The Blogs: The Pain of In-Between, Punishment or Consequences, Free Passes Bava Kama 70-73

Stealing Victory from the Jaws of Mediocrity

Our Gemara on Amud Aleph discusses the limbo state occupied by certain stolen objects:

גָּזַל וְלֹא נִתְיָיאֲשׁוּ הַבְּעָלִים – שְׁנֵיהֶם אֵינָן יְכוֹלִין לְהַקְדִּישׁ; זֶה לְפִי שֶׁאֵינוֹ שֶׁלּוֹ, וְזֶה לְפִי שֶׁאֵינוֹ בִּרְשׁוּתוֹ.

If one stole an item and the owners have not yet despaired of recovering it, neither of them is able to consecrate it: This one, the thief, cannot consecrate the item because it does not belong to him, and that one, the owner, cannot consecrate it because it is not in his possession.

As we have noted about other halakhos of theft and damages, these formulations also resonate metaphysically. Tiferes Shlomo (Vol III:Nitzavim) quotes the Divrei Yechezkel who uses this statement to understand the state of the sinner. If one’s soul is stolen or possessed by evil forces, so long as he does not give up, he cannot be given over fully to the Dark Side.

Reflecting on this, I will add that the metaphor holds true in both directions. Meaning, the in-between stage is one of powerlessness on both sides. While the devil may not take full possession, neither can God, just as the object cannot be consecrated neither by the owner nor by the thief. The problem of being in-between is one of the patterns in human nature that repeats itself spiritually, emotionally and physically. A person in a stable but poor relationship does not divorce, nor receives the joy of intimacy. The middle class do not get tax breaks, loan forgiveness, nor tuition breaks, while the poor receive support and the wealthy do not need any of it.

As it states in Avos (4:15 – according to interpretation of Rabbenu Yonah):

רַבִּי יַנַּאי אוֹמֵר, אֵין בְּיָדֵינוּ לֹא מִשַּׁלְוַת הָרְשָׁעִים וְאַף לֹא מִיִּסּוּרֵי הַצַּדִּיקִים

Rabbi Yannai said: it is not in our hands either of the security of the wicked, or even of the afflictions of the righteous.

Eliyahu on Mount Carmel (I Kings 18:21) rails against the Jews trying to play both ends:

וַיִּגַּ֨שׁ אֵלִיָּ֜הוּ אֶל־כָּל־הָעָ֗ם וַיֹּ֙אמֶר֙ עַד־מָתַ֞י אַתֶּ֣ם פֹּסְחִים֮ עַל־שְׁתֵּ֣י הַסְּעִפִּים֒ אִם ה’ הַאלקים לְכ֣וּ אַחֲרָ֔יו וְאִם־הַבַּ֖עַל לְכ֣וּ אַחֲרָ֑יו וְלֹֽא־עָנ֥וּ הָעָ֛ם אֹת֖וֹ דָּבָֽר׃

Elijah approached all the people and said, “How long will you keep hopping between two opinions? If the Hashem is God, then follow Hashem; and if Baal, follow [Baal]!” But the people answered him not a word.

Avoid staying in nowhere-land, and steal victory from the Jaws of mediocrity!

Punishment or Consequence?

Our Gemara on Amud Aleph discusses the well-known Jewish legal principle of a form of double jeopardy; one is not sentenced to be flogged and obligated to pay for the same act. This is also known as Kim ley bederabbah miney – the person takes the more severe punishment and is exempt from additional punishment.

Sefer Shama Shelomo (Bereishis) asks, “If so, why did God punish Adam with both mortality and having to eat bread by the sweat of thy brow?” Ben Yehoyada (Shabbos 55b) answers based on a Midrash Rabbah (19:10), which offers a parable to explain Adam’s sin:

וַיֹּאמֶר מִי הִגִּיד לְךָ כִּי עֵירֹם אָתָּה הֲמִן הָעֵץ (בראשית ג, יא), אָמַר רַבִּי לֵוִי לְשׁוֹאֶלֶת חֹמֶץ שֶׁנִּכְנְסָה אֵצֶל אִשְׁתּוֹ שֶׁל חַבָּר, אָמְרָה לָהּ מַה בַּעֲלָהּ עוֹשֶׂה עִמָּךְ, אָמְרָה לָהּ כָּל טוּב הוּא עוֹשֶׂה עִמִּי, חוּץ מֵחָבִית זוֹ שֶׁהִיא מְלֵאָה נְחָשִׁים וְעַקְרַבִּים שֶׁאֵינוֹ מַשְׁלִיטֵנִי עָלֶיהָ, אָמְרָה לָהּ כָּל קוּזְמִיקוֹן שֶׁלּוֹ שָׁם הוּא, וּמְבַקֵּשׁ לִשָּׂא אִשָּׁה אַחֶרֶת וְלִתֵּן אוֹתָהּ לָהּ. מֶה עָשְׂתָה הוֹשִׁיטָה יָדָהּ לְתוֹכָהּ, הִתְחִילוּ מְנַשְׁכוֹת אוֹתָהּ, כֵּיוָן שֶׁבָּא בַּעֲלָהּ שָׁמַע קוֹלָהּ מְצַוְוחָה, אָמַר לָהּ שֶׁמָּא בְּאוֹתָהּ חָבִית נָגַעְתְּ, כָּךְ אָמַר הַקָּדוֹשׁ בָּרוּךְ הוּא לְאָדָם הָרִאשׁוֹן הֲמִן הָעֵץ אֲשֶׁר צִוִּיתִיךָ וגו’.

“He said: Who told you that you are naked? Did you eat from the tree that I commanded you not to eat from it” (Genesis 3:11). “He said: Who told you that you are naked? Did [you eat] from the tree…?” – Rabbi Levi said: This is analogous to a woman who needs to borrow vinegar, so she goes into the house of a snake charmer’s wife. She says to her: ‘How does your husband treat you?’ She answers her: ‘He treats me with all generosity, except for this barrel that is filled with snakes and scorpions, to which he does not allow me access.’ She says to her: ‘All his gems are there, and he wants to marry another woman and give it all to her.’ What did she do? She reached her hand into it, and they began biting her. When her husband came, he heard the sound of her screaming. He said to her: ‘Did you, perhaps, touch that barrel?’ So, the Holy One blessed be He said to Adam the first man: “Did you eat from the tree that I commanded you [not to eat from it?]”

Ben Yehoyada says this parable shows that death was no more a punishment than what happened to the woman who was in the parable. It was a consequence and side effect, but not really a punishment. Once man sinned and allowed materialism and physicality to enter his existence, he became susceptible to death.

I will add, a careful reading of Moreh Nevukhim (I:2) expands on this idea and also explains why all of us must suffer for Adam’s sin. It is because we re-enact this ourselves by our own attachment to physicality. In theory, if we fully attached to God we would transcend mortality. When we do not, we all commit Adam’s sin. (By the way, students of the Moreh should read and re-read this particular chapter of the Moreh. It is the “Rosetta Stone” of the Moreh and hints and many secrets.)

A simpler answer to the question is bought down by Sefer Daf Al Daf: We don’t apply the entire principle of Kim Ley etc to heavenly judgment.

Why should there be a difference? I believe this has to do with function of Jewish civil law and heavenly law. Jewish civil law has a function to maintain order primarily and only secondarily to administer justice to a degree, knowing the limits of humans to arrive at truth. Thus Bais Din is very conservative in how and when it metes out punishment. The main focus is less about absolute Justice so long as some form of societal order is maintained. Hence the fact that once in a while, though the Jewish court hardly ever gave the death penalty (Mishna Makkos 1:10), in unusual circumstances it can impose mass sanctions without due process and impose martial law. See for example, Sanhedrin 45b-46a, where several examples of extra judicial punishments and activities are described based on circumstances that threatened the social order. However, logically, the goal of the heavenly court is simply to balance the scales of justice in the way that God ordained the universe. Therefore, there is no such thing as double jeopardy, or anything else that might be designed to compensate for the inaccuracies of human judgment. Heavenly judgment is simply about truth and justice. And that is where we come full circle, because in the Heavenly realm, since it is pure justice, punishment and consequence are really the same.

The Pain of Gaslighting

Our gemara on Amud Beis discusses the concept of עֵד זוֹמֵם חִידּוּשׁ – the disqualification of conspiring witnesses is a Torah decree, without specific apparent logic. This means that in Torah law, if two sets of two witnesses contradict each other, it is a stalemate, with no set believed more than the other. Yet, if one set disqualifies the other’s testimony by stating, “How can you claim to have seen Plony on that day, when we saw you elsewhere in a far away location.” This testimony not only invalidates the witnesses, but they are punished by a requirement to pay what they originally sought to obligate Plony. Thus, if they testified that Plony borrowed $1,000 on such and such a day, and they were proven as lying by dint of the fact that they were in a different location at said time, they will have to pay $1,000 to Plony . The same would apply to false testimony that Plony murdered someone. The false witnesses would be put to death. This is based on the verse in Devarim (19:19):

וַעֲשִׂ֣יתֶם ל֔וֹ כַּאֲשֶׁ֥ר זָמַ֖ם לַעֲשׂ֣וֹת לְאָחִ֑יו וּבִֽעַרְתָּ֥ הָרָ֖ע מִקִּרְבֶּֽךָ׃

You are to do to [each of] them as he conspired to do to his brother, and eliminate the evil from among you;

This is considered as not an obviously logical judgment, as ultimately it still is the word of two witnesses against two witnesses.

Sefer Yereim (178 or 243, depending on your version) asks a “bomb” kashe. The assumed practice is that the witnesses pay the punishment to the victim. Yet, in other situations where the Torah metes out a fine, except when specified, it goes to Bais Din to use as they see fit. For example, Mishna Terumos (6:2) says that if a non-cohen eats Terumah by accident, one pays the principal to the Cohen owner of the Terumah, but the ⅕ fine is paid to any cohen. Here too, since the punishment levied on the false witnesses is a fine, they should pay the fine to Bais Din or another worthy recipient but not specifically Plony .

Sefer Daf al Daf quotes a teaching attributed to Rav Yisrael Salanter, that when the witnesses have to cough up the payment specifically to the person whom they sought to damage, the pain of the punishment is much worse. While this may be true, it does not yet explain why or from where we see the Torah exacted this punishment on these false witnesses. I will add, I believe Rav Yisrael meant as follows. Since the Torah decreed “do to [each of] them as he conspired to do to his brother”, we try to enact the same pain back upon the witnesses. To testify falsely imputing another person is a highly personal and painful experience. Being falsely accused is disorienting, painful and humiliating. Though an overused phrase, gaslighting is an appropriate description for the experience. Therefore, the witnesses must suffer specifically by giving the fine to Plony, and feel the pain of suffering, and restoring what they sought to inflict.

Get Out of Jail Free Card

Our Gemara on Amud Aleph discusses a famous halakhic and Jewish legal principle:

תּוֹךְ כְּדֵי דִיבּוּר – כְּדִיבּוּר דָּמֵי

The legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech. Meaning to say, essentially one can retract something that was said, if done so immediately. This has many applications in both Jewish civil law and ritual law, that certain statements uttered do not count if immediately retracted within the time span of כְּדֵי שְׁאֵילַת שָׁלוֹם תַּלְמִיד לָרַב the time necessary for a student to inquire after the welfare of his rabbi. This is known as Toch Kedei Dibbur.

Though some poskim disagree, the Shach holds by the general Talmudic principle that within the time it takes to utter “Shalom Alecha Rebbi[U-Mori]”, “Peace onto you, my master [and teacher]”, almost all forms of speech and utterance is reversible. (See for example Shulkhan Arukh YD 210:3. Also note there is a disagreement about if the length includes the last word, “U-Mori” “My teacher” see Mishna Berura 124:34).

There is some debate as to why speech is reversible within that time frame. The least lomdishe peshat is that since that is a normal part of the cadence of speech for thoughts to formulate and be expressed, it is also considered as one simultaneous utterance, even though not technically at the same time. Others say the rabbis either enacted, or intuited, a standing assumption that a person does not fully affirm what he is saying until he has a moment to re-think it. Thus the given assumed condition is that whatever he says is conditional, until that momentary pause. Some cleverly explain the reason for using the greeting to the rabbi as the measurement for this length of time is based on an assumption that a person’s rabbi might pass by while he is talking or engaging in commerce, and he would feel compelled to interrupt and greet his rabbi. Thus, no verbal declaration should be valid until that moment passed, as he might have wanted to reverse his statement, but first had to acknowledge his rabbi. (See (תוס’ בבא קמא עג: ד”ה כי, נדרים פז. ד”ה והלכתא Ran Nedarim 87a, and Rashbam Bava Basra 129b and Ritva Nedarim 86b).

The Shach notes, there are four exceptions where an utterance is taken as permanent and affirmed and cannot be reversed, even within Toch Kedei Dibbur, based on Gemara Nedarim (87a):

וְהִילְכְתָא תּוֹךְ כְּדֵי דִבּוּר כְּדִבּוּר דָּמֵי חוּץ מִמְּגַדֵּף וְעוֹבֵד עֲבוֹדָה זָרָה וּמְקַדֵּשׁ וּמְגָרֵשׁ

The Gemara concludes: And the halakha is: The legal status of a pause or retraction within the time required for speaking a short phrase is like that of continuous speech, and so a person can retract what he first said if he issues the retraction within this period of time after he finished speaking. This principle holds true in almost every area of halakha, except for the case of one who blasphemes God; or in the case of an idol worshipper, who verbally accepts an idol as his god; or one who betrothes a woman; or one who divorces his wife. In these four cases, a person cannot undo his action, even if he immediately retracts what he said within the time required for saying a short phrase.

While there are slight differences in explanations by the commentaries as to why these four are different (see Ran ibid and other commentaries on the Daf), more or less the idea is that since these are such serious an weighty matters, the person either is resolute before he says it, or the rabbis did not want to allow the person any lee-way. Regardless, one can see al-derech derush and derech seichel, that the two themes are marriage and idolatry. Both of these have to do with relationships that are covenantal and committed, the Jewish nation’s marriage to God, and the flesh and blood union of Man and Woman. In either, apparently, betrayal is so serious that even a momentary lapse is unforgivable.

There is a basic biological process that is hardwired in our brains to attach more weight, validity and significance to negative statements than to positive statements. This is because the organism stands more to lose by ignoring a potential threat than by ignoring a potential benefit. Think about it, if one suspects they are about to be attacked by a murderer, even if it is just a suspicion, there is potentially a high penalty to be paid by ignoring the threat. If, on the other hand, you suspect that someone is about to give you a million dollars, if you ignore it, there is no damage other than a lost opportunity. Therefore, our minds are automatically hardwired to give more credence to negativity and this is why bad news travels so much faster than good news. This is also why we tend to believe insults more than we believe compliments. The bottom line is that this is the mental equivalent of an optical illusion. It feels true, but it simply is not so. When people are angry, indeed they are less inhibited and can say hurtful things. There must be a degree of truth to what is being said, otherwise it would not be said. However, when people are angry they also want to hurt the other person, which means that not all of it has to be true. In addition, positive and loving statements said at other times may be no less true.

While the halachos of what is retractable are not up to us, in personal matters of relationships, we can forgive and agree on any reasonable and fair conditions. (This idea is reflected in Halacha, see Bava Metzi’a 94a and Shulkhan Arukh EH 38:5). You and your spouse can make up and agree that once in a while, a person can get a “get out of jail free card”, where one can ask for amnesty and reversal of what was said or done. If you have this agreed on in advance, it can help everyone let go, forgive, and emphasize positivity and repair instead of continuing a downward spiral.