1. Shulḥan ‘Arukh, Ḥoshen mishpat 1:1.

2. Shulḥan ‘Arukh, ’Even ha-‘ezer 134:5.

3. See the words of R. Yoḥanan in B. Yevamot 46b and Tosafot there (s.v. “משפט”); Naḥmanides's second explanation, and Ritba's, on B. Gittin 88b; but see also Rashba in Yevamot and in Gittin; Beit Yosef, Ḥoshen mishpat 1.

4. See at length Amihai Radzyner, “Yesodot dinei kenasot ba-mishpat ha-talmudi” (PhD diss., Bar-Ilan University, 2001), 152. The only exceptions in geonic literature are the author of the She'iltot (Mirsky, Shmu'el Kalman, ed., She'iltot de-R. Aḥai Ga'on, vols. 1–2 [Jerusalem: Sura, 1982]Google Scholar) and the responsum of Rav Natronai Bar Hilai Gaon (ed. Robert Brody, [Jerusalem: Ofeq Institute, 1994]), 512; Epstein, Avraham, ed., Ma‘asei ha-ge'onim (Berlin: Hevrat Meitse Nirdamim, 1910)Google Scholar, 72, in which the matter of agency appears in the last fragmentary sentence of the response and is not clear, and in Ma‘asei ha-ge'onim the continuation belongs to a different response. The Geonim's rejection of the idea of “as their agents” was noted by Newman, Julius, Semikha [Ordination] (Manchester: Manchester University Press, 1950)Google Scholar, 34.

5. Mishneh Torah, Sanhedrin 5:8. Even in Maimonides's own approach there is a question as to how much he really regarded agency as the basis of the authority of judges outside of Palestine. This was noted by some of the Aḥaronim. See Herẓog, Yitẓḥak Halevi, Teḥukah le-Yisrael ‘al-pi ha-Torah, ed. Warhaftig, Itamar (Jerusalem: Mosad ha-Rav Kook, 1989)Google Scholar, 3:297.

6. Albeck, Shalom, Pesher dinei ha-nezikim ba-Talmud (Tel-Aviv: Devir, 1965)Google Scholar, 91. See also Albeck, Shalom, Batei ha-din be-yamei ha-Talmud (Ramat-Gan: Bar-Ilan University Press, 1980), 97–98Google Scholar, and other scholars such as: Zuri, Jacob Shmuel, Toldot ha-mishpat ha-ẓiburi ha-‘Ivri, book 3, part 1 (London: Narodiczky print, 1933)Google Scholar, 181; Zuri, Jacob Shmuel, Torat ha-mishpat ha-’ezraḥi ha-‘Ivri: mishpat ha-nezikin (London: Urim, 1937)Google Scholar, 316; Aptowitzer, Victor, Meḥkarim be-sifrut ha-ge'onim (Jerusalem: Mosad ha-Rav Kook, 1941)Google Scholar, 111; Quint, Emanuel B. and Hecht, Neil S., eds., Jewish Jurisprudence: Its Sources and Modern Applications, vol.1 (Chur: Harwood Academic Publishers, 1980), 79–80Google Scholar; Berger, Michael S., Rabbinic Authority (New York: Oxford University Press, 1998), 50–51Google Scholar, 53. In the remarks cited above, Albeck connects “agency” with the justification of “improving the world.” Indeed, we have found a similar connection in the writings of the Rishonim, who connect “as their agents” with the explanation of not “locking the door” to loans.

7. Similarly, the rabbis attribute various regulations and rulings to biblical authority (Moses, Joshua, Solomon, Ezra), to ancient sages (the court of the Hasmoneans), etc. In this connection, see ’Aminoaḥ, Noaḥ, “Takanot Yehoshua ben Nun,” Shenaton ha-mishpat ha-‘Ivri 9–10 (1982–83): 301–327Google Scholar, esp. 302–306.

8. Moshe ‘Amar, Shlomo, “Divrei berakhah,” in Kenes ha-dayyanim 5768 (Jerusalem: The Rabbinical Courts Management, 2009)Google Scholar, 11. See also his lecture: “Sheliḥ’utayhu de-kamai ‘avdinan,” Kenes, 13–24.

9. Cohen, She'ar-Yishuv, “Kefiyat ha-get ba-zman haze,” Teḥumin 11 (1990)Google Scholar: 196.

10. Piskei din rabaniyim 17 (1997)Google Scholar: 152. On the influence of the status of present day rabbinical courts on the capacity to adjudicate various cases of damages, see, for example: Warburg, Yehuda, “Harnessing the Authority of Beit Din to Deal with Cases of Domestic Violence,” Tradition 45, no. 1 (2012): 37–59Google Scholar, esp. 41 and the sources there in n. 26.

11. Friedman, Shamma, “Hosafot ve-kit‘ei sevarah be-perek ha-ḥovel,” Tarbiẓ 40 (1970)Google Scholar: 427; ‘Aminoaḥ, Noaḥ, “Mumḥim be-masoret ha-halakhah,” Dinei Israel 8 (1977): 167Google Scholar; Radzyner, “Yesodot,” chap. 8 esp. 188–189. Indeed, it is quite clear that the sugya in Bava Kamma uses the principle that emerges from our sugya, and only when it is not sufficient, it adds the principle of financial loss.

12. The version cited below is that of the Vilna edition. Significant textual variants have been presented in the notes according to the textual witnesses in the Lieberman Institute's Talmud text databank CD-ROM and in the databank of Yad Ha-Rav Herẓog. There are two Genizah fragments of this sugya: Oxford Bod. Heb. b. 10 (16) [2833] and TS F4.97; and four manuscripts: 1. Vatican 130; 2. Vatican 140; 3. Munich 95; 4. Leningrad-Firkowitz 187. The two first printings: Dimitrovski, Ḥaim Zalman, Seridei Bavli (New York: JTSA, 1979), 3:361–362Google Scholar and the Soncino edition of 1488. For information on the textual witnesses, see: Feldblum, Meir Simhah, Dikdukei sofrim: masekhet gittin (New York: Horeb, 1966), 9–14Google Scholar; Porush, Hillel, ed., Talmud bavli ‘im shinuyei nusḥa'ot mitokh kitvei ha-yad, Gittin 1 (Jerusalem: Yad Ha-Rav Herẓog, 1999), 31–69Google Scholar. In addition to the direct witnesses, the text of the She'iltot should be examined: Mirsky, She'iltot, 23, where the beginning of the midrash of R. Tarfon is presented (as in all the manuscripts); in print: R. Meir and then the story of R. Joseph and ’Abaye. See also Mirsky, She'iltot, vol. 3 (Jerusalem: Sura and Mosad Ha-Rav Kook, 1963), 169–170.Google Scholar

13. In the Leningrad MS: “גיטא”; in fragments of the Talmud: “אגיטין.”

14. In the Munich and Leningrad MSS: “ערכאות,” also in the parallel in Midrash ha-gadol for Exodus 21:1, [ed. Mordekhai Margaliyot (Jerusalem: Mosad Ha-Rav Kook, 1957), 459]: “אורכיות/ארכיות/ארכאות.” This term was very widespread whereas “אגוריאות” is hardly ever found in rabbinical literature, and this might be the only place where it is found. According to Daniel Sperber, A Dictionary of Greek and Latin Terms in Rabbinic Literature (Ramat-Gan: Bar-Ilan University Press, 1984), 32, the source of the term is “άγορά,” meaning a judicial assembly.

15. In all the textual witnesses: “של גוים.” And similarly the following use of “עובדי כוכבים” (heathens).

16. In MS Munich and Vatican 130: “אע"פ שדיניהם דין כדיני ישראל” (even though their laws are like those of the Jews).

17. In MS Munich and the Oxford Genizah fragment the words “דבר אחר” are missing.

18. In three witnesses the word “אנן” (we) is missing: in Seridei bavli: “אמ' ליהשליחותיה;” in MS Leningrad: “א"ל שליחותייהו ”; in MS Vatican 130: “א"ל שליחות'.”

19. In MS Munich and Vatican 140: “קעבדינן.”

20. In the Oxford Genizah fragment this sentence is missing, and it reads: “אמ' ליה אנן שליחותייהו קא עבדינן והכי דיני קנסות נמי כי… שליחותיהו במילתא דשכיחא”. For examination of the meaning of this wording see Radzyner, “Yesodot,” 291.

21. In MS Vatican of the She'iltot: “אמ' ליה אי הכי.”

22. In MS Munich: “אי הכי אפי' גזילו' וחבלו,” and נמי ”are missing.

23. In MSS Munich, Vatican 140, and Leningrad is added: “א"ל כי.” If we combine this with the earlier “אמ' ליה אי הכי” attested in MS Vatican, we find that these words are part of a conversation between 'Abaye and R. Joseph. And see the novelae attributed to Rabeinu Yonah to Sanhedrin 3a, s.v. “אלא אמר רבא” on the sugya in Gittin: “And 'Abaye questions him: if so, also robberies and injuries? And he answered him that they acted as their agents.”

24. In Vatican 130 and fragments of the Bavli: “אבל במילתא.”

25. This word is missing in Vatican 140. It is relevant to cite this sugya from She'iltot (ed. Mirsky, vols. 1–2). Changes in the MSS are presented in parentheses (and see Mirsky's note there): “אי הכי אפילו גזילות וחבלות נמי, דתנן דיני ממונות בשלשה [ברוב כתה"י נוסף: הודאות והלואות בשלשה. בכ"י פריז: בשלשה הדיוטות], גזילות וחבלות בשלשה. אמר ליה הני שכיחי והני לא שכיחי” (If so even thefts and damages as well, for it was taught that monetary judgments by three [in most MSS there is an addition: admissions and loans by three. In MS Paris: by three laymen], robbery and damages by three. He answered: these are of frequent occurrence and those are not frequent.) Note how the author of the She'iltot introduces the interpretation of the Talmud that monetary matters are “admissions and loans,” in a quotation ostensibly taken from the Mishnah.

26. It appears that the Geonim indeed understood that this expression was not consequential and could not serve as the basis of the authority of their jurisdiction in Babylonia, as I shall immediately argue.

27. See, for example, Responsa Ḥatam Sofer, part 1 (Oraḥ ḥayim), sect. 84: “Your Excellency has written to ask about Gittin 88b, 'we act as their agents,' which Rashi interprets as simply receiving authority. You have written very well, that there one must interpret it that it is impossible to say there is real agency and we are their agents exactly according to the laws of agency, and they made us an agent for all the instances and events until the end of the exile until the glory will return quickly and in our day… Further, those who appointed the agents were already dead, and those appointed as agents were not yet born, and we have never encountered such a form of agency. See Gittin 14b regarding a dead person who sent an agent, whether he is free of the agency, or whether he is commanded to do the bidding of the dead man, because once he is dead his agency is canceled, and therefore ‘as their agents' is the taking of authority and not a true agency.” See further the Responsa of the Ribash, sec. 228.

28. “The agency––of the residents of Palestine. We act––they gave us authority.” Cf. the approach of Ran (Rabbenu Nissim of Gerona) in his novelae to the beginning of Sanhedrin. He defines the agency as the experts' waiving of their prerogative so that laymen could also judge. Ran continues the approach of Naḥmanides, interpreting “as their agents” as rescinding the prohibition against the jurisdiction of laymen.

29. s. v. “במילתא ”: “and if you say: how can we act as their agents, now there are no experts in Palestine, and who will give us authority? And it may be said that we are acting as their agents from long ago.”

30. Yevamot 46b, s.v. “שמעת מינה.” And many Aḥaronim discussed his words. See for example Netivot ha-mishpat 1:1.

31. B. Sanhedrin 3a, s.v. “וראיתי.”

32. B. Sanhedrin 5a. There it is apparently already in the words of R. Ḥiyya to Raba bar Ḥana, and not only in the later parts of the sugya. Of course the Rishonim distinguished between financial laws and the laws of fines. See Maimonides, Mishneh Torah, Sanhedrin 4:14. But the entire matter is difficult, because a person who adjudicates fines would appear to be preferable for monetary disputes as well!

33. This is according to the extant reading, which, too, “is not at all self-evident and there were many ‘slight' but nevertheless critical changes in the text … and this teaching was touched up even in antiquity,” according to Rosenthal, Eliezer Shimshon, “Rav ben Aḥi R. Ḥiyya gam ben 'aḥoto?” in Sefer Ḥanokh Yalon, ed. Lieberman, Saul (Jerusalem: Kiryat-Sefer, 1963)Google Scholar, 303 n. 52. See also, Rosenthal, “‘Iyyunim be-toledot ha-nusaḥ shel ha-Talmud ha-Bavli,” in Rabbi Mordechai Breuer Festschrift, ed. Bar-Asher, Moshe (Jerusalem: Akademon, 1992), 576–577Google Scholar. Rosenthal points out in the latter source that the students in the yeshivot of Palestine (according to Megillat ’Evyatar and Sefer ve-hizhir) “in their zeal for the teachings of Palestine completely reversed the sugya,” so that it would emerge for them that the authority of Babylonia was ineffective in Palestine. Rosenthal also used this insight to show that the text of this sugya was problematic. Mantel, Hugo, Meḥkarim be-toldot ha-sanhedrin (Tel-Aviv: Dvir, 1969), 245–246Google Scholar (n. 279 suggests that the Palestinian version was the original one). See his proofs (in the original English edition of this work). See also: Rosenthal, David, “Mesorot 'Ereẓ-Yisra'eliot ve-darkan le-Bavel,” Katedra 92 (1999): 41–44Google Scholar. A comprehensive analysis of the components of the sugya is found in Zuri, Toldot, 179–194. In this context, it should be pointed out that the author of Megillat 'Evyatar (R. 'Evyatar ben 'Eliyahu ha-Cohen, the last of the Geonim of Palestine, in the late eleventh and early twelfth century), of course uses “as their agents” in the framework of his arguments about the preference of Palestine. See Gil, Moshe, 'Ereẓ Yisra'el ba-tekufah ha-muslemit ha-rishonah (634–1099) (Tel-Aviv: Tel-Aviv University Press, 1983), 3:400–401Google Scholar. On this source see Danzig, Neil, Mavo le-sefer halakhot pesukot (New York: JTSA, 1993)Google Scholar, 65 n. 128.

34. Naḥmanides above in Sanhedrin, and following him his disciple the Rashba in his novelae on Gittin 88b, s. v. “כי עבדינן.” Rashi, too, in Gittin there: “as in the case of––on monetary matters and loans where we act as their agents––as it is stated in Sanhedrin,” and others. It appears that the first one to connect these things was the author of the She'iltot (vol. 3, 169–70): “what is the difference about the admission and loans where it is permissible before three laymen? So that they will not lock the door before borrowers, the rabbis stated that three laymen acted as the agents of experts.”

35. Rashi himself in Sanhedrin 13b, s.v. “למידן.” And see the discussion in Albeck, Batei ha-din, 97–98 n. 6, in Rashi's words.

36. Responsa of the Ribash, sec. 228. A suggestion similar to that of the Ribash was made by Karlin, Arieh, “Sheliḥutayhu ka-‘avdinan,” Kol-Torah 5, no. 22 (1951): 11–12Google Scholar. Cf. the words of Ribash in Responsum no. 271, which deals with actual agency, and there agency is equivalent to authorization.

37. Proof of the matter from B. Ḥullin 18a, where the expression, “we act as their agents,” is used by Rav Ashi, who appointed himself on his own authority as an “agent” of Raba bar Ḥanina, and see Rashi there, s.v. “שליחותיה עבדינן.”

38. It might be possible to state this with precision from the words of R. Akiva Eiger in his comments on M. Sanhedrin 1:1. A good formulation of his words can be found in Cohn, Haim H., “‘Al ‘arkha'ot shel goyim ve-‘al ‘arakhim shel Yehudim,” Mishpat u-mimshal 4 (1997): 299–330Google Scholar, 301: “…Another expression: the words ‘before them’ mean before ordained judges alone. This was a restriction by which the rabbis of Babylonia could not abide. They solved the problem by creating a fictional agency, which is to say, we laymen are acting as the agents of ordained judges. Here we find the great difference between Jewish laymen and gentiles, for the former are capable and permitted to serve as agents of that kind, and the latter are not [for it is known that a non-Jew cannot be an agent].”

39. Responsa Ḥatam Sofer, pt. 1 (Oraḥ ḥayim), sect. 84, cited earlier.

40. B. ‘Avodah Zarah 53b.

41. There are no significant differences in the manuscripts aside from the fact that “עבודת כוכבים” is replaced by “עבודה זרה.” For other examples of the use of the institution of agency with a borrowed meaning, see: B. Yevamot 10b regarding levirate marriage: “he merely acts as an agent of the brothers, he acts as the agent of her rival [the second wife]”; B. Bava Meẓi‘a 106b, where Ravina and Rav Ashi treat the field as “the earth acting in the agency of its owner”; B. Me‘ilah 21a, regarding agency carried out by an animal in the matter of ‘eruv teḥumin.

42. Ya'ir 'ozen, ‘Ayin zokher, sects. aleph-hey, principle no. 55 (Lemberg edition, 1865, 39). See also his remarks in the responsa Tov ‘ayin, sec. 9 (Jerusalem, 1961), and his words in Birkei Yosef, ’Even ha-‘ezer 5:16 (Vienna 1860). Interestingly, I have not found any Rishonim who attribute halakhic importance to this sugya. Only Aḥaronim who deal with the agency of a gentile refer to it, and some of them are cited by the Ḥida.

43. See the extensive discussion of these approaches in David J. Mescheloff, “Get me-raẓon ve-get me‘useh be-Yisra'el u-ba-goyim, ke-din ve-she-lo ke-din” (PhD diss., Bar-Ilan University, 2002), 142–202. See also B. Gittin 34b, which apparently shows ’Abaye's gratitude for the divorce given under duress in Babylonia.

44. The issue of the historical status of the story as recounted in the Talmud, that is, whether the discussion between 'Abaye and Rav Yosef actually took place, is of little consequence for the present discussion, which is centered on a critique of these matters as presented in the Talmud and as understood in periods posterior to the two protagonists. Nevertheless, there is, in my opinion, no reason to assume that the dialogue does not reflect a true historical episode. Scholars have noted the relatively precise realism of the stories about rabbinical courts, especially those that describe a disciple sitting before his master while he is adjudicating a case. See: Neusner, Jacob, A History of the Jews in Babylonia, vol. 4 (Leiden: Brill, 1969)Google Scholar, 183ff (see especially 204–211 on divorce cases); Kalmin, Richard, Sages, Stories, Authors and Editors in Rabbinic Babylonia (Atlanta: Scholars Press, 1994), 209–216Google Scholar. See also Goodblatt, David M., Rabbinic Instruction in Sasanian Babylonia (Leiden: Brill, 1975), 272–280Google Scholar; Gafni, Isaiah, “Ma‘asei beit din ba-Talmud ha-Bavli ẓurot sifrutiot ve-hashlakhot historiyot,” Proceedings of the American Academy for Jewish Research 49 (1982)Google Scholar Heb. Sect.: 23–40. For a more skeptical approach, but one which is nevertheless prepared to accord some historical weight to the stories of rabbinical courts, see Wimpfheimer, Barry S., Narrating the Law: A Poetics of Talmudic Legal Stories (Philadelphia: University of Pennsylvania Press, 2011), 63–67.Google Scholar

45. Intervention by a disciple in a case being tried before his teacher appears in a number of places in the Talmud. For a general discussion of relations between master and disciple in the court, see: Goodblatt, Rabbinic Instruction, 272–280, esp. 277 n. 12; Gafni, Isaiah, Yehudei Bavel be-tekufat ha-Talmud (Jerusalem: Merkaz Zalman Shazar, 1990), 230–232Google Scholar; Gafni, “Ma‘asei beit din,” 23–40. On 35–37 Gafni discusses cases that feature the active intervention of disciples in the course of judgment passed by their masters; these incidents all took place before the litigants, as in the present instance. See also Wimpfheimer, Narrating the Law, 112–121 on the story in B. Bava Meẓi‘a 97a. See also B. Bava Meẓi‘a 35a, where Rav Naḥman does not answer Rava, who “disturbs” him while hearing a case: “[Rav Naḥman] said to [Rava], Did I not say to you that when I am sitting in judgment you should not speak to me?” And this is after he puts him off on a groundless pretext, as Rava comments to him and as emerges from the end of his remarks. The Rishonim, especially the Tosafists, frequently comment about explanations in the Talmud that are “simply putting the question off,” even in places where logical conclusions about the halakhah are discussed, and see B. Me‘ilah 7b: “Resh Lakish said in the name of Rav ’Osha‘ia: Rabbi Akiva answered that disciple with a stolen answer” that this means “he put him off with a straw” (Rashi and Tosafot on B. ‘Avodah Zarah 44b).

46. Interestingly, in two other places in the Babylonian Talmud (Sukkah 19b, Mo‘ed Katan 24a), we find stories that begin with the words that appear in our story: “אביי אשכחיה לרב יוסף,” and they continue with a comment by ’Abaye about the conduct of Rav Yosef, which appears to contradict a well-known halakhah. In these cases as well, Rav Yosef offers rather forced explanations based on halakhic information that was not known earlier and is not known from other sources.

47. Ed. Yeḥiel Zaksh, (Jerusalem, 1978), 10 (although there are difficulties regarding these novelae by the Ran, which is what they are called, I will henceforth relate to them as the opinion of the Ran). The Ran resolves the difficulties that he presents on the basis of the approach of Naḥmanides, who suggests that “closing the door” was at the basis of the desire to allow laymen to hear cases, while “as their agents” was meant to revoke the prohibition of “before them and not before laymen.” However, there are difficulties in this approach for which see Reinitz, Ya‘akov K., “Samkhut ha-shiput shel batei ha-din she-’eynam smukhim be-'Ereẓ Yisra'el u-be-Bavel be-tekufat ha-Mishnah ve-ha-Talmud,” Shema‘tin 15 (1978): 17–28Google Scholar, 25. Some of these objections were raised by other Rishonim, and various answers were given. For a summary, see Shoshana, Avraham, ed., Ḥiddushei ha-Ramah ve-shitot kadmonim (Jerusalem: Ofeq Institute, 1989), 2:393–395Google Scholar.

48. Gittin 88b, s.v. “אי הכי”; Bava Kamma 84b, s.v. “אי נמי”; Sanhedrin 3a, s.v. “שלא.” The explanations they offer are rather forced (see Maharsha on Sanhedrin, there, who shows that one must say “thefts,” and that “thefts” are “ordinary” theft). Other Rishonim also discussed this. The idea expressed in Yad remah to Sanhedrin 3a is that there was more than one regulation: first they discussed only acknowledged debts and then they ordained that they could adjudicate anything of frequent occurrence where there was monetary loss, among other things robbery and damages, because of improving the world. See a similar idea in Keẓot haḥoshen 1:3.

49. Cf. the version of this sugya in the Genizah fragment, n. 20 above. This was also the version of Shmu'el ha-Sardi, R., Sefer ha-terumot, Shaḥar 62 (ed. Goldschmidt, [Jerusalem: Machon Yerushalayim, 1988], 1329)Google Scholar.

50. But see Piskei ha-Rid to Sanhedrin 4a (ed. Wertheimer, [Jerusalem: Yad Ha-rav Herzog, 1994], 7)Google Scholar. See also n. 27 of the editor there, who proposes an emendation in Gittin with no problem, whereas here he hesitates.

51. See also Tosafot, s.v. “ליבעי,” on B. Sanhedrin 2b.

52. See above, n. 23 and below n. 54.

53. ‘Aminoaḥ, “Mumḥim,” 166 n. 118. And see also Question A in the remarks of Ran cited above.

54. Thus also in ‘Aminoaḥ, “Mumḥim,” 166 n. 118. On the flexibility of the term “מידי דהווה,” see Moscovitz, Leib, Talmudic Reasoning: from Casuisticus to Conceptualization (Tubingen: Mohr Siebeck, 2002)Google Scholar, 248. And see also 246 n. 65 there: “analogies sometimes appear at the end of amoraic dicta––often, analogies introduced by the terms midei de-hawah (‘by analogy to…') and hakha namei (‘here too')––and in such cases it is not clear whether these analogies are integral parts of the amoraic dicta or post-amoraic, redactional additions.” However there are also textual witnesses in which this section says, “he said to him,” see above nn. 21, 23. This is a common phenomenon, on which professor Halivni commented several times in his books. See, for example, Halivni, David, Mekorot u-mesorot: Masekhtot ‘Eruvin u-Pesaḥim (Jerusalem: JTSA, 1982), 408–409.Google Scholar

55. For an extended discussion of the basic distinction between admissions and transactions of loans and the other monetary laws, see Radzyner, “Yesodot,” 194–283.

56. Radzyner, “Yesodot,” 194–283.

57. This explanation is especially consistent with the assumption that the baraita cited in this sugya is not part of 'Abaye's words.

58. This is the text of all the witnesses except MS Leningrad-Firkowitz, which uses the singular, “גיטא,” see above, n. 13. This is not surprising, given the character of that manuscript. See in this connection Shulamit Valler, “Ha-perek ha-ḥamishi ba-masekhet ketubot ba-Talmud ha-Bavli: nusaḥ ve-parshanut” (PhD diss., JTS, 1987), x: “When we compare the texts of the manuscripts, a conspicuous and consistent phenomenon emerges, which is that the text of MS Leningrad-Firkowitz is different in many instances from the printed version and from the texts of other manuscripts.” In Valler's opinion, the scribe who wrote that version intended it to be a kind of commentary. Hence it is rather clear that the original reading was indeed גיטין in the plural. However, it is possible that in the light of the common understanding of the baraita that follows, which places emphasis on the judges, the scribe who copied the manuscript saw no difference between the imposition of a single divorce and imposing many divorces, and for that reason he changed the word from plural to singular.

59. M. ‘Arakhin 5:6.

60. Dibura de-nedavah par. 3:15, to Leviticus 1:3 according to MS Rome 66, and many other manuscripts (Sifra on Leviticus, [ed. Finkelstein (New York: JTSA, 1983), 2:31 and 3:83]). See also Sifra on ’Emor, par. 7:2, to Leviticus 22:19 (ed. Weiss, p. 98a–b): “according to their will––we do not compel the community against its will,” and the comment of Rabad there: “this means that if they did not wish to bring a contribution to the Temple treasury to take communal sacrifices from it, no one is forced to do so against his will, but they are compelled until they say, 'we want to,' because they are obligated to bring them.”

61. Sifra on Leviticus: commentary, ed. Finkelstein, 4:30.

62. There appears to be no doubt that the source of this ruling is the story under discussion. See Rabinovits, Naḥum 'Eli‘ezer, Mishneh Torah ‘im perush Yad peshutah (Ma‘aleh ’Adumim: Yeshivat Birkat Mosheh, 1997)Google Scholar, 9:614.

63. Mishneh Torah, Gittin 2:20.

64. Kaplan, Yeḥiel S., “‘Kofin 'oto ‘ad she-yomar roẓe ’ani': Mahut ha-‘ikkaron ve-yisumo be-zmaneynu,” in ‘Iyyunim be-mishpat ‘Ivri ve-halakhah: dayyan ve-diyyun, ed. Habba, Yaacov and Radzyner, Amihai (Ramat-Gan: Bar-Ilan University Press, 2007), 194–195.Google Scholar

65. See Kesef mishneh, ’Ishut 23:8.

66. Indeed the Geonim already refer to this source. For an extensive examination of the talmudic basis of Maimonides's ruling, see Benedikt, Binyamin Ze'ev, Ha-Rambam le-lo setiyah min ha-Talmud (Jerusalem: Mosad Ha-Rav Kook, 1985), 213–219Google Scholar. See also Rabinovits, Yad peshutah, 219, who also points out that this sugya is the source of Maimonides's ruling. And see this idea along with a broad analysis of it in Nehorai, Michael Ẓvi, “Kofin 'oto ‘ad she-yomar roẓe ’ani,” in Beyn samkhut le-'otonomiah be-masoret Yisra'el, ed. Sagi, Ze'ev Safrai and 'Avi (Tel-Aviv: Ha-Kibbutz Ha-Me'uḥad, 1997), 365–370.Google Scholar

67. See: Epstein, Jacob Naḥum, Mavo le-nusaḥ ha-Mishnah (Jerusalem: Magnes, 2000)Google Scholar, 802 n. 2, and 852.

68. Teshuvot ha-geonim (ed. Harkavi, Avraham E. [Berlin, 1887])Google Scholar, sec. 335.

69. T. Shekalim 1:6.

70. Lieberman, Saul, Tosefta ki-feshutah, part 4 (New York: JTSA Press, 1962)Google Scholar, 660. And see there the wording of the interpretation of Rabeinu Meyuḥas on the Torah: “And the physician compels him to cure him against his will.” And this was already the explanation of the author of Ḥasdei David in his interpretation of that tosefta, and he added: “and this is in the manner of they compel him until he says ‘I want to.'”

71. B. Yevamot 10b, B. Bava Meẓi‘a 106b, B. Me‘ilah 21a. See also other sources in Ben-Menaḥem, Ḥanina, “The Judge-Agent Analogy in the Talmud,” in Authority, Process and Method, Studies in Jewish Law, ed. Ben-Menaḥem, Ḥanina and Hecht, Neil S. (Boston: Harwood Academic Publishers, 1998), 33–58Google Scholar. In this article the author deals with the various analogies found in the Talmud between the judge and the agent, and before presenting them he makes a comment that is very important for our discussion: “Before turning to the talmudic sugiyot which advance the agent-judge analogy, I want to point out that these sugiyot are all from the Babylonian Talmud and lack parallel versions in the Jerusalem Talmud.” At the conclusion of his article he writes: “In spite of its creative contribution to the derivation and formulation of a number of important laws, there is no true analogy between the judge and the agent. The apparent analogy is in essence little more than an evocative turn of phrase” (58).

72. B. Gittin 21a. Another example for such an “enforced agency” can be found in B. Bava Meẓi‘a 108a (the sugya of Bar-Meẓra): “But if he bought it for two hundred, its value being only one hundred, it was [at first] thought that he [the abutting neighbor] can say to him, ‘I sent you for my benefit, not for my hurt.'”

73. Of course it is possible to argue that the law that one compels him until he says he wants to is also based on a fiction. See Atlas, Shmuel, Netivim ba-mishpat ha-‘Ivri (New York: Ha-Akademyah ha-Amerika'it le-Mada'ei ha-Yahadut, 1978), 290–291Google Scholar. These matters are not at all straightforward, but even if we assume that this is the case, this halakhah appears in the Mishnah, it is very ancient, and upon its basis it is possible to compel recalcitrant husbands to grant divorces.

74. This division of the anonymous Talmud is very difficult, primarily because injuries are also very common. The Talmud itself notes this difficulty in Bava Kamma 84b, and therefore it must add an additional restriction, according to which not only frequency of the obligation is demanded, but also its being a cause of financial loss. In addition, one must add contradictions from the Talmud itself, as we can see for example in Tosafot, s.v. “ואי” in our sugya. Of course here we can see how a forced explanation entails difficulties and explanations that are also forced.

75. In some of the manuscripts: “מעוסה.”

76. Mekhilta de-Rabbi Yishma'el, Masekhta de-Nezikin par. 1, to Exodus 21:1 (ed. Horowitz-Rabin, 246).

77. [Ḥefeẓ ben Yazliaḥ], Ve-hizhir (ed. Freiman, Israel Meir [Leipzig, 1873])Google Scholar, 1:90. This book is based on the She'iltot. See in this connection Brody, Robert, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture (New Haven: Yale University Press, 1998)Google Scholar, 214.

78. Ve-hizhir, 113. And see n.b. of the editor.

79. She'iltot de R. Aḥai Gaon, vol. 1–2 (Jerusalem: Sura, 1982)Google Scholar, 23.

80. Zunz, Leopold, Ha-derashot be-Yisra'el ve-hishtalshelutan ha-historit, ed. and completed by Albeck, Ḥanokh (Jerusalem: Mosad Bialik, 1947)Google Scholar, 110. On 367 n. 33, Zunz refers explicitly to our sugya as being taken from the She'iltot. See also Bregman, Marc, Sifrut Tanḥuma-Yelammedenu: Te'ur nusaḥehah ve-‘iyyunim be-darkhei hithavutam (Piscataway, NJ: Gorgias, 2003), 185–186Google Scholar, who notes that the printed Tanḥuma for Genesis and Exodus used the She'iltot and the words of the Talmud, unlike Buber's edition of Tanḥuma.

81. As in the Mantua edition of 1563. In the first printing, Constantinople 1520–1522: “היה ר' טרפון אומר.”

82. Ed. Mordekhai Margaliyot (Jerusalem: Mosad Ha-Rav Kook, 1957), 459–460. Here, too, one can wonder about the originality of the Midrash because of the Aramaic word “דכתיב” [“as it is written”]. Cf. this midrash to Midrash ha-gadol for Deuteronomy 17:18 (ed. Fish [Jerusalem: Mosad Ha-Rav Kook, 1973], 373), which deals only with the prohibition of adjudication by gentiles. In another Yemenite collection, Midrash ha-Ḥefeẓ to the beginning of the pericope of Mishpatim (ed. Ḥavaẓelet, Meir [Jerusalem: Mosad Ha-Rav Kook, 1990]Google Scholar, 366) we find only “before them and not before gentiles.”

83. Perhaps this depends on the presence of “דבר אחר,” (missing in MS Munich and the Oxford Genizah fragment) and cf. Goldberg, Avraham, “Leshonot ‘davar ’aḥer' be-midrashei ha-halakhah,” in ‘Iyyunim be-sifrut ḥazal, ba-mikra u-ve-toldot Yisra'el (E.Z. Melammed Festschrift), ed. Gilat, Yitzhak D. et al. (Ramat Gan: Bar Ilan University Press, 1982), 99–107.Google Scholar

84. It is difficult to see a parallel to this in the Mekhilta de-Rashbi to Exodus 21:1 (ed. Epstein-Melamed, 158, completed according to Midrash ha-gadol): “That you shall set before them”—“‘Before the Children of Israel’” is not stated here, rather, ‘before them.' [Meaning,] before the important people among them. This teaches that one does not teach the laws of property to the ignorant.” Higger, Indeed, Mikhael, 'Oẓar ha-baraitot, (New York: De-ve Rabanan, 1945)Google Scholar, 8:80, and Melamed, Ezra Ẓion, Midreshe-halakhah shel ha-Tana'im ba-Talmud Bavli (Jerusalem: Magnes, 1988)Google Scholar, 124 para. 139, refer to this mekhilta (though Higger uses the term “cf.” and Melamed, in a note there, raises the possibility that “another matter” is from the Talmud). Even if this is tannaitic material, it appears that we are dealing with a different judgment: the teaching of the laws of property to ignorant people. And it appears that the completion of the sugya in the Mekhilta de-Rashbi proves this. In the reconstruction of the Mekhilta de-Rashbi by R. David Ẓvi Hoffman, (Frankfurt, 1905) 117, this is proven even more forcefully. In any event, there are those who suggest regarding these words of the Mekhilta as connected to the baraita in question see Brand, Yiẓḥak, ‘Arkha'ot shel goyim be-medinat ha-Yehudim (Jerusalem: The Israel Democracy Institute, 2010), 21–22.Google Scholar

85. Some of them were collected by historians who were dealing with the question of Jewish courts in Palestine after the destruction of the Temple. For example: Alon, Gedalia, The Jews in their Land in the Talmudic Age, 70–640 C.E. (Jerusalem: Magnes, 1984), 537–542Google Scholar; Safrai, Shmuel, “Jewish Self-Government,” in The Jewish People in The First Century, ed. Safrai, Shmuel et al. (Assen: Van Gorcum, 1974)Google Scholar, 408. See also Midrash Tannaim on Deuteronomy, (ed. David Ẓvi Hoffmann [Berlin: Druck von H. Itzkowski, 1908], 95–96 [Deuteronomy 16:18]), which only mentions the prohibition of using gentile courts. Indeed, for generations the rabbis were in doubt: can one really compare the gravity of the prohibition against using gentile courts to that of adjudication by laymen? Does this show that the prohibition against adjudication by laymen is also Torah law? The doubt arose in particular around the words of Maimonides in Sanhedrin 26:7, and see Elon, Menaḥem, Jewish Law: History, Sources, Principles (Ha-mishpat ha-‘Ivri) (Philadelphia: JPS, 1994)Google Scholar, 20 n. 64.

86. See ‘Aminoaḥ, “Mumḥim” 162; Radzyner, “Yesodot,” 214 n. 5, and the sources cited there.

There is another difficulty in the interpretation itself: “before them––and not before laymen.” Where does this come from? Granted, “not before gentiles,” but why should we assume that Jewish laymen are not included in “before them”? This question is reinforced by another midrash that takes the literal meaning of the Bible to be the giving of laws to those who are obliged to obey them and not the grant of authority to judge, and therefore it includes women. See B. Bava Kamma 15a and Y. Bava Kamma 1:3 (2c). This difficulty disturbed the medieval commentators. See Rashi on our sugya of the Talmud, s. v. “לפניהם,” and other Rishonim cited in Shoshana, Ḥiddushei ha-Ramah, 2:393, sec. 79 and 81.

87. On the use of this hermeneutic principle later on, see Steinfeld, Ẓvi Arieh, Modeh be-mikẓat (Ramat-Gan: Bar-Ilan University Press, 1979), 77–85.Google Scholar

88. This question puzzled both Rishonim and Aḥaronim, who were forced to answer it with various kinds of distinctions. See, for example, Tosafot, s.v. “ליבעי,” Sanhedrin 2b. “Another question was raised by the author of Pnei-Yehoshu‘a on our sugya: ‘It appears that according to the first opinion in the midrash: “before them” and not before gentiles, Jewish laymen can compel the litigants, because it was necessary to exclude gentiles explicitly. If so, why did ’Abaye challenge R. Joseph from this baraita, for one could say that R. Joseph thought like the first opinion?!'”

89. Goldberg, Avraham, “The Babylonian Talmud,” in The Literature of the Sages, ed. Safrai, Shmuel (Assen: Van Gorcum, 1987), 334–335Google Scholar. See also: Goldberg, Avraham, Perush la-Mishnah masekhet ‘Eruvin (Jerusalem: Magnes, 1986), 3–4Google Scholar, and 4 n. 8, where he shows another instance in which ’Abaye cites a baraita that is not mentioned elsewhere (B. ‘Eruvin 10a) and that is connected to things that he said in the course of a discussion with Rav Joseph. See also: Jacobs, Louis, “Are there fictitious Baraitot in the Babylonian Talmud?” HUCA 42 (1971): 185–196Google Scholar; Friedman, Shamma, “The Baraitot in the Babylonian Talmud and their Parallels in the Tosefta,” in ‘Atarah le-Ḥayyim: meḥkarim ba-sifrut ha-talmudit ve-ha-rabanit li-khevod Professor Ḥayyim Zalman Dimitrovski (Jerusalem: Magnes, 2000), 163–201Google Scholar, esp. 198–199. Also cf. on our instance the words of Naeh, Shlomo, “‘Eyn ’em la-masoret, 'o ha-'im darshu ha-Tannaim 'et ketiv ha-Torah she-lo ke-kriato ha-mekubbelet?” Tarbiẓ 61 (1992): 443–444.Google Scholar

90. See Goldberg, “Talmud,” 334–335.

91. Doubtless this possibility is more likely in light of the difficulties raised above, especially the last one, which shows that this baratia was not known to the rabbis of the Talmud.

92. The words that were added to the mishnah in the Mekhilta are in parentheses. The word “וכשר” which is found in some printed editions of the Mishnah is not found in the vast majority of textual witnesses. See Mescheloff, Get me-raẓon, 80 and 112 n. 13.

93. “מכאן אמרו” as a quotation from the Mishnah in halakhic midrashim was treated extensively by Epstein, Mav'o, 728 ff. On 737 he discusses the citation in question and refers the reader to the words of Meir Ish-Shalom in his commentary Me'ir ‘ayin on the Mekhilta, which assumes that the words “אבל” and “כשר” are additions. Horowitz, in his edition, points out that the word “אבל” is missing in some of the textual witnesses, but he makes no comment about the word “כשר,” despite his words in the note to line 10.

94. See Mescheloff, Get me-raẓon, 185–186. Although he assumes that “דבר אחר” is part of the original baraita, he suggests that at first the baraita was “the entire sugya that was added to the Mishnah as an explanation of a halakhah in the Mishnah,” according to which a writ of divorce drawn up by gentiles was invalid. Later, “when the discussion between R. Joseph and 'Abaye was recorded in the sugya, the baraita was included in it because of its last phrase. Then, or later, the baraita was removed from its original place at the beginning of the sugya, because there was no reason to write it twice.” It should be added that something similar to the above proposal took place with baraitot that appear after the introductory phase, “תניא נמי הכי,” in which an exact repetition of the previous citation appears. See the analysis by Hauptman, Judith, “An Alternate Solution to the Redundancy Associated with the Phrase Tanya Nami Hakhi,” Proceedings of the American Academy for Jewish Research 51 (1984): 73–104CrossRefGoogle Scholar. She argues that the baraitot themselves are a stratum of the sugya, but in the form in which they appear they are “corrected” in the wake of the teaching. In another article she expands on the matter of baraitot as an early stratum of the sugya, which were first cited because of their connection to the mishnah. This became obscured because of the accretion of later teachings that were added to the sugya and placed before the baraita. See Hauptman, “Development of the Talmudic Sugya by Amoraic and Post-Amoraic Amplification of a Tannaitic Proto-Sugya,” HUCA 58 (1987): 227–250Google Scholar. Regarding changing the place of the baraita in the sugya, a baraita that was originally placed there because of its connection to the mishnah, see Friedman, Shamma, Talmud ‘Arukh, B. Bava Meẓi‘a 4, (Jerusalem: JTSA, 1990)Google Scholar, 1:98.

95. In B. Bava Kamma 36b R. Joseph deals with payments for injury. Indeed, the Rishonim, such as Rashi there, s.v. “ההוא” and Tosafot, Sanhedrin 3a s.v. “שלא,” are forced to interpret this matter and they suggest, among other things, that the person who suffered the injury already possessed money from the person who caused the damage.

96. See various examples in the Tosafot mentioned in the previous note and throughout the article by ‘Aminoaḥ, “Mumḥim,” esp. 157–158; Radzyner, “Yesodot,” 226–236.

97. Friedman, “Hosafot,” 423.

98. B. Sanhedrin 5a.

99. For an extended discussion, see: Radzyner, “Yesodot,” chs. 8 and 9. Indeed, it is difficult to deny the fact that at the time of Rav Yosef there were still Babylonian sages who imposed fines in Babylonia. See 231–232 and the references in 231 n. 258.

100. See above, n. 11.

101. Gafni, Isaiah M., Land, Center and Diaspora: Jewish Constructs in Late Antiquity (Sheffield: Sheffield Academic Press, 1997)Google Scholar, 114 (emphasis added). See also Gafni, Land, Center and Diaspora, 116.

102. Encyclopedia Talmudica: A Digest of Halachic Literature and Jewish Law from the Tannaitic Period to the Present Time, ed. Berlin (Bar-Ilan), Meir and Zevin, Shlomo Yosef (Jerusalem: Talmudic Encyclopedia Institute, 1969)Google Scholar, 4:22.