People aren’t their best when they’re angry. They could say the wrong thing. They could do the wrong thing. But few moments of anger had as much consequence as the anger of hotheaded Kohanim.
The Gemara in Bava Basra (160b) relates how there was a certain place of Kohanim where the Kohanim were quick to get angry. Sometimes, these angry Kohanim divorced their wives in haste and by the time they calmed down, they were greeted with an unfortunate reality: Kohanim can’t marry divorcees. Thus, these Kohanim couldn’t remarry their own wives.
To remedy this, the chachamim instituted the get mekushar – a “bound get.”
This was a type of get that needed to be folded over and bound multiple times prior to its completion. This slowed down the get preparation process and allowed the angry husband to come to his senses before finalizing a divorce.
Once the idea of “bound” documents was instituted by a get, the chachamim also instituted them as an option by other legal documents. Why?
The Gemara explains that if people saw that bound documents weren’t acceptable as other legal documents, they may come to invalidate a “bound get.” Therefore, the chachamim instituted “bound” documents across all types of legal documents. Not just by a get.
Is There A Source for Bound Documents in the Torah?
Despite this being a Rabbinic institution, the Gemara finds support for “bound” legal documents from a set of verses in the Torah and the Neviim.
These verses indicate that there are two types of legal documents – regular legal documents and “bound” legal documents. The Gemara explains that while these verses are primarily dealing with other matters and aren’t coming to tell us about “bound” legal documents, they can nonetheless reference “bound” legal documents through an asmachta.
What is an asmachta?
This is a great debate amongst the Rishonim and the Acharonim.
The Opinion of the Rambam – A Memory Tool
The Rambam (Introduction to Peirush Hamishnah) writes that an asmachta is a memory tool.
Whenever the Gemara quotes a halacha alongside a verse and categorizes that verse as an “asmachta alone”, that means that this halacha wasn’t learned from the verse. Rather, the halacha is of Rabbinic origin but the verse is used to help us remember the halacha.
This is also the opinion of the Kuzari (Ma’amar Three) and the Mabit (Kiryas Sefer, Hakdama, Perek 1).
These authorities hold that a halacha which is an asmachta is purely Rabbinic in nature and has no hint to its existence in the Torah. The verse that is used as an asmachta was merely used by the chachamim to help remember the halacha.
The Opinion of the Ritva – Requiring the Recommended
The Ritva disagrees vehemently with this approach.
The Ritva (Rosh Hashana 16a) says that whenever we have an asmachta, the verse is hinting to something that the Torah recommended but didn’t require. In such cases, the hint told the chachamim that although it’s not required on a Torah level, it’s worthy for them to institute as a requirement.
For example, the Ritva discusses the requirement to say verses of malchiyos, zichronos and shofaros on Rosh Hashana.
Although this requirement is Rabbinic to most Rishonim (although see Rashi Vayikra 23:24 and the Ramban there), the Gemara in Rosh Hashana (16a) says that Hashem said to say malchiyos, zichronos and shofaros “in front of me” on Rosh Hashana, which sounds like Hashem instructed us to do it.
How can the Gemara use that phraseology? That sounds like malchiyos, zichronos and shofaros is required on a Torah level!
The Ritva explains that although the Torah never required us to say malchiyos, zichronos and shofaros, the Torah still hinted to the idea and led the chachamim to institute it as a requirement. Therefore, the Gemara can say that Hashem said to say malchiyos, zichronos and shofaros “in front of me” – because the instruction ultimately emanated from Hashem.
According to the Ritva, an asmachta isn’t just a memory tool. It’s the chachamim taking an idea that was recommended by the Torah and instituting it as a halachic requirement.
The Opinion of the Maharal – Instituting a Halacha Based on a Torah Concept
The Maharal (Be’er Hagola, Be’er 1) takes a similar approach to the Ritva but describes the process slightly differently.
The Maharal explains that in cases asmachta, the Torah provided a certain base concept which led the chachamim to institute certain halachos. For example, the Gemara in Chullin (106a) says that the requirement to wash hands is learned through asmachta. The asmachta is found in a verse speaking about an impure person who touched things and “his hands were not rinsed with water.”
Although an impure person can convey his impurity not just through his hands, the Torah indicated here that hands have more potential for impurity than other parts of the body. This concept – which is hinted to on a Torah level – led the chachamim to institute netilas yadaim as a halacha.
According to the Maharal, an asmachta isn’t just the chachamim requiring what was recommended on a Torah level. It’s the chachamim seeing a concept in the Torah and instituting a halacha based upon it.
Back to the Bound Documents – The Ritva in Bava Basra
This debate about how to understand an asmachta affects how we understand the Gemara in Bava Basra about bound documents.
The Gemara initially suggested that there’s a source for bound legal documents in the Torah and then concluded that the verses are only an asmachta.
According to the Rambam that an asmachta is just a memory tool, the Gemara presumably retracted from the initial thought that there’s a source for bound documents in the Torah, as the verses that serve as an asmachta are only hints to help us remember the halacha – they aren’t the source for the halacha.
The Ritva disagrees.
The Ritva (Bava Basra 160b) says that the Gemara never retracted from its initial premise. All along, the Gemara was asking where there’s a source for bound documents in the Torah and the Gemara concluded that it can be learned through asmachta. Although an asmachta isn’t powerful enough to convey a requirement on a Torah level, it still counts as a source for the idea. Therefore, the Gemara never retracted from its initial premise that there’s a source for bound documents in the Torah.
This is the Ritva working within the parameters of his opinion in Rosh Hashana that an asmachta isn’t just a memory tool – it’s an actual source in the Torah suggesting that an idea exists.