INTERPRETATION


This article is arranged according to the following outline:

DEFINITION OF TERMS
BIBLE EXEGESIS
Substance of Bible Exegesis in Jewish Law: Creative Interpretation and Integrative Interpretation
Halakhic Creativity by Means of Interpretation (Midrash)
Evidence of Creative Interpretation in Ancient Halakhah
Midrash and Roman Law Interpretatio
Different Literary Forms for Creative and Integrative Interpretation
Biblical Exegesis and its Place in Formulating Halakhah
Development of Bible Exegesis
    UNTIL HILLEL THE ELDER
    R. NEHUNYAH B. HA-KANAH AND R. NAHUM OF GIMZO
    R. ISHMAEL AND R. AKIVA AND THEIR ACADEMIES
    R. ELIEZER B. YOSE HA-GELILI
    IN THE AMORAIC PERIOD
    IN THE POST-TALMUDIC PERIOD
Thirteen Middot of R. Ishmael
Elucidative Interpretation
    KELAL U_FERAT
    DAVAR SHE-HAYAH BA-KELAL VE-YAẒA MIN HA-KELAL
    DAVAR HA-LAMED ME-INYANO, DAVAR HA-LAMED MI-SOFO
    SHENEI KETUVIM HA-MAKHHISHIM ZEH ET ZEH
    INTERPRETATION OF WORDS AND PHRASES
Analogical Interpretation
    KAL VA-ḤOMER
    GEZERAH SHAVAH
    BINYAN AV
    HEKKESH HA_KATUV
Logical Interpretation
Restrictive Interpretation
INTERPRETATION OF THE HALAKHAH
Use of the Principles of Bible Exegesis for Interpretation of the Halakhah
Restrictive and Expansive Interpretation
Interpretation of the Halakhah in Post-Talmudic Times
INTERPRETATION OF DOCUMENTS
Doreshin Leshon Hedyot ("interpreting human speech")
Ha-Kol Holekh Aḥar ha-Taḥton ("all according to the latter reference")
Yad Ba'al ha-Shetar al ha-Taḥtonah ("the holder of a deed is at a disadvantage")
Interpretation le-Fi Leshon Benei-Adam ("according to the common usage of the people")
Interpretation of Contracts
    INTERPRETATIONS BASED ON ASSESSING THE PARTIES' INTENT.
    PRESUMPTION OF A DOCUMENT'S VALIDITY.
    INTERPRETATION IN ACCORDANCE WITH CONTEXT AND CUSTOM.
INTERPRETATION OF TAKKANOT HA-KAHAL
Entrustment of Interpretative Authority
Interpretation of Takkanot le-Fi Leshon Benei Adam ("in accordance with their common usage")
Interpretation in Accordance with the Language of the Takkanah
Circumstances in Which the Background to a Takkanah and Its Motivating Factors May Be Taken into Account
Conflicting Provisions and Ambiguity in the Text
Judicial Interpretation – Judgment in Perfect Truth

DEFINITION OF TERMS

In Jewish law interpretation is called Midrash – a word deriving from the verb darosh, meaning study and investigation of the inner and logical meaning of a particular text as opposed to its plain and literal reading. The word darosh is also used in the same sense to denote investigation of the true and "unrevealed" position as regards a particular factual event (Deut. 13:15; "Ve-darashta ve-ḥakarta ve-sha'alta heitev" – "you shall investigate and inquire and interrogate thoroughly" – hence the term derishah va-ḥakirah with reference to the interrogation of *witnesses). For the act of interpretation the word talmud is sometimes used (e.g., Sanh. 11:2; cf. Avot 4:13), and also the word din (e.g., Mak. 5b). In the field of the halakhah, the concept of Midrash has a meaning similar to interpretatio in Roman law and to "interpretation" in English law. The term parshanut was originally used in the sense of commentary (i.e., elucidation), generally amounting to a rephrasing or translation of the text into simpler and more easily understood terms; however, in the course of time the term parshanut also came to be employed in Jewish law in the sense of interpretation, and at the present time has both meanings. The interpretative process is often executed with the aid of fixed rules by which the exegete is guided; these are "the middot by means of which the Torah is interpreted" (see below). The process of interpretation began with Midrash of the Torah (i.e., Bible exegesis) and was followed by Midrash of the halakhah, i.e., of the Mishnah, both Talmuds, and post-talmudic halakhic literature (see below). In addition there evolved, from very early days, a system for the interpretation of various legal documents (see below), and after the redaction of the Talmud for the interpretation of communal enactments also (takkanot ha-kahal; see below).

BIBLE EXEGESIS

Substance of Bible Exegesis in Jewish Law: Creative Interpretation and Integrative Interpretation

A reading of halakhic literature reveals that very many halakhot are stated in midrashic form, i.e., the particular halakhah is integrated into and interwoven with a biblical passage (this is the form adopted in the *Midreshei Halakhah, halakhic literature on biblical passages, some details of which are mentioned below) and is not stated in the form of an abstract halakhah which stands by itself (as is the accepted and general form in the Mishnah). Scholars have expressed different opinions on the substantive nature of this form of interpretation. According to some, it is a merely literary device for a manner of studying the halakhot, i.e., the essential halakhic rule was not created in consequence of the interpretation of a particular scriptural passage but had already been in existence (having originated from other legal sources of the halakhah, such as kabbalah ("tradition"), *takkanah ("enactment"), *minhag ("custom"), etc.) and the scholars merely found support for the existing halakhic rule through allusion to a biblical passage. Such allusion was made for two reasons:

(a) in order to facilitate recall of a rule which, in ancient times, had never been reduced to writing but studied orally and hence had to be studied together with the relevant biblical passage;

(b) in order to stress the integral connection between the Oral and the Written Law, since the latter constituted the basic norm of the entire halakhic system. Another view is that Bible exegesis is much more than a mere literary device for studying the halakhah; on the contrary, the biblical passage into which the halakhic rule is integrated constitutes at the same time the source of the rule; i.e., the rule was created out of the study and examination of the particular passage and without such an interpretation of the passage the rule would never have existed at all. Some scholars suggest that at first Midrash served as a source for the evolution of the law and that in later times it ceased to serve this purpose, while other scholars take the contrary view.

It is clear that even the scholars who hold that Bible exegesis served as a source for the evolution of the law do not regard that fact as meaning that in every case of Bible exegesis the halakhic rule in question necessarily evolved from such exegesis. Thus as regards a certain section of the biblical expositions, it is specifically stated that they are in the nature of *asmakhta be-alma (i.e., simply allusion to a particular passage; see, e.g., Ber. 41b; Er. 4b: "They are but traditional laws for which the rabbis have found allusions in Scripture," cf. Tosef. Ket. 12:2; TJ, Git. 5:1). Thus the scholars emphasize that the halakhot do not derive from the Bible exegesis, but from some other legal source of the halakhah, and are merely supported by allusions to particular biblical passages. This is also so in the case of numerous other halakhot arrived at by way of interpretation; even though they are not said to be in the nature of asmakhta alone, it cannot be determined with certainty whether in each case they derived from the particular interpretation of the biblical passages concerned, or whether they evolved from some other legal source and were merely integrated into the relevant biblical passages.

Halakhic Creativity by Means of Interpretation (Midrash)

It appears that from the inception of the halakhah and throughout its history, Midrash has served as a creative source of Jewish law and as an instrument in its evolution and development (see Yad, introd. and Mamrim 1:2). In point of time and importance, it constitutes the primary legal source of Jewish law (see *Mishpat Ivri). Throughout the history of the halakhah, scholars had to face the two fold problem of (a) reconciling difficulties emerging from the study of biblical passages, and (b) resolving new problems arising in daily life, particularly in consequence of changed economic and social realities.

The evolution of new halakhot was a natural outcome of the use of Midrash by the scholars in their efforts to overcome difficulties in the elucidation of Scripture, and Midrash led to great creativity, especially when applied to the solution of new problems. Although other means of solving such new problems were available (e.g., through the enactment of takkanot), the scholars nevertheless first and above all sought to find the solutions in Scripture itself, by endeavoring to penetrate to its inner or "concealed" content. In the eyes of the scholars Midrash was also to be preferred over the takkanah as a means of resolving new problems: the takkanah represented intentional and explicit lawmaking, designed to add to, detract from, or otherwise change the existing and sanctified halakhah, whereas in the case of Midrash the new halakhah derived from the scriptural passage concerned was not designed to add to the latter and certainly did not stand in contradiction to it. The link between the new halakhah and the Written Law was seen as a natural one of father and offspring, and the halakhah evolved from Scripture was, as it were, embedded in the latter from the beginning. Hence it may reasonably be assumed that the halakhic scholars would first have turned to Midrash in their search for solutions to the new problems that arose, and only when this offered no adequate or satisfactory answer would they turn to other legal sources of the halakhah.

Evidence of Creative Interpretation in Ancient Halakhah

From early tannaitic sources it may be inferred that Midrash already served as a creative legal source of the halakhah. Thus the description is given of how the judges would deliberate the relevant scriptural passage in each case before they gave judgment: "And if he had committed murder, they deliberated the passage dealing with murder; if he had committed incest, they deliberated the passage dealing with incest" (Tosef. Sanh. 9:1); similarly as regards the legal order of succession. The Pentateuch prescribes the order as son, daughter, brother, brothers of the father, and then the nearest kin of the deceased (Num. 27:6–11); the father is not mentioned as an heir but this omission is rectified in the Mishnah, where his place in the order is determined as falling after the children of the deceased and before the latter's brothers (BB 8:1). The scholars arrived at this result by interpreting the above-mentioned pentateuchal passage in this manner: "Ye shall give his inheritance unto his kinsman that is next to him of his family, 'that is next to him' – the nearest relative takes preference." Even though the above is only enjoined after the brothers of the deceased and his father's brothers are mentioned as heirs, the scholars nevertheless ranked the father above the latter since "the Torah has authorized the scholars to interpret and say: 'whoever is nearest in kinship takes preference in inheritance'" (Sif. Num. 134). At times differences of opinion amongst the scholars regarding the manner of interpreting the verse naturally also led to different legal conclusions (e.g., Git. 9:10 and Mid. Tannaim to 23:15, concerning the grounds for divorce; also, as regards the taking of a pledge from a rich widow, see BM 9:13 and BM 115a; and see below).

Midrash and Roman Law Interpretatio

In Roman law also and by a similar process in other legal systems – at the beginning and after the Twelve Tables – interpretatio fulfilled an eminently creative function which, according to R. Sohm (The Institutes (19703), 55f.), evolved and even changed the law without affecting the written letter of it. The purpose of interpretatio in Roman law has been described by Dernburg: "It is true that the content of a law should be expressed in the document wherein it is contained, but it is not necessary that this content must be derived directly from the words of the law; often the general wording of a law leads one to conclusions that are not expressed in so many words in this law, but which nevertheless are undoubtedly the correct conclusions to be drawn there from; interpretatio must there for erecognize as an authoritative conclusion from the law, not only that which derives from what is explicitly and directly stated in the law but also that deriving from what is indirectly stated therein; this may be referred to as the 'concealed content' of the law" (H. Dernburg, Pandekten, 1, pt. 1 (19006), 73).

Different Literary Forms for Creative and Integrative Interpretation

The existence of the two forms of Midrash, differing in function and objective, also led to a differentiation in their literary expression. When the object of the interpretation was not to create halakhah but simply to integrate existing halakhah into a scriptural verse, this could be achieved even by means of forced and symbolic modes of interpretation – such as analysis of seemingly superfluous words and letters – since this sufficed for the integrative purpose. Such artificial associations also represented an accepted literary device in other ancient civilizations (see S. Lieberman, in bibl., p. 62f., 77f.; in recent generations efforts have been made to explain these symbolic modes of interpretation in an orderly and systematic manner and much was done in this field by Meir Loeb *Malbim). On the other hand, when the interpretation was made in order to evolve a particular halakhah, this was generally effected solely through rational modes of interpretation in the wider sense of the term, i.e., within the framework of the "concealed content" of the scriptural verse (although there are also instances in which halakhot were evolved through symbolic modes of interpretation, and this was particularly the case in the academy of R. Akiva; see, e.g., Sanh. 51b and see below).

[Menachem Elon]

Biblical Exegesis and its Place in Formulating Halakhah

Research into biblical exegesis has produced further conclusions regarding its place in the creation and formulation of halakhah since ancient times. Thus, it has examined the manner in which the exegetical method was utilized to interpret biblical verses to adjust them to the prevailing Jewish law. Allusions to this manner of interpretation are already found within the biblical corpus, such as in the Book of Chronicles (see Bibliography, Seeligmann). For a detailed discussion of research of tannaitic and amoraic exegesis, see *Midrash; *Midreshei Halakhah.

[Menachem Elon (2nd ed.)]

Development of Bible Exegesis

UNTIL HILLEL THE ELDER

The process of exegesis began immediately after the law-giving, since in turning to the Written Law the halakhic scholars necessarily had to have recourse to various modes of interpretation for the purposes of its elucidation and application to the new problems that arose. However, the earliest clear literary references to exegetical activity only date back to the time of Ezra and Nehemiah. With reference to Ezra's efforts to direct the returned exiles back to the law of the Torah, it is stated: "For Ezra had set his heart to interpret (lidrosh) the law of the Lord, and to do it, and to teach in Israel statutes and ordinances" (Ezra 7:10). The people were taught the law: "And they read in the book, in the law of God, distinctly; and they gave the sense, and caused them to understand the reading" (Neh. 8:8), i.e., they interpreted the Torah by way of deep study, in order to understand its contents and laws. Ezra is called ha-sofer ("the scribe"; Ezra 7:11), a name which has also adhered to his contemporaries and to the succeeding scholars and which has been explained thus: "Therefore the rishonim were called soferim because they used to count all the letters of the Torah" (Ḥag. 15b; Kid. 30a). The Midrash of the scribes, or soferim, was not mere interpretatio doctrinalis, with no legal and binding validity attaching to the conclusions derived from it, but was in the nature of interpretatio authentica, and the conclusions derived from it constituted an integral and binding part of the halakhah itself. This was so even though it was derived outside the context of the law's being decided in a concrete case (see *Ma'aseh).

Evidence of the interpretative process can be found in the Septuagint Bible translation and in the Book of *Ben Sira (e.g., 39:1–3); the process received a sharp impetus in the time of the *zugot (pairs of scholars), when the *Pharisees, in their struggle against the *Sadducees, sought to prove the correctness of the Oral Law with the aid of interpretation. Thus, for instance, of the fourth scholarly pair it was said, "the two greatest men of our generation, Shemaiah and Avtalyon … are great sages and great interpreters" (darshanim; Pes. 70b), and of Hillel, a member of the fifth scholarly pair, it was said that he "expounded seven middot [rules of interpretation] before the elders of the sons of Bathyra" (introd. to Sifra, Baraita of R. Ishmael, concl.; see also Tosef. Sanh. 7:11; ARN1 37, 110). These middot, or rules, were not innovations of Hillel; he simply crystallized them, although he may have provided some of the names which adhere to them (Sifra, loc. cit.).

R. NEHUNYAH B. HA-KANAH AND R. NAHUM OF GIMZO

Toward the end of the first century a difference of approach to Bible exegesis was asserted by two of Johanan b. Zakkai's pupils. Nehunyah b. ha-Kanah took the view that a rational standard (by way of the rule of kelal u-ferat, i.e., the general and the particular: see below) had to be maintained in the conclusions drawn from the modes of interpretation; while Nahum of Gimzo favored drawing wide conclusions from the modes of interpretation (by way of ribbui u-mi'ut, i.e., inclusion and exclusion), even when the conclusion was not altogether in keeping with the general meaning of the verse (Tosef. Shevu. 1:7; Shevu. 26a).

R. ISHMAEL AND R. AKIVA AND THEIR ACADEMIES

These two different approaches to the interpretative method were fully developed by the pupils of each of these scholars. Both R. Ishmael – a pupil of R. Neḥunyah – and R. Akiva – a pupil of R. Nahum – followed his teacher's method and founded his own academy. These established two different schools of Bible exegesis and complete works containing the Midrashim of each are extant. From the academy of R. Ishmael there remains the Mekhilta to Exodus (mekhilta meaning middot, i.e., measures; see Isa. 40:12), Sifrei to Numbers, Sifrei to Deuteronomy (until 11:26), etc.; and from the academy of R. Akiva, the Mekhilta of R. Simeon b. Yoḥai to Exodus, Sifra to Leviticus (Torat Kohanim), Sifrei Zuta to Numbers, Sifrei to Deuteronomy (from 11:26 on), etc. R. Ishmael and his academy endeavored to uphold modes of interpretation that would maintain the legal and logical meaning of the scriptural passages concerned. Thus, for instance, they laid down the rule that "the Torah speaks in the language of men" (Sif. Num. 112; Sanh. 64b, etc.; in the TJ, "a language of synonym, employed by the Torah"; Shab. 19:2, 17a). That is to say, just as the language of synonym occurs in the narrative part of Scripture for purposes of reinforcement and emphasis – because this is the phraseology adopted by men in their discussions (e.g., Gen. 31:30; 40:15) – so in the legal part of the Torah there ought to be no interpretation of such repetition (e.g., Lev. 19:20). R. Akiva and his academy took a different approach and adopted modes of interpretation that widened the meaning of Scripture far beyond the terms of the written text, expounding every seemingly superfluous word or phrase (see BK 41b), and the occurrence of every synonym or repetition of a word or even letter (see Yev. 68b). Often the dispute between the two schools is found to relate not to the actual legal principle involved, but to the question of how to integrate such a principle with the scriptural verse (from this period onward this type of Midrash continued to expand). R. Ishmael's method was to integrate the halakhah with the scriptural verse by means of interpretation that remained within the meaning of the text, while R. Akiva integrated the same halakhic ruling by interpretative devices based on the apparent redundancy of words, or even a single letter, such as a vav. For an example of the two respective methods compare R. Ishmael and R. Akiva on the rule that a bill of divorcement need not be delivered into the hands of the wife personally, but is valid if placed within her reshut ("domain"; TJ, Git. 8:1, 77a; Sif. Deut. 269; TJ, Git. 8:1, 49b). Similarly, in a case where R. Ishmael found no suitable interpretative device to aid him in his integration of an existing halakhah with the appropriate verse, he would forego such midrashic integration ("in three places the halakhah bypasses Scripture": TJ, Kid. 1:2; Sot. 16a; etc.); in the same circumstances R. Akiva nevertheless effected the integrative process by enlisting the method of "redundancy" (Sif. Deut. 122 and 269; Sifra, Aḥarei Mot, 11:10).

There are even instances in which R. Akiva and his academy also created halakhah through the interpretative method based on the analysis of redundancy, a fact that met with strong opposition from R. Ishmael and his academy (see, e.g., Sanh. 51b, concerning the case of adultery committed by a priest's daughter). On more than one occasion such symbolicmode of interpretation from Akiva's academy provoked sharp scholarly reaction (see Sifra, Va-Yikra, 4:5; Ẓav, 5:11; Tazriʾa 13:2; Sif. Num. 75; Men. 29b). Although opposed to modes of interpretation that departed from the logical sense of the scriptural text, R. Ishmael expanded the middot of Hillel and fixed their number, thereby establishing the 13 well-known hermeneutical rules (see below). In principle the 13 rules of R. Ishmael are contained within Hillel's seven, except that the former are further subdivided and amplified (thus, e.g., R. Ishmael subdivided Hillel's rule of kelal u-ferat (see above) into four middot).

R. ELIEZER B. YOSE HA-GELILI

To R. Eliezer, one of the generation succeeding R. Ishmael and R. Akiva, is attributed the baraita of the 32 rules of Bible exegesis. However, this subdivision was made primarily for the purpose of aggadic and not halakhic Midrash (the baraita is printed in TB, after Ber.). The accepted number of hermeneutical rules remained at 13, but other exegetical principles were stated, also in the field of the halakhah, which are not embraced in the 13 middot.

IN THE AMORAIC PERIOD

For the amoraim, Bible exegesis generally served as interpretation intended to integrate already known halakhot with the relevant scriptural texts. They too regarded themselves as competent to engage in Bible exegesis in order to decide the halakhah in accordance with their own interpretation, but in practice during this period Bible exegesis had ceased to serve as a source for the continued creativity of the law. The change came about because Scripture no longer constituted the sole authoritative source within the halakhic system for the deduction of legal conclusions, since meanwhile collections of Mishnayot and halakhic Midrashim (Midreshei Halakhah) had been compiled. In particular the Mishnah – since its redaction by R. Judah and its acceptance at the end of the tannaitic period and the beginning of the amoraic period – had become the legal codex to be studied and interpreted and serve as the basis and starting point for the creation and continued evolution of the halakhah. Of course the Written Law remained the primary source of the halakhah, occupying the highest rung on its scale of values and authority, yet the Mishnah and other tannaitic works now became the immediate source for purposes of study and adjudication in daily life. For the same reason there was a decline in interpretation aimed at integrating existing halakhah with scriptural texts; once the Mishnah had become an authoritative book of halakhah there was no longer a need for such integration in order to lend validity to a particular halakhic ruling, since the very inclusion of the latter in the Mishnah, and its integration into this authoritative compilation, sufficed to invest it with full legal-halakhic recognition and authority. Thus it is found that at times one amora was surprised by the efforts of another to integrate a known halakhah with a scriptural verse, when such halakhah could equally have been founded on logical deduction (see *Sevarah): "Do we need Scripture to tell us this? It stands to reason" (BK 46b; Ket. 22a), a question never asked in tannaitic times even when the aim was merely to integrate a particular halakhah with a scriptural verse.

IN THE POST-TALMUDIC PERIOD

The redaction of the Talmud was followed by a general decline in Bible exegesis, even in the form of the integrative interpretation of existing halakhah. The link with the Written Law became a spiritual one, whereas in practical life adjudication was based on the talmudic halakhah as crystallized in the halakhic Midrashim, the Mishnah, the Tosefta, and both Talmuds. At the same time, it may be noted that sometimes the statements of the geonim and rishonim contain various interpretations of scriptural verses which are not recorded in the extant halakhic Midrashim. In some cases it transpires that such interpretations were taken from midrashic compilations available to the rishonim which are no longer extant (see e.g., Yad, Avadim 2:12, concerning the matter of a slave who falls ill, where the origin of an interpretation mentioned there remained unknown until the publication of the Mekh. Sb-Y to 21:2). However, sometimes it also happened that the post-talmudic scholars had recourse to Bible exegesis in seeking support for a new law derived from sevarah or enactment (takkanah); "Whenever it is known that a certain matter has been truly stated, but without ascertainment of the scriptural support, then everyone is free to interpret and advance such support" (Aaron ha-Levi of Barcelona, quoted in Nimmukei Yosef, BK, commencement of Ha-Ḥovel). The practical application of this procedure is illustrated in a number of instances (see, e.g., Yad, Arakhin 6:31–33 and Ravad, ad loc.; Resp. Maharshal no. 89; Resp. Radbaz no. 1049).

[Menachem Elon]

In addition to the aforementioned, there are instances in which post-talmudic halakhic authorities relied on halakhot based on communal enactments or logical inference; there are even cases in which new laws were established in accordance with exegesis of biblical verses. For example, during the geonic period, it was established that when the brother of a deceased Jew is an apostate, the wife of the deceased is not bound by the laws of yibbum (levirate marriage) or ḥaliẓah if that brother changed his faith before the couple wed (see *Apostate, *Levirate Marriage). Rabbinic exegesis of the verse in the section dealing with yibbum, "If brethren dwell together" (Deut. 25:5), is that "brotherhood must reign between them at the time of marriage" (Ginzei Schechter, 1929, 2:173). It was therefore determined that an apostate, regarding whom no "brotherhood" reigns between himself and his biological brother, is not included in the positive precept of yibbum. Similarly, some of the geonim stated that in other cases as well there is no need for yibbum, for example, where the deceased himself changed his faith.

There are likewise cases of legal innovation in Maimonides' Code based on biblical exegesis. Thus, Maimonides rules that consuming human flesh is prohibited by dint of a positive precept, based upon his exegesis of the verse in Leviticus 11:2: "'These are the animals which you may eat' – anything outside that category may not be eaten." From here one may infer that consuming human flesh is prohibited by a positive precept. This exegesis has no basis in talmudic literature, and provoked criticism by other rishonim (Resp. Rashba, Ket. 20a).

Among other medieval Sages who gave halakhic rulings based on exegesis of biblical verses are Sefer Yere'im (Sefer Yere'im ha-Shalem 309) and Nahmanides, in his Commentary on the Torah (Deut. 21:16).

Recent halakhic authorities also ruled on the basis of exegesis of the biblical text. Rabbi Meir Simḥah ha-Kohen of Dvinsk expounds the verse, "Go, return into Egypt; for all the men are dead that sought your life" (Exodus 4:19). From this, he inferred that one is not obligated to endanger his life in order to save the public at large, reasoning that Moses was not commanded to return to Egypt to save the People of Israel until his pursuers had died (Or Same'ah on Maim., Yad, Roze'ah 7:8). In another context he deduces that a thief must pay for what he stole, based on the verse "If he has nothing, then he shall be sold for his theft" (Exodus 22:2). On the basis of the location of this phrase in the chapter as a whole, he derives the rule that a thief may be sold as a slave for his theft only when he removed the object from the owner's property with his own hands, but not where he retained possession of an object temporarily given to him, with intent to steal it.

[Menachem Elon (2nd ed.)]

Thirteen Middot of R. Ishmael

The 13 hermeneutical rules of R. Ishmael (for a detailed enumeration see Sifra introd. and Ravad ad loc.; and see *Hermeneutics) belong mainly to two general categories of interpretations: one of elucidative interpretation (midrash hameva'er) – i.e., that which is concerned with the explanation and elucidation of scriptural passages; and the other of analogical interpretation (midrash ha-mekish) – i.e., that which is concerned with the drawing of analogous conclusions from one matter to another with a view to widening the law and solving new problems. The first category is akin to interpretatio grammatica in Roman law, but is much wider and more comprehensive, while the second is akin to analogia.

Elucidative Interpretation

This category includes the last ten of R. Ishmael's 13 hermeneutical rules, which are further subdivisible into four groups.

KELAL U-FERAT

("the general and the particular"; middot 4–7): The central problem dealt with by the first three rules in this group may be stated as follows: when a law lays down a certain direction, which such a law renders operative both in particular and in general and the general includes the particular, must the direction be held to apply only to the particular expressly mentioned and the general be interpreted as including only such a particular and no more, or must it be held that the direction applies to everything embraced by the general and that the particular is quoted only in illustration of the general and not in exhaustion of it? This question is answered by the said three rules in different ways depending on the juxtaposition of the general and the particular (for illustrations of each of these rules, see Sifra introd.; BK 62b). The fourth rule deals with the case in which the general and the particular serve neither to amplify nor to limit, but the one is merely in elucidation of the other, i.e., the two are mutually interdependent (see Sifra introd.; Bek. 19a).

DAVAR SHE-HAYAH BA-KELAL VE-YAẒA MIN HA-KELAL

(middot 8–11: "the particular stated separately after forming part of the general"): The central problem to which the rules of this group provide help in finding an answer is: when there are two separate directions on a common matter (and not a simple direction with a generality and a particularity, as in the previous group) – the one a general direction (lex generalis) and the other a special direction (lex specialis) – what is the relationship between the two classes of directions and for what reason has the special direction been stated separately from the general one? The main and most commonly applied rule in this group is the eighth (see Mekh. Shabbata 1; Shab. 70a).

DAVAR HA-LAMED ME-INYANO, DAVAR HA-LAMED MISOFO

(middah 12; "inference from the context"): This rule prescribes that a doubtful direction is to be determined from the context in which it occurs, either from other parts of the same subject matter, or from the adjacent subject (see Mekh. ba-Hodesh 8, Sanh. 86a).

SHENEI KETUVIM HA-MAKHhISHIM ZEH ET ZEH

(middah 13; "two passages which contradict each other"): This rule is applied in case of a contradiction between two passages dealing with the same topic (e.g., Sif. Deut. 279; BM 110b); between two passages in the same parashah (e.g., Mekh. Mishpatim 20); or even between two different parts of the same verse (Mekh. Mishpatim, end of 7). Such contradiction, the rule prescribes, must be reconciled by reference to a third passage which will determine the issue, or, when this is impossible, by the decision of the halakhic scholars according to their understanding of the matter (Sifra, introd.; TJ, Ḥag. 1:1).

INTERPRETATION OF WORDS AND PHRASES.

Also belonging to the category of elucidative interpretation are many Midrashim purporting to explain various terms and concepts appearing in scriptural verses, and as an outcome also the content and scope of the scriptural direction (e.g., Mekh., Nezikin 1, explanation of the term shevi'it; Ber. 1:3, dispute between Bet Shammai and Bet Hillel concerning interpretation of the words be-shokhbekha u-ve-kumekha in the context of keri'at Shema). Similarly there are various exegetical rules dealing with matters such as the construction of conjunctive words and letters (e.g., Sanh. 66a, dispute between R. Joshia and R. Jonathan), the question of whether or not mention of the masculine gender includes the feminine (e.g., BK 15a; Tos. to Kid. 2b; Yad, Edut 9:2; and Kesef Mishneh there to), and similar grammatical and syntactical constructions.

Analogical Interpretation

Analogical Interpretation (midrash ha-mekish): This category of interpretation is the subject matter of the first three of the 13 middot enumerated by R. Ishmael.

KAL VA-ḤOMER

(an a fortiori inference, a minori ad majus or a majori ad minus): The basis of this middah is found in Scripture itself (Gen. 44:8; Deut. 31:27) and the scholars enumerated ten pentateuchal kallin va-ḥomarim (Gen. R. 92:7). The rule of kal va-ḥomer (for correct reading of the term, see Schwarz, bibl. p. 8ff.) is a process of reasoning by analogy whereby an inference is drawn in both directions from one matter to another, when the two have a common premise – i.e., it can be drawn either from the minor to the major in order to apply the stringent aspect of the minor premise also (BM 95a), or from the major to the minor in order to apply the lighter aspect of the major premise to the minor premise (Beẓah 20b). Material to this rule is the principle dayo la-ba min ha-din lihyot ka-niddon (Sifra, loc. cit.; BK 25a, etc.), i.e., it suffices when the inference drawn from the argument (ha-ba min ha-din) is equal in stringency to the premise from which it is derived (the niddon), but not more so, not even when it might be argued that logically the inference should be even more stringent than the premise from which it is derived.

GEZERAH SHAVAH

("inference from the analogy of words"): Scholars have given much thought to the etymology as well as the scope and content of this hermeneutic rule (see Lieberman in bibl.; Albeck, Mishnah, Kod., pp. 403f.). Lieberman translates the term as "a comparison with the equal" (ibid., p. 59; in Scripture and halakhic literature the meaning of the term gezerah is "decision" or "decree"; cf. the meaning of the parallel Greek term, Lieberman, ibid.). Originally, gezerah shavah meant the analogy and comparison of two equal or similar matters, but later this rule came to refer "not to analogy of content but to identity of words" (i.e., verbal congruities in the text, Lieberman, ibid., p. 61), even in the absence of any connection in content between the two matters. Some scholars held that an analogy was not to be drawn from one matter to another by way of a gezerah shavah unless the term in question was mufneh ("vacant," empty of content) in either of the matters (Nid. 22b; Sif. Deut. 249). This mode of interpretation – involving the deduction of halakhic inferences from analogous words only without regard for similarity of content between two separate matters – was likely to lead to comparisons for which there were no logical foundations and to strange and unusual halakhic conclusions (e.g., TJ, Pes. 6:1). However, this was avoided by the determination in talmudic tradition of the rule that "no one may infer by gezerah shavah on his own authority," i.e., this exegetical rule was to be applied only in cases where a scholar received a tradition from his teacher that the particular word or phrase might be interpreted by that method (TJ, Pes. 6:1; Nid. 19b and Rashi thereto; see also Nahmanides Commentary to Sefer ha-Mitzvot, 2nd shoresh).

BINYAN AV

(a principle "built up" from biblical passages): This middah is enumerated by R. Ishmael in two parts: binyan av mi-katuv eḥad (e.g., Sanh. 30a; Sot. 2a) and binyan av mi-shenei ketuvim (e.g., Mekh. Mishpatim 9). It appears from the halakhic literature that the application of this rule was also extended to derivation of a principle from three passages (e.g., Sif. Num. 160) and even from four passages (e.g., BK 1:1). By this rule, a principle is constructed from one passage, or a characteristic common to several passages; the av is the basic premise, and the binyan is the principle constructed.

HEKKESH HA-KATUV

(analogy drawn in the Bible itself): To the category of exegetical principles by analogy must be added a further rule, which often appears in talmudic literature although it is not included in the 13 middot enumerated by R. Ishmael. This is known as hekkesh ha-katuv, or simply hekkesh (Zev. 49b; Sanh. 73a), and also as (hishvah) ha-katuv (Kid. 35a), etc. It is distinguished from the other three analogic middot by the fact that in their case it is the halakhic scholars who draw the analogy whereas hekkesh ha-katuv represents an analogy drawn in the Bible itself. From this point of view the rule has been of fundamental importance to the process of Bible exegesis, since it enabled halakhic scholars to find in the Bible itself the basis for reasoning by analogy for purposes of drawing legal conclusions. A classic example of this form of analogy is found in the scriptural passage dealing with the violation of a betrothed maiden (na'arah me'orasah, see *Marriage) which enjoins that the maiden, even though she is betrothed, must suffer no punishment: "But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death – for as when a man riseth against his neighbor, and slayeth him, even so is this matter" (Deut. 22:26). Here, through analogy with the murderer's victim, Scripture holds the violated girl blameless, and the halakhic scholars pursued the analogic argument from the two cases, deriving additional halakhot from them (Sanh. 74a). Sometimes hekkesh ha-katuv occurs in implicit rather than in explicit form (Sif. Deut. 208).

For further particulars concerning the 13 middot, see *Hermeneutics.

Logical Interpretation

This third category of Midrash (i.e., in addition to the elucidative and analogic) plays an important role in the modes of interpretation in Jewish Law, although it is not enumerated among the 13 middot. Known as midrash ha-higgayon, it is similar to the Roman law interpretatio logica. In substance and objective, it is akin to the elucidative category, since its main purpose is to explain and contribute toward logical understanding of Scripture, and its application often led to the determination of new halakhot and legal principles. Thus, for instance, in the matter of the violation of a betrothed girl, the statement that nothing should be done to her, "For he found her in the field; the betrothed damsel cried, and there was none to save her" (Deut. 22:25–27), was interpreted in this way: the word field is not to be understood literally, but the measure of the damsel's innocence or guilt must be determined by her resistance or lack of it. "Shall it be said, in the city she is liable, in the field she is exempt? We are taught: 'she cried … and there was none to save her'; if there was none to save her whether in the city or in the field, she is exempt, and if there was someone to save her whether in the city or in the field, she is liable" (Sif. Deut. 243). Similarly, the enjoinder, "No man shall take the mill or the upper millstone to pledge; for he taketh a man's life to pledge" (Deut. 24:6) was interpreted as follows: "They spoke not only of the mill and the upper millstone, but of aught wherewith is prepared necessary food, as it is written 'For he taketh a man's life to pledge'" (BM 9:13; Sif. Deut. 272).

In this form of interpretation reliance is sometimes placed on logical reasoning which is circumscribed by factors of practical reality. Thus, from the enjoinder concerning the paschal sacrifice – "and the whole assembly of the congregation of Israel shall kill it" (Ex. 12:6) – R. Joshua b. Karḥa deduced the following legal principle: "Does then the whole assembly really slaughter? Surely only one person slaughters? Hence it follows that a man's agent is as himself " (Mekh. Pisḥa 5; Kid. 41b). In other words, as the verse cannot be literally interpreted since such would be physically impossible, it may be inferred that the act of one person can be attributed to another and regarded as his act and the same is true even of an entire assembly; this constitutes the principle of principal and agent. The mode of interpretation thus exemplified is akin to the rerum natura in Roman law.

Restrictive Interpretation

Just as Midrash served to extend the scope of the halakhah by the addition of new laws, so it sometimes served to narrow, to a varying extent, the operation of a particular law through a process of restrictive interpretation. Thus, for instance, the prohibition, "An Ammonite or a Moabite shall not enter into the assembly of the Lord; even to the tenth generation shall none of them enter into the assembly of the Lord forever" (Deut. 23:4), was restrictively interpreted by the scholars as applying to men only, thus rendering women acceptable immediately if they converted. Some scholars explained this law on the basis that the prohibition was enjoined "because they met you not with bread and with water on the way, when you came forth out of Egypt" (Deut. 23:5), a reason which was inapplicable to women because, for reasons of modesty, they are not in the habit of going out to meet other men; other scholars reasoned that the prohibition reads "an Ammonite but not an Ammonitess, a Moabite but not a Moabitess" (Yev. 8:3; Sif. Deut. 249; Yev. 77a). The scholars dated this interpretation to the time of the prophet Samuel, who anointed David king over Israel (I Sam. 16:13), and held it to be the explanation for David's entry "into the assembly of the Lord," even though he was descended from Ruth the Moabitess (Yev. 77a).

At times the text was so restrictively interpreted as to make any practical application of the law impossible from the start. This is illustrated in the matter of the stubborn and *rebellious son, of whom it was said that he must be brought before the city elders and stoned to death (Deut. 21:18–21). The relevant verses were interpreted as meaning that the law only applied if the son committed the transgression within three months of his reaching the age of 13 years – and even then he was to be held exempt, unless the proceedings against him were completed within the same period (Sanh. 8:1; Sanh. 68b–69a). In addition, the passage was interpreted as requiring the existence of various preconditions relating to the qualities of the parents (ibid.). The practical impossibility of having all these conditions fulfilled is recognized in tannaitic tradition: "There never has been a stubborn and rebellious son, and never will be. Why then was the law written? That you may study it and receive reward" (Tosef. Sanh. 11:6; Sanh. 71a). A similar interpretation was given by the scholars to the passage concerning the destruction of a city condemned for idolatry (Deut. 13:13–17; Sif. Deut. 92; Sanh. 16b; 71a; 111b; 113a; Tosef. Sanh. 14:1).

INTERPRETATION OF THE HALAKHAH

Use of the Principles of Bible Exegesis for Interpretation of the Halakhah

Just as the middot and other rules for Bible exegesis served the scholars as a source for the shaping of the halakhah and its continued creativity and development, so the scholars engaged in the same interpretative activity – and with the same objective – with regard to the available halakhic material. This activity may be referred to as Midrash Halakhah as opposed to Midrash Torah which has been dealt with so far. Interpretation of the halakhah continued to be engaged in throughout the history of Jewish law, and at times, for purposes of a particular exegetical rule, the scholars distinguished between modes of interpreting the Bible and those of interpreting the halakhah. The term Midrash was even used by the scholars to describe the latter. Thus, for instance, in early halakhah – until the middle of the second century – the duty of a father to maintain his children was in the nature of a religio-moral obligation only and not a legal one (Ket. 49a–b); the question arose whether the absence of a legal obligation applied to sons only, and whether such a duty did not in fact exist in respect of daughters, in the same way as they were entitled to be maintained out of the estate of their deceased father. The answer was arrived at in this way: "The father is not liable for the maintenance of his daughter. R. Eleazar b. Azariah gave this exposition (zeh midrash darash) at Kerem be-Yavneh. 'The sons shall be heirs and the daughters shall be maintained.' As the sons only inherit after the death of their father, so the daughters are not entitled to maintenance except after the death of their father" (Ket. 4:6). The dictum that "the sons shall be heirs and the daughters shall be maintained" derived from an ancient rabbinical enactment relating to the laws of succession (BB 9:1, 131b) and R. Eleazar, reasoning that the two component halakhot of the dictum were analogous, concluded that both were applicable at a common stage – namely after the death of the father.

Restrictive and Expansive Interpretation

Many halakhot were derived from both restrictive and expansive interpretation. Thus for instance the Mishnah records a dispute between Bet Hillel and Bet Shammai on whether the then existing halakhah concerning the trustworthiness of a woman's declaration of her husband's death (so as to enable her to remarry) had to be narrowly or widely interpreted (Yev. 15:1–2). Similarly, as regards the legal capacity of a minor to acquire lost property he found himself, the amora Samuel gives the term katan ("minor"), which appears in the Mishnah (BM 1:5), a restrictive interpretation referring to biological minority, holding that no minor is capable of acquiring for himself lost property; R. Johanan, on the other hand, gives the same term the liberal interpretation of referring only to those who are maintained by their fathers, and therefore "a minor who is not maintained by his father is regarded as a major" (BM 12a–b). A further illustration is to be found in the different interpretations given by the amoraim of Ereẓ Israel and of Babylonia to the Mishnah, BK 3:1 (see BK 27b).

Interpretation of the Halakhah in Post-Talmudic Times

In post-talmudic times the scholars of every generation continued to apply all the different modes of interpretation to the existing halakhah. For this purpose they even resorted to some of the 13 middot (see, e.g., Resp. Abraham, son of Maimonides, nos. 78 and 97; Resp. Rambam (in Assaf, Sifran shel Rishonim), no. 3; Resp. Rashba vol. 2, no. 14; Resp. Maharam of Rothenburg, ed. Prague, no. 85; Resp. Rosh, 78:1, 3). In one instance a 15th-century scholar expounded the responsum of an earlier scholar by the rule of kelal u-ferat in order to solve a basic legal problem in the field of the public law, one concerning the power of the communal representatives (Resp. Judah Mintz no. 7).

INTERPRETATION OF DOCUMENTS

In early times there had already evolved a further category of Midrash – that concerning the interpretation of the text of various legal documents in daily use, such as the *ketubbah deed and deeds of *acquisition (kinyan), indebtedness, testamentary disposition, and the like. The documents, the text of which was sometimes determined by the scholars and sometimes by popular usage, became integrated into the overall Jewish legal system, extending and developing it. In their study of such documents, whether theoretically or for the practical purpose of deciding the law, the scholars were faced with the need to elucidate and understand their contents, and to this end, they had recourse to interpretative norms used in the exegesis of the Bible and the halakhah, and, in the course of time, developed additional – and sometimes different – interpretative norms.

Doreshin Leshon Hedyot ("interpreting human speech")

Interpretation of documents was originally referred to as doreshin leshon hedyot (Tosef. Ket. 4:9ff.; TJ, Ket. 4:8, 28d; TJ, Yev. 15:3, 14d; BM 104a), since the scholars "used to analyze and interpret the language used by men in writing their deeds, as they would do with Scripture … and not according to the literal meaning" (quoted in the name of Hai in Nov. Ramban to BM 104a and in commentary of Zechariah b. Judah Agamati to BM loc. cit., p. 143 – a photographic reprint of the Ms. published by Jacob Leveen, London, 1961). The term leshon hedyot came to be used in contradistinction to leshon Torah (in a similar manner to mamon hedyot ("property of human beings") and mamon gavohah ("sacred property"), in Kid. 1:6; see Agamati, loc. cit.), since even documents formulated by the scholars, such as the ketubbah deed, fall within the rule's applicability. In the Talmud, various examples are quoted of documents interpreted in accordance with leshon hedyot, for instance deeds of ketubbah, lease of a field, pledge, etc. (Tosef., TJ, and TB, loc. cit.), and in this manner problems of principle were sometimes solved. Thus it is recorded that in Alexandria, Egypt, there occurred cases of women who entered into kiddushin with a particular man but prior to completion of the marriage (the nissu'in) married another man; in these circumstances the children born of the latter marriage had to be regarded as mamzerim, since their mother was already an eshet ish, a woman already married (see *Marriage; *Mamzer). However, Hillel the Elder studied the ketubbah deeds of the women in Alexandria and interpreted "leshon hedyot," finding it written in the ketubbah that the kiddushin was to be regarded as valid only if followed by a marriage (ḥuppah) between the parties – and since the condition remained unfulfilled in the case of the first kiddushin it followed that the latter was no kiddushin at all and therefore the children born of the husband to whom she was actually married were not to be regarded as having any blemish of status (Tosef., TJ, and TB, loc. cit.). The concept of doreshin leshon hedyot was also held to be a principle applicable to the laws of *custom.

Ha-Kol Holekh Aḥar ha-Taḥton ("all according to the latter reference")

There has also been extensive discussion in Jewish law of various problems relating to the interpretation of legal documents, aimed at the elucidation of the text and of various terms which appear in them as well as the reconciliation of conflicting passages in the same document. The following are some of the rules of principle derived for this purpose. If there are two conflicting references to the same subject, for instance first a figure of 100 is mentioned and thereafter a figure of 200, then the rule is, "all according to the latter reference," since it is to be assumed that what is first stated has been retracted (BB 10:2; Yad, Malveh 27:14; Sh. Ar., ḤM 42:5; see also Nov. Ri Migash BB 166b). It was laid down that if there is a possibility of reconciling a divergence between two different parts of a deed, "we must endeavor, in whatever way possible, to uphold both as being in agreement with each other … even if the possibility is somewhat strained" (Resp. Ribash no. 249; Sh. Ar., ḤM 42:5 and Sma thereto, n. 10). Sometimes the first reference is to be followed as the decisive one. Thus, for instance, if at the beginning of a deed there is a detailed enumeration of the items composing the total amount and at the end the total amount is set out and it is at variance with the enumerated details, it has to be assumed that an error was made in the calculation of the total amount and the detailed enumeration must be regarded as decisive – i.e., the first reference is followed (R. Isaiah, quoted in Tur, ḤM 42:8 and in Sh. Ar., ḤM 42:5).

Yad Ba'al ha-Shetar al ha-Taḥtonah ("the holder of a deed is at a disadvantage")

Another rule is that in case of doubt over the correct interpretation of a document "the holder of a deed is at a disadvantage," i.e., the interpretation that is less onerous for the person in possession must be followed, since the burden of proof rests on the claimant – who is the holder of the deed (Ket. 83b; BB 166a; Yad, Malveh 27:16; Sh. Ar., ḤM 42:8). This rule also applies when the doubt arises from conflicting references in different parts of the deed if in the particular circumstances the rule of "all in accordance with the latter reference" has no reasonable application in the matter. Thus, for example, if the words "100 which are 200" are written in a deed, there will be no possibility of saying that the second reference (200) is a retraction of the first (100), and therefore the holder of the deed will be at a disadvantage and entitled to recover 100 only (BB 10:2; Yad, Malveh 27:14). However, the rule is applied only if it does not have the effect of prejudicing the validity of the deed even when it is interpreted in accordance with the statement of particulars which is less onerous for the person in possession. If the choice is between upholding the deed or invalidating it entirely, the holder of the deed must not be deemed to be at a disadvantage, but on the contrary at an advantage, "for we must at all times seek all possible ways of upholding the validity of a deed, even if in a circuitous manner" (Resp. Ribash no. 345). For this reason it was held by Asher b. Jehiel that in a deed in which A undertook to give B 15 zehuvim "after Passover" – and not "after next Passover" – the undertaking must be interpreted as intended to mean "after next Passover," otherwise it would have to be said that the reference was to the last Passover before the end of the world, an interpretation that would deprive the deed of all meaning and validity (Resp. Rosh, no. 68:14; Sh. Ar., ḤM 42:9). Clearly, in the case of a legal error in the formulation of a deed – for instance mention of an inappropriate *kinyan – the deed will be invalid (Resp. Maharik no. 94; Rema, ḤM 42:9).

Interpretation le-Fi Leshon Benei-Adam ("according to the common usage of the people")

The terms which appear in a deed are to be given their ordinary meaning as used by people in their everyday speech and not interpreted according to their meaning in the language of the Torah or of the scholars. Thus it was laid down that a person who bequeathed his property to his sons thereby excluded his grandsons from the estate, since it was not customary for people to refer to a grandson as a "son" (ben) even though the word had this meaning in biblical language (BB 143b and Rashbam ad loc.; Yad., Zekhiyyah 11:1; Sh. Ar., ḤM 247:3). The scholars drew a parallel between the interpretation of terms in documents and those used by a person in making a vow (BB 143b; Ned. 63a) – since in each case the meaning which the person attaches to the document he has prepared or the vow he has made is of decisive importance. In the case of a vow the rule is: "the speech of men is followed" (aḥar leshon benei adam; Ned. 51b, et al.). This rule was interpreted to mean the speech of men "in the place, in the language, and at the time the vow was made" (Yad, Nedarim 9:1, 13; Sh. Ar., YD 217:1), i.e., according to the meaning of the term employed by the person taking the vow, so as to take into account any possible change in the meaning of a particular term – even in the same locality – from time to time (see Yad, Nedarim 9; Sh. Ar., YD 217). In the responsa literature this rule is discussed extensively, along with its influence in bringing about differences between certain rules relating to the exegesis of the Bible and the halakhah and those relating to the interpretation of documents (see, e.g., Resp. Maharik no. 10; Resp. Rashba, vol. 3, no. 26; vol. 5, no. 260; Resp. Maharashdam EH no. 45; see also *Wills).

Interpretation of Contracts

INTERPRETATIONS BASED ON ASSESSING THE PARTIES' INTENT.

In addition to the rule discussed above whereby meaning is determined by common usage, another approach to interpretation of contracts is that of presumption based on the parties' express statements (umdana be-gilui da'at; see *Evidence). Despite the principle that "words of the heart, if unexpressed, are not words" (Kid. 49b, see update to *Mistake), there are still certain kinds of stipulations that need not be expressed, because we may presume a person's intent (see *Evidence). By dint of these presumptions, the court may determine that a particular condition is not "unexpressed," but rather "universally talked about and understood to apply" (Rabbenu Nissim, on the folios of Rif, Kid. 20b; Tosafot at Kid. 49b). It was further determined that the rule by which matters not expressed explicitly are considered "words of the heart," and thus not to be taken into account, only applies to those matters that are normally explicitly expressed in formulating legal documents. Where it can be presumed that the parties to a contract did not feel compelled to give written expression to certain matters by reason of their being manifestly clear even without being recorded, they may be treated as valid, and the rule that words of the heart are not words does not apply (Hiddushei Ha-Rashba, Kid. 50a, in the name of Sefer Yere'im).

The Supreme Court of the State of Israel discussed the position of Jewish Law on interpreting a contract in accordance with the presumed intent of the parties in the Hazan case (CA 893/03 Bank Le'umi v. Hazan; per Justice Eliakim Rubenstein). In that case, it was clear that, when the contract was concluded, the two parties had differing subjective understandings of a certain matter; the plaintiff requested that the Court interpret the contract objectively, in accordance with its purpose, even if it was contrary to the intention evidenced by its wording. The Court discussed the sources quoted above regarding unexpressed words and conditions, and observed that even in Jewish Law there are certain extreme situations in which the court interprets a person's words while consciously ignoring that person's own contrary intention. An example of this is where the Court administers lashes to a recalcitrant husband until he says he "wants" to give his wife a get (see: *Divorce; Piskei Maharit ha-Ḥadashim 2). In this particular case, the Court decided that it was not unreasonable to interpret the contract solely in accordance with its language, and neither did this divest the contract of its meaning. Accordingly, a purposive construction of the contract in accordance with the plaintiff 's understanding of its objective, and of the parties' intention, would be one based upon "words of the heart" where there was no evidence that such was really their intent. Hence the contract could not be interpreted that way.

PRESUMPTION OF A DOCUMENT'S VALIDITY.

The aforementioned principle, whereby a document must be given an interpretation that retains its effectiveness, also applies to the invalidation of a document. When a document bears two possible interpretations, one of which renders it invalid, the interpretation that retains its validity should be adopted. In accordance with this principle, the Tosefta determines that, if the date recorded on a bond of debt is the Sabbath or Yom Kippur, which clearly indicates that the date is a mistake, the date is to be fixed as later than the date on which the debt was actually created, thereby allowing for validation of the bond. In such a case we do not say that the debt was created later than the date recorded in the bond, which would render the bond invalid (Tosef. Makk. 1:3; BB 171a; Yad, Malveh ve-Loveh 23:4). In this kind of case, where the question is whether the entire document is invalid, the regular legal presumptions are not applied. In other words, there is no application of the evidentiary rules under which "the burden of proof lies on the claimant" (BK 35a) and "the holder of the deed is at a disadvantage" (BB 173a). Rather, the law is that precisely the party that seeks to invalidate the document – i.e., the party holding the money – is at a disadvantage (Rashbam, ad loc.).

Nonetheless, where the interpretive doubt pertains to the law, or to a mistake in the law, rather than to a doubt regarding the factual situation, the document does not enjoy a presumption of validity. Rather, the normal rule that "the holder of the deed is at a disadvantage" will apply. Thus, for example, a case arose in which a person undertook a contractual obligation, and a disagreement arose over whether or not the contract's wording was valid and binding. Rabbi Joseph ben Solomon Colon (Resp. Maharik 94.7) ruled that the person standing to gain by virtue of the contract was at a disadvantage, and would have to adduce proof that the law sided with him.

INTERPRETATION IN ACCORDANCE WITH CONTEXT AND CUSTOM.

When a document can be interpreted in two different ways, but a certain interpretation appears more reasonable according to the prevailing custom in a particular location, then the rule that the holder of the deed is at a disadvantage and that the plaintiff bears the burden of proof is not applied. Application of these rules would mean accepting a less plausible interpretation to the manner of fulfilling the obligations created by the document. Rather, the deed ought to be interpreted in accordance with prevailing custom in that place (Resp. Rashbash, no. 354). The Israel Supreme Court relied on this principle in interpreting a contract in the Katan case (HC 442/77 Katan v. the City of Holon, PD 32(1) 494, page 498, per Justice Menachem Elon). The Court concluded:

This is the essence of one of the underlying principles governing the doctrine of custom in Jewish law: "Any halakhah which is not firmly entrenched in the practice of the bet din and whose nature you do not know, go and observe the practice of the public and abide by their practice" (TJ, Peah 7:5 [34a]; Ma'aser Sheni 5:2 [30a]).

Similarly, Rabbi Solomon ben Simeon *Duran (15th century), ruled regarding the interpretation of documents: "Whenever the wording in a document is unclear, follow local custom with respect to all of the matters in which they customarily deal" (Resp. Rashbash, ad loc.).

In that case, the Court also resorted to the principle of doreshin leshon hedyot (ascertaining lay usage: Tosef. BB 11:7), and ruled that the contractual provision in question should be interpreted in terms of the substantive context in which it appears, in accordance with the 12th of Rabbi Ishmael's 13 canons of Talmudic exposition of the Scriptures – "davar ha-lamed me-inyano" – that an ambiguous word or passage is explained on the basis of its context (ibid.).

[Menachem Elon (2nd ed.)]

INTERPRETATION OF TAKKANOT HA-KAHAL

The interpretation of takkanot ha-kahal ("communal enactments," i.e., takkanot enacted by the community or its representatives in the fields of civil and criminal law (see *Takkanot ha-Kahal)) constitutes a category which is related to the interpretation of documents. Communal enactments appeared in Jewish law mainly from the tenth century onward, with the increasing importance of the Jewish community in the various centers of the Diaspora, and are parallel to legislative activities by the public and its representatives in other legal systems. As in the case of statutes, regulations, etc., in any other legal system, in the course of their practical application in daily life the Jewish communal enactments also led to the development of an imposing system of norms for their interpretation.

Entrustment of Interpretative Authority

In the main, authority to interpret communal enactments was entrusted to the halakhic scholars before whom an issue between parties would be aired. The issue was sometimes between individuals, sometimes between an individual and the community, and sometimes between different communities. In a considerable proportion of the responsa literature dealing with matters of public, civil, and criminal law, there are detailed discussions by the scholars on the interpretation of the communal enactments at issue. At times – in the takkanah itself – authority to interpret a takkanah was vested in the halakhic scholars (see, e.g., Takkanot Medinat Mehrin, no. 292), and at others in the communal leaders (see Resp. Rashba, vol. 3, no. 409; vol. 5, nos. 221, 289). However, interpretative authority would be vested in the communal leaders only if doubt existed about the meaning of any particular term, but the leaders would have no authority to depart from the reasonable meaning of the term; the authority to determine the existence, or otherwise, of any doubt concerning the meaning of the term would once again be entrusted to the halakhic scholars (see Resp. Ritba, no. 134).

Interpretation of Takkanot le-Fi Leshon Benei Adam ("in accordance with their common usage")

In dealing with the interpretation of communal enactments, the halakhic scholars laid down many rules for the interpretation of statutes. For the interpretation of both communal enactments and documents, there was a common rule, requiring that they be interpreted according to "the speech of men," i.e., in accordance with the common usage of the terms employed (Ritba, loc. cit.). Thus it was decided that a reference in a takkanah to the term shetar ("deed") could not be interpreted as embracing a wife's get ("bill of divorce"), even though this was sometimes the case in the language of the scholars (e.g., Git. 10b; Kid. 5a–b), since "in common usage the term get is particularly and solely applied to bills of divorcement for women, and other shetarot are never called by the name of get, nor is a woman's get ever called a shetar" (Resp. Ribash, no. 304). Clearly, there was not always necessarily a variation between common usage and that of the scholars and sometimes there may exist a continuing identity of meaning in the language of Scripture, that of the scholars, and the common usage of the people (Resp. Rashba, vol. 4, no. 312). Since the communal enactments were of far more substantive and general significance and validity than were the documents of individuals, it follows that more fundamental and comprehensive norms came to be determined for the interpretation of the former. Some of these are outlined below.

Interpretation in Accordance with the Language of the Takkanah

It was laid down that a takkanah must be interpreted according to the view and understanding of those qualified to do so, in accordance with the ordinary meaning of the text (Resp. Rashba, vol. 4, no. 308; vol. 5, no. 247), and not according to the intention of those who enacted it (ibid., vol. 3, no. 409), nor to the supposed motivating reasons of the latter (ibid., vol. 4, no. 268). This rule is much discussed in the interpretation of takkanot in various legal fields, particularly family law (Resp. Rosh, no. 50:10), the law of hire (Tashbez 2:61), and tax law (Rashba, vol. 5, no. 282, see also *Taxation). However, the text of the takkanot may be contradicted if it may reasonably be assumed that a scribal error was made when it was drafted (Resp. Rosh, no. 6:8).

Circumstances in Which the Background to a Takkanah and Its Motivating Factors May Be Taken into Account

In circumstances where the intention of a takkanah may be presumed as a matter of "common cause" (kavvanot muskamot la-kol), the takkanah may be interpreted accordingly (Resp. Rashba, vol. 3, no. 409). Thus where it was enacted that the taxpayers had to submit their declarations at "the synagogue" – which served as the central gathering place for the community – it was held that not the synagogue itself was intended, but areas such as the courtyard or the upper floor, even though these had distinctive names, since the matter at issue was not one of prayer (Resp. Rashba, vol. 5, no. 222). It was also laid down that rigid formalism was to be avoided in the interpretation of a takkanah (ibid., vol. 3, nos. 407, 408).

For purposes of understanding the objective of a takkanah, its preamble was also sometimes relied on even though it was not an integral part of the enactment (Rashba, vol. 5, no. 287; Resp. Ribash, no. 331). Similarly, it was held that in cases where the text allows for two possible interpretations, the one beneficial to the public and the other prejudicial to it, the former must be adopted since the general objective of every takkanah is to increase the public good and not the contrary (Resp. Rashba, vol. 5, no. 287). Hence it was decided that a certain takkanah purporting to prohibit public worship in all but certain places could not be assumed to have intended the prohibition of public worship in a synagogue to be erected in the future. It must be interpreted only as prohibiting such worship in the homes of individuals – even though such an interpretation was a strain on the text – for otherwise the takkanah would "prevent many from fulfilling a mitzvah" and amount to something "distorted and improper" (Resp. Ribash, no. 331). In such a case it was held permissible to consult the community about its intention in enacting the takkanah, but the explanatory remarks should only be accepted if it was stated that at the time of enactment of the takkanah it was thought that the relevant intention was actually expressed in the text. If at that time it was known that the meaning of the text varied from the avowed intention of those who enacted it, the explanation would not avail and the takkanah must be interpreted within the ordinary meaning of the text (ibid.).

Conflicting Provisions and Ambiguity in the Text

Conflicting provisions in the text of a takkanah must be interpreted, in the case of a suit between two parties, in favor of the defendant (Resp. Rashba, vol. 3, no. 397; vol. 5, no. 281). In other cases, for instance a takkanah dealing with the authority of the trustees of the community chest to make expenditures, it was held that the rule of "all according to the latter reference" (see above) must be followed, but the attempt should be made to reconcile, as far as possible, conflicting referencesto the same matter, as in the interpretation of documents (see above; Resp. Rashba, vol. 3, no. 386). At times such conflicts were held to be completely irreconcilable and it was decided that perhaps they had to be ascribed to clerical error (Resp. Rashba, loc. cit.). In case of doubt about the meaning of the text, an interpretation must be preferred which excludes any matter of halakhic controversy from the area of the application of the takkanah, and in interpreting the meaning of a takkanah it is permissible to be guided by the manner of its practical application in daily life for a certain period after its enactment (Resp. Ribash, no. 304). In their interpretation of communal enactments, the halakhic scholars were much guided by a comprehensive study of the entire collection of takkanot in which the enactment in question appeared, in order to draw analogies from one provision to another, either to distinguish between them or to apply to the one the terms of the other. Not only the analogic modes of interpretation were applied to communal enactments but also those of elucidative interpretation (see above; for an illustration of the interpretation of a takkanah by the rule of kelal u-ferat, see Resp. Rashba, vol. 3, no. 396); they also dealt in detail with interpretation of words and phrases. In the course of these discussions by halakhic scholars, the Jewish legal system was enriched by the addition of many and varied canons of interpretation (see further Resp. Rashba, vol. 5, nos. 126, 277, 279, 284, 285, 288, 290; vol. 6, no. 7; Resp. Rosh, no. 55:9; Resp. Ritba, no. 50; Resp. Ribash, no. 249). These offer profitable jurisprudential sources concerning interpretation of laws and statutes.

[Menachem Elon]

An example of the principle that communal enactments should be interpreted according to their wording rather than their unstated objective appears in a responsum of Rashba. Rashba was asked regarding a communal enactment concerning taxes, whose objective was to enable more extensive collection of taxes from the population. But in fact the enactment created a situation in which a particular citizen paid less than what he would have paid without the enactment. The community argued that the enactment should be interpreted in terms of its objective, i.e. the intent of the community that enacted it, even if this absolutely contradicts its explicit language. Rashba rejected their claim, ruling that these (the community's claims) are unexpressed intentions, and that an unexpressed intention is of no legal weight (lit. "words in the heart are not words"), and that the clear language of the enactment is therefore binding (Resp. Rashba 5:282).

The Supreme Court of the State of Israel relied on the Rashba's comments in its interpretation of legislation. In the Bank Leumi case (HC 333/78 Bank Leumi Trust Company v. the Estate Tax Authority, PD 32(3) 202, per Justice Menahem Elon), the Court ruled, in accordance with the Rashba's responsum, that the law should be interpreted "according to what can be inferred from it, and not according to the intent that the legislator may have had, when that intent cannot be elicited from the law's unequivocal wording" (ibid., page 214; see also CA 460/00, Maman v. the Customs Authority, PD 57(2) 461, page 473, Justice Y. Turkel). Similarly, the Supreme Court ruled that the interpretation of a legal term must be rendered in accordance with the meaning afforded it by common usage, in accordance with the manner of interpreting communal enactments in Jewish law (CA 534/79 Efrat v. the State of Israel, PD 35(4) 729, page 734).

Judicial Interpretation – Judgment in Perfect Truth

The phrase "din emet le-amitto" (judgment in perfect truth) coined by the Sages, apparently during the amoraic period, is a highly instructive one. The Sages said, "A judge who delivers a judgment in perfect truth causes the Divine Presence to dwell in Israel" (Sanh. 7a) and, "It is as though he was made a partner to God in the Creation act" (Shab. 10a).

One interpretation of this phrase was provided by Rabbi Joshua Falk Katz (Derisha, ḤM 2; Poland, 17th century). He explained:

"Judgment in perfect truth" means judging in accordance with the time and place, where the truth depends on these factors, as distinct from judgment that is always in accordance with the strict law of the Torah. Sometimes the judge has to rule lifnim mi-shurat ha-din (beyond the letter of the law) in accordance with the times and the context …

An example of the judicial application of this rule in the State of Israel is provided by the ruling in the Hoffman case (HC 257/89 Hoffman v. the Custodian of the Western Wall, 48 (2) 265). In that case, a petition was submitted by a group of women who sought to pray at the *Western Wall Plaza dressed in prayer shawls and carrying Torah scrolls. Their attempts to do so at that location provoked rioting and disturbances by a large number of worshipers there, as what they were doing contradicted the laws and customs of prayers prevailing there. One of the focuses of the ruling was Regulation 2(a) (1a) of the Protection of Holy Places Law, which forbids "conducting a religious ceremony not in accordance with the custom of the place …," the question being how to interpret the expression "custom of the place." In his judgment, Justice Elon ruled that "due to the uniqueness of the Western Wall and the tremendous sensitivities prevailing at the Jewish people's holiest site, prayer must be conducted at this special place in accordance with a common denominator that accommodates the prayers of every Jew, whoever he may be – namely, the local custom that has prevailed there throughout the generations" (page 290 of the ruling). Justice Elon concluded his comments by relating to the above-cited ruling of Rabbi Joshua Falk Katz:

Where the issue is a sensitive, crucial matter in the world of Jewish Law, regarding the most holy place for Judaism and Israel, throughout the generations since the destruction of the Temple, it is right and proper to conduct oneself lifnim mi-shurat hadin, in accordance with the common denominator applying to all Jews, whoever they may be, so that they can all approach the Kotel at all times, whispering their prayers before their Maker, for the welfare and integrity of Jerusalem their capital. And may we deliver judgment in perfect truth (ibid., page 351).

Regarding the interpretation of laws in the State of Israel in accordance with Jewish Law, see *Mishpat Ivri – Jewish Law in the State of Israel.

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

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