The Talmud is the most comprehensive compilation of the Oral Law.
Throughout its many volumes, one finds the rabbis engaged in two
types of discussions, halakha (purely legal matters), and
aggadata (ethical and folkloristic speculations).
The opening Mishna in the tractate Bava Mezia is a classic
"Two men are holding a cloak [and come before a judge]. This
one says: 'I found it,' and the other one says, 'I found it.'
If this one says, 'It is all mine,' and the other one says, 'It
is all mine,' then this one must swear that he does not own less
than a half, and the other must swear that he does not own less
than a half and they divide it [dividing means that each gets
half of the value of the cloak].
"If this one says: 'It is all mine,' and the other one says,
'It is half mine' [because he believes that they discovered it
the one who says, 'It is all mine' must swear that he does not
own less than three quarters, and the one who says, 'Half of it
is mine' must swear that he does not own less than a quarter,
and this one takes three quarters and this one takes one quarter."
The Talmud's discussion of this Mishna is very extensive, and
directly and indirectly raises numerous legal nuances. For one
thing, since each party concedes that he only found the cloak
but never purchased it, what about the man to whom the cloak originally
belonged-shouldn't it be returned to him? We must assume, therefore,
that the cloak either had been abandoned or that efforts to find
the owner had proven futile. (There are extensive laws in the
Talmud dealing with restoring lost objects to their owners, based
on the biblical laws recorded in Deuteronomy 22:13.)
Secondly, it is no coincidence that the Mishna portrays both parties
coming into court holding the cloak. As a rule, Jewish
law accepts the principle that "possession is nine tenths
of the law." In noting that both litigants are holding the
garment, the text underscores that each has a tangible claim.
If, in fact, only one party held the cloak, the cloak would be
presumed to belong to him unless the second litigant could produce
evidence that the first person had taken it from him.
Third, why the need for an oath at all? Why not just divide the
cloak? The purpose of the oath is to induce fear in the liar,
to discourage him from persevering in his dishonesty. Without
an oath, a person might be more prone to lie, feeling that no
harm is involved, since he is not depriving the real finder of
something that had cost him money, but only of something he had
found. Rabbi Louis Jacobs summarizes the principle behind the
oath: "While a man may be willing to tell an untruth in order
to obtain something that is not his, he will be reluctant to swear
in court that he is telling the truth when he is not really doing
so." In Jewish law, perjury is a particularly serious sin,
and outlawed by the ninth of the Ten Commandments.
Fourth, why do the rabbis impose so strange an oath? Since each
litigant claims "it is all mine," why not have each
one swear that the entire cloak belongs to him? What is the sense
in saying "I swear that I own not less than a half."
There is a moral consideration behind the strange wording. Were
each party to swear to owning the entire garment, the court knowingly
would be administering a false oath: Two people would be
swearing to full ownership of one garment. Yet were each party
to swear that he owns only half of the garment, he would be discrediting
his earlier claim that he owns it all. That is why each party
swears, "I own not less than a half." This is the only
oath that might possibly be truthful, for the two litigants might
have picked up the garment simultaneously.
As for the Mishna's second partin which one party
claims ownership of the whole garment, and the other ownership
of halfwhy the strange wording of the oath, and why
give one litigant three quarters of the garment's value and the
other only one quarter? The Talmud reasons: Since the person who
claims that he owns only a half admits that the other half of
the garment belongs to the first litigant, the dispute facing
the court is restricted to the remaining half. That half, the
court in turn divides in half, so that one party gets three quarters
and the other a quarter.
This lengthy discussion about halves reminds me of an old Jewish
joke about a man who complains to his friend, "A horrible
thing. My daughter is getting married tomorrow and I promised
a fivethousand ruble dowry. Now, half the dowry is missing."
"Don't worry," his friend consoles him. "Everybody
knows that people usually pay only half the promised dowry."
"That's the half that's missing."
Aggadata refers to all of the Talmud's nonlegal discussions,
including such varied matters as medical advice, historical anecdotes,
moral exhortations, and folklore. One particularly wellknown
bit of aggadata is found in the talmudic tractate Bava
Mezia 59b. The aggadata follows a halakhic discussion
in which the rabbis debated whether an oven that had become impure
could be purified. While almost all the sages felt it couldn't
be, Rabbi Eliezer, a lone voice but a great scholar, disagreed:
"On that day, Rabbi Eliezer put forward all the arguments
in the world, but the Sages did not accept them.
"Finally, he said to them, 'If the halakha is according
to me, let that carobtree prove it.'
"He pointed to a nearby carobtree, which then moved
from its place a hundred cubits, and some say, four hundred cubits.
They said to him 'One cannot bring a proof from the moving of
"Said Rabbi Eliezer, 'If the halakha is according
to me, may that stream of water prove it.'
"The stream of water then turned and flowed in the opposite
"They said to him, 'One cannot bring a proof from the behavior
of a stream of water.'
"Said Rabbi Eliezer, 'If the halakha is according
to me, may the walls of the House of Study prove it.'
"The walls of the House of Study began to bend inward. Rabbi
Joshua then rose up and rebuked the walls of the House of Study,
'If the students of the Wise argue with one another in halakha,"
he said, "what right have you to interfere?'
"In honor of Rabbi Joshua, the walls ceased to bend inward;
but in honor of Rabbi Eliezer, they did not straighten up, and
they remain bent to this day.
"Then, said Rabbi Eliezer to the Sages, 'If the halakha is
according to me, may a proof come from Heaven.'
"Then a heavenly voice went forth and said, 'What have you
to do with Rabbi Eliezer? The halakha is according to him in every
"Then Rabbi Joshua rose up on his feet, and said, 'It is
not in the heavens' (Deuteronomy 30:12).
"What did he mean by quoting this? Said Rabbi Jeremiah, 'He
meant that since the Torah has been given already on Mount Sinai,
we do not pay attention to a heavenly voice, for You have written
in Your Torah, 'Decide according to the majority' (Exodus 23:2).
"Rabbi Nathan met the prophet Elijah. He asked him, 'What
was the Holy One, Blessed be He, doing in that hour?'
"Said Elijah, 'He was laughing and saying, "My children
have defeated me, my children have defeated me.""'
The BritishJewish scholar and writer Hyam Maccoby has commented:
"This extraordinary story strikes the keynote of the Talmud.
God is a good father who wants His children to grow up and achieve
independence. He has given them His Torah, but now wants them
to develop it...."
A third category of rabbinic literature is midrash, of
which there are two types. Midrash aggada derive the sermonic
implications from the biblical text; Midrash halakha derivelaws
from it. When people use the word midrash, they usually
mean those of the sermonic kind. Because the rabbis believed that
every word in the Torah is from God, no words were regarded as
superfluous. When they came upon a word or expression that seemed
superfluous, they sought to understand what new idea or nuance
the Bible wished to convey by using it. Thus, we find the following
discussion on a verse from Genesis concerning Noah.
"This is the story of Noah. Noah was a righteous and blameless
man in his generation" (Genesis 6:9).
What words seem superfluous? "In his generation." So
why, the rabbis ask, did the Torah include them?
Characteristically, more than one view is offered. Rabbi Yochanan
said: "In his [particularly awful] generation [Noah
was a righteous and blameless man] but not in other generations."
Resh Lakish maintained: "[If even] in his generation' how
much more so in other generations" (Sanhedrin 1 08a).
Aside from the ingenuity of these explanations, this midrash
also demonstrates that a reader understands a text in light of
his own experiences. Take Resh Lakish's point: If even in his
generation Noah was righteous, how much more so would he have
been had he lived in another society? Elsewhere, the Talmud informs
us that Resh Lakish became religious only as an adult. Earlier
on, he had been a thief, a gladiator, or a circus attendant. Resh
Lakish knew firsthand how much harder it is to be a good person
when you come out of a seedy or immoral environment. In his eyes,
if Noah could emerge from so immoral a society as a righteous
man, how much greater would he have been had he been raised among
Midrash continues to be created. For example, Genesis 19:26
records that when Lot and his family were fleeing the destruction
that Cod wrought on Sodom and Gomorrah, they were told not to
look back. "But Lot's wife looked back, and she thereupon
turned into a pillar of salt."
What possible relevance could this verse have to our lives? A
friend of mine was teaching this chapter at a home for the aged,
and the residents were debating the verse's meaning. An eightyfiveyearold
woman broke into the discussion: "Don't you understand what
it means? When you are always looking backwards, you become inorganic."
Finally, in modern Jewish life, the word halakha refers
to any issue of Jewish law. If a person wants to know the Jewish
law on a specific issue, he will ask a rabbi, "What is the
halakha in this case?" The word also is used for the
Talmud's legal sections, the codes of Jewish law (for example,
the Shulkhan Arukh) or any of Judaism's legal writings
Aggadata, as noted, describes the nonhalakhic
sections of the Talmud, and the word aggada in modern Hebrew
refers to any legendary or folkloristic writing.
Midrash most commonly refers to the famous compilation
of Midrash Rabbah, a compilation of the rabbis' comments
on each of the five volumes of the Torah. But to this day, you
can hear a Jew who has some novel interpretation of a Torah passage
say, "I want to give you a drash [from midrash]
on this week's Torah portion."
Source: Joseph Telushkin. Jewish Literacy. NY: William
Morrow and Co., 1991. Reprinted by permission of the author.