SHIUR #22: Tnai Kaful

                by Rav Mordechai Friedman

I.  The Extent of the Dispute between R. Meir and R. Chanina

Our sugya begins with the mishna on 61a (read the text  inside!).  Taken at face value, the disagreement in the mishna  refers to ALL of the "mishpetei tnaim" (laws of conditions).  (These include 1) tnai kaful - one must state both the terms  of compliance and non-compliance; 2) tnai kodem le-ma'aseh -  one must state the condition before stating the conditional  act; 3) hen kodem le-lav - one must state the terms of  compliance before stating those of non-compliance.)  This not  only rings true textually in the mishna, but logically as  well. As the Tosafot Ha-Rosh (s.v. R. Chanina) points out: "R. Meir learns the rules of 'tnai kodem le-ma'aseh and 'hen  kodem le-lav' from the same source as 'tnai kaful' - the extra  words of Moshe teach us that it is not a valid tnai if it is  not similar to Moshe's tnai in all aspects."

In addition to the above textual and logical points, the  Tosafot and the Ramban bring the gemara in Bava Metzia 94a  that says "who [is the Tanna who] is of the opinion that we  require 'tnai kodem le-ma'aseh?'  It is R. Meir."  This gemara   infers that R. Chanina disagrees in all of the mishpetei  tnaim.

Yet Rashi, on the mishna, comments that the dispute is  limited to tnai kaful alone.  R. Chanina agrees with the  requirement of the other 'mishpetei tnaim.'

Why would Rashi go against the straightforward  understanding of both our mishna as well as Bava Metzia 94a?

I believe the answer lies in why we view Moshe's  condition to benei Gad and benei Reuven to be the source of  the rules of tnaim.  The "yetura dikra" - extra words, or  redundancy in the Torah, according to the Tosafot Ha-Rosh (the  Tosafot and Ramban as well) seems to be the sole exegetical  flag which teaches us to use tnai benei Gad as the blueprint  for all tnaim.  When R. Chanina explains how these words are  not redundant, he brings down this flag, disqualifying tnai  benei Gad as a source for particular laws of tnaim.

Rashi, on the other hand, understood that tnai benei Gad  is accepted as the paradigm of all future tnaim not because of  a yetura dikra, but a different reason.

How do we know that ANY tnai works?  Normally, a person  does a ma'aseh kinyan (an act), and the chalot (the change in  legal status) follows immediately.  In the context of tnai, we  do just this and yet, magically, the final chalot is delayed,  until the tnai mechanism allows it to take effect.  Tnai can  be viewed as quite a "chiddush" (innovation).

For this reason, we can view tnai benei Gad not merely as  a source from which we derive certain details of the laws of  tnai, but rather as the origin of the validity of the actual  mechanism of tnai.  We can now appreciate Rashi's contention  that R. Chanina who holds that there is no yetura dikra of  tnai kaful, nevertheless learns all remaining aspects of tnai  from tnai benei Gad. The validity of tnai itself, and some of  its halakhot, are still learned from this condition made by  Moshe.

To sum up this point: The way R. Chanina relates to tnai  benei Gad, after neutralizing the yetura dikra of tnai kaful,  depends on whether all tnaim require a primary source in the  Torah or if tnaim have a natural or logical basis.

This particular query (is tnai a logical legal structure  or a chiddush created by the Torah) may help explain the  dispute among the Rishonim about how to differentiate between  tnai and ta'ut (error).  [Please see shiur #20, section I for  an excellent summary - in particular section Ic.]

According to Tosafot (Kiddushin 49b s.v. Devarim)  whenever there is a reasonable assumption (umdana) that the  person enacting the given transaction (makneh) would demand a  particular condition - the rules of tnai (mishpetei tnaim) are  not required. It would appear that Tosafot view tnai as part  of a natural legal structure used to communicate or focus the  willful intent (da'at) of the makneh - used when the  conditions of the da'at makneh can not be otherwise assumed.

The Rashbam (in the same Tosafot) and the Ra'avad are of  the opinion that mishpetei ha-tnaim are not required in all  monetary manners.  The da'at makneh can be limited in any  manner the makneh chooses by regular logical legal  terminology.  "Official" tnai is only required in matters of  issur such as marriage and divorce: institutions whose  existence are legislated by the Torah, and are therefore  regulated through a structure created by the Torah. (This idea can possibly be applied to explain the opinions of  the Rambam and the Ramban as well. The Rashba's opinion is  problematic, as pointed out in Tosafot, Ramban, Rambam and  others; however, this is not the proper place to expand.)

 II.  Mikhlal Hen Ata Shomeia Lav

We have discussed the extent of the dispute between R.  Meir and R. Chanina.  Let us now focus on the specific law of  tnai kaful - the requirement to state both the terms of  compliance and non-compliance when making a condition.  As we  saw in the mishna, R. Meir requires this stipulation while R.  Chanina does not. If we examine the mishna alone, we could  assume that the issue is simply a question of accepting the  gezerat ha-katuv (scriptural decree) or not.  R. Chanina is of  the opinion that stipulating the terms of compliance is  sufficient since it leaves little room for doubt as to his  intent in case of non-compliance.  R. Meir agrees to this  logic, nonetheless the Torah requires a formal, explicit  vocalization of the terms of non-compliance terms.  Taken as  such, it would be a locally focused dispute, relating  specifically to  the laws of tnai.

The gemara (here as well as in Shavuot and Nedarim)  refers to the dispute using a more general term: R. Meir  disputes  the logic that 'mikhlal hen ata shomeia lav' - from  a positive statement you can infer its negative counterpart.   In Shavuot the gemara states the converse: R. Meir doesn't  maintain  "mikhlal lav ata shomeia hen."  This formulation  would seem to indicate that the dispute is not limited to tnai  alone, but is of a broader nature.

Indeed, our gemara applies the dispute to areas that seem  to be only distantly related to tnai.  Avraham's oath with  Eliezer; divine promises; the curse of a sota; even the  Torah's actual explanation of specific laws.  (See our gemara  62a "Mei chatat" and in Shavuot 36b "Shetuyei yayin ve-peru'ei  rosh.")

The Yerushalmi, on the other hand, did not necessarily  view these two phrases ("tnai kaful" and "mikhlal hen" to be  synonymous.  [See Yeru. Kiddushin 3:3 (the last few lines) and  Yeru. Shavuot 3:10.]  Taken at face value, the Yerushalmi is  saying that R. Meir maintains "mikhlal hen," therefore  logically alleviating the need to actually vocalize a "tnai  kaful."  Yet, because of the "gezerat hakatuv," he at times  requires full verbalization.  According to this, in areas  outside of a formal tnai, R. Meir would maintain "mikhlal  hen."

Our gemara apparently views this dispute in a broader  context.  We could simply use our first explanation and  broaden it to include all areas where verbalization is  relevant:

A.  Rav Chanina feels that vocalizing the positive (or the  negative) event and its consequence is sufficient since there  is no doubt as to the INTENTION for the opposite event and  consequence.  R. Meir, as a rule, feels that even the most  clear INFERENCE cannot halakhically fulfill the required  VOCALIZATION.

So, one can say that the dispute revolves around the  nature of the requirement of FORMAL halakhic vocalization.   This would seem to be the direction of the Tosafot (s.v. Bi- shleima).

It is, however, possible to view the dispute less from  the standpoint of halakhic requirements, and more in the  direction of assessment of the levels of inference in natural  communication.  We can relate to this possibility as a  question of the clarity achieved via implication or as a  semantic question:

B.  Clarity of Implication

The dispute can simply be what level of clarity one  achieves with an inference.  R. Meir and R. Chanina might  agree on the halakhic level of clarity required and yet differ  how it can be achieved.  R. Chanina maintains that one  achieves this level of clarity after vocalizing the "hen"  (positive terms of compliance) alone, and R. Meir disagrees.

C.  The Semantic Approach

The Rambam in Hilkhot Nedarim 1:18 rules "He who says to  his friend 'that which I eat with you SHOULD NOT BE CHULLIN  ...' it is as if he said 'Anything I eat with you SHOULD BE A  KORBAN' (the basic formulation of a neder) - which is  forbidden."

The Ra'avad points out (1:20) that this ruling of the  Rambam follows the rule of mikhlal lav ata shomeia hen - which  is AGAINST R. Meir's logic, while elsewhere the Rambam follows  R. Meir

!An answer for the Rambam can be found in Tosafot (Nedarim  11b s.v. Tanya).  Tosafot explain that this mishna (Nedarim  10b - quoted by the Rambam above) can be explained according  to R. Meir.  When a person makes a statement requiring more  explanation, R. Meir would consider it a case of mikhlal lav.   However, if he states a phrase such as "not chullin" is as if  he specified his words explicitly - "not chullin but a  korban."  While Tosafot differentiate between mikhlal lav and  an idiomatic phrase, the Ra'avad seems to equate the two.   Along these lines, we can explain that both R. Meir and R.  Chanina agree that in areas where speech is required, only  actual vocalization suffices.  R. Chanina maintains that  whenever uttering the "hen" phrase, a person has actually  vocalized the "lav."  For when a hyphenated phrase's full  meaning is so clear to any human ear - it attains the level of  actual verbalization, much like the use of an idiom.  Mikhlal  hen ata SHOMEIA lav would mean literally "you HEAR the  negative."

We have presented three ways of understanding the dispute  between R. Meir and R. Chanina.  The former revolving around  the formal halakhic requirements of speech, the latter two  understandings pivoting on the assessment of the power of  inference in communication.

III - Testing our Understandings

We have mapped out three explanations - let us test them  in two areas: 1. In relation to the peshat of our mishna. 2. In relation to the gemara's application of the dispute.

1. Vis-a-vis the mishna: The latter two explanations of the  dispute pose a problem with the simple reading of the mishna.   The mishna presents the dispute as an outgrowth of a  disagreement in parshanut ha-mikra (exegesis).  Is Moshe's  phrase redundant or fully essential?  R. Meir learns tnai  kaful as a gezerat ha-katuv from its redundancy, not because  he had prior opinions on communications or semantics.

In order to accept the latter two directions that we have  posited, we must understand that the primary reason behind R.  Chanina and R. Meir's views are their opinions on  communications.  This then caused their needs to explain the  pasuk differently.  While not necessarily ringing true from  the plain reading of the mishna, this seems to be the  direction taken by our gemara.  With each new question raised  through the various pesukim it brought, the gemara broadens  the question beyond hilkhot tnai.

2. Vis a vis the gemara: In truth, the gemara's application of  the dispute between R. Chanina and R. Meir to the various  areas other than tnai is, in and of itself, problematic.   However, the difficulty might be eased somewhat depending on  which of the above three explanations we choose.  In the area  of tnai, the requirement of a strict formal statement  structure is understood.  However, in the other areas where  the gemara (61b-62a) applies the dispute of "mikhlal hen ...,"  it becomes difficult to accept that R. Meir would require  formal vocalization.  Tosafot deal with this difficulty head  on, by explaining that an aspect of tnai exists in the process  of sota (s.v. Bi-shlama Le-R. Chanina) and even in 'mei  chatat' - the process of purification (s.v. Bi-shlama Le-R.  Meir Hainu).  This is a very daring step because it takes the  issue of a two-sided expression of the Torah out of the realm  of parshanut, transforming it into an aspect of the very  nature of the halakha of mei chatat (see Tosafot).  Although  Tosafot go to great extents to keep our whole gemara within  the context of tnai kaful (as opposed to broadening it to the  concept of mikhlal hen ...), it must have been clear to them  that the gemara in Shavuot cannot be limited to the realm of  tnai.  Their possible motive might have been the simple  reading of our mishna.

Once we explain that the crux of the disagreement lies in  what level of communication we attribute to inference, it is  easier to understand our gemara's various applications.

The gemara in Shavuot 36a-b concludes that R. Meir agrees  to mikhlal hen ... in cases of pure issur (ritual  prohibitions), and only maintains his requirement of 'tnai'  kaful in cases involving monetary repercussions. The logic in  this would seem to be that a greater level of clarity is  required specifically because of the involvement of other  parties.  According to our first explanation, R. Meir would  require actual vocalization of both negative and positive  terms even if stating one term would leave its counterpart  perfectly clear.  This would leave little reason to  differentiate between monetary and issur related statements.   However, in the second explanation R. Meir does view a single- sided statement as less clear.  We could therefore explain  that R. Meir requires tnai kaful only in monetary  issues as  they involve another party, and would thus justify requiring  more clarity.

 Sources for next week's shiur:

Mishna Kiddushin 62a, and Gemara ad. loc. 62a-63a.

See also Gemara Bava Metzia 16a: "peshita...samcha da'atei;"  Mishna Bava Metzia 33b; Gemara ad. loc. 33b-34a: "matkif la  Rami Bar Chama... lo avid inish d'makni."  See also Bava  Metzia 66b: "v'ha'itmar, ha'mocher perot...l'olam yachol  lachzor bo."  See Nemukei Yosef, Bava Metzia, 37b in pages of  Rif, c.v. amar.  Nedarim 85b: "bishlama adam...chavero."   Choshen Mishpat 197:7, and Shach ad. loc.

For further research: Yevamot 92b-93b: "amar R' Yanai...min  ha'ra'uy lo," Mishma Ketubot 58b, and Gemara until the two  dots.  Gemara, ad. loc. 59b: "amar Shmuel halakha k'R.  Yochanan ha'sandlar... until Mishna 59b.  See also Gemara  Gittin 42b-43a: "ibayi l'hu eved she'machar...mai," and Bava  Batra 79a, "tanu Rabbanan, hekdeishan...b'mah sheb'tochan,"  and ad. loc. 79b, "elah amar Rabah...l'shovach."

Consider the following questions:

1)Which seems more logical:  One can or cannot be makneh a  davar shelo ba l'olam? Why? 2)What might be the various problems with being makneh a dava  shelo ba l'olam? 3)Categorize the various cases of davar shelo ba l'olam.  How  might this affect whether one can or cannot be makneh them? 4)How would our sugya in Kiddushin 62a-63a be explained in  light of the different possible problems with a davar shelo ba  l'olam?