Closer Is Not a Distance

The Hook

A man throws a coin toward a woman in a public lane, and the two of them have already agreed on what the coin means. It lands somewhere between them. The Rambam wants to know whether it fell closer to her or closer to him, which sounds like a question about handbreadths until he defines his terms. Closer to her means a place where she can guard it and he cannot. Closer to him means a place where he can guard it and she cannot. Halfway means either that both of them could or that neither of them could. Distance has nothing to do with it.

That is the last ruling of chapter four, and it is the whole chapter in miniature. This is a chapter of measurements, of a prutah's worth and a girl's age and the number of witnesses and the precise wording of a sentence spoken in a market, and every one of those measurements turns out on inspection to be a measurement of something other than what it appears to be. Nothing here is settled by the thing itself.

The Coin She Threw Into the Sea

The opening is an asymmetry most readers walk straight past. A woman is consecrated only willingly, and if she is forced nothing has happened. A man who is forced to consecrate has consecrated. One party is performing an act and the other is giving a consent, and consent is the one thing that cannot be produced by pressure. The Rambam then permits a man to consecrate many women at once by money, provided there is enough for a prutah to each, and permits one of them or an outsider to receive it on behalf of all, provided they agree.

What follows is a run of small cases about where the money went, and they are the finest thing in the chapter. He says that she should become consecrated to him with this dinar, and she takes it and throws it down in front of him, or into the sea, or into a fire, or anywhere it will be destroyed. She is not consecrated. She tells him to give it to her father, or to his father, or to a named third man, and she is not consecrated. She tells him to give it to that man so that he will receive it on her behalf, and she is. The same coin, the same hands, the same man standing there. The entire difference lies in a few words that establish whether the third party is a destination or an extension of her.

Then the rock. Put it down on that rock, she says, and nothing has happened. If the rock is hers, she is consecrated. If the rock belongs to both of them, the kiddushin stand in doubt. Then the loaf. Give it to a poor man, she says, and she is not consecrated, and the Rambam adds the detail that makes the ruling bite, that this holds even where she is the one who supports that poor man. Her charity does not turn his hand into her hand. Then the dog. Give it to the dog and nothing has happened, unless the dog is hers, in which case she is consecrated, and if the dog was chasing her when she said it, the matter is in doubt, because a woman getting an animal off her may not be disposing of anything at all.

And the market, which is almost embarrassing to read because everyone has stood in it. A man is selling produce or utensils and a woman comes and asks him for some. If he asks whether she will be consecrated to him should he give them, and she says yes, then she is consecrated when he hands them over. If she answers that he should just give them to her, or heave them over, or anything in that register, she is not consecrated although he gave her what she asked for, because the Rambam reads the register itself. Her words mean that he should stop fooling around about such matters and hand over what was asked for. A man drinking wine tries the same question and hears her ask only to be given a drink, or to be served, and the outcome is identical. She has the cup in her hand and she is not married. Two people said words to one another and only one of them was doing anything.

Whom the Law Refuses to Believe

The chapter turns to capacity, and it is far stricter than anyone expects in one place and far looser almost everywhere else. The strict place first. Kiddushin performed before a single witness are of no consequence, even where the man and the woman both acknowledge that they took place. Their own united word is worth nothing. Where the witnesses are disqualified by Rabbinic law, or their fitness is itself in doubt, she requires a get before she may marry anyone else, and this holds even when she denies the whole business and contradicts the witnesses to their faces.

Then the looseness, which runs for ten halachot together. A man may be very drunk and his kiddushin hold, and only a drunkenness on the order of Lot's voids them, and the Rambam, having ruled, adds that the matter requires ample deliberation, which is a rare thing to watch a man do in public. A seris consecrates and it binds absolutely. A man consecrates an aylonit and it binds absolutely. An apostate Jew who willingly worships a false deity consecrates absolutely, and she must receive a get from him. A man consecrates a niddah and the kiddushin are entirely binding, improper as the act is, and she is the one exception in the whole class of forbidden relations, where every other case produces nothing whatever.

The passage about the deaf mute is the one that stops the reader. A marriage between a deaf mute and a mentally competent partner is a Rabbinic institution and not Scriptural law, and therefore, when a mentally competent man consecrates the mentally competent wife of a deaf mute man, she is consecrated to the man who has just done it, he must give her a get, and she is permitted to remain married to her deaf mute husband. Every clause of that is uncomfortable and every clause of it follows exactly from the level at which each bond was made. Where the man is mentally incompetent, or the woman is, nothing has occurred on either level.

And the girl below majority. Under six, nothing, whatever her understanding, and no mi'un is needed to undo it. Over ten, consecrated by Rabbinic institution and mi'un needed, even where she is very foolish, since she accepted willingly. Between six and ten the court has to weigh whether she can discern what marriage and kiddushin are. The mi'un itself is two witnesses and one sentence, that she no longer desires him, and she leaves with no divorce, and if she stays with him until she reaches majority the kiddushin are finalized and nothing further needs doing. The bond hardens on its own if nobody interrupts it.

Whichever of Them Could Have Guarded It

The last stretch is delivery. A woman who is half a maidservant and half free is not completely consecrated until she becomes free, and the moment she is freed the kiddushin complete themselves, exactly as a minor's do when she comes of age, with no second act required of anyone. If another man consecrated her in the interval, both sets stand in doubt.

Then value. Money worth less than a prutah is not kiddushin. Food or a utensil worth less than a prutah puts the matter in doubt, because the object may be worth a prutah in another place, and from this, the Rambam says, the general rule for anything given as kiddushin can be derived. And then he steps out from behind the law. It appears to me, he writes, that where a man consecrated with cooked food, or a vegetable that will not be preserved, and the thing is not worth a prutah in that place, the kiddushin are not binding at all, because by the time this item reaches another place it will spoil and be worthless. This is a reasonable inference, he says, and one may rely on it. Read it slowly. The doubt in the previous line existed only because the object could travel. Give her something that cannot survive the distance and the doubt has nowhere left to stand.

Then the throw, and the definition that ends the chapter. He need not place the money or the document in her hand. If she consents he may throw it, into her hand or her bosom or her courtyard or her field, and she is consecrated. If she is standing in a domain belonging to him, he must place it in her hand or her bosom, since the ground under her feet is his. In a domain belonging to both of them, or where she tells him to put it down in a place they own together, the matter is in doubt. And in the public domain, or in a domain belonging to neither, it comes down to closer, and closer is guarding, and if the money was halfway or the matter is doubtful and it was lost before it reached her hand, the kiddushin are in doubt.

The Unifying Principle

Every measurement in this chapter is a measurement of custody.

The coin thrown into the sea never entered her keeping. The coin handed to her father did not enter it either, and the coin handed to a man appointed to receive for her did. The rock that is hers is her keeping and the rock they share belongs clearly to nobody. The poor man she feeds is not her hand. The dog running at her is not her dog for this purpose whoever owns it. The prutah's worth is not a statement about wealth, it is a statement about whether the object has enough standing in the world to be a thing at all, and a bowl of cooked food does not, because it cannot be carried anywhere and still be what it was. And in the street the winner is whichever of the two could have protected the coin from everybody else.

Which is why the chapter refuses the one thing everyone expects it to accept, that two people who both say they are married are married. Their agreement is knowledge, and knowledge is not custody. Nothing has been placed anywhere. A single witness leaves a fact that only they possess, and a fact only they possess has no standing outside the room it was made in. Meanwhile the apostate and the drunk and the man who consecrated a niddah have all done something that stands, whatever else is wrong with them, because the act reached the world.

The Alter Rebbe writes in the Tanya that thought and speech and action are the garments of the soul, and that a soul is not present in a room where it has put on none of them, so that a great intention which never dressed itself in a deed has not come down into the world at all. Kiddushin is that idea written as law. The Tzemach Tzedek presses the same point about mitzvot, that the deed is not the residue left over from the intention but the place where the intention arrives, and that the physical act cannot be dispensed with because arriving is the entire business. The Baal Shem Tov's insistence that the plain act of an unlettered Jew reaches higher than a scholar's unaccompanied contemplation is not sentiment about simplicity. It is this halachah, read from the other end.

Modern Application

There is a whole class of relationships that people carry for years on the strength of what both parties privately know. Something was said once. Both of them remember it the same way. Nothing was placed in anybody's hand and nobody outside has been told, and the two of them will explain with complete honesty that it is real and everyone else is being technical. This chapter answers, with no cruelty in it, that a thing two people know is not a thing two people have.

The definition of closer is worth taking home as well. A person can be the nearer of two by every measurement anybody would think to use, nearer to a child, to a friend, to an aging parent, and still not be the one who could guard. This law is not interested in who is standing beside the thing. It wants to know who could keep it from being taken.

And the cooked food. Give somebody something that will not survive the distance and nothing has been given that can be held to. The gesture may have been generous and entirely sincere and it may still be, in the exact sense of this halachah, worth less than a prutah in the only place it will ever be.

The Closing

Today is Chai Elul, the eighteenth of the month, the birthday of the Baal Shem Tov and of the Alter Rebbe, and the day is understood in Chassidus as the one that puts life into the service of the month. Elul carries in its letters the verse about the beloved and the belonging that runs between them, which is a verse about this very act, and this chapter has spent itself on what it takes for that sentence to be something other than a sentence.

The answer it gives is not romantic and it is better than romantic. A consent that cannot be manufactured by force. An object with enough standing to survive being carried out of town. A place to put it down that is genuinely hers. Two people watching who are not the two people involved. And a definition of nearness that has nothing to do with how close anybody happens to be standing.

The coin lands between them in the lane and nobody reaches for a measuring rod, because the question was never how far. It was which of them could have kept it safe. Go through the things you believe are yours, the relationships you are certain of, the commitments you know you have made, and ask of each one where exactly it was set down and who was standing there when it happened. Whatever cannot answer that is not smaller than you thought. It is not yet a thing.