Retroactive Determination vs. Clarification
A while back, I posted about the YU Yom HaKahal that I attended, and my suggestion about breira, which Rav Schachter rejected:
I thought that I would be able to post audio, but it seems that they skipped Gittin Shiur #61, from Sunday March 12:
with #62 occuring on March 13. Rav Schachter did speak about breira in other, slightly earlier shiurim,
but you won’t be able to hear him shoot down my suggestion. Instead, I recommend that you read the preceding post.
To sum up my idea, the word ברירה could comes from barur, clarify. And that is how Rishonim discuss it, huvrar hadavar limafre’a. Or it could indicate selection, borer, like the melacha on Shabbat. The former would be retroactive clarification, and the latter would be retroactive determination.
We could divide the gemara’s cases if breira into these two categories. When he designates terumah in a wine flask based on what he will eventually decide to scoop out after Shabbat, that is his bechira. Write a get for whichever wife I eventually decide to divorce, that is his bechira. Ploni says: this is a valid get from now if I die in 30 days, this is simply clarification. My eruv techumin should be to the west if the Sage comes to that direction, and to the east if the Sage comes to that direction, that perhaps is his bechira, since he might then decide on Shabbat which is beneficial for him, but really it is not his bechira, because it is subject to actions outside of his control; and it is reinterpreted as the chacham already came before Shabbat, and it is a mere matter of clarification.
So Rav Schachter essentially shot it down. It is only retroactive clarification. And we need to understand how then it is any different from any tnai, condition, which is fulfilled in the future. (See Rashi about how a typical tenai is fulfilled by his own action the future.)
With that as background, we can consider Gittin 25a - 26a. The Mishnah had stated the case of a man with two wives of the same name. He instructed the sofer to write it, with intent that it should work for whichever Chana he decided to give it to in the future. Such a get is invalid. (And it is an Amoraic dispute over whether such an invalid get also invalidates the woman from marrying a kohen.)
Then, in the Pumpeditan academy, Rav Hoshaya (third-generation, brother to Rabba) asks Rav Yehuda (second-generation) about the following case: אָמַר לְלַבְלָר: ״כְּתוֹב לְאֵיזוֹ שֶׁתֵּצֵא בַּפֶּתַח תְּחִילָּה״, מַהוּ? That is, write with intent for the first woman who exits the door first. What is the law?
[This has an obvious parallel to Yiftach’s daughter, where he consecrated the first one to leave his house, thinking it would be a cow or a sheep. But the point was, it was out of his control and God would select His own korban.]
Rav Yehuda’s response was to cite the last case of the Mishnah, since it is identically a case of bereira.
Now, what was going through Rav Hoshaya’s mind? If you will, call it a hava amina and ask what his hava amina was. We generally take it for granted that Amoraim know all Mishnayot, though not necessarily all braytot, and this should be an easy application of the Mishnah!
In the ensuing Amoraic discussion, there is back and forth. Rav Hoshaya persists in his argument, and Rav Yehuda responds. And Abaye takes Rav Hoshaya’s side. He points out that Rav Hoshaya keeps presenting cases or evidence of תּוֹלֶה בְּדַעַת אֲחֵרִים, while Rav Yehuda keeps responding with cases of תּוֹלֶה בְּדַעַת עַצְמוֹ.
Note that while תּוֹלֶה בְּדַעַת עַצְמוֹ definitely means that the man has his own input into the decision, תּוֹלֶה בְּדַעַת אֲחֵרִים doesn’t mean that others have intellectual input into what happens. Even though you might say that one of the two wives has decided to exit the house, she doesn’t need to do this as a decision to be divorced. It is more in God’s hand, just as the case of Yiftach’s daughter. The best evidence that this is so is that one of the תּוֹלֶה בְּדַעַת אֲחֵרִים cases is a person who is sick, and makes the get take effect now contingent on his not recovering from the illness. In such a case, there is no other daat in play.
If so, we can conceptualize that for third-generation Rav Hoshaya, fourth-generation Abaye, fifth-generation Rav Mesharshiya (all based on our gemara — read it all inside), and third-generation Rav Yosef (see Tosafot on 26a, d.h. בין לרבי יהודה בין לר"ש לא שנא, pointing to Eruvin 37b), this distinction between תּוֹלֶה בְּדַעַת עַצְמוֹ and תּוֹלֶה בְּדַעַת אֲחֵרִים is precisely the same distinction between retroactive determination and retroactive clarification.
That is, תּוֹלֶה בְּדַעַת עַצְמוֹ is the type of breira in which he makes a later decision, and we want to take his determination at a future date and make it have halachic impact from now. And the absence of תּוֹלֶה בְּדַעַת עַצְמוֹ means that he doesn’t make a later decision, but rather that the world progresses until that stage, and we can clarify whether the condition is fulfilled.
One could take opposing positions about breira and breira prime. For תּוֹלֶה בְּדַעַת אֲחֵרִים, the question might be phrased as follows:
Question 1: Is the world deterministic and mechanical, so that given a current state, as we move forward in time, the next state could be calculated from it. Thus, we may condition a legal act now based on an event in the future. After all, it is only a matter of later clarifying what the destination state would be. (Thus, huvrar hadavar lemafrei’a.)
For תּוֹלֶה בְּדַעַת עַצְמוֹ, one could again take contrary positions. The question might be phrased as follows:
Question 2: Even if the world is generally deterministic, is human free will an exception to that? A person might make a determination some time in the future, and that is not knowable now, and is nondeterminstic. Hakol biydei shamayim chutz miyir’at shamayim. (Thus, we disallow a person to select, borer.)
Tannaim might well say אין ברירה for Question 2 because people have free will, so one cannot declare that e.g. the eruv will take effect at the onset of Shabbat, and he will decide some time on Shabbat which of the two eruvim he wants to have taken effect. But meanwhile, they will say יש ברירה for Question 1, because it is not an issue of choice, just conditioning on what will certainly initially develop.
Opposing Rav Hoshaya, Abaye, Rav Mesharsheya and Rav Yosef are second-generation Rav Yehuda and fourth-generation Rava. They maintain either that there is only a single question (call it determinism), or else practically, Tannaim are all consistent in how they answer Question 1 and Question 2. (See the gemara for details.)
Although generally we rule like Rava over Abaye, that isn’t necessarily how we rule when there are other Amoraim in the mix.
I’ll leave with one final idea. Rava explains away one of Rav Mesharsheya’s proofs of distinction, about terumah from a wine flask where he’ll eventually scoop out some of the liquid, by saying that all these Tannaim agree that breira works, and it is just a tangential concern of שֶׁמָּא תִבָּקַע הַנּוֹד, lest the flask burst and he doesn’t ever get to scoop out the wine, for this is how it is explained in the Tosefta. Thus: וְהָתָם – כִּדְקָתָנֵי טַעְמָא, אָמְרוּ לוֹ לְרַבִּי מֵאִיר: אִי אַתָּה מוֹדֶה שֶׁמָּא יִבָּקַע הַנּוֹד, וְנִמְצָא זֶה שׁוֹתֶה טְבָלִים לְמַפְרֵעַ? אָמַר לָהֶם: לִכְשֶׁיִּבָּקַע.
We occasionally have contrary braytot discussing and attributing these expansive Tannaitic discussions, so we might wonder whether the expansion is the equivalent of amar lecha Rabbi X, Rabbi X would say to you. A kind of proto-gemara trying to figure out the underlying reasoning and how they would respond.
But, even assuming that they said this, it could be that:
A) They are saying that, OK, we disagree about breira, but couldn’t you at least come to the same conclusion with us because of this tangential reason.
B) Maybe we can even fit the wineskin bursting into the breira framework, of inevitability. They are saying that his eventual action of taking teruma and making the selection (plus wherever the liquid wine happens to be in this sloshing-around fluid situation) is not inevitable. Externalities can impact the natural course of events, for instance if the wineskin bursts and he’s not able to (mechanically) take his eventually course of action.
A final final thought. If so, we have parallels to this argument in today’s daf, Gittin 28, which at first glance doesn’t have to do with breira (though breira did come up in Rav Schachter’s discussion, and eventually שֶׁמָּא יִבָּקַע הַנּוֹד will come up in discussing Rabbi Meir).
The Mishnah there discusses a man who sends a get when old or sick. We apply the chazaka — which in this case means assuming the status quo — that he is still alive when the agent delivers the get. And Abaye and Rava take contrary positions about how old or how sick this person is. (And recall that Abaye and Rava take contrary positions about the distinctions between breira and breira prime, so maybe with enough thought we can align them to their positions.)
In the gemara, Abaye asks about contrary Tannaitic sources to his teacher Rabba (though Rabba is only in Munich 95, Vatican 130 and 140 have it to Rava…)
There’s a contradiction regarding a woman given a get which will apply an hour prior to the husband’s death, that she may not eat teruma. And Rav Pappa objects about the lack of inevitability. מִמַּאי דְּאִיהוּ מָיֵית בְּרֵישָׁא? דִּלְמָא אִיהִי מָיְיתָא בְּרֵישָׁא!