Receiver Chapter – Lesson 24

[Rabbi Michael Abraham] Okay. We’re in the passage about a case that begins with negligence and ends with an unavoidable accident. We saw the Talmud on page 21 regarding the jumping and falling of a dog and a kid onto nearby vessels and distant vessels. We discussed there the relationship between a case that begins with negligence and ends with an unavoidable accident in bailees and in tort law. I said that from the simple meaning of the words of the medieval authorities (Rishonim), it seems that this is the same dispute. The dispute that exists regarding bailees is the same dispute regarding torts as well. But I raised various possibilities that maybe there are differences. Regarding a case that begins with theft or loss and ends with an unavoidable accident, we saw that some medieval authorities do bring that over into the context of tort law too, but there are some who do not. And it could be that in tort law maybe they understand that this would not be such an exemption. And regarding a connection between the negligence and the unavoidable accident, there too, as I said, I raised a few possibilities to distinguish between bailees and torts, and I said that there may be room to say that in tort law they would not require a connection between the negligence and the unavoidable accident. There was room to say that they would require it according to all views, even according to Abaye, but there’s also room to say that they would not require it even according to the practical ruling, for example because if I understand that in tort law the obligation to pay is a responsibility imposed on me because I was negligent in guarding. What is the responsibility? That anything my property does, any damage my property causes, I will have to pay for. That is the responsibility imposed on me. So if I was negligent in guarding, then from that point on, whatever my property causes, the responsibility is on me. And then it could be that we won’t need, we won’t require, a connection between the negligence and the unavoidable accident, and we’ll see more of that today. Fine, so now I’m moving to our passage in the chapter HaKones, Talmud on page 56a. And the Talmud—I’ll share it maybe, if you want. The Talmud says like this: “It was breached at night or bandits breached it,” etc., exempt. Rava said: provided that it dug under. “It was breached at night or bandits breached it”—the owner is exempt, and we saw that the bandit too is exempt, unless he stood before it, or struck it, or pulled it, but in principle both the bandit and the owner of the house are exempt. Rava said: provided that it dug under. Meaning, in a case where the animal dug under, made a tunnel, made a kind of burrow under the wall in the ground and went out there, then the owner is exempt. This implies that if it went out through the wall itself, then the owner is liable. In another moment we’ll see this in the Talmud. What does “dug under” mean? On the face of it, it made a tunnel—that is, it made a kind of burrow and went out through it. That’s the simple reading of the Talmud. And precisely because of that, look at Rashi, and you’ll see that he explains it differently. “Provided that it dug under”—Rashi says: this that we learned, “It was breached at night”—exempt, for example where the animal dug under and caused the wall to collapse, because he is under compulsion. Meaning, we essentially have a wall standing there and the animal is inside. Now it digs under the wall and the wall falls. So the animal’s digging was not the creation of a tunnel through which the animal went out; rather, the animal’s digging caused the wall to collapse, and when the wall fell the animal went out—not through the tunnel, but through the wall. So the animal’s digging simply caused the wall to fall. That itself raises the question why Rashi needed to explain it this way. After all, that’s not the simple meaning of the Talmud. The simple meaning of the Talmud is that it dug under and went out through the digging, but Rashi says no—it dug under and thereby the wall fell, but it went out through the wall. The question is why Rashi needed to explain it this way. We’ll see in a moment. Let me keep reading the Talmud for a second. The Talmud now infers like this: but if it did not dig under, then what? Liable. Right? So it sounds like if you tell me “provided that it dug under,” that implies that if it did not dig under, then the owner is liable. What are the circumstances? the Talmud asks. If we say it’s talking about a sound wall, if we are dealing with a strong wall, meaning, as it should be, a wall that guards the animal well—then if it did not dig under, why liable? If the wall is a sound wall, then why is it only when it dug under that he is exempt, but if it did not dig under and it went through the wall, rammed it, knocked it down, and went out with brute force—some kind of frenzy—but the wall in principle was a good wall, it should withstand ordinary animals, not ones in a crazed attack. In that case the owner ought to be exempt even if it did not dig under. It is a case that begins with negligence and ends with an unavoidable accident. After all, it begins with negligence and ends with an unavoidable accident. You put up a shaky wall, so basically you were negligent. In the end it dug under, so that digging was an unavoidable accident. But it began with negligence. So if so, this is a case that begins with negligence and ends with an unavoidable accident. Fine according to the one who says that if it begins with negligence and ends with an unavoidable accident one is exempt. According to the one who says that in such a case one is exempt, the Mishnah works out. You can set it up as a shaky wall, and when it dug under, then he is exempt because it is a case that begins with negligence and ends with an unavoidable accident. But according to the one who says that if it begins with negligence and ends with an unavoidable accident one is liable, what can be said? Which is in fact how we rule in Jewish law—that if it begins with negligence and ends with an unavoidable accident, one is liable—what can be said?

[Speaker C] By the way, what’s the picture of “it did not dig under”? “But if it did not dig under”—what does that mean? So what did it do?

[Rabbi Michael Abraham] It rammed into the wall with all its force, knocked it down, and went out. Meaning, something that should not have happened but could happen. After all, what is the exemption of unavoidable accident? You have to understand this. The exemption of unavoidable accident always contains an inherent tension. Why? Because the animal caused some damage and the owner is exempt because it was an unavoidable accident. What’s an unavoidable accident? The fact is, the animal did the damage. If it did the damage, that means no miracle occurred there. It was able to do it. So what do we see? That if something is not likely to happen, even though it can happen, that is called an unavoidable accident, and the owner is exempt. Same thing here. A sound wall does not mean a wall that stops all animals. A wall that stops all animals is an ultra-sound wall. There, the damage simply will not happen, so the question of whether to exempt the owner because he was under compulsion doesn’t even arise. The question whether to exempt the owner because he was under compulsion always arises only if the damage happened. Then how did it happen? In a minority of cases, when the animal goes wild, gets worked up, I don’t know exactly what, it can even go through the wall. But that’s not a situation I’m supposed to anticipate in advance. And therefore I’m considered to have guarded properly, and since that’s the case, even if the animal went out through the wall, I’m under compulsion, I’m exempt. It reminds me that there’s some letter by Rabbi Shach in Letters and Articles, I think it’s in volume two,

[Speaker C] I think, if I remember correctly,

[Rabbi Michael Abraham] where he talks there about the Entebbe operation. He expressed his opinion before the operation was carried out that he opposed such an operation because it endangered soldiers and the chances of saving the hostages were slim, and a doubt does not override certainty. Meaning, one may not endanger people in order to maybe save other people. Fine. They carried out the operation, and as is known, it succeeded. Meaning, Yoni was killed—Yoni Netanyahu—and there was one other hostage too, also some woman, Rosa, I don’t remember her full name, but all in all the operation succeeded. Meaning, if people had known that in advance, everyone would have agreed that it was worth going out on that operation. Okay. So they went to Rabbi Shach and told him, well Rabbi, you see, it succeeded, you were wrong. So he said: I too said from the outset that there was some chance—five percent—that the operation would succeed. I only argued that for five percent you’re not allowed to go out. The fact that in the end it succeeded proves nothing. The question is what the probability assessment was before we went out on the operation. After all, we don’t know what will happen. And in that probability assessment, nobody claimed there was one hundred percent chance of failure. The claim is that most likely it will fail, and there is some chance it will succeed. The question is, if success happened afterward, does that prove that the prior assessment was incorrect? Absolutely not. It just means that in this case the five percent materialized. By the way, it’s not so simple. It’s not so simple, because the question is what the… you understand the context. Meaning, before I… the context is the same here. Meaning, the animal went through the wall. Does that prove that the wall was not a sound wall? No. A sound wall means that 98 percent of animals won’t get through it. But there are two percent of animals that suddenly go berserk and get through the wall. That doesn’t prove that from the outset I didn’t guard properly. What happened, happened. The two percent that from the outset we knew could happen—but two percent is still called good guarding. Why am I saying it’s not so simple? Because it depends what the dispute was about. Meaning, what were those who argued that one should go out on the operation saying? You can understand it in two ways. You can understand it as saying they thought Rabbi Shach’s probability assessment was wrong. The chance of success is high. Not one hundred percent—nothing ever is—but a high enough chance that it is worth going out on the operation. Another possibility is to say no, we’re going with the five percent chance it will succeed, and we’re taking the risk that it will fail because, ethically or I don’t know exactly what, in any case we need not give in in such situations, not surrender to terror. Okay? Those are two possible ways to understand it, or two kinds of arguments that could be raised against Rabbi Shach. So if the argument is an ethical one, then I don’t know—then there is room to discuss it, but the dispute is not a factual one, so it doesn’t matter so much what happened in the end. But if the argument is a factual one—meaning the dispute was simply what the probability assessment was—then in that case those who came to Rabbi Shach after it succeeded do have something to say. Because they claimed there was a good chance it would succeed, and he claimed there was a poor chance it would succeed. The fact is that it succeeded. Now true, it could also have succeeded despite the low probability. But if I say there’s a high probability and you say there’s a low probability, and it succeeded, then the success provides confirmation or support for my claim. True, it’s only one trial, and usually for statistical things you need many trials, but never mind, we only have one trial. What do you do? If there were, say, a disagreement between two people whether the probability is low or high, and it happened and did in fact succeed—what would you bet on? I would bet that the probability really is high. If it succeeded, then apparently the probability is higher. Maybe not, but likely yes. Let’s phrase it as… never mind, this is of course a parenthesis, not related to us, but you can look at it as conditional probability, as Bayes’ formula. Meaning, we usually look at the question: assuming we go out on the operation, what is the probability that it will succeed? Right? That was the dispute between Rabbi Shach and those opposing him. Rabbi Shach said five percent chance, they said—I don’t know—seventy percent. Fine, for the sake of discussion. But we’re asking the opposite question: assuming it succeeded, what is the probability that those who said the chance was high were right? Okay? This is not P of A given B, but P of B given A. Meaning, you have to reverse the order of the probability, and that’s Bayes’ formula. Meaning, it depends—you can do the calculations—but it will depend on the values of the probabilities of the different possibilities. So in any case, I’m saying the argument underlying Rabbi Shach’s position is not clearly correct. Fine, but for our purposes, the claim is that if there’s a sound wall here and it’s clear to you that it is a sound wall, there’s no dispute. If there were a dispute between two people over whether the wall was sound or not sound, and the animal got out, then it really is a different story. Because the fact that the animal got out is then, on the face of it, support for the claim that this wall is not sound—you were mistaken. But if we all agree that it’s a sound wall, only that even with a sound wall there are a few percent of cases where the animal can get through it, then the fact that it got out proves nothing. It doesn’t undermine the claim that the wall was sound. Okay? That’s clear. Okay. So at the moment we’re saying this. If we’re talking about a sound wall, then it’s not clear why if it did not dig under he is liable; he guarded properly. If it dug under, he is certainly exempt, and even if it did not dig under he ought to be exempt because he was under compulsion. If we’re talking about a shaky wall, once again, he ought to be liable in all cases. If it went out through the wall, then that’s plain negligence. And if it dug under, then it’s a case that begins with negligence—because you put up a shaky wall—and ends with an unavoidable accident. So according to the one who says that if it begins with negligence and ends with an unavoidable accident one is exempt, is he liable? According to the one who says that if it begins with negligence and ends with an unavoidable accident one is liable, then even where it dug under he ought to be liable. And that is how we rule in Jewish law. By the way, that “fine according to the one who says” is interesting, because here too maybe I would say by way of hint—and this is really not necessary, but perhaps—you can hear this tune, that the fact that we decided in the laws of bailees that if it begins with negligence and ends with an unavoidable accident one is liable, that still doesn’t automatically mean that the same applies in tort law. And therefore I say: fine according to the one who says that if it begins with negligence and ends with an unavoidable accident one is exempt, but according to the one who says liable, what can be said? Meaning, I’m not saying that because the law follows the one who says that if it begins with negligence and ends with an unavoidable accident one is liable, that’s the whole difficulty. Rather, I want to resolve the case even according to the one who says liable. Why? Because maybe it really isn’t clear that the law follows him in tort law. Even if it does with bailees, perhaps not in tort law. Because there is not necessarily a connection between bailees and tort law. Throughout our whole study I keep pointing out to you to pay attention to those places where one can detach the connection between bailees and tort law. Okay? Fine, I’m saying this is not necessary, of course. It can certainly just be the Talmud’s way of clarifying both sides of the dispute. Now, with a shaky wall. Okay, now if it dug under, then it brought down the wall. Why did it bring down the wall? Because it was shaky. So if that’s the case, then clearly there is a connection between the negligence and the unavoidable accident, right? And the Talmud says that with a shaky wall, if it dug under, that is a case that begins with negligence and ends with an unavoidable accident, right? That’s what the Talmud objects. So this is a case that begins with negligence and ends with an unavoidable accident. And it works according to the one who says exempt, but according to the one who says liable, what can be said? But the Talmud’s definition is that this is a situation of a case that begins with negligence and ends with an unavoidable accident. Meaning, if I put up a shaky wall and the animal dug under and went out, this is a case that begins with negligence and ends with an unavoidable accident. And it depends on the dispute whether in such a case one is liable or exempt. Now let’s try for a moment to work out why this is a case that begins with negligence and ends with an unavoidable accident. According to Rashi it’s more understandable. Why? Because the fact that the wall was shaky is the reason its digging under it caused it to collapse. If it had been a sound wall, then even an animal digging under it would not have succeeded in bringing it down. Then either it would have gone out through the digging, or not gone out at all. According to Rashi, apparently we’re talking about a case where it doesn’t go out through the tunnel itself, right? Because otherwise why do we need it to bring down the wall? It brought down the wall and went out through the wall. That’s what we’re dealing with. Meaning, we’re not talking about a full tunnel all the way through, where it went out through the tunnel. Now then, if it had been a sound wall, then even if it had dug under, the wall wouldn’t have fallen and it would have remained inside. The fact that the wall fell because of its digging is because you were negligent and put up a shaky wall. So here it’s clear there’s a connection between the negligence and the unavoidable accident. And here, in fact, the negligence is so direct that I’m not even sure to what extent this is a case that begins with negligence and ends with an unavoidable accident. It’s negligence—you put up a shaky wall, and precisely because of that it fell. Why can this still be tied to the category of beginning with negligence and ending with an unavoidable accident? Because apparently the very fact that the animal digs under is itself something unexpected. With a shaky wall it can go out through it. It can fall and then it will go out, or it can go out through it. But the fact that it dug under and its digging brought down the wall—if it digs under, then the wall is expected to fall. That’s not an unavoidable accident; that’s negligence. But the very fact that it dug under is an unavoidable accident, because animals do not dig tunnels. And that’s somewhat similar to what we saw in the previous passage, if you remember. I said there: what happens when they fell? They fell and broke the vessels under them, okay? So why is that called a case that begins with negligence and ends with an unavoidable accident? Say they were negligent with respect to distant vessels, or a long vessel—all the answers of the medieval authorities there—and in the end there was negligence, but what happened in the end was that they fell. So why is that called beginning with negligence and ending with an unavoidable accident? That’s not an unavoidable accident. If they fall, they break the vessels close to the wall. That’s what falling does. It’s not that something unexpected happened here. So I answered there that what is unexpected here is the very fact that they fell—not that if they fall, then the vessel breaks, unfortunately. If they fall, obviously the vessel breaks. A vessel close by will break from a fall. It’s called ending with an unavoidable accident because the very fact of the fall is the unavoidable accident—not because the damage happened by unavoidable accident. Rather, the fact that a fall occurred is something I was not supposed to anticipate. But jumping I was supposed to anticipate, and therefore it is a case that begins with negligence and ends with an unavoidable accident. Okay, same thing here. If the animal digs under and the wall is shaky, then obviously it will fall. That’s not an unavoidable accident. A shaky wall does not withstand digging. The unavoidable accident here is the very fact that the animal dug under. Animals don’t dig tunnels; animals walk, they don’t dig burrows in the ground. So once the animal dug under, that itself is the unavoidable accident. The fact that because of that the wall fell—that’s not an unavoidable accident. And that’s clear. Okay, it’s the same thing as in that passage. In any case, that’s what comes out according to Rashi. If we were to interpret the Talmud according to its simple meaning, and we were to say that it dug under and went out from below, without bringing down the wall—that is, after all, the simple meaning of the Talmud, right? Why does Rashi depart from the simple meaning of the Talmud? Why does Rashi interpret it differently? The simple answer is: because if it dug under and went out through the tunnel, then what difference does it make that the wall was shaky? It would have done the same thing even with a sound wall. After all, the shakiness of the wall plays no role here. Or in other words, there is no connection between the negligence and the unavoidable accident. The negligence was that I put up a shaky wall, but in the end that negligence was not what caused the damage that happened in the end. The damage that happened in the end happened independently of my negligence. In a situation where there is no connection between the negligence and the unavoidable accident, I am exempt even according to the one who says that if it begins with negligence and ends with an unavoidable accident, one is liable. I think that is exactly the reason Rashi interprets it here not as meaning that it dug under and went out through the tunnel—which is seemingly the simple meaning of the Talmud. Because if that were the case, then beginning with negligence and ending with an unavoidable accident where there is no connection between the negligence and the unavoidable accident would have to be liable—that’s what would come out of the Talmud. And the Talmud asks: why isn’t he liable here? After all, this is a case that begins with negligence and ends with an unavoidable accident. There’s no connection—Abaye said that if there’s no connection, then exempt. So therefore Rashi explains that the digging brought down the wall, and then what? Then the weakness of the wall—which was my negligence—is what ultimately caused the unavoidable accident. And therefore, therefore this is a place where the dispute about beginning with negligence and ending with an unavoidable accident applies. In the Shitah Mekubetzet here it brings in the name of the Rosh:

[Speaker A] Rabbi, can you share…

[Rabbi Michael Abraham] Okay. I just disconnect the screen share from time to time because I want to see you. When I’m sharing, I just don’t see you, so when I’m not reading I try to go back to the regular Zoom screen. Fine. So in the Shitah here they bring in the name of the Rosh: “But according to the one who says that if it begins with negligence and ends with an unavoidable accident—what can be said?”—a quote from the Talmud. “And if you say: but the unavoidable accident did not come because of the negligence, for even if the wall had been sound, it still could not have guarded…” Apparently the answer is: it really could not have guarded. Meaning, what is he saying? He understands the Talmud according to its simple meaning, that it dug under and went out through the tunnel. And if so, then why, if the wall is shaky, does the Talmud say this is a case that begins with negligence and ends with an unavoidable accident, and according to the one who says that if it begins with negligence and ends with an unavoidable accident one is liable, he would be liable here? That’s not correct. Even according to the one who says that in such a case one is liable, here he ought to be exempt. Why? Because there is no connection between the negligence and the unavoidable accident. My negligence was that I put up a shaky wall. The unavoidable accident was that it went out through the tunnel. So there’s no connection. According to Rashi this is fine, since he explained that it dug under and caused the wall to fall by means of its digging. Thus the unavoidable accident came because of the negligence—if it had been sound, it would not have fallen through digging. Okay? Essentially the Rosh says exactly that—he explains why Rashi interpreted it not according to the simple meaning of the Talmud. And if we were to interpret it according to the Talmud’s simple meaning, it would come out from here that a case that begins with negligence and ends with an unavoidable accident is liable even when there is no connection between the negligence and the unavoidable accident. But we know that’s not so; where there is no connection between the negligence and the unavoidable accident, one is exempt. Even according to the Rif—it could be that liability there is only in Abaye’s view—but according to the practical halakhic ruling, which follows Rava, clearly there has to be a connection between the negligence and the unavoidable accident. And since that is so, Rashi was forced to explain that the digging brought down the wall, not that it went out through the digging. That is what the Rosh is basically claiming. The Rosh himself says that the plain meaning of the Talmud is not like that. But he says: yes, but that is difficult for me, because there is no connection between the negligence and the unavoidable accident, and exactly because of that Rashi indeed explained it differently. So what does the Rosh say then? Does he back off from this? Does he concede to Rashi? Or is he saying: this is a problem, but on the other hand it is the plain meaning of the Talmud? Why am I saying this? Because here a first possibility opens up—to argue that maybe in tort law you would be liable even when there is no connection between the negligence and the unavoidable accident. Then the Talmud can be read according to its simple meaning. In fact we’re talking about a case where it dug under and went out through the tunnel. You were negligent in that you put up a shaky wall. So if it dug under, then you’re exempt—why? Sorry. If it dug under, then it depends on the dispute over a case that begins with negligence and ends with an unavoidable accident, right? Why? After all, there is no connection between the negligence and the unavoidable accident. Never mind—in tort law you don’t need a connection between the negligence and the unavoidable accident. According to the one who says liable—liable; according to the one who says exempt—exempt. If we’re talking about a sound wall, then of course you are always exempt, because you were not negligent. It was an unavoidable accident, and entirely an unavoidable accident—in other words, there was no negligence at all. That is the simple reading of the Talmud. From the plain meaning of the Talmud it appears that no connection is needed between the negligence and the unavoidable accident. What do you do with the Talmud on 36 and all the places we saw in Bava Metzia? There is no choice but to distinguish between bailees and tort law: with bailees you need a connection between the negligence and the unavoidable accident, but in tort law perhaps not. Rashi apparently does not accept that. Because Rashi went to the trouble of explaining here that the digging brought down the wall. Apparently, at least as the Rosh explains him, what bothered him was that if the digging were simply the place through which it went out, and it did not bring down the wall, then indeed this would not be connected—we would not impose liability even according to the one who says that if it begins with negligence and ends with an unavoidable accident one is liable—because there is no connection between the negligence and the unavoidable accident. Meaning, the Rosh at least assumes in Rashi’s view that even in tort law you need a connection between the negligence and the unavoidable accident. But in the Rosh’s own view, I don’t know. Because the Rosh doesn’t say, “and I agree with Rashi.” He says: it is difficult, because there is no connection between the negligence and the unavoidable accident, and therefore Rashi interpreted it differently. But the Rosh too can remain with his own understanding and just say that there is a difference between tort law and bailees.

[Speaker D] There’s a Talmudic passage—I don’t know if you mentioned it—I think it’s around page 50 in Bava Kamma.

[Rabbi Michael Abraham] I can’t hear you; you’re very faint.

[Speaker D] I’ll get closer to the microphone. There’s a passage around page 50—I don’t remember whether we mentioned it or not—about a person who covered a pit.

[Rabbi Michael Abraham] We’ll get to that in a minute.

[Speaker D] We’ll get to it—because there, in my opinion, it seems that you do need a connection between the negligence and the unavoidable accident.

[Rabbi Michael Abraham] We’ll get to that too, exactly in this context I’m going there.

[Speaker D] Fine, okay.

[Rabbi Michael Abraham] So that is the Rosh in the Shitah.

[Speaker A] Now I’ll continue for a moment in the Rosh.

[Rabbi Michael Abraham] “And Rabbeinu Meir objected: let us establish it as a case where the unavoidable accident did not come because of the negligence, for example where it dug under and went out through the digging, for in such a case it is exempt according to everyone.” And this is now a difficulty on Rashi, right? Why is this difficult for Rashi?

[Speaker A] Rashi, after all, says

[Rabbi Michael Abraham] that even in tort law—as the Rosh explains him—even in tort law you need a connection between the negligence and the unavoidable accident. And if there is no connection, then you are exempt. So what’s the problem then? In that case I have a solution to the Talmud’s difficulty. The Talmud asked: whichever way you look at it, if it’s a sound wall then he ought to be exempt in any case. And if it’s a shaky wall then he ought to be liable in any case, because this is a case that begins with negligence and ends with an unavoidable accident. But that’s not correct. You can establish the case as one where it dug under, but not that the digging brought down the wall; rather, the digging is really the burrow through which it went out. And then indeed there is no connection between the negligence and the unavoidable accident, and therefore it says that the owner is exempt. So why is the Talmud debating—sound wall, shaky wall, what case are we talking about—and then ultimately remaining with the difficulty? Just say later on—but it rejects this because of that difficulty, and it moves to another setup. Why? We have a simple explanation. Explain it not like Rashi, but according to the plain meaning of the Talmud—that it dug under and went out through the tunnel. Now you ask yourself why the owner is exempt. Very simple: this is a case that begins with negligence and ends with an unavoidable accident where there is no connection between the negligence and the unavoidable accident, and there everyone agrees he is exempt. And if it did not dig under, meaning if it went out through the wall, then of course he would be liable, since he was negligent. So according to what I suggested earlier in explaining the Rosh’s view—that in tort law you don’t need a connection between the negligence and the unavoidable accident, and therefore he interprets it according to its simple meaning—then of course this question doesn’t arise. Quite right—that is exactly how we explain it here. Only, that explanation does not solve the Talmud’s difficulty, because the Talmud asks: if it really dug under and went out through the tunnel, then according to the one who says that if it begins with negligence and ends with an unavoidable accident one is liable, he ought to be liable. Ah, there is no connection between the negligence and the unavoidable accident—but in tort law, even when there is no connection, one is still liable. Then the Talmud’s difficulty is a good one, and therefore we need to look for a different setup for the Mishnah or for Rava’s statement. So according to my earlier suggestion, not only do we not need to resort to Rashi’s strained reading that the digging brought down the wall, but there is also no question of Rabbeinu Meir’s as to why the Talmud itself did not speak about a case where it dug under the wall and went out, in which case it is obvious why the owner is exempt—because there is no connection between the negligence and the unavoidable accident. Not true. Even when there is no connection, the owner is liable. So you see, this is another gain if we interpret the Talmud according to its simple meaning. “And he answered: because it implies to him that it dug under and caused the wall to fall, from the wording ‘it was breached at night.’ And then it says, ‘provided that it dug under,’ which implies that the wall was breached by its digging under.” Up to here are the words of the Rosh. What is he saying? In principle you are right. If it had dug under and not brought down the wall, but rather gone out through the tunnel, the owner would be exempt. That ruling is a correct ruling. But in the Mishnah and in Rava’s statement you can’t insert that. Why? Because when Rava says “provided that it dug under,” he is speaking about “it was breached at night.” “It was breached at night,” and on that Rava says: when is the owner exempt if it was breached at night? Provided that it dug under. That implies that the digging is the cause of the breach, and not that it was breached at night and then it went out through the tunnel. The constraint is a linguistic one. But really, from the standpoint of the law, we still remain with the position that there must be a connection between the negligence and the unavoidable accident. That is, in the end, the conclusion, and in the simple reading it seems to me that the Rosh does not disagree with that. It’s true that his reading of the Talmud according to its simple meaning could in fact still stand if I assume that in tort law there is no need for a connection between the negligence and the unavoidable accident. But the Rosh himself does not imply that he really remains with that and argues there is no connection. He assumes there does need to be a connection. Therefore he explains why Rashi was forced to interpret it differently, and brings Rabbeinu Meir’s question together with the linguistic constraint. He doesn’t add anything of his own—wait a second, maybe it really did go out through the tunnel and there is no connection between the negligence and the unavoidable accident, and no connection is needed either, so there’s no difficulty at all—he does not say that. So somehow, from the silence of his wording, it appears that he backed off from his first explanation. The later explanations that he brings are explanations that replaced the first one; he is not bringing an alternative possibility, but rather he really thinks that way. You see that the Rosh apparently assumes that there must be a connection between the negligence and the unavoidable accident, and so does Rabbeinu Meir. Rabbeinu Meir is apparently Maharam of Rothenburg, the Rosh’s teacher.

[Speaker C] That linguistic constraint is probably the reason why Rashi explained it that way. Oh!

[Rabbi Michael Abraham] Now look at it in reverse—exactly what Doron pointed out here. Is there really a linguistic constraint forcing us to explain that the tunneling brought down the wall? Now I’m turning the whole picture upside down. Everything that Rashi was forced to say—that the tunneling brought down the wall—is not because it bothered him to explain that it got out through the tunnel, but simply because that doesn’t fit the wording of the Talmudic text. But on the conceptual level, one could also have explained that it got out through the tunnel, and still say that according to the view that if it begins with negligence and ends with an accident he is liable, he would be liable. In other words, specifically in Rashi’s approach I want to argue that there is room to say that in tort law you do not need a connection between the negligence and the accident. After all, that’s what the Rosh said earlier—that the reason Rashi explained that the tunneling brought down the wall, and not that the tunneling caused it to get out—why? Because if the tunneling had caused it to get out, then there would be no connection between the negligence and the accident, and that can’t be, because according to the one who says he is liable, here he would be exempt, since there’s no connection between the negligence and the accident. But now, once you explain to me that there is a linguistic constraint—that you can’t explain that the tunneling is what actually caused it to get out, and instead you have to say that the tunneling brought down the wall—then the proof from Rashi collapses. Because the only reason Rashi was forced to stretch the Talmudic text and say that the tunneling brought down the wall is not because if it had gotten out through the tunnel without bringing down the wall the owner would be exempt. No, no—he would be liable. It just doesn’t fit the language of the Talmudic text, that’s all. And then the possibility definitely opens up to say that specifically in Rashi’s approach, you don’t need a connection between the negligence and the accident. The Rosh apparently assumes that you do need one, and Rabbenu Meir apparently also assumes that you do. And in a kind of reverse irony—in the initial way of looking at it, it seemed that specifically in Rashi it was obvious that from his standpoint there had to be a connection between the negligence and the accident, and that’s why he departs from the simple explanation of the Talmudic text, the obvious explanation that it got out through the tunnel. But now, once we understand that there is a linguistic constraint forcing him to depart from that explanation, then there’s no reason to assume he also had a halakhic constraint. And so it could be that “it begins with negligence and ends with an accident—liable” in tort law applies even when there is no connection between the negligence and the accident, at least according to Rashi. In the Rosh and in Maharam that is apparently not true. According to Rashi, of course, if I’m right about Rashi, then both questions disappear: not the question why he chose a forced explanation—he himself chose a forced explanation in the Talmudic text—and also not the question why the Talmudic text itself did not set it up so that the tunneling would go all the way through, not bring down the wall but simply allow the animal to get out. Then, so to speak, those two questions just fall away. Okay,

[Speaker A] But of course for now that’s only a possibility. In the Tur, the son of the Rosh, as you may recall,

[Rabbi Michael Abraham] We know that many of the laws of honoring one’s father and mother are learned from the Tur’s treatment of the Rosh. There are quite a few things in the literature dealing with the laws of honoring one’s father and mother that bring lots of proofs from the way the Tur relates to the Rosh—among other things, from the fact that he usually rules like him, and the question whether he is allowed not to rule like him, since he is both his teacher and his father, and so on. Here, in section 396 of the Tur: “An animal that has already gored three times, and likewise damage by foot and by tooth, which are forewarned from the outset, require only minimal guarding. Therefore, if the owner tied them with a rope or guarded them with minimal guarding and they went out and caused damage, he is exempt. When is this said? For a forewarned animal. But for an animal not yet forewarned, what kind of guarding is required? Superior guarding. A door that can withstand even an unusual wind. And minimal guarding is one that can withstand only an ordinary wind. But if it cannot withstand even an ordinary wind, it is as though he did not guard it at all, and he is liable—even if the door did not fall because of the wind, but bandits took it out, or it dug under or tunneled under the door and brought it down, for this is a case of beginning with negligence with respect to the falling of the door, and ending with an accident with respect to the tunneling.” You see? “Or it dug under or tunneled under the door and brought it down.” It’s not speaking of it tunneling and going outside; rather, it tunneled and brought down the door, and then it went out through the doorway. “And we maintain that in every case where it begins with negligence and ends with an accident that comes because of the negligence, he is liable.” And this is an accident that came because of negligence. “But if it tunneled through a breach and went out from there, he is exempt, even though it was unstable, because the accident did not come because of the breach.” It seems that he too understood his father the way we saw above—that there has to be a connection between the negligence and the accident even in tort law. Now, the Shitah Mekubetzet brings the Re’ah. And the Re’ah there wrote as follows: “Rather, if it was a shaky wall, when it tunneled—why should he be exempt? It is a case of beginning with negligence and ending with an accident, for he was negligent in having left it there. And because he left it there, the accident also occurred—that it tunneled.” This is fascinating. Again, pay attention. “Rather, if it was a shaky wall, when it tunneled—why should he be exempt? It is a case of beginning with negligence and ending with an accident,” the Re’ah explains, “for he was negligent in having left it there. And because he left it there, the accident also occurred—that it tunneled.” How do you understand him?

[Speaker D] According to that, everything becomes an accident resulting from negligence—literally everything.

[Rabbi Michael Abraham] I don’t agree, but first let’s hear what he’s saying.

[Speaker D] He’s saying that the very fact that I left it there and didn’t take it to a place where there isn’t a shaky wall—that itself is defined as an accident resulting from negligence.

[Rabbi Michael Abraham] I want to remind you of the case of the urban hut, which is the starting point for this whole topic of “it begins with negligence and ends with an accident.” If you remember, right at the beginning I spoke about a positive connection, a negative connection, with all the logic and physical causation and logical conditioning and time. Okay? And I said there that in the case of the urban hut, the money was guarded against thieves, but there was negligence with respect to fire. And in the end thieves came. Well, there’s no connection between the negligence and the accident, because after all I guarded it. I guarded it against thieves, so what if thieves came and stole the money? Why is that called a connection between the negligence and the accident?

[Speaker C] If he had buried it in the ground, then thieves wouldn’t have come.

[Rabbi Michael Abraham] If I hadn’t put it in the urban hut, it wouldn’t have been stolen. Now, it doesn’t matter that the urban hut is good protection against thieves, but putting it in the urban hut is itself negligence with respect to fire. And the negative connection exists. What is the negative connection? It’s not that because I put it there, therefore it was stolen, but rather that if I hadn’t put it there, it wouldn’t have been stolen. Remember this distinction we made? The Re’ah says the same thing applies here. What happens here? Just one second—what happens here? After all, true, you’re right that the shaky wall is not really the cause of the accident; the accident does not come because of the negligence. But there is a negative connection here. If the animal had not been here, it would not have tunneled. So the very fact that I put the animal here—which was negligence with respect to its getting out through the shaky wall—in the end that didn’t happen. What happened? It tunneled, and that’s an accident. But if it hadn’t been here, it wouldn’t have tunneled. So there is a negative connection here, just like in the case of the urban hut. And that is the connection required between the negligence and the accident; you don’t need a positive connection. A positive connection is all just negligence. In “it begins with negligence and ends with an accident,” the connection being discussed is a negative one: if you had not acted negligently, the accident would not have happened.

[Speaker C] Why—if it hadn’t been here, why wouldn’t it have tunneled?

[Rabbi Michael Abraham] If it tunneled here, who says it wouldn’t tunnel—after all, animals don’t usually tunnel.

[Speaker C] So the fact that it tunnels

[Rabbi Michael Abraham] in the shaky wall, it

[Speaker C] would have tunneled also in a solid wall. It’s not like the urban hut. There, if he hadn’t put it in the hut but had buried it underground, there would have been no possibility of theft. Here, if he hadn’t put it here but had put it by a solid wall, does that reduce the possibility that it would tunnel? Doesn’t that reduce the chances that it would tunnel?

[Rabbi Michael Abraham] If you had put it by a solid wall, he would have put it somewhere else.

[Speaker C] What do you mean somewhere else?

[Rabbi Michael Abraham] Somewhere else, in another pen.

[Speaker C] Where there’s good guarding.

[Rabbi Michael Abraham] Where there’s good guarding, but elsewhere, it doesn’t matter.

[Speaker C] Here it can still tunnel.

[Rabbi Michael Abraham] But it doesn’t usually tunnel. An animal generally doesn’t tunnel—that’s the accident. Thieves can steal from an urban hut, but that’s an accident, it’s not likely, it doesn’t usually happen. Here, in this case, it happened. And there’s no reason to assume that somewhere else, properly guarded, this would also have happened. That’s why I didn’t agree with what Binyamin said earlier, because “the Angel of Death—what difference does it make whether here or there?”—that really is a situation where there is no connection between the negligence and the accident.

[Speaker D] No, but just a second, I think there’s a big distinction between the case of the urban hut and ours. In the case of the urban hut, before fireproof materials were invented, the only way to guard against fire was to take it somewhere else—to bury it in the ground. So the negative connection you’re talking about definitely exists. Because if I had guarded it properly against fire, thieves wouldn’t have come, because the assumption is they don’t steal from the ground. But in our case, he had a way to leave the animal in exactly the same place.

[Rabbi Michael Abraham] Some sort of water channel or water pit that protects against fire—then he would basically be exempt.

[Speaker D] Yes, yes—and the point is that in our case the only way to prevent it was a way that would prevent it while keeping it in the same place, and if I had done that, the accident still would have happened.

[Rabbi Michael Abraham] I’ll answer you in my own clumsy way. It’s a good distinction, but I’ll answer you in my own clumsy way. First of all, the question is how you define the negative connection. You can define the negative connection between the fact that you put a shaky wall here and the escape. Here there is no connection, because even if I had put a solid wall there, it still would have gotten out. But you can define the connection between the fact that I placed it in this place, whose wall is shaky, and the tunneling. In that formulation there is a connection between the negligence and the accident. Now the question is which of those two to choose. So here, look, I’ll remind you of the Talmudic text we saw on page 93 in tractate Bava Metzia. If you remember, Tosafot disagrees with the Rif and argues that there has to be a connection between the negligence and the accident even according to Abaye. So how did he explain the shepherd who went up to town? They say: if he had remained there, this wouldn’t have happened. What wouldn’t have happened? There’s a lion here. No—maybe if he had remained there, he would have taken the flock to graze somewhere else. Right? That’s what Tosafot says. But it could also be that he wouldn’t have. It’s enough that it could have happened differently in order to make you liable. In other words, the burden of proof is on you. Once you were negligent, not only do you become liable, but the burden of proof in a case of accident is on you. And therefore you have to show that the accident would have happened anyway. If you can’t show that with certainty—if there is a possibility that the accident would not have happened—then you are liable to pay. That is enough for the negative connection to exist here.

[Speaker D] Fine, so that’s what I said—it’s a standard that basically leaves no case at all.

[Rabbi Michael Abraham] There—you see? I told you: “the Angel of Death—what difference whether here or there?”

[Speaker D] Whether here or there.

[Rabbi Michael Abraham] That’s exactly the explanation brought there.

[Speaker D] Maybe there are places the Angel of Death is afraid to go. I think that…

[Rabbi Michael Abraham] Ah—wisdom on the mountain, wisdom and smoothness in the valley. No, all those things—there really is no connection there.

[Speaker D] Do you have proof that it would also have slipped there? I don’t know.

[Rabbi Michael Abraham] No, it doesn’t slip. The assumption is that an animal doesn’t slip in a place that is not…

[Speaker D] Fine, that’s the assumption, yes, but you’re saying that I have to prove with certainty that if I had acted properly… no.

[Rabbi Michael Abraham] If the straightforward assumption is not like that, that’s proof. I’m speaking where there are two possibilities.

[Speaker D] No, that’s what I’m saying—that here the straightforward assumption is—I completely agree—it depends on what the straightforward assumption is about what would have happened otherwise, because you can never know with certainty. But here, in the case of the urban hut, the straightforward assumption is that if I had acted properly, this wouldn’t have happened. In our case there is no knowledge at all what would have happened.

[Rabbi Michael Abraham] And I want to argue that unlike the case of the urban hut, the Talmudic text on page 93 shows that even if that’s not the straightforward assumption, I’m still liable.

[Speaker D] So if that’s the case, then it

[Rabbi Michael Abraham] never ends.

[Speaker D] No, it does end, because “the Angel of Death—what difference whether

[Rabbi Michael Abraham] here or there?” It isn’t fifty-fifty. How can I prove with certainty?

[Speaker D] You know what the considerations

[Rabbi Michael Abraham] of the Angel of Death are—maybe he doesn’t enter… Again, let me explain once more. I don’t need certainty; you need to prove by majority. It must not be fifty-fifty. It must not be fifty-fifty—that’s what you need. If there’s a majority against it, that’s good enough. Understood.

[Speaker D] It seems to me a bit too extreme a requirement.

[Rabbi Michael Abraham] No, but in any case that’s what you see here. After all, the Re’ah certainly learns this way. The Rif here learns it this way, and Tosafot on page 93 also seems to learn that way.

[Speaker D] I didn’t understand what constraint there is in the Rif’s words. Why can’t you say that he accepts the distinction I’m making? There?

[Rabbi Michael Abraham] The Rif says here that this is “it begins with negligence and ends with an accident.” Right? So how can that be?

[Speaker D] What—about the case of the hut? Of the hut? Not the hut.

[Rabbi Michael Abraham] No, in our case, where there is a shaky wall and it tunneled and got out through the tunnel, and he calls that “it begins with negligence and ends with an accident.”

[Speaker D] Apparently he understood that if I had moved it somewhere else, this wouldn’t have happened.

[Speaker C] Meaning, maybe he understood

[Rabbi Michael Abraham] that the shaky wall made the tunneling easier? That if I had put a solid wall there this wouldn’t have happened? Then certainly I’d be exempt.

[Speaker D] Maybe he understood that the shaky wall made the tunneling easier? What—I don’t understand. That’s what I wanted to say earlier: maybe, maybe the Rif understood that the case here is one where we know that it wasn’t enough to build a

[Rabbi Michael Abraham] solid wall, or that something else was needed. No, none of that is written in his words, I don’t think. On the face of it, the possibility alone is enough. What, one short sentence isn’t written here? Never mind—that’s what he says, you don’t have more than that.

[Speaker D] Everything else is invention.

[Rabbi Michael Abraham] But you see in Tosafot on page 93 that he says this reasoning.

[Speaker D] No, he doesn’t say it there.

[Rabbi Michael Abraham] Yes, he says that if he had remained there, maybe he would have taken them somewhere else—that claim is on him.

[Speaker D] Apparently that “maybe” is not just

[Rabbi Michael Abraham] fifty-fifty—it’s likely

[Speaker D] that it could have happened.

[Rabbi Michael Abraham] No, fifty-fifty—there’s no hint in Tosafot otherwise. And that also isn’t correct as reasoning otherwise. It depends how much time passed; it depends how long a person stays in one place. Tosafot doesn’t make distinctions like that.

[Speaker D] No. So apparently people usually move on; a shepherd doesn’t stay in one place.

[Rabbi Michael Abraham] They move on, but not every moment—they don’t move all the time. If this happened five minutes after he left, then he wouldn’t have moved on. Tosafot doesn’t make distinctions like that. It’s enough that there is a possibility he would have moved on; that seems clear in Tosafot.

[Speaker D] So there you go. It sounds like not even a majority anymore—you’ve already backed off from the idea that it’s about a majority, because most

[Rabbi Michael Abraham] cases do remain

[Speaker D] in the same place for five minutes.

[Rabbi Michael Abraham] No, the opposite—I’m not backing off. I was never talking about majority as the rule; I never said that. I’m claiming that if it’s fifty-fifty, you are liable. You need a majority in order to be exempt.

[Speaker D] Yes, but here even a majority wouldn’t be enough to exempt. Why? Because even if usually within five minutes,

[Rabbi Michael Abraham] it could be that during those five minutes you would have moved on. Why think that this is definitely a minority possibility? We aren’t getting into how long yes and how long no. Since in principle there are two possibilities, you are liable. It doesn’t have to be that each possibility is exactly fifty-fifty. That’s what I mean by fifty-fifty: a person who is there could have left and could have stayed. Since that’s so, these are two reasonable possibilities. When the two possibilities are reasonable, you are liable. Only when one of the possibilities is not reasonable can you be exempt.

[Speaker D] Even within five minutes both possibilities are reasonable? What? Even within five minutes both possibilities are reasonable.

[Rabbi Michael Abraham] A person gets up at some point. He could have gotten up after five minutes, or after an hour.

[Speaker D] Fine, and most people—I don’t know.

[Rabbi Michael Abraham] Clearly there are no hard rules here. You can’t get into every single case, but I do think that the idea is—

[Speaker D] you haven’t proven it from the fact that Tosafot didn’t make a distinction.

[Rabbi Michael Abraham] No, but I did prove this. I proved not from a specific case where it doesn’t work, but I claimed that Tosafot states a general principle. And when there are two possibilities and both are facially reasonable, without now getting into a specific calculation, the burden of proof is on you. That’s my claim. And then I don’t get into the question of how long he was there and how long he wasn’t. The two possibilities are more or less reasonable in the circumstances, so the burden of proof is on you—you are liable. You have to prove otherwise. If you could—if you proved that this happened one second after you left—then it really could be that you would be exempt. But the burden of proof would be on you. That’s what I want to claim.

[Speaker D] Burden of proof isn’t the issue here, the issue is…

[Rabbi Michael Abraham] No, it is important. Because when Tosafot says he is liable, what I’m claiming is that really the burden of proof is on him—not that he is inherently liable. And if he could prove that he wouldn’t… if he could prove that it happened in such a way that he wouldn’t have taken it somewhere else, it could be that he’d actually be exempt, I don’t know. But the default is this. In other words, first of all he is liable.

[Speaker A] Okay, so let’s stop here for a few minutes and come back afterward. Okay friends, come join back in.

[Rabbi Michael Abraham] Okay, so let’s see where we stand. The Talmudic text basically links the case of a shaky wall and the animal tunneling to the law of “it begins with negligence and ends with an accident,” and makes it depend on the dispute whether in such a case one is liable or exempt. We saw several possible explanations. Rashi’s approach is that the tunneling brought down the wall, because if it had tunneled and gotten out, there would have been no connection between the negligence and the accident and he would be exempt. Since by tunneling it brought down the wall, there is a connection between the negligence and the accident, and this depends on the dispute whether “it begins with negligence and ends with an accident” means liable or exempt. The Re’ah’s approach is that it got out through the tunnel. It got out through the tunnel, and he claims that even such a case is considered a connection between the negligence and the accident. We connected this to Tosafot in tractate Bava Metzia on page 94: if it hadn’t been here, then its digging, its tunneling—if he hadn’t placed the animal here—then its tunneling would not have happened. And Binyamin correctly noted that this depends somewhat on how you define the negative connection, or the negligence in relation to the negative connection. Is the negligence that you put a shaky wall here, or is the negligence that you put the animal here despite the fact that there is a shaky wall? Because placing the animal here really does have a negative connection to the accident, but the fact that this place had a shaky wall—that has no connection to the accident. In other words, it’s unrelated to the accident; it would have happened even with a solid wall.

[Speaker C] Is it impossible to explain the Re’ah as saying there is a positive connection here—that the shaky wall made the tunneling easier, because its foundations were poor, so it was easier for it to dig underneath it?

[Rabbi Michael Abraham] No, no, it doesn’t seem that way to me. I don’t know—there isn’t much hint of that in his words. If you take that as obvious, maybe it’s a possibility; I hadn’t thought of it, but it doesn’t seem likely to me. He should have said something—that it tunneled and the foundations there didn’t obstruct it and therefore it succeeded—say some sentence like that. It sounds from him that he is claiming simply that there is a connection between the negligence and the accident, period. In other words, not because it tunneled under the foundations, above the foundations. Because what he says is: “And because he left it there, the accident also occurred—that it tunneled.” He doesn’t say, “because the wall was shaky, the accident occurred—that it tunneled,” but rather, “because he left it there, the accident occurred—that it tunneled.” In other words, it’s pretty clear that in the background he has the case of the urban hut in mind—that is, the negative connection. In other words, if it hadn’t been there, the tunneling would not have happened. That is the claim. Okay.

[Speaker D] Maybe the simple understanding is that it takes time to repair a wall. I’m going back to what I said earlier. Maybe his straightforward assumption was that it takes time to fix a wall, and therefore he would have had to move it somewhere else.

[Rabbi Michael Abraham] Maybe, I don’t know. It’s

[Speaker D] impossible to fix a wall in five minutes.

[Rabbi Michael Abraham] Maybe, I don’t know. In any event, as I said, the simplest way to resolve the passage in its plain sense is to read it the way the Rosh read it, and not be bothered by all the questions of these medieval authorities (Rishonim). To say that there is no connection between the negligence and the accident, and nevertheless the Talmudic text ties it to the dispute about “it begins with negligence and ends with an accident,” because in tort law even when there is no connection between the negligence and the accident he would still be liable. Except that so far we still haven’t found an explicit position like that. The way the Rosh read the Talmudic text would allow for it, but precisely for that reason it raises even more of a question mark as to why the Rosh doesn’t say that, and instead goes with Rashi’s explanation. And then, in a kind of reverse move, we saw such a possibility in Rashi—that in Rashi, the only reason he had to say that the tunneling brought down the wall was not because if it had tunneled underneath he would be exempt, but because the language of the Talmudic text and the Mishnah indicates that the tunneling brought down the wall, and not that it got out through the tunnel. It’s only a linguistic constraint. But that opens the option that at least halakhically, Rashi might say that even if there is no connection between the negligence and the accident, one is liable. But again—it’s only a possibility. We still do not have anyone who said this explicitly. Let’s look at the passage Binyamin mentioned earlier, on page 52b. I won’t really go into all the details there—it’s quite a complicated passage—but we’ll look at what is relevant to us. The Talmudic text says as follows: “When they asked us, this is what they asked us.” Never mind, there was some question there; they check what exactly the question was. This is the Talmud’s suggestion—this was the question: “If he covered it with a cover that can withstand oxen but cannot withstand camels, and camels are common there, and it became worm-eaten from within—what is the law?” In other words, there was a pit in the public domain. And the person who dug it covered it with a cover, some kind of plank protecting it. If oxen passed over that plank, it would withstand them. But if camels stood on that cover, they would fall through. I don’t know, apparently camels are heavier than oxen—my expertise doesn’t reach quite that far—but it withstands oxen and not camels. Now the reality is: “and camels are common there.” In other words, in that place camels are common, so it turns out he was negligent with respect to camels, because the expected case was that a camel would pass there and this cover wouldn’t hold, and it would fall. But what happened in the end? “It became worm-eaten from within.” What happened was that worms got into this wooden cover of the pit and weakened it. And then what? Then oxen passed there—not camels—but the oxen fell in. How did they fall in? After all, this cover is good—it protects against the falling of oxen. Because the worms weakened the wood, rotted the wood. Then it no longer withstands oxen. So again, he was basically negligent regarding camels passing. With respect to oxen it was guarded. What happened in the end was an accident: worms came and softened the wood, and then oxen fell into the pit—not camels. What is the law? The Talmud says: “Do we say that since he was negligent with respect to camels, he was also negligent with respect to worm damage, or perhaps we do not say ‘since’?” Does the fact that he was negligent regarding camels make him considered negligent also regarding worm damage and the falling of oxen, or do we not say that “since”? What is this ‘since’? I’ll leave that for now—it’s a strange formulation. Where does this ‘since’ come from? Notice—the law of “it begins with negligence and ends with an accident” is not mentioned here. And really the reason for that may be that there is no connection between the negligence and the accident. Because if I put a cover there that withstands oxen but not camels, and now worms come and weaken this cover, the worms would also have reached a cover that could withstand camels. If you had put a thicker layer of wood there, so that it would also withstand camels, the worms still would have weakened it. So there is no connection between the negligence and the accident. And therefore it is not relevant to obligate him here under the law of “it begins with negligence and ends with an accident.” And that’s why this issue of ‘since’ is raised here—and again I haven’t yet explained what it is, I’ll comment on it later. But this is some other mechanism for obligating him, not the mechanism of “it begins with negligence and ends with an accident”—it’s some other mechanism. Tosafot there says as follows: “And camels are common there, and it became worm-eaten from within—what is the law? That is to say: if camels had passed first, and afterward oxen came and fell, it is obvious that he is liable, for he is negligent since camels are common there. Or even if they come only occasionally, he should have taken it into account.” By the way, “come only occasionally” connects to our earlier debate, Binyamin. The fact that camels sometimes pass here—that they may come and may not come—is enough to define you as negligent. In any event: “And the question is only where camels did not come, but oxen came and fell because it became worm-eaten from within—what is the law? Do we say ‘since,’ or not? And the conclusion is that we do not say ‘since.’” So what is he saying? He is talking about a situation where, if camels had in fact passed first and weakened the cover because they stepped on it, and then oxen passed and fell into it, then he would certainly be liable, because that is complete negligence. You have to understand that camels pass there, and if camels can weaken this wood for you, then clearly you were negligent also regarding oxen, not only camels. Because you know camels are common in the area there, so that’s obvious. Our question is what happens when the camels didn’t come. “Yes—camels didn’t come, but oxen came.” So what’s the problem? If oxen came, they wouldn’t have fallen. No—but “it became worm-eaten.” It became worm-eaten, and therefore the oxen fell. Why does Tosafot make this whole detour at the beginning? Why does Tosafot need to explain this idea that if camels come, they weaken it, and then the oxen can fall? It seems from Tosafot that without this he really would be exempt here. Why would he be exempt?

[Speaker D] Because the accident clearly didn’t come from the negligence.

[Rabbi Michael Abraham] Why? Even so, the accident didn’t come from the negligence.

[Speaker D] It did come from the negligence. What do you mean? Why? If it fell because the camels weakened it…

[Rabbi Michael Abraham] No, the question in the Talmudic text is when it didn’t fall because of the camels. Right, right. After all, the initial situation is defined as negligence also with respect to oxen, because camels can pass and then the oxen will fall. The Talmud’s question is not about that. If camels passed and then oxen fell, he is liable, because that is all negligence. Then it isn’t even “it begins with negligence and ends with an accident”—it’s all negligence. But if he left it in such a way, and in the end camels didn’t come, they didn’t weaken the wood, but worms came and then the oxen fell—would he be liable? Why? Why does Tosafot speak specifically in this setup? What would have bothered him about saying: forget the camels; the camels also don’t weaken the wood, and even if they had passed, nothing would have happened. But in practice worms came, and that’s why the oxen fell.

[Speaker A] I think it’s connected to the passage on page 21 that we saw in the previous lesson. What do you say? Because he has to be negligent with respect to the oxen. If that weren’t the case, then with respect to whom was the negligence?

[Rabbi Michael Abraham] With respect to the camels. Right? And in the end, to whom did the accident happen? To the oxen. Remember the passage on page 21. If you were negligent regarding one vessel and the accident happened to another vessel, they do not make you liable. Right? Why should they? You need the negligence and the accident to relate to the same… the danger at the stage of negligence and what happened in the end in the accident must relate to the same vessel or the same object that was damaged. If the danger is—if from the outset the negligence is because of danger to object A, and the accident happened to object B, then you are not liable. So Tosafot says that this must be set up in a way that from the outset the negligence was also negligence with respect to oxen. How does that happen? After all, the Talmud says the negligence is with respect to camels, not oxen. Tosafot says: no, it means that if the camels—after all, the camels are common in that place, as the Talmud itself says—if the camels pass over the cover, they weaken it, and then the oxen can also fall into it. And then it turns out that your negligence from the outset was negligence also with respect to oxen, not only camels. And then there really is a situation here where the negligence was with respect to oxen, and the accident at the end also happened with respect to oxen. Here the Talmud asks whether he is liable or not. But if from the outset the camels could not have weakened the cover with respect to oxen, then in that situation he would be exempt for the oxen—there would have been no question. Because the negligence was with respect to camels, and in the end the accident happened to oxen. Okay, that’s the introduction. Tosafot continues.

[Speaker A] “And if you say: even if we do not say ‘since,’ he should still be liable because it begins with negligence regarding oxen—if camels would pass first and then oxen—and ends with an accident when it became worm-eaten.” What is the question?

[Speaker C] You’d have to say that he holds you don’t need a connection between the negligence and the accident.

[Rabbi Michael Abraham] Wait, wait, wait—before the connection, what is he asking?

[Speaker C] Why do we need the ‘since’? It’s just “it begins with negligence and ends with an accident.”

[Rabbi Michael Abraham] He says: ‘since’ is a different mechanism. Why do we need to resort to that mechanism of ‘since’ in order to obligate him? Make him liable here under the law of “it begins with negligence and ends with an accident.” All that comes after Tosafot first explained the scenario being discussed, where both the negligence and the accident were with respect to oxen. Because without that introduction, there would be no place to ask this question. Without that introduction, the accident would be—the negligence would be with respect to camels and the accident with respect to oxen. In such a case, under “it begins with negligence and ends with an accident,” he would be exempt. But since we establish it here in a way that the negligence from the outset was also with respect to oxen, then there is negligence and accident, both with respect to oxen. So in such a case, why do we need to get to ‘since’? Basically, you should make him liable because it begins with negligence and ends with an accident. By the way, what would we say in a case where the negligence was only with respect to camels and not with respect to oxen? Then I would be exempt. But it could be that ‘since’ would nevertheless obligate me. Under “it begins with negligence and ends with an accident” I would be exempt, because the negligence is toward one factor and the accident toward another. But the matter of ‘since’—we need to understand exactly what this thing of ‘since’ is—but the mechanism of ‘since’ might help even in such a situation. In Tosafot it does not seem so. Right? Why? Because Tosafot in the first paragraph, even before he introduced the matter of “it begins with negligence and ends with an accident,” already assumes as obvious that it must be a case where the negligence is also with respect to oxen, not only with respect to camels. Right? In the first paragraph he still hasn’t introduced here the issue of “it begins with negligence and ends with an accident.” We are still in the world of ‘since.’ And already there he assumes as obvious that it must be talking about a case where the negligence is also with respect to oxen, not only camels. In other words, according to Tosafot, even ‘since’ would not obligate in such a situation—not only “it begins with negligence and ends with an accident.” Or in other words, what Tosafot says in the end is: if both in ‘since’ and in “it begins with negligence and ends with an accident” the negligence from the outset has to be also with respect to oxen, and the accident in the end also happened with respect to oxen, then what is the difference between ‘since’ and “it begins with negligence”? Let it follow simply from the fact that it begins with negligence and ends with an accident. Okay, what does he answer? “The Riva answered that we say ‘it begins with negligence and ends with an accident—liable’ only where the accident came because of the negligence. But here the accident did not come because of the negligence, for even if it had been properly covered for oxen and camels, it would still have become worm-eaten. Therefore it appears in the case of one who deposits and was negligent with it and it went out to the meadow, that even according to the one who says ‘it begins with negligence and ends with an accident—liable,’ there he is exempt, because the Angel of Death killed it—what difference whether here or there?” So what does the Riva answer? Here “it begins with negligence and ends with an accident” is not relevant. Why? Because there is no connection between the negligence and the accident. This joins that approach. And here, since the worm damage is unrelated to the negligence, even if you had put an excellent cover there, it still could have become worm-eaten. Therefore, under “it begins with negligence and ends with an accident” you really would not be liable. So why does the Talmudic question nevertheless raise the possibility that he would be liable? Because of ‘since.’ ‘Since’ does obligate even when there is no connection. Why? Because it seems that ‘since’ is basically some kind of principle that says that although you were essentially negligent with respect to camels—sorry, since there is negligence here with respect to oxen, even if the accident in the end is not related to the negligence, you will still be liable for the accident. And not because of “it begins with negligence and ends with an accident,” because after all there is no connection. But still, since the negligence from the outset is with respect to oxen and the accident also happened to oxen, ‘since’ obligates. What exactly does that mean? So why doesn’t this ‘since’ always obligate whenever there is no connection between the negligence and the accident? We’re back again, and now I’ll say: if that’s so, then in tort law you never need a connection between the negligence and the accident—you’ll be liable because of ‘since,’ not because of “it begins with negligence and ends with an accident.”

[Speaker D] That’s because this is his property causing damage, not ordinary tort law specifically.

[Rabbi Michael Abraham] Also in the case of one’s property causing damage—always.

[Speaker D] Yes, but if it’s one’s property causing damage, why? There’s also ordinary tort law.

[Rabbi Michael Abraham] But all our passages are dealing with one’s property causing damage.

[Speaker D] Okay, fine. But there’s also another possibility.

[Rabbi Michael Abraham] Fine, now I’m asking specifically about one’s property causing damage. In the case of one’s property causing damage, is there a situation where—after all all the medieval authorities (Rishonim) say that when there’s no connection between the negligence and the accident he is exempt, right? And that’s not correct? Maybe here he would be liable because of ‘since’?

[Speaker D] If I’m not mistaken, Rabbi Elchanan explains there in that passage something along the lines that if you made it in such a way that it could damage someone, then it is defined as an obstacle, as a pit. And once it is defined as an obstacle, then you are liable also for other things.

[Rabbi Michael Abraham] So here I think this can be explained in two ways. In other words, first, it really may be—and I don’t remember Rabbi Elchanan exactly—but there are later authorities (Acharonim) who go in that direction, claiming that this is a special rule in the case of a pit. The question is when a pit is defined as an obstacle. But it could be that it’s even broader. The claim I want to make is this: you put a cover over the pit—the question is whether that cover is considered a cover at all. In other words, if it is not considered a cover, then you can’t say there is a guarded pit here. Since it is not guarded for one manner, it is not guarded for another manner either—the cover is not a cover. This is not about liability for the damage in the end; rather, I am claiming that you did not cover your pit. But I’m not sure. With respect to a pit, of course, it is easiest to say this, the most natural thing to say. But I’m not sure you have to say it specifically about a pit. For example, if we return to our passage with the shaky wall, one could say that the animal is not considered enclosed if it can get out in some particular way. In other words, if both the negligence and the accident speak about the same object that guards the animal, or the pit, or whatever it is, then you can say: since that object is, so to speak, nonexistent for one purpose, then because of that it is already considered by me as though you didn’t put such an object here at all. That doesn’t mean that in every case of “it begins with negligence and ends with an accident” you would be liable, because if there is no single object that is sufficient for one matter and insufficient for another, then we wouldn’t say this matter of ‘since.’ There it would take us back to the topic of “it begins with negligence and ends with an accident.” And if there is no connection between the negligence and the accident, then indeed you would be exempt. ‘Since’ tells you that this cover, since it is not a cover for this matter, is not a cover at all. Maybe.

[Speaker A] And by the way, later in Tosafot he gets to our passage,

[Rabbi Michael Abraham] “And if you say: in tractate HaKones, regarding ‘it broke open at night,’ when he says concerning a shaky wall, ‘If it tunneled, why should he be exempt? It is a case of beginning with negligence and ending with an accident’—but there the accident did not come from the negligence, for even a solid wall can be tunneled through.” There, apparently, there is no connection between the negligence and the accident. According to my approach, according to my approach, it could be that indeed in tort law you don’t need a connection between the negligence and the accident, and then indeed—by the way, how would I explain the Talmudic text on page 52 according to that? Very simply. Without Tosafot’s forced interpretation that the camels can weaken the cover and then the oxen will fall. There, he is exempt not because there is no connection between the negligence and the accident, but because it is not called “it begins with negligence and ends with an accident,” since the negligence is regarding camels and the accident is regarding oxen. As Tosafot says on page 27 according to near and far vessels. Tosafot of course doesn’t say it this way because Tosafot assumes a connection is needed. But I say that according to my own approach, I can also read that passage that way. And on page 52 the point is that the absence of a connection between the negligence and the accident does not exempt. In tort law you don’t need a connection. In other words, the plain meaning of “it begins with negligence and ends with an accident” is that even without a connection one is liable. There, if you ask me why he is not liable under “it begins with negligence and ends with an accident,” the answer is: because that is negligence regarding camels and the accident is regarding oxen. Just as Tosafot says on page 27 according to near and far vessels. Tosafot of course does not say that, because Tosafot assumes that a connection is required. But I say that according to my approach, I can read the passage there that way too.

[Speaker D] Rabbi, there’s something else you’ll have to explain in Tosafot. Why, if he had put on a different cover—who says that? After all, you could always argue that if he had put on a cover that was sufficient even against camels, who knows whether it would have become worm-eaten? Say, an iron cover. Not specifically iron—maybe it would have been thicker wood. Who told you that?

[Rabbi Michael Abraham] Fine, it doesn’t matter. But something that worms wouldn’t eat away at.

[Speaker D] Tosafot assumed not, that we don’t say such a thing.

[Rabbi Michael Abraham] Right, it could be that Tosafot here really does not go in the direction we spoke about earlier.

[Speaker D] Fine, that would be evidence against it; Tosafot also doesn’t go with your approach. It would be specific evidence against that claim.

[Rabbi Michael Abraham] Fine, okay. No, Tosafot here in any case does not go with my suggestion, that’s clear. That’s true—Tosafot requires a connection between the negligence and the unavoidable accident. Fine. So Tosafot says: “And one can say that later Rashi explained that it dug underneath and knocked down the wall by digging, so the unavoidable accident came as a result of the negligence that was foreseeable, for if it had not been shaky, it would not have fallen through digging.” In short, once again he goes back to the fact that Rashi’s explanation is because of this issue. As I said earlier, I’m not sure. It could be that Rashi’s explanation is because of the linguistic constraint. Okay? When we read the passage on page 52 straightforwardly, and then only maybe at the end he brings the Rif, and brings the Rif who on page 93 says that you do not need a connection between the negligence and the unavoidable accident, and he disputes him exactly as we saw that Tosafot disputes him in other places too. Okay? But that is in Abaye’s view; here there’s room to argue. So what comes out is this: if I read our passage straightforwardly, page 56, and the passage on page 52 straightforwardly, then the required answer is that “its beginning was in negligence and its end in an unavoidable accident” even without a connection—in torts he is liable. That is the plain meaning of the passage here, and that is the plain meaning of the passage there. Even without a connection. And therefore it doesn’t matter—the question whether there is or isn’t a connection—you don’t need all of Tosafot’s devices, that the camels would loosen the cover and then negligence is created even with respect to the oxen. No. The negligence is not with respect to the oxen; it is with respect to the camels. Unrelated. And therefore you have to get to since, not because there is no connection between the negligence and the unavoidable accident, but because this is not even negligence and accident regarding the same object at all. But if it is with respect to the same object, then even if there is no connection, you would still be liable in torts. And that is also the plain meaning of the passage here regarding “it dug underneath.” Okay? But again, these are straightforward readings, and that actually strengthens even more the question of why all the medieval authorities (Rishonim) choose not to read it that way. Because they assume that apparently in torts too you need a connection between the negligence and the unavoidable accident. Now I’m getting to the punch line. Maimonides writes as follows: “If it became worm-eaten from within and oxen fell into it, even though camels are always found there and he is therefore negligent with respect to the camels”—notice, with respect to the camels, not the oxen—“since the oxen fell in because it became worm-eaten, he is exempt.” Maimonides does not say that there was negligence here regarding the oxen. The negligence was regarding the camels. That’s it. Meaning, according to Maimonides, we do not say since here, and “its beginning was in negligence and its end in an unavoidable accident” does not apply here because there is no connection between the negligence and the unavoidable accident, since the oxen fell in because it became worm-eaten. So on that the Raavad says as follows: “Abraham said: Rabbi Yitzhak did not bring anything from that entire passage in his halakhic rulings. It seems that it is not fundamental, and he relied on what the authors of the Talmud agreed upon, that ‘its beginning was in negligence and its end in an unavoidable accident’ is liable—and this requires further examination.” Rabbi Yitzhak is of course the Rif. So the Rif did not bring this passage in his halakhic rulings. That if it became worm-eaten from within and oxen fell in, he is liable, right? Therefore he did not bring it—there was no need to bring it. He already stated the general rule that “its beginning was in negligence and its end in an unavoidable accident” is liable. Wait, but here there is no connection between the negligence and the unavoidable accident. Especially since the Raavad is commenting on Maimonides, and Maimonides sets it up here not only as a case where there is no connection between the negligence and the unavoidable accident, but where the negligence is regarding camels and the unavoidable accident is regarding oxen. And even so, according to the one who says “its beginning was in negligence and its end in an unavoidable accident,” here he would be liable. So first, we do not accept what the medieval authorities (Rishonim) said on page 21, that the negligence and the unavoidable accident both have to threaten the same object, because here we see that beginning in negligence regarding camels and ending in an unavoidable accident regarding oxen is still liable. Second, there is no connection between the negligence and the unavoidable accident. What caused the oxen to fall was the worming-away, not the weakening caused by the camels that passed earlier or something like that. There is no connection. So why, according to the one who says “its beginning was in negligence and its end in an unavoidable accident,” would he be liable here? According to the one who says that such a case is liable, why would he be liable here? There is no connection between the negligence and the unavoidable accident. It seems to me that this Raavad assumes that “its beginning was in negligence and its end in an unavoidable accident” is liable even when there is no connection between the negligence and the unavoidable accident. And by the way, all this “requires further examination” that he writes here—it does not seem to be because he is unsure whether in torts you really do not need a connection between the negligence and the unavoidable accident. That’s not his uncertainty, not why he’s not sure. Rather, it’s that you left this Talmudic discussion as not in accordance with the practical Jewish law, that you left this Talmudic discussion attached to the view that “its beginning was in negligence and its end in an unavoidable accident” is exempt, when we rule that he is liable. That’s what bothers him; that’s why it requires further examination. That implies that the very determination… What? I can’t hear.

[Speaker D] Or the Raavad held that there there is a connection between the determination and the unavoidable accident, because he agreed with your claim about the negative connection—he held that if he had made a cover—

[Rabbi Michael Abraham] Stronger, then maybe the metal would not have become worm-eaten. Strange. He says nothing, and Maimonides also says nothing. After all, Maimonides says he is exempt, right? Right. Now the Raavad, according to your approach, seemingly should have explained why he is exempt, because he holds that “its beginning was in negligence and its end in an unavoidable accident” is exempt. Why is he exempt?

[Speaker D] Because there is a connection between the negligence—

[Rabbi Michael Abraham] To— no, because there is no connection. Yes, because there is no connection. Meaning, according to your approach, the Raavad disagrees with Maimonides on this point as well, regardless of whether it follows the one who says liable or the one who says exempt—he disagrees with Maimonides in that the situation here is a situation where there is a connection between the negligence and the unavoidable accident, unlike Maimonides, who says there is no connection.

[Speaker D] That’s one possibility. It could be that he disagrees on both points, meaning according to—

[Rabbi Michael Abraham] But we don’t multiply disputes unnecessarily. Maimonides says there is no connection, and the Raavad does not say that he disagrees with him on that. He only argues that this goes according to the view that he is exempt, whereas the Rif holds that he is liable. So it seems that even where there is no connection, according to the one who says “its beginning was in negligence and its end in an unavoidable accident” he would be liable here. So in the simple reading, it seems that according to the Raavad you do not need a connection between the negligence and the unavoidable accident in torts. And in fact Rabbi Akiva Eiger comments on this here. He says: “The words of the Raavad, who wrote regarding ‘it became worm-eaten’—‘Abraham said’—are very puzzling to me, for the Rif’s view is explicit in the chapter HaMafkid, that we require that the unavoidable accident come as a result of the negligence.” Yes, practically speaking, like Rava. Everything he said was in Abaye’s view, but practically speaking the unavoidable accident has to come as a result of the negligence. “And therefore it seems to me that the Rif also explains the passage as Tosafot wrote in the conclusion, that he was negligent not regarding the ox, but only regarding the camels.” Fine, so he explains the Rif differently, but he is puzzled by the Raavad—how can the Raavad say such a thing? I want to argue that the Rif—the Rif who says that you do not need a connection between the negligence and the unavoidable accident—that is not only in Abaye’s view; in torts it is also in Rava’s view. That is the necessary explanation of the Raavad’s position. Okay, that’s it for now. Thank you very much. Good, just finish the passage on page 56. I hope that next time we’ll devote only part of the session to this and already move on. Thank you very much,

[Speaker A] Rabbi. All the best.