Talmud Tips

For the week ending 06 August 2022 / 9 Av 5782

Ketuvot 9 - 15

by Rabbi Moshe Newman
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A New Reality

The ketuvah is one of the most widely known items in Jewish law and practice, regardless of the degree of the observance of the community, family or person. Perhaps a widespread custom to write it in a beautiful manner and with accompanying designs gives it a position of prominence. Or perhaps the reason for its “fame” is its place in the wedding ceremony and its being an essential marriage contract, which helps provide integrity and stability to the Jewish family.

On our daf we find a dispute between two great Torah sages regarding its origin and halachic status. Rabban Shimon ben Gamliel says that the institution of the ketuva is of Torah origin, whereas Rav Nachman says in the name of Shmuel that it is of Rabbinic origin.

Throughout the ages, commentaries have offered proofs for both positions. For example, in the text of a traditional ketuva, the groom writes, “I obligate myself to give you two hundred zuz that you are entitled to by the Torah.” The phrase “by the Torah” supports the view that the ketuva is of Torah origin (Rabbeinu Tam). Other Rishonim rule that the ketuva is of Rabbinic origin, offering proofs to that effect while explaining “by the Torah” to mean the type of money. This means that the groom obligates himself to pay the value of the type of currency that was used at the time the Torah was given at Mount Sinai — but the obligation in the ketuva is nevertheless of Rabbinic origin (Rabbeinu Asher).

I would like to share a novel idea that could also explain why the phrase “obligated by the Torah” appears in the ketuva despite its being of Rabbinic inception.

The Shemittah year is a “year of rest” for the Land of Israel. No planting or harvesting may be done that year. The people are dependant on the produce of the sixth year for three years, including the eighth, because no planting is permitted in the seventh. But Hashem said to not worry. He promises to bless the Land, such that it will provide great abundance in the sixth year. “I will command My blessing for you in the sixth year, and the Land will produce sufficiently for three years.” (Vayikra 25:21)

On one memorable Yom Tov morning more than forty years ago, I accompanied my revered teacher Harav Moshe Shaipiro (zatzal) on a post-davening walk home from shul to our neighboring homes in Bayit V’gan. It was a Shemittah year, and I asked the Rav: “I understand how Hashem’s bracha worked during the times when Shemittah was a Torah mitzvah. But nowadays, when the mitzvah is m’d’Rabbanan, how could Chazal decree this mitzvah and forbid most agricultural work, relying on the bracha in the Torah? How could they be certain that Hashem would grant His bracha of abundance due to their decree? Isn’t this like forcing Hashem, so to speak, to give a bracha that would not have been needed if not for their Rabbinic decree against farm work in the seventh year?”

As we walked, the Rav explained that any decree from Chazal was more impactful than just the an addition of a Rabbinic law to the Shulchan Aruch. He emphasized how, in fact, their decree created a new reality. When they said it was Shemittah, it was really Shemittah and not just an “academic” legal issue. When Chazal instituted Shemittah m’d’Rabbanan, it was really a Shemittah year. In a sense, Chazal changed the nature of reality.

This would explain why Hashem’s promised bracha would certainly exist for the Shemittah years that Chazal enacted.

To prove his point, Rav Moshe cited a teaching from the Sefer Hachinuch. There is a mitzvah to not refrain from lending to the poor prior to Shemittah out of fear the loan will be cancelled by the Shemittah year. The Torah states, “If there will be among you a needy person, from one of your brothers in one of your cities, in your land that Hashem is giving you, you will not harden your heart, and you will not close your hand from your needy brother. Rather, you will open your hand to him and you will lend him sufficient for his needs that he lacks. Beware, lest there be in your heart an unfaithful thought, saying, ‘The seventh year, the year of release (of the loan) has approached,’ and you will begrudge your needy brother and not give him, and he will cry out to Hashem against you, and it will be a sin to you. You will surely give to him, and your heart will not be grieved when you give to him, for because of this generosity, Hashem will bless you in all your work and in all your endeavors.” (Devarim 15:7-10)

Sefer Hachinuch writes that this mitzvah to “not harden your heart, and not close your hand from your needy brother” applies to all people at all times, including nowadays. Rav Moshe rhetorically noted that this means there is a Torah prohibition that is based on Shemittah even when Shemittah is a Rabbinic obligation and not a Torah one. “How can this be understood and not be a paradox?” he said. He explained that although Shemittah nowadays if m’d’Rabbanan, it created a reality of Shemittah in every sense. Therefore, one who refrains from lending to the needy out of concern that Shemitta will cancel the loan is transgressing a Torah prohibition of not lending on account of Shemittah — despite the fact that the actual mitzvah of Shemittah nowadays is of Rabbinic origin and not a Torah mitzvah.

Based on this novel idea that I learned from Rav Moshe, it is possible to explain the text of the ketuva — “I am obligated by the Torah” — appears in the ketuva despite its being of Rabbinic origin. Even if the ketuva is m’d’Rabbanan, the obligation it creates is no less than a Torah obligation, which explains and justifies the wording of the ketuva as “I am obligated by the Torah.”

On a parenthetical note, the following day I told my chevruta, Rav Yisrael Berman shlita, the novel idea and its proof that Rav Moshe had taught me a day earlier. Rav Berman immediately presented an argument for why the Sefer Hachinuch’s ruling is not a proof that a Rabbinic decree creates a Torah reality. Even if Shemittah m’d’Rabbanan creates a Rabbinic reality but not a Torah one, the Torah mitzvah to not refrain from lending due to Shemittah is understandable. The point of the mitzvah to not refrain from lending due to Shemittah is to show generosity and loving-kindness despite a potential monetary loss caused by Shemittah — whether the Shemittah is of Torah or Rabbinic origin. When I later said these divrei Torah to Rav Moshe, he told me that although our point has a degree of validity, his main teaching that a Rabbinic decree creates a new reality is nevertheless without a doubt.

  • Ketuvot 10a

*In loving memory of my mother, Mrs. Edith Newman, on her ninth yahrtzeit.

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