“It’s the thought that counts.”
It’s a phrase we all say to express appreciation for a good effort. But when it comes to monetary transactions, this is hardly true.
The Gemara in Kiddushin (49b) presents Rava’s ruling that devarim shebalev eino devarim – that unspoken words don’t have the legal power of spoken words.
The Gemara discusses someone who sold his house planning to move to eretz yisrael but didn’t specify it to the purchaser at the time of the sale. When the seller’s plans fell through, Rava ruled that the seller can’t force the buyer to give back the house because devarim shebalev eino devarim – the seller’s unspoken words don’t carry any legal weight.
This leads to an interesting question from a Gemara in Bava Basra.
The Gemara in Bava Basra (146b) discusses a case where a person heard that his son died and proceeded to give his possessions to a third party. What if the son turned out to be alive? Can the giver retract his gift and give his possessions to his son instead?
R’ Shimon ben Menasya rules that the giver can retract.
The Gemara explains that this is based on the concept of umdena – that we make assumptions in a person’s judgement. Naturally, the giver wouldn’t have given his possessions to a third party if he knew that his son was alive. Therefore, he can retract.
Many rishonim ask: What about the concept of devarim shebalev eino devarim? The person never enunciated this stipulation? Why should umdena work if it was never spoken?
The Answer of Tosfos
Tosfos (Kiddushin 49b) explains that although it’s true that we disregard an individual’s unspoken words, there are certain assumptions in human behavior that are deemed self-evident to the point that they do carry legal weight. These assumed behaviors have the power to invalidate a transaction, even though the words were never spoken.
The Ritva describes this concept as devarim shebalev u’vlev kol adam – words that are in “the heart and the heart of every man.”
Many acharonim explain that this doesn’t even contradict the principle of devarim shebalev eino devarim as when there is a self-evident assumption in human behavior, it’s as if the words were spoken.
The Answer of the Ri’az
The Ri’az answers that the Gemara in Kiddushin and the Gemara in Bava Basra are discussing two different cases.
The Gemara in Kiddushin discussed the case of a sale. By a sale, we never rely on umdena and require that any stipulations be spoken about. If the stipulations weren’t discussed, we would apply the rule of devarim shebalev eino devarim.
The Gemara in Bava Basra discussed the case of a gift. By a gift, we evaluate the mindset of the giver and rely on umdena, even if the words were never spoken.
R’ Isser Zalman Meltzer deduces support for the Ri’az from the Rambam.
The Rambam codifies the Gemara in Bava Basra about umdena in the halachos of gifts, stating that we evaluate the mindset of a giver and rely on umdena. He codifies the Gemara in Kiddushin about devarim shebalev in the halachos of sales – Hilchos Mechira – and in that context says devarim shebalev eino devarim.
R’ Isser Zalman deducts from here that the Rambam agrees with the Ri’az that we only rely on umdena to evaluate the mindset of a giver. Not by a sale. By a sale, we would say any stipulation would need to be discussed and we could never assume the mindset of the seller to be one way or another.
What About Bittul Chametz?
The Gemara in Pesachim (4b) tells us that on a Torah level, someone can nullify their chametz before Pesach to avoid the prohibition against owning chametz on Pesach. Nonetheless, the Chachamim mandated us to separately check for chametz and get rid of it.
How does the nullification work?
Practically, we say the statement of kol chamira, which includes the phrase that the chametz should be annulled and treated like the dust of the earth.
However, the Gemara in Pesachim (31b) says that technically one can annul chametz in even one’s heart.
How does this work? What about devarim shebalev eino devarim?
There are many answers given to answer this question.
The Answer of Some Rishonim – You Need to Say It
The Ran (on the Rif, 9b) quotes the opinion of some Rishonim that bittul chametz doesn’t work in one heart’s precisely because of devarim shebalev eino devarim. The Gemara only meant to say that you don’t have to say it loud enough to hear it.
The Answer of the Ran – Not Your Usual Hefker
The Ran himself addresses this issue earlier in Pesachim (on the Rif, 1a) and answers that chametz isn’t your usual hefker.
Typical hefker requires that the declarer enunciate his intent to make something ownerless because without enunciating it, we would say devarim shebalev eino devarim. However, by chametz on Pesach, the Gemara in Pesachim (6b) says that chametz is technically ownerless due to the prohibition against benefiting from it – the prohibition against owning it only remains because the Torah treats chametz as if we own it even though we technically don’t.
By chametz on Pesach, there is a lower threshold of ownership and we don’t need a full-fledged hefker – all that’s needed is a revelation of one’s mindset that we no longer wish to own the chametz. This can be fulfilled in one’s heart, even without enunciating anything.
The (Potential) Answer of the Rashba
The Rashba says that the rule of devarim shebalev eino devarim only applies when the person’s thoughts contradicted his actions. If they don’t contradict a person’s actions, they can count. This is why devarim shebalev can work in some areas of halacha, like by separating terumah.
Some acharonim say that the Rashba’s principle can be used to answer the Ran’s question. When someone is nullifying their chametz before Pesach, nothing about their actions contradicts the thoughts of nullification. Therefore, the nullification can take place without words being spoken.
The Answer of the Me’iri
The Meiri answers that the rule of devarim shebalev eino devarim only applies to interactions between people.
Bittul chametz isn’t an interaction between people but rather, an area of bein adam lemakom – between us and Hashem. In areas between us and Hashem, the Gemara tells us that rachamana liba ba’eh – that Hashem cares about what is in our hearts.