As anyone who’s used the adjective “talmudic” in secular contexts knows, the Talmud has a reputation for playing convoluted games with legal logic just for the sake of argument. And often, that really is what the rabbis of the Talmud are up to. But sometimes, the Talmud comes up with legal fictions and workarounds that are actually quite practical. For example, today’s daf deals with a problem that arises from the intersection of two different areas of rabbinic law. On the one hand, one is supposed to own one’s own lulav and etrog each Sukkot. On the other hand, one is forbidden from purchasing produce (i.e., edible agriculture) that was grown during the sabbatical year. (What’s the sabbatical year, also known as shmita? It’s a biblically-mandated year of rest for the land during which it is forbidden to farm.) Purchasing a sabbatical-year lulav is fine because it’s basically just a decorative plant, not produce, but how does one go about purchasing a sabbatical-year etrog?
A mishnah offers the following legal loophole:
If one purchases a lulav from their fellow during the sabbatical year, the seller should give the purchaser an etrog as a gift, since one is not permitted to purchase it during the sabbatical year.
Easy enough — the seller can just throw the etrog in for free. This works well in theory, but as a mandatory practice for sellers to just give away fruit for free, it may not actually be all that effective. The Talmud offers a solution:
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And what if the seller did not want to give it to the purchaser as a gift?
Rav Huna said: One includes the price of the etrog in the price of the lulav.
In other words, if a lulav costs $30 and an etrog costs $10, the seller could just say that the lulav is $40, and that it also comes with a “gift” etrog. This might seem like a bit of a ridiculous legal loophole. But it’s actually one that people still use in contemporary society, in totally secular contexts.
As of this writing, in some states in the U.S. there are certain products that, like sabbatical-year produce, are legal to own but illegal to sell — for example, marijuana. Marijuana sellers in those states have employed some very creative legal loopholes to get around this restriction, including exactly the one discussed here. So, if someone in one of those states wanted to buy some marijuana, they might purchase a small decorative plant (let’s say a miniature jade plant, or a little cactus) from their dealer for the dramatically overinflated price of $150. The dealer would then throw in the indica or sativa strain of the seller’s choice as a “gift” — just as the four species seller does with the etrog.
Talmudic logic: It’s not just for nerds.
Read all of Sukkah 39 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 15th, 2021. If you are interested in receiving the newsletter, sign up here.
