Beitzah 38

Act now, decide later.

We’ve talked a lot in this series about how intent matters to the rabbis. Certain actions are considered violations (or not) based purely on what was happening in the mind of the actor. On today’s daf, the rabbis explore the concept of bereira (bray-RAH) which offers another twist — a retroactive twist — on this idea of intention.

The word bereira simply means “choice” or “selection” but it has several meanings when it comes to the laws of Shabbat and festivals. For one, it is used to describe the forbidden labor of sorting. For example, one should not pick out edible food from the inedible, such as bones from fish (though not every authority agrees with this example once the food is in a person’s mouth).

On today’s page, however, bereira refers to the notion that a choice or selection can be applied retroactively. One of the wildest examples of this occurs on Gittin 25a where the rabbis consider the case of a husband who told a scribe to write a bill of divorce for him, but instead of writing the name of the woman to be divorced (as normally required), he asked the scribe write it to “whichever of my wives leaves the house first.” (One wonders that they weren’t all flocking to the exit!) In any case, the rabbis disagreed over whether the divorce contracted this way was valid. Must one designate the wife to be divorced explicitly in the bill, or can she be designated post facto?

On Beitzah 37 (yesterday’s daf), the idea of bereira, again meaning retroactive designation, continues to be a point of contention. We are told that Rabbi Hoshaya holds by bereira, whereas Rabbi Yohanan does not. Or maybe it’s the other way around? Perhaps Rabbi Yohanan holds by bereira, but not in matters of Torah law, only in matters of rabbinic law? 

The Gemara brings an example drawn from the quintessential example of rabbinic law: the eruv. Suppose a rabbi is coming to a place near one’s town to deliver a lesson on Shabbat. A person who wants to travel more than 2,000 cubits outside the town to hear the rabbi must construct an eruv techumim. Unfortunately, this person is unsure where the lecture will take place, so he cleverly places two eruvs on Shabbat eve in two different directions, while stipulating that only one eruv — the one on the side where the rabbi will teach (which he will not know until later) — will take effect. Not only this, but if he hears that two rabbis will be coming to two different locations, he might also place two eruvs and stipulate that he will decide on Shabbat which rabbi he prefers, and consequently which of the two eruvs will take effect. 

Does that sound a little crude? Rabbi Yohanan seems uncomfortable too, though not necessarily for the same reason. He permits the first double eruv, but not the second. Here’s the Gemara again:

And Rabbi Yohanan said in explanation: This first case is referring to a situation in which the rabbi had already arrived before the eruv was placed.

In the case of one rabbi and one lecture, the location had already been determined, it’s just that the person did not know which location it was. This, according to Rabbi Yohanan, is completely different from the case where there are two rabbis and the only thing not determined was which lecture to attend — this truly was determined (inappropriately, according to him) on Shabbat. In the end, he accepts the first behavior and not the second which proves that he does not accept bereira, retroactive designation, after all. 

The Gemara concludes that it is therefore surely Rabbi Hoshaya, and not Rabbi Yohanan, who accepts the concept of bereira, though Rabbi Hoshaya too applies it only to cases of rabbinic law, not Torah law.

The fact that the Gemara struggles to determine who holds by this principle, and then states that this rabbi in fact holds by a limited version of it, perhaps demonstrates rabbinic discomfort with this particular legal fiction. And we can probably all agree that it is probably best to decide ahead of time which wife you want to divorce.

Read all of Beitzah 38 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on October 8th, 2021. If you are interested in receiving the newsletter, sign up here.

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