Mishnah Commentary: Mishnah 6. mBetsah 5:2

@Manuscript evidence

@General observations

The text of the above mishnah is almost identical with its Tosefta parallel. Both record a categorization of certain activities which is found elsewhere in the Tosefta (tShab 13:13) and in the Mishnah (mRhSh 4:8) and has therefore to be considered a well-known category used by the rabbis. The mishnah teaches that the following three categories of activities, which the rabbis prohibited on the Shabbat, are also prohibited on festival days. The following activities fall into the first category of shevut (שבות), a term used for rabbinical injunctions that do not have any element of mitsvah observance, and may, therefore, not be per formed on Shabbat or on festival days. Among these the rabbis count climbing a tree, riding a beast, swimming, clapping hands, slapping thighs and dancing. The next set of activities falls into the second category of reshut-prohibitions. The term reshut (רשות) usually refers to voluntary acts not related to a mitsvah performance. According to the rabbis, the difference between shevut and reshut is that the reshut-prohibitions involve elements of mitsvah observance, even if they are not actual mitsvot. And these are the activities they list as forbidden due to reshut: sitting in judgment, performing a betrothal, halitsah, or yibum. The Erfurt MS of the Tosefta adds to this list granting a divorce or affecting a right of refusal. The third category lists activities that are actual mitsvot: consecrating, taking vows, declaring a herem or separating teruman and tithes. The Mishnah and the Tosefta conclude the passage with the underlying principle of the whole massekhet: “There is no difference between Shabbat and festivals except for the preparation of food.”[1]

@Feminist observations

Throughout rabbinic literature the above-cited mishnah has been the primary source for discussing the permissibility of marriage on Shabbat. The religious character of marriage is derived from the verse “be fruitful and multiply” (Gen 1:28). On this basis, the Mishnah deals with the laws of marriage in five tractates: Yevamot, Ketubbot, Sotah, Gittin and Qiddushin. Rabbinic law speaks about the husband as “owner” (בעל) and about the wife as “being owned” (בעולה .(In general, rabbinic laws of marriage focus on two acts that create two distinct phases in the status of the married couple. The first is called קידושין (Qiddushin), betrothal,[1] and occurs when a man consecrates his wife to himself by any of the three methods described in mKet 1:1: money, שטר (shetar – a marriage contract) or sexual intercourse. The second phase, called נישואין (nissu’in), marriage, is validated in the huppah ceremony, after which bride and groom live together. The כתובה (ketubbah – marriage contract) is a document that confirms purchase.

Our mishnah refers to betrothal and is, therefore, only directed to men as the sole active participants of a betrothal. According to mKet 4:4 a father has the right to betroth his daughter, just as he has the power to cancel her vows, and he is the one who receives her divorce documents. The Tosefta (tKet 4:1) states that “the husband has an advantage over the father and the father has an advantage over the husband.”[2] Wegner has, therefore, pointed out that marriage was “a legal transaction” that transferred women from one man to another: “She continues within the control of her father until she enters the control of the husband at marriage.” This is “highlighted by the unilateral nature of the espousal ceremony in which the man recites a formal declaration to which the woman makes no reply.”[3]

The same principle of a decision made by men without attaining the consent of women is also found in the ceremony of the יבום ,the levirate marriage.[4] As outlined in Deut 25:5-11, if a married man dies without children, his brother must either marry the widow (yibum, levirate marriage) or free her to marry someone else through the rite of חליצה (halitsah) (Deut 25:7). The Mishnah teaches that neither act may be performed on the Shabbat or on festival days.

In this context it is also interesting that the Tosefta’s prohibition of weaving and writing on Shabbat and festival days is not mentioned in the Mishnah. The Tosefta begins by addressing both men and women. It describes the activity of weaving, which is forbidden on Shabbat and on festival days in differing degrees, and the activity of writing, which is similarly forbidden. Weaving was typically an activity performed by women.[5] Writing, on the other hand, was typically reserved for men.[6] Therefore, the term Israelite mentioned at the very end of the Tosefta passage could possibly imply women as well as men (for the term Israel and women see the commentary on Bavli 4/1. bBetsah 30a).

It thus seems that, while women could also be addressed by the shevut-prohibitions, the reshut-prohibitions are clearly addressed only to men. In this context we may note that the Erfurt MS of the Tosefta adds to the reshut prohibitions two further actions that are associated with marriage: divorce, another unilateral action undertaken by the husband, but also mi’un – the right of an orphaned minor daughter, who was betrothed by her mother or brothers, to refuse her betrothed once she attains adulthood. It is unclear why the first of these two legal actions is absent from the Vienna MS of the Tosefta, and from the Mishnah altogether. But as regard the second of the two, namely mi’un, perhaps it was removed because it empowers women in a sphere in which they are not expected to act.

In conclusion, in both tannaitic sources betrothal in general and betrothal on the Shabbat as well a yibum in general and yibum on Shabbat are only directed at men. Yet the Tosefta, which speaks impersonally, includes women by addressing them at the beginning and at the end of the discussion, whereas the Mishnah is addressed exclusively to men.