Are Implied Statements Binding in Halacha?

Provided courtesy of Real Clear Daf

We learned about this on 36a. The Gemara there is studying the dispute between R’ Meir and the Rabbanan presented in the Mishnah on 35a about an implied adjuration of the witnesses. For example, the plaintiff says to the witnesses, “if you testify for me, you should be blessed,” and the witnesses under these terms continue to insist that they have no information. We know that if the adjuration would be explicitly framed as a curse (e.g. “if you deny knowing this testimony, you shall be cursed”) this would create a binding oath upon the witnesses that, if false, would make them liable to bring the asham sacrifice. The question here is whether an implied curse would also create a binding oath, for “if you testify, you will be blessed,” implies that if they do not testify they are being placed under a curse. R’ Meir says the implied curse does create a binding oath and the Rabbanan say it does not. (One could ask: why does this language necessarily imply a curse--perhaps all it implies is that if they do not testify, then they will not be blessed, but not cursed either. You are welcome to write in if you know of an answer.)

The Gemara notes that R’ Meir’s opinion here appears to contradict his opinion in Kiddushin (61a) on how to formulate a condition for monetary transactions. R’ Meir there says that a stipulation only works if both possibilities of the condition are articulated (e.g. “If you win the race, you get a prize. If you don’t win the race, you don’t get a prize.”) But wait, if R’ Meir accepts implied statements, stating just one side of the stipulation should be just fine (“If you win the race, you get the prize,” clearly implies that if the race isn’t won, there’s no prize.)! The Gemara there proposes to answer that R’ Meir only does not accept implied statements for the purpose of directing financial transactions based on his derivation from the language of Moshe Rabbeinu’s negotiations with the tribes of Gad and Reuven over the territory east of the Jordan. An oath, on the other hand, is a question of prohibition whereby R’ Meir has no problem accepting an implied statement.

The Gemara questions this theory from the passage of the sotah, a woman suspected of adultery. There too a curse is part of the process: the sotah binds herself to the terms that is she in fact is guilty, she will suffer the curse. The Gemara proves that both sides of the condition are included when the sotah is adjured: if she is innocent, she will not be cursed, but if she is guilty she will be cursed. The fact that we cannot rely on the implication of stipulating one of the sides by sotah-which is ostensibly just a prohibition question-appears to refute the Gemara’s suggestion of how to reconcile these opinions of R’ Meir. The Gemara fends off this problem by asserting that sotah is actually not purely a question of prohibition, for the sotah’s outcome will also determine whether she will be entitled to her kesubah payment. Being that sotah also contains a monetary element, it is subject to R’ Meir’s insistence not to rely on an implied statement.

One could still ask though: what is the rationale to make this distinction between monetary vs. prohibition cases? Seemingly, once the Torah reveals that we cannot rely on implied statements when laying out the terms of a financial transaction, we shouldn’t be able to do so by prohibitions either.

To answer this question, let’s step back and ask ourselves why the Torah would place such a high standard on formulating financial stipulations to begin with. After all, any objective court would agree that if the agreement was e.g. “if you win, you get the prize,” that the prize is contingent on winning. So isn’t it excessive to require us to spell out the other side of the condition? Perhaps the answer to this question is that the Torah required this higher level of clarity because by definition there is another party involved in the financial transaction. The Torah therefore says that in order to not leave the slightest room for the other party to contest the nature of the agreement, go above and beyond and painstakingly spell out both sides of the condition. That’s why Moshe Rabbeinu said to the lead attorney for Gad and Reuven after he had already stated they they will get Transjordon if they help conquer Israel proper: “Let me be very clear: you’re not getting Transjordon if you don’t first conquer Israel proper.” If this explanation is correct, then it’s very clear why there’s no such requirement by a prohibition case. By straightforward prohibitions the Torah simply says: an implied statement does create the prohibition.

One lesson we can take from this Gemara is that being super clear about an agreement can avoid bitter disputes later.