Contract, Consent, and Consideration: On דברים שבלב

The sugya of דברים שבלב begins with a case that is brought before Rava of a man who sold his home with the intent of moving to Israel. While his intent was well known the seller did not stipulate that the sale was contingent on his impending aliyah. Following the sale, the man was unable to fulfill his plans of moving to Israel. He requested that his land be returned to him since the seller’s intentions were clear to the buyer and the seller’s intentions were not fulfilled.¹ Rava had to decide whether the sale was final or should be undone because the circumstances had changed. Rava declared that “words of the heart”— unstipulated intent — are not legally significant. Therefore, the sale is valid and the seller’s house was not returned.

Much has been written by Rishonim and Acharonim deciphering precisely what Rava intended to convey in his ruling. They broaden the discussion to include analysis of the rules of conditional contracts (תנאים) and assumed intent (אומדנא). In my class, I am confronted with a dilemma of how to teach this sugya within the time available. The Talmudic sugya itself comprises five attempts to prove Rava’s rule, דברים שבלב אינם דברים, from various Mishnayot from Kiddushin and elsewhere. Four of the five proofs are rejected; the fifth, through a complex give and take involving the laws of me’ilah, is finally accepted. Studying all of these proofs and disproofs takes time and energy and can become tedious for students. The conceptual debate in the Acharonim, derived from the Rishonim, explaining why unstipulated intent is not legally valid does not come until much later. At the same time, each of the proofs exposes students to mishnayot regarding sacrificial obligations coerced divorce and the misuse of sacred property (מעילה) through which students can absorb a wealth of broad Torah knowledge. Can I organize my teaching to help students achieve a clear understanding of the sugya as well as an appreciation for the conceptual issues at stake in the discussion?

The Structure of the Sugya

In an earlier chapter I advocated for the teacher studying the entire sugya regardless of whether they decide to teach the complete sugya. In doing so we are better able to identify the argument that the sugya is making. Often the conceptual debate found in the Acharonim and derived from Rishonim is revealed to be the issue at stake. I believe that the sugya of דברים שבלב אינם דברים offers this pedagogical option. My first step is to lay out the sugya for my students.

I divide the sugya into component parts to help students see “the forest” of the sugya beyond the trees. Teasing out these segments, we find that

1. three structurally similar cases comprise the core of the sugya. Rava is at the center of two of these cases.
2. Between cases 1 and 2, the ba’al ha’sugya incorporated a “sub-sugya” focused specifically on Rava’s first rule.

The core sugya, with the sub-sugya removed, reads as follows:

הָהוּא גַּבְרָא דְּזַבֵּין לְנִכְסֵיהּ אַדַּעְתָּא לְמִיסַּק לְאֶרֶץ יִשְׂרָאֵל, וּבְעִידָּנָא דְּזַבֵּין לָא אֲמַר וְלָא מִידֵּי. אָמַר רָבָא: הָוֵי דְּבָרִים שֶׁבַּלֵּב, וּדְבָרִים שֶׁבַּלֵּב אֵינָם דְּבָרִים.

הָהוּא גַּבְרָא דְּזַבְּנִינְהוּ לְנִיכְסֵיהּ אַדַּעְתָּא לְמִיסַּק לְאַרְעָא דְיִשְׂרָאֵל. סְלֵיק וְלָא אִיתְּדַר לֵיהּ. אָמַר רָבָא: כֹּל דְּסָלֵיק – אַדַּעְתָּא לְמֵידַר הוּא, וְהָא לָא אִיתְּדַר לֵיהּ. אִיכָּא דְאָמְרִי: אַדַּעְתָּא לְמִיסַּק, וְהָא סְלֵיק לֵיהּ.

הָהוּא גַּבְרָא דְּזַבְּנִינְהוּ לְנִיכְסֵיהּ אַדַּעְתָּא לְמִיסַּק לְאֶרֶץ יִשְׂרָאֵל, לְסוֹף לָא סְלֵיק. אָמַר רַב אָשֵׁי: אִי בָּעֵי, סָלֵיק. אִיכָּא דְּאָמְרִי: אִי בָּעֵי, לָא סָלֵיק? מַאי בֵּינַיְיהוּ? אִיכָּא בֵּינַיְיהוּ, דְּאִיתְיְלִיד אוּנְסָא בְּאוֹרְחָא.

We immediately see that the three cases both connect the cases to and distinguish them from each other. We will focus on the first case and return to the second and third two cases later. Visually, and without even understanding all of the words or the differences between the cases, students can see the similarity among the three cases. Students can then also absorb, just by looking at the page, that the ba’al ha’sugya includes an extensive analysis of the first case in contrast to the latter two, which are not analyzed at length.

The Essential Question

We then set out to decipher the first case as described above. Invariably, before we even get to Rava’s statement, someone asks, “Why is this case here? What does this have to do with our Mishnah?”² I acknowledge that question but indicate that we will save it for later. Instead, I ask them whether they think the buyer should be able to keep the newly acquired land or the seller can get the property back. The first instinct of many students is that the property should be returned; he did not intend to sell under these circumstances. Quickly, others respond that this is not fair to the buyer who might have already sold his previous property. Students tend to think in terms of fairness and comparative disadvantage. Thus, they tend to respond, at least initially, with empathy for the more disadvantaged person. They often don’t first think in terms of principles or systems; what might seem fair in this instance might not be fair as a broadly applied principle.

Having aired the claims of both the buyer and the seller, we can turn to Rava, who declares that because unstipulated intentions are not valid, the buyer can keep the house. But why can’t we rely on unstipulated intentions?

Some students suggest that it is not fair to the buyer if we allow the seller this courtesy. Although the buyer knew of the seller’s plans, he probably felt confident that the transaction was secure. In contract law, this is the principle of reliance. Since the buyer justifiably relied on this as a valid sale without stipulation, the seller is obligated to see the transaction through. In class, I hope that another student will ask, “Why did he fully rely on the sale if he knew that the intent of the sale was contingent on the seller’s making aliyah?” I ask that student, “Would you have a different view if the circumstances were less clear? Let’s say the buyer had never heard any rumors about the impending aliyah; should the buyer be able to keep the house?” At some point in the discussion, the question of trust arises. How do we know that the seller is telling the truth? Without declaring his intentions beforehand, he can say anything he wants to later get out of the sale!

This conversation uncovers two potential reasons for Rava’s rule: 1) Reliance – if the buyer relied on the sale, it can’t simply be undone for the sake of the seller; 2) Reliability – we can’t justifiably trust the words of the seller to the detriment of the buyer. The seller might not be speaking the truth. How are we to know?

We are now ready to tackle the sub-sugya in which the Gemara searches for a textual basis for Rava’s rule: מנא ליה לרבא הא, from where, the ba’al ha’sugya asks, did Rava derive this principle? What precisely is the ba’al ha’sugya searching for in this question? If the goal of this search is simply textual support, we have two questions, one theoretical and one pedagogical. Does every statement of an Amora require a textual source to establish its validity? Our experience suggests that it is not necessary.³ Why is the Gemara asking for it in this instance? Second, for my students, searching for textual support is not captivating. Students become frustrated with attempted proofs that seemingly lead nowhere. Can we give meaning to the repeated attempts to prove Rava’s rule?

Conceptual Development Within the Sugya

As we proceed through the sugya I attempt to show that these five steps achieve more than a zero sum (proof and disproof) until the proof is finally accepted on the fifth try. Each attempt to prove Rava’s rule narrows and sharpens our understanding of Rava’s teaching. If this is so the question מנא ליה לרבא הא is asking for textual support in a manner that also clarifies Rava’s rule. I will go through each step to demonstrate how the idea of דברים שבלב אינם דברים develops through the various proofs and disproofs.

1. Financial Coercion (Sacrifices)

The first attempt begins with the word אילימא, if you will say. I ask students what they assume will happen here. They are able to intuitively grasp that this proof will not withstand the test; beginning the proof with the words “if you will say…” conveys that the Gemara already knows that this is a weak attempt. “Any questions?” I ask. “Why would the Gemara bring a proof that it knows from the start will not satisfy?” By simply highlighting the significance of the word אילימא, students can begin to sense that there is some drama here. It is as though the Gemara is saying, “I know that you might suggest this source as proof. Let me tell you why it doesn’t work.” That creates an opening for us to explore why I might connect Rava’s rule with the following case as well;, through its disproof, it helps us clarify what the Gemara is looking for.

We begin with a Mishnah in Arachin (5:6).

חַיָּבֵי עֲרָכִים, מְמַשְׁכְּנִין אוֹתָן. חַיָּבֵי חַטָּאוֹת וַאֲשָׁמוֹת, אֵין מְמַשְׁכְּנִין אוֹתָן. חַיָּבֵי עוֹלוֹת וּשְׁלָמִים, מְמַשְׁכְּנִין אוֹתָן אַף עַל פִּי שֶׁאֵין מִתְכַּפֵּר לוֹ עַד שֶׁיִּתְרַצֶּה, שֶׁנֶּאֱמַר (ויקרא א), לִרְצוֹנוֹ, כּוֹפִין אוֹתוֹ עַד שֶׁיֹּאמַר, רוֹצֶה אָנִי.⁴

The Mishnah describes three cases of individuals who have committed gifts to the Mikdash by taking a vow. The first group is חייבי ערכין, people who have committed to donate their personal value based on various criteria to the Mikdash but have not fulfilled their commitment. The second group חייבי חטאות ואשמות are those who are obligated to bring a sin offering for a personal transgression and have neglected to fulfill the obligation. The third is חייבי עולות ושלמים, those who voluntarily committed to bring a personal sacrifice to the Mikdash but, again, have not fulfilled the commitment. Are the authorities permitted to compel the individual to fulfill the obligation by repossessing his property? The Mishnah declares that the authorities may compel the person in the first and third cases but may not in the middle case of חטאת ואשם.⁵

The Mishnah acknowledges the tension: a sacrifice is only valid when brought willingly (אף על פי שאין מתכפר לו עד שיתרצה שנאמר ״לרצונו״), and yet he is being compelled to bring the korban! The Gemara asks הא כיצד, how is this achieved given the inherent contradiction? Doesn’t this prove that דברים שבלב אינם דברים?

The Gemara distinguishes between the case of Arachin and Rava’s case: שאני התם דניחא ליה בכפרה. This sentence is confusing. If we look at the Mishnah, in the cases where the sacrifice is brought to achieve כפרה, the sin offerings, we cannot compel the person to bring the korban! It is important to clarify that the phrase ניחא ליה בכפרה refers to the sentence in the Mishnah אע״פ שאינו מתכפר עד שיאמר רוצה אני. What does that sentence mean, given that we are not referring to sin offerings? The Meiri summarizes the case as follows:

מי שנדר להקריב קרבן ולא שלם את נדרו בין שנדר ולא הפריש בין שהפריש ולא הקריב כיון שעברו שלשה רגלים בית דין כופין אותן להקריב ברגל הבא תחלה שנאמר יקריב אותו בעל כרחו אם כן מה תלמוד לומר לרצונו כופין אותו עד שיאמר רוצה אני שכל שאומר איני רוצה אינו מתכפר ואעפ״כ בחטאות ואשמות הואיל ומחוסרי כפרה הם אין ממשכנין אותם שאין חוששין שמא ישהו

A person vowed to give a donation but did not fulfill the commitment. The courts may compel the person because we are compelling him to do what he had intended and declared. In other words this is not a case of דברים שבלב (DSB) because the courts are in fact acting based on his own words! The idea that אינו מתכפר לו עד שיתרצה is not referring to atonement for a sin. It is referring to a part of the procedure in bringing the sacrifice. The korban will not be valid unless he says that he agrees to bring it.

This distinction is significant. When the courts compel him to bring the sacrifice, they are not relying on the statement that he is making now as the declaration of his intent. The courts are relying on his originally stated intent to bring the sacrifice when he made the commitment months ago. Rashi states this very clearly and concisely (so concisely that we could easily miss his point).

כופין אותו. לקיים דברי נדרו

In this case, we are not ignoring his unstated intent. We are compelling him based on his originally stated intent. The Gemara has demonstrated that this is not a comparable case of דברים שבלב because in this instance his intent was clearly and validly declared months prior. This Mishnah is instructing how we compel him to do what he had originally himself declared. Therefore this is not an example of the דברים שבלב אינם דברים concept that we seek to prove.

Having completed the first proof and disproof, I note that the next four sections are structured in the same way as this first one. I provide students with a blank chart to fill in for each segment:

Recognizing this pattern, students are better able to decipher unseen sections of the sugya. It also sensitizes students to look for such patterns when learning a new sugya. I try to point this out to students regularly during our learning together.⁶

2. Coerced Divorce

The Gemara tries again from the second part of the Mishnah

וְכֵן אַתָּה אוֹמֵר בְּגִטֵּי נָשִׁים כּוֹפִין אוֹתוֹ עַד שֶׁיֹּאמַר רוֹצֶה אָנִי

The sugya follows the same steps. How can a husband be coerced into giving the get willingly? That is a paradox, unless we assume that the inner, unstipulated intent is not relevant. Here, the Gemara dismisses the proof with the statement ״שאני התם דמצוה לשמוע דברי חכמים״. This case is different from the homeseller case because it is a mitzvah to follow the rabbis. We understand the words, but what is the logic? How does that relate to the matter of intent? Rambam famously provides an uncharacteristically long explanation for this ruling in Hilkhot Gerushin (2:20):

לְפִיכָךְ זֶה שֶׁאֵינוֹ רוֹצֶה לְגָרֵשׁ מֵאַחַר שֶׁהוּא רוֹצֶה לִהְיוֹת מִיִּשְׂרָאֵל רוֹצֶה* הוּא לַעֲשׂוֹת כָּל הַמִּצְוֹת וּלְהִתְרַחֵק מִן הָעֲבֵרוֹת וְיִצְרוֹ הוּא שֶׁתְּקָפוֹ וְכֵיוָן שֶׁהֻכָּה עַד שֶׁתָּשַׁשׁ יִצְרוֹ וְאָמַר רוֹצֶה אֲנִי כְּבָר גֵּרֵשׁ לִרְצוֹנוֹ.
* ^7
8

Rambam formulates this rule with great nuance: since the recalcitrant husband wants to be a ישראל, i.e, a member of the community, therefore, he also wants (has implicitly agreed to) follow the laws of the community. His decision not to follow the law is a drive that is “not him.” The coercion is allowing him to act in accordance with his own commitments.

Here, too, coercion does not reflect the court’s ignoring of his unstated intent. We are instead compelling him based on his originally implicitly stated intent. As a member of the Jewish community he is committed to following the law similar to the way that an American citizen living in New York is expected to follow Federal and State law. The Gemara has demonstrated that this is not a comparable case of דברים שבלב because in this instance his intent was communicated earlier through his actions. This of course raises the question of the validity of the earlier stated intent itself an interesting question for the class to explore.⁹

The first two proofs were rejected because in each case, a factor in the story reveals that the person indeed expressed a personal will regarding the action, either explicitly or implicitly. Therefore, these are not strong examples of דברים שבלב.

3. “But I thought that…”

The sugya tries again, this time from a Mishnah later in the perek. The Mishnah states:

הַמְקַדֵּשׁ אֶת הָאִשָּׁה וְאָמַר, כְּסָבוּר הָיִיתִי שֶׁהִיא כֹהֶנֶת וַהֲרֵי הִיא לְוִיָּה, לְוִיָּה וַהֲרֵי הִיא כֹהֶנֶת, עֲנִיָּה וַהֲרֵי הִיא עֲשִׁירָה, עֲשִׁירָה וַהֲרֵי הִיא עֲנִיָּה, הֲרֵי זוֹ מְקֻדֶּשֶׁת, מִפְּנֵי שֶׁלֹּא הִטְעַתּוּ.

In this case, the man, after the kiddushin was performed, claims that the betrothal was performed under mistaken pretences. The man thought that the woman was rich or poor, of noble lineage or not. Do we take the man’s claim seriously? The Mishnah says that the woman is considered betrothed. Since she did nothing to create the mistaken pretense, the kiddushin should stand as valid. What is at stake in this case? When I ask students what they think, they usually suggest that he should not be believed because he can’t be trusted. How do we know that he is telling the truth? If we trust this person, anyone could make a claim after the fact to nullify his commitment! But what, I ask, if he was telling the truth? He is married even though the kiddushin was based on a misunderstanding? The students are not sure how to manage that issue. We will return to it later.

More important for the moment, I point out to students that the Gemara rejects this proof for precisely the concern that they raised! Isn’t it possible, says the ba’al ha’sugya, that when the Mishnah says מקודשת, it means that the person is only מקודשת לחומרא? In other words, since we do not have grounds to believe him, we must treat it as a case of doubt and we are stringent, requiring a get prior to their ability to remarry. Ritva explains that since we have good reason not to believe the man, this does not serve as proof that דברים שבלב אינם דברים.¹⁰ The inference from this exchange between Abaye and Rav Yosef is crucial for understanding the arc of the sugya. The idea that the sugya seeks to prove is that we do not consider unstipulated factors even when we do believe the person. In other words, Rava is claiming the strongest version of the rule: it’s not that we don’t believe the person. Rather, his inner conceptions are not relevant even if they are true!

This is a nuanced and very significant idea, and one that is not intuitive to many students. Instinctively, one would think that the intentions of the buyer and seller are crucial to making a valid transaction. Yet, imagine a case where the man thinks he is marrying a rich woman. He has no intention nor desire to marry a woman who is not wealthy, but he did not stipulate that as a condition to the betrothal. If intent to marry this person is what validates the kiddushin such intent is lacking. Apparently the will of the man to commit to this woman is not required since that will is not present in this instance. We can see how far-reaching Rava’s rule is. When at the beginning of the sugya the ba’al ha’sugya asked about Rava’s source for this rule he was searching for the basis for the strong version of the דברים שבלב rule articulated by Rava that we don’t consider the unstated thoughts of the person even when we are certain that those thoughts were present.¹¹

These two versions of the דברים שבלב rule that we don’t consider unstipulated terms because we don’t believe the person (the weak version) or that we don’t consider the unstipulated terms of the person even when we do believe him (the strong version) is a popular lomdus question that is often expressed via the conceptual debate among the Acharonim. As a teacher in the classroom, two factors inform my approach to teaching this question: 1) I prioritize the study of the Gemara itself. What is each step in the sugya trying to teach us and 2) how do I make the most of the class, where time and attention are at a premium? The ability to uncover the lomdus question in the Gemara is gratifying because it achieves both of these goals and gives meaning to the extended steps in the sugya. I find this to be common when teaching (not only) high school Gemara. The conceptual discussion which often energizes the class discussion can be found in the Gemara itself.

4. Our Mishnah

The fourth proof comes from our Mishnah. Remember that when we started the sugya, students asked why we were learning about a man who sold his house to make aliyah; what does this have to do with kiddushin? Here is the answer. Our Mishnah is brought as the fourth attempt to locate a source for Rava’s rule. Already at this point, we can take note that this is not the final and conclusive proof, and yet the sugya was placed here, attached to this Mishnah. This is one of the structural sensitivities that I seek to convey to students. Sugyot are constructed with tremendous attention to structural, literary, and conceptual details. Why a sugya is attached to a particular perek and Mishnah can shed light on the meaning and concept that the sugya seeks to convey.¹² I ask students to keep this in mind as we proceed through the proof. Abaye offers this suggestion:

בְּכוּלָּם, אַף עַל פִּי שֶׁאָמְרָה בְּלִבִּי הָיָה לְהִתְקַדֵּשׁ לוֹ אַף עַל פִּי כֵן אֵינָהּ מְקוּדֶּשֶׁת

The man was mekadesh the woman on condition that he was wealthy or poor, lived in the metropolis or the suburbs. When she discovers that the condition was not fulfilled, she declares that she loves him and had intended to marry him regardless of the condition. Here, too, we disregard her claim; the marriage is not valid, and the woman can marry whoever she wants since she is not betrothed to the man.

Students are able to understand this proof, but it is not easy for them to understand why this proof (Abaye) is stronger than the previous one (Rav Yosef). We need to help students internalize that in circumstances of safek, we can be strict but we cannot be lenient. When the previous Mishnah stated that they are married despite the husband’s thoughts, we can suggest that this might be because we can’t trust that he is speaking the truth. Therefore, we treat them as married although we are not certain. Since our Mishnah states that they are not married, the woman is permitted to marry whomever she wants. That can only be done if we are certain; we would never permit the woman to marry someone else when in doubt. This Mishnah serves as proof that דברים שבלב אינם דברים, that we do not consider the person’s thoughts even when we are certain that he had those thoughts!¹³

The Gemara rejects this proof by saying כיון דאתניה לאו כל כמינה דעקרא ליה לתנאיה, since he betrothed her conditionally, her intention are not able to undo the explicit condition. Rashi explains that since they were obviously both present and attentive at the time of the conditioned betrothal, the woman had the opportunity to ask the husband to remove the condition from the transaction. Since she did not do so, her intentions are, at this point, not able to undo the explicitly stated condition.

At this point, we are equipped to explore this question. What makes a sale or other financial transaction between two people valid? Instinctively, we assume that the agreement between the parties validates the transaction. Here, however, we encounter a case of a person who is subject to the outcome of a sale that ultimately did not align with her intentions and the sale is nevertheless valid. What is the mechanism that validates such a sale?

I often find it useful to explore contemporary theory on the issue that I am studying. Often, the language of contemporary theory helps me “translate” a Talmudic debate into contemporary terms that I can make accessible to students. In this instance, I asked ChatGPT, to which I have explained that I teach Gemara and am principal of a Modern Orthodox Jewish high school, to provide a few sources that describe the legal theory behind contracts and what makes them work. ChatGPT immediately provided Charles Fried’s Contract as Promise and Randy Barnett’s A Consent Theory of Contracts.¹⁴ These essays explored the proposed bases for the binding nature of contractual arrangements. Barnett does not accept Fried’s idea of “contract as promise” because, among other reasons, we find that contracts can be valid even when the agreement ultimately does not fully conform to the wishes of the seller. If the buyer relied on the sale, some theorists suggest that “reliance” is enough of a reason to maintain the validity of the sale even without the full intention of the seller. Barnett maintains that neither promise nor reliance are independently able to justify contracts under all circumstances. Sometimes, we give up on the seller’s intent because we prioritize the reliance of the buyer. Sometimes, we do the reverse. Barnett’s explanation helped me understand Rav Shimon Shkop’s answer to this question.¹⁵

Rav Shkop seeks to explain the mechanism that makes the transaction work. How can we say that the intent of the parties validate the contract if we believe that דברים שבלב אינם דברים even when we know that the seller does not want to sell under the current circumstances? Rav Shkop distinguishes between intention and will or כוונה and רצון. Our financial system is also a social system that functions through kinyanim, performances of acquisition. When a person willfully performs such an action, the kinyan is valid and the transaction takes place. If the two parties willfully engage in that performance, that creates the reality of the transaction separate from the intentions of the parties.¹⁶ Although different from Barnett’s consent theory of contracts, I found it very helpful to use these contractual concepts to make Rav Shimon’s idea accessible to my students.

5. Me’ilah

To this point the ba’al ha’sugya has demonstrated that the goal is to prove that דברים שבלב are not valid even when we know that they are in fact the person’s intent. To reach this point the sugya rejected proofs where his thoughts are discounted in the face of explicitly (proof #1) and implicitly (proof #2) stated intentions when we are uncertain as to whether he is speaking the truth (proof #3) or when his thoughts contradict an explicitly stated and accepted condition (proof #4). This is not to say that his thoughts are at all valid in those cases; they are not. But we have not yet proven the “strong” view of Rava that his thoughts are invalid even when we know them to be true. To prove that the ba’al ha’sugya brings one more proof this time from Masechet Me’ilah (6:1).

הַשָּׁלִיחַ שֶׁעָשָׂה שְׁלִיחוּתוֹ, בַּעַל הַבַּיִת מָעַל. לֹא עָשָׂה שְׁלִיחוּתוֹ, הַשָּׁלִיחַ מָעַל. כֵּיצַד. אָמַר לוֹ, תֵּן בָּשָׂר לָאוֹרְחִים וְנָתַן לָהֶם כָּבֵד, כָּבֵד וְנָתַן לָהֶם בָּשָׂר, הַשָּׁלִיחַ מָעַל. אָמַר לוֹ, תֵּן לָהֶם חֲתִיכָה חֲתִיכָה, וְהוּא אָמַר טֹלוּ שְׁתַּיִם שְׁתַּיִם, וְהֵם נָטְלוּ שָׁלשׁ שָׁלשׁ, כֻּלָּן מָעֲלוּ. אָמַר לוֹ, הָבֵא לִי מִן הַחַלּוֹן אוֹ מִגְּלֻסְקְמָא, וְהֵבִיא לוֹ, אַף עַל פִּי שֶׁאָמַר בַּעַל הַבַּיִת לֹא הָיָה בְלִבִּי אֶלָּא מִזֶּה וְהֵבִיא מִזֶּה, בַּעַל הַבַּיִת מָעַל. אֲבָל אִם אָמַר לוֹ, הָבֵא לִי מִן הַחַלּוֹן וְהֵבִיא לוֹ מִגְּלֻסְקְמָא, אוֹ מִן גְּלֻסְקְמָא וְהֵבִיא לוֹ מִן הַחַלּוֹן, הַשָּׁלִיחַ מָעָל

The Mishnah brings three cases related to shelichut and me’ilah. The Gemara cites just a segment of the third case. All of the cases in the Mishnah convey one basic principle: if the proxy performs the assigned task, the owner is accountable and must pay the fine and bring the korban. If the proxy veers from the assigned task, he is accountable because he is not standing as proxy in place of the owner. The third case raises the relationship between thought and action. In this case, the owner told him to take money from the window or basket. The shaliach took the money from the window or basket but not the money which the owner intended. If we look at the action, the proxy did as he was told. The action fits the words. However, the owner claims that he intended that the shaliach take different money from that place. The Mishnah states that despite the owner’s lack of intent, he, the owner, is accountable because the shaliach did act in accordance with the stated task, so the shelichut stands. Rav Huna and Rav Chisda proved from this Mishnah that דברים שבלב אינם דברים. This proof stands at the conclusion of the sub-sugya.

Why is this proof better than the previous four attempts? From the Mishnah, it does appear that we do not listen to his claim of mistaken intent. However, it is unclear how this proves that we don’t take his unstated intent into account even when we know he is speaking the truth. How do we know that he is speaking the truth in this instance? In fact, the Gemara struggles to prove that we believe what he says but nevertheless exclude his intentions from consideration.¹⁷ I often find that, while students appreciate the steps in each of the earlier proofs, they are left somewhat confused as to why the final proof closes the discussion.¹⁸

As I repeatedly read through these lines to figure out how to explain them, I noticed the Amoraim cited in this sub-sugya and the order of their appearance. Rav Yosef and Abaye appear in proofs three and four. Rav Yosef, Rosh Yeshiva of Pumbedita (after Rabah’s passing) suggests the third proof. Abaye, his student and also in Pumbedita, disproves Rav Yosef’s suggestion and offers the proof from our Mishnah. The final proof from Meilah is brought by Rav Huna, the teacher of Rav Hisda (both Rashei Yeshivah in Sura) who is also mentioned in the fifth proof. Finally, I note that Rava, the source of the two memrot in our sugya, frequently debated with Abaye and married the daughter of Rav Chisdah. Taking note of this, I realize that the sugya is not in historical order. The final proof historically precedes proofs three and four. This prompts me to notice that proofs one and two do not cite any Amoraim from which they originate. Attention to basic historical facts indicates that something intentional is occurring in this sugya. I feel challenged to tell its story. I wonder what reading the sugya with a chronological lens might uncover.

Here is what I imagine. The question regarding דברים שבלב came up in the time of Rav Chisda who turned to his teacher Rav Huna for guidance. Rav Huna cited the Mishnah in Meilah as proof that unstipulated factors are excluded. Rav Yosef suggested a proof from the Mishnah later in Kiddushin where the man after the kiddushin, says כסבור הייתי שהיא כהנת. Abaye says that this might be because we do not believe the person and we are therefore more stringent because of our uncertainty. Can we prove that דברים שבלב אינם דברים even when we do believe him? Abaye then suggests our Mishnah as proof that even if we believe the woman we cannot include דברים שבלב in the case.¹⁹ Rava the latest of all of these Amoraim and the one who often sought to conceptualize case law decisions through a unifying idea establishes the concept of דברים שבלב אינם דברים in response to the case that came before him. This was the “raw material” that comprises the sugya.

What can we infer about the organization of the sugya using this information? Three things stand out to me. 1) The sugya is not in chronological order. 2) The Ba’al Ha’sugya introduced two proofs at the beginning of the sugya and rejected them. 3) The sugya is brought here in Kiddushin based on Abaye’s proposed proof despite the fact that the sugya ultimately moves past that proof.

Students will not notice the first point unless I highlight it for them, which I usually do not. By this point in the sugya, it is just too much information for them to take in. Sometimes, with a bit of scaffolding, they notice the second or third points. I do not spend time on this organizational question in class. I have pondered these questions, and I am not certain of the answers. Still, the questions themselves point to an intentional plan in the sugya.

Contract Law and Kiddushin

We saw that the concept of דברים שבלב אינם דברים was developed and sharpened via the steps of the sugya. The location of the sugya sheds light on a related goal of the sugya. The case brought before Rava raised a question in contract law. Two people willingly entered a transaction. Both understood the circumstances of the transaction in the same way. The circumstances changed when the seller was no longer able to move to Israel and that generated the dispute between them. The case of a contract dispute is different from the me’ilah case. While the cases are similar in that there are financial stakes and the intentions of the parties matter, the determination in the me’ilah case is based on laws of shelichut and not of contracts. A contract is entirely premised on the agreement between two parties regarding the commitments and responsibilities that they make to each other. A person intuits that the intentions of each party is crucial to a legally binding contract. And yet, misunderstandings occur. How do we reconcile the misunderstandings between the parties when they occur? While the question of intention is relevant in both the me’ilah and the contract cases they might carry different weights in these distinct arenas. Our sugya perhaps was seeking proof that 1) we do not take heed of unstipulated thoughts and 2) that we stand by that principle even when we know that the party is telling the truth regarding his intentions. The sugya through its structure conveys the following points regarding the דברים שבלב principle:

1. The original source for this principle was cited by Rav Huna together with Rav Chisda. By the end of the sugya, this source still stands and is not rejected.
2. The next generation of Amoraim sought a source in contract law. Rav Yosef brought the Mishnah from further on in the Masechet. This proves that the rule applies in contract cases but does not prove that this is so even when we know the person is speaking the truth.
3. The ba’al ha’sugya accepts Abaye’s suggestion that this is the best example in Mishnah of a contract case where his unstipulated intention is disregarded even when we know he is speaking the truth, although this proof has its limitations, as the ba’al ha’sugya notes.
4. The sugya further defined the contours of the דברים שבלב rule by adding the two opening suggestions. By suggesting and rejecting these proofs we gain a deeper understanding of Rava’s rule.

We return briefly to the larger sugya. Concluding the sub-sugya with the me’ilah case, we are also better equipped to understand the question that is raised in the next case of Rava:

הָהוּא גַּבְרָא דְּזַבְּנִינְהוּ לְנִיכְסֵיהּ אַדַּעְתָּא לְמִיסַּק לְאַרְעָא דְיִשְׂרָאֵל. סְלֵיק וְלָא אִיתְּדַר לֵיהּ. אָמַר רָבָא: כֹּל דְּסָלֵיק – אַדַּעְתָּא לְמֵידַר הוּא, וְהָא לָא אִיתְּדַר לֵיהּ. אִיכָּא דְאָמְרִי: אַדַּעְתָּא לְמִיסַּק, וְהָא סְלֵיק לֵיהּ.

In this case, as in the me’ilah case (and distinct from the other cases cited above), the unstipulated thoughts do not add or change anything in the contract or case. The person is not saying he does not want to fulfill a commitment or that he does not need to adhere to the contractual condition (תנאי). The words as stated (אדעתא למיסק לארעא דישראל) remain uncontested. The parties are disputing the meaning of the word. If the person said “to make aliyah,” what does that mean? Does it mean to successfully settle in the land or to arrive in the land? In this case the דברים שבלב do not change the terms; they interpret the terms! Rava is asking whether an interpretation of a word is considered unstipulated in light of the literal meaning of the word or is considered a stipulated intention since words have multiple possible meanings? Exploring the multiple meanings of words, our intentions in using them, and the impact of how we use them when making commitments to others prompts meaningful and relevant discussion with students.

Conclusion

Avie Walfish, in his analysis of the mishnayot of the second chapter of Kiddushin,²⁰ noted that the keyword in this chapter is the root ק-ד-ש. Variations of that root appear over 50 times in this chapter and 60 times in the third chapter even as the word קנין, the theme of the first chapter does not appear at all. With ק-ד-ש as the overarching keyword the chapter can be further divided into two parts. The first part (1-5) focuses on amira and the second part (6-10) focuses on kesef. By simply counting the words, we sense how the bulk of Mishnah Kiddushin subverts and reimagines the concept of marriage. In the first chapter, the woman, on the face of it, is the object of a kinyan and can be obtained in one of three ways (and even via the father’s consent). In the second and third chapters, it is a sanctified commitment between the man and the woman, agreeing between them on the terms of the commitment that is performed through speech and material exchange.

I have long found it odd that at the center of Mishnah Kiddushin, we find two chapters largely devoted to contracts and conditions. One gets the impression that betrothal is the exemplar of contractual arrangements. Seen from my present perspective, that feels cold and detached. However, seen as a progression within the mishnayot of Kiddushin, from chapter one to chapters two and three, and in light of the earlier sugyot in Kiddushin the Mishnah is making a bold statement about the nature of marriage as a commitment between the two partners the man and the woman themselves. In this spirit it is absolutely fitting for the sugya to teach us the functions and limitations of speech unstipulated intentions and contracts precisely as commentary on our Mishnah. The sugya of דברים שבלב and the real estate case that opens the sugya are placed here at the site of our Mishnah demonstrating that kiddushin serves as the prime example of two independent agents agreeing to the terms of their mutual commitment.

In 1953 shortly after the founding of the State of Israel David Ben Gurion sent a letter to the Secretary of the Treasury regarding the language on official forms of the State. The form required a couple to fill in their names as husband and wife. For the woman the form used the term אשתי my wife. For the husband the form used the term בעלי, a common term used by Chazal for the husband. Ben Gurion objected. Based on the verse from Hosea (2:18) והיה ביום ההוא תקראי אישי ולא תקראי לי עוד בעלי, Ben Gurion claimed that referring to the husband as בעל is idolatrous and suggests that the woman is subservient to the authority of the husband. The newly formed State should live out the ideals of the Tanakh. The ultimate relationship between the Jewish people and God should reflect the ideal marital relationship between man and woman.²¹ The forms of the State of Israel should state אישי and אשתי, a relationship based on mutual care and respect. This is the message of our Mishnah and generates our sugya that is attached to it.

1. I teach the sugya with the assumption that the seller’s intention to move to Israel was public and well known. This is a debate among the Rishonim. See Tosafot Ri”d who writes:

   אמר רבה הוי דברים שבלב ודברים שבלב אינן דברים – פירוש: אף על פי דמוכחא מילתא לעלמא דלמיסק לארעא דישראל זבין כגון שידעו בו שכיניו שהיה בדעתו לעלות כיון שלא פירש בפיו בעת המכירה כי הוא רוצה לעלות אמרינן דברים שבלב אינן דברים. דאי בדלא מוכחא למה לי למימר אינן דברים תיפוק ליה דלא מהימן דלא כל הימנו לומר כך היה בלבי ולבטל המכר. ותו דבעי תלמודא מנא ליה לרבה הא ואי דלא הוה מוכחא מילתא אמאי בעי מנא ליה והא סברא קאמר. אלא ודאי אף על גב דמוכחא מילתא שכך היתה דעתו אפילו הכי אמר דברים שבלב אינן דברים משום הכי בעי מנא ליה הא דהא הקנה לו בכל לב ואמאי אמרינן דברים שבלב אינן דברים. גם המורה הכי פירש לקמן בהילכתן גבי ודילמא שאני התם דלמפטר נפשיה מקרבן קא אתי. אבל האי גברא דחזינן ליה שטורח לעלות לארץ ישראל. אלמא אף על גב דמוכחא מילתא אמר רבה דברים שבלב אינן דברים.

   And Meiri:

   מי שמכר את ביתו וכבר הוציא קול וגלה דעתו להדיא שאינו מוכר אלא מפני שדעתו לעלות לארץ ישראל ונתפשט הקול הרבה אלא שמכל מקום לא הזכיר הוא גלוי הדעת זה בשעת המכירה מכרו קיים אע״פ שלא עלה ואע״פ שהיה בדעתו דוקא על דעת לעלות שאין דברים שבלב כלום התנה בדבר זה תנאי גמור בשעת המכר.

   Tosafot Ri”d quotes and disagrees with Rabbeinu Chananel who assumes that if people knew, the sale would in fact become invalid.
   In my teaching of the sugya described below, the debate among the Rishonim becomes precisely the point that the sugya is seeking to prove.

2. We, of course, begin the sugya with the Mishnah which is straightforward in style and structure. Students are able to work out the cases although they do need to puzzle out what the possible pros and cons are in each of the conditional statements. This itself is an interesting discussion. Why would someone prefer to live in a כרך, עיר or ,כפר for example? What are the contemporary analogues? Manhattan New Rochelle Lake Como Pa. Similarly why would one make marriage conditioned upon having help at home (בת או שפחה מגודלת) and so on. I consciously do not set students up for the opening case in the Gemara in the hope that it will draw a reaction.
3. It is worth drawing students’ attention back to the sugya of מצוה בו יותר מבשלוחו where the principle is stated and there is no concern to find a source for the principle in that instance. Why would the sugya prioritize finding a source for דברים שבלב while not doing so for מצוה בו יותר מבשלוחו? I am not sure of the answer and yet, highlighting this for students sensitizes them to the importance of a close reading of the Gemara paying careful attention to how the sugya is organized. I thank R. Nati Helfgot for this point.
4. Although the ba’al ha’sugya does not cite the entire Mishnah, I learn the full Mishnah with the students. The contrast between חטאות ואשמות on the one hand with עולות ושלמים on the other is crucial to understanding the point that the Mishnah is conveying regarding the principle of כופין אותו. See Meiri below.
5. It is interesting that, in this instance, the Gemara does not cite the text of the Mishnah but only the derasha on which it is based. We will return to this later.
6. A few examples: the opening sugya of Kiddushin has a number of structural parallels. We find a similar structure at the opening of the third perek. The stories of Ravin Hasida and Rav (59a) are identically structured as are the stories of R. Meir and R. Akiva in the yichud sugya (81a).
7. Most manuscripts of the Mishneh Torah read רוצה, as noted in the Frankel edition. The earlier popular edition and, for example, Sefaria, read ורוצה. The extra letter makes a significant difference. In yeshivot, it is common to cite R. Elchanan Wasserman’s explanation of this statement of the Rambam. Every Jewish person possesses a natural inclination deep in their soul to do God’s will. The layers of our thoughts and actions cover over that natural desire to perform mitzvot. When a beit din coerces the person to divorce his wife, they are uncovering that buried but authentic desire. See קובץ מאמרים. This is a paternalistic explanation; we know what the husband truly desires better than the husband knows himself. According to the reading provided in the body of the paper, the halakha is relying on the husband’s own implicitly stated desire to follow the law of the land as manifest by his decision to live in and act as a member of the community. These two readings are contingent on determining the correct text of the Rambam. See the following note.
   R. Nati Helfgot highlighted that this principle appears in the אור שמח as well cited by R. Shlomo Brody in brief, “The first is that the Talmud believed in strong-arming religious behavior when the coerced person was interested in reaping the religious benefits for their behavior (e.g. atonement or following communal law). Yet as R. Meir Simcha of Dvinsk noted, compulsion would not be mandated on someone who had no desire to be a part of this religious system. Accordingly, there would be little value in compelling someone to bring a sin-offering sacrifice, for example, if they didn’t believe they needed atonement.”
   Similarly, R. Aharon Lichtenstein writes, “Broadly speaking I know that I should not double park, and fundamentally I recognize the state’s right to prevent me from so doing. But when I return from the dentist to find that my car has been towed away, I am genuinely, if temporarily resentful, resentful. If we reject the notion that all sin is simply error, and if we recognize the clear fact that we are regularly derelict in performing duties of whose essential value and normative character we are fundamentally convinced, then we shall grasp the essence of paradoxically convincing coercion. When agent and patient share a basic recognition of the law and of its authority to impose upon the individual, coercion, even in the moral and religious sphere, becomes possible. Where such recognition is lacking it is wholly unworkable, and then of course, as R. Meir Simkha argued, it becomes immoral.” Religion and State in Leaves of Faith, Vol. 2 (Ktav Publishing, 2004) pgs. 18-19
8. Mishneh Torah, Gerushin 2:20. The full text of the Rambam is:

   וְלָמָּה לֹא בִּטֵּל גֵּט זֶה שֶׁהֲרֵי הוּא אָנוּס בֵּין בְּיַד עַכּוּ”ם בֵּין בְּיַד יִשְׂרָאֵל. שֶׁאֵין אוֹמְרִין אָנוּס אֶלָּא לְמִי שֶׁנִּלְחַץ וְנִדְחַק לַעֲשׂוֹת דָּבָר שֶׁאֵינוֹ מְחֻיָּב בּוֹ מִן הַתּוֹרָה לַעֲשׂוֹתוֹ כְּגוֹן מִי שֶׁהֻכָּה עַד שֶׁמָּכַר אוֹ עַד שֶׁנָּתַן. אֲבָל מִי שֶׁתְּקָפוֹ יִצְרוֹ הָרַע לְבַטֵּל מִצְוָה אוֹ לַעֲשׂוֹת עֲבֵרָה וְהֻכָּה עַד שֶׁעָשָׂה דָּבָר שֶׁחַיָּב לַעֲשׂוֹתוֹ אוֹ עַד שֶׁנִּתְרַחֵק מִדָּבָר הָאָסוּר לַעֲשׂוֹתוֹ אֵין זֶה אָנוּס מִמֶּנּוּ אֶלָּא הוּא אָנַס עַצְמוֹ בְּדַעְתּוֹ הָרָעָה. לְפִיכָךְ זֶה שֶׁאֵינוֹ רוֹצֶה לְגָרֵשׁ מֵאַחַר שֶׁהוּא רוֹצֶה לִהְיוֹת מִיִּשְׂרָאֵל רוֹצֶה הוּא לַעֲשׂוֹת כָּל הַמִּצְוֹת וּלְהִתְרַחֵק מִן הָעֲבֵרוֹת וְיִצְרוֹ הוּא שֶׁתְּקָפוֹ וְכֵיוָן שֶׁהֻכָּה עַד שֶׁתָּשַׁשׁ יִצְרוֹ וְאָמַר רוֹצֶה אֲנִי כְּבָר גֵּרֵשׁ לִרְצוֹנוֹ

9. This example raises an interesting question about the nature of one’s will. A citizen commits to following the law but then decides to violate the law. Philosophically speaking, which is the person’s “true” will? To draw on a more distant example, imagine a smoker who decides to quit. He tells friends and family that if anyone sees him with a box of cigarettes, they should throw it in the garbage. Exactly that occurs. When the family member attempts to throw out the cigarettes, the person says, “I changed my mind. I don’t want you to do it anymore.” Which is the “true” will of the person? See Gerald Dworkin, who distinguishes between first order and second order wills. Dworkin, G. (2015). The nature of autonomy†. Nordic Journal of Studies in Educational Policy, 2015(2). https://doi.org/10.3402/nstep.v1.28479. Dworkin G. The Theory and Practice of Autonomy. Cambridge Studies in Philosophy. Cambridge University Press; 1988: 3-20.
10. The full Ritva states:

    אלא אמר רב יוסף מהכא המקדש את האשה סתם ואמר אח”כ כסבור כו’ ואמאי והא קאמר כסבור הייתי אלא לאו משום דאמרי’ דברים שבלב אינן דברים. קשיא לי ודלמא משום דלא מהימנינן ליה שכך היה בדעתו הא אלו ידעו שכך היה בדעתו אינה מקודשת דדברים שבלב הוה דברים. וא”ל דמתני’ קשיתיה דקתני מקודש’ לגמרי בין לקולא בין לחומר’ ואם קדשה אחר אינה צריכה גט הימנו ואי משום דלא מהימן הוה לן למיחש לדבריו לחומרא להצריכה גט משני ומדלא חיישינן להכי שמעינן שאע”פ שהיה כן בדעתו לא מהני דדברים שבלב אינם דברים והיינו דדילמא הא דאמרינן מקודשת לחומרא הוא להצריכה גט משום דלא מהימן וצריכא גט נמי משני דלמא קושטא קאמר והרי זה נכון

11. Rav Yisroel Gustmann opens his shiur on this topic using Rava’s own words to show that Rava is claiming the strong version of the rule. He is struck by the verbose formulation of the Gemara: הוי דברים שבלב ודברים שבלב אינם דברים. Why is it formulated in two steps? Why did the Gemara not just say הוי דברים שבלב ואינם דברים? He suggests that Rava’s thoughts are not considered not only in the organic, intuitive way but in a legal positive way. There is a strong rule that excludes thoughts from playing a role in the transaction in all circumstances. We will explain this in greater detail below.
12. Jeffrey Rubenstein, Talmudic Stories: Narrative Art, Composition, and Culture (Johns Hopkins University Press: Baltimore and London, 1999)
13. Rashi says, אינה מקודשת. והיינו קולא.. When teaching Rashi, I seek to demonstrate what Rashi is conveying in his careful formulations. Students are often confused about what Rashi does: “he is not saying anything new” or “Rashi agrees with the Gemara.” Or, in this instance, it is easy to gloss over a two-word Rashi if I understand the proof in the Gemara. I generally prefer to explain the Gemara with the Rashi in mind, setting the students up to appreciate what Rashi is highlighting by reading the Rashi after they already understand the point of the Gemara. In this instance, if students understand the implications of the strict psak in the previous Mishnah and the lenient psak in ours, they can better understand what information Rashi seeks to provide us in his concise formulation, “והיינו קולא.”
14. Fried, Charles, Contract as Promise: A Theory of Contractual Obligation, 2nd edn (New York, 2015; online edn, Oxford Academic, 21 May 2015), accessed 5 June 2025. Barnett, Randy E., “A Consent Theory of Contract” (1986). Georgetown Law Faculty Publications and Other Works. 1551.
15. R. Shimon Shkop, Sha’arei Yosher, chapter 7, section 8.
16. This idea becomes the ground for discussing frivolous marriages the classic case of a teenage boy who “proposes” to a girl in summer camp reciting הרי את מקודשת in front of witnesses. Students instinctively find it odd that the rabbis take such cases seriously. By this point in the sugya they are much better able to understand why these cases are challenging. See Chaim Jachter Frivolous Marriages, Part 1. Accessed June 16, 2025.
17. The Gemara relies on a complicated application of the concept of מיגו to explain why we believe him. Students have an extremely difficult time understanding the Gemara’s explanation for why we believe him. Much more intuitive to them is the idea that he is likely lying in order to avoid the responsibility of bringing a korban. The idea of believing him because he could have claimed he was intentionally deceitful or that he remembered that the money was hekdesh but only after the appointment of shaliach and prior to the execution of the shelichut is complicated and not compelling to students. Tosfot RI”D notes that bringing a korban in a case of doubt could be a violation of bringing hullin la’azarah. This seems to me a much simpler proof that we completely exclude unstipulated mental considerations since he is obligated to bring the korban in this circumstance.
    I often skip these two lines in class, depending on the stamina of the group by this point in the sugya.
18. That is usually an indicator that I don’t understand it myself and therefore am not fully successful at explaining these complex steps to my students. As is quoted in the name of R. Chaim Brisker, א חסרון בהסברה איז א חסרון בהבנה.
19. The first two attempted proofs from the cases of coercion regarding korban and get are anonymous, presumably brought in order to more fully flesh out the ideas by bringing the varied cases in the sugya.
20. See the paper in our Making Sense series.
21. “תִּקְרְאִי אִישִׁי וְלֹא תִקְרְאִי לִי עוֹד בַּעְלִי”