Rabad – Disrupter of Tradition? A Response to Haym … 12 Buckwold 24... · 2011-01-25 · 24 The Torah u-Madda Journal (12/2004) Rabad – Disrupter of Tradition? A Response to

24 The Torah u-Madda Journal (12/2004)

Rabad – Disrupter ofTradition? A Response to

Haym Soloveitchik’s “Rabadof Posquieres: A

Programmatic Essay”

As one who had marveled at the attention showered on Rambamtwo decades ago on the 800th anniversary of the completion of hismagnum opus, the Mishneh Torah, I had no illusions that Rabad

would be as fortunate. But, quite honestly, I had cherished a hope that the800th anniversary of Rabad’s passing1—his yahrzeit—would elicit somespecial excitement and interest. Indeed, I myself was involved in an effortto persuade the mayor of Vauverp, France—modern-day Posquieres —tofete their greatest son on this occasion. Alas, the celebratory gesturenever 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 oneof those early rishonim whose work made a profound and ongoingimpact on Halakhah and talmudic exegesis. Indeed, R. Menahem ha-Me’iri called him “the greatest of the commentators,” gedolei ha-mefarshim,

EPHRAIM A. BUCKWOLD

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 anannotated edition of Rabad’s Ba‘alei ha-Nefesh (supplemented with an anthologyof Rabad’s scattered commentaries on mikvaot), presenting the several editionsin which Rabad revised his work.

as well as “the greatest of the critics,” gedolei ha-maggihim. Ramban andRashba often refer to him as “ha-Rav.” Even though most of his writingswere lost,2 the imprint of this towering genius was preserved throughthose that survived,3 and through the citations and responses in the laterrishonim.

Before the spirit of the octo-centennial passes entirely, I would liketo give a different presentation of the history of Halakhah, and Rabad’srole in particular, from the powerful presentation penned by ProfessorHaym Soloveitchik in his “Rabad of Posquieres: A Programmatic Essay.”4

This provocative essay does represent a significant contribution to mod-ern scholarship in that it documents the true breadth of Rabad’s achieve-ment, as well as the nature of his subsequent influence. It demonstratesthat Rabad’s influence on the later rishonim derived mainly from hiscommentaries and works of halakhah—not the famed hassagot on theMishneh Torah.

However, there is a second major theme in the “ProgrammaticEssay.” Rabad is presented there as a revolutionary rishon who “disrupt-ed” and “basically dispensed with” the Geonim who preceded him.“The works of Rabad,” we are told, “will reveal to us the declaration ofEuropean independence from Geonic thought.” “Not that they5 over-threw the past—Heaven forbid; they simply rendered much of it irrele-vant. And it is not for the meek to discard 500 years of tutelage” (pp. 11-14, 37).6

A third major theme of the “Programmatic Essay” (pp. 30-36) isRabad’s contribution to the development and evolution of Halakhah.We are told “how he transformed his heritage.” “Law . . . has an antipa-thy to radical change; thus the revolutionary jurist must disguise hisinnovations—at times even from himself” (p. 31).

We will attempt to show that these latter two contentions do notstand up to close scrutiny.

• • •

Let us begin by examining the sole evidence marshaled for Rabad’s sup-posed indifference to the teachings and authority of his predecessors: theseemingly diminished Geonic presence in his work. As Soloveitchik putsit, “take away the Geonim from Rabad and the loss is barely noticeable.”7

He observes a basic distinction between the works of Rabad andthose who preceded him. Rabad is found “to confront talmudic textsunaided . . . to penetrate into those areas where no commentarial tradi-

Ephraim A. Buckwold 25

tion was available,” whereas his predecessors’ writings “are a storehouseof Geonic literature.”

Apparently, Soloveitchik is attempting to present evidence that theabsence of Geonica in Rabad’s writings proves that he ignored Geonica.8

His essay, however, does not cite specific examples of omissions byRabad of a known Geonic teaching relevant to Rabad’s discussion. Theonly 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 itssignificance will depend on the following premises being true:

Premise 1—Rabad possessed Geonic knowledge—butignored it—in those areas where he does not mention Geonicteachings.

Premise 2—When Rabad does not cite any source, he is notrelying on a Geonic source. Let us note parenthetically that manyrishonim—perhaps most—regularly state the opinions of theirpredecessors without citing them as such, but rather as if theopinion stated is their own.

If only one of these premises turns out to be unfounded, the argu-ment founders.

Let us start with the first premise. To properly assess whether or notGeonic literature was ignored by Rabad, we have to know just what litera-ture they produced. This information is supplied by R. Menah.em ha-Me’iri, in his monumental introduction to Avot.9 Me’iri also places Rabadin historical context, and briefly characterizes his unique achievement.

To better appreciate Me’iri’s presentation, let us first take a glimpseat the literature the Geonim left behind. What does this literature haveto offer on any given talmudic text? As can be seen from the greatanthology of Geonica, Oz. ar ha-Geonim, Geonic texts come basically intwo forms: commentary and responsa. The Geonic commentaries arefew and generally very technical, addressing textual issues (nush. a’ot) inthe Talmud, and providing technical and literal explanations. Theresponsa, on the other hand, contain mainly halakhic decisions. Anattempt to study a talmudic text with the aid of Oz. ar ha-Geonim alonewill quickly reveal that this combined literary corpus lacks both elucida-tions of the talmudic discourse as well as interpretations and definitionsof talmudic concepts.10

Me’iri explains that the famed yeshivot of the Geonim had suppliedthis knowledge. The explanations of talmudic discourse in these yeshivot

The Torah u-Madda Journal26

were so clear, that there was no need to commit them to writing.11 Thisdoes not mean that no problems existed that required discussion.Indeed, a contemporary of the Geonim reports how all the great schol-ars would gather together periodically at the great yeshivot for discus-sion and debate.12 But none of this discourse was written down.13

The closing of the Geonic yeshivot and prevailing harsh conditionsled to a dearth of knowledge and understanding in the succeeding peri-od. 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 playedby post-Geonic scholars—what we call “rishonim”—in filling this gap:

The knowledge of the scholars (of the post-Geonic era) dwindled and theprominence of the (codificatory) writings and the commentaries expand-ed. For since the passing of Rav Hai, troubles have increased, and peoplehave misled themselves into placing the world [materialism] in theirhearts, owing to their great need for it as a consequence of the manyyokes, taxes, forced labor, decrees and the burden of the nations placedupon 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 bestof his ability, and would address himself to (the task of) authoring numer-ous written compositions, some in the form of halakhic decisions and somein the form of commentaries.15

The scholars of the new “post-Geonic” era, continues Me’iri, wroteeither works of halakhic decisions or commentaries. Alfasi wrote clear-cut halakhic decisions16 anchored in the talmudic discourse, while IbnGiat wrote a general anthology of Geonic rulings of Halakhah, HalakhotKez. arot.17 R. Yehudah of Barcelona wrote an even more comprehensivecollection of halakhot, H. ibbur Kolel18 which included a major collectionof Geonica. (Sefer ha-Eshkol of R. Avraham Av Beit Din of Narbonne,Rabad’s father-in-law, was basically an abridgement of R. Yehudah’sSefer ha-Ittim.19) Preserving these remnants of the august Geonic erawas one of the first steps necessary for the new era.


b/ngr hshg/ vjfnhu tv/wjcv ngk/ vjhctwhu tvihwtahu. nibh anzny irhw/

wc veh dskt vmwt/, tdbc kc vcwht/ k// e/ vgtku ckcu, nwtc mwfu ekht kwtc

vgtkhu tvnxhu tv/ajtw/ tvdzhwt/ tngnx vetnt/ gkhbt. tgcw zny vdetbt/ tvdhg

zny vwcbt/ . . . tb/ngrt vjfnhu. tcjnk/ v' gk gnt, cqtu ejs nghw tntme gmnt

aku, wtev gmnt njthc kih znbt kvtghk ketn/t feaw htfk, tvhv n/qy gmnt

kvwct/ cjhctwt cnf/ct, nvu swl ixq , tnvu swl ihwta.

As for talmudic commentary, the first great step in filling the vacu-um was the unparalleled commentary of Rashi, a brilliantly lucid run-ning 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 confinehimself to inferences that may be relied upon in Halakhah.20

Rabad’s commentary-novellae filled the remainder of the gap, dis-cussing and defining the profound concepts of the Talmud in the contextof the talmudic discussion. Me’iri notes that with this great contribution,Rabad was a “fountainhead” (atr) for the scholars of the following gen-erations, as his form of elucidation combines commentary with Halakhicdecision.21 This is probably what Me’iri meant when he called Rabad “thegreatest of the commentators” (gedolei ha-mefarshim).

Rabad saw no need to duplicate the achievements of the early rish-onim. They had already written works aimed at preserving Geonicresponsa. His own efforts on behalf of Jewish learning and law would beneeded elsewhere. It is no wonder, then, that his commentary is not astorehouse of Geonica; his writings were comprehensive and filled inwhere written Geonica was missing!

In his works of Halakhah as well, Rabad does not direct or limit hisdiscussion to those topics where Geonica was preserved. He deals com-prehensively with the issues he sees as essential. Rabad was clearly apioneer in his period, but what evidence exists for the claim that he wasa rebel?

Soloveitchik’s observation, “Remove the Geonim from the Eshkoland the work collapses,” is undeniably true to a certain extent. We mustbear in mind, however, that R. Avraham Av-Beit-Din’s Sefer ha-Eshkol isof a completely different genre than Rabad. As S. Albeck notes, themajor objective of the Sefer ha-Eshkol was to present an abridged ver-sion of the great anthology of R. Yehudah of Barcelona, Sefer ha-Ittim.22

For this reason, the scope of the Eshkol is narrow, containing halakhicrulings only on certain specific issues, and sparse talmudic commentary.

Rabad, in contrast, had a different agenda. He sought to be compre-hensive in both his talmudic commentary and his halakhic rulings.Naturally, then, the percentage of Geonica in his works will be apprecia-bly less. This does not in any way suggest that he “discard[ed] 500 yearsof tutelage.”

Rabad’s different agenda explains, to a large degree, the absence ofGeonica in his work. But there is also no doubt that Rabad simply lacked“Geonic tutelage” in many areas. Soloveitchik himself speaks of Rabad’s


“almost unparalleled capacity to confront talmudic texts unaided, towrest their meaning single-handedly that allowed Rabad to penetrate intothose areas where no commentarial tradition was available—Halakhicmidrashim, Qinim, and the Tosefta. . . .” (“Programmatic Essay”, pp. 13-14). He goes on to quote Rabad’s famous proclamation at the beginningof Eduyot, “I have received no guidance in these [matters] from either rabbior teacher (vrun hpn tku cr hpn tk vkt kfc hng hf).” [Emphases mine.]

Indeed, as we have seen, only a very small percentage of Geonicteaching had been committed to writing and the oral transmission ofGeonic tutelage was seriously impaired by the harsh conditions of thetime.

We even find Geonic teachings that were known to other rishonimbut were unknown to Rabad and other scholars of Provence.23 Rabadhimself stated that Geonic responsa available in Provence were not textu-ally accurate or reliable.24 Furthermore, the commentary of RabbeinuH. ananel, 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. Barzelaiof Barcelona, rich anthologies of Geonic literature, were scarce or unavail-able.26 In general, books before the advent of printing did not circulateeasily, and there is no evidence for the existence of great libraries inProvence.

The key question, then, is whether Rabad “dispensed with” theGeonim in areas where their guidance was available to him. Did heignore 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 . . . takeaway 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 tractateAvodah Zarah, the only text for which we now have the commentary ofboth the Eshkol 27 and Rabad on an identical set of issues.28 (SinceRabad’s work is a commentary, we must restrict ourselves to the com-mentarial material in the Eshkol.) Significantly, in the Eshkol I foundonly six explicit citations of Geonic commentaries29 plus one anonymouscitation in his treatment of these issues (within 43 pages of the Eshkol,which amounts to about 10% of the published book)! Most of the com-mentary in the Eshkol is not cited as Geonic, but rather in the name ofR. Yehudah of Barcelona, or unattributed altogether (seemingly com-mentaries of the Eshkol’s author himself, R. Avraham Av Beit Din ofNarbonne).30 The Geonica cited is mainly responsa, quoted verbatim,


which have little or no commentarial value. The commentary of R.H. ananel on Avodah Zarah, as well as other Geonic sources, were appar-ently not available.31 In Rabad’s commentary, by contrast, I found nofewer than eight unequivocal citations of Geonic commentaries, besidesat least 19 anonymous references (“oharpn ah”), possibly from theGeonic period or shortly thereafter. Most of the relevant content of theEshkol’s Geonic references is reproduced by Rabad, besides numerousadditional references of precedent opinions that do not appear in theEshkol.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 owncommentary.

A source specifically cited by Soloveitchik to support his claimregarding Rabad’s rejection of the Geonim is Rabad’s Ba‘alei ha-Nefesh.Soloveitchik asserts: “In the Baalei ha-Nefesh . . . the Geonim (includinghere R. H. ananel 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 fewexclusive sources whom Rabad names), of which there are exactly 20.33

However, when we include the anonymous references as well, we findthree times as many!34 There are 17 citations in Sha‘ar ha-Perishah, 18 inSha‘ar ha-Vesatot, none in Sha‘ar ha-Ketamim, three in the very smallSha‘ar ha-Sefirah, 11 in the small Sha‘ar ha-Tevilah, six in the longSha‘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 dis-cussion (see n. 8).35

If we analyze the statistics, we will notice that Sha‘ar ha-Perishah andSha‘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 ha-Tevilah, 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. InSha‘ar ha-Mayim and Sha‘ar ha-Kedushah—by contrast—the precedentsources are few, and in Sha‘ar ha-Ketamim totally absent! Why?

The answer is simple. On the topics of Sha‘ar ha-Mayim (mikvaot)


and Sha‘ar ha-Kedushah (holiness in marital relations, and in general)almost nothing was previously written; there was almost no Geonic tra-dition. On Ketamim (blood stains), the Geonim wrote nothing, asRabad’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 notfind in them the laws of ketamim (blood stains) if they apply today.

In other words: Rabad made good use of Geonic and precedentsources when he had them. However, when he lacked knowledge ofGeonic teachings on the topic of his discussion, we naturally find “theabsence 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 betaken at face value. The fact is that of all Rabad’s talmudic commen-taries, only his work on four tractates survived: Kinnim, Eduyot, AvodahZarah and Bava Kamma, Of course, almost no Geonic references arefound in his commentaries on Kinnim and Eduyot, since they were“areas where no commentarial tradition was available” (“ProgrammaticEssay,” p. 14). His commentary on Avodah Zarah, on the other hand,includes a substantial number of Geonic references (compared to theGeonic commentary brought in the Eshkol), as pointed out above. In hiscommentary on Bava Kamma, many anonymous citations of predeces-sors are to be found,37 and Alfasi is discussed regularly.38 (The greatanthologies of R. Yehudah of Barcelona and Ibn Giat are not known tohave covered the topics of this tractate, and apparently the commentaryof R. H. ananel on Bava Kamma was not available, even though Rabadcites Rabbeinu H. ananel three times.39)

A superficial check of Rabad’s Katuv Sham,40 his polemical critique ofR. Zerah.yah ha-Levi’s Sefer ha-Ma’or, yields interesting results. In thetractate Berakhot, the Geonic sources are central. Counting roughly, thereare 16 Geonic references in the 44 passages of Katuv Sham on Berakhot. InEruvin, however, only one Geonic reference is made41 in all of the 84 pas-sages. In Pesah. im, there is a clear difference between the first nine chaptersand the tenth chapter, Arvei Pesah. im (which deals with issues similar tothose in Berakhot). In the first part, I found only six Geonic references(most from Ibn Giat) in 58 passages, whereas the last chapter contains nofewer than seven Geonic references in only 18 passages.

These sharp contrasts point to the probable conclusion: Rabad



related to Geonic sources when they were available to him. On the issuesin Berakhot and the similar issues in the last chapter of Pesah. im, Rabadpossessed considerable knowledge of Geonica—mostly the rulings ofRabbeinu Hai Gaon. On the issues in Eruvin, however, he possessed lit-tle Geonic teaching. On the first part of the tractate Pesah. im, he pos-sessed limited Geonic teaching, mainly from Ibn Giat. This dovetailsperfectly with Me’iri’s description of the very partial and incompletewritten heritage bequeathed by the Geonim:

Of those [Geonic works] we have seen, there are commentaries on asmall number of tractates, and sometimes [only] on a small number ofchapters, and sometimes [only] on a small number of scattered teachingsand laws. Of those we have seen, there are a small number of composi-tions on specific subjects in the Talmud, but nothing comprehensive. . . .

Comparing the first edition of Rabad’s Laws of Lulav to his ownsubsequent revisions is revealing. In the first edition, he cites the opin-ions 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 mentionof these Geonic opinions?

Rabad himself provides the answer, explicitly noting that he discov-ered R. Platoi Gaon’s ruling years later, in the writings of R. Yiz. h. ak IbnGiat.43 R. Hai Gaon’s ruling as well is to be found there. When Rabadhad first written his Laws of Lulav, he apparently lacked this great sourceof Geonica.44 Note that Rabad wrote his first edition of this work whilein exile.45 Rabad related to Geonic sources when he had them.

Indeed, the brief halakhic section of Rabad’s Derashah le-Rosh ha-Shanah includes the references to Ibn Giat that are relevant to his dis-cussions. In two cases, Rabad defends the Geonic opinions against thearguments of Ibn Giat. In addition, in Rabad’s Laws of Harsha’ah (Lawsof Power of Attorney, Temim De’im sec. 61-65), his frame of reference isclearly 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 refer-ence, but—of course—only when he possessed them.46

• • •Let us turn now to Premise 2—that the absence of explicit citation

tnvu awehbt nvu ihwtahy ccqqmm// nnxxffhhtt//et kignhu ccqqmm// iiwwqqhhuuet kignhu

cqm/ antgt/ tvkft/ nitzwt/, nvu awehbt qm/ jhctwhu cgbhbhu iwrhu ck/h

ftkkhu . . . .

of a predecessor indicates that Rabad is offering an opinion with noGeonic source. The fact is that even when Rabad quotes no source forhis ruling, he is often relying on a Geonic source. As Isadore Twerskypoints out, “We sometimes find theories in Rabad’s writings which con-temporaries or successors attribute to Geonim.”47 One example will bediscussed shortly.48

This practice, common in the rishonim49 (see also fn. 70), did notoriginate in Rabad’s writings. Rabbeinu H. ananel had earlier done justthis when he reproduced Geonic teachings as if they were his own.50

Sefer ha-Ittim (R. Yehudah of Barcelona) followed this approach as wellby reproducing Rabbeinu H. ananel’s commentaries without citing themas a precedent source.

There is simply no way of knowing how many Geonic sourcesunderlie Rabad’s rulings.

• • •

By this point it should be clear that there is no factual basis for the claimthat Rabad “dispensed with” or “discarded” his Geonic predecessors andtheir teachings. Let us proceed now to establish positive evidence of hisextremely high regard for them. Indeed, the question of Geonic authori-ty following the close of the Geonic period was an openly discussedissue, and Rabad articulated his opinion in no uncertain terms.

Zerah.yah ha-Levi51 presents a disagreement between a “great scholarof the prior generation” and himself as to the status of a post-Geonicjurist’s error due to ignorance of a Geonic ruling. The scholar comparessuch an egregious error to nothing less than a lack of knowledge ofMishnah (vban rcsc vguy). R. Zerah.yah, in contrast, considers thismerely 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 authori-ty to disagree with a Gaon unless the jurist demonstrates a grave difficulty(“,nxrupn vhaue”) with the Geonic opinion. 53

The truth is with the scholar who stated that if (a post-Geonic jurist) errsin the ruling of the Geonim, of blessed memory—that he didn’t hear of


enw ecwvu . . . ten/ enw vjfu aeu rgv cixqh vdetbhu z"k ake ang e/

scwhvu tehkt ang vhv jtzw ct cen/ tcwtwzzvvtt rrttggvv ccssccww nnaabbvv. tqwtc ebh ktnw

aeihkt vhv jtkq gk ixq vdetbhu z"k nrgu abwev kt kih sg/t ake fscwh vdety

tke fihwtat, du zv rtgv cscw nabv vte, aaeehhyy kkbbtt gg//vv kkjjkkttqq ggkk ssccwwhh vvddeettbbhhuu

zz""kk nnwweehh// ssgg//bbtt kkiiwwaa vvggbbhhhhyy ccsswwll eejjww// ffsshh aahhaa//bbvv vvsshhyy nnssccwwhh vvddeettyy,, eeuu kkee

ccqqttaahhvv nniittwwxxnn//.. ttzzvvtt ssccww aakkee bbnnmmee.54

their words and if he would have heard he would have reversed his rul-ing—it is true and clear that this is considered ‘an error in mishnah.’ AndI would almost say that even if he would disagree with a ruling of theGeonim, of blessed memory, due to his own understanding differentlyfrom the Gaon and his commentary—this also is considered an error inmishnah. For in our time we may not disagree with the words of theGeonim, of blessed memory, based on our own perspective to explain theissue in another way so that the ruling will be different than that of theGaon, unless there is a grave (literally “a famed”) difficulty (in under-standing the Geonic opinion). And this is not commonly found.

It is most surprising that this explicit and emphatic declaration ofRabad on the authority of Geonim is not reckoned with in the “Program-matic Essay,” even though it is discussed by modern scholars.55 Only in aparenthetical note within a footnote (10), does Soloveitchik touch on thiscrucial declaration without revealing its content at all: “What Katuv Shamactually says is that discarding Geonic doctrine as convincingly as he,Rabad, did was simply a tmnb tka rcs. And who tried, did so at greatperil.” I am at a loss to understand what Soloveitchik means.

One thing does seem clear: Soloveitchik acknowledges that whenRabad disagrees with the Geonim, his argumentation is indeed convinc-ing (,nxrupn vhaue). We, too, have found that only with convincing,powerful, and seemingly unanswerable questions does Rabad disagreewith the Geonim. More often, we find Rabad struggling to answer thedifficulties he finds in the Geonim.

Indeed, by inspecting the sources, we can see how Rabad consistent-ly sought, throughout his long life, to understand and justify his greatpredecessors,56 especially the Geonim.57

• • •

In the following fascinating case, we survey the development of Rabad’sthought, his changing opinions through his lifetime, via six discrete ref-erences. We witness here Rabad’s struggle to understand Geonica andfind further evidence against the two key premises of the “ProgrammaticEssay” discussed above.

The Talmud specifies certain regulations concerning the validity ofconditions in a legal agreement (including commercial contracts, mar-riage, divorce, etc.)—ohtb,v hypan. The source for these regulations isthe Biblical account of “Benei Gad and Benei Reuven,” who received terri-tory in Trans-Jordan by agreeing to the condition that they would jointheir brethren in battle (Num. 32). We find two Geonic opinions as to


when these regulations for a special form of a condition are not necessary:

• According to Rabbeinu Hai Gaon (followed by Rabbeinu H. ananel,Alfasi, and Rambam), a specification that the agreement will takeplace immediately renders any form of condition valid.

• According to a second Geonic opinion, in monetary transactionsany type of condition is valid. Only in religious agreements such asmarriage and divorce, is there a need for the special regulations.

1. In Rabad’s hassagot on Hilkhot Alfasi58—written in his youth (asRabad calls this period)—the great rishon contests both opinions with apowerful, seemingly unanswerable, question: Both views seem to becontradicted by the biblical source of these regulations. The conditionof Benei Gad and Reuven was both monetary (involving land acquisi-tion) and immediate.59 Rabad also contends that the first opinion lacks agood rationale.

Incidentally, Rabad attributes the first opinion only to Alfasi. Heeven suggests a different inference in Alfasi, abandoning the simplemeaning of Alfasi’s words. Ramban, in his Sefer ha-Zekhut, discerns thatRabad did not know of R. Hai Gaon’s responsum. This is evidenceagainst Premise 1.

2-3. In his Katuv Sham, written some thirty to forty years later,60 nochange is found in Rabad’s opinion. In tractate Gittin (Katuv Sham, p.133) he continues to reject the opinion of Alfasi—even after R.Zerah.yah’s noting that he found this view in a responsum of R. HaiGaon. Rabad’s objections were still too serious.

In tractate Beiz. ah61 (Katuv Sham, pp. 90-91) we find Rabad also rul-ing against the second Geonic opinion. However, Rabad here delves intothe core of the issue: How does a condition operate; what are itshalakhic mechanics? What is the rationale behind special regulations inthis area?

/ / / uvuarhp tk ohbuatrva ost hbcn okgbv suxv ,t vkdt v,g—“Now Ishall reveal the secret concealed from men, since the early Rabbis didnot explain it.” Rabad is, indeed, the first to reveal these halakhic depths.These insights will eventually develop into an ingenious explanation ofRabbeinu Hai Gaon’s ruling.

4. In his commentary on Kiddushin,62 Rabad, citing talmudic evi-dence, unceremoniously endorses the second Geonic opinion—in con-tradiction to his previous rulings! He does not indicate that this opinionoriginated in the Geonim. This is strong evidence against Premise 2.

5. In his hassagot on Mishneh Torah,63 written in the twilight of his


life, Rabad now comes to the defense of the second Geonic opinion—against Rambam64 who raises the same objection that Rabad himselfhad articulated years earlier. Rabad now explains the rationale for thisopinion, and why it is not contradicted by the biblical source.

6. In a responsum, Rabad summarizes his difficulties in under-standing both Geonic opinions, and his change of mind on both opin-ions: “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 atlength.66 He concludes with a biblical-sounding flourish: “Blessed isAbraham to the Exalted God, who justifies the words of the Geonimand Sages, pillars of the universe!”

Almost all succeeding rishonim who cite the ruling of Rabbeinu HaiGaon (the first opinion) refer to, or draw from, Rabad’s understanding.67

We thus see that after a life-long struggle, Rabad successfully restoredthe lost links between the talmudic sources and the Geonic rulings. Heplumbed the depths of talmudic concepts and discovered the rationale ofthe Geonim. While he was not always successful in understanding theGeonim, his regard for their greatness and authority never flagged.

• • •

Which halakhic authority appears to take the most central place inRabad’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 ofAlfasi, not even a student of his disciples, he accepted Alfasi as his basicauthority.68 As the disciple of Rabbeinu H. ananel and Rabbeinu Nissim,69

Alfasi was the natural continuation of the school of the Geonim. Itwould seem that Rabad’s esteem for his self-chosen master shows hisregard for the Geonic school.

Startlingly, though, Soloveitchik sees Alfasi’s influence on Rabad injust the opposite light! Alfasi is presented to us as a kind of spiritualfather of Rabad, a ground-breaking discarder of the Geonim and dis-lodger of the past: “The revolution that he wrought, however, would nothave been effective had it been simply negative. R. Issac of Fez had dis-carded the Geonim before him. He had attempted to decide talmudiccontroversies independently of their writings. . . . Unable to pose a posi-tive alternative, Alfasi’s dislodgement of the past could not succeed” (p.12). [Emphases mine.]


It is difficult to see how Soloveitchik arrives at this assessment.Perhaps he used his previous test: Delete the quotations of the Geonimand “the loss is barely noticeable.” But anyone familiar with HilkhotAlfasi knows that the above test would be meaningless. The work ishighly condensed, generally quoting only the talmudic text (and onlythe text that, in Alfasi’s opinion, is accepted as law).

Where did Alfasi receive the rules about deciding which opinion inthe Talmud to be accepted as Halakhah, if not from the Geonim? Whoare the sources he commonly quotes, if not the Geonim? We find thateven when he disagrees with a Geonic opinion which he quotes, he mayactually be siding with another Geonic opinion, even though he does notcite it as such.70 In Rabad’s Katuv Sham, many Geonic sources not men-tioned by Alfasi are marshaled to support Alfasi’s opinion. Even if Alfasimay, at times, disagree with a certain Geonic ruling based on talmudicargumentation 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, asthe culmination of the Geonim. This is clearly articulated by Rabad’sfather-in-law, R. Avraham of Narbonne, the author of Sefer ha-Eshkol:72

We rely on all the rulings of the Gaon R. Isaac, for he knew all the teach-ings 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 ofthe supporters of the Geonim: “Alfasi’s dislodgement of the past couldnot succeed. Weighty and influential as his work was, his contemporariesand successors—Ibn Giat . . . and R. Abraham of Narbonne—swiftlyrestored the Geonim to their pre-eminent place” (“Programmatic Essay,”p. 12). Clearly, R. Avraham of Narbonne sees no contradiction in recog-nizing both the authority of the Geonim and of Alfasi.

Indeed, it seems from this unequivocal endorsement, and fromother sources, that R. Isaac of Fez himself was considered a continuationof the Geonic era,73 or more precisely, a bridge between the Geonim andthe rishonim. Hilkhot Alfasi was composed for the dawning post-Geonicera, which no longer had the central yeshivot of Babylonia from whichto solicit halakhic guidance. With its clear-cut decisions, Hilkhot Alfasi


. . . vdety w' hmjq z"k, tgkht ebt xtnfhu cfk scwht.ffhh vvttee vvhhvv hhttssgg ffkk ssccwwhh

vvddeettbbhhuu aakkiibbhhtt,, ttvvttee vvhhvv ccttwwww nnvv aavvttee gghhqqww, fnt aebt etnwhu vhkf/e fwc

eah sc/wev vte.

was a necessity for the new era. It was based on the Geonic traditionthat R. Isaac of Fez had received and mastered. Of course, he could notmake clear decisions without basing them on talmudic evidence; andtalmudic evidence may, at times, be a reason for disagreeing with a spe-cific Geonic ruling.

Rabad shared his father-in-law’s view—that Alfasi had gained com-plete mastery of Geonica, both in scope and in exact sources—and pos-sessed the insight to issue authoritative rulings.74 He viewed the HilkhotAlfasi as the final say of the Geonic tradition, and hence had special rev-erence for it.

• • •

At this juncture, we would like to broaden the discussion of what consti-tutes “dispensing with” predecessors. Soloveitchik does not claim thatdisagreeing with predecessors means discarding them. On the contrary,he writes: “Far too much emphasis has been placed upon agreement ordisagreement with the Geonim. Disagreement is a pallid form of inde-pendence, for, in one sense, one only demonstrates one’s subservience toa thinker when one spends time seeking to refute him” (“ProgrammaticEssay,” pp. 11, 12).

We agree. If anyone believes that disagreement constitutes dispens-ing with the holder of the contested view, he has a basic misunderstand-ing of the system of talmudic study. Would anyone claim that Abbayediscards Rav Yosef because he disagrees with him? Does Rav Ashi dis-card Rava or other Amoraim of previous generations, with whom heoften disagrees?

On the contrary, their esteem for the earlier opinion was the veryreason they studied it so earnestly. However, the Will of the Giver of theTorah is that Torah study must be a quest for truth. Thus, a genuine stu-dent of Torah cannot delude himself about understanding the view of apredecessor. If he cannot make sense of it after exercising all of the intel-lectual powers at his disposal, he may have to disagree with a scholarwhom he realizes was far greater than himself.

Rabad himself articulates this outlook explicitly in his evocativeintroduction to his hassagot on the Hilkhot Alfasi.75 He commences bylikening his critique of Alfasi to eyes looking at the sun (his weakness ofunderstanding compared to Alfasi’s greatness). Logically, he shouldclose 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


Himself, and its ultimate Truth cannot be conceived by flesh and blood.One who studies the Torah (and sincerely seeks to understand it), how-ever, will be rewarded by God even if he is actually mistaken. Rabad con-cludes with the verse: “Because of His righteousness, God wishes to makethe Torah great and glorious” (“rhsthu vru, khsdh uesm ignk .pj

wv”).76

As Professor Twersky notes, “There is no inconsistency or insinceri-ty in the fact that Rabad records his deep-seated humility in the face ofthis talmudic giant and then produces some serious and substantivecriticisms.”77

This sort of independence, however, is a far cry from a “declarationof independence from Geonic thought.” These two discrete forms ofindependence may look somewhat similar, but the gulf between them isvast. An analogy can be made to the relationship of a child with his par-ents. Independence is essential to a child’s development. Without it, hecannot cope with life’s demands where he lacks specific guidance fromhis parents. The same applies to the study of Torah. A student or scholarwho is not trained to utilize his own mind and understanding indepen-dently will be unable to deal with areas of study where he had no guid-ance; 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 isnot subservient to his parents, and basically dispenses with their guid-ance. This form of independence indeed may be considered as a breakin continuity.

True, Rabad was indeed a “titan” who succeeded in “confront[ing]talmudic texts unaided . . . [and in] penetrat[ing] into those areas whereno commentarial tradition was available,” as Soloveitchik points out.However, as shown above, no real evidence was adduced to demonstratethat Rabad represented a “declaration of European independence fromGeonic thought” (“Programmatic Essay,” p. 37). On the contrary, wehave shown that he harbored deep respect for the Geonim and Alfasi;and their influence on his rulings is great. Even in disagreeing withthem, Rabad made no ideological revision. R. Avraham Av-Beit-Din,the author of the Eshkol, as well as R. Shmuel ha-Nagid and RabbeinuH. ananel, also can be found disagreeing with Geonic opinion.78 Indeed,on one of the issues where Rabad differs with a Geonic ruling, we findR. Hai Gaon preceding him in rejecting this precedent Geonic view.79

This disagreement on specific issues does not show any lack of regardfor the teachings and authority of the Geonim. As the fifteenth centuryscholar, R. Eliyahu Mizrah. i, succinctly put it:80


For you know that rulings of the Geonim were rejected, because it seemsthat those rulings were not (fully) in accordance with the roots of theTalmud—even though the stature of the Geonim is very great, and fromtheir mouths and from the mouths of their teachings we live.

In this context, it is important to note that even the “pallid form” ofindependence in Halakhah has its limits. The post-Mishnaic scholars(the Amoraim) concurred that they cannot disagree with their prede-cessors, the Tanaim. The post-talmudic Geonim all agreed on theabsolute authority of the Amoraim. (R. Yosef Karo explains that theTalmud 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 theGeonic opinion.83 While Rabad did not always grant the Geonim thelast word, he did limit the grounds for disagreeing with them. There isno reason why he, and the rishonim who followed, would have limitedthemselves if they had not recognized the authority of the Geonim.

• • •

The last major theme of the “Programmatic Essay” is Rabad’s supposedcontribution to the development / evolution of Halakhah. According toProfessor Soloveitchik, Rabad covertly “transformed his heritage,” fol-lowing the pattern of “the revolutionary jurist [who] must disguise hisinnovations.”84

In arguing his case, Professor Soloveitchik offers us “three briefexamples of how Rabad’s writings are anchored in Provençal life andthought.” These examples are intended to reveal non-Halakhic consid-erations that actually lay behind what appears to be strictly Halakhicargumentation and reasoning.

Examination of these sources, however, reveals that they offer nobasis for such claims.

Example 1—“Section 50 of the Temim De‘im. . . . The inquiry putto R. Abraham as to whether a debtor can be compelled to redeem agage.”


fh fcw hsg/ scwhu bsjt nscwh vdetbhu, nibh abwev aehy vscwhu vvu nhtxshu

gk ih awah v/knts, ep gk ih answd/ vdetbhu dstkv nes tnihvu tnih /tw/u

ebt jhhu.

Prof. Soloveitchik offers an interesting approach to the source of thequestion:

In Germanic law a pawn is a quit-payment, with no further obligationincumbent upon the debtor. In gaging, the debtor sold the pawn to thecreditor in exchange for the money received, reserving to himself onlythe right of repurchase. . . . It is difficult, however, to run separate busi-nesses—one for Jews and one for Gentiles. . . . The daily practice…inevitably led to someone questioning whether the other set was so radi-cally different. . . . True Jewish law, at first glance, is incurably obligation-al. Pawns are never Sachhaftung, but simply accessorial to the ongoingpersonal obligation. . . . Does he have the right to reject the pawn andinsist on another form of payment, i. e. cash? Put concisely in Halakhicterms, 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 fromthe Germanic one?

Soloveitchik further explains:

The initial query (regarding redemption of gages) should furthermore beplaced alongside the suit between Aimery de Clermont and the Abbot ofAniane 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 thenotions of Sachhaftung. . . . [Emphases mine.]

How did Rabad respond? According to Soloveitchik:

Rabad threw up his hands at the problem and decided to let the Gentilessolve de facto the riddle of their own making. He replied:

[“With regard to a land security, where there is no established Jewishpractice, we follow Gentile practice…”]

Soloveitchik comments:

The reply is revealing, especially his concluding remark:

[“And so I say in any issue where the rule is not stipulated by us (in tal-mudic law) and we have no known common practice, we follow their(the Gentile) common practice, and this is close to the law of the landsince they rule according to their practices.”] all of which would be incon-ceivable north of the Loire, and accurately reflects the relative merits of theProvençal and Champagne systems of justice at the time” (“ProgrammaticEssay,” pp.32-33) [Translations and emphases mine].


tcnaftbe ak qwqg, cnqtu aehy nbvd khawek, vtkfhy ejw nbvd ak dthhu, tvu

bvdt tft'

tfy ebh etnw cfk scw aehy shbt nitwa emkbt tehy kbt ct nbvd hstg, avtkfhu ct

ejw vnbvdt/ akvu, tqwtc scw zv kshbe snkft/e, tvu sbhu gk ih vnbvdt/.

ReservationsBefore zeroing in on this source, it behooves us to comment on Solo-veitchik’s suggestion that Rabad was drawn to apply the talmudic princi-ple of “the law of the land is the law” (dina de-malkhuta dina) because ofthe superior system of justice in southern France. Had he lived in north-ern France—where we are to assume the Gentile justice system was lesssatisfactory—he would have ruled otherwise. In other words, Rabadwidened the authority of Gentile law because he was favorably impressedby 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 statingthat the law of the land extends to dealings between individuals, andincludes common practice.85 2) This very ruling of Rabad greatly limitsthe authority of local civil law, in that it cannot overrule explicit talmu-dic law or even Jewish custom! Based on Rabad’s explicit opinion here,later halakhic authorities ruled to limit the authority of the law of theland, contrary to the broader ruling of a Tosafist opinion of R. Yiz. h. ak b.Perez. , specifically referring to the Gentile practice of pawns. R. Yiz. h. akb. Perez. definitely did not live in Provence or Champagne.86

Now, let us examine the sources. Here is the responsum from whichSoloveitchik quotes—in its entirety: 87

Query: Reuven “pawned” his house to Shimon inexplicitly without speci-fying a (repayment) date. Can Shimon force Reuven to redeem it at theend of the first year and not just continue holding on to it as a mashkon-ah (a land “pawn”)?


aekv - wetcy anafy kangty ch/t x/u tke qcg kt zny, eu hftk angty kftp e/

wetcy kist/t tknafbt gts fk vkte/t gts fk vkte/t cnke/ ab/t. tfy eu vktvt

gk vnafty x/u, ]eu[ h/cgbt ejw k' htu thftp et/t kiwgt et ke.

/atcv – fh nqtnt/ ha ccwmktbv tcxiws ]a[ftihy gk vnaftbe x/u kist/v ejw

abv et ejw ]v[zny ahixqt zv gu zv, eck cbwctbv ehy ftihy ke cch/ tke casv

tke cfwu.

tcnafty ejw ke ang/h nbvd, tkih vnabv ]vvkfv[ naktahu htu tehkl ntfwt

cch"s, ake bjkqt jfnhu gk scwh wac"d iwq vnqck )cce nmhge sp qhd.( eke

cgbhy amwhl kvjzhw kt nafbt, eck cejw ke bjkqt.

tcnaftbv ak qwqg cnqtu aehy nbvd khawek, vtkfhu ejw nbvd vdthhu, tvu bvdt

aeu ke v/bv cag/ vktev ehbt hftk kftit kiwtg ]kist/t[. tfy ebh etnw cfk scw

aehy shbt nitwa emkbt tehy kbt ct nbvd hstg, avtkfhu ct ejw nbvdt/ akvu,

]a[qwtc scw zv kshbe snkft/e shbe, tvu sbhy gk ih vnbvdt/.

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 thir-ty days and force him (Reuven) to pay, or not?

Response: There are places, in Barcelona and in Spain, where (borrow-ers) are forced to redeem a mashkonah (land “pawn”) after a year (for aloan in which no repayment date was specified) or after the time setbetween the two sides. However, in Narbonne they do not force (theredemption) 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 incourt. For the Rabbis did not disagree with R. Shimon b. Gamliel, inchapter ha-Mekabbel (Bava Mez. i‘a 113a), except on the issue of havingto return the pawn, but other than that they did not disagree.

And regarding a mashkonah (a land “pawn”) of land in a place wherethere is no common practice of Jews, we follow the common practice ofthe Gentiles, and their practice is that if (the lender) did not specify (arepayment 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 notstipulated by us (in talmudic law) and we have no known common prac-tice, we follow their (the Gentile) common practice, and this is similar tothe law of the land since they rule according to their common practices.

On examination of this responsum, we discover that neither the ques-tions addressed to Rabad nor his responses bear any resemblance to theissue presented in the “Programmatic Essay.”

1. Note that there are actually two discrete questions, and two dis-crete answers. Only the second question involves a pawn (mashkon). Onthis question, Rabad replies that since there is a clear halakhah, based onthe Talmud, Gentile rules and practices have no bearing on the decision.

2. Contrary to Soloveitchik’s reading, the ruling of Rabad to followGentile practice has nothing to do with a regular pawn at all, but ratherwith a “mashkonah of land,” an arrangement in which the lender usesthe borrower’s land, “eating its fruits,” while deducting minimal rentalpayments from the debt. This is both a form of strong pressure on theborrower to come up with the cash, and also gradual payment, if onlypartial. This is not a normal pawn (mashkon). It is rather referred to as amashkonah or mashkanta.89

A mashkonah (land “pawn”) is different from a normal pawn forseveral reasons:

1) Land generates income. (The pressure on the borrower is thusvery strong, for until he redeems his land, he loses its profits.)


2) Land cannot be physically moved to the control of the lender, butrather the lender must take control of the land by utilizing its produc-tivity, thereby profiting from the income.

3) Since usury is halakhically prohibited, a minimal rental paymentis 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 missingin Prof. Soloveitchik’s presentation.

The logic behind the query is clear: Does the omission of a repay-ment date mean that the lender relinquishes his right to demand pay-ment?91 The concept of a lender’s relinquishment of his right to demandpayment is found in the Talmud Yerushalmi, even in a case where thelender is not in possession of a pawn or mashkonah.92 It is also clearfrom this source that even though the lender loses his right to demandpayment, the obligation of the borrower remains.93 This concept of relin-quishment is also found, as Soloveitchik correctly notes, in the form ofthe talmudic concept apotiki mefurash [a specified mortgage where thelender has no right to demand any other form of payment]. Rabad him-self clearly explains the legal understanding of such an agreement as thelender’s relinquishing of his right to demand payment:

He (the lender) relinquishes his right to subject the other lands (of theborrower besides the specified mortgage) for payment of the debt, andeven money he doesn’t want to demand.94

(Indeed, this rationale is especially clear in light of Rabad’s perspec-tive of a borrower’s obligation, which will be discussed below inExample 2. Rabad states that even though a lender may sell his power todemand a debt,95 the actual obligation of the borrower to his lendercannot be sold. The obligation of a borrower, in Rabad’s opinion, is hisown 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 pay-ment demonstrates the lender’s relinquishing his right to demand pay-ment—has three possible variations, as can be seen in the questions andanswers in Rabad’s responsum:

a. When the lender holds no pawn or mashkonah, no question isasked since it would be unreasonable for a lender to relinquish his onlyform of pressure on the borrower.


tvte njk kagctshv aew ewg/hv teihkt ztzh ke cgh knh/cghv

b. When the lender holds a pawn, the question does arise. Since thepawn constitutes pressure for payment, it is possible that the lender relin-quished his right to demand payment. Rabad answers, however, that thereis a clear talmudic ruling that the lender does not relinquish his right todemand payment (unless there is local Jewish practice to the contrary).

c. When the lender holds a mashkonah (a land pawn), Rabad differen-tiates between this case and the above case of a pawn. Here he finds nohalakhic ruling (unless there is local Jewish practice that defines thelender’s intention) since the pressure on the borrower is great: the morethe payment is delayed, the more income the borrower loses, and themore the lender profits from the produce of the land. Indeed, the lender’sright to demand payment is not crucial, and perhaps the absence of adate shows that he relinquished it.

In summary: The questions addressed to Rabad relate to a situationin which a date is absent from the agreement of a mashkonah (a landpawn) and of a pawn: May the lender force a payment in cash (or sell thepawn)—and when—or must he continue holding onto the mashkonah(a land pawn) or to the pawn? Rabad answers that if there is a localJewish practice, the practice defines the inexplicit agreement.

Where there is no local Jewish practice: in the case of a pawn, wefind a talmudic ruling that he can force a payment after 30 days. Gentilelaw 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 andthe Abbot of Aniane in the year 1203 is most interesting. However, weare not shown even a remote parallel in the writings of Rabad.

Example 2—“In his hassagah to Mekhirah 6:12, Rabad explainsSamuel’s famous ruling ‘kujn ukjnu rzju urcjk cuj rya rfunv’ [“One (alender) who sells a note of indebtedness to another individual and sub-sequently forgives the debt, it stands forgiven”]—after this fashion:

[Because the borrower says to the buyer (of the note)—I did not subjectmyself to you. Therefore, if he (the borrower) wrote in the note ofindebtedness: “I am hereby obligated to you (the lender) and to all (sub-sequent buyers of the note) who take your place,” he (the lender) is notable to forgive the debt after selling the note of indebtedness.]


nibh avktv etnw kktqj – ebh ke ahgcs/h kl e/ gmnh kihfl eu f/c kt carw

jtct vwhbh natgcs kl tkfk vcehu nftjl, ehbt hftk knjtk canfw arw jtct.

“These are some of the most seminal words ever penned on thenature of obligation and, together with those of Rabbeinu Tam, havegiven birth to an entire literature. But the “lefikhakh” (“therefore”)] sug-gests a practical moment to his remarks, and this finds corroboration inthe fact that Rabad saw fit to reiterate this proviso on no fewer than fourother occasions. Clearly Rabad’s doctrine must be studied not only fromthe perspective of the development of Halakhic thought, but also in thecontext of 12th century Provence.”

Soloveitchik goes on with his third example, which will be discussedlater. 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 doubleburden was thus thrust upon cuj hrya [notes of indebtedness]. . .Samuel’s ruling “rzju urcjk cuj rya rfunv” [“One (a lender) who sellsa note of indebtedness to another individual and subsequently forgivesthe debt, it stands forgiven”] mortally impedes the free movement ofcredit. . . . 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 itsconceptual significance, was at the same time an attempt to validate thecoin minted by a society suffering from a dearth of currency (“Program-matic 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 inHalakhah. Rabbinic enactments made to insure healthy commerce(“euav ,be, ouan”) are common in the Mishnah and Talmud. Rabbinicauthorities continued to make such enactments throughout Jewish histo-ry—long after the completion of the Talmud. And no attempt was madeto disguise them in any way. Why then would Rabad have had to disguisehis 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 commercevery similar to those mentioned in the “Programmatic Essay.”97 A noteof admission, odita, from the lender-seller stating that the credit wastransferred to the buyer via ma‘amad sheloshtan (even though this actu-


ally wasn’t done) would have sufficed as a simple solution for a securetransfer of credit.98

2. Rabad’s ruling can be understood quite simply and compellinglywithout reference to economic conditions in Provence. Here is the gistof the ruling: if the borrower obligates himself to repay all who buy theloan, then the original lender loses his right to cancel the debt. This rul-ing has a very strong basis: 1) Simple logic dictates that since the bor-rower specifically obligated himself to the buyers of the credit, his oblig-ation to them is absolute—leaving the original lender powerless tocancel 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 formof 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 metalmirror’ [an expression taken from Job 37:18, expressing solidity andclarity].”

3. Despite the clear and simple logic in this ruling, as mentionedabove, Rabad’s own rationale is actually more complicated. It is based,Rabad explains, on his reasoning, which differs from Rambam’s, for therule of Samuel -– why, indeed, does the original lender have the powerto 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 thebuyer [of the note]—I did not obligate myself to you.”

Soloveitchik appears to regard Rabad’s reasoning as strikingly inno-vative: “These are some of the most seminal words ever penned on thenature of obligation.” He proceeds to explain what, in his view, was thereal 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 amonetary obligation is not the possession of the lender, but rather apersonal obligation of the borrower. Rabbeinu Tam independentlyarticulated the same principle.

Indeed, this concept of personal obligation was not an invention ofRabad and Rabbeinu Tam. It can be found in the Talmud itself: “,ghrp

vumn cuj kgc”—“payment of debt is a miz. vah” (Arakhin 22a, Ketuvot86a). This means that payment of a debt can be enforced only as amiz. vah is enforced. Rabad and Rabbeinu Tam logically concluded thatthis 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 retainsthe power to cancel the obligation. This is Samuel’s ruling.


4. If one is searching for novelty in Rabad’s ruling, it is his relianceon his own rationalization of Samuel’s ruling. After expressing his dis-agreement with Rambam, Rabad continues “lfhpk” [“therefore”] thestipulation “ljfn ohtcv kfku lk scguan hbhrv” [“I am hereby obligatedto you (the lender) and to all (subsequent buyers of the note) who takeyour place”] prevents the original lender from having the power to can-cel the debt. The “lfhpk” (“therefore”) implies that according toRambam’s rationalization of Samuel’s ruling, this stipulation will notprevent the original lender from having the power to cancel the debt.101

Rabad thus forces into the mouth of Rambam a dissenting opinion thatRambam 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 ofRabad’s ruling is so clear that Rambam and Alfasi would also acceptthe implications of the proviso “ . . . scguan hbhrv” (“I am hereby sub-jected . . . ”).

If Soloveitchik’s hypothesis were correct—that Rabad’s rulingsought “to open the arteries of credit blocked by Samuel’s ruling”—werun into a major paradox: by forcing a dissenting opinion into Rambam’smouth, Rabad was essentially hindering the application of his own ruling!102

And indeed, this is what happened. Even though Rav Yosef Karoruled clearly that in such a case the borrower must pay according to allopinions, this ruling was contested by the Keneset ha-Gedolah 103 and theGiddulei Terumah,104 basing themselves on Rabad’s implication thatRambam disagrees.

With the outlook of Prof. Soloveitchik, Rabad was playing the gamefor the wrong side. The words he wrote in his hassagot had the potentialto cripple the economy of Provence! This clearly disproves the con-tention that Rabad was motivated by an ulterior motive: to help solvethe problem of credit circulation.

5. Actually, Soloveitchik’s basic claim that “Samuel’s ruling [‘alender who sells a note of indebtedness to another individual and subse-quently forgives the debt, it stands forgiven’] mortally impedes the freemovement of credit” is highly questionable for a very practical reason:Halakhah requires the lender-seller to reimburse the buyer for the losshe caused by forgiving the debt.105 This serves both as a powerful deter-rent not to forgive the debt, and as security for the buyer of credit incase the debt is forgiven. Our system of commerce today in the usage ofchecks 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


check. The fact is that our check system most definitely does not impedethe free movement of credit.

Example 3—“Another ruling of Rabad reported in Sefer ha-Terumot[51:6:3]:

[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 for-give the debt, since the pawn is being held by the buyer. He (Rabad)brought proof (to this ruling) from what the Rif (Alfasi) wrote inKetuvot (f. 44b ed. Vilna, in explanation of the talmudic passage BavaBatra 147b, see fn. 104): “Because a gift (a note of debt) given by ashekhiv mera—a deathly ill person—was made to be considered as bibicallaw, as if it (the note of debt) came into the hands of the recipient, andtherefore 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 isa pawn in the hands of the lender and he transfers it to the buyer (of thenote) 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 hasany bearing upon the question at hand. If Rabad, however, says that it isrelevant, I defer to his judgement, but I remain no less perplexed. Assumingthat one can indeed make deductions about the problem under discus-sion from R. Isaac of Fez’s language about gifts made in contemplation ofdeath (grn chfa ,b,n), what weight should this inference carry withsomeone who penned massive criticisms of Alfasi? If Rabad had intu-itively felt that renunciation could take place with gaged debts, nothingthat Alfasi might have said, even explicitly, would have saved him.Clearly, Rabad was not deducing anything from R. Isaac’s remarks, as hecontended. But, having arrived intuitively at a doctrine of non-renuncia-tion, and lacking any proof for his position, he seized upon a formulationof Alfasi as precedent and asmakhta. [Emphases mine]


tbaek vwec"s z"k: vntfw arw jtc kjcwt, tha nafty chs vnktv tnxwt chs

vktqj, eu hftk vntfw avte vnkttv kntjkt )kktqj( ]kkttv[ eu ket>

tvahc aehbt hftk knjtk nejw avnafty ntjzq chs vktqj. tvche wehv nnv

af/c vwh"p cf/tct/: "natu sn/b/ afhc nwg gaetv fn/bv setwh/e sfney

snrhe khs vnqck snh, tkihfl ehy vhtwa ntjkv." tnsqenw ]vwh"p[ "snrhe

khshv snqck snh," ang nhbhv eu ha nafty chs vnktv tnxwt kktqj, aehbt hftk

kntjkt kktv. g"f

Prof. Soloveitchik continues to explain the secret lying behind Rabad’sintuition: “There was a dearth of currency at the time in Provence...Both rulings (Examples 2 and 3) seek to open the arteries of creditblocked by Samuel’s ruling. The two dicta . . . are a two-prongedattempt to wrestle with the problems that presented themselves as Jewsmoved from an agricultural to a credit economy”(“ProgrammaticEssay,” pp. 34-35).

Reservations:1. As to Soloveitchik’s claim that Rabad had no sources—and sim-

ply used Alfasi as a fig leaf—we would refer readers to a talmudic sourceidentified by Ramban. By comparing the talmudic passages Kiddushin47b-48a with Kiddushin 8b, Ramban reaches the conclusion that a pawntransfer removes from the original lender the power to cancel thedebt.107 Why Rabad did not accept this talmudic source remains an openquestion. But one thing is certain: his unwillingness to accept it contra-dicts Soloveitchik’s theory that an ulterior motive drove him to point toa far-flung pseudo-source. Had Rabad merely been looking for addi-tional leverage to neutralize Samuel, this talmudic source would haveserved him well (much better than Alfasi), since there is no obvious rea-son why it is not good evidence.

2. A strong rationale for this exception to the rule is also explainedby Ramban. The Talmud rules clearly that the lender has a certain own-ership 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 theloan.109 It follows that since the lender has ownership of the pawn, hecan 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 thatthe original lender loses his right to cancel the loan.110 When the origi-nal lender exercised his ownership of the pawn by selling it, it is as if hereceived payment of the debt in the pawn he sold.

Indeed Rabad could easily have offered this clear rationale since heshared the view that lender ownership also extends to a pawn given atthe time of the loan (Katuv Sham, p. 130).

The major question to be asked on Rabad is not: How did he rely ona seemingly weak source in Alfasi? But, rather: Why did he not rely onthe above reasoning? Apparently, this rationale did not suffice for Rabad.Even though the lender enjoys a certain ownership of the pawn andthereby we may consider the loan as if it were already repaid, in actualityit is not really repaid. Can a loan be considered as if it were repaid in thecontext of the original owner losing his power to cancel the loan?


Rabad found an answer to this question in Alfasi. The case underdiscussion involves a shekhiv mera who bequeaths a note of indebted-ness to another individual. In this instance, the Talmud tells us, evenSamuel will agree that the heirs of the lender will have no power to can-cel 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 recipi-ent [beneficiary]”). We see in Alfasi’s reasoning that even though thedebt was not actually paid, the halakhic recognition that “it is as if [theloan money] came into the hands of the recipient” is enough to cancelthe 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 tosell this ownership) will certainly cancel the power of the original lender.

3. “What weight should this inference carry with someone whopenned massive criticisms of Alfasi?”

A great deal. See Rabad’s introduction to his hassagot on the HilkhotAlfasi cited above (see p. 38 and n. 75). In the eyes of Rabad, Alfasi is atowering and revered authority, whom he refers to as ha-Rav (or “Adoniha-Rav”). (See n. 68 for discussion in the literature.) His opinions are notmerely cited, but studied in depth by Rabad.111 Indeed, Rabad is actuallyone of the great commentators on Alfasi, even in his so-called hassagot onAlfasi. Rabad wrote the Katuv Sham, a work on the entire Talmud, whosemain 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 thatSamuel’s ruling “mortally impedes the free movement of credit” is ques-tionable (see p. 48, point 5).

Having now reviewed all three examples in the “ProgrammaticEssay” purportedly showing that “Rabad’s writings are anchored inProvençal life and thought,” we may say without hesitation: “There areno bears here, not even a forest!”112

• • •

We would be remiss in not offering a general comment here onProfessor Soloveitchik’s conception of the evolution of halakhah, clearlyreflected in the following statement:

No jurist, certainly no religious jurist, dreams of interpreting the lawaccording to his personal inclination; he seeks simply to discover whatthe sources say on the matter. And if he is of any stature, his words willread as a series of objective and ineluctable conclusions. Only by compar-



ing his solution with those of others does its subjectivity become appar-ent. Law leans towards continuity and has an antipathy to radical change;thus the revolutionary jurist must disguise his innovations—at times evenfrom himself (“Programmatic Essay,” pp. 30-31; emphasis mine).

No one would disagree that Jewish history bears witness to certainchanges in the practical application of Halakhah. Each great halakhicauthority casts his impression, according to his perception of truth.Halakhic authorities wrestle with difficulties and evidence until theyreach a decision; or sometimes prefer to follow the rules of safek. This isnot a change in the core of Halakhah itself, but rather an integral part ofHalakhah, which is governed by its own guidelines. There is also nodoubt that a given financial situation may have an effect, since thesevery guidelines call for flexibility where loss may result (“vcurn sxpv”,“ejsv ,ga”, and “,ube,”). Social and economic conditions may also beincentives for great halakhic authorities to struggle to reach a certainconclusion. Such efforts, however, are not aimed at disguising the truth,but rather at uncovering hitherto unnoticed genuine halakhic perspec-tives. The discussions are above board, subject to the meticulous scruti-ny of peers as well as the scholars of succeeding generations.

Professor Soloveitchik goes much further in his rendering of halakhichistory. He claims to have discovered great halakhic authorities—Rabadbeing a case in point—who “disguise innovations—at times even from[themselves],” implying that more often the disguising innovation wasdone consciously (i.e., was intellectually dishonest). Soloveitchik hints atdiscord between the overt commitment to continuity on the part of ris-honim (“certainly no religious jurist dreams of interpreting the lawaccording 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 notdemonstrate this at all. Judging from the illustrations in the essay, if anyassociative connection between a ruling and the social or economic cli-mate can be found, it is considered “evidence” that the rishon’s givenreasoning was actually a disguise. If some seeming difficulty can befound in the reasoning, then the ulterior motive is confirmed. This,however, is not acceptable evidence by any scientific or scholarly stan-dard. Disguise of innovations is neither a proven explanation of such aruling, or even a probable explanation. It is merely a possible explana-tion. It seems that the conclusion here preceded the observation, thepremise being the conclusion. No compelling evidence for the claim hasbeen adduced. Indeed, my own thematic studies of rishonim have yield-ed no such evidence.

The greatest master of thematic studies of Rabad, both quantitative-ly and qualitatively, was probably R. Shlomo b. Aderet. He had access toa multiple amount of Rabad’s commentaries and rulings than thoseextant today, and constantly scrutinized them, while comparing Rabad’sopinion with the differing views of the other rishonim. How did he viewRabad 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 istruth.”113 Even though we might be inclined to discount this remarkablepraise, and take it at something less than face value, it is still profoundlyimpressive. It strongly suggests that R. Shlomo b. Aderet failed to detectany “disguising of innovations” on the part of Rabad.

• • •

Any attempt to characterize Rabad must reckon with the followingstriking paradox. Indeed, I think it is a paradox that offers us the key tounderstanding Rabad.

On the one hand, Rabad comes across through his writings as avery strong personality: decisive, fully confident, even willing to swearto the truth of his interpretations and rulings using his famous expres-sion “hatr hhj” (“by the life of my head”). He is also willing to attacksharply those who take a different view. On the other hand, we aresometimes struck by what seems to be a lack of confidence and weak-ness of character, as he frequently changes his opinion, even when hehad a strong basis for his original opinion. (In fact, the later rishonimoften agree with the earlier opinion.)

One example was cited earlier—where Rabad changed sides fromdisagreement to staunch support of two Geonic opinions. This is not ararity. “/ / / 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 (Contraryto Kapah.’s claim that these revisions came as an answer to R. Zerah. yahha-Levi’s hassagot, this is the case in only a very few instances.115) Insome places, he even changes his ruling twice.116 We find him criticizingRambam’s ruling which previously was his own opinion.117 Even in thetwilight of his life, Rabad expresses doubt about an opinion which hehad endorsed throughout the years, and over which he had also criti-cized Rambam.118 We can even find him attacking his own previous


opinion as fiercely as he disagrees with others:

(I swear) by the life of my head, that we had always been mistaken onthis issue (as if) with the staff of a blind man . . . but when I reachedproper sense, I went back and saw. . . .119

Samuel Atlas, perhaps the first to notice this trend, claims that thereis no paradox: “The essence of Torah study is the persistent quest andprobing for truth… Greatness in character can be found in one whodoes not become a slave to his own words.”120

Indeed, Rabad was “the greatest of the critics” (gedolei ha-mag-gihim), as he is called by Me’iri. He did not hesitate to direct his greatpower of scrutiny towards himself as well. What the reactions of his stu-dents and his fellow scholars would be to his changing opinions, he didnot take into account. He did not attempt to disguise what he believedas truth. Above all was his continuous lifetime struggle to seek truth.Indeed, with the same zeal that he debated with others, he debated withhimself—this is the zeal for truth.

Rabad’s zeal for truth also explains his treatment of the Geonim. Onthe one hand, his sincere recognition of their greatness prompted himto assert respect for the Geonim, that a jurist may not disagree with aGeonic ruling, unless he finds a serious (“famous”) difficulty. On theother hand, even the Geonim are not spared from his criticism when hedoes find a serious difficulty with no apparent solution.

Clearly, it seems that Rabad was the quintessential Halakhic Man,121 aspowerfully characterized by the late R. Joseph B. Soloveitchik:

Halakhic man does not quiver before any man: he does not seek outcompliments, nor does he require public approval. . . . He knows that thetruth is a lamp unto his feet and the Halakhah a light unto his path. . . .And this Halakhic truth is one complete and ultimate truth, whichHalakhic man is not ready to sacrifice. . . . He does not understand theins and outs of politics, nor is he cunning in worldly matters. He will notoverlook a single jot or tittle of the Halakhah, even to realize some loftydesire. We have here manifested . . . the zeal for the truth, as granted himby the Almighty. The truth will call to account those who dishonor it. . . .[Emphasis mine.]

• • •


tcjhh weah, fk hnhbt vhhbt rtghu cscw zv cnqk ak xtnhy . . . tfeaw gns/h gk

sg/h, ac/h tweh/h . . . .

Assessing any historical personality is not a simple task, especially if thefigure lived more than eight centuries ago. It is natural that conflictingperspectives will develop. A valid historical profile, however, must bebased on solid evidence that can stand up to close scrutiny. Despite itsrobust style, the “Programmatic Essay” fails to meet this criterion. Theportrayal of Rabad as a “discard[er of] 500 years of tutelage” and as“the revolutionary jurist [who] must disguise his innovations”—is notsubstantiated. As we have shown, the sources point in precisely theopposite direction.

Notes

I am deeply indebted to my good friend, Dr. Uri Cheskin, for his keen insight and skillful edi-torial assistance, without which this article would not have reached these pages. In addition, Iwould like to thank all the distinguished scholars, including anonymous referees, who tookthe trouble to review the manuscript for their valuable comments. Of course, I take fullresponsibility for all aspects of this article.

1. Rabad’s yahrzeit is on the second day of H. anukkah, 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 onZera‘im (see Rabad’s own reference to his commentary on Demai in hiscommentary on Avodah Zarah p. 168). R. H. asdai Crescas, in his introduc-tion to Or Hashem, states that Rabad wrote commentaries on the entireTalmud. Today, however, only the commentaries on two tractates of Gemaraare extant in their entirety, Bava Kamma and Avodah Zarah; and on twotractates of Mishnah, Kinnim and Eduyot. Also lost is almost all of Rabad’swork on the laws of Kashrut, r,hvu ruxht.

3. Also extant are Katuv Sham (his hassagot on R. Zerah.yah’s Sefer ha-Ma’or),part of his hassagot on Alfasi, a commentary on Torat Kohanim, responsaand works of Halakhah on the laws of Lulav, Netilat yadayim, and power ofattorney (harsha’ah). The responsa and the works of Halakhah are found inTemim De‘im and in Ravad–Teshuvot u-Pesakim (Mosad ha-Rav Kook). Alsopublished 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 75th 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 Geonimextensively and with great reverence” (Rabad of Posquieres A Twelfth CenturyTalmudist, JPS [Philadelphia, 1980]). Twersky’s conclusion is well docu-mented (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. efonAfrica, 1999, Part I, 203) seems to follow Soloveitchik’s perspective, but canbe interpreted differently.



7. Soloveitchik compares Rabad’s writings to those of other scholars of Provence:“Remove the Geonim from the Eshkol and the work collapses, subtract theGeonim from the Ittur and it limps badly, take away the Geonim from Rabadand the loss is barely noticeable. . . . Before Rabad, Provençal writings are astorehouse of Geonic literature. After him the Geonic material in Provençalworks dwindles radically . . . Rabad disrupted the Geonic transmission.”(“Programmatic Essay”, p. 12).

8. As Soloveitchik explains: “. . . far too much emphasis has been placed uponagreement or disagreement with the Geonim. Disagreement is a pallid formof independence, for, in one sense, one only demonstrates one’s sub-servience to a thinker when one spends time seeking to refute him. It is theuniverse of discourse rather than the positions adopted therein that is deter-minative. The central question to be asked in assessing the intellectualdependence . . . is whether its frame of reference is Geonic” (“ProgrammaticEssay,” 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 alengthy introduction written by Prof. Havlin. Havlin notes the specialimportance of Me’iri’s account of the Geonim and early rishonim, devoting asection of his introduction to this account (pp. 47-50).

10. As presented by I. Ta-Shema:

(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):

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:

(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 unreasonableto claim that it disappeared during the 500 years of the Sevoraim andGeonim. We can discern this in a letter of R. Sherira Gaon, in which hedescribes how his son, R. Hai Gaon, educated his young students, stimulat-ing them with questions:

ihwtahvu v/wfzt kwtc cgbhbh dhwxe, nhktbet/ tchetwhu qkhu, vhkft cswl fkk

crfbhqv vnwjhcv tvnhtxs/ gk viweiwzv, brt knhktkht/ tb/fttbt ki/tw, cqmwv

ffk veiaw, e/ vbqtst/ gk ibh vxtdhe avhv nqtu kagw fh cdkku b/qav

vatek.

afk vihwta vhv xstw cihvu, tvhv cghbhvu f/hc/ ihwta vscwhu fnh ahf/tc

cznbhbt zv kgz vnhkt/. tdwu kvu zv ake vht ft/chu wq ngr, vy cswl ihwta, tvy

cswl ixq . . . nibh ake vht mwhfhu kfl, fh vhahct/ vht qctgt/, tfk vqvhkt/

vht n/bschu kvgnhs au v/knhshu cfcts dstk, gs afk vewmt/ vht nvu vwcv

avht atkjhu cbhvu kknts, tfaktnshu fk mwfu kih wmtbu, vhv fk ejs ac ek

naij/t tek ejtz/ ect/ht. tn/tl fl nkev vewo sgv e/ v'.

tkihfl qcg vqc"v a/h hahct/ khawek avtdhy c/twv htnu tkhkv, tn/qcmhu a/h

ignhu cabv, cesw tcektk, nfk nqtnt/, tbtaehy tbt/bhy cnkjn/v ak /twv gs

angnhshy scw gk ctwhv tvkfv kenh/v.

(Genizah, Rav Sherira Gaon, Levine, Jaffa, 1917; rpt. in Geonica, Mishor,1987, vol. 7, p. xxvii)

14. Me’iri writes:

(Havlin ed. p. 125) 15. Havlin ed., pp. 128-2916. Havlin ed., p. 129.17. Havlin ed, p. 134.18.

(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 ah. aronim differ (see Havlin’s note 587).

21. Me’iri writes:

Me’iri includes in this list: the Ri Migash in Moslem Spain, and the Ramah inChristian Spain, who also wrote novellae to fill in this gap. (The Tosafotplayed a similar role in northern France, but were not included by Me’iri inthis 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:

Indeed, it is clear from Rabad’s hassagot on Alfasi there that he was unawareof this doctrine of R. Hai Gaon.

2) A vivid example of the lack of Geonic information in Provence can be seen inthe following issue in the laws of lxb ihh:

R. Avraham Av-Bet-Din of Narbonne (Eshkol p. 85) cannot find anyGeonic source to resolve the question of ruchj eumhb:Indeed, R. Zerah.yah (29a in Alfasi ed. Vilna) rules tkuek ibcrs tehpx; and

Rabad argues in Katuv Sham (p. 213) that we rule as Rav Huna, but withoutbringing any Geonic support to this ruling.


tdu veh cjtwhbt aqs kknsu . . . teaw ke hsg kaetk hknsvt swl vqtahe thjcc

e/ vswl cghbht.

nvu ake wehbt f/tc nngav hshvu fktu, tnvu ake wehbt nvu wq /atct/

aekt/ knsbt nvu vwcv kgbhy ixq tvtwev, tnvu awehbt nvu ihwtahy cqm/

nxfht/ et kignhu cqm/ iwqhu et kignhu cqm/ antgt/ tvkft/ nitzwt/, nvu

awehbt qm/ jhctwhu cgbhbhu iwrhu ck/h ftkkhu cfk v/knts, et wtct nvu cihw-

ta v/knts eck cwnzhu tswfhu qmwhu, ehy cvu acw wgcty vn/knshu fkk.

tfy b/jcw jhctw dstk cswl ixq kvwc vdstk w' hvtsv cw cwzhkh ek cwmktbh cwtc gbhbh

v/knts, ewtfv newo ns/v twjcv nbh hu.

ewcgv vnv nrhch kf/ tkngkv ect/ v/knts eaw v/jhk kjcw jhctwhvu kvtghk

/tgk/ fkkh ketnv . . . tnvu bimv fk vewo . . . twea kfk vjhctwhu ab/jcwt

swl ihwta vu ihwtah wa"h z"k . . .ttwweeaa kkffkk vvjjhhccttwwhhuu aabbggaavv sswwll vvwwffcc// iihhwwttaa

ttiixxqq vvuu iihhwwttaahh vvwwcc vvddssttkk vvwweecc""ssz"k . . . .

. . . vfwhj e/ vwc z"k )vwec"s( kjktq gk vdetbhu aakkee nnssgg//ttavu z"k fl vu

etnwhu. . . tfy cdkhtbh /atct/ ak wc veh dety. . . .

tqnv iktd/e swc vtbe twc bjny cbmtq kgbhy hhy. tke jzh ky kwcte/e ixqe fney

vkf/e.

Outside of Provence, however, Geonic sources on this issue were indeedavailable. 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. PlatoiGaon like Rav Nah.man that rucj huv tk eumb (Ra’avan #305, Or Zarua #217,and the Mordekhai #856). This Geonic information was not available to theEshkol, R. Zerah.yah, and Rabad of Provence.

24. Rabad questions the reliability of the correct text in Geonic responsum:

(Rabad’s Laws of Harsha’ah–Temim De‘im #62.)

(Katuv Sham, Pesah. im 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 samewas probably true for twelfth century Provence as well, since there is no rea-son the writings should have disappeared.

A careful study of Rabad’s writings would very likely help us identify thetractates for which he possessed the commentary of Rabbeinu H. ananel, andwhich not. See footnotes 31 and 39 below.

26. The father-in-law of Rabad, R. Avraham Av-Bet-Din of Narbonne, wrote toR. Meshulam of Lunel, Rabad’s mentor:

(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 ofR. Yehudah of Barcelona, as seen in his Sefer ha-Eshkol. In the opinion ofAlbeck, the Eshkol was an abridgement of the Ittim of R. Yehudah. The factthat R. Avraham Av-Beit-Din could not get hold of this work on the order ofNashim proves that it was indeed inaccessible. In a similar vein, Me’irireports, generations later:

(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. Ta-Shema states unequivocally that it is not Eshkol, even though it was certainlynot forged by Auerbach. This is also the opinion of Y. Sussman (R. Zerah.yahha-Levi: Ba‘al ha-Maor u-Benei H. ugo [Jerusalem: Mossad ha-Rav Kook, 1992],p. 40-41, n. 27). Their hypothesis that it was written by another medieval schol-ar, 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, BishulAkum (pp. 131-146)

29. I did not include an explanation cited in Hilkhot Kelei Goyim (p. 140):


tfy /atc/ wchbt veh dety z"k . . . ehbh htsg nh abev. teiaw vxtiwhu acatv

feaw vu nacahu fnv vg/qt/, et ane vdhg khsh nh aehbt cqh tvtxhp gkht

nsg/t nhkv et a/hu gs aba/cav fk v/atcv.

fh ehy v/atct/ ndhgt/ emkbt nstqsqt/ fnt andhgt/ emku )emk vwc ekixh(.

tteehhyy ccffeeyyxsw bahu ak vwc w' hvtsv br' wj', eck ghhb/h cxiw akt cvkft/

ach// gcshu, tweh/h kf/tc kibhl fh aannee eehhbbtt cchhsshhll.

jhctwht ak vbahe ewtfhu newo ns/u twjchu nbh hu . . . ke zft kvg/q/u

tkva/na ketwu wq hjhsh xdtkv ndstkh vstw.

since this is all clear in the Talmud, Avodah Zarah 75b. I also did not includethe long responsum in the beginning of Hilkhot Yayin Nesekh (p. 64), as thepresentation is elementary.

30. Even though it is possible that the source of an unattributed interpretivecomment may be Geonic, the same is true in Rabad’s writings as well (con-trary to Soloveitchik’s assumed “Premise 2”). These unknown factors can-not, of course, be assessed. Since we are looking for solid evidence that Rabaddiscarded Geonica, these conjectures are beside the point.

31. Both the Eshkol and Rabad (in his novellae and in Katuv Sham) fail to men-tion R. H. ananel even once in the tractate of Avodah Zarah, and no influenceis noticeable. This is well understood considering the report of R. David b.Shemuel Kokhavi in his introduction to Sefer ha-Batim (see footnote 25above). It seems that even R. Yehudah of Barcelona, the major source of theEshkol, lacked access to R. H. ananel on Avodah Zarah. (His Sefer ha-Ittim onEiruvin regularly copies R. H. ananel verbatim, whereas the Eshkol in AvodahZarah fails to quote any commentary of R. H. ananel.)

Even more revealing, perhaps, is the treatment of a passage in AvodahZarah 60a: hra lshtu ruxt trnj is explained by Rabbeinu H. ananel (cited byRashba on Avodah Zarah 59b) as “until the tap not permissible to drink andthe rest permissible to drink.” Rabad, in his commentary, dismisses thisinterpretation without mentioning Rabbeinu H. ananel. Later, however, in hisresponsa, Rabad cites such an interpretation in the name of the Provençalscholar R. Mosheh b.Yoseph, and describes his struggle to understand it:

(Temim De‘im #110, #111). It is clear that Rabad was unaware that the more prestigious commenta-

tor Rabbeinu H. ananel 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:

This opinion is also cited by Rabad (p. 161 s. v. sof sof):

Interestingly, this opinion is rejected by the Eshkol, while it is accepted byRabad.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 onthis issue, which may be these same opinions brought by the Eshkol from theBa‘al Halakhot Gedolot.4) Eshkol p. 70—’ufu uhshk ut uhpk ghdhu ihh tmh tna vfrutk t,tucr ’hpu is cited byRabad (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 com-mentarial information is that the cups mentioned on p. 33b with their lawsof hakhsharah, are made of trjp.This is mentioned twice by Rabad (pp. 70, 254): ’’trjps hxf iutdv ’hp’’.


tebh ang/h fh vwc wchbt nav c"w htxp zm"k vtv niwa . . . se/h ccwze extw

ca/hv tehsl awh eihkt ca/hv. tebh ke gns/h gk xtp sg/t gs fnv abhu. tg/v

jac/h. . . nxgs kscwht. . . .

tha bnh nh anqk tetnw aehy chhy bnal bgav hhy bxl gs ahswx cwdk tft'.

tha niwahu eg"i avhhy nzkp . . . eihkt vfh nt/w . . . ane hxjtr cfttbv.

iwha dety abkqjt cnkjnv tbg/qt kdnwh nwat/ zv kwat/ zv, eck aetkhy jsahu

ehy mwhfhy rchkv.


The halakhic novelties of this responsum are also to be found in the rul-ings of Rabad (without mention of a Geonic source): a. The halakhah fol-lows R. Elazar as to the number of seals (Rabad p.75); b. As to the Christianwine ritual, R. Hai writes: ’’ihhv ,t ohfxbn ov ohhrmb’’, and so rules Rabad inTemim De‘im, #18:

(This opinion of R. Hai and Rabad differs from the opinion of the earlyProvençal scholar, Ravna Ya‘akov b. Ravna Mosheh, whose responsum isquoted at length and discussed in the Eshkol.)6) The Eshkol (p. 78) cites a Geonic commentary on Avodah Zarah 60a:

Albeck, in his notes, identifies this source as the same as Rabad’s. While Ipersonally do not agree, Rabad does attribute his commentary to predeces-sors (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

Ah. ai, 2) Halakhot Gedolot, 3) Rav Hai Gaon, 4) Rabbeinu H. ananel, and 5)Alfasi. Of these sources we find: seven citations in Sha‘ar ha-Prishah, three inSha‘ar ha-Vesatot, none in Sha‘ar ha-Ketamim, one in the very small Sha‘arha-Sefirah, seven in the small Sha‘ar ha-Tevilah, two in the long Sha‘ar ha-Mayim, and none in the long Sha‘ar ha-Kedushah—20 in all.

34. The anonymous references (rnts itn tfht) should be counted for severalreasons:1) As Soloveitchik includes R. H. ananel and R Isaac of Fez in his count, he isclearly not referring to the Geonim alone, but is also including the early risho-nim, at least until the time of the Rif. Since the time lapse from the death ofR. Isaac of Fez till Rabad’s writing Ba‘alei ha-Nefesh was not more than 55years, it is logical to assume that at least many of Rabad’s anonymous refer-ences are to authors within this time period.2) Even though it is possible that they are post-Alfasi, the burden of prooffalls on the researcher trying to demonstrate the omission of Geonica. 3) It actually makes little difference if these opinions are Geonic or post-Alfasi. Rabad’s inclusion of post-Alfasi opinions in his “universe of dis-course” would only underscore his regard for his predecessors. (Incidentally, the actual number of citations in Ba‘alei ha-Nefesh is 62! Wecounted above only 58 since four references are apparently post-Alfasi.)

35. Soloveitchik minimizes the importance of the Geonic teachings cited byRabad (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 popularmisapprehension. . . . Rare indeed is the Geonic ruling which is brought sim-ply as Halakhic datum.” We are not quite sure what to make of this. DoesSoloveitchik really view Rabad’s study of Geonic teachings, his attempt to

hhy bxl dntw. . . et/t aat/hy vftnwhu cch/ vg"z akvu tgkht benw ha/t hhy

bxhfu.

ih' dety z"k . . . teh nmss dth kvvte ftce fhty anbgbg et/v cht/w stnv fatil

k/tfv.

understand their meaning and their sources, as disregard? Surely the oppo-site interpretation is justified.

This observation, however, is important in understanding Rabad’s com-mon 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 onit. He felt that the Geonic rulings were worthy of being presented as straight-forward Halakhah. Perhaps the unattributed ruling has more effect since itraises no doubts. See n. 49.

36. This reference is noted in the novellae of Ramban (Niddah 19a) and the Ran(Niddah 58b).

37. Specific mention of Geonim is brought as well, when Alfasi brings them. Seethe analysis of Rabad’s mention of precedents in his commentary on BavaKamma, by Ta-Shema (ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z. efon Africa, Part I, p. 206).

38. “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.

39. The works of R. Yehudah of Barcelona are listed by the Tashbez. (responsaPart I, #15):

A work on the laws of damages (the issues discussed in Bava Kamma) is notlisted.

The commentary of Rabbeinu H. ananel, with the exception of a fewtractates, was not available in Provence, as reported by R. David b. ShmuelKokhavi (see footnotes 25 and 31 above). In Rabad’s commentary on BavaKamma, only twice is R. H. ananel cited (on Bava Kamma 24 & 67), and athird time (on Bava Kamma 70a) in his Hilkhot Harsha’ah (Temim De‘im#61), which Rabad refers to in his commentary as well.

R. H. ananel’s commentary on Bava Kamma 67 is misquoted by Rabad.Rabad’s unique version is not only worded differently from the printed com-mentary (published by Mossad ha-Rav Kook, 1991) and the other rishonim’scitation of this commentary (Ramban’s novellae on Gittin 55a, and Rashba’snovellae on Gittin 55a and Bava Kamma 67b), but has a very differenthalakhic connotation as well. (According to the printed edition [as well asRamban and Rashba’s text], a stolen lulav—as well as other articles used toperform a miz. vah—is unacceptable for performance of a miz. vah even whenthe original owner has lost all hope of regaining it. According to Rabad’s ver-sion, however, only what comes for atonement (a sacrifice) is unacceptable.]Interestingly, Rabad elsewhere as well, in his hassagot on Alfasi (Gittin 27a inAlfasi—Vilna ed.), reproduces his unique version of R. H. ananel. It would bean educated guess to say that Rabad did not have access to the original com-mentary, 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.H. ananel 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


tjhcw xiwhu dstkhu, vejs cshbh bahu ant xiw hjx aew caw, tvabh cshbh ntgs

ant xiw vg/hu, tvakhah xiw /hqty arwt/ dstk tbfcs.

trace the source of the following passage (Bava Kamma 51):

The source of this material is found in Tosafot Talmid Rabbeinu Tam (BavaKamma 10a):

2) The printed edition of this Tosafot (Blau, N. Y., 1976), which covers BavaKamma from the beginning through page 61b, cites R. H. ananel’s commentaryonly once, on Bava Kamma 24b—a comment of no unique importance ornovelty. Strikingly, this unexceptional comment represents the only appear-ance of R. H. ananel in Rabad on these pages (the majority of the tractate)!3) It is possible that this was also Rabad’s source for R. H. ananel’s commen-tary on B. K. 70. A partial quotation of R. H. ananel’s commentary on BavaKamma 70a is included in the standard Tosafot (ihkykynt v’’s), and mayhave been included—in its entirety—in the early edition. (The style of theearly Tosafot was expansive, unlike the latter abridged editions of Tosafot.)4) It is possible that this was also Rabad’s source for R. H. ananel’s commen-tary on B. K. 67, since it is identical to Rabbeinu Tam’s opinion cited in thestandard edition of Tosafot (tkug rnt v’’s). The original Tosafot TalmidRabbeinu Tam may have referred to R. H. ananel for support without citingthe text. (If so, Rabad, lacking the precise quotation of R. H. ananel, seeminglypresented R. H. ananel’s novel teaching in the most limited way possible sinceits Talmudic source in Gittin refers only to sacrifices.)Conclusion: Rabad apparently did not have access to R. H. ananel ’s commen-tary on Bava Kamma. However, he seems to have utilized his minimalknowledge of R. H. ananel’s commentary to the utmost.

40. Published by Makhon H. atam Sofer (Jerusalem, 5750). While the count heremay not be exact, the general picture is very clear.

41. Except for two mentions of the talmudic text as quoted by Rabbeinu NissimGaon.

42. One addition can be found near the end of his Hilkhot Lulav, as printed inRabad—Teshuvot u-Pesakim and in the new editions of H. iddushei ha-Ramban (both the Ma‘arava and Zikhron Ya‘akov editions). The other addi-tion is mentioned in the Magen Avot of Me’iri, and in the footnotes in theaforementioned editions of H. iddushei ha-Ramban.

43. Rabad reports:

44. Note that the Geonic rulings mentioned in Sefer ha-Ittur in the section ofHilkhot Lulav, are almost all to be found in Sha‘arei Simh.ah of R. Yiz. h. ak IbnGiat. Even the Ittur’s one reference to the commentary of R. H. ananel is to befound in Ibn Giat. This apparently was his primary source of Geonica on this


tvqav /knhs mwi/h kibh vwc w' hgqc b"g - fhty senwhby tvn/ hvhv kt nh avn/ akt

tniqhby atw ixtkh vntqsahy, eu fy atw tke esu knv kh tvke esu n/ extw cvbev.

tang/h a/hwo kt aha cesu n/ avte nt/w fdty vahbhu vmiwbhu tvgtw tft'.

atw ixtkh vntqsah . . . snngr kvt ntvn/ hvhv kt. tvqav w' khhety sitbrthhea -

eu fy eneh ehmrwhl qwe kngr esu fsswahby atw tke esu jntw tke fkhu

/hitq khv sehy vn/ akt avwh vn/ extw cvbev . . . tbwev kwch k/wo . . . tgts

h"k scesu bnh tvn/ hvhv kt cagwt snt/w tft' . . . nih wch.

ejw fnv znbhy nme/h cvkft/ vwc w' hmjq cy dhe/ zm"k cau vdety wc ikrth

zq"k eaw f/c fh vhca ixtk . . . kfk z' vhnhu. tvte ke vxfhu gnt fh eiaw ake

b/dkv kt rgnt, tfcw cewbt rgnt ak scw hiv hiv.

topic. Rabad, however, did not cite most of this Geonic material in his latereditions, for the obvious reason that they are not relevant to the topics hediscusses there. Most of his work is on questions never raised before in writ-ten form.

45. Me’iri reports (in his Magen Avot, introduction to Sec. 21) on the specificcircumstances:

46. This can be seen in Rabad’s other extant works:In his Hilkhot Netilat Yadayim (Temim De‘im #66-67), Rabad acknowl-

edges that he did not see at least some—and perhaps all—of the Geonic rul-ings 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) healso mentions hearing of this ruling.There are many other Geonic references in the hassagot on Mishneh Torah aswell.

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 Yeruh. am, and R. Nissim b. Reuven are classic examples.

They regularly reproduce interpretive comments and rulings of predecessorsin their own work without attribution, while they are actually endorsingtheir predecessors’ opinion. Why they did this, we can only speculate. Theeffect, however, is clear: an unattributed ruling (or commentary), presentedas straightforward Halakhah, does not raise doubts. Indeed, the Shulh. anArukh also follows this approach. When the Shulh. an Arukh does attribute aruling to ’’ohrnut ah’’ or ’’o’’cnrv ,gs’’ it is less authoritative. Note Solo-veitchik’s comment (“Programmatic Essay” n. 10, see n. 35 above): “Rareindeed is the Geonic ruling which is brought simply as halakhic datum.”Perhaps the simple Halakhic data missing are unattributed rulings.

50.

(I. Ta-Shema , ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z. efonAfrika, 1999, Part I, p. 125.)

51. In his Sefer ha-Ma’or (12a in Alfasi ed., Vilna).52.

It should be noted parenthetically that without support from Rashi’s com-mentary, even R. Zerah.yah does not readily disagree with Geonim. R. Zerah.yahexpresses his fundamental recognition of Geonic greatness and primacy inHalakhah, as he spares Alfasi from severe criticism after discovering that R.Hai Gaon states this opinion:


vkft/ ktkc tewcg/ vnhbhu ajcwu vwc z"k cme/t nqwh/ hgwhu vhe ghw itaqhh-

wha, cxhc/ nkjn/ ejs vawhu eaw bkju gu vaw akt, tvkl kt vwc nau . . .

hmet kqwe/t bfcsh qwqatbv . . . tbg/w kvu thvh au hnhu cch/ vjfu vbfcs w'

nbju cw hmjq, tcch/t jcw vwc vkft/ ktkc ekt.

swft kvg/hq nscwh wc veh cmtwv nhktkh/ tcarp, gk ih wtc cmtwv ebtbhnh/.

nv aixqt vdetbhu nejwh x/hn/ v/knts nsg/ nfwg/ tke nvkfv cwtwv tixtqv

nv/knts - fxtdhhy cgkne vth, tney srgh chv bnh rgh cahqtk vsg/ vth, tke rgv cscw

nabv.

f/c gkv vwh"p z"k . . . tvtv qav kh rtce ixq zv natu ske nang nxtdhe

sdnwe . . . gs aweh/h cihwta c/atc/ aekv kwwcchhbbtt vveehh ddeettyy zz""kkaf/c nctew

ckaty vzv.ttvvwwhh vvttee bbww hhaawweekk,, ggnnttss vvhhnnhhbbhh,, iirrhhaa vvjjzzqq,, eehhyy ccbbtt ffjj kkggnnss cciibbhhtt .. .. ..

)dhrhy kz: csih vwh"p, cgv"n s"v /"w zv dhrl(

53. Katuv Sham p. 198 (Sanhedrin, end of chap. 4). The beginning of this state-ment is cited in Rosh (Sanhedrin 4:6), the end in the Tur (H. oshen Mishpat25). The complete statement is quoted in a responsum of the Radbaz (#1126s.v. im ken).

54. It is clear that the word ’’tmnb’’, in this context, is Rabad’s Hebrew translationof the Aramaic ’’jhfa’’, which even though it literally means “found,” itsactually means “readily found” or “common” (like the word ’’humn’’, from thesame root). Indeed, when Rabad does disagree with a Geonic opinion, it isonly after posing at least one (seemingly) unanswerable difficulty and com-ing to terms with the Geonim’s sources.

See other interpretations of Rabad’s statement by I. Twersky (Rabad ofPosquieres, 1980, p. 221) and S. Havlin (History of the Oral Law and of EarlyRabbinic Scholarship by Me’iri [Jerusalem, 1992], Introduction, p. 44, n. 114,Appendix A, p. 52). According to Twersky: “This statement expresses thatone should not rashly dissent from their views on the basis of superficial dis-agreement.” Havlin takes issue with two of Twersky’s examples:

These two different outlooks—of R. Zerah.yah and of Rabad, as to the degreeof Geonic authority—are noticeable near the opening of Rabad’s polemicalwork on R. Zerah.yah’s Sefer ha-Ma’or, Katuv Sham p. 4, on Berakhot 9a inAlfasi ed.Vilna. When R. Zerah.yah disagrees with a Geonic ruling (withoutsupport from Rashi’s commentary), Rabad lashes out:

55. See Twersky, p. 220 and n. 22.56. On a ruling of R. Mosheh b.Yosef, an earlier Provençal scholar, Rabad

writes:

(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 pre-decessors from Ba‘alei ha-Nefesh:1) In Sha‘ar ha-Perishah (1:2), Rabad has difficulty with the source of a rul-ing of R. Ah. ai: ’’ruxtk uk ihtn’’. Rabad, however finds his own source to sup-port R. Ah. ai’s ruling.2) In Sha‘ar ha-Perishah (1:8), Rabad has difficulty understanding a ruling ofR. Ah. ai: 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 theconclusions:


ebh qtwe gk zvttiittwwoo ddssww hhaaffbbtt bbjjaa, avwh vdety wchbt veh z"k tw"j z"k fl ixqt

fnt af/c vwc . . . tvscw aenwt vdetbhu fnv vte bev tn/tqy tvte kvjnhw,

tehl hnke kc esu kjktq gk scwhvu, tfk afy kvqk.

vmhtbhu kvkh' /ihkv i"e v"h tvad/ vwec"s gk vnetw ixjhu fs: ehbu ntfhjhu

cvfwj awec"s jkq au gk detbhu.

tebh ang/h fh vwc wchbt nav cw' htxp zm"k vtv niwa . . . tebh ke gns/h gk xtp

sg/t gs fnv abhu, tg/v jac/h . . . nxgs kscwht.

5) In Katuv Sham (p. 4):

58. Gittin 37b in Alfasi, Vilna ed.59. Rabad proves this from the passage (Be-Midbar 32:36): “Moses gave the chil-

dren of Gad . . . the kingdom of Sih. on,” which clearly shows that the landacquisition was completed immediately by Moses. The questions from theBiblical source are powerful (kushya mefursemet) by any standard.

60. In Katuv Sham p. 209 on Shevuot, he writes:On p. 210 there, he writes:

61. Beiz. ah 10a in Alfasi, Vilna ed.62. 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.63. Laws of Zekhiyah 3:7-864. Laws of Ishut 6:1465. Rabad, Teshuvot u-Pesakim #26.66. 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 (aspecification that the transaction will be immediate renders any form of condi-tion valid)—the Rabad explains the rationale at length, but reveals no answerto the apparent contradiction from the Biblical source of these regulations.

While a good answer to this question can, I believe, be offered, this isnot the appropriate context for it.

67. Ramban (Gittin 75b) found this responsum and summarizes Rabad’s ratio-nale. Rashba, Rosh, and Ran follow suit. Me’iri (Kiddushin 61a) offers thesame rationale without mentioning Rabad.

68.(I. Ta-Shema, ha-Sifrut ha-Parshanit la-Talmud be-Europa u-vi-Z. efon AfrikaPart I, p. 206).

Despite the fact Rabad wrote hassagot on Alfasi, his esteem of Alfasi wasnot affected, as can be seen from his introduction to his hassagot, cited laterin the present article.

(Atlas, introduction to Rabad’s commentary on Bava Kamma [London-Kaden], 1939, pp. 35, 37.) Furthermore, the so-called hassagot are not all cri-tique. “These notes also contain interpretive amplification of Alfasi’s state-ments and defense of his opinions against other critics” (Twersky, p. 120).Twersky presents an exquisite clarification of Rabad’s reverence-with-cri-tique in his introduction, p. xxi.

69. As reported by R. Avraham ibn Daud (himself a disciple of R. Barukh b.


zv ewcghu abv f/c/hv fy cvkft/ vwc z"k cnx' f/tct/.

vgwf/t vgntqv kwh"p vhstgv hiv du nh/w xiwht, bhfw/ vhrc ny vscwhu . . .

vbv sjq/h e/ vgbhy tiwa/h et/t kih sg/ vdetbhu . . ." "vbv fcw chwwbt vrgn-

hu tvxwbt vxiqt/ tvgnsbt vscwhu gk etibhvu gk sg/ w' hmjq twchbt jbbek z"k

tvathbt ksg/u.

abhu wct/ . . . vhhbt nakhfhu ihwta vdety tw"j z"k ejwh dthbt, trtghu vhhbt . . .

tng/v ha kbt k/itx ihwta vdetbhu . . . tejwh fk ze/ jac/h kvgnhs dhwx/ vwc

. . . tfihwta vdety z"k, tnme/h et/v ngtns/ tn/tqb/ . . .

fcw f/tc fy cvkft/ akh akahu abv

ehy vwec"s nahd gk vwh"p eke n/tl jws/ qtsa tf/knhs vsy kibh wct. tvte

na/sk kvdy gk vwh"p tkqhhu e/ scwht bds vadt/ vwz"v gkht, tfy du cihwtat

kc"q vte ft/c kqhhu scwh vwh"p bds vatekhu gkht.

Yiz.h. ak, 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. Perah. iahShabbat, Makhon Ofek 1988, p. 116):

by Rabbeinu Tam (Sefer ha-Yashar responsa, Berlin, p. 89):

in Me’iri’s introduction to Avot; and in the historical manuscript included inthe responsa of Maharshal (Sec. 29). No other mentors of Alfasi are any-where 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 H. ananel, is irrelevantto our discussion.

70. Here is one example (Gittin 29 in Alfasi ed. Vilna):

It appears that Alfasi is disagreeing with the Geonim (who rule like RavHuna) and putting forth his own opinion (to rule like Rav H. isda). However,an earlier edition of Alfasi is quoted by Ramban (in his Milh. emet HaShemloc. cit.) where he rules the opposite way:

The Geonic opinion here follows Rav H. isda, and Alfasi disagrees by decid-ing, apparently independently, like Rav Huna. By putting the two editionstogether, however, we discover that there are actually two conflicting Geonicopinions! In his first edition, Alfasi rules like one, and in his second editionhe rules like the other. In both editions Alfasi does not mention that he issiding with a Geonic opinion (as is common practice in the literature of therishonim, see fns. 49 and 50).

71. Dynamic exchanges of opinion and argument on Talmudic and halakhicissues existed in the Geonic era as well. See the documentation from theCairo Geniza cited above in n. 12. Rav Hai Gaon, Rav Shmuel ha-Nagid, andRabbeinu H. ananel can be found disagreeing with a precedent Geonic opin-ion. References are cited in S. Z. Havlin’s article “Al ha-H. atimah ha-Sifrutitki-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 oneof the great scholars of the generations that followed. It is logical to assumethat he had full knowledge and understanding of Alfasi’s relationship to theGeonim. A similar assessment of Alfasi’s work can be found in R. DavidKokhavi’s Sefer ha-Batim (Part I, Blau 1978, p.26). Prof. I. Ta-Shema’sassessment, as well, is not similar to Soloveitchik’s:


ttiixxqqtt wwccttee//ee vvkkff//ee ffwwcc vvttbbee. teby ke xchwe ky vfh, eke vkf/e fwc jxse

sxtdhhy ftt/hv fscww kqny.

jzhby ney sixhq fwc jxse. teby ke x"k vfh, swc vtbe wct ak wc jxse tehy

vkfv f/knhs cnqtu vwc, vkfl vkf/e fwc vtbe.

etnw wcbt htxp vkth z"k aqck nwchbt hmjq cgk vvkft/ aqck nwchbt bxhu z"k

cgk ndhk/ x/whu.

cdhwx/ w"j /knhs wc veh tcdhwx/ wchbt w' hmjq ekix /knhst.

xiwt ak vwh"p vte vweaty cxiwt/ vwcbh/ act cet khsh chrth vtku tcwtw

akta/ gntsh vixhqv vghqwhhu ak hvst/ vnzwj: v/knts vcckh gk ih nxtw/

viwabh/ ak wc awhwe twc veh dety )cghqw(, v/knts vhwtaknh gk ih nqtnt

tgwft cihwta wcbt jbbek, tvxcwv gmneh/ gu fj vjhstavvnn//ttyy.

(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, parallelto Rav Ashi, the last of the Amoraim. In another responsum (#115), he citesa list of Geonim which includes R. Isaac. We also find Rabad commonlyreferring to him as ha-gaon R. Yiz. h. ak. R. Yehudah b. Barzelai of Barcelonaalso refers to Alfasi as ha-gaon R. Yiz. h. ak.

74. On R. Zerah.yah’s claim that a responsum of R. Hai Gaon contradicts a rul-ing of Alfasi, Rabad responds (Katuv Sham, on Pesah. im 15a ed. Vilna Alfasi):

75. Rabad writes:

76. See n. 71 above. This same concept is elaborated by R. H. ayyim of Volozhin(Ruah. H. ayyim, Avot 1:4) hundreds of years later:

77. Twersky, p. xxi. The author deals at length with the scope and necessity ofindependence, as seen in rishonim and in Rabad in particular—here in hisintroduction 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 disagreeingon 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 (ShittatKadmonim, Blau, 1981), he is critical of a Geonic interpretation. 3) References for R. Shmuel ha- Nagid and R. H. ananel are cited in Havlin, Alha-H. atimah . . . , 175 n. 120.

79. See Ba‘alei ha-Nefesh, beginning of Sha‘ar ha-Tevilah in Rabad’s early edi-tions, Shinuyei Mahadurot 2 in my edition of Ba‘alei ha-Nefesh, and Toseftaki-Peshutah, Megillah chap. 1, 1136-1138.

80. Responsa of R. Eliyahu Mizrah. i #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 ha-H. atimah ha-Sifrutit ki-Yesod ha-H. alukah li-Tekufot ba-Halakhah (Meh. karimbe-Sifrut ha-Talmudit [Jerusalem, 1983], 150-183).


tehl eiaw ake wev vwc scwh vdety. eck wev tane ke fnt aenw zv, fh ]ehy[

v/atct/ ndhgt/ emkbt ]nstqsqt/[ fnt andhgt/ emku. teu wev fy tke vxfhu

gu v/atcv, hiv gav avwh cdnwe . . .

vbv weh/h cvkft/ vwc ekixh z"k scwhu bikehu nnbh, tetkh nckh wet/ ghbh,

feaw /fvhbv ghbh vwtev feaw vx/fk cghy vana nibh vjkhat/ rcgh. ten/ fh

vhv kh kgmtu ghbh, tkxdtw enwh ih, tkkf/ ejwht ek vhnhy tek vanek nehy brt/.

eck fh vhe nkef/ anhu, tvnkefv dstkv tehy cv /fkh/ kcaw tsu, eck vvggttxxqq

ccvv hhqqcckk aaffwwtt cchhyy nnttrrggvv cchhyy ccaattdddd, gk fy ke bnbg/h nkjia ejwht feaw /ahd hsh

- igu kx/tw tigu kjzq, egi"h aehbh hftk kx/tw, tdu vte ehbt, wq fh v' jio

kngy msqt hdshk /twv theshw.

ttvvtthh nn//eeccqq ccggiiww wwddkkhhvvuu. . . tfnt aenwt jz"k )qhstahy k:( ke hctat tdt' fh hscwt

e/ ethchu cagw, eihkt vec tcbt vwc t/knhst tft', textw kt k/knhs kqck scwh

wct aahhaa kktt qqttaahhtt// ggkkhhvvuutft'. eke vtzvwbt du fy tbh/y kbt wat/ kv/ecq tkkjtu

cscwhu tk/wo qtah/u, tke khae ibh eha wwqq kkeevvttcc vveenn//, eck gf"z hzvw cbiat

nkscw cdetv tdtsk kcc feaw nme nqtu kjktq thsnv fh dstk vte fwct et fnjcw

vxiw eaw vte nahd gkht, thsg ckcct fh fnv ignhu ke hchy scwht tfttb/t . . . tz"a

vth n/ecq fb"k eell cc//bbeehhcgiw wdkhvu, w"k cgbtv tvfbgv.

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 mayrely on a halakhic ruling of an ah. aron who (with strong proof) contests aruling of a rishon. However, as to the Geonim, the Shakh writes:

83. Rosh (loc. cit.) adds: 84. The following passages constitute a fuller statement of Soloveitchik’s position:

No jurist, certainly no religious jurist, dreams of interpreting the lawaccording to his personal inclination; he seeks simply to discover whatthe sources say on the matter. And if he is of any stature, his words willread as a series of objective and ineluctable conclusions. Only by com-paring his solution with those of others does its subjectivity becomeapparent. Law leans towards continuity and has an antipathy to radicalchange; thus the revolutionary jurist must disguise his innovations—attimes even from himself. . . .

Charting Rabad’s accomplishments in terms of predecessors andsuccessors is to see the man from the perspective of the immanent evo-lution of the discipline, to study what forces in Halakhic thought cameto 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 ofdina de malkhuta dina and its halakhic rationale:

According to Soloveitchik, the local Gentile practices recognized by Rabad asdina de-malkhuta were part of “the Provençal and Champagne systems of jus-tice at the time.” Rashbam had previously recognized the practices of the sys-tems 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 risho-nim as to the scope of dina de-malkhuta dina: 1) Whether its authority islimited to the people’s responsibility to the government, or whether itextends to dealings between individuals; 2) Whether it applies when the sec-ular law contradicts clear halakhah.

On the first issue, Rabad and Rashbam share the opinion of rishonimwho maintain that dina de-malkhuta dina also applies to the laws governingdealings 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 onlyto situations where there is no halakhic ruling or Jewish custom violated bydina de-malkhuta:

A different opinion, but also very limiting, is articulated by Rabbeinu Yonah(who had strong ties to Provence):


tnfk nqtu ehy kjktq gk vdetbhu vqsntbhu.

.tnche weht/ kscwht vnqtckhu kebah stwt

fk nxhu tewbtbt/ttnnbbvvddtt//ak nairh nkfhu awdhkhu kvbvhd cnkft/u --shbe

vte, afk cbh vnkft/ nqckhu gkhvu nwmtbu jqh vnkl tnairht, tvkfl shy dntw

vte, tehy knjzhq nnty jchwt gi"h jtq vnkl vbvtd cghw natu dzk.

tfy ebh etnw cfk scw aaeehhyy sshhbbtt nniittwwaa eemmkkbbtt tteehhyy kkbbtt cctt nnbbvvdd hhssttgg, avtkfhu ct

ejw nbvdt/ akvu, ]a[qwtc scw zv kshbe snkft/e shbe, tvu sbhy gk ih

vnbvdt/.

(Aliyyot de-Rabbeinu Yonah B. B. 55a)R. Yiz. h. ak b. Perez. (cited in Mordekhai, Bava Kamma sec. 154), howev-

er, broadens the rule of dina de-malkhuta dina even when the civil laws andpractices contradict the rules of Halakhah. His ruling, interestingly, is specif-ically referring to the Gentile practices regarding pawns. He rules as the civillaw that the lender may cash an unredeemed pawn only after a year, not afterthirty days (the Jewish law, as cited by Rabad in the above responsum).Shakh (H. oshen Mishpat 73:39) infers that this ruling also allows the lender tocash the pawn without a previous demand of repayment (Sachhaftungindeed), even though halakhic ruling requires that he should first demandpayment. According to a possible inference from R. Yiz. h. ak b. Perez. ’s ruling,it allows the lender to take the full value of the pawn (Gentile practice), eventhough Jewish law allows him only the value of the loan. (See discussion inShiltei ha-Gibborim, Bava Mez. i‘a 38b in Alfasi Vilna ed., and in additionalnotes of Shakh, recently published in the Morashah Lehanh. il (or Friedman)edition of H. oshen Mishpat [73:39].)

R. Moshe Isserles (H. oshen Mishpat 73:14, 369:8) relies on the opinionof R. Yiz. h. ak b. Perez. . The Shakh (73:39), however, rules against the Rama,and limits the authority of dina de-malkhuta dina, basing himself on the aboveopinion of Rabad (of Provence).

87. Temim De‘im sec. 50. In Sefer ha-Terumah 49:5:3 there are slight textualchanges (which we enclosed here in brackets). The first question is abridgedin Sefer ha-Terumah: instead of u,tukv kf sug ubfanku u,uspk icutr ,t ;ufk

,u,ba ,tknc the text is: u,uspk upufk.88. The text apparently should be corrected to ubfank tku. Re-arranging the sen-

tence 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 redeemhis mashkonah at the end of the first year, and not just continue holding themashkonah (as pressure and gradual payment) until the debt is paid?

89. This is not to be confused with modern Hebrew usage where mashkantameans mortgage, a security used only as payment of the debt, and not aspressure for payment. The halakhic term for mortgage is apotiki. (See R.Nissim, Gittin 22a in Alfasi, Vilna ed.) Is an unspecified mashkanta also anapotiki, and if so, what form of apotiki? We find various opinions on this inSefer ha-Terumot 43:2:3; 49:5:3.

90. There are various opinions as to the amount that must be deducted. See Seferha-Terumot 46:3:20 (pp. 500-502, ed. Makhon Jerusalem, 1988).

91. Contrary to Soloveitchik’s representation, the query was not: May the pawnbe considered “quit-payment”? For if it were, Rabad’s answer—vfkvv hpku

ihs ,hcc urfun lkhtu ouh ohaukan—does not prove anything. Indeed, Solo-veitchik does not claim that Rabad proved from talmudic law that the lendermust 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) andwhen may he do so; or may he not force any form of payment (even by sell-ing the pawn), only to continue holding onto the pawn as pressure on the


fhty ahftk hawek kftp e/ jcwt cshbh hawek tehy vnkl ftiv et/t ksty cet/y

shbhy tvbvdt/ avbvhd, bnme ake iqg zft/t ak hawek njn/ et/t shbe snkft/e,

eke eu fy vkl jcwt ksty cibh gwfet/ akvy tsbt et/t.

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 holdonto the mashkonah (as pressure on the borrower and as gradual payment).

92. Shevi‘it 10:1, 39c Venice ed.:

93. The law of cancellation of the debt in the seventh year proves that the debtstill exists until then, as clearly explained by the Mahari Curcas (on MishnehTorah, Laws of Shemitah 9:9):

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 inProvence 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 Hebrewsource is quoted explicitly, the words of Rav Moshe b. Todros:

We are given to understand the phrase ’’vhumn vyurpv ihta’’ literally, asthe lack of currency. However, ’’vhumn vyurpv ihta’’ is a popular Hebrewidiom for poverty, and it is likewise explicitly stated: ’’rxju eujs okugva’’.(Even taken literally, the vyurp is the smallest copper coin and has the mostminimal 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 ofcurrency (see pp. 109 and 140) during the 10th and 11th centuries. Rabadwrote his hassagot later than the year 1182 (the year Rambam completedwriting his Mishneh Torah)—long after that period.

97. Rosh (Gittin 1:17) explains the reasoning behind the law of i,aka sngn:

98. Odita, admission, is a practical and powerful method of transferring proper-ty, based on the courts’ acceptance of admission. See Bava Batra 149a. InRabad’s Laws of Harsha’ah (Temim De‘im #61, Rabad—Teshuvot u-Pesakim#141 s. v. hineh dah. akti) we find that odita is effective as a transfer of creditand is not considered as h. av le-aharini to the borrower:

Since the sale of credit by a ma‘amad sheloshtan eliminates the lender-seller’sright to forgive the loan (according to many rishonim, including Rabad in


vnktv e/ jchwt gk nb/ ake k/tcgt, vachgh/ nanrt.

aep gk ih aehbt hftk khdta et/t, fhty avjtc ntrk gkht tvte jhhc kiwtg cfk g/

kme/ hsh anhu.

avgtku sjtq tjxw, tfk vgu bnbghu nkvktt/ ekt e/ ekt, aehy viwtrv nmthv

kvktt/ eha e/ ejht tke kvrhk nkeh kv/gxq ct.

ngns aka/y ghqw vqbhy vhe vkf/e cke rgne, eke nnaattuu //qqbb// vvaattqq,, ssnnhh

aaqqttbbvv xxjjttwwvv tteehhyy cchhsstt nnggtt// .. .. .. ttkkee hhttffkk vvwweeaattyy kknnjjttkk, seu ke fy crkv ghqw

v/qbv, ake hxntl vxtjw gk ngns aka/y fhty ahftk vnktv knjtk.

ekne eihkt cnktv bnh nvbhe cvt etwf/e. teu /enw cnv ztfv cv ha ktnw

nibh ahftk kvqbt/v cetsh/e fngav swce twc newh . . . fseh/e ccce c/we

)sp qnr.(.


following footnote), an admission of the lender-seller that the credit was soldby a ma‘amad sheloshtan will eliminate his right to forgive the loan.

99. One talmudic source, based on the statement of Amemar (Gittin 13b) inexplaining how ma‘amad sheloshtan works, is cited by Rabad himself, asquoted in the novellae of Rashba ad loc. Rashba elaborates as well, explain-ing Rabad’s opinion and his source. Another talmudic source for the aboveruling, 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 thename of Rabbeinu Tam. (This is one of the earliest sources we have on thisruling of Rabbeinu Tam.)

101. Here is the complete text of the Mishneh Torah (Hilkhot Mekhirah 6:12) andHassagot ha-Rabad.

Rabad comments:

In using the word “therefore” (’’lfhpk’’), Rabad limited his own ruling

such that it would apply only according to his own reasoning as to why the orig-nal 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 Rabadknew this. According to what Rabad stated as Rambam’s opinion (andapparently Alfasi’s), a court that follows them would rule that the borrowerdoesn’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 acourt could not decide between Rabad or Rambam, it would rule that theborrower does not have to pay, being a muh. zak; and even if the court wishedto rule like Rabad, perhaps the borrower could legitimately argue: “hk ohe

o’’cnrvf.”103. See Keneset ha-Gedolah (H. oshen 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 indi-vidual and afterwards forgives the debt, it stands forgiven, Samuel agreesthat if it was bequeathed by a shekhiv mera—a deathly ill person—it cannotbe forgiven.” The complete talmudic discussion is as follows:

Alfasi in Ketubot (44b ed. Vilna) explains:

qbhy varwt/ cswl vze/ nscwh xtiwhu eck ny v/twv ehy vweht/ bqbt/ eke dtp

vscw vqbth ckcs. kihfl vntfw arw jtc kjchwt gshhy hftk kntjkt teihkt htwat

ntjkt.

e"e ke ny vau vte zv, eke nibh avktv etnw kktqj ebh ke agcs/h kl e/

gmnh. kihfl eu f/c kt carw jtct tvwhbh natgcs kl tkfk vcehu nfjl ehbt hftk

knjtk nanfw arw jtct.

eu f/c kt carw jtct tvwhbh natgcs kl tkfk vcehu nfjl ehbt hftk knjtk

nanfw arw jtct.

twce enw wc bjny n/b/ afhc nwg nswcby cgkne vhe, ane /rwp sg/t gkht. tnh

enw wc bjny vfh, tve enw wc bjny eg"d senw antek vntfw arw jtc kjcwt

tjzw tnjkt njtk teihkt htwa ntjk, ntsv antek aeu b/bt cn/b/ afhc nwg

sehbt hftk kntjkt. eh enw/ cakne setwhh/e, natu vfh ehbt hftk knjtk. eke

eh enw/ swcby vhe, eneh ehbt hftk knjtk ehbv ak /twv, tgaetv fak /twv.

!

107. Ramban Kiddushin 48a:

108. Gittin 37a: 109. Even though we find elsewhere in the Talmud (Bava Mez. i‘a 82a, Shevuot 44a):

See Ramban’s explanation in his Milh. amot 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:

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 quota-tion, does not contradict this statement.

When an opinion is based on a sincere quest for Truth, it is considereda form of Truth: “elu ve-elu divrei Elokim h. ayyim.”

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 therevisions were mainly due to the Razah’s critique. In his notes on Hassagotha-Raz. ah, he claims to demonstrate this, but, with a few exceptions, ratherunconvincingly. This is discussed in my introduction to his edition of Ba‘aleiha-Nefesh, p. 13. This issue is also discussed by Ta-Shema in Zerah. yah ha-Levi: Ba‘al ha-Ma’or u-Benei H. ugo, 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 ha-Tevilah 1:7, Sha‘ar ha-Mayim 1:5.

117. Rambam’s opinion (Ma’akhalot Asurot 12:12, 13:24) is identical to Rabad’searlier opinion in his commentary on Avodah Zarah 72b. Rabad rewrote hiscommentary, as he reports in a responsum (Temim De‘im 113). This lateredition, however, is not extant. Rabad explains the reasons for this change ofopinion in another responsum (Temim De‘im 111).

118. In the early editions of Ba‘alei ha-Nefesh (Sha‘ar ha-Mayim 1:3 shinuyeimahadurot 2), in his commentary on Eduyot (7:3), and in his hassagot on


tnveh rgne ehy htwa hftk knjtk - natu sn/b/ afhc nwg gaetvt fn/bv set-

whh/e snrhe khv khshv snqck, tvhhbt senwhby scwh afhc nwg ff/tchy tfnxtwhy

snt, tnatu vfh ke hfhk htwa knjtk, skh/ khv neh snjhk. tcvshe enwhby ciwq

nh an/ )cce c/we sp qnz:( srgne sveh nhk/e fsf/chby, senwhby v/u: enw

wce e"w bjny tft' )vwh"p nnahl kvg/hq e/ katy vdnwe( . . . eh enw/ swcby

eneh ehbt hftk knjtk. tiwhq: ehbv ak /twv tgaetvt fak /twv snrhe khshv

snqck. tang/ nhbv snatu sgaetv fak /twv vte sehbt hftk knjtk tft'.

knsbt . . . eu vbhj kt nafty gkht tnfwt, tnxw kt kktqj naftbt tjzw tnjkt ehbt

njtk, aeu ]ke[ fy vhel eav n/qsa/ ct . . . eke ang nhbv njkt ehbt njtk.

enw wch hmjq: nbhy kcgk jtc aqtbv nafty abenw tkl /vhv msqv . . . ?

ehntw senw w' hmjq cnafbt ake cag/ vkte/t eck nafbt cag/ vkte/t nh

enw.

vwc hmjq vikhe scwht cfey . . . t/nvt gkht wchu . . . tebh ghb/h ttjjaacc//hh nneess

ccssccwwhhuu kkvvggnnhhss ssccwwhhtt,, ffhh eehhll hh//ffyy tteessuu jjaattcc ffnnttvvtt eehhll hhrrggvvcscw iatr fzv

nckh rgu, tweh/h fh ha kvgnhs scwht . . .

Mishneh Torah (Parah 6:10), Rabad rules that a majority of spring watermixed with other water is considered mayim h. ayyim. In one manuscript(Vatican Library) of Ba‘alei ha-Nefesh (Sha‘ar ha-Mayim 2:16), he explainsthe possibility that there must be 100% spring water—which is actually theopinion of Rambam (Mikvaot 9:9, Parah 6:10) that he had previously criti-cized. In an almost identical manuscript (Sifriyah ha-Leumit), however, thisaddition is not found. This is perhaps the last modification Rabad made tohis Ba‘alei ha-Nefesh.

119. Rabad, Teshuvot u-Pesakim # 22120. 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 byI. 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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