Midway through the game Zelda: Breath of the Wild, there’s a moment where you discover a mysterious island disconnected from the rest of the map. As soon as you set foot on the island, everything you’re carrying — your food, your weapons, even your armor — is taken away from you, only to be returned once you leave. The idea is to challenge players by recreating the experience of being new at the game. But many users have noted that there’s a workaround: Right before you set foot on the island, drop everything you’re carrying into the water. Then, once you set foot on the island, just pick it up again.
If you substitute “land on a mysterious island” with “get married,” you get the story that begins at the bottom of yesterday’s daf.
A certain woman who wanted to distance her property from her (future) husband wrote (a document assigning her property) to her daughter.
As we saw yesterday, the rabbis give a husband wide discretion over his wife’s property — but this only works if the wife has property in the first place. The woman in the story solves this problem by giving everything to her daughter. Since she does not own anything during the marriage, there is nothing to control.
An elegant solution — until it isn’t. In this particular case, the wife’s daughter decides she wants to keep the property. Given that the sale was complete and irreversible, it would seem that the mother is simply out of luck. But when the mother approached Rav Nahman, she found a sympathetic ear.
(The mother) came before Rav Nahman. Rav Nahman tore the document.
Rav Nachman literally rips up the contract, as he had apparently ripped up similar documents, on the grounds that such contracts are never about transferring the property at all. They are simply attempts to keep property away from husbands. The contract, in other words, is a shtar mavrechet — a document of evasion, a sort of loophole.
I find such evasions interesting because their appearance says a lot about the area of law in which they are found. In a 2011 article, Duke law professor Samuel Buell suggested that our comfort with evasive legal techniques is highly dependent on two questions. First, is the law connected to some deeply felt societal norm? Second, is the law straightforward? If you can answer “no” to one of these questions, loopholes will start to emerge. If you can answer “no” to the first, people won’t care if there are loopholes but there won’t be many opportunities to form them. If you can answer “no” to the second, you might see loopholes develop but people will be angry about them. If you can answer “no” to both, loopholes will become both plentiful and acceptable: the law is complicated enough that you can hack it, and nobody has a great gut-check that what you’re doing is wrong.
So, for example, we don’t talk about loopholes for murder (strong norms, low complexity). There are a few loopholes for public consumption of alcohol (weak norms, low complexity). There are lots of loopholes in environmental law (strong norms, high complexity), but many people find them morally objectionable. (If you want a full theory of rabbinic loopholes, take a look at this essay by my colleague Dr. Elana Stein Hain.)
I mention all of this because Rav Nahman’s document shredding implies a relationship to matrimonial property itself, namely: It is law, but the values behind it aren’t particularly strong. Just as Rabban Gamliel on yesterday’s daf expressed shame at the law’s outcomes, Rav Nahman is willing to see through a plain-vanilla contract to the evasion behind it.
Read all of Ketubot 78 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 23rd, 2022. If you are interested in receiving the newsletter, sign up here.
