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Rabad – Disrupter of Tradition? A Response to Haym Soloveitchik’s “Rabad of Posquieres: A Programmatic Essay”
s one who had marveled at the attention showered on Rambam two decades ago on the 800th anniversary of the completion of his magnum opus, the Mishneh Torah, I had no illusions that Rabad would be as fortunate. But, quite honestly, I had cherished a hope that the 800th anniversary of Rabad’s passing1—his yahrzeit—would elicit some special excitement and interest. Indeed, I myself was involved in an effort to persuade the mayor of Vauverp, France—modern-day Posquieres —to fete their greatest son on this occasion. Alas, the celebratory gesture never came to pass. Wherein lies the greatness of Rabad? Rabbi Avraham ben David of Posquieres was much more than a great scholar of 12th century Provence (southern France). Rabad was one of those early rishonim whose work made a profound and ongoing impact on Halakhah and talmudic exegesis. Indeed, R. Menahem haMe’iri called him “the greatest of the commentators,” gedolei ha-mefarshim,
EPHRAIM A. BUCKWOLD serves as Rabbi at Congregation Simtat ha-Givah, Savion, Israel, and as Rosh Kollel at Bet Midrash Tiferet Israel, Savion. He published an annotated edition of Rabad’s Ba‘alei ha-Nefesh (supplemented with an anthology of Rabad’s scattered commentaries on mikvaot), presenting the several editions in which Rabad revised his work.
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as well as “the greatest of the critics,” gedolei ha-maggihim. Ramban and Rashba often refer to him as “ha-Rav.” Even though most of his writings were lost,2 the imprint of this towering genius was preserved through those that survived,3 and through the citations and responses in the later rishonim. Before the spirit of the octo-centennial passes entirely, I would like to give a different presentation of the history of Halakhah, and Rabad’s role in particular, from the powerful presentation penned by Professor Haym Soloveitchik in his “Rabad of Posquieres: A Programmatic Essay.”4 This provocative essay does represent a significant contribution to modern scholarship in that it documents the true breadth of Rabad’s achievement, as well as the nature of his subsequent influence. It demonstrates that Rabad’s influence on the later rishonim derived mainly from his commentaries and works of halakhah—not the famed hassagot on the Mishneh Torah. However, there is a second major theme in the “Programmatic Essay.” Rabad is presented there as a revolutionary rishon who “disrupted” and “basically dispensed with” the Geonim who preceded him. “The works of Rabad,” we are told, “will reveal to us the declaration of European independence from Geonic thought.” “Not that they5 overthrew the past—Heaven forbid; they simply rendered much of it irrelevant. And it is not for the meek to discard 500 years of tutelage” (pp. 1114, 37).6 A third major theme of the “Programmatic Essay” (pp. 30-36) is Rabad’s contribution to the development and evolution of Halakhah. We are told “how he transformed his heritage.” “Law . . . has an antipathy to radical change; thus the revolutionary jurist must disguise his innovations—at times even from himself ” (p. 31). We will attempt to show that these latter two contentions do not stand up to close scrutiny.
Let us begin by examining the sole evidence marshaled for Rabad’s supposed indifference to the teachings and authority of his predecessors: the seemingly diminished Geonic presence in his work. As Soloveitchik puts it, “take away the Geonim from Rabad and the loss is barely noticeable.” 7 He observes a basic distinction between the works of Rabad and those who preceded him. Rabad is found “to confront talmudic texts unaided . . . to penetrate into those areas where no commentarial tradi-
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tion was available,” whereas his predecessors’ writings “are a storehouse of Geonic literature.” Apparently, Soloveitchik is attempting to present evidence that the absence of Geonica in Rabad’s writings proves that he ignored Geonica.8 His essay, however, does not cite specific examples of omissions by Rabad of a known Geonic teaching relevant to Rabad’s discussion. The only evidence presented is a superficial observation of his writings: “take away the Geonim from Rabad . . . the loss is barely noticeable.” Accepting, for a moment, Soloveitchik’s claim, we must realize that its significance will depend on the following premises being true: Premise 1—Rabad possessed Geonic knowledge—but ignored it—in those areas where he does not mention Geonic teachings. Premise 2—When Rabad does not cite any source, he is not relying on a Geonic source. Let us note parenthetically that many rishonim—perhaps most—regularly state the opinions of their predecessors without citing them as such, but rather as if the opinion stated is their own. If only one of these premises turns out to be unfounded, the argument founders. Let us start with the first premise. To properly assess whether or not Geonic literature was ignored by Rabad, we have to know just what literature they produced. This information is supplied by R. Menahem ha. Me’iri, in his monumental introduction to Avot.9 Me’iri also places Rabad in historical context, and briefly characterizes his unique achievement. To better appreciate Me’iri’s presentation, let us first take a glimpse at the literature the Geonim left behind. What does this literature have to offer on any given talmudic text? As can be seen from the great anthology of Geonica, Ozar ha-Geonim, Geonic texts come basically in . two forms: commentary and responsa. The Geonic commentaries are few and generally very technical, addressing textual issues (nusha’ot) in . the Talmud, and providing technical and literal explanations. The responsa, on the other hand, contain mainly halakhic decisions. An attempt to study a talmudic text with the aid of Ozar ha-Geonim alone . will quickly reveal that this combined literary corpus lacks both elucidations of the talmudic discourse as well as interpretations and definitions of talmudic concepts.10 Me’iri explains that the famed yeshivot of the Geonim had supplied this knowledge. The explanations of talmudic discourse in these yeshivot
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were so clear, that there was no need to commit them to writing.11 This does not mean that no problems existed that required discussion. Indeed, a contemporary of the Geonim reports how all the great scholars would gather together periodically at the great yeshivot for discussion and debate.12 But none of this discourse was written down.13 The closing of the Geonic yeshivot and prevailing harsh conditions led to a dearth of knowledge and understanding in the succeeding period. Geonic literature, as noted, was extremely limited. As Me’iri puts it: “It does not satisfy the hunger of the students at all,” iucgr rca ovc iht kkf ohsnk,nv.14 Me’iri describes this period and the literary role played by post-Geonic scholars—what we call “rishonim”—in filling this gap:
/whri ynzna hbin .uhatwhivt uhwtchjv /kgn vcjw/vt uhnfjv /ghsh rgn/b ctwk thke ufwm ctwn ,uckc uktgv /e //k /thwcv ck cbdt ,/twmv tksd hev cw ghdvt /tbtedv ynz wcgt .tbhkg /tntev xngnt /twhzdvt /wtja/vt uhxnvt uhktgv tnmg emtnt whgn sje utqc ,tng kg 'v /knjct .uhnfjv trgn/bt . . . /tbcwv ynz tnmg yq/n vhvt ,kfth waef t/ntek khgtvk tbnz hik chtjn tnmg vetw ,uka .atwhi lws uvnt , qxi lws uvn ,tc/fnc twtchjc /tcwvk
The knowledge of the scholars (of the post-Geonic era) dwindled and the prominence of the (codificatory) writings and the commentaries expanded. For since the passing of Rav Hai, troubles have increased, and people have misled themselves into placing the world [materialism] in their hearts, owing to their great need for it as a consequence of the many yokes, taxes, forced labor, decrees and the burden of the nations placed upon us. The Geonic period passed and the Rabbinic period arrived . . . and the scholars dwindled. (But) due to God’s mercy for his nation, one (scholar) in a city would arise and find himself complete (as a scholar), and would see himself obligated for his time to benefit his nation to the best of his ability, and would address himself to (the task of) authoring numerous written compositions, some in the form of halakhic decisions and some in the form of commentaries.15
The scholars of the new “post-Geonic” era, continues Me’iri, wrote either works of halakhic decisions or commentaries. Alfasi wrote clearcut halakhic decisions16 anchored in the talmudic discourse, while Ibn Giat wrote a general anthology of Geonic rulings of Halakhah, Halakhot Kezarot.17 R. Yehudah of Barcelona wrote an even more comprehensive . collection of halakhot, Hibbur Kolel18 which included a major collection . of Geonica. (Sefer ha-Eshkol of R. Avraham Av Beit Din of Narbonne, Rabad’s father-in-law, was basically an abridgement of R. Yehudah’s Sefer ha-Ittim.19) Preserving these remnants of the august Geonic era was one of the first steps necessary for the new era.
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As for talmudic commentary, the first great step in filling the vacuum was the unparalleled commentary of Rashi, a brilliantly lucid running explanation of the talmudic discourse. His commentary does not, however, engage in interpretation and definition of talmudic concepts. And because he aims at being comprehensive, Rashi does not confine himself to inferences that may be relied upon in Halakhah.20 Rabad’s commentary-novellae filled the remainder of the gap, discussing and defining the profound concepts of the Talmud in the context of the talmudic discussion. Me’iri notes that with this great contribution, Rabad was a “fountainhead” (atr) for the scholars of the following generations, as his form of elucidation combines commentary with Halakhic decision.21 This is probably what Me’iri meant when he called Rabad “the greatest of the commentators” (gedolei ha-mefarshim). Rabad saw no need to duplicate the achievements of the early rishonim. They had already written works aimed at preserving Geonic responsa. His own efforts on behalf of Jewish learning and law would be needed elsewhere. It is no wonder, then, that his commentary is not a storehouse of Geonica; his writings were comprehensive and filled in where written Geonica was missing! In his works of Halakhah as well, Rabad does not direct or limit his discussion to those topics where Geonica was preserved. He deals comprehensively with the issues he sees as essential. Rabad was clearly a pioneer in his period, but what evidence exists for the claim that he was a rebel? Soloveitchik’s observation, “Remove the Geonim from the Eshkol and the work collapses,” is undeniably true to a certain extent. We must bear in mind, however, that R. Avraham Av-Beit-Din’s Sefer ha-Eshkol is of a completely different genre than Rabad. As S. Albeck notes, the major objective of the Sefer ha-Eshkol was to present an abridged version of the great anthology of R. Yehudah of Barcelona, Sefer ha-Ittim.22 For this reason, the scope of the Eshkol is narrow, containing halakhic rulings only on certain specific issues, and sparse talmudic commentary. Rabad, in contrast, had a different agenda. He sought to be comprehensive in both his talmudic commentary and his halakhic rulings. Naturally, then, the percentage of Geonica in his works will be appreciably less. This does not in any way suggest that he “discard[ed] 500 years of tutelage.” Rabad’s different agenda explains, to a large degree, the absence of Geonica in his work. But there is also no doubt that Rabad simply lacked “Geonic tutelage” in many areas. Soloveitchik himself speaks of Rabad’s
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“almost unparalleled capacity to confront talmudic texts unaided, to wrest their meaning single-handedly that allowed Rabad to penetrate into those areas where no commentarial tradition was available—Halakhic midrashim, Qinim, and the Tosefta. . . .” (“Programmatic Essay”, pp. 1314). He goes on to quote Rabad’s famous proclamation at the beginning of Eduyot, “I have received no guidance in these [matters] from either rabbi or teacher (vrun hpn tku cr hpn tk vkt kfc hng hf).” [Emphases mine.] Indeed, as we have seen, only a very small percentage of Geonic teaching had been committed to writing and the oral transmission of Geonic tutelage was seriously impaired by the harsh conditions of the time. We even find Geonic teachings that were known to other rishonim but were unknown to Rabad and other scholars of Provence.23 Rabad himself stated that Geonic responsa available in Provence were not textually accurate or reliable.24 Furthermore, the commentary of Rabbeinu Hananel, with the exception of a few tractates, was apparently not avail. able in Provence of this time.25 Even the writings of R. Yehudah b. Barzelai of Barcelona, rich anthologies of Geonic literature, were scarce or unavailable.26 In general, books before the advent of printing did not circulate easily, and there is no evidence for the existence of great libraries in Provence. The key question, then, is whether Rabad “dispensed with” the Geonim in areas where their guidance was available to him. Did he ignore the known Geonica relevant to his discussion? As noted above, Soloveitchik compares the Eshkol to Rabad’s works: “Remove the Geonim from the Eshkol and the work collapses . . . take away the Geonim from Rabad and the loss is barely noticeable” (p.12). Does Rabad ignore Geonic references cited in the Eshkol? For a relevant comparison, we are obliged to focus on tractate Avodah Zarah, the only text for which we now have the commentary of both the Eshkol 27 and Rabad on an identical set of issues. 28 (Since Rabad’s work is a commentary, we must restrict ourselves to the commentarial material in the Eshkol.) Significantly, in the Eshkol I found only six explicit citations of Geonic commentaries29 plus one anonymous citation in his treatment of these issues (within 43 pages of the Eshkol, which amounts to about 10% of the published book)! Most of the commentary in the Eshkol is not cited as Geonic, but rather in the name of R. Yehudah of Barcelona, or unattributed altogether (seemingly commentaries of the Eshkol’s author himself, R. Avraham Av Beit Din of Narbonne).30 The Geonica cited is mainly responsa, quoted verbatim,
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which have little or no commentarial value. The commentary of R. Hananel on Avodah Zarah, as well as other Geonic sources, were appar. ently not available.31 In Rabad’s commentary, by contrast, I found no fewer than eight unequivocal citations of Geonic commentaries, besides at least 19 anonymous references (“oharpn ah”), possibly from the Geonic period or shortly thereafter. Most of the relevant content of the Eshkol’s Geonic references is reproduced by Rabad, besides numerous additional references of precedent opinions that do not appear in the Eshkol.32 To summarize: 1. Both the Eshkol and Rabad lacked important Geonic sources. 2. Most of the relevant Geonic content in the Eshkol is cited by Rabad. 3. In one instance, the Eshkol disagrees with a precedent opinion, while Rabad supports it (see n. 32, point 1). 4. The lower percentage of Geonica in Rabad is not due to omission of Geonic commentary, but rather to the comprehensiveness of his own commentary. A source specifically cited by Soloveitchik to support his claim regarding Rabad’s rejection of the Geonim is Rabad’s Ba‘alei ha-Nefesh. Soloveitchik asserts: “In the Baalei ha-Nefesh . . . the Geonim (including here R. Hananel and R. Isaac of Fez) are cited on less than a score of occa. sions” (“Programmatic Essay,” n. 10, emphases mine]. Soloveitchik obviously is counting only the explicit citations (a few exclusive sources whom Rabad names), of which there are exactly 20.33 However, when we include the anonymous references as well, we find three times as many!34 There are 17 citations in Sha‘ar ha-Perishah, 18 in Sha‘ar ha-Vesatot, none in Sha‘ar ha-Ketamim, three in the very small Sha‘ar ha-Sefirah, 11 in the small Sha‘ar ha-Tevilah, six in the long Sha‘ar ha-Mayim, and three in the long Sha‘ar ha-Kedushah—58 in all! Almost all of these citations are central, and the starting points of discussion (see n. 8).35 If we analyze the statistics, we will notice that Sha‘ar ha-Perishah and Sha‘ar ha-Tevilah are rich in Geonim (even in the explicit citations), and the Geonic sources take a very central place. (In parts of Sha‘ar haTevilah, Rabad builds on the Geonic She’iltot as if it were Mishnah.) Sha‘ar ha-Vesatot and Sha‘ar ha-Sefirah also contain many citations. In Sha‘ar ha-Mayim and Sha‘ar ha-Kedushah—by contrast—the precedent sources are few, and in Sha‘ar ha-Ketamim totally absent! Why? The answer is simple. On the topics of Sha‘ar ha-Mayim (mikvaot)
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and Sha‘ar ha-Kedushah (holiness in marital relations, and in general) almost nothing was previously written; there was almost no Geonic tradition. On Ketamim (blood stains), the Geonim wrote nothing, as Rabad’s father-in-law, R. Avraham Av-Beit-Din of Narbonne, reports:36
tbshtv tdhvb ht ohn,fs tbhs iujc ,hjfat tks t,tuucrs hkhn kfc h,bhhg
I examined all the writings of the Great Rabbis [the Geonim] and did not find in them the laws of ketamim (blood stains) if they apply today.
In other words: Rabad made good use of Geonic and precedent sources when he had them. However, when he lacked knowledge of Geonic teachings on the topic of his discussion, we naturally find “the absence of Geonica in Rabad’s commentaries.” Another source cited by Soloveitchik is Rabad’s commentaries: “The absence of Geonica in Rabad’s commentaries is nigh total” (“Programmatic Essay,” n.10). This observation, however, cannot be taken at face value. The fact is that of all Rabad’s talmudic commentaries, only his work on four tractates survived: Kinnim, Eduyot, Avodah Zarah and Bava Kamma, Of course, almost no Geonic references are found in his commentaries on Kinnim and Eduyot, since they were “areas where no commentarial tradition was available” (“Programmatic Essay,” p. 14). His commentary on Avodah Zarah, on the other hand, includes a substantial number of Geonic references (compared to the Geonic commentary brought in the Eshkol), as pointed out above. In his commentary on Bava Kamma, many anonymous citations of predecessors are to be found,37 and Alfasi is discussed regularly.38 (The great anthologies of R. Yehudah of Barcelona and Ibn Giat are not known to have covered the topics of this tractate, and apparently the commentary of R. Hananel on Bava Kamma was not available, even though Rabad . cites Rabbeinu Hananel three times.39) . A superficial check of Rabad’s Katuv Sham,40 his polemical critique of R. Zerahyah ha-Levi’s Sefer ha-Ma’or, yields interesting results. In the . tractate Berakhot, the Geonic sources are central. Counting roughly, there are 16 Geonic references in the 44 passages of Katuv Sham on Berakhot. In Eruvin, however, only one Geonic reference is made41 in all of the 84 passages. In Pesahim, there is a clear difference between the first nine chapters . and the tenth chapter, Arvei Pesahim (which deals with issues similar to . those in Berakhot). In the first part, I found only six Geonic references (most from Ibn Giat) in 58 passages, whereas the last chapter contains no fewer than seven Geonic references in only 18 passages. These sharp contrasts point to the probable conclusion: Rabad
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related to Geonic sources when they were available to him. On the issues in Berakhot and the similar issues in the last chapter of Pesahim, Rabad . possessed considerable knowledge of Geonica—mostly the rulings of Rabbeinu Hai Gaon. On the issues in Eruvin, however, he possessed little Geonic teaching. On the first part of the tractate Pesahim, he pos. sessed limited Geonic teaching, mainly from Ibn Giat. This dovetails perfectly with Me’iri’s description of the very partial and incomplete written heritage bequeathed by the Geonim:
uhngik te uhqwi /mqc uhngik te /thfxn /mqc yhatwhi uvn tbhewa uvnt h/kc uhrwi uhbhbgc uhwtchj /mq tbhewa uvn ,/twztin /tfkvt /tgtna /mqc . . . . uhkktf Of those [Geonic works] we have seen, there are commentaries on a small number of tractates, and sometimes [only] on a small number of chapters, and sometimes [only] on a small number of scattered teachings and laws. Of those we have seen, there are a small number of compositions on specific subjects in the Talmud, but nothing comprehensive. . . .
Comparing the first edition of Rabad’s Laws of Lulav to his own subsequent revisions is revealing. In the first edition, he cites the opinions of Alfasi when applicable, as well as two anonymous predecessors. But in his revised editions of Laws of Lulav, Rabad adds rulings of R. Platoi Gaon and R. Hai Gaon.42 Why did he originally make no mention of these Geonic opinions? Rabad himself provides the answer, explicitly noting that he discovered R. Platoi Gaon’s ruling years later, in the writings of R. Yizhak Ibn .. Giat.43 R. Hai Gaon’s ruling as well is to be found there. When Rabad had first written his Laws of Lulav, he apparently lacked this great source of Geonica.44 Note that Rabad wrote his first edition of this work while in exile.45 Rabad related to Geonic sources when he had them. Indeed, the brief halakhic section of Rabad’s Derashah le-Rosh haShanah includes the references to Ibn Giat that are relevant to his discussions. In two cases, Rabad defends the Geonic opinions against the arguments of Ibn Giat. In addition, in Rabad’s Laws of Harsha’ah (Laws of Power of Attorney, Temim De’im sec. 61-65), his frame of reference is clearly the rulings of the Geonim and Alfasi. The above conclusions apply to the rest of Rabad’s known writings. He commonly cites Geonic teachings, and they are his frame of reference, but—of course—only when he possessed them.46
Let us turn now to Premise 2—that the absence of explicit citation
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of a predecessor indicates that Rabad is offering an opinion with no Geonic source. The fact is that even when Rabad quotes no source for his ruling, he is often relying on a Geonic source. As Isadore Twersky points out, “We sometimes find theories in Rabad’s writings which contemporaries or successors attribute to Geonim.”47 One example will be discussed shortly.48 This practice, common in the rishonim49 (see also fn. 70), did not originate in Rabad’s writings. Rabbeinu Hananel had earlier done just . this when he reproduced Geonic teachings as if they were his own.50 Sefer ha-Ittim (R. Yehudah of Barcelona) followed this approach as well by reproducing Rabbeinu Hananel’s commentaries without citing them . as a precedent source. There is simply no way of knowing how many Geonic sources underlie Rabad’s rulings.
By this point it should be clear that there is no factual basis for the claim that Rabad “dispensed with” or “discarded” his Geonic predecessors and their teachings. Let us proceed now to establish positive evidence of his extremely high regard for them. Indeed, the question of Geonic authority following the close of the Geonic period was an openly discussed issue, and Rabad articulated his opinion in no uncertain terms. Zerahyah ha-Levi51 presents a disagreement between a “great scholar . of the prior generation” and himself as to the status of a post-Geonic jurist’s error due to ignorance of a Geonic ruling. The scholar compares such an egregious error to nothing less than a lack of knowledge of Mishnah (vban rcsc vguy). R. Zerahyah, in contrast, considers this . merely an error in logic.52 Rabad not only sides with the “great scholar” in the case of an error, but goes much further. He opines that a post-Geonic jurist lacks authority to disagree with a Gaon unless the jurist demonstrates a grave difficulty (“,nxrupn vhaue”) with the Geonic opinion. 53
/e gna eka k"z uhbtedv hqxic vgr uea ufjv wne /net . . . uvwce wne wntk hbe ctwqt .vban wcsc vgtr tvz wtwct /nec tc wztj vhv gna tkhet uvhwcs ytedv hwcsf eka t/gs hik tk vewba ugrn k"z uhbtedv qxi kg qktj vhv tkhiea uhbtedv hwcs kg qtkjk v/g tbk yhea ,etv vban wcsc vgtr vz ud ,tatwhif ekt ek ue ,ytedv hwcsn yhsv vb/aha hsf /wje lwsc yhhbgv awik tb/gs /hewn k"z 54.emnb eka wcs tvzt ./nxwtin vhatqc
The truth is with the scholar who stated that if (a post-Geonic jurist) errs in the ruling of the Geonim, of blessed memory—that he didn’t hear of
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their words and if he would have heard he would have reversed his ruling—it is true and clear that this is considered ‘an error in mishnah.’ And I would almost say that even if he would disagree with a ruling of the Geonim, of blessed memory, due to his own understanding differently from the Gaon and his commentary—this also is considered an error in mishnah. For in our time we may not disagree with the words of the Geonim, of blessed memory, based on our own perspective to explain the issue in another way so that the ruling will be different than that of the Gaon, unless there is a grave (literally “a famed”) difficulty (in understanding the Geonic opinion). And this is not commonly found.
It is most surprising that this explicit and emphatic declaration of Rabad on the authority of Geonim is not reckoned with in the “Programmatic Essay,” even though it is discussed by modern scholars.55 Only in a parenthetical note within a footnote (10), does Soloveitchik touch on this crucial declaration without revealing its content at all: “What Katuv Sham actually says is that discarding Geonic doctrine as convincingly as he, Rabad, did was simply a tmnb tka rcs. And who tried, did so at great peril.” I am at a loss to understand what Soloveitchik means. One thing does seem clear: Soloveitchik acknowledges that when Rabad disagrees with the Geonim, his argumentation is indeed convincing (,nxrupn vhaue). We, too, have found that only with convincing, powerful, and seemingly unanswerable questions does Rabad disagree with the Geonim. More often, we find Rabad struggling to answer the difficulties he finds in the Geonim. Indeed, by inspecting the sources, we can see how Rabad consistently sought, throughout his long life, to understand and justify his great predecessors,56 especially the Geonim.57
In the following fascinating case, we survey the development of Rabad’s thought, his changing opinions through his lifetime, via six discrete references. We witness here Rabad’s struggle to understand Geonica and find further evidence against the two key premises of the “Programmatic Essay” discussed above. The Talmud specifies certain regulations concerning the validity of conditions in a legal agreement (including commercial contracts, marriage, divorce, etc.)—ohtb,v hypan. The source for these regulations is the Biblical account of “Benei Gad and Benei Reuven,” who received territory in Trans-Jordan by agreeing to the condition that they would join their brethren in battle (Num. 32). We find two Geonic opinions as to
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when these regulations for a special form of a condition are not necessary: • According to Rabbeinu Hai Gaon (followed by Rabbeinu Hananel, . Alfasi, and Rambam), a specification that the agreement will take place immediately renders any form of condition valid. • According to a second Geonic opinion, in monetary transactions any type of condition is valid. Only in religious agreements such as marriage and divorce, is there a need for the special regulations. 1. In Rabad’s hassagot on Hilkhot Alfasi 58—written in his youth (as Rabad calls this period)—the great rishon contests both opinions with a powerful, seemingly unanswerable, question: Both views seem to be contradicted by the biblical source of these regulations. The condition of Benei Gad and Reuven was both monetary (involving land acquisition) and immediate.59 Rabad also contends that the first opinion lacks a good rationale. Incidentally, Rabad attributes the first opinion only to Alfasi. He even suggests a different inference in Alfasi, abandoning the simple meaning of Alfasi’s words. Ramban, in his Sefer ha-Zekhut, discerns that Rabad did not know of R. Hai Gaon’s responsum. This is evidence against Premise 1. 2-3. In his Katuv Sham, written some thirty to forty years later,60 no change is found in Rabad’s opinion. In tractate Gittin (Katuv Sham, p. 133) he continues to reject the opinion of Alfasi—even after R. Zerahyah’s noting that he found this view in a responsum of R. Hai . Gaon. Rabad’s objections were still too serious. In tractate Beizah 61 (Katuv Sham, pp. 90-91) we find Rabad also rul. ing against the second Geonic opinion. However, Rabad here delves into the core of the issue: How does a condition operate; what are its halakhic mechanics? What is the rationale behind special regulations in this area? / / / uvuarhp tk ohbuatrva ost hbcn okgbv suxv ,t vkdt v,g—“Now I shall reveal the secret concealed from men, since the early Rabbis did not explain it.” Rabad is, indeed, the first to reveal these halakhic depths. These insights will eventually develop into an ingenious explanation of Rabbeinu Hai Gaon’s ruling. 4. In his commentary on Kiddushin,62 Rabad, citing talmudic evidence, unceremoniously endorses the second Geonic opinion—in contradiction to his previous rulings! He does not indicate that this opinion originated in the Geonim. This is strong evidence against Premise 2. 5. In his hassagot on Mishneh Torah,63 written in the twilight of his
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life, Rabad now comes to the defense of the second Geonic opinion— against Rambam64 who raises the same objection that Rabad himself had articulated years earlier. Rabad now explains the rationale for this opinion, and why it is not contradicted by the biblical source. 6. In a responsum, Rabad summarizes his difficulties in understanding both Geonic opinions, and his change of mind on both opinions: “This difficulty we had raised in our youth . . . but it was truly [only] the vigor [koah] of youth, for truth and justice lie with them.”65 . Rabad proceeds to explain the rationale of both Geonic opinions at length.66 He concludes with a biblical-sounding flourish: “Blessed is Abraham to the Exalted God, who justifies the words of the Geonim and Sages, pillars of the universe!” Almost all succeeding rishonim who cite the ruling of Rabbeinu Hai Gaon (the first opinion) refer to, or draw from, Rabad’s understanding.67 We thus see that after a life-long struggle, Rabad successfully restored the lost links between the talmudic sources and the Geonic rulings. He plumbed the depths of talmudic concepts and discovered the rationale of the Geonim. While he was not always successful in understanding the Geonim, his regard for their greatness and authority never flagged.
Which halakhic authority appears to take the most central place in Rabad’s works? Who deserves to be titled by Rabad as “ha-Rav” or “Adoni ha-Rav”? R. Isaac of Fez, Alfasi! Although Rabad was not an actual disciple of Alfasi, not even a student of his disciples, he accepted Alfasi as his basic authority.68 As the disciple of Rabbeinu Hananel and Rabbeinu Nissim,69 . Alfasi was the natural continuation of the school of the Geonim. It would seem that Rabad’s esteem for his self-chosen master shows his regard for the Geonic school. Startlingly, though, Soloveitchik sees Alfasi’s influence on Rabad in just the opposite light! Alfasi is presented to us as a kind of spiritual father of Rabad, a ground-breaking discarder of the Geonim and dislodger of the past: “The revolution that he wrought, however, would not have been effective had it been simply negative. R. Issac of Fez had discarded the Geonim before him. He had attempted to decide talmudic controversies independently of their writings. . . . Unable to pose a positive alternative, Alfasi’s dislodgement of the past could not succeed” (p. 12). [Emphases mine.]
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It is difficult to see how Soloveitchik arrives at this assessment. Perhaps he used his previous test: Delete the quotations of the Geonim and “the loss is barely noticeable.” But anyone familiar with Hilkhot Alfasi knows that the above test would be meaningless. The work is highly condensed, generally quoting only the talmudic text (and only the text that, in Alfasi’s opinion, is accepted as law). Where did Alfasi receive the rules about deciding which opinion in the Talmud to be accepted as Halakhah, if not from the Geonim? Who are the sources he commonly quotes, if not the Geonim? We find that even when he disagrees with a Geonic opinion which he quotes, he may actually be siding with another Geonic opinion, even though he does not cite it as such.70 In Rabad’s Katuv Sham, many Geonic sources not mentioned by Alfasi are marshaled to support Alfasi’s opinion. Even if Alfasi may, at times, disagree with a certain Geonic ruling based on talmudic argumentation alone, this certainly cannot be considered “discarding” or “dislodging” the past, as will be discussed later.71 Actually, Alfasi was viewed, in the generation that followed him, as the culmination of the Geonim. This is clearly articulated by Rabad’s father-in-law, R. Avraham of Narbonne, the author of Sefer ha-Eshkol:72
hwcs kf gsth vhv etv hf .thwcs kfc uhfntx tbe thkgt ,k"z qjmh 'w ytedv . . . cwf e/fkhv uhwnte tbea tnf ,wqhg etva vn wwtc vhv etvt ,thbika uhbtedv .etv vew/cs hae
We rely on all the rulings of the Gaon R. Isaac, for he knew all the teachings of the Geonim who preceded him, and would select the principal (opinions). This is similar to (the principle): The law follows Rav Ashi, since he was the last (Amoraic authority).
Note that Soloveitchik presents R. Avraham of Narbonne as one of the supporters of the Geonim: “Alfasi’s dislodgement of the past could not succeed. Weighty and influential as his work was, his contemporaries and successors—Ibn Giat . . . and R. Abraham of Narbonne—swiftly restored the Geonim to their pre-eminent place” (“Programmatic Essay,” p. 12). Clearly, R. Avraham of Narbonne sees no contradiction in recognizing both the authority of the Geonim and of Alfasi. Indeed, it seems from this unequivocal endorsement, and from other sources, that R. Isaac of Fez himself was considered a continuation of the Geonic era,73 or more precisely, a bridge between the Geonim and the rishonim. Hilkhot Alfasi was composed for the dawning post-Geonic era, which no longer had the central yeshivot of Babylonia from which to solicit halakhic guidance. With its clear-cut decisions, Hilkhot Alfasi
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was a necessity for the new era. It was based on the Geonic tradition that R. Isaac of Fez had received and mastered. Of course, he could not make clear decisions without basing them on talmudic evidence; and talmudic evidence may, at times, be a reason for disagreeing with a specific Geonic ruling. Rabad shared his father-in-law’s view—that Alfasi had gained complete mastery of Geonica, both in scope and in exact sources—and possessed the insight to issue authoritative rulings.74 He viewed the Hilkhot Alfasi as the final say of the Geonic tradition, and hence had special reverence for it.
At this juncture, we would like to broaden the discussion of what constitutes “dispensing with” predecessors. Soloveitchik does not claim that disagreeing with predecessors means discarding them. On the contrary, he writes: “Far too much emphasis has been placed upon agreement or disagreement with the Geonim. Disagreement is a pallid form of independence, for, in one sense, one only demonstrates one’s subservience to a thinker when one spends time seeking to refute him” (“Programmatic Essay,” pp. 11, 12). We agree. If anyone believes that disagreement constitutes dispensing with the holder of the contested view, he has a basic misunderstanding of the system of talmudic study. Would anyone claim that Abbaye discards Rav Yosef because he disagrees with him? Does Rav Ashi discard Rava or other Amoraim of previous generations, with whom he often disagrees? On the contrary, their esteem for the earlier opinion was the very reason they studied it so earnestly. However, the Will of the Giver of the Torah is that Torah study must be a quest for truth. Thus, a genuine student of Torah cannot delude himself about understanding the view of a predecessor. If he cannot make sense of it after exercising all of the intellectual powers at his disposal, he may have to disagree with a scholar whom he realizes was far greater than himself. Rabad himself articulates this outlook explicitly in his evocative introduction to his hassagot on the Hilkhot Alfasi.75 He commences by likening his critique of Alfasi to eyes looking at the sun (his weakness of understanding compared to Alfasi’s greatness). Logically, he should close his eyes, never to criticize, only to follow Alfasi blindly. However, Rabad continues, the study of Torah is a mission given to us by God
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Himself, and its ultimate Truth cannot be conceived by flesh and blood. One who studies the Torah (and sincerely seeks to understand it), however, will be rewarded by God even if he is actually mistaken. Rabad concludes with the verse: “Because of His righteousness, God wishes to make the Torah great and glorious” (“rhsthu vru, khsdh uesm ignk .pj wv”).76 As Professor Twersky notes, “There is no inconsistency or insincerity in the fact that Rabad records his deep-seated humility in the face of this talmudic giant and then produces some serious and substantive criticisms.”77 This sort of independence, however, is a far cry from a “declaration of independence from Geonic thought.” These two discrete forms of independence may look somewhat similar, but the gulf between them is vast. An analogy can be made to the relationship of a child with his parents. Independence is essential to a child’s development. Without it, he cannot cope with life’s demands where he lacks specific guidance from his parents. The same applies to the study of Torah. A student or scholar who is not trained to utilize his own mind and understanding independently will be unable to deal with areas of study where he had no guidance; he will be unable to make decisions or to rule on new questions. This is a vital and vivifying form of independence. There is, however, another form of independence, where the child is not subservient to his parents, and basically dispenses with their guidance. This form of independence indeed may be considered as a break in continuity. True, Rabad was indeed a “titan” who succeeded in “confront[ing] talmudic texts unaided . . . [and in] penetrat[ing] into those areas where no commentarial tradition was available,” as Soloveitchik points out. However, as shown above, no real evidence was adduced to demonstrate that Rabad represented a “declaration of European independence from Geonic thought” (“Programmatic Essay,” p. 37). On the contrary, we have shown that he harbored deep respect for the Geonim and Alfasi; and their influence on his rulings is great. Even in disagreeing with them, Rabad made no ideological revision. R. Avraham Av-Beit-Din, the author of the Eshkol, as well as R. Shmuel ha-Nagid and Rabbeinu Hananel, also can be found disagreeing with Geonic opinion.78 Indeed, . on one of the issues where Rabad differs with a Geonic ruling, we find R. Hai Gaon preceding him in rejecting this precedent Geonic view.79 This disagreement on specific issues does not show any lack of regard for the teachings and authority of the Geonim. As the fifteenth century scholar, R. Eliyahu Mizrahi, succinctly put it:80 .
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uhsxthn uvv uhwcsv yhea vewba hbin ,uhbtedv hwcsn tjsb uhwcs /gsh wcf hf u/wt/ hint uvhint sen vktsd uhbtedv /dwsna hi kg pe ,stnk/v hawa hi kg .uhhj tbe For you know that rulings of the Geonim were rejected, because it seems that those rulings were not (fully) in accordance with the roots of the Talmud—even though the stature of the Geonim is very great, and from their mouths and from the mouths of their teachings we live.
In this context, it is important to note that even the “pallid form” of independence in Halakhah has its limits. The post-Mishnaic scholars (the Amoraim) concurred that they cannot disagree with their predecessors, the Tanaim. The post-talmudic Geonim all agreed on the absolute authority of the Amoraim. (R. Yosef Karo explains that the Talmud was accepted as having the authority of a Sanhedrin decision.81) The rishonim basically had the right to disagree with the Geonim. However, many of the rishonim themselves, led by the titanic Rabad, insisted that the latter-day jurist may not disagree with the Geonim82 unless he demonstrates a grave difficulty (“kushya mefursemet”) with the Geonic opinion.83 While Rabad did not always grant the Geonim the last word, he did limit the grounds for disagreeing with them. There is no reason why he, and the rishonim who followed, would have limited themselves if they had not recognized the authority of the Geonim.
The last major theme of the “Programmatic Essay” is Rabad’s supposed contribution to the development / evolution of Halakhah. According to Professor Soloveitchik, Rabad covertly “transformed his heritage,” following the pattern of “the revolutionary jurist [who] must disguise his innovations.”84 In arguing his case, Professor Soloveitchik offers us “three brief examples of how Rabad’s writings are anchored in Provençal life and thought.” These examples are intended to reveal non-Halakhic considerations that actually lay behind what appears to be strictly Halakhic argumentation and reasoning. Examination of these sources, however, reveals that they offer no basis for such claims. Example 1—“Section 50 of the Temim De‘im. . . . The inquiry put to R. Abraham as to whether a debtor can be compelled to redeem a gage.”
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Prof. Soloveitchik offers an interesting approach to the source of the question:
In Germanic law a pawn is a quit-payment, with no further obligation incumbent upon the debtor. In gaging, the debtor sold the pawn to the creditor in exchange for the money received, reserving to himself only the right of repurchase. . . . It is difficult, however, to run separate businesses—one for Jews and one for Gentiles. . . . The daily practice… inevitably led to someone questioning whether the other set was so radically different. . . . True Jewish law, at first glance, is incurably obligational. Pawns are never Sachhaftung, but simply accessorial to the ongoing personal obligation. . . . Does he have the right to reject the pawn and insist on another form of payment, i. e. cash? Put concisely in Halakhic terms, a pledge is certainly an heh,upt [a mortgage], is it an arupn heh,upt [a specified mortgage]? . . . Is the Jewish gage . . . really so different from the Germanic one?
Soloveitchik further explains:
The initial query (regarding redemption of gages) should furthermore be placed alongside the suit between Aimery de Clermont and the Abbot of Aniane in the year 1203. . . . Moving from the opposite directions, Halakhah and Provençal law met here in a point of common perplexity. In Rabad’s case it is the encounter of an obligational system of gage with the notions of Sachhaftung. . . . [Emphases mine.]
How did Rabad respond? According to Soloveitchik:
Rabad threw up his hands at the problem and decided to let the Gentiles solve de facto the riddle of their own making. He replied: uvt ,uhhtd ka dvbn wje yhfktv ,kewahk dvbn yhea utqnc ,gqwq ka ebtfanct 'tft tdvb [“With regard to a land security, where there is no established Jewish practice, we follow Gentile practice…”]
The reply is revealing, especially his concluding remark: tc uhfktva ,gtsh dvbn tc tbk yhet tbkme awtin tbhs yhea wcs kfc wnte hbe yft ./tdvbnv hi kg uhbs uvt ,e/tfkns ebhsk vz wcs ctwqt ,uvka /tdvbnv wje [“And so I say in any issue where the rule is not stipulated by us (in talmudic law) and we have no known common practice, we follow their (the Gentile) common practice, and this is close to the law of the land since they rule according to their practices.”] all of which would be inconceivable north of the Loire, and accurately reflects the relative merits of the Provençal and Champagne systems of justice at the time” (“Programmatic Essay,” pp.32-33) [Translations and emphases mine].
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Reservations Before zeroing in on this source, it behooves us to comment on Soloveitchik’s suggestion that Rabad was drawn to apply the talmudic principle of “the law of the land is the law” (dina de-malkhuta dina) because of the superior system of justice in southern France. Had he lived in northern France—where we are to assume the Gentile justice system was less satisfactory—he would have ruled otherwise. In other words, Rabad widened the authority of Gentile law because he was favorably impressed by the merits of the Gentile justice system in which he found himself. This suggestion is highly untenable, for two reasons: 1) Rashbam, one of the great scholars north of the Loire, preceded Rabad in stating that the law of the land extends to dealings between individuals, and includes common practice.85 2) This very ruling of Rabad greatly limits the authority of local civil law, in that it cannot overrule explicit talmudic law or even Jewish custom! Based on Rabad’s explicit opinion here, later halakhic authorities ruled to limit the authority of the law of the land, contrary to the broader ruling of a Tosafist opinion of R. Yiz hak b. .. Perez , specifically referring to the Gentile practice of pawns. R. Yiz hak . .. b. Perez definitely did not live in Provence or Champagne.86 . Now, let us examine the sources. Here is the responsum from which Soloveitchik quotes—in its entirety: 87
/e ptfk ytgna ktfh ue ,ynz tk gcq ekt u/x t/hc ytgnak yfana yctew - vkea tvtkv ue yft .t/ba /eknc t/etkv kf stg t/etkv kf stg tbfankt t/tsik yctew .ek te tgwik t/te ptfht uth 'k wje tbgc/h [ue] ,u/x ytfanv kg wje v/tsik u/x ebtfanv kg yhitf[a] swixct vbtkmwcc ah /tntqn hf – vcta/ vsac ekt /hcc ek yhitf yhe vbtcwbc kce ,vz ug vz tqxiha ynz[v] wje te vba .uwfc ekt twftn lkhet uth uhatkan [vfkvv] vbanv hikt ,dvbn h/gna ek wje ytfanct eke (.dhq ps eghmn ecc) kcqnv qwi d"caw hwcs kg uhnfj tqkjb eka ,s"hcc .tqkjb ek wjec kce ,tbfan tk whzjvk lhwma yhbgc tdvb uvt ,uhhtdv dvbn wje uhfktv ,kewahk dvbn yhea utqnc gqwq ka vbtfanct wcs kfc wnte hbe yft .[t/tsik] gtwik titfk ktfh tbhe vetkv /gac vb/v ek uea ,uvka /tdvbn wje tc uhfktva ,gtsh dvbn tc tbk yhet tbkme awtin tbhs yhea ./tdvbnv hi kg yhbs uvt ,ebhs e/tfkns ebhsk vz wcs ctwq[a]
Query: Reuven “pawned” his house to Shimon inexplicitly without specifying a (repayment) date. Can Shimon force Reuven to redeem it at the end of the first year and not just continue holding on to it as a mashkonah (a land “pawn”)?
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Also, if he (Shimon) lent him (money)on the basis of a pawn inexplicitly (without specifying a repayment date), can he make a demand after thirty days and force him (Reuven) to pay, or not? Response: There are places, in Barcelona and in Spain, where (borrowers) are forced to redeem a mashkonah (land “pawn”) after a year (for a loan in which no repayment date was specified) or after the time set between the two sides. However, in Narbonne they do not force (the redemption) neither by a house nor by a field nor by a vineyard. And regarding other pawns, I have not heard of any common practice, and according to the Mishnah from thirty days on (the lender) sells it in court. For the Rabbis did not disagree with R. Shimon b. Gamliel, in chapter ha-Mekabbel (Bava Mez i‘a 113a), except on the issue of having . to return the pawn, but other than that they did not disagree. And regarding a mashkonah (a land “pawn”) of land in a place where there is no common practice of Jews, we follow the common practice of the Gentiles, and their practice is that if (the lender) did not specify (a repayment date) at the time of the loan, he cannot force (the borrower) to pay [or to redeem it]. And so I say on any issue where the rule is not stipulated by us (in talmudic law) and we have no known common practice, we follow their (the Gentile) common practice, and this is similar to the law of the land since they rule according to their common practices.
On examination of this responsum, we discover that neither the questions addressed to Rabad nor his responses bear any resemblance to the issue presented in the “Programmatic Essay.” 1. Note that there are actually two discrete questions, and two discrete answers. Only the second question involves a pawn (mashkon). On this question, Rabad replies that since there is a clear halakhah, based on the Talmud, Gentile rules and practices have no bearing on the decision. 2. Contrary to Soloveitchik’s reading, the ruling of Rabad to follow Gentile practice has nothing to do with a regular pawn at all, but rather with a “mashkonah of land,” an arrangement in which the lender uses the borrower’s land, “eating its fruits,” while deducting minimal rental payments from the debt. This is both a form of strong pressure on the borrower to come up with the cash, and also gradual payment, if only partial. This is not a normal pawn (mashkon). It is rather referred to as a mashkonah or mashkanta.89 A mashkonah (land “pawn”) is different from a normal pawn for several reasons: 1) Land generates income. (The pressure on the borrower is thus very strong, for until he redeems his land, he loses its profits.)
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2) Land cannot be physically moved to the control of the lender, but rather the lender must take control of the land by utilizing its productivity, thereby profiting from the income. 3) Since usury is halakhically prohibited, a minimal rental payment is continuously deducted from the debt.90 3. Both questions raised were only in a specific context: gce tku” “inz uk [where no repayment date was set]. This crucial detail is missing in Prof. Soloveitchik’s presentation. The logic behind the query is clear: Does the omission of a repayment date mean that the lender relinquishes his right to demand payment? 91 The concept of a lender’s relinquishment of his right to demand payment is found in the Talmud Yerushalmi, even in a case where the lender is not in possession of a pawn or mashkonah.92 It is also clear from this source that even though the lender loses his right to demand payment, the obligation of the borrower remains.93 This concept of relinquishment is also found, as Soloveitchik correctly notes, in the form of the talmudic concept apotiki mefurash [a specified mortgage where the lender has no right to demand any other form of payment]. Rabad himself clearly explains the legal understanding of such an agreement as the lender’s relinquishing of his right to demand payment:
vhgc/hnk hgc ek hztz tkhiet vh/gwe wea vhstcgak kjn etvt He (the lender) relinquishes his right to subject the other lands (of the borrower besides the specified mortgage) for payment of the debt, and even money he doesn’t want to demand.94
(Indeed, this rationale is especially clear in light of Rabad’s perspective of a borrower’s obligation, which will be discussed below in Example 2. Rabad states that even though a lender may sell his power to demand a debt,95 the actual obligation of the borrower to his lender cannot be sold. The obligation of a borrower, in Rabad’s opinion, is his own personal obligation, not the possession of the lender. Clearly then, the lender may relinquish his saleable right of demanding payment, while leaving intact the personal obligation of the borrower. “True, Jewish law . . . is incurably obligational.”) The basic question—whether or not the omission of a date for payment demonstrates the lender’s relinquishing his right to demand payment—has three possible variations, as can be seen in the questions and answers in Rabad’s responsum: a. When the lender holds no pawn or mashkonah, no question is asked since it would be unreasonable for a lender to relinquish his only form of pressure on the borrower.
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b. When the lender holds a pawn, the question does arise. Since the pawn constitutes pressure for payment, it is possible that the lender relinquished his right to demand payment. Rabad answers, however, that there is a clear talmudic ruling that the lender does not relinquish his right to demand payment (unless there is local Jewish practice to the contrary). c. When the lender holds a mashkonah (a land pawn), Rabad differentiates between this case and the above case of a pawn. Here he finds no halakhic ruling (unless there is local Jewish practice that defines the lender’s intention) since the pressure on the borrower is great: the more the payment is delayed, the more income the borrower loses, and the more the lender profits from the produce of the land. Indeed, the lender’s right to demand payment is not crucial, and perhaps the absence of a date shows that he relinquished it. In summary: The questions addressed to Rabad relate to a situation in which a date is absent from the agreement of a mashkonah (a land pawn) and of a pawn: May the lender force a payment in cash (or sell the pawn)—and when—or must he continue holding onto the mashkonah (a land pawn) or to the pawn? Rabad answers that if there is a local Jewish practice, the practice defines the inexplicit agreement. Where there is no local Jewish practice: in the case of a pawn, we find a talmudic ruling that he can force a payment after 30 days. Gentile law and practice cannot change this ruling. As to a mashkonah (a land pawn), there is no talmudic ruling. Therefore, the practice of the Gentiles defines the inexplicit agreement, based on the talmudic principle of “the law of the land is the law.” Soloveitchik’s account of the suit between Aimery de Clermont and the Abbot of Aniane in the year 1203 is most interesting. However, we are not shown even a remote parallel in the writings of Rabad. Example 2—“In his hassagah to Mekhirah 6:12, Rabad explains Samuel’s famous ruling ‘kujn ukjnu rzju urcjk cuj rya rfunv’ [“One (a lender) who sells a note of indebtedness to another individual and subsequently forgives the debt, it stands forgiven”]—after this fashion:
wrac tk c/f ue lfhik hnmg /e lk h/scgha ek hbe – jqtkk wnte vtkva hbin .tctj wra wfnac ktjnk ktfh tbhe ,ljtfn uhecv kfkt lk scgtan hbhwv tctj
[Because the borrower says to the buyer (of the note)—I did not subject myself to you. Therefore, if he (the borrower) wrote in the note of indebtedness: “I am hereby obligated to you (the lender) and to all (subsequent buyers of the note) who take your place,” he (the lender) is not able to forgive the debt after selling the note of indebtedness.]
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“These are some of the most seminal words ever penned on the nature of obligation and, together with those of Rabbeinu Tam, have given birth to an entire literature. But the “lefikhakh” (“therefore”)] suggests a practical moment to his remarks, and this finds corroboration in the fact that Rabad saw fit to reiterate this proviso on no fewer than four other occasions. Clearly Rabad’s doctrine must be studied not only from the perspective of the development of Halakhic thought, but also in the context of 12th century Provence.” Soloveitchik goes on with his third example, which will be discussed later. He concludes:
Behind these two rulings stands the problem of credit circulation… There was a dearth of currency at the time in Provence, and a double burden was thus thrust upon cuj hrya [notes of indebtedness]. . . Samuel’s ruling “rzju urcjk cuj rya rfunv” [“One (a lender) who sells a note of indebtedness to another individual and subsequently forgives the debt, it stands forgiven”] mortally impedes the free movement of credit. . . . Both rulings seek to open the arteries of credit blocked by Samuel’s ruling. The two dicta . . . are a two-pronged attempt to wrestle with the problems that presented themselves as Jews moved from an agricultural to a credit economy. Rabad’s famous doctrine of “hnmg ,t lk h,scgha tk” [“I did not obligate myself to you”] with all its conceptual significance, was at the same time an attempt to validate the coin minted by a society suffering from a dearth of currency (“Programmatic Essay,” pp. 34-35). [Translations mine.]
Reservations: 1. Let us assume that the economic background presented here is accurate. 96 Of course, healthy commerce is of great importance in Halakhah. Rabbinic enactments made to insure healthy commerce (“euav ,be, ouan”) are common in the Mishnah and Talmud. Rabbinic authorities continued to make such enactments throughout Jewish history—long after the completion of the Talmud. And no attempt was made to disguise them in any way. Why then would Rabad have had to disguise his ruling as if its source was actually the Talmud and talmudic logic?! Interestingly, Rosh explains the enactment of ma‘amad sheloshtan (selling credit orally in the presence of the borrower, the original lender, and the buyer of the credit) as coming to solve problems of commerce very similar to those mentioned in the “Programmatic Essay.” 97 A note of admission, odita, from the lender-seller stating that the credit was transferred to the buyer via ma‘amad sheloshtan (even though this actu-
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ally wasn’t done) would have sufficed as a simple solution for a secure transfer of credit.98 2. Rabad’s ruling can be understood quite simply and compellingly without reference to economic conditions in Provence. Here is the gist of the ruling: if the borrower obligates himself to repay all who buy the loan, then the original lender loses his right to cancel the debt. This ruling has a very strong basis: 1) Simple logic dictates that since the borrower specifically obligated himself to the buyers of the credit, his obligation to them is absolute—leaving the original lender powerless to cancel this obligation. 2) Rabad cites talmudic sources for this ruling99— sources which are strangely absent from the “Programmatic Essay.” Indeed, Rashba (Responsa vol. 3 section 20) exclaims in a rare form of praise for this ruling of Rabad: ohezj wohrurcu ohbufb s’’ctrv hrcs— !emun htrf—“Rabad’s words are correct and clear, strong as a ‘cast metal mirror’ [an expression taken from Job 37:18, expressing solidity and clarity].” 3. Despite the clear and simple logic in this ruling, as mentioned above, Rabad’s own rationale is actually more complicated. It is based, Rabad explains, on his reasoning, which differs from Rambam’s, for the rule of Samuel -– why, indeed, does the original lender have the power to cancel the debt that he had sold? Rabad explains: rnut vukva hbpn hnmg ,t lk h,scga tk hbt jeukk—“Because the borrower says to the buyer [of the note]—I did not obligate myself to you.” Soloveitchik appears to regard Rabad’s reasoning as strikingly innovative: “These are some of the most seminal words ever penned on the nature of obligation.” He proceeds to explain what, in his view, was the real reason behind this reasoning: “an attempt to validate these clauses . . . to open arteries of credit blocked by Samuel’s ruling.” In truth, Rabad’s logic is based on the fundamental principle that a monetary obligation is not the possession of the lender, but rather a personal obligation of the borrower. Rabbeinu Tam independently articulated the same principle. Indeed, this concept of personal obligation was not an invention of Rabad and Rabbeinu Tam. It can be found in the Talmud itself: “,ghrp vumn cuj kgc”—“payment of debt is a miz vah” (Arakhin 22a, Ketuvot . 86a). This means that payment of a debt can be enforced only as a miz vah is enforced. Rabad and Rabbeinu Tam logically concluded that . this miz vah of the borrower is not the property of the lender, and there. fore cannot be sold by him.100 Subsequently, the original lender retains the power to cancel the obligation. This is Samuel’s ruling.
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4. If one is searching for novelty in Rabad’s ruling, it is his reliance on his own rationalization of Samuel’s ruling. After expressing his disagreement with Rambam, Rabad continues “lfhpk” [“therefore”] the stipulation “ljfn ohtcv kfku lk scguan hbhrv” [“I am hereby obligated to you (the lender) and to all (subsequent buyers of the note) who take your place”] prevents the original lender from having the power to cancel the debt. The “lfhpk” (“therefore”) implies that according to Rambam’s rationalization of Samuel’s ruling, this stipulation will not prevent the original lender from having the power to cancel the debt.101 Rabad thus forces into the mouth of Rambam a dissenting opinion that Rambam himself never uttered! Indeed, Rav Yosef Karo (in both his Kesef Mishneh and Beit Yosef) disagrees with Rabad on this point. He claims that the rationale of Rabad’s ruling is so clear that Rambam and Alfasi would also accept the implications of the proviso “ . . . scguan hbhrv” (“I am hereby subjected . . . ”). If Soloveitchik’s hypothesis were correct—that Rabad’s ruling sought “to open the arteries of credit blocked by Samuel’s ruling”—we run into a major paradox: by forcing a dissenting opinion into Rambam’s mouth, Rabad was essentially hindering the application of his own ruling!102 And indeed, this is what happened. Even though Rav Yosef Karo ruled clearly that in such a case the borrower must pay according to all opinions, this ruling was contested by the Keneset ha-Gedolah 103 and the Giddulei Terumah,104 basing themselves on Rabad’s implication that Rambam disagrees. With the outlook of Prof. Soloveitchik, Rabad was playing the game for the wrong side. The words he wrote in his hassagot had the potential to cripple the economy of Provence! This clearly disproves the contention that Rabad was motivated by an ulterior motive: to help solve the problem of credit circulation. 5. Actually, Soloveitchik’s basic claim that “Samuel’s ruling [‘a lender who sells a note of indebtedness to another individual and subsequently forgives the debt, it stands forgiven’] mortally impedes the free movement of credit” is highly questionable for a very practical reason: Halakhah requires the lender-seller to reimburse the buyer for the loss he caused by forgiving the debt.105 This serves both as a powerful deterrent not to forgive the debt, and as security for the buyer of credit in case the debt is forgiven. Our system of commerce today in the usage of checks and their transfer is similar. A personal check may be cancelled, but the writer of the check is required to reimburse the holder of the
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check. The fact is that our check system most definitely does not impede the free movement of credit. Example 3—“Another ruling of Rabad reported in Sefer ha-Terumot [51:6:3]:
shc twxnt vtknv shc ytfan aht ,twcjk ctj wra wftnv :k"z s"cewv keabt >tek ue [vttkk] (jqtkk) tkjtnk vttknv etva wftnv ktfh ue ,jqtkv vnn vhew ehcvt .jqtkv shc qzjtn ytfanva wjen ktjnk ktfh tbhea chavt yenfs e/hwtes vb/nf vteag gwn chfa /b/ns utan" :/tct/fc p"hwv c/fa ehrns" [p"hwv] wneqsnt ".vkjtn awthv yhe lfhikt ,hns kcqnv shk ehrns ktfh tbhea ,jqtkk twxnt vtknv shc ytfan ah ue vhbhn gna ",hns kcqns vhshk f"g .vtkk tkjtnk
[Rabad was asked: One sold a note of indebtedness to another individual, and also transferred to the buyer (of the note) a pawn he was holding; can the seller (of the note), who is the (original) lender, forgive the debt, or not? He (Rabad) responded that he (the lender who sold the note) cannot forgive the debt, since the pawn is being held by the buyer. He (Rabad) brought proof (to this ruling) from what the Rif (Alfasi) wrote in Ketuvot (f. 44b ed. Vilna, in explanation of the talmudic passage Bava Batra 147b, see fn. 104): “Because a gift (a note of debt) given by a shekhiv mera—a deathly ill person—was made to be considered as bibical law, as if it (the note of debt) came into the hands of the recipient, and therefore the heir cannot forgive the debt.” From what he (Alfasi) says: “as if it came into the hands of the recipient,” we conclude that if there is a pawn in the hands of the lender and he transfers it to the buyer (of the note) then he cannot forgive the debt of the borrower.]
Prof. Soloveitchik comments:
I, for one, am at a loss to understand how the case discussed by Alfasi has any bearing upon the question at hand. If Rabad, however, says that it is relevant, I defer to his judgement, but I remain no less perplexed. Assuming that one can indeed make deductions about the problem under discussion from R. Isaac of Fez’s language about gifts made in contemplation of death (grn chfa ,b,n), what weight should this inference carry with someone who penned massive criticisms of Alfasi? If Rabad had intuitively felt that renunciation could take place with gaged debts, nothing that Alfasi might have said, even explicitly, would have saved him. Clearly, Rabad was not deducing anything from R. Isaac’s remarks, as he contended. But, having arrived intuitively at a doctrine of non-renunciation, and lacking any proof for his position, he seized upon a formulation of Alfasi as precedent and asmakhta. [Emphases mine]
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Prof. Soloveitchik continues to explain the secret lying behind Rabad’s intuition: “There was a dearth of currency at the time in Provence... Both rulings (Examples 2 and 3) seek to open the arteries of credit blocked by Samuel’s ruling. The two dicta . . . are a two-pronged attempt to wrestle with the problems that presented themselves as Jews moved from an agricultural to a credit economy”(“Programmatic Essay,” pp. 34-35). Reservations: 1. As to Soloveitchik’s claim that Rabad had no sources—and simply used Alfasi as a fig leaf—we would refer readers to a talmudic source identified by Ramban. By comparing the talmudic passages Kiddushin 47b-48a with Kiddushin 8b, Ramban reaches the conclusion that a pawn transfer removes from the original lender the power to cancel the debt.107 Why Rabad did not accept this talmudic source remains an open question. But one thing is certain: his unwillingness to accept it contradicts Soloveitchik’s theory that an ulterior motive drove him to point to a far-flung pseudo-source. Had Rabad merely been looking for additional leverage to neutralize Samuel, this talmudic source would have served him well (much better than Alfasi), since there is no obvious reason why it is not good evidence. 2. A strong rationale for this exception to the rule is also explained by Ramban. The Talmud rules clearly that the lender has a certain ownership of the pawn, as the potential payment is already in his hands.108 Ramban’s opinion is that this includes a pawn given at the time of the loan.109 It follows that since the lender has ownership of the pawn, he can transfer it by sale together with the loan. Once the pawn is sold (with the loan) and is now owned by the buyer, it clearly follows that the original lender loses his right to cancel the loan.110 When the original lender exercised his ownership of the pawn by selling it, it is as if he received payment of the debt in the pawn he sold. Indeed Rabad could easily have offered this clear rationale since he shared the view that lender ownership also extends to a pawn given at the time of the loan (Katuv Sham, p. 130). The major question to be asked on Rabad is not: How did he rely on a seemingly weak source in Alfasi? But, rather: Why did he not rely on the above reasoning? Apparently, this rationale did not suffice for Rabad. Even though the lender enjoys a certain ownership of the pawn and thereby we may consider the loan as if it were already repaid, in actuality it is not really repaid. Can a loan be considered as if it were repaid in the context of the original owner losing his power to cancel the loan?
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Rabad found an answer to this question in Alfasi. The case under discussion involves a shekhiv mera who bequeaths a note of indebtedness to another individual. In this instance, the Talmud tells us, even Samuel will agree that the heirs of the lender will have no power to cancel the debt (Bava Batra 147b). Alfasi explains why: “hns kcens vhshk thyns” (“It is as if [the loan money] came into the hands of the recipient [beneficiary]”). We see in Alfasi’s reasoning that even though the debt was not actually paid, the halakhic recognition that “it is as if [the loan money] came into the hands of the recipient” is enough to cancel the power of the original lender. If so, concludes Rabad, a pawn transfer (as the lender enjoys a certain ownership of the pawn and the power to sell this ownership) will certainly cancel the power of the original lender. 3. “What weight should this inference carry with someone who penned massive criticisms of Alfasi?” A great deal. See Rabad’s introduction to his hassagot on the Hilkhot Alfasi cited above (see p. 38 and n. 75). In the eyes of Rabad, Alfasi is a towering and revered authority, whom he refers to as ha-Rav (or “Adoni ha-Rav”). (See n. 68 for discussion in the literature.) His opinions are not merely cited, but studied in depth by Rabad.111 Indeed, Rabad is actually one of the great commentators on Alfasi, even in his so-called hassagot on Alfasi. Rabad wrote the Katuv Sham, a work on the entire Talmud, whose main purpose was to defend Alfasi and to explain his rulings. 4. The economic background presented—the dearth of currency— lacks proper substantiation (see n. 96), and the basic premise that Samuel’s ruling “mortally impedes the free movement of credit” is questionable (see p. 48, point 5). Having now reviewed all three examples in the “Programmatic Essay” purportedly showing that “Rabad’s writings are anchored in Provençal life and thought,” we may say without hesitation: “There are no bears here, not even a forest!”112
We would be remiss in not offering a general comment here on Professor Soloveitchik’s conception of the evolution of halakhah, clearly reflected in the following statement:
No jurist, certainly no religious jurist, dreams of interpreting the law according to his personal inclination; he seeks simply to discover what the sources say on the matter. And if he is of any stature, his words will read as a series of objective and ineluctable conclusions. Only by compar-
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ing his solution with those of others does its subjectivity become apparent. Law leans towards continuity and has an antipathy to radical change; thus the revolutionary jurist must disguise his innovations—at times even from himself (“Programmatic Essay,” pp. 30-31; emphasis mine).
No one would disagree that Jewish history bears witness to certain changes in the practical application of Halakhah. Each great halakhic authority casts his impression, according to his perception of truth. Halakhic authorities wrestle with difficulties and evidence until they reach a decision; or sometimes prefer to follow the rules of safek. This is not a change in the core of Halakhah itself, but rather an integral part of Halakhah, which is governed by its own guidelines. There is also no doubt that a given financial situation may have an effect, since these very guidelines call for flexibility where loss may result (“vcurn sxpv”, “ejsv ,ga”, and “,ube,”). Social and economic conditions may also be incentives for great halakhic authorities to struggle to reach a certain conclusion. Such efforts, however, are not aimed at disguising the truth, but rather at uncovering hitherto unnoticed genuine halakhic perspectives. The discussions are above board, subject to the meticulous scrutiny of peers as well as the scholars of succeeding generations. Professor Soloveitchik goes much further in his rendering of halakhic history. He claims to have discovered great halakhic authorities—Rabad being a case in point—who “disguise innovations—at times even from [themselves],” implying that more often the disguising innovation was done consciously (i.e., was intellectually dishonest). Soloveitchik hints at discord between the overt commitment to continuity on the part of rishonim (“certainly no religious jurist dreams of interpreting the law according to his personal inclination”) and how they actually ruled. The burden of proof will fall on the shoulders of Prof. Soloveitchik. Certainly, the three examples in the “Programmatic Essay” do not demonstrate this at all. Judging from the illustrations in the essay, if any associative connection between a ruling and the social or economic climate can be found, it is considered “evidence” that the rishon’s given reasoning was actually a disguise. If some seeming difficulty can be found in the reasoning, then the ulterior motive is confirmed. This, however, is not acceptable evidence by any scientific or scholarly standard. Disguise of innovations is neither a proven explanation of such a ruling, or even a probable explanation. It is merely a possible explanation. It seems that the conclusion here preceded the observation, the premise being the conclusion. No compelling evidence for the claim has been adduced. Indeed, my own thematic studies of rishonim have yielded no such evidence.
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The greatest master of thematic studies of Rabad, both quantitatively and qualitatively, was probably R. Shlomo b. Aderet. He had access to a multiple amount of Rabad’s commentaries and rulings than those extant today, and constantly scrutinized them, while comparing Rabad’s opinion with the differing views of the other rishonim. How did he view Rabad and his level of intellectual honesty? Even though he disagrees with Rabad perhaps hundreds of times, Rashba describes him with singular praise: ,nt u,ru,u ,nt crva gushv in —“It is well known that the Rav (Rabad) is truth and his Torah is truth.”113 Even though we might be inclined to discount this remarkable praise, and take it at something less than face value, it is still profoundly impressive. It strongly suggests that R. Shlomo b. Aderet failed to detect any “disguising of innovations” on the part of Rabad.
Any attempt to characterize Rabad must reckon with the following striking paradox. Indeed, I think it is a paradox that offers us the key to understanding Rabad. On the one hand, Rabad comes across through his writings as a very strong personality: decisive, fully confident, even willing to swear to the truth of his interpretations and rulings using his famous expression “hatr hhj” (“by the life of my head”). He is also willing to attack sharply those who take a different view. On the other hand, we are sometimes struck by what seems to be a lack of confidence and weakness of character, as he frequently changes his opinion, even when he had a strong basis for his original opinion. (In fact, the later rishonim often agree with the earlier opinion.) One example was cited earlier—where Rabad changed sides from disagreement to staunch support of two Geonic opinions. This is not a rarity. “/ / / hc h,rzj vz rcs kg” (“On this issue I changed my mind”), “/ / / h,hgy vzc od” (“Also in this I erred”), he notes in his Laws of Lulav. In his Ba’alei ha-Nefesh, changes of opinion are common.114 (Contrary to Kapah’s claim that these revisions came as an answer to R. Zerahyah . . ha-Levi’s hassagot, this is the case in only a very few instances.115) In some places, he even changes his ruling twice.116 We find him criticizing Rambam’s ruling which previously was his own opinion.117 Even in the twilight of his life, Rabad expresses doubt about an opinion which he had endorsed throughout the years, and over which he had also criticized Rambam.118 We can even find him attacking his own previous
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opinion as fiercely as he disagrees with others:
kg h/sng waeft . . . yhntx ka kqnc vz wcsc uhgtr tbhhv tbhnh kf ,haew hhjct . . . . h/hewt h/ca ,h/gs
(I swear) by the life of my head, that we had always been mistaken on this issue (as if) with the staff of a blind man . . . but when I reached proper sense, I went back and saw. . . .119
Samuel Atlas, perhaps the first to notice this trend, claims that there is no paradox: “The essence of Torah study is the persistent quest and probing for truth… Greatness in character can be found in one who does not become a slave to his own words.”120 Indeed, Rabad was “the greatest of the critics” (gedolei ha-maggihim), as he is called by Me’iri. He did not hesitate to direct his great power of scrutiny towards himself as well. What the reactions of his students and his fellow scholars would be to his changing opinions, he did not take into account. He did not attempt to disguise what he believed as truth. Above all was his continuous lifetime struggle to seek truth. Indeed, with the same zeal that he debated with others, he debated with himself—this is the zeal for truth. Rabad’s zeal for truth also explains his treatment of the Geonim. On the one hand, his sincere recognition of their greatness prompted him to assert respect for the Geonim, that a jurist may not disagree with a Geonic ruling, unless he finds a serious (“famous”) difficulty. On the other hand, even the Geonim are not spared from his criticism when he does find a serious difficulty with no apparent solution. Clearly, it seems that Rabad was the quintessential Halakhic Man,121 as powerfully characterized by the late R. Joseph B. Soloveitchik:
Halakhic man does not quiver before any man: he does not seek out compliments, nor does he require public approval. . . . He knows that the truth is a lamp unto his feet and the Halakhah a light unto his path. . . . And this Halakhic truth is one complete and ultimate truth, which Halakhic man is not ready to sacrifice. . . . He does not understand the ins and outs of politics, nor is he cunning in worldly matters. He will not overlook a single jot or tittle of the Halakhah, even to realize some lofty desire. We have here manifested . . . the zeal for the truth, as granted him by the Almighty. The truth will call to account those who dishonor it. . . . [Emphasis mine.]
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Assessing any historical personality is not a simple task, especially if the figure lived more than eight centuries ago. It is natural that conflicting perspectives will develop. A valid historical profile, however, must be based on solid evidence that can stand up to close scrutiny. Despite its robust style, the “Programmatic Essay” fails to meet this criterion. The portrayal of Rabad as a “discard[er of] 500 years of tutelage” and as “the revolutionary jurist [who] must disguise his innovations”—is not substantiated. As we have shown, the sources point in precisely the opposite direction.
I am deeply indebted to my good friend, Dr. Uri Cheskin, for his keen insight and skillful editorial assistance, without which this article would not have reached these pages. In addition, I would like to thank all the distinguished scholars, including anonymous referees, who took the trouble to review the manuscript for their valuable comments. Of course, I take full responsibility for all aspects of this article.
1. Rabad’s yahrzeit is on the second day of Hanukkah, 4959 (1198). . 2. There is no doubt that Rabad wrote commentaries on most of the Talmud (see R. David b. Shmuel Kokhavi’s introduction to Sefer ha-Batim)—even on Zera‘im (see Rabad’s own reference to his commentary on Demai in his commentary on Avodah Zarah p. 168). R. Hasdai Crescas, in his introduc. tion to Or Hashem, states that Rabad wrote commentaries on the entire Talmud. Today, however, only the commentaries on two tractates of Gemara are extant in their entirety, Bava Kamma and Avodah Zarah; and on two tractates of Mishnah, Kinnim and Eduyot. Also lost is almost all of Rabad’s work on the laws of Kashrut, r,hvu ruxht. 3. Also extant are Katuv Sham (his hassagot on R. Zerahyah’s Sefer ha-Ma’or), . part of his hassagot on Alfasi, a commentary on Torat Kohanim, responsa and works of Halakhah on the laws of Lulav, Netilat yadayim, and power of attorney (harsha’ah). The responsa and the works of Halakhah are found in Temim De‘im and in Ravad–Teshuvot u-Pesakim (Mosad ha-Rav Kook). Also published is his Derashah le-Rosh ha-Shanah (Shisha, London, 1955). 4. Published in Studies in the History of Jewish Society in the Middle Ages and in the Modern Period, Presented to Prof. Jacob Katz on his 75 th Birthday (Jerusalem, Magnes Press, 1980): vii-xl. 5. Rabbeinu Tam as well as Rabad. 6. This portrait is sharply different from that presented by Prof. I. Twersky: “Like most other medieval Talmudists, he [Rabad] refers to the Geonim extensively and with great reverence” (Rabad of Posquieres A Twelfth Century Talmudist, JPS [Philadelphia, 1980]). Twersky’s conclusion is well documented (pp. 219-225), and one of his sources will be discussed in this article. Prof. I. Ta-Shema (ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z efon . Africa, 1999, Part I, 203) seems to follow Soloveitchik’s perspective, but can be interpreted differently.
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7. Soloveitchik compares Rabad’s writings to those of other scholars of Provence: “Remove the Geonim from the Eshkol and the work collapses, subtract the Geonim from the Ittur and it limps badly, take away the Geonim from Rabad and the loss is barely noticeable. . . . Before Rabad, Provençal writings are a storehouse of Geonic literature. After him the Geonic material in Provençal works dwindles radically . . . Rabad disrupted the Geonic transmission.” (“Programmatic Essay”, p. 12). 8. As Soloveitchik explains: “. . . far too much emphasis has been placed upon agreement or disagreement with the Geonim. Disagreement is a pallid form of independence, for, in one sense, one only demonstrates one’s subservience to a thinker when one spends time seeking to refute him. It is the universe of discourse rather than the positions adopted therein that is determinative. The central question to be asked in assessing the intellectual dependence . . . is whether its frame of reference is Geonic” (“Programmatic Essay,” pp. 11, 12). 9. An edition annotated by Prof. S. Havlin was published in Jerusalem, 1992, as History of the Oral Law and of Early Rabbinic Scholarship. It includes a lengthy introduction written by Prof. Havlin. Havlin notes the special importance of Me’iri’s account of the Geonim and early rishonim, devoting a section of his introduction to this account (pp. 47-50). 10. As presented by I. Ta-Shema: kkf lwsc tfkhv ,uhkq uhwtehct /tebtkhn ,exwhd hbhbgc ctwk tzfw/v uvhatwhi vwmqc ,wt/ik tbttf/bt /thktkhnk trb ,vzwiewiv kg /sxthnvt vchjwnv vqhbfrc vaq/b ukkdc hf wgak utqn vhva ehdtxv hbi kg /tstqbv /e ,waiev kff .ketav (ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z efon Africa, 1999, Part I, . 125). 11. As Me’iri explains (Havlin ed., p.122): ct/fha hnf uhwcsv atwhi /ch/f uvhbhgc vhvt ,uvhic wtsx vhv atwhiv kfa yvt ,atwhi lwsc yv ,rgn qw uhc/tf thv eka vz uvk uwdt ./tkhnv zgk vz tbhbnzc /tkhvqv kft ,/tgtcq thv /tchahv hf ,lfk uhfhwm thv eka hbin . . . qxi lwsc vcwv uvn thv /tmwev kfa sg ,ktsd stcfc uhshnk/v ua shngvk uhcsb/n thv ke ca sje kf vhv ,ubtmw hik ufwm kf uhsntkaft ,stnkk uvhbc uhjkta thva .'v /e vgs owev vekn lf lt/nt .th/tce /ztje ket t/jian Me’iri describes the educational approach of this period: hpn tku ovhpn ohrpx hpn tku woc,f (p. 127). See Havlin’s illuminating note 579. 12. These semi-annual gatherings drew scholars from all over: h/a uhmcq/nt ,vkhkt unth vwt/c yhdtva kewahk /tchah h/a v"cqv gcq lfhikt sg vwt/ ka v/njknc yhb/tbt yheatbt ,/tntqn kfn ,ktkect wsec ,vbac uhngi .v/hnek vfkvt vhwtc kg wcs yhshngna (Genizah, Oz ar ha-Geonim, Gittin #336-337) . 13. The Talmudic method of study—close scrutiny of the text and its parallels, questions and answers—preceded Rabad and the Tosafot. It is unreasonable to claim that it disappeared during the 500 years of the Sevoraim and Geonim. We can discern this in a letter of R. Sherira Gaon, in which he describes how his son, R. Hai Gaon, educated his young students, stimulating them with questions:
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ccjht ehatqv lws tvsnkh kteak gsh ek waet . . . usnkk sqa tbhwtjc hev udt .thbhgc lwsv /e (Genizah, Rav Sherira Gaon, Levine, Jaffa, 1917; rpt. in Geonica, Mishor, 1987, vol. 7, p. xxvii) 14. Me’iri writes: /tcta/ qw uvn tbhew eka uvnt ,utkf uvhsh vagnn ct/f tbhew eka uvn /mqc yhatwhi uvn tbhewa uvnt ,vewtvt qxi yhbgk vcwv uvn tbsnk /tkea uvn ,/twztin /tfkvt /tgtna /mqc uhngik te uhqwi /mqc uhngik te /thfxn -whic uvn tctw te ,stnk/v kfc uhkktf h/kc uhrwi uhbhbgc uhwtchj /mq tbhewa .kkf uhsnk/nv ytcgw wca uvc yhe ,uhwmq uhfwst uhznwc kce stnk/v at (Havlin ed. p. 125) 15. Havlin ed., pp. 128-29 16. Havlin ed., p. 129. 17. Havlin ed, p. 134. hbhbg ctwc hbtkmwc ke hkhzwc wc vstvh 'w ktsdv cwvk qxi lwsc ktsd wtchj wcj/b yft 18. .uh hbn vcjwt v/sn owen vftwe ,stnk/v (Havlin ed., p. 131). 19. S. Albeck, in his introduction to Sefer ha-Eshkol (1928, reprinted by Wagshal, Jerusalem 1984), 31-65. 20. This is noted here by Me’iri (Havlin ed., p. 131), as well as by halakhic authorities such as R. Yosef Karo (Beit Yosef, Orah H ayim 10 s. v. u-le. . inyan). Some later aharonim differ (see Havlin’s note 587). . 21. Me’iri writes: khgtvk uvhwtchj wcjk khj/v wae stnk/v /tce vkgnkt /fk hchrn vnv vgcwe twcj/ba uhwtchjv kfk aewt . . . owev kf vmib uvnt . . . vntek hkkf /kgt/ atwhi /cfwv lws vagba uhwtchjv kfk aewt . . . k"z h"aw hatwhi uv atwhi lws . . . . k"z s"cewv ktsdv cwv hatwhi uv qxit Me’iri includes in this list: the Ri Migash in Moslem Spain, and the Ramah in Christian Spain, who also wrote novellae to fill in this gap. (The Tosafot played a similar role in northern France, but were not included by Me’iri in this list.) See Havlin ed., pp. 127, 131, 132. 22. In his introduction to Sefer ha-Eshkol, 31-38. 23. 1) Ramban (Sefer ha-Zekhut, Gittin 38a in Alfasi ed. Vilna) writes: uv lf k"z uva t/gsn eka uhbtedv kg qtkjk (s"cewv) k"z cwv /e jhwfv . . . . . . . yted hev cw ka /tcta/ hbthkdc yft . . .uhwnte Indeed, it is clear from Rabad’s hassagot on Alfasi there that he was unaware of this doctrine of R. Hai Gaon. 2) A vivid example of the lack of Geonic information in Provence can be seen in the following issue in the laws of lxb ihh: R. Avraham Av-Bet-Din of Narbonne (Eshkol p. 85) cannot find any Geonic source to resolve the question of ruchj eumhb: Indeed, R. Zerahyah (29a in Alfasi ed. Vilna) rules tkuek ibcrs tehpx; and . yenf eqxi e/etcwk yk hzj ekt .yhh yhbgk qtmbc ynjb cwt ebtv cws e/dtki vnqt .e/fkv Rabad argues in Katuv Sham (p. 213) that we rule as Rav Huna, but without bringing any Geonic support to this ruling.
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Outside of Provence, however, Geonic sources on this issue were indeed available. In Spain, Ramban (novellae, Avodah Zarah, p. 72) and Rashba (Torat ha-Bayit 5:5) bring a ruling of the Geonim like Rav Huna, that eumb rucj. In Germany, on the other hand, we find a Geonic ruling of R. Platoi Gaon like Rav Nahman that rucj huv tk eumb (Ra’avan #305, Or Zarua #217, . and the Mordekhai #856). This Geonic information was not available to the Eshkol, R. Zerahyah, and Rabad of Provence. . 24. Rabad questions the reliability of the correct text in Geonic responsum: vtaca uhwitxv waiet .veba hn gsth hbhe . . . k"z yted hev tbhcw /cta/ yft thkg phxtvt hqc tbhea hn hshk ghdv ena te ,/tq/gv vnf uhacan uv waef .vcta/v kf vac/aba sg uh/a te vkhn t/gsn (Rabad’s Laws of Harsha’ah–Temim De‘im #62.) .(hxike cwv kme) ukme /tghdna tnf /tqsqtsn tbkme /tghdn /tcta/v yhe hf (Katuv Sham, Pesahim 15a in Alfasi ed. Vilna, s. v. ve-eikh efshar) . 25. In his introduction to Sefer ha-Batim, R. David b. Shmuel Kokhavi reports that this was the case in his time, the end of the thirteenth century. The same was probably true for twelfth century Provence as well, since there is no reason the writings should have disappeared. A careful study of Rabad’s writings would very likely help us identify the tractates for which he possessed the commentary of Rabbeinu Hananel, and . which not. See footnotes 31 and 39 below. 26. The father-in-law of Rabad, R. Avraham Av-Bet-Din of Narbonne, wrote to R. Meshulam of Lunel, Rabad’s mentor: /tfkvc tka wixc h/bhhg kce ,'jw 'rb vstvh 'w cwv ka uhab wsx yefc yhet .lhshc tbhe ena hf lhbik ct/fk h/hewt ,uhscg //hca (Teshuvot ha-Ra’avi ABD, Mosad ha-Rav Kook [Jerusalem, rpt. 1991], #153, end.) It should be noted that R. Avraham Av-Bet-Din was a great follower of R. Yehudah of Barcelona, as seen in his Sefer ha-Eshkol. In the opinion of Albeck, the Eshkol was an abridgement of the Ittim of R. Yehudah. The fact that R. Avraham Av-Beit-Din could not get hold of this work on the order of Nashim proves that it was indeed inaccessible. In a similar vein, Me’iri reports, generations later: u/q/gvk tfz ek . . . uh hbn uhcjwt u/sn owen uhftwe ehabv ka thwtchj .wtsv hktsdn vktdx hshjh qw uwtek an/avkt (Introduction to Avot, Havlin ed., p. 131.) 27. The non-controversial Albeck edition, 1928, reprinted by Wagshal (Jerusalem: 1984). As for the Auerbach edition (in the sections not found in Albeck), I. TaShema states unequivocally that it is not Eshkol, even though it was certainly not forged by Auerbach. This is also the opinion of Y. Sussman (R. Zerahyah . ha-Levi: Ba‘al ha-Maor u-Benei Hugo [Jerusalem: Mossad ha-Rav Kook, 1992], . p. 40-41, n. 27). Their hypothesis that it was written by another medieval scholar, however, is questionable. This is not the place for a discussion of the issue. 28. Hilkhot Yayin Nesekh (pp. 62-68), Hilkhot Avodah Zarah, Kelei Goyim, Bishul Akum (pp. 131-146) 29. I did not include an explanation cited in Hilkhot Kelei Goyim (p. 140):
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uhasj yhktea kce ,vz /tawk vz /tawn hwndk tq/gbt vnjknc tjqkba yted ahwi .vkhcr yhfhwm yhe since this is all clear in the Talmud, Avodah Zarah 75b. I also did not include the long responsum in the beginning of Hilkhot Yayin Nesekh (p. 64), as the presentation is elementary. 30. Even though it is possible that the source of an unattributed interpretive comment may be Geonic, the same is true in Rabad’s writings as well (contrary to Soloveitchik’s assumed “Premise 2”). These unknown factors cannot, of course, be assessed. Since we are looking for solid evidence that Rabad discarded Geonica, these conjectures are beside the point. 31. Both the Eshkol and Rabad (in his novellae and in Katuv Sham) fail to mention R. Hananel even once in the tractate of Avodah Zarah, and no influence . is noticeable. This is well understood considering the report of R. David b. Shemuel Kokhavi in his introduction to Sefer ha-Batim (see footnote 25 above). It seems that even R. Yehudah of Barcelona, the major source of the Eshkol, lacked access to R. Hananel on Avodah Zarah. (His Sefer ha-Ittim on . Eiruvin regularly copies R. Hananel verbatim, whereas the Eshkol in Avodah . Zarah fails to quote any commentary of R. Hananel.) . Even more revealing, perhaps, is the treatment of a passage in Avodah Zarah 60a: hra lshtu ruxt trnj is explained by Rabbeinu Hananel (cited by . Rashba on Avodah Zarah 59b) as “until the tap not permissible to drink and the rest permissible to drink.” Rabad, in his commentary, dismisses this interpretation without mentioning Rabbeinu Hananel. Later, however, in his . responsa, Rabad cites such an interpretation in the name of the Provençal scholar R. Mosheh b.Yoseph, and describes his struggle to understand it: wtxe ezwcc h/es . . . awin vtv k"mz pxth w"c van tbhcw cwv hf h/gna hbet v/gt .uhba vnf sg t/gs ptx kg h/sng ek hbet .vh/ac tkhie hwa lshet vh/ac . . . .thwcsk sgxn . . .h/caj (Temim De‘im #110, #111). It is clear that Rabad was unaware that the more prestigious commentator Rabbeinu Hananel had said the same thing. . As to other sources of Geonica, see footnote 23 (point 2) above. 32. 1) Eshkol, p. 67, cites an anonymous opinion: .'tft kdwc xwsha sg lxb yhh vagb lanb yhhc yhea wntet kqna hn hnb aht This opinion is also cited by Rabad (p. 161 s. v. sof sof): .vbttfc rtjxh ena . . . w/tn hfv tkhie . . . pkzn yhhva i"ge uhawin aht Interestingly, this opinion is rejected by the Eshkol, while it is accepted by Rabad. 2-3) Eshkol p. 69—ruxts s’’n tfht wvhbuczk vhhras itn tfht / / / d’’vc c,fu In Rabad’s commentary (p. 163) two anonymous opinions are brought on this issue, which may be these same opinions brought by the Eshkol from the Ba‘al Halakhot Gedolot. 4) Eshkol p. 70—’ufu uhshk ut uhpk ghdhu ihh tmh tna vfrutk t,tucr ’hpu is cited by Rabad (p. 171, on Avodah Zarah 60b s. v. ha-hu havitah): vh,ac / / / n ’’ h / / / jukhev sdbf unmg ihhc gdub tna rx,n. 5) Eshkol p. 74-75—a responsum of R. Hai Gaon is quoted. The only commentarial information is that the cups mentioned on p. 33b with their laws of hakhsharah, are made of trjp. This is mentioned twice by Rabad (pp. 70, 254): ’’trjps hxf iutdv ’hp’’.
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The halakhic novelties of this responsum are also to be found in the rulings of Rabad (without mention of a Geonic source): a. The halakhah follows R. Elazar as to the number of seals (Rabad p.75); b. As to the Christian wine ritual, R. Hai writes: ’’ihhv ,t ohfxbn ov ohhrmb’’, and so rules Rabad in Temim De‘im, #18: yhh t/ah wneb thkgt uvka z"gv /hcc uhwntfv yh/taa t/te . . .wtnd lxb yhh .ufhxb (This opinion of R. Hai and Rabad differs from the opinion of the early Provençal scholar, Ravna Ya‘akov b. Ravna Mosheh, whose responsum is quoted at length and discussed in the Eshkol.) 6) The Eshkol (p. 78) cites a Geonic commentary on Avodah Zarah 60a: litaf vnts w/thc v/te gbgbna ythf ectf etvvk htd ssmn het . . . k"z yted 'hi .vft/k
Albeck, in his notes, identifies this source as the same as Rabad’s. While I personally do not agree, Rabad does attribute his commentary to predecessors (oharpn ah), possibly Geonic. A detailed technical explanation of how wine is smelled in the barrel (:ux ;s wtvh, ,c) is reproduced in the Eshkol (p. 81) in the name of ’’sj t,tucrn’’. Its absence in Rabad’s commentary is not a great loss. 33. The explicit citations are only of a few exclusive sources: 1) She’iltot of Rav Ahai, 2) Halakhot Gedolot, 3) Rav Hai Gaon, 4) Rabbeinu Hananel, and 5) . . Alfasi. Of these sources we find: seven citations in Sha‘ar ha-Prishah, three in Sha‘ar ha-Vesatot, none in Sha‘ar ha-Ketamim, one in the very small Sha‘ar ha-Sefirah, seven in the small Sha‘ar ha-Tevilah, two in the long Sha‘ar haMayim, and none in the long Sha‘ar ha-Kedushah—20 in all. 34. The anonymous references (rnts itn tfht) should be counted for several reasons: 1) As Soloveitchik includes R. Hananel and R Isaac of Fez in his count, he is . clearly not referring to the Geonim alone, but is also including the early rishonim, at least until the time of the Rif. Since the time lapse from the death of R. Isaac of Fez till Rabad’s writing Ba‘alei ha-Nefesh was not more than 55 years, it is logical to assume that at least many of Rabad’s anonymous references are to authors within this time period. 2) Even though it is possible that they are post-Alfasi, the burden of proof falls on the researcher trying to demonstrate the omission of Geonica. 3) It actually makes little difference if these opinions are Geonic or postAlfasi. Rabad’s inclusion of post-Alfasi opinions in his “universe of discourse” would only underscore his regard for his predecessors. (Incidentally, the actual number of citations in Ba‘alei ha-Nefesh is 62! We counted above only 58 since four references are apparently post-Alfasi.) 35. Soloveitchik minimizes the importance of the Geonic teachings cited by Rabad (in Ba‘alei ha-Nefesh) in a curious manner: “Most of these citations, furthermore, occur when Rabad has something to say on the matter, e.g., . . . conjecturing as to its source, illuminating an obscurity, rejecting a popular misapprehension. . . . Rare indeed is the Geonic ruling which is brought simply as Halakhic datum.” We are not quite sure what to make of this. Does Soloveitchik really view Rabad’s study of Geonic teachings, his attempt to
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understand their meaning and their sources, as disregard? Surely the opposite interpretation is justified. This observation, however, is important in understanding Rabad’s common practice of reproducing Geonic rulings without indicating any source. What criteria did Rabad employ in deciding when to indicate a source? Possibly, Rabad felt no need to state his source when he had no comment on it. He felt that the Geonic rulings were worthy of being presented as straightforward Halakhah. Perhaps the unattributed ruling has more effect since it raises no doubts. See n. 49. This reference is noted in the novellae of Ramban (Niddah 19a) and the Ran (Niddah 58b). Specific mention of Geonim is brought as well, when Alfasi brings them. See the analysis of Rabad’s mention of precedents in his commentary on Bava Kamma, by Ta-Shema (ha-Sifrut ha-Parshanit la-Talmud be-Europa u-viZ efon Africa, Part I, p. 206). . “The central question to be asked in assessing the intellectual dependence . . . is whether its frame of reference is Geonic.” (“Programmatic Essay” pp. 11, 12) Alfasi’s rulings are clearly based on Geonica, as will be discussed later. The works of R. Yehudah of Barcelona are listed by the Tashbez (responsa . Part I, #15): sgtn hbhsc hbavt ,wac wea xjh wix tna uhab hbhsc sjev ,uhktsd uhwix wchjt .scfbt ktsd /twra ytqh/ wix hahkavt ,uh/gv wix tna A work on the laws of damages (the issues discussed in Bava Kamma) is not listed. The commentary of Rabbeinu Hananel, with the exception of a few . tractates, was not available in Provence, as reported by R. David b. Shmuel Kokhavi (see footnotes 25 and 31 above). In Rabad’s commentary on Bava Kamma, only twice is R. Hananel cited (on Bava Kamma 24 & 67), and a . third time (on Bava Kamma 70a) in his Hilkhot Harsha’ah (Temim De‘im #61), which Rabad refers to in his commentary as well. R. Hananel’s commentary on Bava Kamma 67 is misquoted by Rabad. . Rabad’s unique version is not only worded differently from the printed commentary (published by Mossad ha-Rav Kook, 1991) and the other rishonim’s citation of this commentary (Ramban’s novellae on Gittin 55a, and Rashba’s novellae on Gittin 55a and Bava Kamma 67b), but has a very different halakhic connotation as well. (According to the printed edition [as well as Ramban and Rashba’s text], a stolen lulav—as well as other articles used to perform a miz vah—is unacceptable for performance of a miz vah even when . . the original owner has lost all hope of regaining it. According to Rabad’s version, however, only what comes for atonement (a sacrifice) is unacceptable.] Interestingly, Rabad elsewhere as well, in his hassagot on Alfasi (Gittin 27a in Alfasi—Vilna ed.), reproduces his unique version of R. Hananel. It would be . an educated guess to say that Rabad did not have access to the original commentary, but rather received this information from an intermediary source. What was this source? Our contention, as shown below, is that Rabad’s source for the R. Hananel citation on Bava Kamma 24 was Tosafot Talmid Rabbeinu Tam. . This may also have been the source of the other two references. 1) Rabad apparently had access to this edition of Tosafot, as we can see if we
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trace the source of the following passage (Bava Kamma 51): tka /nva hn tk vhvh /nvt ybhwnes ythf - g"b cqgh 'w cwv hbik h/iwm shnk/ vaqvt .vebvc wtxe /n use ekvt hk vnk use ekt wta yf ue ,yhasqtnv hktxi wta ybhqint .'tft wtgvt uhbwimv uhbhav ytdf w/tn etva /n usec aha tk owh/a h/gnat The source of this material is found in Tosafot Talmid Rabbeinu Tam (Bava Kamma 10a): - aehhtrbtis ytehhk 'w vaqvt .tk vhvh /nvtn tvk rgnns . . . hasqtnv hktxi wta uhkf ekt wtnj use ekt wta ybhawssf use rgnk ewq lhwrmhe hene yf ue stgt . . . ow/k hcwk vewbt . . . vebvc wtxe /nv hwva tka /nv yhes vhk qtih/ .hcw hin . . . 'tft w/tns twgac tk vhvh /nvt hnb usecs k"h 2) The printed edition of this Tosafot (Blau, N. Y., 1976), which covers Bava Kamma from the beginning through page 61b, cites R. Hananel’s commentary . only once, on Bava Kamma 24b—a comment of no unique importance or novelty. Strikingly, this unexceptional comment represents the only appearance of R. Hananel in Rabad on these pages (the majority of the tractate)! . 3) It is possible that this was also Rabad’s source for R. Hananel’s commen. tary on B. K. 70. A partial quotation of R. Hananel’s commentary on Bava . Kamma 70a is included in the standard Tosafot (ihkykynt v’’s), and may have been included—in its entirety—in the early edition. (The style of the early Tosafot was expansive, unlike the latter abridged editions of Tosafot.) 4) It is possible that this was also Rabad’s source for R. Hananel’s commen. tary on B. K. 67, since it is identical to Rabbeinu Tam’s opinion cited in the standard edition of Tosafot (tkug rnt v’’s). The original Tosafot Talmid Rabbeinu Tam may have referred to R. Hananel for support without citing . the text. (If so, Rabad, lacking the precise quotation of R. Hananel, seemingly . presented R. Hananel’s novel teaching in the most limited way possible since . its Talmudic source in Gittin refers only to sacrifices.) Conclusion: Rabad apparently did not have access to R. Hananel ’s commen. tary on Bava Kamma. However, he seems to have utilized his minimal knowledge of R. Hananel’s commentary to the utmost. . Published by Makhon Hatam Sofer (Jerusalem, 5750). While the count here . may not be exact, the general picture is very clear. Except for two mentions of the talmudic text as quoted by Rabbeinu Nissim Gaon. One addition can be found near the end of his Hilkhot Lulav, as printed in Rabad—Teshuvot u-Pesakim and in the new editions of H iddushei ha. Ramban (both the Ma‘arava and Zikhron Ya‘akov editions). The other addition is mentioned in the Magen Avot of Me’iri, and in the footnotes in the aforementioned editions of Hiddushei ha-Ramban. . Rabad reports: htrki cw ytedv uac k"mz /ehd yc qjmh 'w cwv /tfkvc h/emn yhbnz vnf wje eka waie hf tng uhfxv ek etvt .uhnhv 'z kfk . . . ktxi achv hf c/f wae k"qz .vih vih wcs ka tngr tbwec wcft ,tngr tk vkd/b
40. 41. 42.
44. Note that the Geonic rulings mentioned in Sefer ha-Ittur in the section of Hilkhot Lulav, are almost all to be found in Sha‘arei Simhah of R. Yiz hak Ibn .. . Giat. Even the Ittur’s one reference to the commentary of R. Hananel is to be . found in Ibn Giat. This apparently was his primary source of Geonica on this
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topic. Rabad, however, did not cite most of this Geonic material in his later editions, for the obvious reason that they are not relevant to the topics he discusses there. Most of his work is on questions never raised before in written form. 45. Me’iri reports (in his Magen Avot, introduction to Sec. 21) on the specific circumstances: -hhqati whg ehv uhwgh /hwqn t/emc k"z cwv uwcja uhbhnv /gcwet cktk /tfkv . . . uan cwv tk lkvt ,tka wav ug ujkb wae uhwav sje /njkn /chxc ,ahw 'w scfbv ufjv /hcc uhnh ua hvht uvk w/gbt . . . vbtaqwq hscfb t/ewqk temh .tke cktk /tfkv cwv wcj t/hcct ,qjmh wc ujbn 46. This can be seen in Rabad’s other extant works: In his Hilkhot Netilat Yadayim (Temim De‘im #66-67), Rabad acknowledges that he did not see at least some—and perhaps all—of the Geonic rulings on this subject, but he rather cites a ruling he had heard: ah hf h,gnau / / / ohbuatr ka ,uexpc. In his hassagot on Mishneh Torah (Berakhot 6:2) he also mentions hearing of this ruling. There are many other Geonic references in the hassagot on Mishneh Torah as well. 47. Rabad of Posquieres, p. 222, n. 40. 48. In the context of Rabad’s developing views on the Geonic opinions about the regulations of conditions (ohtb,v hypan), p. 35. 49. Rosh, Rabbeinu Yeruham, and R. Nissim b. Reuven are classic examples. . They regularly reproduce interpretive comments and rulings of predecessors in their own work without attribution, while they are actually endorsing their predecessors’ opinion. Why they did this, we can only speculate. The effect, however, is clear: an unattributed ruling (or commentary), presented as straightforward Halakhah, does not raise doubts. Indeed, the Shulh an . Arukh also follows this approach. When the Shulhan Arukh does attribute a . ruling to ’’ohrnut ah’’ or ’’o’’cnrv ,gs’’ it is less authoritative. Note Soloveitchik’s comment (“Programmatic Essay” n. 10, see n. 35 above): “Rare indeed is the Geonic ruling which is brought simply as halakhic datum.” Perhaps the simple Halakhic data missing are unattributed rulings. 50. ./hnhbtbe vwtmc ctw hi kg ,pract /hktkhn vwtmc hev cw hwcsn qh/gvk tfws (I. Ta-Shema , ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z efon . Afrika, 1999, Part I, p. 125.) 51. In his Sefer ha-Ma’or (12a in Alfasi ed., Vilna). vqtxit vwtwc vfkvn ekt /gwfn /gsn stnk/v /nh/x hwjen uhbtedv tqxia vn 52. wcsc vgr ekt ,htv /gsv ktqhac hgr hnb vhc hgrs yent ,htv enkgc yhhdtxf - stnk/vn .vban It should be noted parenthetically that without support from Rashi’s commentary, even R. Zerahyah does not readily disagree with Geonim. R. Zerahyah . . expresses his fundamental recognition of Geonic greatness and primacy in Halakhah, as he spares Alfasi from severe criticism after discovering that R. Hai Gaon states this opinion: ehdtxn gnan eks utan vz qxi ectr hk vaq vtvt . . . k"z p"hwv vkg c/f wetcn c/fa k"z yted hev tbhcwk vkea /cta/c atwhic h/hewa sg . . . ewnds . . . thbic sngk jf tbc yhe ,qzjv ahri ,hbhnhv stng ,kewah wb etv hwvt .vzv ytakc (lrhd vz w"/ v"s n"vgc ,p"hwv hisc :zk yhrhd)
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53. Katuv Sham p. 198 (Sanhedrin, end of chap. 4). The beginning of this statement is cited in Rosh (Sanhedrin 4:6), the end in the Tur (Hoshen Mishpat . 25). The complete statement is quoted in a responsum of the Radbaz (#1126 s.v. im ken). 54. It is clear that the word ’’tmnb’’, in this context, is Rabad’s Hebrew translation of the Aramaic ’’jhfa’’, which even though it literally means “found,” its actually means “readily found” or “common” (like the word ’’humn’’, from the same root). Indeed, when Rabad does disagree with a Geonic opinion, it is only after posing at least one (seemingly) unanswerable difficulty and coming to terms with the Geonim’s sources. See other interpretations of Rabad’s statement by I. Twersky (Rabad of Posquieres, 1980, p. 221) and S. Havlin (History of the Oral Law and of Early Rabbinic Scholarship by Me’iri [Jerusalem, 1992], Introduction, p. 44, n. 114, Appendix A, p. 52). According to Twersky: “This statement expresses that one should not rashly dissent from their views on the basis of superficial disagreement.” Havlin takes issue with two of Twersky’s examples: uhjhftn ubhe :sf uhjxi wtenv kg s"cewv /davt h"v e"i vkhi/ 'hkvk uhbthmv .uhbted kg ua qkj s"cewa jwfvc These two different outlooks—of R. Zerahyah and of Rabad, as to the degree . of Geonic authority—are noticeable near the opening of Rabad’s polemical work on R. Zerahyah’s Sefer ha-Ma’or, Katuv Sham p. 4, on Berakhot 9a in . Alfasi ed.Vilna. When R. Zerahyah disagrees with a Geonic ruling (without . support from Rashi’s commentary), Rabad lashes out: tqxi lf k"z j"wt k"z hev tbhcw ytedv hwva ,ajb tbfah wsd owtit vz kg ewtq hbe ,whnjvk etvt yqt/nt veb etv vnf uhbtedv twnea wcsvt . . . cwv c/fa tnf .kqvk yfa kft ,uvhwcs kg qtkjk use ck eknh lhet 55. See Twersky, p. 220 and n. 22. 56. On a ruling of R. Mosheh b.Yosef, an earlier Provençal scholar, Rabad writes: ptx kg h/sng ek hbet . . . awin vtv k"mz pxth 'wc van tbhcw cwv hf h/gna hbet .thwcsk sgxn . . . h/caj v/gt ,uhba vnf sg t/gs (Temim De‘im sec. 111). This opinion had been totally rejected by Rabad, in his commentary on Avodah Zarah 60a. Rabad in another responsum (Temim De‘im sec. 110) answers his own weighty objections with a profound halakhic insight. 57. A few examples in which Rabad attempts to justify the positions of his predecessors from Ba‘alei ha-Nefesh: 1) In Sha‘ar ha-Perishah (1:2), Rabad has difficulty with the source of a ruling of R. Ahai: ’’ruxtk uk ihtn’’. Rabad, however finds his own source to sup. port R. Ahai’s ruling. . 2) In Sha‘ar ha-Perishah (1:8), Rabad has difficulty understanding a ruling of R. Ahai: tngy htn tbgsh tku. Rabad, however, finds a way to justify it. . 3) In Sha‘ar ha-Perishah (3:3), he has difficulty understanding a ruling of R. Hai Gaon: uhrcs rurhc kg snug hbhtu. But, again, Rabad finds a way to justify it. 4) In Laws of Harsha’ah he also struggles with the Geonic sources, with the conclusions:
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61. 62. 63. 64. 65. 66.
-ngrv tbwwhc wcf vbv" ". . . uhbtedv /gs hik t/te h/awit yhbgv /e h/qjs vbv k"z kebbj tbhcwt qjmh 'w /gs kg uvhbite kg uhwcsv tbsngvt /tqixv tbwxvt uh .u/gsk tbhtavt 5) In Katuv Sham (p. 4): . . . tbhhv uhgtrt ,tbhtd hwje k"z j"wt ytedv atwhi uhfhkan tbhhv . . . /tcw uhba cwv /xwhd shngvk h/caj /ez kf hwjet . . . uhbtedv atwhi xti/k tbk ah v/gnt . . . /bqt/nt /sntgn v/te h/emnt ,k"z ytedv atwhift . . . Gittin 37b in Alfasi, Vilna ed. Rabad proves this from the passage (Be-Midbar 32:36): “Moses gave the children of Gad . . . the kingdom of Sih on,” which clearly shows that the land . acquisition was completed immediately by Moses. The questions from the Biblical source are powerful (kushya mefursemet) by any standard. In Katuv Sham p. 209 on Shevuot, he writes: vba uhaka hka /tfkvc yf ct/f wcf On p. 210 there, he writes: ./tct/f 'xnc k"z cwv /tfkvc yf vh/c/f vba uhgcwe vz Beiz ah 10a in Alfasi, Vilna ed. . As reproduced by Ramban in two places: in Sefer ha-Zekhut, Gittin 38a, Alfasi, Vilna ed., and in Ramban’s novellae to Kiddushin 50a s. v. obht ckca ohrcs ohrcs. Laws of Zekhiyah 3:7-8 Laws of Ishut 6:14 Rabad, Teshuvot u-Pesakim #26. Rabad explains both the rationale of the second Geonic opinion and why it is not contradicted by the Biblical source. As to the opinion of R. Hai Gaon (a specification that the transaction will be immediate renders any form of condition valid)—the Rabad explains the rationale at length, but reveals no answer to the apparent contradiction from the Biblical source of these regulations. While a good answer to this question can, I believe, be offered, this is not the appropriate context for it. Ramban (Gittin 75b) found this responsum and summarizes Rabad’s rationale. Rashba, Rosh, and Ran follow suit. Me’iri (Kiddushin 61a) offers the same rationale without mentioning Rabad. . . . uhwcsv yn crhv /wfhb ,thwix w/hn ud vih vgtshv p"hwk vqtngv t/fwgv (I. Ta-Shema, ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z efon Afrika . Part I, p. 206). Despite the fact Rabad wrote hassagot on Alfasi, his esteem of Alfasi was not affected, as can be seen from his introduction to his hassagot, cited later in the present article. etvt .tcw hbik ysv shnk/ft astq /swj lt/n eke p"hwv kg dhan s"cewv yhe tatwhic ud yft ,thkg v"zwv /tdav sdb thwcs /e uhhqkt p"hwv kg ydvk ks/an .thkg uhketav sdb p"hwv hwcs uhhqk c/tf etv q"ck
(Atlas, introduction to Rabad’s commentary on Bava Kamma [LondonKaden], 1939, pp. 35, 37.) Furthermore, the so-called hassagot are not all critique. “These notes also contain interpretive amplification of Alfasi’s statements and defense of his opinions against other critics” (Twersky, p. 120). Twersky presents an exquisite clarification of Rabad’s reverence-with-critique in his introduction, p. xxi. 69. As reported by R. Avraham ibn Daud (himself a disciple of R. Barukh b.
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Yizhak, a disciple of Alfasi) in his Sefer ha-Dorot (ed. Neubauer 1887, p. 73): .. ’’ktbbj ’ru cegh rc ohxb ’r ka ushnk,’’; by the Ri Migash (cited by R. Perahiah . Shabbat, Makhon Ofek 1988, p. 116): k"z uhxb tbhcwn kcqa /tfkvv kgc qjmh tbhcwn kcqa k"z htkv pxth tbcw wnte .uhw/x /khdn kgc by Rabbeinu Tam (Sefer ha-Yashar responsa, Berlin, p. 89): .tshnk/ xike qjmh 'w tbhcw /xwhdct hev cw shnk/ j"w /xwhdc
in Me’iri’s introduction to Avot; and in the historical manuscript included in the responsa of Maharshal (Sec. 29). No other mentors of Alfasi are anywhere mentioned. Schepansky’s suggestion (Rabbeinu Efrayim, Jerusalem, 1976, pp. 39-40) that perhaps Alfasi was a direct disciple of only R. Nissim, and through him he received the heritage of Rabbeinu Hananel, is irrelevant . to our discussion. 70. Here is one example (Gittin 29 in Alfasi ed. Vilna): esxj cwf e/fkv eke ,hfv yk ewhcx ek ybet .ebtv cwf e/fkv e/etcw tqxit .ynqk wwcsf vh/ttf yhhdtxs It appears that Alfasi is disagreeing with the Geonim (who rule like Rav Huna) and putting forth his own opinion (to rule like Rav Hisda). However, . an earlier edition of Alfasi is quoted by Ramban (in his Milhemet HaShem . loc. cit.) where he rules the opposite way: yhet esxj cw ka tcw ebtv cws ,hfv k"x ek ybet .esxj cwf qhxis yen ybhzj .ebtv cwf e/fkv lfkv ,cwv utqnc shnk/f vfkv The Geonic opinion here follows Rav Hisda, and Alfasi disagrees by decid. ing, apparently independently, like Rav Huna. By putting the two editions together, however, we discover that there are actually two conflicting Geonic opinions! In his first edition, Alfasi rules like one, and in his second edition he rules like the other. In both editions Alfasi does not mention that he is siding with a Geonic opinion (as is common practice in the literature of the rishonim, see fns. 49 and 50). 71. Dynamic exchanges of opinion and argument on Talmudic and halakhic issues existed in the Geonic era as well. See the documentation from the Cairo Geniza cited above in n. 12. Rav Hai Gaon, Rav Shmuel ha-Nagid, and Rabbeinu Hananel can be found disagreeing with a precedent Geonic opin. ion. References are cited in S. Z. Havlin’s article “Al ha-Hatimah ha-Sifrutit . ki-Yesod ha-H alukah li-Tekufot ba-Halakhah” (Meh karim be-Sifrut ha. . Talmudit [Jerusalem, 1983], p. 175 n. 120). 72. Teshuvot ha-Ra’avi ABD (Jerusalem: Mossad ha-Rav Kook, rpt. 1991), #16. R. Avraham of Narbonne grew up during the lifetime of Alfasi, and was one of the great scholars of the generations that followed. It is logical to assume that he had full knowledge and understanding of Alfasi’s relationship to the Geonim. A similar assessment of Alfasi’s work can be found in R. David Kokhavi’s Sefer ha-Batim (Part I, Blau 1978, p.26). Prof. I. Ta-Shema’s assessment, as well, is not similar to Soloveitchik’s: wtwct uktv htrhc hshk tec tca /hbcwv /twixc ytaewv etv p"hwv ka twix /wtxn hi kg hkccv stnk/v :jwznv /tsvh ka uhhwqhgv vqhxiv hstng /atka tntqn hi kg hnkatwhv stnk/v ,(wqhgc) yted hev cwt ewhwa cw ka /hbawiv .yt/nv atshjv jf ug /henmg vwcxvt ,kebbj tbcw atwhic tfwgt
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(loc. cit. p. 149) 73. In his glowing endorsement of R. Isaac of Fez (cited above), R. Avraham of Narbonne seems to be calling him the last (’’vtr,c’’) of the Geonim, parallel to Rav Ashi, the last of the Amoraim. In another responsum (#115), he cites a list of Geonim which includes R. Isaac. We also find Rabad commonly referring to him as ha-gaon R. Yiz hak. R. Yehudah b. Barzelai of Barcelona .. also refers to Alfasi as ha-gaon R. Yiz hak. .. 74. On R. Zerahyah’s claim that a responsum of R. Hai Gaon contradicts a rul. ing of Alfasi, Rabad responds (Katuv Sham, on Pesahim 15a ed. Vilna Alfasi): . [yhe] hf ,vz wnea tnf ek enat vew kce .ytedv hwcs cwv vew eka waie lhet uhfxv ekt yf vew uet .ukme /tghdna tnf [/tqsqtsn] tbkme /tghdn /tcta/v . . . ewndc hwva vag vih ,vcta/v ug 75. Rabad writes: ,hbhg /tew hkcn hktet ,hbnn uhekib uhwcs k"z hxike cwv /tfkvc h/hew vbv hf /net .hgcr /tahkjv hbin anav yhgc kf/xv waef vetwv hbhg vbhvf/ waef ./trb yhen kenav ket yhnhv ke thwje /fkkt ,hi hwne wtdxkt ,hbhg utmgk hk vhv qxtgv kce ,ust wack /hkf/ vc yhet vktsd vfeknvt ,uhna /fekn ehv hf kce hsh dha/ waef thwje aijkn h/gbnb ek yf kg ,ddtac yhc vgrtn yhc twfa kcqh vc oij 'v hf qw ,tbhe etv udt ,wt/xk ktfh hbhea h"ige ,qzjk ugit wt/xk ugi .whseht vwt/ khsdh tqsm ygnk 76. See n. 71 above. This same concept is elaborated by R. Hayyim of Volozhin . (Ruah Hayyim, Avot 1:4) hundreds of years later: . . twcsh hf 'tdt tatch ek (:k yhatshq) k"zj twnea tnft . . . uvhkdw wigc qce/n htvt hwcs kcqk shnk/k tk wtxet ,'tft tshnk/t cwv tbct cev tkhie ,wgac uhchte /e utjkkt qce/vk /taw tbk y/hbt yf ud tbwvztv eke .'tft uvhkg /thatq tk aha tcw taibc wvzh z"fg kce ,/nev ctvek qw ahe hbi eahk ekt ,u/hatq ow/kt uhwcsc wcjnf te tcwf etv ktsd hf vnsht qtkjk utqn emn waef cck kstdt vtedc wcskn a"zt . . . t/bttft thwcs yhch ek uhngi vnf hf tcckc gsht ,thkg dhan etv wae wixv .vgbfvt vtbgc k"w ,uvhkdw wigc heb/c le k"bf qce/n htv 77. Twersky, p. xxi. The author deals at length with the scope and necessity of independence, as seen in rishonim and in Rabad in particular—here in his introduction and on pp. 216-222. 78. 1) See Shittah Mekubez et, Bava Mez i‘a 62b (p. 147, col. 4 in Amsterdam ed. . . in a quotation of Rashba) who cites R. Avraham Av-Beit-Din as disagreeing on linguistic grounds with a ruling of R. Hai Gaon in his Sefer ha-Mekah. . (Note that the published Rashba has a common printing error, ’’s’’ctr’’ instead of ’’s’’ct ovrct ’r’’.) 2) In R. Avraham Av-Beit-Din’s commentary on Bava Batra 106a (Shittat Kadmonim, Blau, 1981), he is critical of a Geonic interpretation. 3) References for R. Shmuel ha- Nagid and R. Hananel are cited in Havlin, Al . ha-Hatimah . . . , 175 n. 120. . 79. See Ba‘alei ha-Nefesh, beginning of Sha‘ar ha-Tevilah in Rabad’s early editions, Shinuyei Mahadurot 2 in my edition of Ba‘alei ha-Nefesh, and Tosefta ki-Peshutah, Megillah chap. 1, 1136-1138. 80. Responsa of R. Eliyahu Mizrahi #76. . 81. Kesef Mishneh, Hilkhot Mamrim 2:1. See Rambam’s introduction to Mishneh Torah (p. 4 in the Frankel edition). See further in S. Z. Havlin’s article Al haHatimah ha-Sifrutit ki-Yesod ha-Halukah li-Tekufot ba-Halakhah (Mehkarim . . . be-Sifrut ha-Talmudit [Jerusalem, 1983], 150-183).
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82. Do the ah aronim have the authority to rule against a rishon? The Shakh . (Yoreh De‘ah end of sec. 242) cites a disagreement as to whether one may rely on a halakhic ruling of an aharon who (with strong proof) contests a . ruling of a rishon. However, as to the Geonim, the Shakh writes: .uhbtnsqv uhbtedv kg qtkjk yhe utqn kfnt 83. Rosh (loc. cit.) adds: twts habek uhkctqnv thwcsk /thew ehcnt. 84. The following passages constitute a fuller statement of Soloveitchik’s position: No jurist, certainly no religious jurist, dreams of interpreting the law according to his personal inclination; he seeks simply to discover what the sources say on the matter. And if he is of any stature, his words will read as a series of objective and ineluctable conclusions. Only by comparing his solution with those of others does its subjectivity become apparent. Law leans towards continuity and has an antipathy to radical change; thus the revolutionary jurist must disguise his innovations—at times even from himself. . . . Charting Rabad’s accomplishments in terms of predecessors and successors is to see the man from the perspective of the immanent evolution of the discipline, to study what forces in Halakhic thought came to the fore in his personality, and how he transformed his heritage (pp. 30-31, emphases mine). 85. Rashbam (Bava Batra 54b s.v. ve-ha-amar Shemuel) defines the authority of dina de malkhuta dina and its halakhic rationale: ebhs -- u/tfknc dhvbvk uhkhdwa uhfkn hrian ka /tdvbnt /tbtbwet uhxn kf wtnd yhs lfkvt ,thriant lknv hqj ubtmwn uvhkg uhkcqn /tfknv hbc kfa ,etv .kzd utan whgc dtvbv lknv qtj h"ig twhcj ytnn qhzjnk yhet ,etv According to Soloveitchik, the local Gentile practices recognized by Rabad as dina de-malkhuta were part of “the Provençal and Champagne systems of justice at the time.” Rashbam had previously recognized the practices of the systems of justice of northern France, as well as of all nations. 86. There are two major issues in which we find divergent opinions in the rishonim as to the scope of dina de-malkhuta dina: 1) Whether its authority is limited to the people’s responsibility to the government, or whether it extends to dealings between individuals; 2) Whether it applies when the secular law contradicts clear halakhah. On the first issue, Rabad and Rashbam share the opinion of rishonim who maintain that dina de-malkhuta dina also applies to the laws governing dealings between individuals. (This seems clear from the Talmud, Gittin 10b, as Ramban and others point out.) On the second issue, however, Rabad (here) severely limits this rule only to situations where there is no halakhic ruling or Jewish custom violated by dina de-malkhuta: tc uhfktva ,gtsh dvbn tc tbk yhet tbkme awtin tbhs yhea wcs kfc wnte hbe yft hi kg yhbs uvt ,ebhs e/tfkns ebhsk vz wcs ctwq[a] ,uvka /tdvbn wje ./tdvbnv A different opinion, but also very limiting, is articulated by Rabbeinu Yonah (who had strong ties to Provence):
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y/tec ytsk t/te vitf lknv yhet kewah hbhsc twcj /e ptfk kewah ktfha ythf ,e/tfkns ebhs t/te /njn kewah ka t/tfz gqi eka emnb ,dhvbva /tdvbvt yhbhs .t/te tbst yvka /tefwg hbic ytsk twcj lkv yf ue eke (Aliyyot de-Rabbeinu Yonah B. B. 55a) R. Yiz hak b. Perez (cited in Mordekhai, Bava Kamma sec. 154), howev.. . er, broadens the rule of dina de-malkhuta dina even when the civil laws and practices contradict the rules of Halakhah. His ruling, interestingly, is specifically referring to the Gentile practices regarding pawns. He rules as the civil law that the lender may cash an unredeemed pawn only after a year, not after thirty days (the Jewish law, as cited by Rabad in the above responsum). Shakh (Hoshen Mishpat 73:39) infers that this ruling also allows the lender to . cash the pawn without a previous demand of repayment (Sachhaftung indeed), even though halakhic ruling requires that he should first demand payment. According to a possible inference from R. Yiz hak b. Perez ’s ruling, .. . it allows the lender to take the full value of the pawn (Gentile practice), even though Jewish law allows him only the value of the loan. (See discussion in Shiltei ha-Gibborim, Bava Mez i‘a 38b in Alfasi Vilna ed., and in additional . notes of Shakh, recently published in the Morashah Lehanhil (or Friedman) . edition of Hoshen Mishpat [73:39].) . R. Moshe Isserles (Hoshen Mishpat 73:14, 369:8) relies on the opinion . of R. Yiz hak b. Perez . The Shakh (73:39), however, rules against the Rama, .. . and limits the authority of dina de-malkhuta dina, basing himself on the above opinion of Rabad (of Provence). Temim De‘im sec. 50. In Sefer ha-Terumah 49:5:3 there are slight textual changes (which we enclosed here in brackets). The first question is abridged in Sefer ha-Terumah: instead of u,tukv kf sug ubfanku u,uspk icutr ,t ;ufk ,u,ba ,tknc the text is: u,uspk upufk. The text apparently should be corrected to ubfank tku. Re-arranging the sentence would more clearly show its meaning: u,uspk icutr ,t ;ufk iugna kufh ot u,tukv kf sug ubfank tku wu,ba ,tknc. Can Shimon force Reuven to redeem his mashkonah at the end of the first year, and not just continue holding the mashkonah (as pressure and gradual payment) until the debt is paid? This is not to be confused with modern Hebrew usage where mashkanta means mortgage, a security used only as payment of the debt, and not as pressure for payment. The halakhic term for mortgage is apotiki. (See R. Nissim, Gittin 22a in Alfasi, Vilna ed.) Is an unspecified mashkanta also an apotiki, and if so, what form of apotiki? We find various opinions on this in Sefer ha-Terumot 43:2:3; 49:5:3. There are various opinions as to the amount that must be deducted. See Sefer ha-Terumot 46:3:20 (pp. 500-502, ed. Makhon Jerusalem, 1988). Contrary to Soloveitchik’s representation, the query was not: May the pawn be considered “quit-payment”? For if it were, Rabad’s answer—vfkvv hpku ihs ,hcc urfun lkhtu ouh ohaukan—does not prove anything. Indeed, Soloveitchik does not claim that Rabad proved from talmudic law that the lender must accept the pawn as payment. Apparently, the question asked was this: may the lender force payment (either by selling the pawn or by insisting the borrower pay in cash) and when may he do so; or may he not force any form of payment (even by selling the pawn), only to continue holding onto the pawn as pressure on the
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borrower? Rabad’s answer is clear ihs ,hcc urfun lkhtu ouh ohaukan vfkvv hpku —after 30 days the court forces payment. Our understanding of this question is clearly borne out by the question on the mashkonah as well (see n. 88): perhaps the lender must continue to hold onto the mashkonah (as pressure on the borrower and as gradual payment). 92. Shevi‘it 10:1, 39c Venice ed.: .trnan /hghcav ,tgct/k eka /bn kg twhcj /e vtknv 93. The law of cancellation of the debt in the seventh year proves that the debt still exists until then, as clearly explained by the Mahari Curcas (on Mishneh Torah, Laws of Shemitah 9:9): /g kfc gtwik chhj etvt thkg krtn ctjva ythf ,t/te atdhk ktfh tbhea hi kg pea .uhna hsh /emk 94. Shitah Mekubez et Bava Mez i‘a 66b, fol. 154a. . . 95. Rabad’s Laws of Harsha’ah, Temim De‘im #64. 96. In our discussion, we are assuming that the historical background presented by Soloveitchik is accurate, i.e., that there was indeed a dearth of currency in Provence at the time. However, from the sources cited, this is not clear at all. Only two sources are cited, one in French and one in Hebrew. The Hebrew source is quoted explicitly, the words of Rav Moshe b. Todros: vhtmn vrtwiv yhea ,tke /e tke /ttkvkn uhgbnb ugv kft ,wxjt qtjs uktgva .tc qxg/vk hekn khrvk ekt thje /e ahe /ttkvk We are given to understand the phrase ’’vhumn vyurpv ihta’’ literally, as the lack of currency. However, ’’vhumn vyurpv ihta’’ is a popular Hebrew idiom for poverty, and it is likewise explicitly stated: ’’rxju eujs okugva’’. (Even taken literally, the vyurp is the smallest copper coin and has the most minimal value, which is of no value in commerce.) The only other source cited is an article in French by J. de Malafosse, “Contribution . . .”, Annales du Midi LXIII (1951). It speaks of a dearth of currency (see pp. 109 and 140) during the 10th and 11th centuries. Rabad wrote his hassagot later than the year 1182 (the year Rambam completed writing his Mishneh Torah)—long after that period. 97. Rosh (Gittin 1:17) explains the reasoning behind the law of i,aka sngn: hns ,qtav /bq/ utan eke ,engr ekc e/fkv ehv yhbqv wqhg y/aka sngn wqhg vkrc yf ek ues ,ktjnk ytaewv kfth ekt . . . /tgn tshc yhet vwtjx vbtqa .ktjnk vtknv ktfha ythf y/aka sngn kg wjtxv ltnxh eka ,vbq/v 98. Odita, admission, is a practical and powerful method of transferring property, based on the courts’ acceptance of admission. See Bava Batra 149a. In Rabad’s Laws of Harsha’ah (Temim De‘im #61, Rabad—Teshuvot u-Pesakim #141 s. v. hineh dahakti) we find that odita is effective as a transfer of credit . and is not considered as hav le-aharini to the borrower: . wntk ah vc vftz vnc wne/ uet .e/fwte tvc ehbvn hnb vtknc tkhie enke ew/c eccc e/hesf . . . hwen cwt ecws vagnf e/hstec v/tbqvk ktfha hbin . (.rnq ps) Since the sale of credit by a ma‘amad sheloshtan eliminates the lender-seller’s right to forgive the loan (according to many rishonim, including Rabad in
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following footnote), an admission of the lender-seller that the credit was sold by a ma‘amad sheloshtan will eliminate his right to forgive the loan. 99. One talmudic source, based on the statement of Amemar (Gittin 13b) in explaining how ma‘amad sheloshtan works, is cited by Rabad himself, as quoted in the novellae of Rashba ad loc. Rashba elaborates as well, explaining Rabad’s opinion and his source. Another talmudic source for the above ruling, based on Kiddushin 48a, is noted by Rosh (Ketuvot 9:10). 100. This reasoning is explicit in the novellae of Rashba (Bava Batra 147b) in the name of Rabbeinu Tam. (This is one of the earliest sources we have on this ruling of Rabbeinu Tam.) 101. Here is the complete text of the Mishneh Torah (Hilkhot Mekhirah 6:12) and Hassagot ha-Rabad. ptd eke /tbqb /thewv yhe vwt/v yn kce uhwitx hwcsn /ezv lwsc /twrav yhbq tawth tkhiet tkjtnk ktfh yhhsg twhcjk ctj wra wftnv lfhik .sckc htbqv wcsv .tkjtn Rabad comments: /e lk h/scga ek hbe jqtkk wnte vtkva hbin eke ,vz etv uav yn ek e"e ktfh tbhe ljfn uhecv kfkt lk scgtan hbhwvt tctj wrac tk c/f ue lfhik .hnmg .tctj wra wfnan ktjnk In using the word “therefore” (’’lfhpk’’), Rabad limited his own ruling ktjnk ktfh tbhe ljfn uhecv kfkt lk scgtan hbhwvt tctj wrac tk c/f ue .tctj wra wfnan such that it would apply only according to his own reasoning as to why the orignal lender has the power to cancel the debt, but not according to Rambam’s. 102. Alfasi and Rambam were accepted by many halakhic authorities, and Rabad knew this. According to what Rabad stated as Rambam’s opinion (and apparently Alfasi’s), a court that follows them would rule that the borrower doesn’t have to pay the purchaser of credit if the lender canceled the debt, even when the borrower specified ’’ljfn ohtcv kfku lk scguan’’. Even if a court could not decide between Rabad or Rambam, it would rule that the borrower does not have to pay, being a muhzak; and even if the court wished . to rule like Rabad, perhaps the borrower could legitimately argue: “hk ohe o’’cnrvf.” 103. See Keneset ha-Gedolah (Hoshen Mishpat 66, haggahot Beit Yosef 71). . 104. See Giddulei Terumah (51: 7:1). 105. See Ketuvot 86a and the hassagot of Rabad on Alfasi (Ketuvot 44b, Vilna ed.). 106. In explanation of the talmudic passage in Bava Batra 147b: “Even though Samuel ruled that a lender who sells a note of indebtedness to another individual and afterwards forgives the debt, it stands forgiven, Samuel agrees that if it was bequeathed by a shekhiv mera—a deathly ill person—it cannot be forgiven.” The complete talmudic discussion is as follows: hnt .thkg t/gs pwr/ ena ,ehv enkgc ybcwsn gwn chfa /b/n ynjb cw wne ecwt twcjk ctj wra wftnv ketna wnes d"ge ynjb cw wne evt ,hfv ynjb cw wne gwn chfa /b/nc tb/b uea ketna vstn ,kjtn awth tkhiet ktjn tkjnt wzjt eke .ktjnk ktfh tbhe hfv utan ,e/hh!wtes enkac /wne he .tkjtnk ktfh tbhes .vwt/ kaf vteagt ,vwt/ ka vbhe ktjnk ktfh tbhe hene ,ehv ybcws /wne he Alfasi in Ketubot (44b ed. Vilna) explains:
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-tes vb/nf tvteag gwn chfa /b/ns utan - ktjnk ktfh awth yhe engr hevnt yhwtxnft yhct/ff gwn chfa hwcs ybhwnes tbhhvt ,kcqns vhshk vhk ehrns e/hhw qwic ybhwne ehsvct .khjns hen vhk /hks ,ktjnk awth khfh ek hfv utant ,tns wne :u/v ybhwnes ,ybhc/fsf e/khn hevs engrs (:znq ps ew/c ecc) /na hn ybcws /wne he . . . (ewndv ytak /e qh/gvk lhann p"hwv) 'tft ynjb w"e ecw vhshk ehrns vwt/ kaf tvteagt vwt/ ka vbhe :qhwit .ktjnk ktfh tbhe hene .'tft ktjnk ktfh tbhes etv vwt/ kaf vteags utans vbhn /gnat .kcqns 107. Ramban Kiddushin 48a: tbhe tkjnt wzjt tbtfan jqtkk tk wxnt ,twfnt thkg ytfan tk jhbv ue . . . tbsnk .ktjn tbhe tkjn vbhn gna eke . . . tc /asq/n vae lehv yf [ek] uea ,ktjn 108. Gittin 37a: . . . vqsm vhv/ lkt wneba ?ytfan vbtqa ctj kgck yhbn :qjmh hcw wne 109. Even though we find elsewhere in the Talmud (Bava Mez i‘a 82a, Shevuot 44a): . hn t/etkv /gac tbfan kce t/etkv /gac eka tbfanc qjmh 'w wnes wtnhe .wne See Ramban’s explanation in his Milhamot Hashem (Shevuot Alfasi 26a . Vilna ed.). 110. Ramban Kiddushin 8b. 111. For example, in his commentary on Bava Kamma 51a, he comes to the defense of Alfasi: sen h/cajt h/bhg hbet . . . uhcw thkg tvn/t . . . yefc thwcs ehkiv qjmh cwv vzf rtai wcsc vgrh lhe tvtnf ctaj uset yf/h lhe hf ,thwcs shngvk uhwcsc . . . thwcs shngvk ah hf h/hewt ,ugr hkcn 112. Sotah 47a. 113. In his Mishmeret ha-Bayit (3:3, f. 81a). The fact that Rashba contests Rabad’s opinion perhaps hundreds of times, including in the context of this quotation, does not contradict this statement. When an opinion is based on a sincere quest for Truth, it is considered a form of Truth: “elu ve-elu divrei Elokim hayyim.” . 114. This is noticeable when the various manuscripts and sources are examined, as shown in this writer’s edition of Ba‘alei ha-Nefesh. 115. Kapah, in his introduction to his edition of Ba‘alei ha-Nefesh, claims that the . revisions were mainly due to the Razah’s critique. In his notes on Hassagot ha-Raz ah, he claims to demonstrate this, but, with a few exceptions, rather . unconvincingly. This is discussed in my introduction to his edition of Ba‘alei ha-Nefesh, p. 13. This issue is also discussed by Ta-Shema in Zerahyah ha. Levi: Ba‘al ha-Ma’or u-Benei Hugo, Mossad ha-Rav Kook (Jerusalem,1992), . 129-130. 116. For example: Sha‘ar ha-Perishah 1:11, Sha‘ar ha-Vesatot 1:4, Sha‘ar haTevilah 1:7, Sha‘ar ha-Mayim 1:5. 117. Rambam’s opinion (Ma’akhalot Asurot 12:12, 13:24) is identical to Rabad’s earlier opinion in his commentary on Avodah Zarah 72b. Rabad rewrote his commentary, as he reports in a responsum (Temim De‘im 113). This later edition, however, is not extant. Rabad explains the reasons for this change of opinion in another responsum (Temim De‘im 111). 118. In the early editions of Ba‘alei ha-Nefesh (Sha‘ar ha-Mayim 1:3 shinuyei mahadurot 2), in his commentary on Eduyot (7:3), and in his hassagot on
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Mishneh Torah (Parah 6:10), Rabad rules that a majority of spring water mixed with other water is considered mayim hayyim. In one manuscript . (Vatican Library) of Ba‘alei ha-Nefesh (Sha‘ar ha-Mayim 2:16), he explains the possibility that there must be 100% spring water—which is actually the opinion of Rambam (Mikvaot 9:9, Parah 6:10) that he had previously criticized. In an almost identical manuscript (Sifriyah ha-Leumit), however, this addition is not found. This is perhaps the last modification Rabad made to his Ba‘alei ha-Nefesh. 119. Rabad, Teshuvot u-Pesakim # 22 120. In his introduction to Rabad’s commentary on Bava Kamma (London, 1939), p.42. The Rabad’s revisions and self-criticism are discussed as well by I. Ta-Shema (ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z efon Afrika, . Part I, 203). 121. Joseph B. Soloveitchik, Halakhic Man, trans. Lawrence Kaplan (Philadelphia, 1983), 89-90.
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