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By Michael Rosensweig

Mesorah as Halachic Source and Sensibility

ewish tradition asserts that the decrees, the ordinances, and the teach- are rendered accessible or decipher- greatest moment and most impor- ings that Hashem gave, between Him- able only by means of the mesorah and Jtant event in history was not the self and the children of Israel, at Mount methodology of the oral tradition. The creation of the world but the Revela- Sinai, through Moshe,” the com- Gemara in (21b) describes this tion of the Torah (Matan Torah). Rab- ments: This teaches that two Torahs phenomenon: “His locks are curled”– binic sources perceive the giving of the were given to the Jews–one written this teaches that it is possible to ex- Torah at Mount Sinai as both the cli- and one oral. This principle forms the pound mounds of laws from every max and telos of Creation. Strikingly, basis for the pivotal idea of mesorah, single stroke in the Torah’s letters. the midrash articulates this view even the received tradition of Jewish law Clearly, the Torah sees great benefit as it interprets the account of Creation and values that complements the Di- both in the dual perspectives of the itself, noting that the very term vine text that was given at Sinai. Oral and Written Torot, as well as in bereishit (in the beginning) signifies the The two components of Torah— their integration. anticipation of Revelation: “For the mesorah and text—seem to represent a It is evident that the respective des- sake of the Torah, which is called the study in contrast, but are in fact mutu- ignations of Oral and Written Torah beginning.” Halachah mandates that ally enhancing. The Written Torah was transcend descriptive labels. Chazal the Jewish people maximize their con- revealed as a fixed text whose form meant to succinctly convey the impor- nection to the experience of Revelation was to be preserved unaltered. It is a tance of two different perspectives. and intensify their commitment to the Divine text that yields multiple truths The Written Torah underscores the content of Revelation by means of rig- and a variety of interpretations, some- concept of an unchanging text in orous Torah study and punctilious times referred to as the seventy faces of which spelling, structure, and form are Torah observance. Torah life consti- Torah (see also 34a). Ac- invested with halachic and homiletic tutes a Divine gift to the Jewish people, cording to the Ramban, the letters of significance. A sefer Torah that is im- a cherished opportunity, the gateway the Divine text embody metaphysical properly transcribed is disqualified to a spiritually rich and meaningful ex- significance as well, recombining into even if the changes apparently do not istence. (See , Makkot 23b; Ko- different manifestations of the Divine alter the meaning of the text. Indeed, helet 12:13.) name. The oral tradition, in contrast, absolute attention to proper form may The singular character of halachic though equally of Divine origin and au- come even at the expense of substance, life can best be apprehended and ap- thority, was entrusted to Moshe as the phenomenon of “kri vktiv,” preciated in light of the Torah’s unique Rabbeinu and by extension to his suc- (written one way and vocalized an- perspective on the content and cessors, the chachmei hamesorah of other way) demonstrates. The Oral methodology of Revelation. Chazal de- each subsequent generation, as a re- Torah reflects a very different empha- velop the thesis that is axiomatic to ceived oral tradition consisting of prin- sis. It derives its special significance Jewish law and thought that Matan ciples, details, and values. The mesorah from its conceptual content rather than Torah was two-tiered: consisting of was intended to be conveyed by means its specific formulation. Indeed, exag- oral and written components. Com- of a distinctively human process con- gerated allegiance to a particular for- menting on the unusual spelling of the sisting of painstaking transmission of mulation may occasionally prove word vehaTorot, which conveys both a data and halachic methodology, as well inhibiting and counterproductive. The singular and plural meaning in the as the rigorous analysis and application thesis articulated by the Shulchan verse (Vayikra 26:46) “These are the of that tradition. Aruch HaRav (Hilchot Torah, The two components of Torah op- Kuntres Aharon) that one can fulfill the erate both independently and in tan- of talmud Torah by simply Rabbi Dr. Michael Rosensweig occupies the dem. Often the oral mesorah provides reading the text of Torah Shebichtav Nathan and Perel Schupf Chair in Talmud at the Rabbi Isaac Elchanan Theological Semi- the key to unlock the mysteries or am- even absent comprehension, while nary and is a rosh yeshivah in the Yeshiva biguities of the Divine text. Content or such a gesture employed with respect Program/Mazer School of Talmudic Studies concepts embedded in the unusual to Torah Shebe’al Peh would constitute of Yeshiva University. form or spelling of the Written Torah a fruitless endeavor highlights the dis-

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tinctive character of these two Torot. The twin halachic in- junctions that ideally prohibit the transcription of the oral mesorah and proscribe the oral citation of the Written Torah ( 60a) demonstrate the indispensability of each dimension. While each component of Revelation is crucial, it is noteworthy that it is the Oral Law, entrusted to the chachmei hamesorah, shaped and enhanced by human ef- fort and input, that is preeminent. The Gemara (Gittin 60b) articulates this unambiguously both with respect to it being a prerequisite to the covenantal bond with Hashem, as well as with regard to its inherent spiritual value: “God only established a covenant with Israel for the sake of the Oral Torah.” The Midrash Tanchuma (Shemot 24:7) ex- plains that the reluctant posture of the Jewish people to accept the Torah without some measure of coercion (“Cov- ered them with a mountain like a barrel”) stems from the higher demands and more intense commitment of the oral mesorah, which are depicted as the ultimate manifestation of love of Hashem: “Because no one learns it who does not love God with all his heart, soul and might.” What accounts for the axiological priority of the Oral Law? We may better appreciate the special character of the oral tradition by briefly examining its comprehensive scope and singular nature. The continuation of the Midrash Tanchuma provides some direction. The midrash perceives the Written Torah as a repository of broad values and general religious principles. However, as a fixed and fi- nite text lacking great detail, it does not impose excessive religious obligations or intrude pervasively on the appar- ently neutral aspects of one’s life. The fledgling Klal Yisrael could easily embrace this level of commitment. It is the Oral Law, both in interpretive conjunction with the Writ- ten Torah and independently by means of the halachic content that exclusively stems from the mesorah, that is re- sponsible for an extremely ambitious halachic system that regulates every aspect of life, suffusing the neutral and sec- ular with sanctity, kedushah. Chazal articulate these themes clearly (Tanchuma, op cit; Gittin 60a): “The major- ity of Torah is oral and the minority written; the Written Torah contains generalities and the Oral Torah specifics . . . You will not find the Oral Torah among one who seeks the joys of this world, desire, honor and greatness in this world rather only among one who kills himself on it.” While the Written Torah gives direction and provides inspiration, the mesorah of the Oral Torah imbues the vision with detail and substance. While this perspective explains some aspects of the di- alectical relationship between the two components of Revelation, the need for both elements, and the preemi- nence of the Oral Law, it does not yet explain adequately why the Torah was structured in this manner, nor does it illuminate why the mesorah of Torah Shebe’al Peh occu- pies so central a role in the interpretation and determina- tion of the most basic and fundamental categories of Jewish law and life. Furthermore, considerations of effi- ciency and comprehensiveness do not sufficiently explain the prohibition to document the massive material of the oral tradition, nor do they justify how the idea of mesorah Summer11b_Layout 1 5/27/11 12:32 PM Page 56

as a chain of transmission entrusted to date of Shavuot, the requisite amount and principles in wider internal con- the chachmei hamesorah across the of days for eating matzah, and the text by providing additional detail and generations came to be perceived as an physical requirements and dimensions insight, particularly regarding the in- important value and sensibility beyond of a . terrelationship of various variables and the specific content of transmission, as Lest one speculate that absolute re- factors. Precisely the most universal we shall soon elaborate. liance upon mesorah is limited to areas and basic institutions of halachic life Even a cursory survey demon- of ritual or religious law, one only need demand the framework and perspec- strates that the Written Torah inten- to peruse Parashat , the tive of mesorah, lest the singular Torah tionally obscured many of the most locus of dinei , the laws of dam- perspective on these issues become central aspects of Jewish life forcing ages. Nothing is more universal and in- confused or simply blurred. reliance upon the methodology and herently rational than rules governing The vigorous opposition to the Tze- content of mesorah. I refer not to the human conduct and responsibility in dukim and later to the Karaim, who de- more esoteric realms of and this most elemental of social interac- nied the authority of the Oral Law taharot, but to the most ubiquitous and tion. And yet, the Written Torah’s ex- mesorah, should be assessed in this basic categories of halachic life en- tensive delineation of the various light. The halachah takes extraordinary countered routinely. The institution of categories of these laws is simply in- steps to convey its absolute, vehement , the temporal telos of Cre- comprehensible without the authorita- rejection of this ideology (Mishnah 3:1; 2a). The denial of The greatest moment and most important mesorah constitutes not merely a false- hood that facilitates erroneous conclu- event in history was not the creation of the sions applied to critical issues, but more significantly, an ideological and world but the Revelation of the Torah. methodological challenge to the very character and unique quality of ha- ation, the foundation of the Jewish tive traditions of the mesorah. The lachic law and life. Thus, it was appro- week (see Ramban, Shemot 20:8; de- intricate halachic categories of aish priately perceived and confronted as an rashah ) and the para- (fire), bor (the pit), and keren (goring), insidious heresy (Rambam, Hilchot digm-framework for all of the moadim to name just a few, are indecipherable Teshuvah 3:8; Hilchot Mamrim 3:1-3; and the very concept of sanctity of time and inconceivable without the com- responsa [Blau edition], 449). (“First among the holy days of assem- panion Oral Torah. Perhaps the most important func- bly”) would be unrecognizable absent It is evident that the preeminent tion of an indispensable mesorah is the the mesorah input. The foundational role of the Oral Law was designed to projection of both an historic and an component of the thirty-nine cate- insure that the Torah’s laws, values and ongoing vital role for chachmei hame- gories of work depend exclusively on insights would not be trivialized, his- sorah who are entrusted with preserv- the oral tradition. (See Shabbat 49b, toricized, marginalized, or otherwise ing, furthering and applying that and Tosafot and Ramban ad loc.) The corrupted by being too accessible to ancient yet living tradition. The Tal- central principle of “melechet mach- non-initiates lacking the requisite mud formulates the obligation to mas- shevet,” skillful labor that governs the depth of yirat Shamayim and halachic ter the entire corpus of Torah application of melachah and is there- commitment. The midrash (Bereishit knowledge ( 30a). The Ritva fore crucial to Shabbat observance, is Rabbah, Shemot 47:1; see, also Tosafot, and Maharsha (Gittin 60a) emphasize not explicated in the Written Torah. Gittin 60b sv atmuhi; Semag, introduc- that the prohibition to record the oral The Gemara (Chaggigah 10a) suc- tion to lavin) exemplifies this ap- tradition mandated greater dedication cinctly encapsulates this thought when proach, underscoring that the Oral to attaining this lofty ambition. Un- it remarks that the laws of Shabbat are Torah secured the Torah’s status as a doubtedly, it served as an important barely hanging by a thread: “The laws special legacy of the Jewish people, not catalyst stimulating greater intensity of Shabbat . . . are like mountains hang- to be usurped or corrupted by other both in quantitative and qualitative ing from a hair–few verses but many nations. Torah study. However, the symbolic laws.” This is all the more remarkable Furthermore, the indispensability and substantive impact of entrusting when one considers that the Written of mesorah guarantees that Torah will authentic Torah interpretation to the Torah treats the topic of Shabbat at be studied and applied within a tradi- sages of each generation certainly tran- least a dozen times! tional framework that accentuates its scended the incentive for chachmei The same phenomenon exists in roots in the experience of Revelation hamesorah to immerse themselves in varying degrees with respect to every (see Ramban, Devarim 4:9; Sefer both the minutiae and principles of the other festival. Without the input of HaMitzvot, shichechat lavin 2), as well halachah. It highlighted the singular mesorah, we would have scant or inac- as its stature as an immutable system of halachic perspective, also reflected by curate or misleading information laws and values (see Rambam, ikkarim the doctrine of “it is not in heaven . . . A about tekiat shofar on Rosh Hashanah, 7,9) relevant to all periods of history prophet is not allowed to add anything the proper protocol and order of the and in all geographic settings. More- henceforward” ( 16a) and par- avodah on Yom Kippur, the precise over, mesorah anchors the Torah’s laws allel concepts that the chachmei hame-

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sorah are not only the passive recipients and repository of the halachah, but as its authentic interpreter, are also part- ners with Hashem in the application of timeless, im- mutable Torah law to all circumstances in all generations. Many of the commentators explain that the phrase in Birkat HaTorah: “gave us the Torah . . . and implanted in- ternal life within us” refers to Torah Shebe’al Peh, precisely because of the responsible and substantive role of the chachmei hamesorah in interpreting and applying the Torah (Tur, OH 139). The Aruch HaShulchan (Leil Shimurim commentary on the Haggadah) explains that the phrase in the Haggadah: “If He had only brought us be- fore Mount Sinai and had not given us the Torah, it would have sufficed us” refers to the fact that in addition to en- trusting the Torah to Klal Yisrael as passive recipients, Hashem included the chachmei hamesorah in the process of halachic decision making, and, by extension, in the ad- vancement of Torah itself. It is surely no coincidence that the halachah places a great premium on the rebbe/talmid relationship, as well as on the proper approach to talmidei chachamim generally, the gatekeepers of the mesorah. Strikingly, the Rambam refers to halachic scholars as “the transmitters of the tra- dition, person to person, from Moshe our master” (Hil- chot Talmud Torah 1:9), even when he discusses the daily obligation to learn, accentuating this motif. These inter- actions clearly transcend other academic or intellectual mentor-disciple models. The laws of kavod and moreh rabbo, patterned after and in some respects surpassing the parent-child relationship, demonstrate that the con- nections are existentially and not merely academically crucial. The fact that the rebbe/talmid chacham consti- tutes the source and link with mesorah and that mesorah includes not only information but values and a methodol- ogy and a global perspective toward halachic life under- pins this central emphasis. The institution of semichah, rabbinic ordination, the source of independent rabbinic authority, which in its classical form requires an unbro- ken chain of chachmei hamesorah linking back to Yehoshua and Moshe Rabbeinu (Rambam, Hilchot San- hedrin 4:1) highlights this theme. The dialectic of dependence and independence that defines the interactions of halachic disciples and their mentors also magnificently reflects the singular halachic posture on mesorah. The halachah codifies the importance of deference and even initial acquiescence to the rulings of mentors and predecessors. At the same time, there is room for, and occasionally obligation to express conscientious objection and principled opposition to the halachic status quo ante properly formulated and pursued (YD 242:2, 3 and commentaries). Chazal valued chiddush, innovative ideas and halachic-hashkafic initiative, but also insisted that these be anchored in the framework of mesorah. This subtle and ambitious stance is crystallized in challenging rabbinic formulations such as “Anything that an assiduous student would innovate in the future was told to Moshe from Sinai” (Yerushalmi Peah 2:4; see also the celebrated story told in the Gemara in 29b). Summer11b_Layout 1 5/27/11 12:32 PM Page 58

Chazal valued chiddush, innovative ideas and halachic-hashkafic initiative, but also insisted that these be anchored in the framework of mesorah.

The same perspective can be in- an unauthorized and untraditional ke- planation for the burning of the Rosh voked to reconcile other apparent dis- toret offering (Vayikra 10:1. The fact Chodesh offering that also highlights crepancies. The statement by Rebbe that they did not feel obligated to con- the issue of internal chiddush and the Eliezer (Sukkah 28a) that he never ini- sult Moshe Rabbeinu regarding the role of authority. notes that in tiated a halachic ruling or expounded propriety of this innovation constituted sharp contrast to Nadav and Avihu, an innovative idea that did not origi- more than a breach of halachic eti- Elazar and Itamar were reticent even nate from his rebbe, for example, is evi- quette or even an implicit rejection of to engage in halachic discourse with dently belied by the legal record of his preeminent halachic authority. As Moshe Rabbeinu; their argument had Rebbe Eliezer’s innovative contribu- the initial recipient, and quintessential to be articulated by Aharon. tions. However, Rebbe Eliezer’s decla- gatekeeper of the mesorah, Moshe The determination that the vast tra- ration is undoubtedly to be understood Rabbeinu was endowed not only with dition of halachah remain predomi- as an emphatic confirmation–endorse- additional halachic knowledge but nantly in oral form accomplished a ment of the concept of mesorah. Rebbe with more profound halachic wisdom dialectical purpose. On the one hand, it Eliezer credited even his personal ha- and intuition, as well. Bypassing Moshe preserved the moment and experience lachic rulings or Torah insights to his Rabbeinu in the context of initiating a of the Revelation at Sinai as the eternal mentors because from his perspective new halachic practice reflected a total foundation of authority, content and he was merely applying the methodol- disregard for the vital transcendent sensibility of halachic law. It guaran- ogy and sensibility of mesorah that was functions of mesorah, and was not to be teed that the halachah remain forever faithfully and painstakingly transmit- countenanced, especially from men of anchored in its authentic and authori- ted to him. A detached observer might immense spiritual stature. Hence, the tative origins. It fostered a sense of be impressed by Rebbe Eliezer’s nov- tragic decree: “I will be sanctified identification with the halachic past elty, but his self-image was one of a through those who are nearest Me, that would serve as a guidepost to a re- faithful link in the chain of the meso- thus I will be honored before the entire sponsible application of the halachah rah. These two viewpoints are consis- people” (Vayikra 10:3). in the future. At the same time, by pro- tent with the theme of a dynamic While Nadav and Avihu tragically moting significant responsibility and mesorah that is firmly anchored in the lost their lives due to improper exter- authority for the chachmei hamesorah, traditions of Sinai. In the same vein, nal innovation, the remaining sons of this structure equally provided the Rabbi Joseph Ber Soloveitchik would Aharon, who surmised that it would be basis for the capacity to address new alternately describe his grandfather, inappropriate to partake of the Rosh halachic challenges that would in- Rabbi Chaim of Brisk, as a revolution- Chodesh chatat offering in their state evitably surface as Jewish life evolved ary halachic thinker who transformed of aninut, were vindicated in their in- in different eras and geographic loca- the landscape of halachic analysis in dependent conclusion despite Moshe tions. The cultivation of Torah wisdom the modern era, but with equal passion Rabbeinu’s initial consternation that or halachic instinct consequent upon a he would assert that Rabbi Chaim rep- they, too, had overstepped. “Moshe total exposure to the details and re- resented the continuity and served as a heard and it was pleasing in his eyes.” ceived values and sensibilities of the link in the rich tradition of other great Chazal ( 101a; Rashi, halachah is a particularly vital aspect of halachic innovators like Rabbeinu Ramban, Vayikra 10:16-20) explain that this system. The metaphor of the au- Tam, the Rabad, the Ramban, the Ne- Moshe Rabbeinu was quick to accept thoritative chacham as a walking sefer tivot, et cetera. A true student of the their compelling halachic analysis once Torah (based on Makkot 22b; Kiddushin concept of mesorah perceives no con- he realized that their initiative consti- 33b) aptly captures this theme. It is tradiction in these assessments. tuted an internal albeit unanticipated noteworthy that the midrash (cited also The phenomenon of mesorah high- independent application of the re- by Rashi, Devarim 30:14) links the rele- lights an important distinction be- ceived halachah, rather than an exter- vance and accessibility of the halachah tween external and internal halachic nal challenge to halachic norms and to all situations with the Torah’s dual innovation. This is exemplified by the traditions. Precisely because he em- form, written and oral. Commenting on contrasting events recorded in bodied the instinct and intuition of the verses that declare that the Torah is Parashat Shemini. Nadav and Avihu, mesorah, Moshe recognized the au- neither distant nor in heaven (“It is not the sons of Aharon, were put to death thenticity of this independent conclu- in heaven . . . nor is it beyond the sea”), notwithstanding their prodigious spiri- sion that was grounded in proper but is, in fact, fully accessible and ap- tual status, their piety, and their sincer- halachic methodology. The Ramban plicable (“in your mouth and your ity because they offered ketoret zarah, (Vayikra 9:2) considers yet another ex- heart that you may do it”), the midrash

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The Oral Law, entrusted to the chachmei hamesorah, shaped and enhanced by human effort and input, is preeminent.

emphasizes the role of mesorah along- appreciate that mesorah constitutes a mented anywhere in the Talmud. side that of the Written Torah. broad and ambitious approach to Other halachic authorities assign the This perspective on the role and Torah study and observance that in- prohibition against inflicting damage to impact of mesorah, particularly as it re- cludes but is not limited to specific different sources and principles. lates to the cultivation of a halachic content. Long after Chazal neutralized Rabbeinu Yonah’s perspective evi- personality who is more than the sum the injunction against recording the dently stems either from his personal of his actual knowledge, has significant detailed content of the Oral Law as a mesorah or from his nuanced global implications regarding the status of ha- concession to human frailty on the understanding of these halachic cate- lachic conviction or even intuition that basis of “It is time for the Lord to work; gories and concepts. Rabbeinu Yonah’s cannot be analytically demonstrated. they have made void Your law” (Gittin intriguing illustration accentuates how There are surely significant differences 60a; Temurah 14b; see Rambam, Hil- the concept and process of mesorah between rigorous halachic rulings chot Mamrim 2:4), the concept and im- significantly advance and enhance grounded in the examination and pact of mesorah continues to prevail. Torah understanding. Ironically, analysis of specific sources, and con- As always, it is manifest in the more Rabbeinu Yonah’s highly personal per- clusions that invoke broader halachic subtle questions of deeper conceptual spective on damages truly highlights considerations and values, or that rely comprehension and perspective, of the the special character and contribution primarily upon strong halachic convic- interplay between and priority of dif- of the mesorah component of Torah. tions in issues for which halachic ferent halachic principles and in the Life is always in flux. The chal- precedent is insufficiently compelling. translation of halachic law into values. lenges of our era are particularly acute. Yet, the history of halachic thought The need for and relevance of mesorah The capacity to halachically navigate particularly resonates precisely when demonstrates that each of these mod- the ambiguities of modern life and to halachic values address more universal els constitutes an important element in assess halachic status or determine ha- concerns and motifs, as previously halachah’s encounter with new reali- lachic policy regarding various new noted. The failure of relativistic secu- ties and challenges. Moreover, Rav phenomena—cultural and technologi- lar ethics affirms the halachah’s ap- Soloveitchik developed the idea that cal—requires immersion in all facets of proach that ethics and general wisdom mesorah incorporates the Torah sensi- the halachic system. If rabbinic author- must be grounded in the experience bilities of great men, as well their more ities are to effectively confront and analytical halachic conclusions (Iggerot and sensibilities of the Revelation at constructively address contemporary haGrid 87-88). Indeed, he argues that Sinai. The introduction to Masechet issues, it will only be on the basis of an the Rambam’s heresy category of Avot reflects that asserting the authen- abiding commitment not only to the re- “machish magidehah” (Hilchot Teshu- tic and authoritative voice of mesorah ceived information but also to the vah 3:8) refers to the improper rejec- is equally if not more urgent in matters methodology and sensibility of meso- tion of precisely this group of values of wider perspective. The varied sub- rah. Building a thriving halachic com- and sensibilities. stantial contributions of different munity in any and every geographic Masechet Avot, which primarily chachmei mesorah and their halachic and historic setting requires not only records the general aphorisms and schools of thought represent an impor- wider wisdom of the chachamim, be- tant dimension in this process and un- rigorous analysis of explicit halachic gins by recounting the history of meso- derscore this aspect of the significance sources and precedents, but also the rah. Both the need for a mesorah to of mesorah. ability to cultivate halachic values that justify these particular values and sen- Rabbeinu Yonah (Avot 1:1) ad- are anchored in but also extend beyond sibilities, as well as its application to dresses the need for mesorah in the the details of the norm. The leadership these broader and more universal context of Masechet Avot and its of master halachic diagnosticians themes is noteworthy. Moreover, some broader teachings. He exemplifies the whose stature and experience deter- of the mefarshim note that the verb contribution of mesorah by noting that mine when halachic analysis should “masar” is utilized twice in this rendi- without the oral tradition, one would not be reduced merely to the examina- tion of the links in the chain of meso- not have known that damaging prop- tion of texts is crucial. The intuitions rah, perhaps implying particularly erty constitutes an act of theft, as this and deeply held convictions of such noteworthy, even innovative method- insight is not explicated in the Written chachmei hamesorah that necessarily ological contributions within the un- Torah. It is noteworthy that Rabbeinu augment more concrete halachic texts folding mesorah itself, notwithstanding Yonah’s perspective on damages is nei- are an indispensable part of the meso- the very concept of mesorah as a mech- ther explicit nor is it uniformly ac- rah itself. The two-tiered Torah re- anism that primarily preserves and in- cepted. The notion that nezek comes mains fully accessible “in your mouth sures continuity. We may now under the rubric of gezel is not docu- and your heart that you may do it.” 

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