is afoot. We will conclude with some personal, halakhic ruminations on the sugya at hand.

A Surprising Teaching of Rava

The Talmud records a surprising ruling of the great, 4th generation, Babylonian sage Rava, that when someone indentures another person as an indentured servant (‘Eved ‘Ivri, “Hebrew slave/servant”), the indenturer does not have the power to forgive the debt (Kiddushin 16a):

“Rava said, this is to say, the body of a Hebrew servant is owned and if a master relinquishes his deduction, his deduction is not relinquished.”

“אָמַר רָבָא זֹאת אוֹמֶרֶת עֶבֶד עִבְרִי גּוּפוֹ קָנוּי וְהָרַב שֶׁמָּחַל עַל גִּרְעוֹנוֹ אֵין גִּרְעוֹנוֹ מָחוּל.”

This seems strange. Logic/s’vara would indicate that since any creditor can waive a debtor’s debt, they should be all the more able to waive this debt, of someone who is more destitute and desperate than an average debtor, someone so destitute that they had to indenture themselves to pay off the debt with labor. Moreover, Rishonim (medieval Talmud commentators, eg, Tosafot, Bava Metzia’ 99a, s.v., “דלא”, Rashba on Kiddushin 16a) struggling with Rava’s teaching have already pointed out that Rava can’t really, fully, mean that the body of an indentured servant is owned (גופו קנוי), because the Mishna explicitly says the opposite in several places. Contrasting indentured servants with enslaved people, the Mishna teaches in three separate contexts that indentured servants (‘Eved ‘Ivri) can enact business acquisitions on behalf of the indenturer whereas slaves (‘Eved Cana‘ani) cannot do so for those who enslave them (Ma’aser Sheni 4:4, ‘Eiruvin 7:6, Bava Metzia’ 1:5). The third case is the simplest to understand: if an indentured servant finds a lost object, it belongs to them; if an enslaved person finds a lost object, it belongs to the slaver. These are explicit mishnayot teaching that an indentured servant (‘Eved ‘Ivri) is not owned and maintains legal agency. How can Rava say the opposite?

A fourth mishna might heighten the problem. Bava Metzia’ 8:3 lists various characters who can function as legal messengers to acquire a loan on behalf of a borrower. The mishna ambiguously includes an עבד/‘eved, without specifying whether it’s referring to an indentured servant or a slave. In the Talmud Yerushalmi, the 2nd generation amora Rabbi El‘azar interprets this mishna as an indentured servant/‘eved ‘ivri (‘Eiruvin 7:6/24c, Kiddushin 1:3/60a), while Rabbi Yohanan interprets it as referring even to a full slave/’eved Cana‘ani. The same dispute plays out between first-generation Babylonian sages in the Talmud Bavli (Bava Metzia‘ 99a), Sh’muel saying that the ambiguous mishna refers only to an indentured servant/‘eved ‘ivri, while Rav says that it could refer even to a full slave/‘eved Cana‘ani. To recap, three mishnayot explicitly teach that a “Hebrew servant/עבד עברי”, an indentured servant, is still an independent economic agent, not the property of their indenturer, but someone working off a debt, and some early amoraim thought that a fourth mishna does so, as well.

Because of these powerful and (for the first three) uncontroversial early sources, the Rishonim find themselves forced to say that Rava doesn’t really mean what he says and they significantly defang his teaching of its legal import. Instead, they interpret him to mean that the only way in which an indentured servant is like someone who is owned bodily is that the indenturer cannot waive the remainder of the debt. In the language of the Rashba:

“‘Rava said, this means that an ‘eved ‘ivri’s body is owned’ — that is to say, vis-a-vis redemption, in that [the indenturer] cannot waive the remainder [of the debt] without a written document.”

אמר רבא זאת אומרת עבד עברי גופו קנוי. כלומר לענין פדיון, דאינו יכול למחול לו גרעונו אלא בשטר…

Legally speaking, with the goal of harmonizing these texts, the Rishonim’s gutting of Rava’s teaching seems necessary, legally “correct”. But it sure doesn’t sound like what Rava says. It sounds like he’s making a more sweeping, far-reaching statement. One of Rav Halivni’s most persistent teachings was that when Rishonim have to stretch plain reading in order to reconcile one text with others, some rupture is likely present in textual transmission; something might be lost in transmission that may be able to be restored via source criticism.

Rava’s Source: A Surprising Baraita

Recall that Rava’s teaching began “that is to say/זאת אומרת”, a common Talmudic phrase to introduce an amoraic teaching deriving a legal implication from an earlier, authoritative source: the earlier text taught X; that is to say Y farther-reaching implication. In our case, the source in question is a baraita introduced a few lines earlier about methods of emancipation:

“It is taught: And one acquires oneself via money, via the equivalent of money, or via a document.”

 תָּנָא וְקוֹנָה אֶת עַצְמוֹ בְּכֶסֶף וּבְשָׁוֶה כֶּסֶף וּבִשְׁטָר.

Rava understood this baraita to refer to ‘Eved ‘Ivri/Hebrew servant, and therefore concluded that, short of paying off the rest of the debt, if such a person needs a legal document of manumission, then it must be that they are considered legal property and cannot be freed orally in front of witnesses. The style of this baraita is immediately recognizable from similar texts in the Mishna and other tannaitic collections. The content, however, is bizarre and divergent from other tannaitic sources. The Mishna taught the following methods of manumission for an ‘Eved ‘Ivri (Kiddushin 1:2):

“A Hebrew servant…acquires oneself via years or via the Jubilee or via the deduction of money.”

עֶבֶד עִבְרִי…וְקוֹנֶה אֶת עַצְמוֹ בַּשָּׁנִים וּבַיּוֹבֵל וּבְגִרְעוֹן כֶּסֶף.

Rav Halivni points out two difficulties:

  1. If, as the baraita teaches, a legal document is a method of manumission for an ‘eved ‘ivri, why does the Mishna not include it? He notes that Rishonim already raise this problem and easily shows how their forced resolutions are unconvincing.

  2. When the baraita includes money among the methods of manumission, why doesn’t it use the phrase “deduction of money/גרעון כסף”? That’s the terminology for paying off the remainder of the debt in the Mishna we cited, as well as numerous other places throughout tannaitic literature (Mekhilta of R. Yishma‘el, Mishpatim, Nezikin 3; Mekhilta of RShB”Y on Exodus 21:7-8; Sifra, BeHar 8:5; Sifre Devarim 118). Prior to search engines, this is a display of Rav Halivni’s total mastery of Rabbinic literature, to hear the absence of a conventional turn of phrase.

I will add another problem: this baraita does not appear in any other tannaitic collection, nor, as far as I can find, in the Talmud Yerushalmi. At the time Rav Halivni wrote this comment, the field of Talmud scholarship tended to accept that there were other tannaitic texts beyond those recorded in our collections, and some of them were recorded in the Bavli. These are the many Bavli baraitot without prior witness. Over the next generation, the field of Talmud scholarship, led by Rav Halivni’s colleague, Prof. Shamma Friedman, ייבדל לחיים טובים וארוכים, largely came to doubt the existence of tannaitic texts outside the extant collections and came to view unparalleled Bavli baraitot as later Babylonian constructions. unparalleled in strongly in a direction. At the time of Rav Halivni’s writing on Seder Nashim, a baraita unattested in tannaitic collections was not itself grounds for suspicion. For us, though, today, I suggest that our baraita is already suspicious just because it has no parallel. Be that as it may, for a tannaitic teaching to diverge from the Mishna as strongly as our baraita does, but not to be known or to show up in tannaitic disputes, seems strange to me.

As a reminder, our baraita teaches that one achieves manumission via money, via the equivalent of money, or via a document.

וְקוֹנָה אֶת עַצְמוֹ בְּכֶסֶף וּבְשָׁוֶה כֶּסֶף וּבִשְׁטָר.

The second of these methods, the equivalent of money, in this context, also smells like a Bavli addition. Rav Halivni notes that the Tosefta at the beginning of our chapter teaches how a woman can be married via money:

“Via money, how so? If he gave her money and said to her, ‘You are married to me’, ‘You are betrothed to me’, ‘Behold, you are a wife to me’, behold, she is married to him.”

בכסף כיצד נתן לה כסף אמר לה הרי את מקודשת לי הרי את מאורסת לי הרי את לי לאינתו ה”ז מקודשת.

The Bavli’s version of this Tosefta (Kiddushin 5b) adds the phrase “or the equivalent of money/או שוה כסף”. Printed editions of the Tosefta then add these words, as well, which are missing from Tosefta manuscripts.

What is left, then, is a baraita that teaches,

“And one acquires oneself via money or via a document.”

וְקוֹנָה אֶת עַצְמוֹ בְּכֶסֶף וּבִשְׁטָר.

Rav Halivni’s Big Hiddush: The Baraita Was Not about Indentured Servants

Here we find Rav Halivni’s creative insight, tempered in a caveat that he likely would have done without later in his career, when his theory was more fully developed:

“Were it not for the gemara, I would say that what is being spoken about in this baraita is a full slave/‘Eved Cana‘ani, and this language is precisely the language of an early mishna”

ולולא הגמרא הייתי אומר שהמדובר בברייתא זו הוא עבד כנעני, ולשונה היא ממש לשונה של המשנה עתיקה.

Rav Halivni is suggesting, explosively, that while Rava and everyone after him thought that the baraita was referring to indentured servants/‘Eved ‘Ivri, it was actually referring to full slaves/‘Eved Cana‘ani.

What does Rav Halivni mean by “early mishna”? The Mishna teaches the following about the methods available to a full slave/‘Eved Cana‘ani for manumission (Kiddushin 1:3):

“A Canaanite slave…acquires oneself via money by other people, or via a document by himself; the words of Rabbi Meir.

And the Sages say: via money by oneself, or via a document by other people, so long as the money belongs to others.”

עֶבֶד כְּנַעֲנִי…וְקוֹנֶה אֶת עַצְמוֹ בְכֶסֶף עַל יְדֵי אֲחֵרִים, וּבִשְׁטָר עַל יְדֵי עַצְמוֹ, דִּבְרֵי רַבִּי מֵאִיר.

וַחֲכָמִים אוֹמְרִים, בְּכֶסֶף עַל יְדֵי עַצְמוֹ וּבִשְׁטָר עַל יְדֵי אֲחֵרִים, וּבִלְבַד שֶׁיְּהֵא הַכֶּסֶף מִשֶּׁל אֲחֵרִים:

For Rabbi Meir and the Sages to have this dispute, they presumably would have had before them a prior, sparser mishna simply teaching:

“A Canaanite slave…acquires oneself via money or via a document.”

עֶבֶד כְּנַעֲנִי…וְקוֹנֶה אֶת עַצְמוֹ בְכֶסֶף וּבִשְׁטָר.

They disagreed about the conditions in which these mechanisms can effect manumission and the final Mishna incorporates their dispute into the text of the earlier mishna. But this earlier, skeletal, mishna is detectable. It is also precisely our baraita, without the Bavli gloss of “the equivalent of money/שוה כסף”. Seeing our baraita as the early mishna about ‘Eved Cana‘ani, the meaning of which Rabbi Meir and the Sages disputed, eliminates all of our mysteries:

  • The Mishna didn’t include documents among the methods of manumission for indentured servants because documents aren’t methods of manumission for them; they are only a method for full slaves, who are fully possessed by their slavers;

  • The baraita doesn’t include the term “deduction of money/גרעון כסף” to describe indentured servants paying off the remainder of their debts because the baraita was talking about full slaves, not indentured servants. Full slaves aren’t debtors and can’t pay anything off.

  • It is not true that this baraita appears nowhere else in tannaitic literature; we were just looking in the wrong place. It appears as the skeleton of Mishna Kiddushin 1:3, about full slaves (with a typical Bavli gloss).

In footnote 8, Rav Halivni notes that he subsequently found an earlier scholar, Haim Shaul Horowitz, who also sensed that the baraita would make more sense in reference to ‘Eved Cana‘ani, but didn’t elaborate.

Rava Was Smart, Though; Why Did He Think this Baraita Was about Indentured Servants?

What most scandalized many traditionalists about Rav Halivni’s scholarship was the confidence — arrogance, they objected — to assert that our Sages got the text wrong, that he knew something that Rava didn’t. Indeed, Rav Halivni doesn’t address here why Rava would have mistakenly thought that the baraita was about ‘Eved ‘Ivri, but we should, which will require some speculation. Many academic scholars criticized Rav Halivni for indulging in speculation; I think that his practice of this honored path of learning is one of the best aspects of his scholarship, a seat of a different kind of understanding from proof, but no less important, as long as it is recognized as such. As tiny people standing on the shoulders of giants, I think we can offer a plausible suggestion that by Rava’s time, so much discussion and teaching based on the dispute between Rabbi Meir and the Sages had proliferated that their dispute couldn’t be “unseen” or “unknown”. Once they asked about the second order questions over mechanics of how an enslaved person can have money to give or can receive a legal document, an early mishna simply teaching that they can pay money or receive a document, with no further detail, seems reckless, even primitive, and therefore illegible. I suspect there’s something more in early Amoraic development of the laws of slaves and indentured servants that I’m missing. צ”ע.

Was Rava Even Issuing a Ruling?

Rava encountered a strange, skeletal, tannaitic teaching about some kind of servant/slave earning manumission via money or a document, ruled out reading it as addressing slaves/‘Eved Cana‘ani, and read it, instead, as referring to indentured servants/‘Eved ‘Ivri. In response to that early teaching, he teased out an implication:

“this is to say, the body of a Hebrew servant is owned and if a master relinquishes his deduction, his deduction is not relinquished.”

“זֹאת אוֹמֶרֶת עֶבֶד עִבְרִי גּוּפוֹ קָנוּי וְהָרַב שֶׁמָּחַל עַל גִּרְעוֹנוֹ אֵין גִּרְעוֹנוֹ מָחוּל.”

Rav Halivni notes that this statement is not necessarily a legal assertion. Rava may well have been encountering this strange baraita and teasing out what it would imply, highlighting how contrary or radical such an implication would be. Rishonim understand “this is to say/זאת אומרת” teachings in this sense elsewhere: in their language, “‘this,’ but he doesn’t reason so/זאת ולא סבירא ליה”. Tosafot interpret at least one other “this is to say/זאת אומרת” teaching of Rava’s in this way (Yoma 6b, Tosafot Zevahim 33a, sv הגה”ה מכלל). Rav Halivni raises this possibility and rejects it because the anonymous voice of the gemara (the stamma) elsewhere says that Rava’s position is that “A Hebrew servant’s body is acquired/ע”ע גופו קנוי” (Kiddushin 28a and Bava Kamma 113b). I suggest that Rav Halivni rejected his own suggestion too quickly. Those two gemarot may show the stam reading Rava as ruling when he says, “this is to say”, but that doesn’t mean that that’s what he was doing. More importantly, though, the stam is not necessarily committed to what it’s saying in those two cases. It may not be asserting anything legally, but offering a suggested framework for resolving a dispute about a different topic, for the sake of the give and take, לשקלא וטריא בעלמא, להגדיל תורה ולהאדירה. These two sugyot require further study. I can’t help but wonder: had Rav Halivni lived to rewrite Mekorot UMesorot ‘al Seder Nashim, would he have returned to his suggestion that Rava never even ruled that an indentured servant’s body is acquired and therefore, by implication, the indenturer cannot simply waive the remainder of the debt? That we can never know; death has cruelly cast us eternally in the dark. Nevertheless, in his memory, I would like to suggest it: Rava was encountering a bizarre baraita and spelling out, incredulously, the surprising implications such a strange text would make.

If Rav Halivni was correct about the p’shat of this unusual baraita and if I’m correct about the p’shat of Rava’s teaching, then my instinct is validated that it would be very discordant with Torah, tannaitic literature, and legal reasoning/s’vara to say that an indenturer lacks the authority to summon witnesses and waive the remainder of the debt: why should a more destitute debtor be more stuck in a more exploitative debt relationship than less destitute debtors? It was discordant; the tannaim never taught such a thing, and maybe neither did Rava, who was perhaps, actually shocked by the notion.

Making Moral, Halakhic Sense of the Rule that Stuck Around

I would like to move beyond the scope of Rav Halivni’s genre of teaching and offer halakhic reasoning. Even if the genealogy of a halakha is a case of broken transmission, its staying power may reflect a wise idea that deserves longevity; after all, other texts get overruled. The Rishonim limit Rava’s teaching to the particular law that an indenturer must write a legal document of manumission in order to free an indentured servant before the debt has been fully paid. In no other way may we liken labor debtors to slaves. I am suggesting that this requirement, while seeming to be an impingement on the freedom of the indentured servant, is actually the opposite. Let’s consider how.

Jeremiah 34:11-16 (the haftarah for Parashat Mishpatim) describes a corrupt owning class population who, after finally releasing their indentured servants in accordance with Torah law, sinfully re-enslaved them. I’ve long wondered what the mechanisms were through which the indenturers managed to re-indenture their former debtor servants. It occurs to me that if someone is indentured to someone else and then the indenturer just says “You’re free” one day, even if there are witnesses, it’s probably, socially, too easy for that same indenturer to say a month later, “that was just for a break; you’ve got to come back now” or otherwise to assert domination and continuing hold on the formerly indentured person. Another formerly indentured person now tries to hire out as a day laborer and the prospective employer says, “Hey, wait a minute, aren’t you Reuven’s indentured servant? I can’t hire you and get mixed up with him!” Then the freed person says, “No, he freed me!” and the employer says, “yeah, that’s what they all say; the last thing I need is a problem with the law or with that other person I might need to do business with.” Maybe the indenturer needs to gain some social capital with progressives and makes a gesture of freeing his indentured servants, but subtly communicates within the Chamber of Commerce that he didn’t really free them. Then no one hires them and the workers go back and willingly re-indenture themselves to the original indenturer, who now has his social capital and his servants, able to say that they “chose” their dependent status. We don’t have to look too hard to find myriad examples of these phenomena today.

Requiring a document enables the freed person to show it anywhere and have total clarity that they are not indentured to anyone. When there are relationships of power and domination, enabling contexts of exploitation, it is imperative to demarcate the end of their reach. Rav Halivni’s source critical analysis can lead us not to over-read a strange text, flattening it to mean, against precedent and reason, that labor debtors should be seen as fundamentally stripped of their agency, God forbid. The core law preserves the agency and freedom of debtors, even as exploiters try to crush them. It would be a textual error to confuse debt with slavery, to allow debt to be treated like slavery. ישראל אם לאו נביאים, בני נביאים הם: stumbling on such an error admits only one kind of stringency: the stringency that will ultimately protect the debtor from the abuses that law-violators will try to get away with, in the face of the prophet, the court, and God.

May the memory of rabbi, my teacher, HaRav Prof. David ben Ephraim Betzalel Halivni, z”l, be for a blessing.

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