Silence Is Not Enough

This past Shabbos we had a small celebration to mark the bar mitzvah of my son (name intentionally omitted to preserve Google-privacy), the first of his generation in the global Student family to reach that milestone. Below is a lightly edited version of his speech, in which he explains a talmudic insight from R. Yehudah Leib Graubart which he published while he was the rabbi of Makov, hometown of the Student family in Poland (link). I plan on posting my remarks later this week.

I. Silence is Agreement

The Gemara teaches us that sometimes saying nothing is considered agreement. Silence sometimes means a lot.

The Gemara in Bava Metzia (6a) tells about a case when two people are holding a tallis and claiming that it is entirely their own. If one of them is able to pull the tallis out of the other's hands and then says that it is his, if the man who lost hold of the tallis is silent then it means that it really belongs to the man who grabbed it. By remaining silent, he is agreeing to the other man's claim. Shesikah kehoda'ah -- silence is like agreement.

II. Counterproofs

However, we run into a problem in other places. The halakhah is that while only a kohen is allowed to eat terumah, his wife is also allowed. The Gemara (Kiddushin 45b) says that if a young girl, a na'arah or ketanah, marries herself off in both kiddushin and nissu'in then she isn't married because at that age she is too young to marry herself off. Only her father can marry her off at that age. But if she anyways marries herself off in both kiddushin and nissu'in, and her father watches in silence, then she still isn't married and can't eat terumah. Why not? Why don't we say that shesikah kehoda'ah and since her father saw the marriage and was silent then he agreed?

Also, a different Gemara (Kiddushin 12b) tells this story. A man gave a woman a mat woven with hadassim that is worth almost nothing as a token for marriage, like a ring, and she accepted it. Rabbis said that they are not married because the mat is not shaveh perutah, it isn't worth enough money for the wedding to be valid. But the man answered that he had hidden four zuzim in the mat and when the woman found out she hadn't protested. Therefore you should say shesikah kehoda'ah and the woman's silence means she accepted. But the rabbis said it isn't good because it was too late. She either had to say yes or have it given to her again. Why? Why don't we say shesikah kehoda'ah? Why isn't silence enough and she actually has to say yes?

III. Silence as Clarification

Rav Yehudah Leib Graubart, in his Chavalim Bane'imim (vol. 1, no. 48), explains that silence can only clarify. It can tell you what has already happened but it cannot create something new. When one man grabs a tallis and says it his and the other man is silent, his silence is clarifying that he never owned the tallis. There, silence is telling us what already happened and absent any other evidence that silence is considered agreement. Shesikah is kehoda'ah to explain the past.

But when it comes to creating something new then shesikah is not enough. Everyone agrees that a couple was not married in the past and the silence cannot create a marriage. A woman needs to say yes to kiddushin that contains hidden money. Her silence cannot create a marriage. And a father has to say yes to his young daughter's marriage. Silence cannot create that marriage.

IV. Other Cases

This also explains the position of the Rosh (Shevu'os ch. 6 no. 11) that if a lender makes a condition after he makes the loan, a new condition, that the borrower can only repay him in front of witnesses and the borrower is silent, then the condition does not apply. The borrower does not have to pay back the lender in front of witnesses. Why not? Because the borrower's silence cannot create a new obligation to repay in front of witnesses. Silence is not enough.

Also, the halakhah is that if a woman makes a neder, a vow, to give money to tzedakah then her husband has to agree to it. What if he hears the neder and is silent? Does she still have to give to tzedakah. The Beis Shmuel (Even Ha-Ezer 91:13) says she doesn't because the husband's silence cannot create an obligation to give tzedakah. Silence can only clarify; it cannot create.

If one person gives an item to someone else to watch, the watcher becomes a shomer with specific responsibilities. If you put the item down in someone else's house and ask him to watch it but he is silent, the Machaneh Ephraim (Hilkhos Shomerim no. 2) holds that he isn't a shomer. We don't say shesikah kehoda'ah. Silence is not enough to create the obligations of a shomer.

V. Call to Action

This is not only an idea in halakhah but also in hashkafah. Chazal tell us how important silence is. It says in Pirkei Avos that seyag la-chokhmah shesikah -- silence is a fence that protects wisdom, and emor me'at va-aseih harbeih -- say little and do much.

But when you see something wrong in the world you can't change it through silence. You can't make something new with silence. Pirkei Avos also says be-makom she-ein anashim hishtadel lihyos ish -- when there are no worthy people you have to stand up and be one. When we see a problem we have to speak and, with zerizus, try to spread the kedushah of Torah. Silence is important but creating change requires action.

May we all merit to live up to this goal.