A Synoptical Analysis Of Mishnaic/toseftan Parallels

Nissan Antine

 

A Synoptical Analysis of Mishnaic/Toseftan Parallels

It is difficult to understand the relationship between the Tosefta and the Mishnah. On the one hand, the Tosefta seems to comment on and explain the Mishnah. On the other hand, if the Tosefta is, in fact, a commentary on the Mishnah it should follow the latter’s order and structure. However, the Tosefta often has its own order and discusses issues that were not mentioned at all in the Mishnah. Furthermore, it includes statements by Tannaim who lived before Rebbe (the redactor of the Mishnah). Most scholars claim that the Mishnah is prior to the Tosefta. Jacob Neusnar famously pinned the Tosefta, “the Mishnah’s first Talmud.” Anyone who has studied Tosefta will immediately understand Neusnar’s claim. The Tosefta oftern qoutes a portion of the Mishnah verbatim and then explain the quoted passage. In recent years, Shamma Friedman and Judith Hauptman have challenged the traditional scholarly concensus. They claim that the Tosefta, or at least “an early core” of it, preceded the Mishnah. They therefore consider the Mishnah to be a shorthand edition of the Tosefta. The editor of the Mishnah, according to Hauptman, expected its readers to consult the Tosefta in order to better-understand the obscure, terse passages in the Mishnah. In this essay, I will use the Tosefta and Mishnah of Massechet Kiddushin as a case study through which to answer the following questions: What exactly is the relationship between the Tosefta and the Mishnah? If Hauptman and Friedman are correct and pericopae in the Tosefta are the sources of many mishnayot, what kind of editorial activity did Rebbe engage in? Conversely, if portions of the Tosefta comment on the Mishnah, what kind of commentary is it? Finally, was the entire text of the Tosefta compiled before the Bavli?

    A secondary goal of this essay is to introduce the reader to a new way of studying the Mishnah. I would therefore like to preface the analysis with a few words on methodology. In recent years, many academic scholars have adopted a synoptic approach to Rabbinic texts. “Synoptic” literally means to see together. Scholars who use this method usually line up parallel texts side by side in order to accentuate small differences in the texts. Likewise, I copied the entire text of both the Mishnah Kiddushin and the Tosefta Kiddushin and arranged them side by side. This synoptic view was extremely conducive for generating theories on the relationship between the two texts. For the purpose of this paper, all the words in the Tosefta can be divided into the following three categories:

1.)    Material that is identical, word-for-word, to the Mishnah.

2.)    Material that directly comments on or explains the Mishnah.

3.)    Everything else.

Material that falls under the first category will by indicated with a bold font. Many times, the Tosefta’s mishnaic parallel will not be identical and this will be indicated by italisizing the divergent words. The material that falls under the second and third categories will be in standard font.

 

The Relationship between the Tosefta and the Mishnah.

The Mishnah is a freestanding document. In other words, it is a document that can usually be read without reference to another document. The Tosefta is not a freestanding document. Many statements only make sense when seen together with the Mishnah. The following related pericopae found in Tosefta/Mishnah are an example of this:

הלכה ה אי זהו גירעון כסף רצה לפדות את עצמו בתוך השנים האילו מחשב את המעות ואת השנים ונותן לרבו מפני שיד העבד על העליונה  What is the “monetary redemption”? If he wants to redeem himself before these (six) years he calculates the money and the years (that remain) and he gives it to his master. For the hand of the master is on top.

משנה ב עבד עברי נקנה בכסף ובשטר וקונה את עצמו בשנים וביובל ובגרעון כסף … A jewish slave can be acquired with money or a document. He can repossess himself with years (after six years), with the Jubilee year, and with monetary redemption.

 

The Tosefta by itself makes no sense. It asks, “what is גירעון כסף (a monetary redemption)” without first mentioning it. However, if one reads the Tosefta’s question as a question on the Mishnah it begins to make sense. The Mishnah had said that one of the ways for a Jewish servant to go free is through גירעון כסף (a monetary redemption). The Tosefta then explains the procedure of גירעון כסף (a monetary redemption).

            It is clear that the above Toseftan statement and many like it come after and comment on mishnaic statements. However, other related Tosefta/Mishnah pericopae do not have such a clear relationship. It is sometimes difficult to ascertain whether the Tosefta is a lengthy commentary on the Mishnah or if the Mishnah is a concise, shortened version of the Tosefta. In other words it is difficult to tell which passage came first. One example is the first parallel in our Tractate:

 

תוספתא מסכת קידושין (ליברמן) פרק א הלכה א האשה נקנית בשלשה דרכים וקונה את עצמה בשני דרכים נקנית בכסף בשטר ובביאה בכסף כיצד נתן לה כסף [או שוה כסף]… הלכה ב ובשטר צריך לומר שטר שיש בו… הלכה ג ובביאה כל ביאה… 1.) A woman can be acquired in three ways and she can repossess herself in two ways. She can be acquired with money, a document, and sex. How is it done with money? He gives… 2.) (How is it done) with a document? Must it be… 3.) And (how is it done) with sex? Any sexual act…

משנה מסכת קידושין פרק א משנה א האשה נקנית בשלש דרכים וקונה את עצמה בשתי דרכים נקנית בכסף בשטר ובביאה בכסף בית שמאי אומרים בדינר ובשוה דינר ובית הלל אומרים בפרוטה ובשוה פרוטה וכמה היא פרוטה אחד משמנה באיסר האיטלקי וקונה את עצמה בגט ובמיתת הבעל… A woman can be acquired in three ways and she can repossess herself in two ways. She can be acquired with money, a document, and sex. With money, Bet Shamai say with a dinar or a dinar’s worth of merchandise. Bet Hillel say a prutah or a prutah’s worth of merchandise… And she can repossess herself with a dovorce document and with the death of her husband…

 

The first part of the Mishnah informs us that there are three ways to acquire a woman and that there are two ways in which she can repossess herself. The first part of the Tosefta reads exactly as the Mishnah does. The Tosefta then goes on to explain each of the three ways with which a woman could be aqcuired. At first glance, this parallel can be explained in two ways: Either the Mishnah could be a shortened (perhaps, for mnemonic purposes) version of the Tosefta or the Tosefta could be a commentary on the Mishnah.

However, a closer reading of the Mishnah shows that it must be prior to its Toseftan counterpart. The Mishnah itself has two strata. The first stratum by itself would only include the text in the bold font:

1) האשה נקנית בשלש דרכים וקונה את עצמה בשתי דרכים 2) נקנית בכסף בשטר ובביאה

3) בכסף בית שמאי אומרים בדינר ובשוה דינר ובית הלל אומרים בפרוטה ובשוה פרוטה וכמה היא פרוטה אחד משמנה באיסר האיטלקי  4) וקונה את עצמה בגט ובמיתת הבעל

1) A woman can be acquired in three ways and she can repossess herself in two ways. 2.) She can be acquired with money, a document, and through sex.

3.) With money, Bet Shamai say with a dinar or a dinar’s worth of merchandise. Bet Hillel say a prutah or a prutah’s worth of merchandise…4.) And she can repossess herself with a divorce document and with the death of her husband.

The Mishnah can be broken down into the above 4 parts. Part #1 informs us that there are three ways in which a woman can be aqcuired and two ways in which she can reposses herself. Part #2 lists the three ways that she can be aqcuired. Part #3 is an inserted 2^nd stratum that elaborates on part #2. Part #4 lists the two ways in which she can reposess herself. The Tosefta only includes parts #1 and #2 and leaves out part #4. Now, if the Tosefta is commenting on the Mishnah, then we can understand why the Tosefta left out part #4. For, it only quotes those parts of the Mishnah that it will comment on. However, if the Tosefta is independent of the Mishnah it would have to include part #4. For it makes no sense to tell us that there are two ways in which she can reposses herself (2^nd half of part #1) and not tell us what they are.

            The proof texts that I have mentioned thusfar have shown that the Tosefta or at least the proof texts themselves were composed after the Mishnah. Consequently, the final redaction of the text must have taken place after Rebbe compiled the Mishnah (ca 200 CE). However, there are many Toseftan passages that seem to predate their mishnaic counterparts.

One such example is found in the 2^nd chapter:

הלכה ב האומ' לשלוחו צא וקדש לי אשה פלנית ממקום פלני הלך וקדשה ממקום אחר אינה מקודשת הרי היא במקום פל' והלך וקדשה במקום אחר הרי זו מקודשת ר' [אלעזר] אומ' בכולן הרי זו מקודשת עד שיאמר אי איפשי שתתקדשי לי אלא במקום פל' One who says to his messenger, “go and marry for me that woman in that place.” He (the messenger) then went and married her (for him) in a different place – they are not married. (If he said) she is in that place and he married her in another place, they are married. Rabbi Eliezer says – in all cases they are married, except if he explicitely says, “I only want you to marry her for me in this place.”

משנה ד האומר לשלוחו צא וקדש לי אשה פלונית במקום פלוני והלך וקדשה במקום אחר אינה מקודשת הרי היא במקום פלוני וקדשה במקום אחר הרי זו מקודשת: One who says to his messenger, “go and marry for me that woman in that place.” He (the messenger) then went and married her (for him) in a different place – they are not married. (If he said) she is in that place and he married her in another place, they are married.

           

According to the Mishnah, if the man tells his messenger, “go marry that woman for me in that place,” and the messenger does it in another place, the marriage is invalid. If, on the other hand, he just informs the messenger that she is in a specific place, the messenger can perform the marriage ceremony in any place. The Tosefta records the opinion qouted in the Mishnah and the opinion of R’ Eliezer. According to R’ Eliezer the marriage will be valid unless the man explicitly says, “only marry her in this place.”

            Our Mishnah has a parallel in the sixth chapter of Gittin (the Tractate that deals with divorce). It reads as follows:

1.)               האומר תן גט זה לאשתי במקום פלוני ונתנו לה במקום אחר פסול הרי היא במקום פלוני ונתנו לה במקום אחר כשר.

2.)               האשה שאמרה התקבל לי גיטי במקום פלוני וקיבלו לה במקום אחר פסול

ר‘ אלעזר מכשיר.

1.)             One who says, “Give this get (divorce document) to my wife in that place.” And they gave it to her in a different place – it is invalid. (If he says) “she is in that place.” And it was given to her in another place – it is valid.

2.)             A woman who says “accept my get in that place” and it was accepted for her in another place – it is invalid.

Rabbi Elazar validates it.

           

This Mishnah is exactly like the one in Keddushin except that it is talking about a divorce document. In case #1, the man is sending a divorce to his wife. In case #2, the wife is sending a messenger to receive her get in absentia. The first opinion of the Mishnah states that if the man (in the first case) or the woman (in the second case) specify where the transaction should take place, it will only be valid if it is done in the specified place. Rabbi Elazar disagrees and validates it even in that case. The Mesoret Hashas points out that that the second opinion does not belong to Rabbi Elazar but to Rabbi Eliezer. This Rabbi Eliezer is the same person who disagreed with the Rabbis in the Tosefta quoted above. In the Tosefta Both in Keddushin and in Gittin), R’ Eliezer’s opinion is presented in his original statement. Here, in the Mishnah, Rabbi Eliezer’s opinion is cited without actually quoting his statement. It would follow that the Tosefta, which includes his statement is the source and the Mishnah , which only cites his opinion came later. In a later section, I will explain why Rebbe cites R’ Eliezer’s opinion in Gittin and not in Kiddushin.

The upshot of the evidence presented thusfar is that the Tosefta is two texts woven together. One text is a set of Tannnaitic statements that probably predate the Mishnah. The second text is a commentary on the Mishnah. Since one stratum of the Tosefta comments on the Mishnah, the former’s final redaction must have occurred after the completion of the Mishnah.

Tosefta as commentary on the Mishnah

            We have shown that while some of the pericopae in the Tosefta predate the Mishnah, others comment on the Mishnah. This does not mean that the editor of the Tosefta simply took two texts and stuck them together. The editor had a clear goal in mind that required considerable editorial activity in order to bring that goal to fruition. In this section, I would like to illustrate the editor’s goal through examples from Kiddushin. It is my contention that the editor never expected his readers to read the Tosefta on its own. He created the Tosefta as a companion book to the Mishnah. He accomplished this by taking all available material that was relevant to the Mishnah. On the hand, the Tosefta includes pericopae that the editor believed were the sources of certain mishnayot. On the other hand, it includes material that comments on the Mishnah. I have already provided examples of the former. I would now like to discuss the various ways that the Tosefta comments on the Mishnah.

            The first form of commentary is question/answer. In this form the Tosefta directly asks, “what is X,” where X is a term mentioned in the Mishnah. The Tosefta can also ask, “How is X done,” if X was mentioned in the Mishnah. We have already given an example of this (see above, example with גירעון כסף- a monetary redemption).

A second form of commentary takes the text of the Mishnah and incorporates the commentary into the text. An example of this kind of commentary can be found in the first chapter:

הלכה ו … וקונה את עצמו בכסף על ידי אחרים ובשטר על ידי עצמו מפני שהוא כנותן משמאל לימינו דברי ר' מאיר וחכמים או' בכסף על ידי עצמו ובשטר על ידי אחרים ובלבד שיהא כסף של אחרים ואומ' לו על מנת שאין לך רשות אלא בו… And he can repossess himself with money through someone else and with a document through himself because it is as if he is giving (money) from his left hand to his right hand. These are the words of R’ Meir. The Rabbis say with money through himself and with a document through someone else. Providing that the money belongs to someone else and they say to him (we give you this money) on condition that you only get it to redeem yourself.

משנה ג עבד כנעני נקנה בכסף ובשטר ובחזקה  וקונה את עצמו בכסף על ידי אחרים ובשטר על ידי עצמו דברי רבי מאיר וחכמים אומרים בכסף על ידי עצמו ובשטר על ידי אחרים ובלבד שיהא הכסף משל אחרים: A Canaanite slave is acquired through money, a document, and through possession. And he can repossess himself with money through someone else and with a document through himself. These are the words of R’ Meir. The Rabbis say with money through himself and with a document through someone else. Providing that the money belongs to someone else.

The Mishnah and its Toseftan counterpart are struggling with the idea of freeing a slave. The problem is that a slave cannot own money. Any money that he receives or finds automatically belongs to his master. If that is the case, how can he ever repossess himself with money? The Mishnah therefore says that one can only go free with money if a third party pays for the slave’s freedom. The Tosefta then comes and explains that the problem with a slave paying for his own freedom is that “it is as if he is giving (money) from his left hand to his right hand.” The Tosefta weaves this comment into the body of the text. The Tosefta does the same thing in the opinion of the Rabbis. According to the Rabbis the slave can make the actuall transaction of money “providing that the money belongs to others.” The Tosefta limits the assertion of the Rabbis to a case where the third party tells the slave, “(we give you this money) on condition that you only get it to redeem yourself.” Once again, the Tosefta inserts this qualification into the body of the text.

The final form of Toseftan commentary that I would like to discuss can help explain why the Tosefta often has a different order than the Mishnah. The following is an example from the the first chapter:

הלכה י אי זו היא מצות עשה שהזמן גרמא כגון סוכה לולב ותפלין אי זו היא מצות עשה שלא הזמן גרמא כגון אבידה ושלוה הקן מעקה וציצית ר' שמעון פוטר את הנשים מן הציצית מפני שהיא מצות עשה שהזמן גרמא הלכה יא אי זו היא מצות הבן על האב מאכיל ומשקה מלביש ומכסה מוציא ומכניס ומרחיץ את פניו ידיו ורגליו אחד האיש ואחד האשה אלא שהאיש ספיקה בו לעשות והאשה אין ספק בידה לעשות מפני שיש רשות אחרים עליה אי זו היא מצות האב על הבן למולו ולפדותו וללמדו תורה וללמדו אומנות ולהשיאו אשה ויש אומ' אף להשיטו בנהר ר' יהודה או' כל שאין מלמד את בנו אומנות מלמדו ליסטות רבן גמלי' אומ' כל שיש בידו אומנות למה הוא דומה לכרם [שמוקף גדירו לחרי' שמוקף סייג וכל שאין בידו אומנו' למה הוא דומה לכרם] שאין מוקף גדירו ולחריץ שאין מוקף סייג…

משנה ז כל מצות הבן על האב אנשים חייבין ונשים פטורות וכל מצות האב על הבן אחד אנשים ואחד נשים חייבין וכל מצות עשה שהזמן גרמה אנשים חייבין ונשים פטורות וכל מצות עשה שלא הזמן גרמה אחד אנשים ואחד נשים חייבין…

What is a positive mitzvah that is time-bound? For example – Sukkah, Lulav, Phylacteries. What is a positive mitzvah that is not time-bound? For example – returning a lost object…   What is a mitzvah of the son on the father? He feeds him, gives him to drink, clothes him, covers him, takes him in and out, washes him. Both a man (son) and a woman (daughter) but the man has the resources to do it. And she does not because she is dependent on someone else. What is a mitzvah of the father on the son? He circumicises him, redeems him, teaches him torah, teaches him a trade, marries him off, and some say even to teach him how to swim. R’ Yehuda says – anyone who does not teach his son a trade has taught him to be a highway robber. R’ Gamliyel says – anyone who has a trade to what can he be compared? To a vineyard that is surounded by a fence and to a ditch that is surounded by a fence. And anyone who has no trade to what can he be compared? To a vineyard that is not surounded by a fence and to a ditch that is not surounded by a fence.

All Mitzvot of the son on the father, men are obligated to do them and women are not obligated. All Mitzvot of the father on the son, both men and women are obligated to perform. And every positive Mitzvah that is time-bound – men are obligated and women are not obligated. And every positive Mitzvah that is not time-bound – both men and women are obligated.

These mishnayot discuss who is responsible to perform various categories of mitzvot. The first pair of categories is mitzvot that parents must do for their children and vice versa. The second pair is mitzvot that are time-bound and not bound by time respectively. The Tosefta provides examples for each category. The obvious question is why does the Tosefta invert the order. It first provides examples of the Time-Bound pair and only afterwards provides examples of Mitzvot that a father must do for his child.

I think that we can answer our question by explaining the function of the Tosefta’s final paragraph. The final paragraph consists of an independent Tannaitic fragmant that relates to the previous paragraph in the Tosefta. In the previous paragraph the Tosefta gives “teaching one’s son a trade” as an example of a mitzvah that a father must perform for his son. The Tosefta then quotes Tannaitic statements that discuss the importance of having a trade.  

 

Was the Tosefta compiled before the Talmudim?

Thusfar, we have shown that the Tosefta consists of at least two strata. The first stratum preceded and was the source of the Mishnah. The second stratum comes after and comments on the Mishnah. When was this second stratum composed? Did the Amoraim have the Toseftan commentary or not?

In Authority and Tradition, Yaakov Elman presents the current scholarly debate over the date of the redaction of the Tosefta. Chanoch Albeck gives our Tosefta a late amoraic or even post amaroic date. Albeck relies on three pieces of evidence to prove that the redactors of the Bavli did not have the Tosefta in its present form. First, there are discrepencies between Toseftan Braitot quoted in the Bavli and the way that they appear in the Tosefta itself. Second, he was bothered by the fact that the Bavli often fails to cite a passage that appears in our Tosefta when it could be used as evidence in a Talmudic discussion. Finally, the Bavli occasionally quotes something in the name of an Amora that appears in our Tosefta. According to Elman, “the current scholarly consensus has run against Albeck.” Elman continues, “Neusnar, Bokser, Goldberg, Hauptman, and Halivni have all assumed an early date for the Tosefta.” In this section, I will try to revive Albeck’s theory using Tractate Kiddushin.

The first piece of evidence that led Albeck to give the Tosefta a post-amoraic date were the many discrepencies between Toseftan Baraitot in the Bavli and their parallels in the Tosefta itself. I am not convinced that these discrepencies prove that Toseftan Braitot in the Bavli are not from the Tosefta. It is possible that the discrepencies are not the result of different sources but scribal error. It is also possible that the redactors of the Bavli intentionally “adapted these braitot for the purposes of the sugya at hand, shortening, combining, or otherwise emending them” (Elman). The following set of pericopae, quoted earlier, is an example of a Toseftan Baraitah that has been emended for the sugya at hand:

הלכה יא אי זו היא מצות הבן על האב מאכיל ומשקה מלביש ומכסה מוציא ומכניס ומרחיץ את פניו ידיו ורגליו אחד האיש ואחד האשה אלא שהאיש ספיקה בו לעשות והאשה אין ספק בידה לעשות מפני שיש רשות אחרים עליה אי זו היא מצות האב על הבן למולו ולפדותו וללמדו תורה וללמדו אומנות ולהשיאו אשה ויש אומ' אף להשיטו בנהר  What is a mitzvah of the son on the father? He feeds him, gives him to drink, clothes him, covers him, takes him in and out, washes him. Both a man (son) and a woman (daughter) but the man has the resources to do it. And she does not because she is dependent on someone else. What is a mitzvah of the father on the son? He circumicises him, redeems him, teaches him torah, teaches him a trade, marries him off, and some say even to teach him how to swim.

משנה ז כל מצות הבן על האב אנשים חייבין ונשים פטורות וכל מצות האב על הבן אחד אנשים ואחד נשים חייבין All Mitzvot of the son on the father, men are obligated to do them and women are not obligated. All Mitzvot of the father on the son, both men and women are obligated to perform.

 

            The Mishnah presents two categories of mitzvot (commandments). Only men are obligated to perform mitzvot that fall under the first category of מצות הבן על האב. Both men and women are obligated to perform mitzvot that fall under the second category of מצות האב על הבן. The Bavli, on 29a asks for a definition of the first category. Does it mean Mitzvot that are placed on the child to do for his/her parent or mitzvot concerning the child that the parent must perform? The Bavli rejects the former because we know that daughters are also obligated to honor their parents. It concludes that it is refering to the latter. In other words, according to the Bavli both sons and daughters are obligated to perform mitzvot that concern their parents but only fathers (and not mothers) are obligated to perform mitzvot that concern their children. The Bavli’s explanation of the Mishnah is in direct opposition to the Tosefta’s explanation of the Mishnah. According to the Tosefta, only sons must perform mitzvot that concerns their parents. The rationale given by the Tosefta is that daughters do not have the monetary means to honor their parents. It would follow that, according to the Tosefta, both mothers and fathers are obligated to perform the mitzvot that concern their children. This passage of the Tosefta seems to answer the original question of the Bavli in opposition to the Bavli’s answer for its own question. Yet, the Bavli does not cite it as a proof against its own conclusion. What’s more, the Bavli has the gall to cite the Tosefta as a proof to its own postion. It accomplishes this by slightly ammending the Tosefta. The Tosefta’s original form read:

אי זו היא מצות האב על הבן למולו ולפדותו וללמדו תורה וללמדו אומנות ולהשיאו אשה ויש אומ' אף להשיטו בנהר.

What is a mitzvah of the father on the son? He circumicises him, redeems him, teaches him torah, teaches him a trade, marries him off, and some say even to teach him how to swim.

The Bavli removes the words, “what is a mitzvah of the father on the son” and replaces them with the words, “a father is obligated to do for his child.” This example and many others like it show that the fact that the Bavli qoutes a Toseftan passage in a slightly different form does not give us a sufficient reason to assume that the Bavli did not have our version of the Tosefta. It is possible that the Bavli had the correct version but emmended it to fit into the sugya at hand. 

Now, I will cite examples of Albeck’s other pieces of evidence. The second kind of evidence is examples where the Bavli does not cite a Toseftan passage even though it is relevant to the discussion. The first such example is the first parallel in that tractate that was mentioned above:

הלכה א האשה נקנית בשלשה דרכים וקונה את עצמה בשני דרכים נקנית בכסף בשטר ובביאה A woman can be acquired in three (masculine) ways and she can repossess herself in two ways. She can be acquired with money, a document, and through sex.

משנה א האשה נקנית בשלש דרכים וקונה את עצמה בשתי דרכים נקנית בכסף בשטר ובביאה A woman can be acquired in three (feminine) ways and she can repossess herself in two ways. She can be acquired with money, a document, and through sex.

 

The Bavli on 2b asks, why does the Mishnah use the word שלש, which is feminine and not the masculine term, שלשה. The Bavli discusses this issue for an entire page and never once mentions the fact that the Tosefta actually says, שלשה. Although this example is interesting, it is not particularly compelling. It is possible that the Bavli had the Tosefta but that the Tosefta during that time actually said שלש. It was only after the Bavli’s redaction that the Tosefta was corrupted to read, שלשה.

            The second example of the Bavli failing to cite a relevant Tosefta was also mentioned above in a different context:

הלכה ב האומ' לאשה הרי את מקודשת לי על מנת שאדבר עליך לשלטון ואעשה עמך בפועל ונתן לה שוה פרוטה הרי זו מקודשת מיד עד שיאמר לא דברתי ולא עשיתי דברי ר' מאיר וחכמים אומ' נתקיים התניי מקודשת ואם לאו אינה מקודשת One who says to a woman, “You are married to me on stipulation that I speak to the Sultan on you behalf, or that I work for you” and he gives her a prutah, they are married immediately, Until (unless) he says I didn’t speak or I didn’t work. These are the words of R’ Meir. The Rabbis say if (and when) the stipulation is fulfilled, they are married. And if not (it is not fullfiled), they are not married. Rabbi Shimon ben Gamliyel says, we do not find a stipulation in scripture that is not doubled.

משנה ו האומר לאשה הרי את מקודשת לי על מנת שאדבר עליך לשלטון ואעשה עמך כפועל דבר עליה לשלטון ועשה עמה כפועל מקודשת ואם לאו אינה מקודשת One who says to a woman, “You are married to me on stipulation that I speak to the Sultan on you behalf, or that I work for you”- If he speaks to the Sultan on her behalf or worked for her she is married to him. And if not, she is not married to him.

The Mishnah says that if and when the man fulfills the stipulation, the kiddushin is valid. The Bavli says in the name of Resh Laqish that the man must also give her a prutah. The Bavli then has a discussion whether Resh Laqish is right or wrong. Now, if the Bavli did in fact have this Tosefta why didn’t the Bavli prove from the Tosefta that Resh Laqish is right. For, the Tosefta explicitly states “ונתן לה שוה פרוטה (and he gives her the worth of a prutah)” While it is true that, ונתן לה שוה פרוטה (and he gives her the worth of a prutah), is said by Rabbi Meir, the Rabbis probably also believe that the man must give her a prutah. For, if Rabbi Meir and the Rabbis are talking about different cases (the former where he gave her a prutah and the latter where he did not), then how do we know they are disagreeing. We could say that the Rabbis only said that the man must fulfill the stipulation in a case where he did not give her the prutah. Since, however, there is a disagreement it must be that the Rabbis believe that not only must he fulfill the stipulation but he also must give her a prutah. If this is true, why didn’t the Bavli cite the Tosefta as a proof for Resh Laqish? It follows that the Bavli did not have that particular passage of the Tosefta.

            Another instance where the Bavli fails to use a Toseftan Braita appears in the 2^nd chapter. The second half of the first Mishnah reads as follows:

1.) האומר לאשה התקדשי לי בתמרה זו התקדשי לי בזו אם יש באחת מהן שוה פרוטה מקודשת ואם לאו אינה מקודשת

2.) בזו ובזו ובזו אם יש שוה פרוטה בכולן מקודשת ואם לאו אינה מקודשת

3.) היתה אוכלת ראשונה ראשונה אינה מקודשת עד שיהא באחת מהן שוה פרוטה:

1.)    One who says to a woman, “Marry me with this date, marry me with this one.” – If one of them is worth a prutah, she is married, and if not she is not married.

2.)    With this one, and with this one, and with this one -  if (in the aggregate) there is the value of a prutah in all of them, she is married, and if not she is not married.

3.)    If she was eating one at a time (as she received them), she is not married unless one of them (by itself) is worth a prutah.

                       

This Mishnah wants to know whether or not a man can give a woman dates for the Kidddushin. The problem is that although the sum of all the dates is a prutah, each date by itself is worth less than a prutah. In case #1, the man separates each date by giving each its own statement of kiddushin. Each date is therefore on its own and must be worth a prutah by itself. In case #2, on the other hand, there is one proclomation of kiddushin on all three dates. Therefore, as long as in the aggregate the dates are worth a prutah, the kiddushin would be valid. In case #3, she ate each date as she received it before she received the subsequent date. In that case, the kiddushin would only be valid if one of the dates, on its own, would be worth a prutah. The Bavli, on 46a, wants to know if #3 is going on #1 (the case where there was a separate proclamation for each date) or on #2 (the case where there was one proclamation for all the dates). The Stam Gemara presents a disagreement between Rav/Shmuel and Rabbi Ami. Rav and Shmuel say that #3 is going on #1 and Rabbi Ami says that #3 is going on #2. The Tosefta specifically adresses the issue:

הלכה ג

התקדשי לי בזו ובזו היתה אוכלת ראשונה ראשונה אם נשתייר בידו שוה פרוט' מקודשת ואם לאו אינה מקודש'

Marry me with this one and with this one, if she was eating one at a time (as she received them), if a prutah remains in his hand she is married and if not, she is not married.

 

This Tosefta explicitely states that #3 (the case when she ate the dates as she received them) is going on #2, as Rabbi Ami said. Why then does the Bavli not mention this Tosefta as a proof for Rabbi Ami? Once again, it must be that the Stam Bavli did not have this Tosefta.

Albeck’s final proof that the Tosefta was redacted after the Amoraic period is the fact that the Bavli will often quote a statement in the name of an Amora that was, in reality, already said in the Tosefta. One such example is found in the Bavli, 47a. The Bavli’s point of departure is a statement in the name of Rav: If one is מקדש with a loan (the man forgives the debt that she owes him), it is not a valid kiddushin. The Bavli asks, why is Rav stating this, it is a Tannaitic dispute. Rabbi Nahman answers that according to Huna, that Tannaitic dispute is not dealing with a case in which she owes him money but in a case where he says “I am being מקדש you with a Manah” and then he gives her a Manah minus a Dinar. One Tanna believes that she will have the gall to demand the rest of her money and it is therefore a valid kiddushin. The second Tanna says that she will not demand her due and it is therefore not a valid kiddushin. The problem with this gemara is that this statement, attributed to Huna, is an explicit statement in the Tosefta:

הלכה ח

התקדשי לי במנה זה ונמצא מנה חסר דינר אין מקודשת

Marry me with this manah (currency) and bedold it is a manah missing a dinar, she is not married.

Furthermore, while in the Tosefta it is an undisputed statement, the Bavli claims that it is the subject of dispute. Once again, it would follow that the Bavli did not have access to this Toseftan Baraita.

What Kind of Editor was Rebbe?

            Now that we have established that the Mishnah is an edited version of the Tosefta, it is important to figure out Rebbe’s editorial program. I have identified at least four different forms of editorial activity that Rebbe engaged in.

            In the first form, Rebbe changes the language of a particular Tosefta without making any substantive change. An example of this is found at the end of the first chapter:

משנה י כל העושה מצוה אחת מטיבין לו ומאריכין לו ימיו ונוחל את הארץ וכל שאינו עושה מצוה אחת אין מטיבין לו ואין מאריכין לו ימיו ואינו נוחל את הארץ Whoever does one mitzvah (commandmennt), he will have long and good days and he will inherit the land. And anyone who doesn’t do one mitzvah will not have good and long days and will not inherit the land.

הלכה יג העושה מצוה אחת מטיבין לו ומאריכין לו ימיו ושנותיו ונוחל את האדמה וכל העובר עבירה אחת מריעין לו ומקטפין את ימיו ואין נוחל את הארץ He who does one mitzvah, will have good and long days and years and he will inherit the ground. And anyone who transgresses one transgression, his days will be bad and cut off and he will not inherit the land

Both the Mishnah and the Tosefta begin by saying that one who does one mitzvah will have a great life. The second half of the Tosefta continues and says that someone who does one transgression will get punished with a bad and short life. The second half of the Mishnah, on the other hand, just says that someone who doesn’t do a mitzvah will not get the reward. It seems that the Mishnah tried to tone down the harshness of the Tosefta. This is one of Rebbe’s editorial activities.

            A second form of editorial activity can be found at the end of the Masechet (Tractate):

הלכה ט מתייחדת אשה אחת עם שני אנשים אפי' שניהם כותיים אפי' שניהם עבדים אפי' אחד כותי ואחד עבד חוץ מן הקטן שאינה בושה לשמש כנגדו One women can be alone with two men even if both of them are Cuttim, even if both of them are slaves…as long as one of them is not a minor because she would not be imberrased to be sexual with the older man in from of the minor.

משנה יב לא יתיחד אדם עם שתי נשים אבל אשה אחת מתיחדת עם שני אנשים רבי שמעון אומר אף איש אחד מתייחד עם שתי נשים בזמן שאשתו עמו וישן עמהם בפונדקי מפני שאשתו משמרתו… One man should not be alone with two women but one woman can be alone with two men. R’ Shimon says, even one man with two women in a case where his wife is in the same hotel because his wife will guard him…

The above parallel discusses the prohibition of yichud. Yichud means that two people who are not permitted to be sexually active with each other are not allowed to be together by themselves. Consequently, a married woman cannot be in a room with a man if there is nobody else present. Our Tosefta says, “one woman can be alone with two men.” The logic behind this law is that we are not afraid that she will have sex with one of the men in the presence of the other. When Rebbe qoutes this law, he gives it a preface. His preface makes explicit what the Tosefta made implicit. The Tosefta said that one woman can be alone with two men. This implies that one man cannot be alone with two women. The difference between one man with two women and one woman with two men is as follows: In the latter case the ill-intentioned couple will be imberrased to act in the presence of a non-compliant male. However, in the former case the ill-intentioned couple will act in the presence of a noncomplying female. Rebbe explicitely states this and then qualifies it. He says that there is even a case where it is permitted for a man to be with two women. Namely, if his wife is in the building. In this case, Rebbe’s editorial activity consisted of making explicit what the Tosefta made implicit and then qualifying that statement.

            The final example of editorial activity that I would like to discuss occurs at the end of the second and the beginning of the third chapters. Two distinct editorial activities take place in this parallel:

הלכה ב האומ' לשלוחו צא וקדש לי אשה פלנית ממקום פלני הלך וקדשה ממקום אחר אינה מקודשת הרי היא במקום פל' והלך וקדשה במקום אחר הרי זו מקודשת ר' [אלעזר] אומ' בכולן הרי זו מקודשת עד שיאמר אי איפשי שתתקדשי לי אלא במקום פל' והאומ' לחבירו צא וקדש לי אשה פל' והלך וקדשה לעצמו מקודשת לשיני הלכה ג מעכשיו לאחר שלשים ובא אחר וקידשה בתוך שלשים יום מקודשת לשיני כיצד יעשו אחד נותן גט ואחד כונס אם היו שני אחים נפסלה מזה ומזה הלכה ד המקדש בטעות… הלכה ה המקדש בגזילה ובפקדון… הלכה ו המקדש בבשר מעשר… הלכה ז המקדש בין בקדשי קדשים בין בקדשים קלים… הלכה ח המקדש ביין נסך ובע"ז בעיר הנדחת… 2.) One who says to his messenger, “go and marry for me that woman in that place.” He (the messenger) then went and married her (for him) in a different place – they are not married. (If he said) she is in that place and he married her in another place, they are married. Rabbi Eliezer says – in all cases they are married, except if he explicitely says, “I only want you to marry her for me in this place.” And One who says to his friend, “go and marry for me that woman.” And then he (the friend) went and married her for himself, she is married to the second one (the friend). 3.) From now and until thirty days, and another one come and marries her within thirty days, she is married to the second one. What should they do? One should marry her and one should divorce her. If they were both brothers, she is forbidden to both. One who marries… One who marries… …

משנה ד האומר לשלוחו צא וקדש לי אשה פלונית במקום פלוני והלך וקדשה במקום אחר אינה מקודשת הרי היא במקום פלוני וקדשה במקום אחר הרי זו מקודשת: משנה ה המקדש את האשה… משנה ו המקדש שתי נשים… משנה ז המקדש אשה ובתה… משנה ח המקדש בחלקו… משנה ט המקדש בערלה… משנה י המקדש בתרומות ובמעשרות… משנה מסכת קידושין פרק ג משנה א האומר לחברו צא וקדש לי אשה פלונית והלך וקדשה לעצמו מקודשת וכן האומר לאשה הרי את מקודשת לי לאחר שלשים יום ובא אחר וקדשה בתוך שלשים מקודשת לשני בת ישראל לכהן תאכל בתרומה מעכשיו ולאחר שלשים יום ובא אחר וקדשה בתוך שלשים יום מקודשת ואינה מקודשת בת ישראל לכהן או בת כהן לישראל לא תאכל בתרומה: 4.) One who says to his messenger, “go and marry for me that woman in that place.” He (the messenger) then went and married her (for him) in a different place – they are not married. (If he said) she is in that place and he married her in another place, they are married. 5.) One who marries a woman… 6.) One who marries two women… 7.) One who marries a woman and her daughter… 8.) One who marries with his portion… 9.) One who marries with orlah… 10.) One who marries with the tithe… Chapter 3 1.) One who says to his friend, “go and marry for me that woman.” And then he (the friend) went and married her for himself, it is a valid marriage. So to one who says to a women, “you are married to me from now and until thirty days,”and anther one come and marries her within thirty days, she is married to the second one. …

The first form of editorial activity is found immediately. The Tosefta presents a disagreement between the anonymous opinion (stam) and R’ Eliezer. According to the stam, if you say “this woman from this place,” and the messenger married her in a different place, the marriage is not valid. According, to R’ Eliezer the marriage would be valid. For R’ Eliezer, the marriage would only be invalid if the prospective husband said, “I only want you to marry her for me in that place. The Mishnah (Rebbe) only records the opinion of the stam. Previously, we mentioned that the parallel Mishnah in Gittin does mention the opinion of R’ Eliezer. Why would Rebbe mention R’ Eliezer’s opinion in Gittin and omit it in Kiddushin?

            In order to answer this question we must analyze the Mishnhah in Gittin once again:

1)                 האומר תן גט זה לאשתי במקום פלוני ונתנו לה במקום אחר פסול הרי היא במקום פלוני ונתנו לה במקום אחר כשר.

2)                 האשה שאמרה התקבל לי גיטי במקום פלוני וקיבלו לה במקום אחר פסול

ר‘ אלעזר מכשיר.

1)               One who says, “Give this get (divorce document) to my wife in that place.” And they gave it to her in a different place – it is invalid. (If he says) “she is in that place.” And it was given to her in another place – it is valid.

2)               A woman who says “accept my get in that place” and it was accepted for her in another place – it is invalid.

Rabbi Elazar validates it.

           

In case #1, the man is sending a divorce to his wife. In case #2, the wife is sending a messenger to receive her get in absentia. The first opinion of the Mishnah states that if the man (in the first case) or the woman (in the second case) specify where the transaction should take place, it will only be valid if it is done in the specified place. Rabbi Eliezer disagrees and validates it even in that case. The Bavli assumes that R’ Eliezer only disagrees in case #2. It therefore asks, “what is the difference between case #1 where R’Eliezer doesn’t disagree and case #2 where he does disagree”? The Bavli answers that in the first case, the husband was the one who made the statement. Since, he can divorce his wife against her will, he means to specify a specific place. However, in case #2, the women cannot demand a divorce. She will therefore accept the divorce wherever she gets it. Consequently, when she does name a place she is only letting the messenger know where the husband will be. This logic weakens R’ Eliezer’s position in Kiddushin. A man who sends Kiddushin to a woman is not in the same position as a woman who receives a divorce. He cannot be forced into giving kiddushin. We should therefore say that when he specifies a place, he wants it to take place only in that place. Yet, R’ Eliezer argues in the Tosefta. Rebbe believed that R’ Eliezer’s position was very weak in that case. He therefore did not cite it.

            The second editorial activity is not as immediately obvious. Halakha Bet (2) of the Tosefta has two laws. Law #1 was where he tells his messenger to marry me this woman in this place. Law #2 is where he tells his friend, “marry for me that woman,” and then his friend goes and marries her for himself. Both of these cases are conceptually and linguistinctictly (they begin with the same words) linked. Consequently, they are listed in succession in the Tosefta. The Mishnah, however, lists Law #1 in the fourth Mishnah of the second chapter. It doesn’t list Law #2 until the first Mishnah of the third chapter. There are six full mishnayot (plural for Mishnah) in between the two laws. The interesting aspect of all these mishnayot is that they all begin with the word, המקדש (one who marries). It would appear that there was a list of המקדש (one who marries) – mishnayot that Rebbe had. He wanted to stick them somewhere and decided to put them between these two laws. The Tosefta also has a list of המקדש (one who marries) – passages. They are listed after the two laws. For some reason, Rebbe stuck the list in between two Mishnayot that seem to be linked.

            In conclusion, the Tosefta is primarily a commentary on the Mishnah. It does, however, include some Tannaitic material that predates the Mishnah. Since it does include comments on the Mishnah, the redaction of the Tosefta, as we have it, must have taken place after the redaction of the Mishnah. Whether it was redacted before or after the Talmudim is the subject of scholarly dispute. Chanoch Albeck’s claim is that the Tosefta was not redacted until post-Amaroic times. In this essay, I used Tractate Kiddushin to support Albeck’s claim.

            Throughout this paper I have used a synoptic approach in order to determine the ralationship between the Mishnah and the Tosefta. However, the synoptic approach should not be limited to scholarly endeavors. Everytime one studies a Mishnah, s/he should look up the relevant Toseftan passages. Many times the Tosefta is quoted in the Gemara but occasionally it is left out. Even when the Tosefta is quoted in the Gemara it is often quoted in a variant form than the one that appears in our Tosefta. These differences are always edifying and usually spice-up the sugya at hand.