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Thought for the Day: Halacha and Kabalas haTorah

So... you go to your local Jewish book store to get a new Shabbos yarmulka.  How do you actually acquire it?  Here is a hint: movable objects (as opposed to land, for example) can not be acquired with money.  They way you acquire your beautiful new Shabbos yarmulka is by picking it up.  Please don't run out right now to pick up a new yarmulka and expect to call out to the owner as you leave, "Michael Allen told me it was ok." It is true that the acquisition (ie, transfer of ownership) only happens when you lift your item, but the transfer will only happen if the current owner (or his agent) wants to transfer ownership to you.  The usual way to get him to want to transfer ownership to you, of course, is to give him money.

Just to be complete.  You give him money, he accepts the money, writes a receipt, has said receipt signed by two kosher witnesses, hands you the yarmulka, you take it and lift it at least one tefach.  At that point the yarmulka is now yours; Mazal Tov!  Even if he would now claim that his intent to transfer ownership to you was insincere, the sale is still good.  We say that his intent to transfer ownership to you was sincere at the time of the sale (as evidenced by the receipt and the fact that he took you money).  That's the usual case.  You know very well by this time in our relationship that exceptions are coming up.

Suppose he doesn't want to sell that particular yarmulka to you. Maybe he promised it to another customer.  Maybe he doesn't like selling yarmulkas on Thursdays.  You, however, really want that yarmulka a lot.  So you hang him by this thumbs till he accedes.  You cut him down and give him money and ... and ... you lift it at least one tefach.  It's a good sale.  What about the fact that he was pressured in to the sale?  There are lots of pressures: financial and being hung up by your thumbs just to name two.  (I absolutely am not making this stuff up; this is all Chazal.)

If, however, the seller tells the witnesses to the receipt that he was coerced, then the sale is not a good sale.  The fact that there was an announcement of the coercion can be used by the seller nullify the sale.  Unless the coercion was at gun point (according to some opinions).  When being threatened, then we say the intent to transfer ownership is quite sincere.  At gun point one is not having second thoughts; he very sincerely wants to remain in this world.

All of this is relevant to any situation of accepting the terms of a document.  Which is how this came up: Klal Yisrael was coerced by having a mountain over their heads and being told, "If you accept My Torah, good; if not, this is your grave."  So they said "na'ase v'nishma".  As we all know, because of that coercion, the Torah had to be re-accepted a 1,000 years later at the time of Mordechai and Esther with the famous statement, "kiblu v'kimu".  However, asks the Kesef Mishna, according to those who hold that coercion at gun point (or, in this case, mountain base) is a good acceptance; why did we need a new acceptance?

There is much to say on that.  For now, though, it think it is worth noting that sages throughout the centuries have debated this issue because there is a deep and unwavering principle: HaShem also follows halacha.  HaShem is pretty free and easy with physical law when the need arises, but not halacha.  Halacha is obviously not merely a bunch of rules; halacha is the guiding force in all aspects of reality.


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