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Circumvention of the Law in Talmudic Literature
Published online by Cambridge University Press: 12 February 2016
Extract
A cursory examination of the Talmudic sources relating to circumvention of the law is sufficient to show that two approaches exist, one affirmative and permitting it and one negative and forbidding it. “A person may contrive to bring his produce in whilst still in its chaff so that his animal may eat it without its becoming liable to tithe”. “A person may contrivingly mix his grain with stubble in order to exempt it from tithe”. There are many similar dicta. On the other hand, for example, in the Tosefta Taharot we find in a number of matters “provided he does not act contrivedly for if he does they are impure”.
Can these sources be reconciled to give a more or less clear picture of the way in which the rabbis approached the question of circumvention of the law? Rosh (R. Asher b. Yehiel, Germany, Spain c. 1250–1327), for instance, conscious of the attendant difficulties, observed with regard to rules of rabbinical provenance: “Not every circumvention… is the same. Some are generally permitted… Others are permitted only to students of the law… Still others are entirely forbidden and the rabbis treat them more rigorously than deliberate acts… And then there are those over which opinion is divided”. Rosh thus sets out the problem but suggests no solution. In the view of the present writer the sources lend themselves to systematic explanation which rebuts the remark of Rashba (R. Solomon Ibn Abraham Adret, Spain c. 1235–1310) that no two cases of circumvention are alike.
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References
1 Berakhot 31a; Pesahim 9a; Avodah Zara 41b; Niddah 15b.
2 P. Berakhot V, 1 (8, d).
3 Taharot X, 8; ibid., X, 12; Parah IV, 13; Kelim B.M. V, 14; Oholot VIII, 4.
4 Piske HaRosh, Shabbat XX, 5.
5 Hiddushei HaRashba, Bezah 11b, s.v. “R. Ada b. Ahavah”.
6 See e.g. Shabbat 38a; P. Kiddushin III, 4 (64a); P. Pe'ah I, 5 (16,c). In Scripture the root “u'rm” sometimes relates to shrewdness and prudence without a negative connotation, as in the verse “To give prudence (u'rmah) (sharpen the wits) to the simple (ignorant), to youth knowledge and discretion (foresight)” (Proverbs 1:4). Even in the Bible, however, it is most commonly used to denote a sense of contrivance and wiliness as it does today in modern Hebrew.
7 Tmurah V, 1.
8 Atlas, S., Netivim beMishpat Halvri (New York, 1978) 224.Google Scholar On legal fiction, see Fuller, Lon. L., Legal Fictions (Stanford U.P., 1967)Google Scholar; Vaihinger, H., The Philosophy of “As if”—a System of the Theoretical, Practical and Religious Fictions of Mankind (London, 1924)Google Scholar a translation of a nineteenth century German work.
9 Buller v. Wisconin 36 S.Ct. 473, 474 (1916).
10 Much has been written about the Prosbol. See Rakower's, N.bibliography Otsar HaMishpat (Jerusalem, 1975) 152–53Google Scholar; Silberg, M., Talmudic Law and the Modern State (New York, 1973) 37–41.Google Scholar
11 Silberg, op. cit. at 33–34; Rakower, N., HaShlihut veHaHarsha'ah baMishpat Halvri (Jerusalem, 1972).Google Scholar
12 Me'ilah 15b. This is implicit in Numb, xv, 20.
13 Thus in Maimonides' code the law relating to hallah does not appear in the part dealing with trumot but bekhorot.
14 See p. 155 below.
15 Berakhot 31a, but cf. Emmanuel, Y., “Ma'arim Adam al Tvuato” (1979) 19 Hama'ayan 34Google Scholar n. 2 and Kook, S. H. in Iyunim uMehkarim (Jerusalem, 1959), vol. 1, pp. 72–73.Google Scholar
16 Atlas, op. cit. at 226–28, n. 5, who shows that Rashi's understanding of the expression, that such statements present no difficulties that require attention, is not quite correct. But Atlas' own effort to explain the expression is not sufficiently persuasive. See S. H. Kook, op. cit., at 72–76 who is of the opinion that it refers to a rule which is not universally accepted but only accepted as law for those who transmitted it, which is also far from convincing. In the Palestine Talmud the expression is “a fixed rule of law” instead of the Babylonian “decided”: P. Berakhot V, 1 (8,d).
17 I am inclined to accept the view of Ginsberg in Perushim veHiddushim ba-Talmud, pp. 119–20, that R. Hoshayah, a younger contemporary of the editor of the Mishnah, is meant and not the Amora of the same name. Not all scholars think that this is correct. The author of Dikdukei Sofrim to Berakhot 31a leaves the question open. One of the main grounds for Ginsberg's view is the use of “Tani R. Hoshayah” in P. Berakhot IV; 1. This view is supported by another source, also dealing with a case of circumvention that R. Hoshayah permitted where the term “Tani” is again used: “The Mishnah refers to large utensils but in the case of small utensils one avoids the law and they are ritually immersed. And R. Hoshayah taught (“tani”): A person fills a defiled utensil from a well and circumvents the law and immerses it. And we have learned if his pail fell into the well or his utensil fell into the well he contrivedly has ritually immersed.” (P. Terumot II, 1).
18 Berakhot 31a; Pesahim 9a; Avodah Zara 41b; Menahot 67b; Niddah 15b.
19 Opinion differs among the commentators as to whether these rules are indeed the same. See Ginsberg, op. cit., who thinks that the two Talmuds take opposite views. See also Ratner, , Ahavat Zion v'Yerushalayim on Berakhot, p. 120Google Scholar, but cf. for example Gilyonei HaShas to P. Berakhot V, 1 (8,d).
20 p. Berakhot V, 1 (8,d).
21 See Rashi, Tosefot Judah Serlio, R. and Meiri, to Berakhot 31aGoogle Scholar; and David, R.Bonfiľs commentary to Pesahim 9aGoogle Scholar; Rashba Resp. I, 361.
22 See the authorities cited in n. 21 above and Hiddushei HaRan to Pesahim 9a; Hiddushei HaRamban to Avodah Zara 41b; Tosefot Menahot 67b; Tosefot Niddah 15b; Tosefot HaRosh Niddah, ibid.; S. Goren, HaYerushalmi Hamefurash to Berakhot V, 1.
23 As to whether circumvention is initially permissible or initially forbidden but valid ex post facto, see p. 163 below.
24 At least in its original formulation, a negative approach is not implied. Later possibly this mode of circumvention fell into disfavour. See Menahot 67b and p. 163 below.
25 See Dikdukei Sofrim to Berakhot 35b regarding “courtyards”. It would seem more correct to omit this as in the parallel passage in Gititi 81a.
26 Berakhot 35b.
27 This according to the printed texts. The better text is “Rabbah b. Bar Hanah said in the name of R. Yohanan” or “Rabbah b. Bar Hanah said in the name of R. Judah b. Ila‘i”. See Dikdukei Sofrim ad locum. This matter seems to derive from P. Ma'aserot III: 1: “R. Ullah b. Yishmael in the name of R. Lezer, Rebi and R. Jose b. R. Judah used to bring in produce over the roofs. R. Judah b. R. Ila'i saw them and said to them: See how you differ from earlier generations. R. Akiva used to take three types of crops for a prutah in order to take tithe from each one of them, whilst you bring in your basket of crops over the roofs”.
28 Berakhot 35b.
29 See p. 163 below.
30 P. Ma'aserot III, 1 (50,c).
31 Lev. xxvii, 31; M. Ma'aser Sheni IV, 3; M. Baba Metsia IV, 8.
32 Pesikta Zutra Behukotei, Lev. xxvii, 31; Baba Kama 69b.
33 M. Ma'aser Sheni IV, 3, IV, 4 (55a) in the Venice edition.
34 M. Ma'aser Sheni IV, 4; Gitin 65a. See also P. Ma'aser Sheni IV, 2.
35 M. Ma'aser Sileni IV, 5; Baba Metsia 45b–46a.
36 See Tosefta Ma'aser Sheni IV, 3; “One acts shrewdly with the second tithe in order to exempt it from the additional fifth. A person can tell his grown-up son and daughter or his Hebrew bondsman: ‘Here is some money; go and redeem the tithe with it’. He should not say: ‘Redeem it for this money’. R. Yehoshua b. Korha said that people did so originally, but when deception spread, a person would say to a companion: ‘I give this yield to you as a gift’, and he repeats and says: ‘they are redeemed in lieu of the yield I have at home’, but he should not say that it is redeemed in lieu of the money I have in my purse until the owner transfers title to him or leases to him the actual place where the crops are”. The reason for the change from a transfer of money to a transfer of the yield is explained in P. Ma'aser Sheni IV, 3: “At first they gave money which was taken and absconded with. It was then enacted that the yield should be given”. Further, ad locum, it is pointed out that even the latter method did not prevent absconding so a different method for avoiding the law was devised at a later period.
37 Cf. the differing commentators to the Mishnah and P. Talmud, ad locum. See also Hatam Sofer Resp., Or. H. 62.
38 “And if the way be too long for thee, so that thou are not able to carry it, because the place is too far from thee, which the Lord thy God shall choose to set His name there, when the Lord thy God shall bless thee; then shalt thou turn it into money and bind up the money in thy hand, and shalt go unto the place which the Lord thy God shall choose” (Deut. xiv, 24–25).
39 P. Ma'aser Sheni IV, 3 (55a).
40 See Hatam Sofer, op. cit., who explains the circumvention as encouraging the flow of money to Jerusalem instead of produce because the promised blessing refers only to the former. Cf. Learned Hand in one of his decisions: “a transaction otherwise within an exception of the tax law does not lose its immunity because it is activated by a desire to evade taxation. Any one may so arrange his affairs that his taxes shall be as low a possible; he is not bound to choose a pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes”: Helvering v. Gregory S. F. 2d, 224, 225. And see: Chirelstein, Marvin A., “Learned Hand's Contribution to the Law of Tax Avoidance” (1967–1968) 77 Yale L. J. 440–474.CrossRefGoogle Scholar From the above example, and from other examples, it appears that Jewish law does not ascribe to the doctrine of “lifting the veil” which is more or less accepted in other legal systems, and Jewish law is also not willing to void transactions to a “straw man”, as is usually the case in other legal systems.
41 M. Haltah I, 3; M. Pe'ah I, 6; M. Shevi'it IX, 1; M. Trumot I, 5; M. Ma'aserot I, 1.
42 Baba Kama 28a and 94a; Nedarim 44b; Hullin 134b; Tmurah 6a; Niddah 51a.
43 Nedarim 45a.
44 Ibid., 43a.
45 Tosefta Ma'aserot III, 11; Nedarim 43a–45a: Cf. P. Pe'ah VI, 1 (19,b).
46 See Tosefot, Rosh and Ritba to Nedarím 45a; Tosefot to Shabbat 18b and to Pesahim 4b and Baba Metsia 30b; Ramban at the commencement of Pesahim; Nimukei Yosef to Baba Metsia at the end of the second chapter; Metri to Nedarim ibid.
47 Cf. Marluyn, , First Principles of Human Law (Capetown, 1954), p. 137Google Scholar; “It cannot be stated too emphatically that there can be no such thing as ‘evasion of law’; the phrase itself is completely devoid of any meaning whatsoever: any specific act on the part of any given citizen at any given time is or is not an infraction of the law as it exists at that time, and it is the judge's duty, as interpreter of the law, to state whether or not that specific act did or did not constitute an offence against the law as it existed at the time the alleged offence was committed;… if a law is so badly framed that it fails to fulfil its intent, then it must be re-drafted”.
48 It is not clear to whom “men of wealth” refers and how they tried to circumvent the law. The commentators took different views; see for example Rashi to Menahot 67a and Maimonides Trumot IV, 15.
49 Menahot 67a.
50 Maimonides, op. cit.
51 Rashi, loc. cit.
52 Sifrei Zuta, Shelah; M. Eduyot I, 2; Eruvm 83a-b; Pesahim 48a; M. Hallah IV, 3.
53 Menahot 67a-b.
54 Meiri to Hallah, Chap. 2, explaining the second Mishnah.
55 Tosefta Shekalim, commencement of Chap. 1; Yevamot 89b; Gittin 36b.
56 Sifrei Zuta, loc. cit.; Eruvin 83b.
57 Maimonides, Bikhurim VI, 16; Sh. Ar. Y. D. 326.
58 See p. 160 above.
59 See text to nn. 1 and 2 above.
60 Menahot 67 a–b.
61 Ibid., 67b.
62 See n. 27 above. The two were respectively the student and son of R. Judah b. Ila'i. Probably because of the close relationship, he allowed himself to preach morals to them in the manner of his own master R. Akiva. The continuation of the incident as related, again indicates surprise at their action. Apparently, R. Jose was consistent in his view that the law permitted the circumvention, since in two matters affecting the Sabbath he disagreed with the rabbis and permitted circumvention: Tosefta Shabbath XIII, (XIV) 7 and Shabbath 117b. The printed text of P. Shabbath XVI, 3 should be amended to read R. Jose b. juaah instead of R. Jose b. R. Bon. Similarly he allowed circumvention in connection with prohibitions regarding Festivals. Mo'ed Katan 12b.
63 See for example Urbach, E. E., “Political and Social Tendencies in Talmudic Concepts of Charity” (1951) 16 Zion 1, 11.Google ScholarOppenheimer, A, “The Separation of the Firts Tithe in Practice during the Period of the Second Temple”, Volume In Memory of Benjamin De Fries, (Jerusalem, 1969) 70Google Scholar, 80, writes; “The sages themselves were aware of the difficulty in observing the precept of ma'aserot in all its details and within the framework of the Halakhah they made concessions and allowed circumventions of various kinds, which in certain instances enabled the avoidance of the separation of ma'aser. Although these rules figure most prominently in the period after the destruction of the Temple, they have their roots in the preceeding period”.
64 Tosefta Ketubot V, 1; P. Yevamot IV, 12.
65 Kiddushin 75a.
66 Sifrei to Numbers XVIII: 11–13.
67 See the entry “Arusa” in the Talmudic Encyclopedia.
68 Similar to the fictitious marriages of present times : Silberg, op. cit. at 27.
69 Baba Metsia 101b.
70 Baba Balra 174b; Arakhin 22a–b. These explanations may be independent or cumulative. The commentators differ on this point.
71 Ibid.
72 See Rashba Resp. Ill, 292.
73 On these and other matters—including the second category of circumvention mentioned in the introduction to this essay—see at greater length the present writer's “HaHaramah baTahnud”, (1981) 8 Shenaton HaMishpat Halvri 309.
74 Baba Metsia 30b. See Shilo, S., “On One Aspect of Law and Morals in Jewish Law: Lifnim Mishurat Hadin” (1978) 13 Is.L.R. 359.Google Scholar
75 Here as elsewhere, even if the act is a negative one and forbidden, it remains valid. This is another example of a far wider problem in Jewish law, lex imperfecta, which goes beyond our present purpose and calls for individual treatment.
76 A similar approach may possibly be observed in another area, of that of the validity illegal acts or contracts. A. Shochetman in his comprehensive and basic study of the subject, Ma'aseh Haba B'Averah (Jerusalem, 1981) 255, writes: “Every legal act arising out of an illegal contract is of full effect… The obligation is binding even though its effectuation is forbidden… In those cases where the court is of the opinion that it would be unjust to enforce the obligation arising out of an illegal contract, it may penalise the plaintiff and deny him his right”.
77 See the references to such attempts on the part of debtors in the index to Elon, M., Herut HaPrat BeDarkhei Gviyat Hov BaMishpat Halvri, (Tel Aviv, 1964) 283.Google Scholar
78 See for example Tchernowitz, Ch., Toledot Ha-Halakhah (New York, 2nd ed., 1945) vol. I, pp. 179Google Scholaret seq.; Falk, Z. W., Introduction to Jewish Law of the Second Commonwealth (Leiden, 1972) vol. I, p. 21–23.Google Scholar
79 Commentaries on the Law of England, vol. 3, ch. 4, p. 43.