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JUICE 2000 Jewish University in CyberspacE

I want to begin this week's mailing with a very short snippet from the most recent chat session.

Avi> Yes, regarding Takkanah. Other Takkanot would include the Ketubah and the Prosbul

Slivko> which are...

Avi> The Prosbul was a takkanah enacted by Hillel that allowed the lender to get back his money even during the sabbatical year. This would prevent people from not giving loans. The Ketubah was instituted by Shimon ben Shetah to protect women who, until then, could be divorced without a settlement.

Slivko> What do these two have in common?

Werner> Seems that both acknowledged the halakhah but created ways in which we follow the spirit without violating the letter.

Slivko> Yes, it preserved the halakhah by making it more accommodating, more liveable.

Werner> That explains the two worlds again. The halakhah had to maintain spirituality but people had to live it.

Slivko> Even if it meant putting people in a situation where they have to swear despite the "spiritual" misgivings over the process.

The session itself covered the issues raised in the Gemara which had been trying to determine the "ownership" of the Mishnah by comparing its ruling with those of other Tannaim. In so doing, the Gemara was trying to discover the klal of the Mishnah, and from there the unifying foundation of the halakhah. This is a pattern that is repeated throughout the Talmud as the Amoraim try to discover what are the pillars of the world (see the Mishnah in the first chapter of Avot).

As you can see from the discussion in the Gemara, the Mishnah may be an example of a Takkanah, that is, an exception to the rule. The Hakhamim often felt compelled to institute Takkanot as "course corrections" based on changes that occurred through time and geography. In our case, the Gemara says that the idea of taking an oath in our Mishnah may be such a Takkanah enacted to prevent people from taking what is not theirs. But what are the conditions that compelled the hakhamim to enact a Takkanah? What are the applications and what are the limitations? As a result of the short shrift we gave these questions during the discussion, I have elected to move on to a topical approach rather than a "textual" approach.

Much of the material cited here relates to the listing in the Encyclopedia Judaica (Computerized format).

Definition and Substance:
The hakhamim had mandate to interpret the Torah into a contemporary code of practice. Using Midrash as their tool they broadened the scope of the torah text and extracted klalim which became the bases for their rulings. An example would be the Shema. The first Mishnah in Berakhot begins with the question "From when do we recite the Shema in the evening?" Nowhere is the question raised "How do we know that we have to recite the Shema at all?" The Torah itself doesn't say this with any clarity. This presumption of halakhah points to an early Midrashic source. The goal: to bring the Torah and its spiritual value into the mundane, that is, to imbue the "hol" (secular) with "kedushah' (sanctity).

But what if the halakhah accomplishes the opposite? What if strict adherence profanes the sacred? What if the circumstances for the Halakhah no longer apply?

When that occurred, the hakhamim saw their mandate as "metahalakhic", that is, in order to save the Torah they needed to be able to tailor it to fit their needs. This was neither done arbitrarily nor often. And when it was done, it was done with the belief that it did follow the dictates of the Torah as stated in Devrim (Deutoronomy) 6:17 "And you shall do what is right and what is good")

Thus was born the institution of Takkanah (from the word tikkun, fixing or repair).

Menachem Elon in The Encyclopedia Judaica defines Takkanah as "the motivated addition of a new norm to the overall halakhic system." This is opposed to a halakhah derived by Midrash which reveals "the concealed content of existing law." This is the key difference between what we call d'Oraita (that is, from the Torah) and d'Rabbanan (eenacted by the rabbis). That the hakhamim could enact such laws is based on a passage in Devarim 17:11 "According to the law which they shall teach thee and according to the judgment which they shall tell thee, thou shalt do; thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left"

The Takannah was instituted to motivate people to perform mitzvot (eg. the prosbul of Hillel or the recitation of berakhot). Another form of Takannah is the Gezerah, an enactement that prevented one from violating a miztvah. This follows the rubric of the Mishnah in Avot that states that we should build "a fence around the Torah (eg. muktzah, ormoving an object on Shabbat which cannot be used on Shabbat) "

When were Takkanot enacted?
Takkanot were enacted for the following reasons:

1. to fill a gap in the law created by changed realities. In this event the takkanah generally serves to add to the existing halakhah;
2. to amend existing halakhah to the extent that this is dictated by the needs of the hour. This is called "hora'at sha'ah"

In seeking the 'takannaitic" solution to a problem the hakhamim forst had to reassure themselves that there was no midrashic solution or precedent. To create a Takannah without first doing so would constitute an innovation that they deemed inappropriate. After all, they were also bound by the command to neither add nor detract (Devarim 4:2). Only when interpretation was not a means to a solution did the scholars resort to takannah.

It is for this reason that the Talmud distinguishes between laws which are d'Oraita and those which are d'Rabbanan. The former always takes precedence over the latter. That is why, for example, we fast on Yom Kippur even when it falls on Shabbat (since both are d'Oraita but not on any other fast day which falls on Shabbat (since all other fast days are d'Rabbanan). In adition, many Takkanot are deemed temporary, which is not the case with mitzvot that are d'Oraita.

The Prosbul:
One such Takannah which we can discuss is the Prosbul.

The Prosbul was a response to popular reaction to the Sabbatical Year. Every seven years, not only were the fields to lie fallow, but all loans were annulled. Hillel, in the time of the Mishnah, saw that the people refrained from giving loans one to another before the Sabbatical Year, thereby transgressing "Beware that there be not a base thought in thy heart," etc. (Deut. 15:9). Therefore, he instituted the prosbul, from the Greek meaning "before the assembly (boule).

The text of the prosbul reads, "I declare before you, so-and-so, the judges in such-and-such a place, that regarding any debt due to me, I may be able to recover any money owing to me from so-and-so at any time I shall desire." The prosbul was signed by witnesses or by the judges of the court before whom the declaration was made

This ruling is based on the verse "and this is the manner of the Shemittah (Sabbatical): every creditor shall release that which he has lent unto his neighbor; he shall not exact it of his neighbor and his brother... [A loan] of a foreigner you may exact, but whatever of yours is with your brother you shall release" (Devarim 15:2, 3). From this verse we determined (via Midrash) that the operation of the year of release did not affect debts whose promissory notes had been delivered to the bet din before the Sabbatical Year took effect. The Court was regarded as a corporate body to which the word "brother," suggesting an individual, did not apply. The court would therefore collect its debts after the Sabbatical Year. This is similar to a "Power of Attorney" to collect the debt on behalf of the lender.

The root of the Takannah lies in the power of the court to declare that certain items were "hefker" (ownerless) and take ownership themselves.

It was only permitted to write a prosbul when the debtor possessed some real property from which the debt could be collected. The rabbis were very lenient with this rule, however, and permitted the writing of a prosbul even when the debtor possessed a minute amount of land such as a flowerpot or the trunk of a tree.

Later generations of Amoraim debated the value of the Prosbul. Samuel declared that if he had the power he would abolish it, while R. Nahman held that even if no prosbul was actually written it should have been regarded as written. Samuel also maintained that only the leading courts of each generation could supervise the writing of a prosbul. Subsequent practice, however, entrusted all courts with this responsibility.

The Prosbul is but one example of how the Hakhamim tried to apply the Torah in practice and spirit to everyday life. As you see, they were careful in that application. Even with the care exercised, future generations still debated the validity of the Takknnah. And yet, even as they debated, they themselves were reluctant to revoke the rulings of the previous generations of Hakhamim.

Questions for thought:

1. Throughout history, Hakhamim have had to deal with changes that affected Halakhic practice. In our own day, we are struggling with the issue of change. We have seen how previous generations coped with change in their time. What lessons can we learn from how the Hakhamim responded to issues in their times to such deal with such contemporary issues as Agunah (a woman who is unable to marry again because her husband refuses to give her a "get"), conversion or Jewish descent?
2. What other problem areas do you see on the horizon?
3. What tools do you think can be used to resolve or prevent these problem areas?"