Yerushalayim and the World

This is not the first time that my choice of topic has been motivated by current events, but usually I have not stated this explicitly. In the relatively short time that I have had this blog, until now no news item was significant enough in my eyes to deserve the dedication of an entire article. Although politics is important to me, this blog is strictly for Torah and in my view not everything that is important fits into this category.

I know that many will disagree, but I see the recognition by the American President of Yerushalayim as our capital city as a point of great significance in the history of the Jewish People. As such, it was immediately obvious to me that I would try to explain this from a Torah perspective.

The function of Yerushalayim

The first thing we must try to clarify is what the significance of Yerushalayim is to us. The well-known Midrash tells us that Yerushalayim is the ‘light of the world’ and the light of Yerushalayim is Hashem.[1] How does this express itself?

The answer is also in a well-known source:

הַדָּבָר אֲשֶׁר חָזָה יְשַׁעְיָהוּ בֶּן אָמוֹץ עַל יְהוּדָה וִירוּשָׁלִָם: וְהָיָה בְּאַחֲרִית הַיָּמִים נָכוֹן יִהְיֶה הַר בֵּית ה' בְּרֹאשׁ הֶהָרִים וְנִשָּׂא מִגְּבָעוֹת וְנָהֲרוּ אֵלָיו כָּל הַגּוֹיִם: וְהָלְכוּ עַמִּים רַבִּים וְאָמְרוּ לְכוּ וְנַעֲלֶה אֶל הַר ה' אֶל בֵּית אֱ-לֹהֵי יַעֲקֹב וְיֹרֵנוּ מִדְּרָכָיו וְנֵלְכָה בְּאֹרְחֹתָיו כִּי מִצִּיּוֹן תֵּצֵא תוֹרָה וּדְבַר ה' מִירוּשָׁלִָם: וְשָׁפַט בֵּין הַגּוֹיִם וְהוֹכִיחַ לְעַמִּים רַבִּים וְכִתְּתוּ חַרְבוֹתָם לְאִתִּים וַחֲנִיתוֹתֵיהֶם לְמַזְמֵרוֹת לֹא יִשָּׂא גוֹי אֶל גּוֹי חֶרֶב וְלֹא יִלְמְדוּ עוֹד מִלְחָמָה:

(ישעיה ב, א-ד)

The (prophetic) word that Yeshayahu, the son of Amotz saw concerning Yehuda and Yerushalayim: “At the end of days the Mountain of Hashem will be prepared at the top of the mountains, loftier than hills, and all the nations will flock to it. Many nations will go, and say “Let’s go and ascend to the Mountain of Hashem, to the House of the G-d of Ya’akov, so that He will teach us from His ways and we will go in His paths.” Because the Torah will emanate from Zion, and the word of Hashem from Yerushalayim. He will judge between the nations and rebuke many peoples, and they will grind their swords into spades and their spears into sickles. A nation will not raise a sword to another nation, and they will no longer learn war.”

(Yeshaya 2:1-4)

The Torah is Hashem’s way to give spiritual light to the world,[2] and this light is supposed to emanate from Yerushalayim. Chazal learn from these verses that the ultimate authority to decide halacha is with the Sages of Yerushalayim and Eretz Yisrael, unless there is someone in the Diaspora unmatched by anyone in Eretz Yisrael.[3]

Direction of Prayer and Monotheism

Just as the Torah emanates from Yerushalayim, Jews all over the world direct their prayers to Yerushalayim.[4] The main form of worship during the times of the Beis Hamikdash, the offering of korbanos, can only be done in Yerushalayim. As I have written before, the emphasis on one place reinforces the worship of one God,[5] and the same is true about the centrality of Yerushalayim in regards deciding halacha.

The message of monotheism has taken a long time to emanate from Yerushalayim. For much of the period of the first Beis Hamikdash, it was the pagan world outside that influenced Yerushalayim and not the other way round. This eventually led to the destruction of the Beis Hamikdash.[6]

Ultimately, shortly after the building of the second Beis Hamikdash the leaders of the Jewish People concluded that this problem would not be overcome by natural means. The only solution was to pray that the inclination for idol worship should be terminated, a prayer that was answered in the affirmative.[7] It seems that this ended all (or virtually all) Jewish pagan practice, setting the stage for the rest of the world.

A few hundred years later Christianity started.[8] At the time, and for many centuries, this religion was theologically no better than the pagans beforehand. Although it claimed to be monotheistic, the ‘one’ god believed in by the Christians had three parts.[9] And although there were no graven images worshipped, the belief in incarnation was an equivalent.

However, the Rambam writes that the birth and proliferation of Christianity was a step towards bringing Mashiach. Despite the claim that the mitzvos of the Torah no longer apply, Christianity and Islam made the words of the Torah known to the world, and caused people to think and talk about them.[10]

In modern times we have seen a positive process that the Rambam did not see. Gradually, philosophy has led many sects of Christianity to shed their corporeal take on monotheism. The decline in antisemitism of the Church as a whole is certainly connected to this process.

Education or Submission

Monotheism is a crucial part of the light of Torah, but there is far more to it than that. The main struggle we face today is with a religion whose monotheism is not in question. But this religion does not have the same goal described by Yeshayahu. Instead of wanting to teach the world the ways of Hashem, its aim is to force the world to submit.

In Judaism, although war can be a mitzvah, it is never ‘holy.’[11] It is a necessary evil in order to lead to the world peace described by Yeshayahu. The nations who will flock to Yerushalayim in the future will do so out of realisation of the truth, and not out of fear.

The recognition of Yerushalayim as the Jewish capital is, at least to an extent, a recognition of the superiority of the vision of Yeshayahu. It also shows an understanding that terror will not be defeated by the traditional Christian method of turning the other cheek.[12]

What next?

Despite the significance of the new policy of the most powerful nation in the world, it is no secret that there is still a long way to go. The decision was not exactly met with the universal praise that it deserved. I am not even convinced that the Israeli government were as delighted about it as they made out to be. However, so far at least the expected violent reaction has been limited, perhaps indicating that some progress has been made even within the Muslim world.

What happens next is to a great extent in our own hands. The US President rightly did not say anything definite about final arrangements, leaving it up to us to make the truth clear to the world. This task is multi-faceted, and starts from our own understanding of the significance of Yerushalayim.

With this understanding, we can remember to focus all our religious activity on Yerushalayim and not on other sites (see He has no physical form). We must do all that we can to hasten the building of the Beis Hamikdash, by teshuva but also by practical action (see Building the Beis Hamikdash). And in order for Torah to once again emanate from Yerushalayim in the ideal way, we must create the unity necessary to re-establish the Sanhedrin (see 'Ubitul Sanhedreya'). If we fail in these tasks, the opportunity given to us by the US may be wasted.

Chazal dispute whether redemption is dependent on teshuva or not. R’ Eliezer says that if we do teshuva we will be redeemed, and if not we will not. R’ Yehoshua responds that this is unthinkable. Rather, (if we don’t do teshuva of our own accord) Hashem will bring a king whose decrees are as hard as those of Haman, and we will be forced to repent.[13]

The straightforward understanding is that just in the times of Purim, the evil decree of Haman succeeded in uniting us in teshuva, if necessary a similar decree will force us to do teshuva in the future. In light of recent events, maybe we can suggest a different explanation.[14]

The declaration of the US President was for many ‘as hard as the decree of Haman.’ Much of the world reacted with outrage, and even some of our own people (and possibly leaders) weren’t exactly delighted about it. But it has forced us to say to the world that yes, Yerushalayim is our eternal capital. Let’s hope that no further decrees will be necessary to bring us to full teshuva!

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[1] Bereishis Rabba, Chayei Sara 59:5

[2] See Mishlei 6:26

[3] Berachos 63a-b

[4] See Berachos 30a, based on Melachim 1, 8:44

[5] See He has no physical form

[6] Yoma 9b

[7] Sanhedrin 64a, based on Nechemia 9:4

[8] According to Sanhedrin 107b, ‘Yeshu the Nazarine’ was a disciple of Yehoshua ben Perachia, which would place his birth only about two hundred years after the building of the Second Beis Hamikdash. Although non-Jewish accounts put him considerably later, it is likely that this was engineered by the Christians in order to depict the destruction of the Beis Hamikdash as punishment for his execution. Further elaboration is beyond the scope of this post.

[9] Although some understood this belief as being permitted for non-Jews, this was based on a probable misunderstanding of earlier sources. See Pischei Teshuva, Yoreh Deah 147:2.

[10] Hilchos Melachim 11:4

[11] A search on the Bar-Ilan Responsa Project for the term מלחמה קדושה (holy war) returned not a single entry.

[12] As Christianity has no national aspect to it, it can have no concept of a mitzvah to go to war. It is no coincidence that the Vatican continues to take the side of the Arabs (it also remains attached to the belief in incarnation). Although the truth is that the traditional Christianity prevalent in Ashkenazi countries has often influenced our own leaders, leading to failed appeasement policies.

[13] Sanhedrin 97b

[14] Bearing in mind what we wrote in Drush and Divrei Agada

Hoda'as ba'al din (and its limitations)

For many readers who learnt in yeshiva, at least some of the intricacies of this topic will be familiar. For the benefit of those who didn’t, I will try my best to explain clearly. The common denominator for virtually all religious Jews is that this discussion has important practical ramifications.

Basic principles

The gemara tells us in many places that a litigant’s admission of liability (hoda’as ba’al din) is equivalent to the testimony of a hundred witnesses. The basic case is a law that will be obvious to all- if Reuven claims that Shimon owes him money and Shimon admits that the claim is true, no further evidence is needed and Shimon must pay.

In reality, the statement that the admission is as good as a hundred witnesses does not convey the full halachic power of hoda’as ba’al din. Even if the admission is contradicted by countless witnesses, as long as no-one else stands to lose the witnesses are ignored.[1]

The above probably seems obvious, but the strength of hoda’as ba’al din goes further. There is a dispute in the gemara in a case where Reuven claims that he lent money to Shimon, who denies the claim. Witnesses say that Reuven did in fact lend Shimon, but Shimon subsequently paid back the money. Here it is not automatically obvious who we should believe.

The halacha is that although no actual liability was admitted, Shimon’s denial of borrowing implicitly incudes an admission that he did not pay back. As witnesses support Reuven’s claim that he lent the money, Shimon’s denial is not accepted. And as Shimon has admitted that he did not pay back, this part of the testimony of the witnesses is ignored. The result is that Shimon must pay.[2]

Belief or Authority?

Based on the above (and other proofs), the Ktzos HaChoshen concludes that hoda’as ba’al din does not work by creating a new obligation. If so, it could only obligate when liability is accepted. Rather, it must be that we believe the admission. Although we cannot believe what the litigant says entirely, when only he stands to lose the Torah tells us to believe him.[3]

However, the Ktzos concludes that there is a difficulty with this explanation. Rashi explains that the Torah source that tells us to rely on hoda’as ba’al din appears within the halacha of one who admits liability only for part of the debt claimed. The fact that the Torah says that he must take an oath denying the other part of the claim is an indication that he is believed about the part that he admits.[4]

The problem is that this source does not prove that hoda’as ba’al din should be believed even in a case where witnesses contradict. And the necessity to bring a source from a pasuk indicates that logic alone is not sufficient to prove this point. Thus the Ktzos is left with a difficulty that he has no answer to.

R’ Shlomo Fisher שליט"א explains hoda’as ba’al din differently, in a way that eliminates the difficulty raised by the Ktzos. When a litigant admits liability, or a fact which leads to liability, there is no need for us to deliberate whether or not to believe him. The Torah gives a litigant the authority to rule for himself about any detail which leads only to his own liability, irrespective of how believable his statement is.[5] The strength of hoda’as ba’al din against witnesses is a clear corollary, as the litigant has the right to ignore witnesses and rule to his own disadvantage.[6]

Could it be more?

With the above explanations in mind, we can move to a case in the gemara that some understand as extending the concept of hoda’as ba’al din even further.

The gemara tells us the story of Issur Giyora, a convert whose biological child Rav Mari was conceived prior to conversion (of his mother) but born after conversion. When Issur was about to die, he realised that as Rav Mari was not halachically his son, he would not naturally inherit his significant estate. As someone with no halachic inheritors, his money would become ownerless after his death. Various ways were suggested to circumvent this problem, but technical problems existed with all of them.

Rav Ikka came up with a brilliant but controversial solution:

ולודי איסור דהלין זוזי דרב מרי נינהו, וליקנינהו באודיתא! אדהכי נפק אודיתא מבי איסור. איקפד רבא, אמר: קא מגמרי טענתא לאינשי ומפסדי לי!

Let Issur admit that the money in fact belongs to Rav Mari, and he will acquire them through udisa (admission)! After this (suggestion was made), an admission was issued from Issur’s house. Rava (who could have taken possession of Issur’s money after it became ownerless) objected to this, saying “They teach claims to people and cause me a loss!”[7]

There seems to be a contradiction within this passage as to what this admission achieves. Rav Ikka says that through the admission Rav Mari will acquire the money. However, Rava objects and describes this idea of Rav Ikka a claim. The rishonim dispute which term is the accurate one.

Rashbam explains that this gemara deals with a regular admission, and proves from this story that the admission of one close to death is taken at face value.[8] Tosfos object to this explanation, and instead explain that here the admission can be used as a means of transferring ownership (a kinyan). In the first variation they suggest, this use of an admission is limited to one on his death bed. Their second suggestion is that according to the conclusion of the gemara, anyone can perform a kinyan just by ‘admitting’ that something in his possession in fact belongs to someone else.

Tosfos conclude that their first variation is superior, i.e. only one on his deathbed can transfer ownership by admission. The Ri Migash explains similarly, and this also is the position of the Tur and Shulchan Aruch.[9]

The reason for the special dispensation given for someone on his deathbed is clear. Elsewhere we are told of an institution of Chazal that no kinyan is necessary when one on his deathbed wishes to give a gift. This institution was necessary in order to protect someone ill from losing his mind out of fear that he would not manage to complete the necessary transaction. His word is considered as written and signed, with the proviso that if he recovers he may retract.[10]

For a healthy person to be able to transfer ownership by ‘admission’ seems counter-logical, according to any explanation of how hoda’as ba’al din works. Furthermore, in my humble opinion the easier reading of the gemara is that no kinyan was involved in the story of Issur Giyora. An obvious difficulty with the story is the surprising response of Rava to Rav Ikka’s suggestion. Why was Rava so upset that Rav Ikka helped someone on his deathbed bequeath his inheritance to the person he wanted?

If this ‘admission’ did not cause any transferral of ownership, we can understand why. Rav Ikka taught Issur a deceitful way to mislead Beis Din. The money which belonged to Issur would in reality become ownerless after his death. However, Beis Din would have no choice but to believe the admission that the money belonged to Rav Mari, even if a hundred witnesses contradicted him.

Practical Applications

The Rambam and Shulchan Aruch never mention any option of enacting a transfer of ownership by admission, in concurrence with most of the opinions we have seen above. However, in at least two cases the poskim do make use of the dissenting view.

A common halachic problem in writing contracts is the issue of asmachta, conditional obligations. For example, the gemara tells us that if a contractor takes on to sow a field with a large penalty for reneging, this penalty is void.[11] The logic is that one who agrees to a disproportionate penalty never really considered the possibility of reneging and having to pay.

The laws of asmachta are complicated, but one common means of overcoming this problem is performing a kinyan in front of a distinguished beis din.[12] The Rema, quoting the Maharam Mirotenburg, rules that even this is not necessary. It is sufficient for the person taking on the obligation to sign on a statement that he has performed a kinyan in front of a distinguished beis din. Even though the statement is false, hoda’as ba’al din is as good as a hundred witnesses.[13]

This ruling is clearly predicated on the idea that admission can create a kinyan out of nothing. Surprisingly, none of the major commentators point out the fact that this is a minority opinion and even contradicts other rulings of the Shulchan Aruch.[14] The use of this trick is widespread, and virtually any contract written with halacha in mind will include such a clause.

Another important use of kinyan by admission was started by the Ktzos Hachoshen. Due to various disputes between the poskim as well as practical difficulties, there is a question about which kinyan to use for the sale of chamtez to a non-Jew. The Ktzos suggests that one should simply ‘admit’ that the chametz belongs to the non-Jew, automatically transferring ownership.[15] In practice, to cover all bases many different kinyanim are performed, and one of them is this ‘admission’.

Finally, the pre-nuptial agreement enforced by the Rabbinical Council of America includes two uses of false admission. One of them is the standard statement of a kinyan in a distinguished beis din, to avoid the problem of asmachta. Additionally, the husband waives his rights to the earnings of the wife after separation, and ‘admits’ that this waiver is repeated at the time of the wedding.[16]

Here, not only is the admission false, but the husband is admitting something that hasn’t even taken place yet! Support for this can be found from the words of some poskim, but it seems to defy logic. I would be much happier if the waiver really was repeated at the time of the wedding, despite the extra half-a-minute this would add to the marriage ceremony.

As I have written before, all of this could be different if halachic rulings were issued from first principles, not by automatically accepting rulings from the past while losing sight of the inherent understanding of the concepts involved.[17] All the above issues have alternative (if less convenient) ways of working, without resorting to tricks that make the Torah seem illogical to the world.

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[1] See Bava Metsia 3b where the gemara says that one’s own admission cannot be effectively contradicted. The exception, when someone else stands to lose, appears in Kesuvos 19a.

[2] Shevuos 41b, Choshen Mishpat 79:1

[3] Ktzos HaChoshen 34:4. It might seem strange to say that we believe one statement for some purposes but not for others, but what we mean to say is that the admission is some degree of evidence of the truth of the liability. This degree of evidence is sufficient in order to obligate the litigant who makes the admission, but not in order to obligate others.

[4] Kiddushin 65b (ד"ה הודאת בעל דין). See also Rambam Eidus 17:1 for another source.

[5] Beis Yishai siman 90

[6] In the case of the gemara above, the defendant rules against the witnesses that he did not pay back the loan. As he has no authority to rule that he didn’t borrow, here beis din accept the testimony of the witnesses and obligate him to pay.

[7] Bava Basra 149a

[8] And not as an effort to conceal the wealth left to his inheritors.

[9] Choshen Mishpat 250:3

[10] Bava Basra 146a-147a.

[11] Bava Metsia 104b

[12] Nedarim 27b

[13] Choshen Mishpat 207:15.

[14] Although the Sm”a explains that the purpose of this admission is to demonstrate that there is true intent to obligate oneself, thus negating the problem of asmachta, in reality this is hard to support. The general practice is to include this clause in the small print of the contract, and it often isn’t even read by the signatories.

[15] 194:3

[16] For a lengthy explanation of this, including another perceived problem with the PNA and my rejection of this ‘problem’, see here.

[17] I do not chas v’shalom mean that these earlier rulings were issued without a proper grasp of these concepts, or without grounding in the gemara. What I mean is that they should not be relied upon unless this grounding is fully understood by the one using them. See “How does halacha work?”